Mrs S Sindhu vs Mr M B Rakesh
2021 Latest Caselaw 5409 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 03RD 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.2311/2019 (FC)

BETWEEN:

MRS. S SINDHU
W/O MR. M.B RAKESH
AGED ABOUT 27 YEARS
R/AT NO.`, B BLOCK
JYOTHINAGARA
MYSURU - 570019.
                                      ...APPELLANT
(BY SRI VASANTH V FERNANDES, ADVOCATE)

AND:

MR M.B RAKESH
S/O MR. M.T BALASUBRAMANYAM
AGED ABOUT 35 YEARS
R/AT NO.510, E & F BLOCK
RAMAKRISHNA NAGAR
MYSURU - 570022.
                                     ...RESPONDENT

                       ****

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 19(1) OF THE FAMILY COURT ACT,
AGAINST THE JUDGMENT AND DECREE DATD 19.11.2018,
                             -2-

PASSED IN MC NO.148/2015, ON THE FILE OF THE JUDGE,
II ADDITIONAL PRINCIPAL FAMILY COURT, MYSURU,
ALLOWING THE PETITION UNDER SECTION 9 OF THE
HINDU MARRIAGE ACT.

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

                     JUDGMENT

This Miscellaneous First Appeal has been filed by

the appellant- wife against the impugned judgment

and decree dated 19.11.2018 made in

M.C.No.148/2015 on the file of the II Additional

Principal Judge, Family Court, Mysuru, allowing the

petition filed by the respondent- husband under the

provisions of Section 9 of the Hindu Marriage Act for

restitution of conjugal rights, wherein, the present

appellant was directed to join her husband.

2. Admittedly, the said order passed by the

Family Court dated 19.11.2018 has not been stayed

by this Court till today, nor the parties have joined

together in compliance of the said order. 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.

2. The appellant herein does not want to join

her husband and has filed the present appeal

challenging the impugned judgment and decree and

admittedly, there is no interim order. Therefore, the

present appeal is not maintainable in view of the

provisions of Section 13(1A)(ii) of the Hindu Marriage

Act.

In view of the above, we pass the following

ORDER

The present Miscellaneous First Appeal is

dismissed. However, liberty is reserved to the

appellant to file fresh petition for dissolution of

marriage as contemplated under the provisions of

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

All contentions urged by the appellant before this

Court are kept open to be urged in a petition for

divorce before the trial Court. Adverse findings, if

any, recorded by the Family Court while allowing the

petition filed by the husband under the provisions of

Section 9 of the Hindu Marriage Act will not come in

the way to establish her case for divorce in

accordance with law.

Sd/-

JUDGE

Sd/-

JUDGE

PN CT.GD