Karnataka High Court
Smt M C Yashodha vs Sri M C Kamalapathy on 6 November, 2025
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MFA No. 10356 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE JAYANT BANERJI
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No. 10356 OF 2018 (MC)
BETWEEN:
1. SMT. M. C. YASHODHA,
(ROOPA @ ROOPASHREE),
AGED ABOUT 43 YEARS,
W/O M. C. KAMALAPATHY,
R/AT HOUSE No.4875,
13TH C MAIN, 3RD STAGE,
J - BLOCK, DATKAHALLI,
MYSURU-570 022.
...APPELLANT
Digitally signed (BY SRI P. NATARAJU, ADVOCATE)
by VALLI
MARIMUTHU
Location: HIGH AND:
COURT OF
KARNATAKA
1. SRI M. C. KAMALAPATHY,
AGED ABOUT 59 YEARS,
S/O B. CHANNAIAH,
R/AT HOUSE No.893/B,
3RD CROSS, NEHRU NAGARA,
EASTERN EXTENSION,
MANDYA-571 401.
...RESPONDENT
(BY SRI M.S. SREENIVASAN, ADVOCATE)
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NC: 2025:KHC:44922-DB
MFA No. 10356 of 2018
HC-KAR
THIS MFA IS FILED UNDER SECTION 28(1) OF THE
HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE
DATED 08.11.2017 PASSED ON MC No.166/2016 ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANDYA,
ALLOWING THE PETITION FILED UNDER SECTION 9 OF HINDU
MARRIAGE ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI
and
HON'BLE MR. JUSTICE K. V. ARAVIND
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE JAYANT BANERJI)
This appeal has been filed seeking to challenge the
judgment and decree dated 08.11.2017 passed in M.C.
No.166/2016 by the Principal Senior Civil Judge and CJM at
Mandya, whereby the petition filed by the respondent seeking
restitution of conjugal rights has been decreed.
2. It is stated by the learned counsel for the appellant
that without giving sufficient opportunity to the appellant to file
her statement of objection, the evidence of the respondent was
recorded and the petition was allowed.
3. It is stated that the respondent has neglected to
maintain the appellant and her children and not even provided
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any basic facilities to meet the educational expenses of the
children. However, when the appellant demanded that she and
her children be looked after by the respondent, she was beaten
up and thrown out of the house along with the children and she
was threatened with dire consequences by the respondent. A
petition under Section 125 the Code of Criminal Procedure,
19731 has also been filed, which is pending.
4. We have perused the judgment. It is evident
therefrom that even though the appellant had been represented
through her counsel, no objections/written statement was filed
on behalf of the appellant.
5. The trial Court framed the following points for
consideration:
"(1) Whether the petitioner is entitled for
the relief of restitution of his conjugal
rights with the respondent?
(2) What order? "
CrPC
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6. The respondent herein examined himself as PW.1
and got marked Exs.P1 to P5. The Court answered the
aforesaid points as follows:
"Point No.1: In Affirmative
Point No.2: As per final order for the
following:"
7. By relying upon the statement of the respondent
made in his testimony, the documents were perused by the
Court and it was noted that the husband and wife had lived
together for twenty years and had three daughters. The case of
the respondent was found proved that despite his insistence to
the appellant to stay with him, she left at the instance of her
brother and sisters. It was noted that the appellant was staying
with her younger sister and failed to return without any
justifiable reason. Noting the provision of Section 9 of the
Hindu Marriage Act, 19552, the first point for determination was
answered in the affirmative and the decree under Section 9 of
the Act was granted.
'the Act'
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8. From perusal of the original record, it appears that
on 27.10.2017, attempts were made by the Court for
conciliation between the parties. Since the efforts for
conciliation failed, the testimony of PW.1 was recorded, who
proved Exs.P1 to P5. However, as reflected at the foot of the
testimony of PW.1, that was recorded by the Court in addition
to the examination-in-chief by way of affidavit, it is evident that
the counsel for the appellant attempted to cross-examine the
PW.1, but the Court refused to grant him an opportunity to
cross-examine the PW.1 on the ground that no written
statement had been filed.
9. In our considered view, the right of cross-
examination cannot be taken away for such a reason that has
been ascribed by the Court. The right of cross-examination is
an inalienable right that vests in the opposite party. That not
having been done, the judgment impugned cannot be
sustained. The decree is rendered defective. As such, the
impugned decree is set aside. Consequently, the judgment also
fails. The matter is remanded to the competent Court to
consider the matter afresh, afford due opportunity of cross-
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examination and take a decision afresh. The appeal is
accordingly, allowed.
Let the trial Court record be sent back to the competent
Court.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
VBS
