Karnataka High Court
Sri B P Upendra S/O Late Sri Padmanabhiah ... vs Smt Parvathi Alias Pushpa on 5 September, 2014
Bench: K.L.Manjunath, A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH DAY OF SEPTEMBER, 2014
PRESENT:
THE HON'BLE Mr. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE Mr. JUSTICE A.V.CHANDRASHEKARA
M.F.A. No. 8419 OF 2012 (MC)
BETWEEN:
SRI B P UPENDRA
S/O LATE SRI PADMANABHIAH TANTRI
AGED ABOUT 69 YEARS
RESIDING AT NO 27,
"BHARGAVA NILAYA",
I MAIN ROAD,
MUNESHWARA LAYOUT,
ATTUR, YELAHANKA
NEW SATELLITE TOWN
BANGALORE - 560 064. ... APPELLANT
(By Sri. SAI KIRAN R, Adv.)
AND:
SMT PARVATHI
ALIAS PUSHPA
W/O SRI B P UPENDRA
AGED ABOUT 60 YEARS
R/AT ARAKERE VILLAGE,
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SAKALESHPUR - 573 134
HASSAN DISTRICT. ... RESPONDENT
(By Sri. H JAGADEESH, Adv.)
THIS MFA IS FILED U/S 28 OF THE HINDU
MARRIAGE ACT, 1955, AGAINST THE JUDGMENT AND
DECREE DATED 02.06.2012 PASSED IN M.C NO.17/2007
ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC,
SAKALESHPUR, DISMISSING THE PETITION FILED
U/SEC 13(1B) OF THE HINDU MARRIAGE ACT 1955 FOR
DISSOLUTION OF MARRIAGE.
This Appeal coming on for admission, this day,
A.V.CHANDRASHEKARA, J., delivered the following:
JUDGMENT
The present appeal is filed against the order passed on 02.06.2012 in M.C.No.17/2007, which was pending on the file of the Court of Senior Civil Judge and JMFC, Sakaleshpur.
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2. Appellant was the petitioner in the said case and respondent was the respondent in the said case. Their marriage was solemnized according to Hindu customs on 08.06.1972 at Devi Halli, Sakaleshpura Taluk, Hassan District. At the time of the marriage, the appellant was working in Defence and was in Mathura, Madhya Pradesh. As a result of the marriage, two male children were born. After retirement from the military service, appellant/ petitioner returned to his native place, Arakere Village, Sakaleshpura Taluk, Hassan District along with his wife and children and started living there.
3. It is the case of the petitioner that the respondent has virtually deserted him and has been living in her mother's house at Arakere Village, Sakaleshpura Taluk, Hassan District and thereby she has put an end to the marital tie. With these 4 pleadings, he had requested the Court to grant decree of divorce on the ground of desertion.
4. The respondent had contested the petition on various grounds contending interalia amongst others that the petitioner himself had neglected her and as a result of the same, she had to file a petition seeking maintenance under Section 125 of Cr.P.C., which came to be allowed. It is further averred that the petitioner had filed a revision petition against the said order of maintenance and the said revision has also been dismissed. It is her case that the petitioner is having illicit contact and in order to legalize the said connection, the present petition has been filed.
5. The petitioner examined himself as PW-1 and got examined another witness as PW-2 and got marked Exs.P1 to P16. The respondent examined 5 herself as RW-1 and got examined another witness as RW-2 and got marked Exs.R1 to R14. RW-2, Ahalya is the sister of the respondent.
6. We have heard the arguments of the learned counsel for the appellant in regard to admission and perused the records.
7. After going through the records and after hearing the parties, the point that arise for our consideration is as follows :
"Whether the Trial Court is justified in dismissing the petition"?
REASONS
8. The marriage between the parties is not disputed. It is also not in dispute that out of the said wedlock, two male children are born. The respondent had filed the petition under Section 125 of Cr.P.C. 6 seeking maintenance against the present appellant in Crl.Misc.No.184/2002 before the JMFC Court at Sakaleshpur and the said Court has ordered maintenance at Rs.1,500/- per month. Against the said order, the appellant herein had filed CRP No.67/2004 before the Sessions Court at Hassan which was assigned to the Fast Track Court. The said revision petition has been dismissed. One of the grounds to grant maintenance by the Trial Court is that the appellant herein has been living with a lady who is unconnected with the matrimonial home. The name of the said lady is also mentioned by the respondent and her name is Meenakshi. The finding so given by the Trial Court while granting maintenance in regard to the alleged illicit conduct of the appellant with the said lady has virtually remained final. 7
9. Nothing is placed on record as to what steps the appellant took to take her back. If the petitioner had an intention to get her back, he would have filed a petition under Section 9 of the Hindu Marriage Act. Instead of doing so, he has filed a petition under Section 13(1b) of the Hindu Marriage Act, 1955 long after the alleged desertion took place. If the desertion, according to the appellant, took place in the year 1982, there is an inordinate delay of 25 years. It is in this regard, it is relevant to place reliance upon sub-section
(b) of Section 23(1) of the Hindu Marriage Act, which reads as under:
23. Decree in proceedings:- (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that -
(a) xxxxx 8
(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty.
10. If the petitioner has approached the Court with a relief for divorce under Section 13, there must not be any condonation of the cruelty or the alleged desertion. Taking into consideration the facts and circumstances of the case, we are not inclined to accept the arguments advanced by the learned counsel appearing for the appellant. Suffice it to state that the learned Judge has adverted to all the aspects in detail. There is no merit to interfere with the well considered 9 order. Hence, the appeal is liable to be dismissed as unfit for admission.
Hence, the appeal is dismissed, upholding the judgment of the Trial Court.
There is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE dh*