Allowed

Smt. Kasturi v. Sri. Sabu Kalbilagi

Karnataka HC4 Jun 2024MFA/9049/2019

Case brief

AI extract

What is this about?

Wife appealed against an ex-parte decree of dissolution of marriage granted on grounds of cruelty while she was seeking transfer of the proceedings to her home court. The appellate court set aside the decree and remanded the matter, directing transfer of the petition to Athani per the earlier transfer order.

What did the court decide?

Ex-parte divorce decree set aside; matter remanded and directed to be transferred to Principal Senior Civil Judge, Athani.

Smt. Kasturi Vs Sri. Sabu Kalbilagi — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC:19051-DB MFA No.9049/2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF JUNE, 2024 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.9049/2019 (FC)

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BETWEEN:

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SMT. KASTURI W/O SRI. SABU KALABILAGI AGED ABOUT 26 YELARS D/O SRI. GOPAL LAKSHMAN LOKUR R/AT HALIYAL VILLAGE, ATHANI TALUK BENGALURU DISTRICT.

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…APPELLANT

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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(BY SMT. SONU S, ADV., FOR SRI. RAJASHEKAR S, ADV.,)

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AND:

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SRI. SABU KALBILAGI S/O SRI. GIRAMALLA AGED ABOUT 30 YEARS R/AT NO.40, 1ST FLOOR BHEL EPD TOWNSHIP B 8TH MAIN, OPP MYSORE LAMPS MALLESHWARAM, BENGALURU 560 055.

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…RESPONDENT (BY SRI. JAVEED S, ADV., APPOINTED AS AMICUS CURIAE FOR RESPONDENT V.C.O. 31.01.2024)

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THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED. 20.07.2018, PASSED IN MC. NO.5945/2017, ON THE FILE OF THE V-ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED U/SEC.13(1) (i) AND (ia) OF THE HINDU MARRIAGE ACT, 1955.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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NC: 2024:KHC:19051-DB MFA No.9049/2019

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JUDGMENT

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The matter is taken up for final disposal with the consent of both sides.

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Heard.

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This appeal is filed by the wife challenging the exparte decree of dissolution of marriage of appellant and respondent on the ground of cruelty.

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The appellant did not contest the matter before the trial Court and exparte judgment and decree was passed against her. The trial Court records show that the appellant had filed C.P.No.100067/2018 before Dharwad Bench of this Court seeking transfer of M.C.No.5945/2017 from the file of Principal Judge, Family Court, Bengaluru to the Principal Senior Civil Judge, Athani, on the ground of her hardship of travelling from Athani to Bengaluru and financial resources.

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The records further show that the appellant had preferred Crl.Misc.No.279/2017 before the Civil Judge & JMFC, Athani seeking maintenance. This Court had allowed C.P.100067/2018 by order dated 07.12.2018 transferring

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NC: 2024:KHC:19051-DB MFA No.9049/2019

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M.C.No.5945/2017 to the Court of Principal Senior Civil Judge, Athani. In C.P.No.100067/2018, the respondent was though served, did not appear and contest the said petition. But he was pursuing M.C.No.5945/2017 before the trial Court.

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Considering the aforesaid facts and circumstances, satisfied that the appellant had insurmountable difficulty in appearing before the trial Court to contest the matter, she is required to be given fair opportunity. Therefore, it is a fit case to set aside the impugned judgment and decree of divorce and remand the matter to the trial Court. Hence, the following:

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ORDER

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i. The appeal is allowed.

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ii. The impugned judgment and decree dated 20.07.2018 in M.C.No.5945/2017 passed by the V Additional Principal Judge, Family Court, Bengaluru, is hereby set aside.

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iii. The matter is remanded to the V Additional Principal Judge, Family Court, Bengaluru. The said Court shall transfer the petition along with records in M.C.No.5945/2017 to the Principal Senior Civil Judge, Athani in

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4 - NC: 2024:KHC:19051-DB MFA No.9049/2019

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compliance with the order in

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C.P.No.100067/2018 within a period of one

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month from the date of receipt of this order.

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iv. On such transfer, the parties shall appear before the Principal Senior Civil Judge, Athani on 05.08.2024 without further notice. If the respondent, who is the petitioner in the trial Court proceedings, fails to appear, the trial Court shall issue notice to him and proceed in accordance with law.

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This Court places on record its appreciation for the able assistance rendered by Sri Javeed S., learned Amicus-Curiae Registry shall disburse him honorarium of Rs.15,000/-.

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The trial Court shall recover the cost of amicus-curiae from the petitioner husband as decretal amount and remit the same to the state.

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Sd/JUDGE

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Sd/JUDGE

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BSR/List No.: 1 Sl No.: 31

Smt. Kasturi v. Sri. Sabu Kalbilagi

Case brief

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Smt. Kasturi v. Sri. Sabu Kalbilagi

Case brief

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