C.C. Basavaraj vs Smt. Gowramma

N.K. Patil, J.—This appeal by the appellant-husband is directed against the Order dated 01/03/2013 passed in M.C. No. 26/2013, by the Judge, Family Court, Davanagere, dismissing the petition filed by him U/s 13(i)(b) of Hindu Marriage Act. The appellant in this appeal had filed a petition before the Family Court, Davanagere, under Sections 13(1)(1a) and (1b) of the Hindu Marriage Act, against respondent-wife, seeking a decree of divorce on the ground of cruelty and desertion. When the said matter had come up for consideration before the Family Court on 1.3.2013, the Family Court has dismissed the petition filed u/s 13(1)(b), on the ground that, wife has stated that she want to live with her husband and she was ready to go with her husband. But the husband was not ready to take back her and there is no desertion as pleaded by the husband and the ground urged by the husband u/s 13(1)(b) of Hindu Marriage Act is not available to him and adjourned the matter. Being aggrieved by the said order, the husband has presented this appeal.

We have heard he learned counsel appearing for appellant and learned counsel appearing for respondent.

After careful perusal of the order impugned passed by the Family court, it is manifest that the reasoning given by the Court below for dismissing the petition cannot be sustained and is liable to be set aside at threshold, for the reasons that, it is the specific case of the husband in MC No. 26/2013 that he has filed petition u/s 13(1)(1b) of Hindu Marriage Act, on the ground that respondent without any reasonable and sufficient cause has withdrawn from the society of her husband and deserted him on 29.12.2007 and from that date she has been residing separately for a period of more than two years, continuously, immediately preceding to the filing of the petition, as stated in para-9 of the plaint. It appears that, the Family Court has not noticed the specific ground urged by the husband in para-9 of the plaint and dismissed the petition filed u/s 13(1)(b) on the sole ground that wife is ready and willing to go with her husband. That is not a ground to dismiss the said petition and it should be decided on merits, after recording oral and documentary evidence. Therefore, the reasoning given by the Family Court for dismissing the petition u/s 13(1)(1b) cannot be sustained and is liable to be set aside, without going further into the merits and demerits of this case. In the light of the facts and circumstances of the case as stated above, the appeal filed by the Insurer is allowed.

The impugned Order dated 01/03/2013 passed in M.C. No. 26/2013, by the Judge, Family Court, Davanagere, is hereby set aside and the matter stands remitted back to the Family Court, Davanagere, to reconsider the same afresh and to pass appropriate orders in accordance with law, after affording reasonable opportunity to both the parties and in strict compliance with Section 13(1)(1b) of Hindu Marriage Act, as expeditiously as possible.

In view of remanding the matter to the Family Court, the relief sought by the appellant in IA No. 1/2013 does not survive for consideration. Hence, it is dismissed as having become infructuous.