Sri I M Sharath vs Smt A K Krithika
2022 Latest Caselaw 12807 Kant

                          1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 3RD DAY OF NOVEMBER 2022

                      PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                        AND

  THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

            M.F.A. No.6861 OF 2022 (FC)

BETWEEN:

SRI I M SHARATH
S/O I N MUKUNDE GOWDA
AGED ABOUT 47 YEARS
COFFEE PLANTER
R/A KABBINAHALLI ESTATE
KABBINAHALLI VILLAGE AND POST
CHIKKAMAGALURU TALUK-577101
                                    ... APPELLANT
(BY MR. ARNAV A BAGALWADI, ADV.,)

AND:

SMT A K KRITHIKA
W/O I M SHARATH
D/O A P KRISHNE GOWDA
AGED ABOUT 43 YEARS
R/A OPP KEB
BASAVANAHALLI
CHIKKAMAGALURU-577101

                                     ... RESPONDENT
                                 2



       THIS M.F.A. IS FILED U/S 19(1) OF FAMILY COURTS
ACT, AGAINST THE JUDGMENT AND DECREE DT.05.09.2022
PASSED IN MC NO.7/2021 ON THE FILE OF THE PRL. JUDGE,
FAMILY COURT, CHIKKAMAGALURU, DISMISSING THE
PETITION FILED U/S.13(1A)(ii) OF THE HINDU MARRIAGE
ACT.


       THIS M.F.A. COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:


                            JUDGMENT

This appeal under Section 19(1) of the Family

Courts Act, 1984 has been filed against judgment and

decree dated 05.09.2022 passed by the Family Court

by which petition filed by the appellant under Section

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

(hereinafter referred to as 'the Act' for short) has been

dismissed.

2. Facts leading to filing of this appeal briefly

stated are that the marriage between the parties was

performed on 02.12.1999. The parties resided

separately since, 2006. Thereupon, the respondent /

wife filed a petition seeking restitution of conjugal

rights. The aforesaid petition was allowed by the

Family Court by a judgment and decree dated

26.03.2015. However, the appellant neither complied

with the judgment and decree passed by the Family

Court nor made any attempts to comply with the

judgment and decree.

3. The appellant filed an appeal against the

aforesaid judgment and decree by which petition filed

by the respondent - wife under Section 9 of the Act

was allowed. Thereafter, the appellant filed this

petition seeking dissolution of marriage under Section

13(1A)(ii) of the Act inter alia on the ground that the

judgment and decree passed in favour of respondent-

wife for restitution of conjugal rights has not been

given effect to. The aforesaid petition has been

dismissed by the Family Court. In the aforesaid

factual background, this appeal has been filed.

4. Learned counsel for the appellant

submitted that the appellant is entitled to a decree

under Section 13(1A)(ii) of the Act as the decree for

restitution of conjugal rights was not given effect to.

The Supreme Court in 'T.Srinivasan vs.

T.Varalakshmi (Mrs)', (1998) 3 SCC 112 has held

that husband taking advantage of his own wrong, is

not entitled to a decree under Section 13(1A) of the

Act. In the instant case, the appellant did not take

any steps to implement the decree passed in favour of

respondent-wife. On the other hand, the appellant

filed an appeal against the aforesaid judgment and

decree. Therefore, the appellant - husband cannot be

permitted to take advantage of his own wrong in view

of Section 23(1)(a) of the Hindu Marriage Act, 1955.

We are therefore, not inclined to entertain the appeal,

the same is accordingly dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

SS