Mr Manohar vs Mrs Yogeshwari
2021 Latest Caselaw 816 Kant

                       -: 1 :-

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13th DAY OF JANUARY, 2021

                       PRESENT

       THE HON'BLE Mrs. JUSTICE B.V. NAGARATHNA

                         AND

           THE HON'BLE Mrs. JUSTICE M.G.UMA

M.F.A. No.8928 OF 2017 c/w.M.F.A No.9233 OF 2017

BETWEEN:

MR.MANOHAR
SON OF VENKATESH K
AGED ABOUT 45 YEARS
RESIDING AT ULLAL BAIL
MANGALORE 575 020
DAKSHINA KANNADA 575 020
                                 ..     APPELLANT
                                         (COMMON)

(BY SRI CYRIL PRASAD PAIS - ADVOCATE)

AND:

MRS.YOGESHWARI
AGED ABOUT 39 YEARS
WIFE OF MR.MANOHAR
RESIDING AT : KAMALA NILAYA
KANHANGAUD KEEKANA
POOCHEKADU,
KASARGOD DISTRICT
KERALA 671 316
                                      ... RESPONDENT
                                            (COMMON)

(BY  SRI    K.  RANJAN        KUMAR      -   ADVOCATE   FOR
CAVEATOR/RESPONDENT)

                         *****
                         -: 2 :-


      MFA No.8928/2017 IS FILED UNDER SECTION 19(1) OF
THE FAMILY COURT ACT R/W.SECTION 28 OF THE HINDU
MARRIAGE ACT, 1955 PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 20.9.2017 PASSED BY THE FAMILY COURT
JUDGE, DAKSHINA KANNADA, MANGALORE, IN M.C.No.310 OF
2015 AND CONSEQUENTLY ALLOW THE PETITION FILED BY THE
APPELLANT HEREIN UNDER SECTION 13(1)(i)(a) and (i)(b) OF
THE HINDU MARRIAGE ACT BY GRANTING A DECREE OF
DIVORCE.

     MFA No.9233/2017 IS FILED UNDER SECTION 19(1) OF
THE FAMILY COURT ACT R/W.SECTION 28 OF THE HINDU
MARRIAGE ACT, 1955 PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 20.9.2017 PASSED BY THE FAMILY COURT
JUDGE, DAKSHINA KANNADA MANGALORE, IN M.C.No.77/2015
AND CONSEQUENTLY DISMISS THE PETITION FILED BY THE
RESPONDENT HEREIN UNDER SECTION 9 OF THE HINDU
MARRIAGE ACT.

    THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:

                    JUDGMENT

Though these appeals are listed for admission with

the consent of learned counsel on both sides, they are

heard finally.

2. MFA 8928/2017 is filed by the appellant-husband

assailing the judgment and decree dated 20th September

2017 passed in M.C.No.310/2015 by the Family Court at

Dakshina Kannada, Mangaluru, while, MFA No.9233/2017

is also filed by the appellant/husband assailing the

judgment and decree passed in M.C.No.77/2016 of even

date by the very same Court. In fact, the judgment

impugned in these appeals is a common judgment passed

in both the cases.

3. M.C.No.310/2015 was filed by the appellant-

husband under Section 13(1)(i)(a) and (i)(b) of the Hindu

Marriage Act 1955 (hereinafter referred to as 'the Act' for

brevity) seeking dissolution of marriage, which was

solemnized between the parties on 28th May 2010 at Kulal

Bhavana, Mangaladevi Temple road, Mangaluru, by a

decree of divorce, while, M.C.No.77/2016 was filed by the

respondent-wife under Section 9 of the Act seeking

restitution of conjugal rights. Since the Family Court

dismissed the petition filed by the husband seeking divorce

and allowed the petition filed by the respondent-wife

seeking restitution of conjugal rights, the husband has

preferred these appeals.

3. We have heard learned counsel for the appellant-

husband and the learned counsel for the respondent-wife

and perused the material on record.

4. It is noted that the judgment and decree in

M.C.No.77/2016 filed under Section 9 of the Act by the

respondent herein is not stayed by this Court. The said

judgment is dated 20th September 2017. In the

circumstances, these appeals are disposed of by reserving

liberty to the appellant-husband to file a petition under

Section 13(1A) (ii) of the Act seeking dissolution of the

marriage by a decree of divorce. In case the appellant-

husband is not successful in the said proceeding, liberty is

reserved to him to revive these appeals.

The appeals are disposed of in the aforesaid terms.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE

rs