Smt Aswathgowri N vs Sri Anandan R G
2021 Latest Caselaw 5229 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.2881/2019 (MC)

BETWEEN:

SMT. ASWATHGOWRI N
AGED ABOUT 33 YEARS
W/O ANANDAN R.G
D/O NAGARAJU
R/AT KUVEMPU EXTENSION
CHAMARAJANAGARA TOWN
CHAMARAJANAGARA DISTRICT - 571313.

ANOTHER R/AT TEACHER, GHPS
MALAVALLI, GUNDLUPET TALUK
CHAMARAJANAGAR - 571313.
                                     ...APPELLANT
(BY SRI NATARAJU, ADVOCATE)

AND:

SRI ANANDAN R.G
AGED ABOUT 40 YEARS
S/O LATE GURUSWAMY M
R/AT WARD NO.27
BEHIND PAVITHRA SCHOOL
                           -2-


KUMARASWAMY EXTENSION
RAMANAGARA TALUK
RAMANAGARA DISTRICT - 562159.
                                         ...RESPONDENT
(BY SRI M.G RAVISHA, ADVOCATE)

                         ****

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 28(1) OF HINDU MARRIAGE ACT,
AGAINST THE JUDGMENT AND DECREE DATED 08.08.018,
PASSED IN MC. NO.83/2017, ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE & CHIEF JUDICIAL
MAGISTRATE, RAMANAGARA ALLOWING THE PETITION
FILED UNDER SECTION 9 OF HINDU MARRIAGE ACT,
1955..

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

                    JUDGMENT

The present Miscellaneous First Appeal has been

filed by the appellant- wife against the impugned

judgment and decree dated 08.08.2018 made in

M.C.No.83/2017 on the file of the Principal Senior Civil

Judge and CJM at Ramanagara, 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 appeal is filed before this Court

on 02.04.2019, till today there is no interim order.

3. It is stated by learned counsel Sri Ravisha

appearing for the respondent that since there is no

interim order by this Court, the respondent has

already filed M.C.No.69/2019 under the provisions of

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

seeking for decree of divorce and the appellant herein

has already entered appearance in the said case.

4. 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 to the marriage 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. Accordingly, the

husband has already filed M.C.No.69/2019 under the

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

Marriage Act. Therefore, the preset appeal is not

maintainable and it is always open for the appellant-

wife to contest the said petition filed by the husband

for divorce.

5. All contentions of the appellant raised in

the present appeal are left open to be urged in

M.C.No.69/2019, which is pending consideration

before the Family Court.

Any observation made by the learned trial Judge

while passing exparte judgment and decree dated

08.08.2018 made in M.C.No.83/2017 against the

present appellant will not come in the way to

adjudicate her rights before the trial Court in

M.C.No.69/2019 on merits in accordance with law.

In view of the above, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

PN CT.GD