Karnataka High Court

Smt Gowramma K R vs Mahalingaiah on 14 December, 2021

Bench: B.Veerappa, K S Hemalekha

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH 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.10591/2012(MC)

BETWEEN:

SMT. GOWRAMMA K. R.,
W/O SRI MAHALINGAIAH,
AGED ABOUT 35 YEARS,
D/O SRI GANGAMMA,
R/O KADRAPURA-572130,
KASABA HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT.                           ...APPELLANT

(BY SRI N. JAGADISH BALIGA, ADVOCATE)

AND:

SRI MAHALINGAIAH,
S/O LATE GANGANANJAIAH,
AGED ABOUT 43 YEARS,
R/O CHOWDANAYAKANAPALYA VILLAGE,
HUTHRIDURGA HOBLI,
KUNIGAL TALUK-572130,
TUMKUR DISTRICT.                          ...RESPONDENT

(BY SRI THARANATH SHETTY, ADVOCATE)
                                2




     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 28(1) OF HINDU MARRIAGE ACT, AGAINST THE
IMPUGNED JUDGMENT AND DECREE DATED 19.4.2012 PASSED IN
M.C NO.33/2009 BY THE FILE OF SENIOR CIVIL JUDGE & JMFC,
KUNIGAL, ALLOWING THE PETITION FILED UNDER SECTION 9 OF
HINDU MARRIAGE ACT FOR RESTITUTION OF CONJUGAL RIGHTS.

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

                        JUDGMENT

This miscellaneous first appeal is filed by the wife against

the impugned judgment and decree dated 19.4.2021 passed

in M.C.No.33/2009 by the learned Senior Civil Judge and

JMFC., Kunigal allowing the petition filed under Section 9 of

the Hindu Marriage Act and granting restitution of conjugal

rights in favour of the husband.

2. This Court by the order dated 19.12.2013 while

condoning the delay and granting stay has recorded the

statement of the appellant-wife that she is not willing to join

the respondent-husband since the husband has already got

second wife.

3. When this Court posed query to the learned Counsel

for the appellant Sri N. Jagadish Baliga, that whether the

appellant-wife is willing to join the respondent-husband, on

instructions, he submits that the appellant is not ready to join

the husband. If that is so, it is a good case for the appellant

to file a petition for divorce under the provisions of Section

13(1) and (2) of the Hindu Marriage Act, which reads as

under:

"13. Divorce -

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation - In this clause :(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; the expression "psychopathic disorder" means a persistent disorder or disability of mind

(whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation -- In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against

the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) 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 the passing of a decree for

restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act,

1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;

(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation - This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)."

4. Without adverting to the merits and demerits of the

case, in view of the provisions of Section 13(1) and (2) of the

Hindu Marriage Act, the miscellaneous first appeal is disposed

off with liberty to the appellant-wife to file a petition for

divorce.

5. However, any observation made by the Family Court

while granting restitution of conjugal rights shall not come in

the way of either of the parties in establishing their rights

independently in accordance with law.

Sd/-

Judge

Sd/-