Smt Aswathgowri N vs Sri Anandan R G on 1 December, 2021

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Karnataka High Court

Smt Aswathgowri N vs Sri Anandan R G on 1 December, 2021

Bench: B. Veerappa

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 01ST DAY OF DECEMBER, 2021

                    PRESENT

       THE HON'BLE MR. JUSTICE B. VEERAPPA

                      AND

    THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

 MISCELLANEOUS FIRST APPEAL No.2881/2019 (MC)

BETWEEN:

SMT. ASWATHGOWRI N
AGED ABOUT 33 YEARS
W/O ANANDAN R.G
D/O NAGARAJU
R/AT KUVEMPU EXTENSION
CHAMARAJANAGARA TOWN
CHAMARAJANAGARA DISTRICT - 571313.

ANOTHER R/AT TEACHER, GHPS
MALAVALLI, GUNDLUPET TALUK
CHAMARAJANAGAR - 571313.
                                     ...APPELLANT
(BY SRI NATARAJU, ADVOCATE)

AND:

SRI ANANDAN R.G
AGED ABOUT 40 YEARS
S/O LATE GURUSWAMY M
R/AT WARD NO.27
BEHIND PAVITHRA SCHOOL
                           -2-


KUMARASWAMY EXTENSION
RAMANAGARA TALUK
RAMANAGARA DISTRICT - 562159.
                                         ...RESPONDENT
(BY SRI M.G RAVISHA, ADVOCATE)

                         ****

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 28(1) OF HINDU MARRIAGE ACT,
AGAINST THE JUDGMENT AND DECREE DATED 08.08.018,
PASSED IN MC. NO.83/2017, ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE & CHIEF JUDICIAL
MAGISTRATE, RAMANAGARA ALLOWING THE PETITION
FILED UNDER SECTION 9 OF HINDU MARRIAGE ACT,
1955..

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ORDERS THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:

                    JUDGMENT

The present Miscellaneous First Appeal has been filed by the appellant- wife against the impugned judgment and decree dated 08.08.2018 made in M.C.No.83/2017 on the file of the Principal Senior Civil Judge and CJM at Ramanagara, allowing the petition filed by the respondent- husband under the provisions -3- of Section 9 of the Hindu Marriage Act for restitution of conjugal rights.

2. Though the appeal is filed before this Court on 02.04.2019, till today there is no interim order.

3. It is stated by learned counsel Sri Ravisha appearing for the respondent that since there is no interim order by this Court, the respondent has already filed M.C.No.69/2019 under the provisions of Section 13(1)(ia) and (ib) of the Hindu Marriage Act, seeking for decree of divorce and the appellant herein has already entered appearance in the said case.

4. In view of the provisions of Section 13(1A)(ii) of the Hindu Marriage Act 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 passing of a decree for restitution of conjugal rights in a proceeding to which they were -4- parties" is a ground for divorce. Accordingly, the husband has already filed M.C.No.69/2019 under the provisions of Section 13(1)(ia) and (ib) of the Hindu Marriage Act. Therefore, the preset appeal is not maintainable and it is always open for the appellant- wife to contest the said petition filed by the husband for divorce.

5. All contentions of the appellant raised in the present appeal are left open to be urged in M.C.No.69/2019, which is pending consideration before the Family Court.

Any observation made by the learned trial Judge while passing exparte judgment and decree dated 08.08.2018 made in M.C.No.83/2017 against the present appellant will not come in the way to adjudicate her rights before the trial Court in M.C.No.69/2019 on merits in accordance with law. -5-

In view of the above, the appeal is disposed of.

Sd/-

JUDGE Sd/-

JUDGE PN CT.GD

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