SMT T R SANDHYARANI v. SRI NARASIMHAYYA

This appeal is filed by the wife being aggrieved by the judgment and decree passed in MC.No.26/2015 by the Principal Judge, Family Court, Mangaluru, Dakshina Kannada dated 28.06.2016. The respondent/husband had filed the petition under Section 13(1)(ia) & 13(1)(ib) as well as 13(1A)(ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act for the sake of brevity) seeking dissolution of his marriage with the appellant herein which had taken place on 25.01.2004. The said petition was allowed by the Family Court. Hence, this appeal.

2. For the sake of convenience the parties shall be referred to in terms of their status before the Family Court.

3. The respondent and the petitioner before the Family Court had averred that the parties were married on 25.01.2004. Initially, the wife had filed the case before the Civil Judge (Jr.Dn.) at Chikmagalur seeking maintenance from the respondent. There was also proceedings in MC.No.49/2007 which has been filed by the petitioner under Section 9 of the Act seeking restitution of conjugal rights. The said petition was allowed by the judgment and decree dated 02.12.2012. However, there had been no restitution of conjugal rights, therefore, MC.No.26/2015 was filed seeking, inter alia, dissolution of marriage by a decree of divorce under Section 13(1A)(ii) of the Act in respect of the said petition.

4. The respondent/wife, the appellant herein appeared and filed her statement of objection.

5. Thereafter, the petitioner/husband let in his evidence as PW.1 and one T.C. Narasimhaiah let in his evidence as PW.2, Jayamma let in her evidence as PW.3 and petitioner/ PW.1 produced two documents and which were marked as Ex.P1 & Ex.P2. Ex.P1 is marriage invitation card and Ex.P2 is a copy of judgment and decree passed in MC.No.49/2007. The respondent/wife did not let any evidence.

6. Thereafter, the Family Court raised the following issues for its consideration and answered the said issues in the following manner.

1) Jzgzgg CfzgjU iP U zP QgP r gAvgV iP zdP MrgvgAz Cfzgg gdv rvgAi?

2) Cfzgg z Avg Jzgzgg Aiiz PgtUz v vf VgvgAz Cfzgg gdv rvgAi?

3) Jzgzgg gz Cfzgg JA A 49/2007 gAv Pgt zAvz gUV Czg JzgzgjU Cfzgg ev j zAv f q Dz irzg Jggzgg Cfzgg ev zAv f q EzgU Ag Jz Cfzgg gdg rvgAi?

4) Cfzgg v Pgtz Jzgzgg gz Zzz rQAi qAi CgVgvgAi?

5) Vz, Aii DzP CgVgvg?

6) Aq UU F PVAv Gvj v. A 1 : PgvPV (affirmative) A 2 : PgvPV (affirmative) A 3 : PgvPV (affirmative) A 4 : PgvPV (affirmative) A 5 : CAw DzzAv

7. The Family Court answered all the issues in the affirmative and allowed the petition and granted dissolution of marriage by a decree of divorce and dissolved the marriage solemnized on 25.01.2004. Being aggrieved, the wife has preferred this appeal.

8. We have heard learned counsel for the appellant/wife and learned counsel for the respondent/husband and perused the material on record.

9. Appellants counsel submitted that though there was a decree for restitution of conjugal rights passed between the parties there has been no resumption of cohabitation between them, the reason being, the appellant had to face threat to her life, if she moved to the respondents house to reside, therefore, there has been no resumption of cohabitation. She however, fairly admitted that there was a decree of restitution of conjugal rights passed in MC.No.49/2007 dated 02.11.2012. She further submitted that although the appellant filed her statement of objections she did not let in evidence in the matter, therefore, the matter may be remanded to give an opportunity to the appellant to let in her evidence in the matter.

10. Per contra, learned counsel appearing for the respondent/husband supported the impugned judgment and decree and contended that firstly, subsequent to the judgment and decree, the respondent has married. Secondly, the judgment of decree impugned in this appeal cannot be interfered with as admittedly MC.No.49/2007 was filed by the respondent against the appellant herein which was allowed on 02.11.2012 and there has been no resumption of cohabitation between the parties. In the circumstances, the respondent was entitled to file a petition, inter alia, under Section 13(1A)(ii) of the Act. Therefore, the said petition was filed by him which has been allowed. When the appellant/wife admits the fact that there has been a decree for restitution of conjugal rights in MC.No.49/2007 dated 02.11.2012, Section 13(1A)(ii) of the Act applies. Therefore, the Family Court has rightly allowed the said petition. He submitted that since the respondent has married there is no purpose to be served in remanding the matter to let in further evidence by the appellant herein and also because, the appellant admits the fact that there was an earlier decree for restitution of conjugal rights. Therefore, he submitted that the appeal may be dismissed.

11. Having heard the respective parties and on perusal of the material on record, we need not reiterate the facts and detailed submissions but what could be gathered as admitted facts in the instant case are, the appellant and respondent were married on 25.01.2004, that M.C.No.49/2007 was filed by the respondent seeking restitution of conjugal rights under Section 9 of the Act. The said petition was allowed and there was a decree for restitution of conjugal rights which was granted by the competent Court on 02.11.2012. Admittedly, there has been no resumption of cohabitation between the parties. In the circumstances, the respondent filed the petition, inter alia, under Section 13(1A) of the Act, which reads as under: 1(A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground__

i. That there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

ii. 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 the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

12. On reading of the same, it becomes clear that in the event, there is no restitution of conjugal rights between the parties, pursuant to a decree of restitution of conjugal rights granted by the competent Court for a period of one year or onwards either party to the marriage can file a petition for dissolution of marriage by a decree of divorce. In such an event, the decree of divorce would be granted. Undisputed facts referred to above, clearly indicate that Section 13(1A)(ii) of the act would apply therefore, we do not find any infirmity in the judgment of the Family Court in granting dissolution of the marriage on the said basis. Therefore, we do not find any infirmity in the judgment and decree passed by the Family Court. We find no merit in the appeal and the appeal is hence dismissed.

13. The dismissal of this appeal would not come in the way of the appellant seeking maintenance or permanent alimony in accordance with law.

14. In view of dismissal of the appeal,

I.A.No.2/2016 stands dismissed. Sd/- JUDGE Sd/- JUDGE