Smt M C Yashodha Vs Sri M C Kamalapathy

SMT. M. C. YASHODHA, (ROOPA @ ROOPASHREE), AGED ABOUT 43 YEARS, W/O M. C. KAMALAPATHY, R/AT HOUSE No.4875, 13^TH C MAIN, 3^RD STAGE, J - BLOCK, DATKAHALLI, MYSURU-570 022.

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…APPELLANT

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Digitally signed by VALLI MARIMUTHU

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Location: HIGH COURT OF KARNATAKA

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(BY SRI P. NATARAJU, ADVOCATE)

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AND:

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SRI M. C. KAMALAPATHY, AGED ABOUT 59 YEARS, S/O B. CHANNAIAH, R/AT HOUSE No.893/B, 3^RD CROSS, NEHRU NAGARA, EASTERN EXTENSION, MANDYA-571 401.

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…RESPONDENT

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(BY SRI M.S. SREENIVASAN, ADVOCATE)

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HC-KAR

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THIS MFA IS FILED UNDER SECTION 28(1) OF THE HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 08.11.2017 PASSED ON MC No.166/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANDYA, ALLOWING THE PETITION FILED UNDER SECTION 9 OF HINDU MARRIAGE ACT.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI and

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HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE JAYANT BANERJI)

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This appeal has been filed seeking to challenge the judgment and decree dated 08.11.2017 passed in M.C. No.166/2016 by the Principal Senior Civil Judge and CJM at Mandya, whereby the petition filed by the respondent seeking restitution of conjugal rights has been decreed.

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It is stated by the learned counsel for the appellant that without giving sufficient opportunity to the appellant to file her statement of objection, the evidence of the respondent was recorded and the petition was allowed.

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It is stated that the respondent has neglected to maintain the appellant and her children and not even provided

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HC-KAR

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any basic facilities to meet the educational expenses of the children. However, when the appellant demanded that she and her children be looked after by the respondent, she was beaten up and thrown out of the house along with the children and she was threatened with dire consequences by the respondent. A petition under Section 125 the Code of Criminal Procedure, 1973¹ has also been filed, which is pending.

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We have perused the judgment. It is evident therefrom that even though the appellant had been represented through her counsel, no objections/written statement was filed on behalf of the appellant.

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The trial Court framed the following points for consideration:

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"(1) Whether the petitioner is entitled for the relief of restitution of his conjugal rights with the respondent?

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(2) What order? "

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1 CrPC

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HC-KAR

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The respondent herein examined himself as PW.1

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and got marked Exs.P1 to P5. The Court answered the aforesaid points as follows:

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"Point No.1: In Affirmative

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Point No.2: As per final order for the following:"

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By relying upon the statement of the respondent made in his testimony, the documents were perused by the

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Court and it was noted that the husband and wife had lived together for twenty years and had three daughters. The case of the respondent was found proved that despite his insistence to the appellant to stay with him, she left at the instance of her brother and sisters. It was noted that the appellant was staying with her younger sister and failed to return without any justifiable reason. Noting the provision of Section 9 of the Hindu Marriage Act, 1955² , the first point for determination was answered in the affirmative and the decree under Section 9 of the Act was granted.

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2 'the Act'

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HC-KAR

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From perusal of the original record, it appears that on 27.10.2017, attempts were made by the Court for conciliation between the parties. Since the efforts for conciliation failed, the testimony of PW.1 was recorded, who proved Exs.P1 to P5. However, as reflected at the foot of the testimony of PW.1, that was recorded by the Court in addition to the examination-in-chief by way of affidavit, it is evident that the counsel for the appellant attempted to cross-examine the PW.1, but the Court refused to grant him an opportunity to cross-examine the PW.1 on the ground that no written statement had been filed.

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In our considered view, the right of crossexamination cannot be taken away for such a reason that has been ascribed by the Court. The right of cross-examination is an inalienable right that vests in the opposite party. That not having been done, the judgment impugned cannot be sustained. The decree is rendered defective. As such, the impugned decree is set aside. Consequently, the judgment also fails. The matter is remanded to the competent Court to consider the matter afresh, afford due opportunity of cross-

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