Karnataka High Court
Smt K Veena Rao vs Sri Monmohan Rai on 4 June, 2021
Author: B.V.Nagarathna And Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2021
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
MFA.NO.3580/2016 (FC)
C/W
MFA.NO.3582/2016 (FC)
BETWEEN:
SMT K VEENA RAO
W/O MANMOHAN RAI,
AGED ABOUT 41 YEARS,
RESIDING AT HOUSE NO.9,
8TH A CROSS,
PAMPA EXTENSION,
KEMPAPURA HEBBAL,
BANGALORE-560 024 ... APPELLANT
(COMMON IN BOTH APPEALS)
(By Sri C.R.SATHYA PRAKASH, ADV.)
AND:
SRI MONMOHAN RAI
S/O CHENNAPPA RAI,
AGED ABOUT 54 YEARS,
RESIDING AT FLAT NO.33,
BALAJI ENCLAVE NO.7 & 8
2ND FLOOR, 9TH CROSS,
DASARAHALLI MAIN ROAD,
2
BHUVANESHWARI NAGAR,
BANGALORE-560 024 ... RESPONDENT
(COMMON IN BOTH APPEALS)
(BY NOTICE IS HELD SUFFICIENT V/O/D 13.11.2017)
THESE APPEALS ARE FILED UNDER SECTION 19(1)
OF THE FAMILY COURT ACT, AGAINST THE JUDGMENT
AND DECREE DATED 20.04.2016 PASSED ON
TH
MC.NO.3078/2012 ON THE FILE OF THE 4 ADDITIONAL
PRICIPAL JUDGE, FAMILY COURT, BENGALURU.
THESE APPEALS COMING ON FOR ORDERS THIS
DAY, NAGARATHNA, J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant in both these appeals is the wife and
the respondent is the husband.
2. MFA.No.3580/2016 is filed by the
appellant/wife, being aggrieved by the judgment and
decree passed in MC.No.3078/2012 by the IV Additional
Principal Judge, Family Court, Bengaluru by common
judgment dated 20.04.2016. The said petition was filed
by the appellant/wife under Section 13(1)(ia) of the
Hindu Marriage Act, 1955 (hereinafter referred to as 'the
Act' for the sake of brevity) seeking dissolution of her
marriage with the respondent/husband.
3. MFA.No.3582/2016 is also filed by the
appellant/wife being aggrieved by the judgment and
decree passed in MC.No.3766/2012, which was a petition
filed by the respondent/husband under Section 9 of the
Act seeking restitution of conjugal rights. By common
judgment and decree dated 20.04.2016, the said petition
was allowed.
4. Since both the appeals arise out of the
common judgment and decree passed in the aforesaid
proceedings dated 20.04.2016, same have been
connected together.
5. We have heard learned counsel for the
appellant. By order dated 13.11.2017, service of notice
on the respondent is held sufficient. We have perused
the material on record.
6. Having heard learned counsel for the appellant
and on perusal of the record, we find that the impugned
judgment and decree allowing M.C.No.3766/2012 which
was a petition filed by the respondent/husband under
Section 9 of the Act was stayed by this Court by an
interim order dated 24.07.2018. This would imply that
for over a period of one year there was no stay of the
said judgment and decree dated 20.04.2016 passed
under Section 9 of the Act.
7. In the circumstances, we are of the view that
this is a fit case where an opportunity must be given to
the appellant herein to file a petition under Section
13(1A)(ii) of the Act. The same reads as under:
"13(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):- xxxxx
(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."'
8. On a reading of the same, it is evident that
either party to a marriage can present the petition for
dissolution of marriage by a decree of divorce on the
ground 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.
9. In the instant case, decree for restitution of
conjugal rights was passed on 20.04.2016. Till
24.07.2018 i.e. for a period of 2 years and 3 months, the
said decree was not stayed. The respondent/husband has
not taken steps for the execution of the said decree and
even if, he has taken any such steps, there has been no
resumption of cohabitation between the parties. There
has been no restitution of conjugal rights for a period of
2 years and 3 months till the grant of interim stay of the
said judgment and decree for restitution of conjugal
rights by this Court.
10. In the circumstances, we are of the view that
under Section 13(1A)(ii) of the Act may squarely apply in
the present case.
11. Therefore, we dispose of these appeals by
reserving liberty to the appellant herein to file a petition
under Section 13(1A)(ii) of the Act so as to seek
dissolution of marriage by decree of divorce.
12. In the event the appellant is not successful in
the said proceeding, further liberty is reserved to the
appellant herein to revive these appeals before this Court
In the circumstances, the appeals are disposed of in
the aforesaid terms.
Consequently, I.A.No.1/2019 filed in both the
appeals stands disposed of.
No costs.
SD/-
JUDGE
SD/-
JUDGE
KTY
