Smt. Shubha vs Sri. R. Nagendra Prasad
2021 Latest Caselaw 5228 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 01ST DAY OF DECEMBER, 2021

                     PRESENT

       THE HON'BLE MR. JUSTICE B. VEERAPPA

                       AND

    THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

 MISCELLANEOUS FIRST APPEAL No.6043/2019 (FC)

BETWEEN:

SMT. SHUBHA
W/O NAGENDRA PRASAD
D/ K.V SRINIVASA MURTHY
AGED ABOUT 27 YEARS
R/AT NO.10/115,
HOUSING BOARD COLONY
LAKSHMIPURA, ARASIKERE TALUK
HASSAN DISTRICT - 573103.
                                     ...APPELLANT
(BY SRI A.C BALARAJ, ADVOCATE)

AND:

SRI R NAGENDRA PRASAD
S/O H.G RAGHAVENDRA PRASAD
AGED ABOUT 32 YEARS
R/AT HOUSE NO.129, 4TH STAGE
1ST PHASE, VIJAYANAGAR
MYSURU CITY - 570014.
                                   ...RESPONDENT
                             -2-


                            ****

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 19(1) FAMILY COURTS ACT, 1984
AGAINST THE JUDGMENT AND DECREE DATED 30.05.2019
PASSED IN MC NO.313/2018 ON THE FILE OF THE III
ADDITIONAL PRL. JUDGE, FAMILY COURT, MYSURU,
ALLOWING THE CLAIM PETITION FILED UNDER SECTION 9
OF HINDU MARRIAGE ACT.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ORDERS THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:

                     JUDGMENT

The present Miscellaneous First Appeal is filed by

the appellant- wife against the impugned judgment

and decree dated 30.05.2019 made in

M.C.No.313/2018, allowing the petition filed by the

respondent- husband under the provisions of Section

9 of the Hindu Marriage Act for restitution of conjugal

rights.

2. Though the order passed by the Family

Court was long back as 30.05.2019, the parties have

not joined. Therefore, in view of the provisions of

Section 13(1A)(ii) of the Hindu Marriage Act that

"there has been no restitution of conjugal rights as

between the parties for a period of one year or

upwards after passing of a decree for restitution of

conjugal rights in a proceeding to which they were

parties" is a ground for divorce. In the meanwhile,

the husband had filed M.C.No.692/2019 for divorce,

which came to be dismissed on 21.03.2020. The

present appellant has also filed M.C.No.23/2019 under

the provisions of Section 13(1)(ia) and (ib) of the

Hindu Marriage Act. The said matter is still pending

for adjudication.

3. In view of the above, the present appeal

filed by the wife challenging the impugned judgment

and decree dated 30.05.1019 made in

M.C.No.313/2018 in favour of the respondent is not

maintainable. Accordingly, we pass the following

ORDER

The appeal filed by the appellant is dismissed

with liberty to the wife to adjudicate her rights in

M.C.No.23/2019 filed by her under the provisions of

Section 13(1)(ia) and (ib) of the Hindu Marriage Act.

All contentions of both parties are kept open to

be urged before the trial Court in the pending matter.

Sd/-

JUDGE

Sd/-

JUDGE

PN CT.GD