- 1 - HC-KAR NC: 2025:KHC:35078-DB MFA No. 858 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MR. JUSTICE JAYANT BANERJI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 858 OF 2017 (FC) BETWEEN: SMT.KALAVATHI @ GANGAMMA, W/O N.MURTHY, AGED ABOUT 35 YEARS, R/AT SRI LAKSHMI NARASIMHA NILAYA, MAGADI TALUK AND TOWN, NATARAJA BADAVANE, RAMANAGARA DISTRICT-562 120. R/AT NO.359, 8TH WARD, VANNIGARA PETE, NEAR RANGAPPA CIRCLE, DODDABALLAPURA TOWN, DODDABALLAPURA-561 203. …APPELLANT (BY SRI.HARISH KUMAR.M.R., ADVOCATE) AND: SRI.N.MURTHY, S/O H.NARASIMHAIAH, AGED ABOUT 38 YEARS, R/AT NO.256, 2ND CROSS, VINAYAKANAGAR, KADABAGERE POST, DASANAPURA HOBLI, BANGALORE NORTH TALUK, BANGALORE-562 130. …RESPONDENT (BY SRI.LOKESH.S.G., ADVOCATE) Digitally signed by K G RENUKAMBA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:35078-DB MFA No. 858 of 2017 THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY COURT ACT, 1984, AGAINST THE JUDGMENT AND DECREE DATED 17.01.2012 PASSED IN M.C.NO.1248 OF 2011 ON THE FILE OF THE JUDGE, VITH ADDITIONAL FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 13(I) AND (IA) OF HINDU MARRIAGE ACT, 1955, FOR DISSOLUTION OF MARRIAGE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI AND HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE JAYANT BANERJI) Heard learned counsel for the appellant. 2. This appeal has been filed seeking the following relief: "The Appellant respectfully pray that this Hon'ble Court be pleased to set aside the Judgment and Decree 17th January 2012 passed in M.C.No.1248/2011 on the file of the Additional Judge, Family Court-VI at Bangalore and to restore the M.C.No.1248/2011 to its original file and permit the appellant to contest the matter on merits to serve the interests of justice and equity." 3. However, from the record, it appears that the appeal was filed on 23.01.2017, that is to say after a period of nearly five years from the date of the impugned - 3 - HC-KAR NC: 2025:KHC:35078-DB MFA No. 858 of 2017 judgment and decree dated 17.01.2012. An application under Section 5 of the Limitation Act, along with an affidavit is up for consideration. 4. Evidently, there is a delay of 1803 days in filing the appeal. The affidavit of the appellant in support of the aforesaid application under Section 5 of the Limitation Act, reads as follows: "I Kalavathi @ Gangamma, W/o N.Murthy, Aged about 35 years, R/at Sri Lakshmi Narasimha Nilaya, Magadi Taluk and Town, Nataraja Badavane, Ramanagara District-562120 and also R/at No.359, 8th Ward, Vannigara Pete, Near Rangappa Circle, Doddaballapura Town, Doddaballapura-561203 today at Bangalore do hereby solemnly affirms and takes oath as follows: 1. I state that, I have filed the above appeal challenging the judgment and decree dated 17th January 2012 passed in M C No. 1248/2011 on the file of the Additional Judge, Family Court-VI at Bangalore. I state that the averments made in the memorandum of appeal may kindly be read as part and parcel of this affidavit to avoid repetition. 2. I state that, after getting the knowledge of the impugned judgment and order I approached the trial court by filing Misc petition No.129/2013 before the Additional Judge, Family Court-IV seeking restoration of the matter and the learned Judge pleased to dismiss the matter as not maintainable with a observation that the petitioner has to file appeal before the Hon'ble High court of Karnataka. - 4 - HC-KAR NC: 2025:KHC:35078-DB MFA No. 858 of 2017 3. I state that thereafter there was compromise talks were going on so I was waiting for the outcome of compromise talks but recently respondent refused to compromise. Hence I could not able to file the above said appeal in time. I state that the delay in filing the above appeal is neither intentional nor deliberate and the delay is only a bonafide error. If the application is not allowed as prayed I will be put to irreparable loss and hardship. Therefore, I pray for orders accordingly. Wherefore, I respectfully pray that this Hon'ble Court be pleased to allow the accompanying application as prayed for to serve the interest of justice and equity. I, the deponent herein declare that this is my name and signature and the statements made in the above paragraphs are true and correct to the best of my knowledge, information and belief." 5. From perusal of the record, particularly, the certified copy of the order sheet, it appears that a miscellaneous case bearing Misc.No.129/2013 was filed by the appellant in the Court of the Principal Judge, Family Court, Bangalore. Apparently, by an order of 14.09.2015, the application of the appellant filed under Order IX Rule 13 of the CPC was dismissed as not maintainable in view of the "non obstante clause" appearing in Section 19 of the Family Courts Act, 1984, giving liberty to the appellant to - 5 - HC-KAR NC: 2025:KHC:35078-DB MFA No. 858 of 2017 approach the proper Court. After nearly 15 months, the instant appeal was filed. 6. It has been submitted in paragraph 6, of the statement of objections that the respondent had waited for one year after the judgment and decree passed in MC.No.1248/2011 and since no response had come from the side of the appellant, and the decree was not challenged, then he got married to one Lakshmamma.S on 13.02.2013 and with the said marriage he got 2 children. Copy of the marriage invitation card dated 13.02.2013 and the birth certificate of female child has been enclosed along with the statement of objections. 7. The aforesaid facts regarding remarriage of the respondent in 2013 is not disputed by the learned counsel for the appellant, but, he states that since after dismissal of the miscellaneous case by the Family Court, there were negotiations going on between the parties, therefore, the instant appeal was filed beyond time. - 6 - HC-KAR NC: 2025:KHC:35078-DB MFA No. 858 of 2017 8. In our considered opinion, the appellant has failed to explain the inordinate delay in filing the appeal before this Court. For the reason aforesaid, the application I.A.No.1/2017 is rejected. This appeal is accordingly dismissed. At this stage, the learned counsel for the appellant states that liberty be given to the appellant for claiming alimony. No liberty is required to be given in view of the provision of Section 25 of the Hindu Marriage Act. Sd/- (JAYANT BANERJI) JUDGE Sd/- (UMESH M ADIGA) JUDGE PK List No.: 1 Sl No.: 18