Karnataka High Court
Smt.Sangeetha W/O Ramesh Chulaki vs Sri.Ramesh S/O Nagappa Chulaki on 12 December, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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NC: 2024:KHC-D:18088-DB
MFA No. 104886 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 104886 OF 2019 (FC)
BETWEEN:
SMT. SANGEETHA W/O. RAMESH CHULAKI,
AGED ABOUT 29 YEARS, OCC: HOUSEWIFE NOW ADVOCATE,
R/O. C/O. H.M. DHARGOND, ADVOCATE,
PRASHANT NILAYA, MIG-II-50, 3RD STAGE,
KHB COLONY, D. N. KOPPA, DISTRICT. DHARWAD.
(THE ADDRESS OF THE APPELLANT WRONGLY
MENTIONED AS MIG 2ND STAGE 50,
DODDANAYAKANAKOPPA, DHARWAD BY THE
RESPONDENT BEFORE THE FAMILY COURT).
...APPELLANT
(BY SRI. T. M. NADAF, ADVOCATE)
AND:
Digitally
SRI. RAMESH S/O. NAGAPPA CHULAKI,
signed by
JAGADISH T R AGE.43 YEARS, OCC. XEROX MACHINE REPAIRER,
Location: High
Court of AND AGRICULTURE, R/O. JANATA COLONY,
Karnataka,
Dharwad NEAR PETROL BUNK, KONNUR VILLAGE
Bench
TALUK. NARAGUND, DISTRICT. GADAG.
...RESPONDENT
(BY SRI. B. CHIDANAND, ADVOCATE)
THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURT ACT,
PRAYING TO CALL FOR THE RECORDS FROM THE OFFICE OF THE
PRINCIPAL JUDGE FAMILY COURT DHARWAD, IN M.C. NO.290/2018
AND SET ASIDE THE JUDGMENT AND DECREE THEREON DATED
22.06.2019 PASSED BY THE PRINCIPAL JUDGE FAMILY COURT
DHARWAD, IN M.C. NO.290/2018.
THIS APPEAL, COMING ON FOR HEARING ON IA, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-D:18088-DB
MFA No. 104886 of 2019
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T) The appellant-wife filed the present appeal against the judgment and decree dated 22.06.2019 passed in MC No.290/2018 by the Principal Judge Family Court, Dharwad (for short 'Family Court') allowing the petition filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act').
2. It is the case of the appellant that the petitioner and the respondent are the husband and wife, their marriage was solemnized on 17.06.2009 at Bengaluru. The respondent converted to Christianity in the year 2004; the appellant converted to Christianity in the year 2006; and the parents of the respondent also converted to Christianity in the year 2007 and professing Christianity and they are governed by the Christian religion and customs. Their marriage had taken place at Grace Gospel Church, Yeshwanthpur, Bengaluru on -3- NC: 2024:KHC-D:18088-DB MFA No. 104886 of 2019 17.06.2009 as per the religion and customs prevailing in Christians. The parties are no more Hindus, since they are converted, they are not governed by the Hindu Law. As such the petition filed by the husband under the provision of the Act before the Family Court is not maintainable.
3. It is not in dispute that the husband filed petition under Section 9 of the Act before the family Court raising various contentions. According to the appellant, notice was not served on her, the fact remains that the order passed by the Family Court reflected in paragraph No.3 that "inspite of service of notice of the petition, the respondent remained exparte." Thereby the Family Court considering both oral and documentary evidence of PW1 to 5 and Ex.P1 to P6, allowed the petition and granted the relief of restitution of conjugal rights. Hence, the present petition is filed.
4. We have heard the learned counsel for the parties.
5. Sri. T.M. Nadaf, learned counsel for appellant-wife contended that the impugned judgment and decree passed by the Family Court allowing the petition under Section 9 of the Act for restitution of conjugal rights was not maintainable as -4- NC: 2024:KHC-D:18088-DB MFA No. 104886 of 2019 both the parties renounced to Hindu Religion and accepted the Christianity by undergoing baptism in the year 2006-07 and the marriage between the parties solemnized as per the religion and customs prevailing in the Christians as there was no opportunity for the appellant to raise all these contentions, the learned Judge of the Family Court proceeded to allow the application. It is further contended that under Section 32 of Divorce Act, 1869, there is a provision for restitution of conjugal rights, therefore the husband ought to have invoked the provision of restitution of conjugal rights. Therefore, he contended that the impugned order passed by the Family Court cannot be sustained under the law and sought for allowing the petition.
6. Per contra, Sri. B. Chidananda, learned counsel contended that the notice was issued by the Family Court but the same was not claimed by the respondent, therefore, the learned Judge of the Family Court proceeds with the case. But, he has not disputed the fact that both the parties renounced to Hindu Religion and accepted the Christianity. It is an undisputed fact that the marriage of both parties had took place at Grace Gospel Church, Yeshwanthpur, Bengaluru on -5- NC: 2024:KHC-D:18088-DB MFA No. 104886 of 2019 17.06.2009 as per the religion in the customs prevailing in Christians. He further contended that the order passed by the Family Court be set aside and liberty will be reserved to the husband to file necessary application under Section 32 of Divorce Act, 1869.
7. The submission of counsel for respondent is taken on record.
8. Though several contentions have been raised by both the parties, since the very maintainability of the petition filed by the husband before the Family Court under Section 9 of the Act, is raised in the present appeal. The said contention is accepted.
9. In view of the above foregoing merits and demerits of the case and in view of the provision under Section 32 of the Divorce Act, 1869 and since both the parties governed by the Indian Divorce Act, the impugned order cannot be sustained.
10. Accordingly, we pass the following:
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NC: 2024:KHC-D:18088-DB MFA No. 104886 of 2019 ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and decree dated 22.06.2019 in MC No.290/2018 passed by the Family Court, Dharwad, is hereby set aside.
(iii) It is always open for the husband to take necessary steps under the provision of the Indian Divorce Act, if so desires in accordance with law.
Sd/-
(H.T.NARENDRA PRASAD) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE SMM/ct-an List No.: 1 Sl No.: 34