Disposed

Kalakappa S/O Sangappa Huli, v. Ambika Alias Channabasamma

Karnataka HC16 Apr 2021MFA/100539/2016

Case brief

AI extract

What is this about?

The High Court held that it lacks jurisdiction to entertain a divorce by mutual consent petition under Section 13(B) Hindu Marriage Act as it does not have original jurisdiction. The appeal was disposed of, and parties were granted liberty to approach the court of first instance, with liberty to waivet the six-month waiting period given the long pendency of litigation between them.

What did the court decide?

Appeal disposed; liberty to parties to approach competent court for mutual consent petition with waiver of six-month waiting period.

Kalakappa S/O Sangappa Huli, Vs Ambika Alias… — Matrimonial and Divorce | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF APRIL, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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AND

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THE HON’BLE MR.JUSTICE E.S.INDIRESH

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MFA NO.100539/2016 (MC)

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BETWEEN

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KALAKAPPA S/O SANGAPPA HULI, AGE:41 YEARS, OCC:LECTURER, GOVT. P.U. COLLEGE, TAVARAGERA, R/O: HIRE-ARALIHALLI, TQ: YELBURGA, DIST: KOPPAL.

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…APPELLANT

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(BY SRI.P G MOGALI, ADVOCATE)

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AND

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SMT. AMBIKA ALIAS CHANNABASAMMA W/O KALAKAPPA HULI, AGE:35 YEARS, R/O: TAVARAGERA, NEAR V.S.S.N. BANK, TQ: KUSHTAGI, DIST: KOPPAL.

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…RESPONDENT

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(BY SRI.ANAND R KOLLI, ADVOCATE)

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THIS MFA IS FILED U/S.28(1) OF THE HINDU MARRIAGE ACT 1955, AGAINST THE JUDGEMENT AND DECREE DATED:09.11.2015, PASSED IN MATRIMONIAL CASE NO.07/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., YALABURGA, DISMISSING THE PETITION FILED U/SEC. 13 (1) (1-a) OF THE HINDU MARRIAGE ACT, 1955

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant and the respondent present a compromise petition under Order XXIII Rule 3 of CPC read with Section 13(B) of Hindu Marriage Act, 1955. Learned counsel for the appellant as also the respondent are present.

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The appellant-husband also hands over two demand drafts, one demand draft for a sum of Rs.10,00,000/- and another for Rs.7,50,000/- to the respondent-wife. The respondent-wife confirms receipt of the same.

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The parties submit that they are fully aware of the contents of the compromise petition and that they have decided to dissolve the marriage by mutual consent. But the position is that the Court of Senior Civil Judge, Yalaburga dismissed the divorce petition filed by the husband under Section 13(1)(1-a) of Hindu Marriage Act and aggrieved by the said judgment, the husband has

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preferred this appeal. The parties might have now come to a decision to get their marriage dissolved by mutual consent, but we are of the opinion that this Court cannot entertain an application made under Section 13(B) of Hindu Marriage Act. Plain reading of Section 13(B) of Hindu Marriage Act makes it clear that such an application must be presented to the Court of first instance i.e. the District Court or the Court of Senior Civil Judge or Family Court, as the case may be. The High Court sitting in appeal cannot exercise jurisdiction under Section 13(B) of Hindu Marriage Act. No decree of dissolution of marriage can be passed based on a compromise petition. Therefore, we are of the opinion that the parties have to approach the concerned Court having original jurisdiction to entertain the petition under Section 13(B) of Hindu Marriage Act. All that we can observe is that if the parties present a petition under Section 13(B) of Hindu Marriage Act, since the parties have been litigating for the last 10 years, waiting period of six months may be waived. Therefore, the following:

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ORDER

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The appeal stands disposed of giving liberty to the parties to approach the concerned jurisdictional Court and make an application under Section 13(B) of Hindu Marriage Act.

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If such an application/petition is made, waiting period of six months shall be waived by the concerned Court.

Sd/-

JUDGE

Sd/JUDGE

Kalakappa S/O Sangappa Huli, v. Ambika Alias Channabasamma

Case brief

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Kalakappa S/O Sangappa Huli, v. Ambika Alias Channabasamma

Case brief

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