The High Court of Karnataka allowed the first appeal, condoning a 36-day delay. It set aside the family court's decree for restitution of conjugal rights and remanded the matter for fresh consideration after affording both parties an opportunity to be heard.
Condonation of 36-day delay; Impugned decree set aside; Matter remanded to trial court for fresh hearing.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO.4815/2022 (FC)
BETWEEN:
SHRUTHI D/O VIJAYA KUMAR AGED ABOUT 27 YEARS R/AT SARASWATHIPURAM TUMKURU – 572 101 …APPELLANT
(BY SMT. MANJULA D, ADVOCATE)
AND:
RAJESH PATIL S/O N RANGASWAMAIAH AGED ABOUT 34 YEARS R/AT BHAGYANAGAR NEAR NH-4, HANUMANTHAPURA TUMKURU – 572 101 …RESPONDENT
Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka
(BY SMT.RAKSHA KEERTHANA K, ADVOCATE FOR SRI.KEMPARAJU, ADVOCATE )
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT R/W SECTION 28 OF HINDU MARRIAGE ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 12.07.2021 PASSED IN M.C.NO. 194/2020 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU, ALLOWING THE PETITION FILED UNDER SECTION 9 OF THE HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR FURTHER ORDERS, THIS DAY, K.S.MUDAGAL J. , DELIVERED THE FOLLOWING:
JUDGMENT AND ORDER ON I.A.NO.1/2022
Challenging the decree for restitution of conjugal rights passed against her, respondent in M.C.No.194/2020 on the file of I-Additional Principal Judge, Family Court, Tumakuru has preferred this appeal.
the appellant had not appeared before the trial Court, naturally
disposal of the case is not within her knowledge. Therefore, it is a fit case to condone the delay of 36 days in filing the appeal and remand the matter to the trial Court for fresh consideration on giving opportunity to both the parties. Hence the following:
ORDER
Application for condonation of delay of 36 days in filing the appeal is hereby condoned in the interest of justice. I.A.No.1/2022 is disposed of accordingly.
Appeal is allowed.
The impugned judgment and decree in M.C.No.194/2020 dated 12.07.2021 passed by the I-Additional Principal Judge, Family Court, Tumakuru is hereby set aside.
The matter is remanded to the trial Court for fresh consideration after giving reasonable opportunity to both the parties.
To avoid delay, both the parties are hereby directed to appear before the trial Court on 06.12.2023 without any further notice.
The appellant shall appear before the trial Court along with her statement of objection to the main petition.
If any of the parties fail to appear before the trial Court, the trial Court is at liberty to proceed with the matter in accordance with law and dispose the matter as expeditiously as possible at any rate within four months from the date of appearance of the parties.
No order as to costs.
Sd/JUDGE
Sd/JUDGE
PKN
List No.: 1 Sl No.: 17
2 issues framed by the court
Whether considerable delay in filing appeal can be condoned in interest of justice
Whether appeal against restitution of conjugal rights decree should be remanded for fresh consideration
2 provisions across 2 enactments
Shruthi D/o Vijaya Kumar
Rajesh Patil S/o N Rangaswamaiah
K.S. Mudagal
K V Aravind
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
