Smt H G Girijashri vs Sri K N Manjunath
2021 Latest Caselaw 2011 Kant

                            -: 1 :-

   IN THE HIGH COURT OF KARNATAKA, BENGALURU

           DATED THIS THE 28TH DAY OF MAY, 2021

                            PRESENT

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

                             AND

    THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

               M.F.A. No.5054/2014 (MC)

BETWEEN:

SMT. H.G. GIRIJASHRI
W/O. K.N. MANJUNATH
D/O. R. GURUPRASAD
AGED ABOUT 37 YEARS,
R/AT NO.156, 2ND MAIN ROAD,
CHAMARAJAPETE,
BANGALORE - 560 018.                               ... APPELLANT

(BY SMT. BINDU, ADVOCATE (THROUGH V/C) FOR
SRI. MUNISWAMY GOWDA S.G., ADVOCATE)

AND:

SRI. K.N. MANJUNATH
S/O. K.N. NAGARAJ
AGED ABOUT 38 YEARS,
R/AT NO.15, DODDA MASEEDI ROAD,
CHICKBALLAPURA TALUK
AND DISTRICT - 562 101.                        ... RESPONDENT

(RESPONDENT    -   NOTICE    HELD     SUFFICIENT   V/O.   DATED
17/12/2018)

      THIS MFA IS FILED UNDER SECTION 28 OF THE HINDU
MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED
10.04.2014 PASSED IN M.C.NO.58/2013 ON THE FILE OF THE
SENIOR CIVIL JUDGE, CHICKBALLAPUR, ALLOWING THE
PETITION FILED UNDER SECTION 13(1-a)(ii) OF HINDU
MARRIAGE ACT.

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
                                -: 2 :-

                          JUDGMENT

Though this appeal is listed for admission and to

condone the delay of fourteen days in filing the appeal, we

have heard learned counsel for the appellant.

2. The appellant is wife, while the respondent is

husband. The respondent/husband had initially filed a

petition in M.C.No.47/2011 seeking restitution of conjugal

rights. That petition was decreed by judgment and decree

dated 05/07/2012 directing the appellant/wife to join the

respondent/husband to lead a marital life. The said

judgment and decree attained finality. Since the appellant

did not join the respondent pursuant to the said judgment

and decree, the respondent filed M.C.No.58/2013 under

Section 13(1A)(ii) of the Hindu Marriage Act, 1955

(hereinafter referred to as "the Act" for the sake of

brevity) before the Senior Civil Judge at Chickballapur.

Despite service of notice and the appellant engaging the

services of a counsel, she did not contest the matter by

filing statement of objections. In the circumstances, the

trial Court considered the evidence of the respondent who

examined himself as PW.1 and heard learned counsel for

the respondent. The trial Court framed the following

points for its consideration on considering the oral

evidence of PW.1 and document Ex.P-1, being the copy of

judgment passed in M.C.No.47/201:

"(i) Whether the petitioner has made out grounds to grant decree of divorce for dissolution of the marriage of the petitioner and the respondent?

(ii) What order?"

On considering the same, the trial Court answered

point No.1 in the affirmative and allowed the petition filed

under Section 13(1A)(ii) of the Act and dissolved the

marriage between the parties solemnized on 23/04/2008

at Sooryodaya Kalyana Mantapa, Bannerughatta Road,

Bengaluru, by a decree of divorce. Being aggrieved, the

wife has preferred this appeal.

3. We have heard learned counsel for the

appellant.

4. Appellant's counsel fairly submitted that earlier

respondent/husband had filed M.C.No.47/2011 seeking

restitution of conjugal rights and the same was decreed on

05/07/2012. She also submitted that since then, there

has been no resumption of cohabitation between the

parties. Learned counsel however submitted that the

appellant did not file any statement of objection to the

petition filed by the respondent and did not participate in

the proceeding despite engaging the services of an

advocate. She therefore submitted that the impugned

judgment and decree may be set aside and the matter

may be remanded to the trial Court for a fresh

adjudication.

5. We have considered the submissions of learned

counsel for the appellant in light of the impugned

judgment and decree and the facts of the case. There is

no dispute that M.C.No.47/2011 was filed by the

respondent/husband seeking restitution of conjugal rights,

which was decreed by judgment and decree dated

05/07/2012 directing the appellant herein to join the

respondent/husband. Admittedly, there has been no

resumption of cohabitation. In the circumstances,

respondent herein filed the petition under Section

13(1A)(ii) of the Act. Section 13(1A)(ii) of the Act reads

as under:

"13. Divorce.-

x x x (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 x x x

(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."

The said provision was inserted by an amendment by

Act 44 of 1964, Section 2(ii), with effect from 20/12/1964,

so as to enable either of the parties to present a petition

for dissolution of marriage by a decree of divorce on the

ground, inter alia, that there has been no restitution of

conjugal rights as between the parties to the marriage for

a period of one year (earlier it was two years and amended

to one year with effect from 27/05/1976) or upwards after

the passing of a decree for restitution of conjugal rights in

a proceeding to which they were parties.

      6.    Admittedly,         in      the    instant     case,

respondent/husband        filed       M.C.No.47/2011     seeking

restitution of conjugal rights, which was decreed on

05/07/2012. Hence, the respondent filed the petition

(M.C.No.58/2013) on 26/07/2013, which is beyond one

year from the date of the judgment and decree dated

05/07/2012, passed in M.C.No.47/2011. In

M.C.No.58/2013, the appellant herein did not contest the

said petition despite engaging services of a counsel. In the

circumstances, the trial Court considered the judgment

and decree passed in M.C.No.47/2011 (Ex.P-1, produced

by the respondent herein who was examined as PW.1) and

dissolved the marriage between the parties by a decree of

divorce under Section 13(1A)(ii) of the Act. We do not find

any infirmity in the said judgment and decree. Moreover,

the facts speak for themselves, inasmuch as, the earlier

judgment and decree dated 05/07/2012 passed in

M.C.No.47/2011, which was a petition filed by the

respondent herein being decreed and not complied with, is

a cause or a reason for filing the petition by the

respondent/husband in M.C.No.58/2013, one year

subsequent to the judgment and decree dated 05/07/2012

passed in M.C.No.47/2011. In the circumstances, Section

13(1A)(ii) clearly applies to the present case. We do not

find any merit in the appeal.

7. However, we find that the trial Court has not

issued any direction with regard to permanent alimony to

be paid by the respondent herein. In the circumstances,

we dismiss the appeal. However, we reserve liberty to

the appellant/wife to seek permanent

alimony/maintenance in accordance with law.

8. It is needless to observe that if such a petition

is filed by her, the same shall be considered expeditiously

and disposed of in accordance with law.

Ordered accordingly.

Sd/-

JUDGE

Sd/-

JUDGE S*