Allowed

Smt. Girija W/O Chandrashekhar Koti v. Sri. Chandrashekhar S/O Mallikarjun Koti

Karnataka HC4 Oct 2023MFA/100819/2022

Case brief

AI extract

What is this about?

An appeal challenging the allowance of a petition for restitution of conjugal rights decreed by the Family Court in the wife's absence. The High Court set aside the decree declaring sufficient cause for non-appearance and remanded the matter for fresh disposal.

What did the court decide?

Impugned judgment and decree set aside; matter remanded to Family Court for fresh disposal; appellant to pay costs of Rs. 10,000.

Smt. Girija W/O Chandrashekhar Koti Vs Sri… — Matrimonial and Divorce | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:11684-DB MFA No. 100819 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF OCTOBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 100819 OF 2022 (FC)

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BETWEEN:

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SMT. GIRIJA W/O. CHANDRASHEKHAR KOTI, AGE: 35 YEARS, OCC: PRIVATE WORK, R/O: ALNAWAR, TAL/DIST: DHARWAD, NOW AT: C/O. SHIVANAND B. DESAI, NO. 26 (EWS), BASAVESHWAR NAGAR, DANDELI, TQ: HALIYAL, DIST: KARWAR-581325.

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…APPELLANT

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(BY SRI S.C. HIREMATH, ADVOCATE)

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AND:

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SAMREEN AYUB DESHNUR

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Digitally signed by SAMREEN AYUB DESHNUR Date: 2023.10.16 11:23:33 +0530

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SRI CHANDRASHEKHAR S/O. MALLIKARJUN KOTI, AGE: 45 YEARS, OCC: PRIVATE, R/O: ALNAWAR, TAL/DIST: DHARWAD, NOW AT C/O. K.D.PATIL, KRISHINAGAR, KELAGERI ROAD, NEAR SAI BABA TEMPLE, DHARWAD-580008.

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…RESPONDENT

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(BY SRI MUBEEN K. MANIYAR, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 13.12.2021, PASSED IN MATRIMONIAL CASE NO.183/2021 ON THE FILE OF

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NC: 2023:KHC-D:11684-DB MFA No. 100819 of 2022

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THE PRINCIPAL JUDGE, FAMILY COURT DHARWAD, ALLOWING THE PETITION FILED BY THE RESPONDENT-HUSBAND U/S 9 OF THE HINDU MARRIAGE ACT AND DISMISS THE SAME IN THE INTEREST OF JUSTICE.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, KRISHNA KUMAR, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the wife is directed against the judgment and decree dated 13.12.2021 passed in M.C.No.183/2021 by the Principal Judge, Family Court, Dharwad (for short, ‘the Family Court’), whereby the said petition filed by the respondent/husband under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights against the appellant/wife was allowed by the Family Court.

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Heard learned counsel for the appellant-wife and respondent-husband.

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The material on record discloses that the appellant got married to the respondent on 15.04.2012 and from out of said wedlock a son was born in the year 2015. Subsequently, the respondent instituted the

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3 - NC: 2023:KHC-D:11684-DB MFA No. 100819 of 2022

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aforesaid proceedings seeking restitution of conjugal rights, in which the appellant was placed exparte and did not contest the petition. Under these circumstances, the Family Court proceeded to accept the unimpeached and unchallenged pleadings of the respondent and decreed the petition in his favour against the wife, who is before this Court by way of the present appeal.

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A perusal of the material on record including the impugned Judgment and decree will indicate that the appellant has not participated in the proceedings nor contested the same. Under these circumstances, in view of the specific assertion on the part of the appellant that she did not appear before the Family Court due to bonafide reasons, unavoidable circumstances and sufficient cause and if one more opportunity is provided, she would contest the petition by filing objections and the matter may be remitted back to the Family Court for fresh disposal in accordance with law. We deem it just and appropriate

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4 - NC: 2023:KHC-D:11684-DB MFA No. 100819 of 2022

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to set aside the impugned Judgment and Decree and remit the matter back to the Family Court for reconsideration afresh. In the result, we pass the following :

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O R D E R

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(i) Appeal is hereby allowed.

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(ii)The impugned judgment and decree dated 13.12.2021 passed in MC.No.183/2021 by the Principal Judge, Family Court, Dharwad is hereby set aside subject to the appellant paying cost of Rs.10,000/to the respondent on the next date of hearing before the Family Court. Matter is remanded back to the Family Court, Dharwad for re-consideration afresh in accordance with law.

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(iii) Both parties undertake to appear before the Family Court on 06.11.2023 on which date, appellant shall file statement of objections in the said petition.

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(iv) The Family Court is directed to dispose of the proceedings within a period of six months from 06.11.2023.

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5 - NC: 2023:KHC-D:11684-DB MFA No. 100819 of 2022

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(v) All rival contentions are kept open and no opinion is expressed on the same.

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Sd/JUDGE

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Sd/JUDGE

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CKK LIST NO.: 1 SL NO.: 70

Smt. Girija W/O Chandrashekhar Koti v. Sri. Chandrashekhar S/O Mallikarjun Koti

Case brief

What is this about?

What did the court decide?

Smt. Girija W/O Chandrashekhar Koti v. Sri. Chandrashekhar S/O Mallikarjun Koti

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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