M Sharadha vs M Keshavamurthy
2022 Latest Caselaw 13164 Kant

                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 21ST 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.5395/2015 (FC)

BETWEEN:

M SHARADHA
W/O M. KESHAVAMURTHY
AGED ABOUT 38 YEARS
RESIDING AT #42, HPO AND
RMS COLONY, SHAKTHINAGAR
THRIVENI CIRCLE, KALYANAGIRI
MYSORE.                                       ...APPELLANT

(BY SRI CHAKRAVATHI D, ADV., FOR
    SRI Y.S.H. REDDY, ADV.)

AND:

M. KESHAVAMURTHY
S/O H.V. MAYASHETTY
AGED ABOUT 45 YEARS
RESIDING AT #90, RMS COLONY
1ST STATE, SANJAY NAGAR
NEAR BANK OF INDIA
BANGALORE - 560 094.                     ...RESPONDENT

(BY SRI K.S. PRAVEEN KUMAR, ADV., - ABSENT)

      THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, PRAYING AGAINST THE JUDGMENT AND
DECREE DATED 04.02.2015 PASSED IN M.C. NO.580/2013 ON
THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, MYSORE,
DISMISSING THE PETITION FILED U/S 9 OF HINDU MARRIAGE
ACT, FOR RESTITUTION OF CONJUGAL RIGHTS.
                              2

     THIS APPEAL COMING ON FOR ORDERS 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 the judgment

and decree dated 04.02.2015 passed by the Family

Court, Mysuru, by which, the petition filed by the

appellant/wife under Section 9 of the Hindu Marriage Act,

1955 (for short, 'the Act') seeking the relief of restitution

of conjugal rights has been dismissed.

2. Facts giving rise to the filing of this appeal

briefly stated are, that the marriage between the parties

was solemnized on 11.06.2004. Admittedly, after the

marriage, the parties resided together for a period of six

months. Thereafter, the appellant filed a criminal case

against the respondent and her family members in the

year 2005.

3. Thereafter, some time in the year 2007, the

appellant filed a petition seeking maintenance from the

respondent. The respondent, thereafter, in the year

2012, instituted the proceedings under Section 13 of the

Act before the Family Court at Bengaluru. The appellant,

thereupon, filed a petition some time in the year 2013

seeking restitution of conjugal rights at Family Court,

Mysuru.

4. The respondent entered appearance and inter

alia contended that the appellant after the marriage had

demanded a separate residence and had refused to take

care of his old aged parents. It was further pleaded that

the appellant herself had deserted the respondent on

29.12.2004 and thereafter filed a complaint in Mahila

Police Station by making false allegations which resulted

in acquittal of the respondent and his family members. It

was also pleaded that the respondent has already filed a

petition seeking dissolution of marriage before the Family

Court and as a counter blast, this petition seeking

restitution of conjugal rights has been filed.

5. The Family Court on the basis of the pleadings of

the parties, framed issues. The appellant examined

herself, whereas the respondent examined himself. The

Family Court vide the impugned judgment dated

04.02.2015 inter alia dismissed the petition on the

ground of delay on the part of the appellant in seeking

restitution of conjugal rights, disentitles her to the relief.

6. Learned Counsel for the appellant submitted that

the appellant is still interested in joining the matrimonial

home. It is also submitted that the petition filed by the

respondent under Section 13 of the Act has been

dismissed on 12.07.2017. It is also submitted that the

Family Court has failed to appreciate the evidence on

record in its correct perspective.

7. We have considered the submissions made by

the learned Counsel for the appellant and have perused

the records. Admittedly, the marriage between the

parties was performed on 11.06.2004. It is also not in

dispute that the parties are residing separately since

29.12.2004. In case the appellant wanted to join the

matrimonial home, she ought to have filed the petition

seeking restitution of conjugal rights at the earliest

available opportunity. However, the appellant instead of

filing the petition under Section 9 of the Act, she has

chosen to file a complaint in Mahila Police Station against

the respondent and his family members. The aforesaid

complaint was dismissed and the respondent and his

family members were acquitted from the criminal case in

the year 2011. After filing of the complaint against the

respondent and his family members, again instead of

seeking the relief of restitution of conjugal rights, the

appellant again filed a petition seeking maintenance, in

which a sum of Rs.3,500/- was granted to her by way of

maintenance.

8. The respondent, thereafter, instituted the

proceedings under Section 13 of the Act seeking

dissolution of marriage in the year 2012 before the

Family Court at Bengaluru. After a period of one year,

the appellant instituted the proceedings before the Family

Court at Mysuru, seeking restitution of conjugal rights.

9. Thus, from the aforesaid narration of facts, it is

evident that the petition seeking restitution of conjugal

rights was filed after an inordinate delay of nine years.

Section 23 of the Act deals with the decree in

proceedings. Section 23(1)(d) of the Act which is

relevant for the purpose of the controversy involved in

this appeal reads as under:

23. Decree in proceedings.-(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-

(a) xxx

(b) xxx

(c) xxx

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) xxx

10. Thus, it is evident that if there has been any

unnecessary or improper delay in instituting the

proceedings, the court can refuse to grant the decree,

and in the instant case, there has been a delay of nine

years in instituting the proceedings. The Family Court,

therefore, in the facts and circumstances of the case, on

the basis of the material available on record, was

justified in refusing to grant the decree for restitution of

conjugal rights. From the evidence on record, it is

evident that the appellant was not keen in joining the

matrimonial home and in fact had left the matrimonial

home herself in December 2004. The Family Court,

therefore, has rightly dismissed the petition under

Section 9 of the Act.

11. The aforesaid judgment and decree which is

based on meticulous appreciation of evidence on record

does not call for interference in this appeal.

12. For the aforesaid reasons, we do not find any

merit in this appeal. The same fails and is hereby

dismissed.

SD/-

JUDGE

SD/-

JUDGE

KK