- 1 - NC: 2025:KHC-D:1393-DB MFA No. 103863 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.103863/2023 (FC) BETWEEN: CHAITRA W/O TYAGARAJ, AGE: 30 YEARS, OCC. HOUSEHOLD WORK, R/O. H.NO.4556 SWASTIK BUILDING, 4TH FLOOR, CHAVAT GALLI, BELAGAVI. - APPELLANT (BY SRI. PRASHANT MATHAPATI, ADVOCATE) AND: TYAGARAJ S/O CHENNABASAPPA G.R., AGE. 43 YEARS, OCC. PVT. SERVICE, R/O. “LAXMI VENKATESH FLOOR MILL”, II FLOOR, CHOUDESHWARI NAGAR, LAGGERE-BANGALORE-560058. - RESPONDENT (NOTICE TO RESPONDENT IS HELD SUFFCIENT) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURT ACT 1955, AGAINST THE JUDGMENT AND DECREE DATED 08.08.2023, PASSED IN MATRIMONIAL CASE NO.481/2019 ON THE FILE OF THE PRINCIPAL JUDGE FAMILY COURT BELAGAVI, DISMISSING THE PETITION FILED U/SEC. 13(1)(IA) & (IB) OF THE HINDU MARRIAGE ACT & ETC. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1393-DB MFA No. 103863 of 2023 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD) The appellant is unsuccessful in her petition in M.C. No. 481/2019 on the file of the Principal Judge, Family Court, Belagavi [for short, ‘the Family Court’]. The appellant has filed this application under the provisions of Section 13(1) (ia) and (ib) of the Hindu Marriage Act [for short, ‘the H.M. Act’]. The Family Court, by the impugned judgment and decree dated 08.08.2023, has rejected the petition opining that mere difference of opinion cannot be a ground to dissolve the marriage on the ground of cruelty and that the appellant has only pleaded those circumstances which could be called normal differences between a couple. The Family Court, as regards appellant’s case that the respondent has deserted her, has opined that the marriage cannot be dissolved on this ground because the appellant is categorical - 3 - NC: 2025:KHC-D:1393-DB MFA No. 103863 of 2023 even in her own pleadings she had left the matrimonial home on her own. 2. The undisputed facts are that the appellant and respondent are married on 03.05.2009. The appellant is 16 years younger than the respondent. The appellant and respondent have a girl child [Chi. Sanchita] born on 15.10.2013 four years after the marriage, and the child has speech and hearing difficulties. The appellant and her child are living separately from 2016 [to the year of petition]. The reason for the dispute, as contended by the appellant is encapsulated as hereafter. 3. The respondent has neglected his responsibility both towards her and the daughter as he did not provide any financial assistance, and that when it was impossible for her to continue living with him because of financial neglect and the continuing differences in opinion, she was constrained to shift to her parental home in the year 2016. The appellant has detailed the circumstances of financial neglect. The respondent is served with the notice - 4 - NC: 2025:KHC-D:1393-DB MFA No. 103863 of 2023 of the petition, and he has also filed his Statement of objections but has not taken part in the enquiry thereafter. As such, the appellant’s ocular evidence in tandem with her pleadings as aforesaid remains undisturbed. 4. The Family Court has rendered its decision as aforesaid observing that the appellant will not be entitled for the decree of divorce merely because the respondent has not taken part in the proceedings because of Section. 23 of the H.M. Act. Sri Prashant Mathapati, the learned counsel for the appellant, emphasizes he will seek re-appreciation of evidence and dissolution of marriage because the appellant has prospects of an immediate re-marriage and the respondent has not taken part in the proceedings in the Family Court and has also chosen to remain unrepresented in the present proceedings. The point for consideration is: Whether this Court can reasonably conclude that there must be an interference with the Family Court’s opinion that the appellant has failed to establish the grounds of cruelty and desertion. - 5 - NC: 2025:KHC-D:1393-DB MFA No. 103863 of 2023 5. The appellant is categorical that she was constrained to live /stay with her parents after the child was diagnosed with suffering from speech and hearing impairment with the respondent neglecting to provide even when the child was hospitalized. The appellant is also categorical that the child was looked after and nourished but with no assistance or participation by the respondent and she was therefore constrained to live with her parents. These circumstances must be considered in the light of the other indisputable facts such as that there is a difference of over 14 years between the appellant and the respondent; that the respondent has chosen not to take part in the proceedings; that the appellant has filed a petition for dissolution of marriage three years as she was so constrained to stay away. The Family Court has not considered these circumstances at all. 6. The settled law is that an applicant, to be entitled for dissolution of marriage on the ground of desertion, [i] will have to establish the factum of separation, [ii] the intention in the respondent to bring a permanent end - 6 - NC: 2025:KHC-D:1393-DB MFA No. 103863 of 2023 to cohabitation [animus deserendi], [iii] absence of consent and that she was living separately because of a reasonable cause. This Court must refer to the decision of the Apex Court in Savitri Pandey v. Prem Chandra Pandey1 in these words: Following the decision in Bipinchandra case [AIR 1957 SC 176] this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. 1 (2002) 2 SCC 73 - 7 - NC: 2025:KHC-D:1393-DB MFA No. 103863 of 2023 7. The question whether these are established must be examined in the facts and circumstances of the present case. The appellant’s assertion that she was constrained to leave to her parental house after the child was diagnosed as suffering from speech and hearing impairment with the respondent neglecting her and her child lends credence to the appellant’s case that she was constrained to live separately for a justifiable cause lest she and her child are affected. When the appellant is so forsaken and she, when so compelled, moves to per parental home, it would not be reasonable to infer consent to live separately or abandon the relationship. On the other hand, it will be reasonable to infer that the respondent intended to bring a permanent end to cohabitation from the fact that he has not made any effort to meet the appellant for more than three years prior to the date of petition and even thereafter. 8. The appellant is thus also able to establish the intent in respondent to abandon, the reasonable cause to live separately and lack of consent by her. As such, this Court must opine that the appellant has made out a ground - 8 - NC: 2025:KHC-D:1393-DB MFA No. 103863 of 2023 for dissolution of marriage on the ground of desertion, and given the nature of the circumstances discussed, even on the ground of cruelty. The appellant’s circumstances cannot be classified simply as an outcome of differences in opinion typical between a married couple. 9. This Court must also consider the fact that appellant who is aged 34-35 years now believes she has prospect for a re-marriage. However, this Court must record that this Court’s observation in the course of this order cannot prejudice the child’s claim as against the respondent for maintenance or otherwise. In the circumstances, and subject to the observation as aforesaid, the point for consideration is answered in favour of the appellant and the appeal is allowed by the following order. ORDER [A] The appeal is allowed. [B] The Family Court’s impugned judgment and decree dated 08.08.2023 in M.C. No. 481/2019 is set-aside. The appellant’s application under Section 13(1) (ia) and (ib) of the Hindu - 9 - NC: 2025:KHC-D:1393-DB MFA No. 103863 of 2023 Marriage Act, 1995 is allowed dissolving her marriage with the respondent solemnized on 03.05.2009. [C] There shall be no cost. [D] The office is directed to draw decree accordingly. Sd/- (B.M.SHYAM PRASAD) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE BVV LIST NO.: 1 SL NO.: 32