Smt H P Akshatha Vs Sri B Siddappaji Swamy

SMT.H.P.AKSHATHA W/O B. SIDDAPPAJI SWAMY D/O PUTTASWAMY AGED ABOUT 30 YEARS R/AT NO.1791, 5^TH CROSS HOSAHALLI VILLAGE VINAYAKA TENT ROAD NEAR BASAVANAGUDI, MANDYA CITY MANDYA DISTRICT -571 401 …APPELLANT

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(BY SRI HARIPRASAD M B, ADVOCATE)

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AND:

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

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SRI B SIDDAPPAJI SWAMY S/O LATE BORAIAH AGED ABOUT 40 YEARS EMPLOYEE IN PVT. CONCERN R/AT NO.557, 5^TH SITE BHARATHI COLONY KALAMUDDANA DODDI VILLAGE MADDUR TALUK MANDYA DISTRICT – 571 401 …RESPONDENT

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(NOTICE HELD SUFFICIENT VIDE COURT ORDER DATED 19.07.2023)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 28(1) OF HINDU MARRIAGE ACT, 1955 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.02.2022 PASSED IN M.C.NO.88/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADDUR ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ib) OF THE HINDU MARRIAGE ACT, 1955.

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NC: 2025:KHC:633-DB MFA No.2110/2023

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Challenging the exparte decree of divorce passed against her, the respondent in M.C.No.88/2021 on the file of the Senior Civil Judge, Maddur has preferred this appeal.

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The marriage of the appellant and the respondent was solemnized on 12.02.2016 at Benaka Samudaya Bhavana, Guthalu Road, Mandya City. The parties are Hindus and governed by the Hindu Marriage Act, 1955 (for short ‘the Act’).

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The respondent filed M.C.No.88/2021 before the Trial Court seeking decree of dissolution of marriage under Section 13(1)(ib) of the Act alleging that the appellant has willfully deserted him since four to five years prior to filing of the petition. Despite his attempts, she did not join him. He contended that she is guilty of willful desertion and he is entitled for decree of divorce on the said ground.

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Trial Court records show that the notice issued in the said case to the present appellant was returned with

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NC: 2025:KHC:633-DB MFA No.2110/2023

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endorsement ‘unclaimed’. Trial Court placed her exparte recorded the evidence of the respondent and his witness as PWs.1 and 2. Respondent got marked Exs.P1 to P3 i.e. marriage invitation card, CD and copies of whatsapp respectively.

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Trial Court on hearing the present respondent/husband, by the impugned judgment and decree held that the respondent’s evidence has gone unrebutted. Based on such evidence, the Trial Court granted decree of dissolution of marriage.

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The records show that the notice of appeal issued to the respondent/husband was returned with endorsement that he has refused the notice. He has not turned up to contest the appeal.

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Sri Hariprasad M.B, learned Counsel for the appellant reiterating the grounds of appeal submits that the respondent himself was abusive and it was the respondent who threw the appellant out of the matrimonial home. He further submits that the respondent furnished wrong address and has managed to get exparte decree, playing fraud on the appellant. Therefore the decree is liable to be set aside.

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NC: 2025:KHC:633-DB MFA No.2110/2023

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Before this Court the appellant has filed I.A.No.1/2024 under Section 25 of the Act seeking permanent alimony of Rs.40,00,000/- from the respondent.

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On hearing the appellant and on examining the material on record, the point that arises for consideration is “whether the impugned judgment and decree is sustainable?” Analysis

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There is no dispute that the appellant and the respondent were Hindus and they married on 12.02.2016 in Mandya City. It is also not disputed that presently the appellant and the respondent are living separately. The records further show that the notice of the petition issued by the Trial Court was returned with endorsement ‘unclaimed’. The respondent himself contended before the Trial Court that the present appellant is living separately. In the petition he had furnished the following address:

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“H.P.Akshatha W/o.B.Siddappaji Swamy S/o. Puttaswamy Aged about 27 years R/o No.1791, 5^th Cross Hosahalli village, Mandya Ward No.16, Kasaba Hobli, Mandya Taluk and District”

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NC: 2025:KHC:633-DB MFA No.2110/2023

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Learned Counsel for the appellant submits before this Court the copy of aadhar card of the appellant wherein her address is shown, as resident of 5^th Cross, Hosahalli, Mandya. The respondent has not turned up to dispute the allegation that the particulars furnished in the cause title of the divorce petition and the one shown in the aadhar card of the appellant and the appeal memo are different. The respondent himself in the divorce petition contended that the appellant had filed police complaint against him. The couple were married for five years. Under the circumstances, throwing her out of the marriage without hearing her is unfair and unjust. Therefore, it is a fit case to set aside the judgment and decree and remit the matter to the Trial Court for adjudication on giving opportunity of hearing to both parties.

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Since the impugned judgment and decree has to be set aside, the question of granting permanent alimony during subsistence of marriage does not arise. If at all the appellant wants to seek any interim alimony, it is open to her to raise such claim before the Trial Court. For the aforesaid reasons, the Court passes the following:

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ORDER

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The appeal is allowed.

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NC: 2025:KHC:633-DB MFA No.2110/2023

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The impugned judgment and decree of divorce dated 18.02.2022 in M.C.No.88/2021 passed by the Senior Civil Judge, Maddur is hereby set aside.

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The matter is remanded to the Trial Court for fresh consideration on giving opportunity of hearing to both the parties.

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To avoid further delay, the appellant is hereby directed to appear before the Trial Court on 03.02.2025 without any further notice. She shall file her statement of objections to the petition on the date of her appearance.

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The Trial Court shall issue notice to the respondent/husband to the address shown by him in the cause title of the petition and then proceed in accordance with law.

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In view of disposal of the appeal, pending IAs stood disposed of.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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KSR

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List No.: 1 Sl No.: 22

Smt H P Akshatha v. Sri B Siddappaji Swamy

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Smt H P Akshatha v. Sri B Siddappaji Swamy

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