Sri. Raghavendra Shetty Vs Smt. Bhavya Shetty

SMT. BHAVYA SHETTY, AGED ABOUT 36 YEARS, D/O SRI MOHAN SHETTY W/O SRI RAGHAVENDRA SHETTY, R/O DOOR NO.5-71/7 NADDAL, GOKARNA ROAD, KULASHEKARA, MANGALURU-575 001.

¶16

…RESPONDENT

¶17

(BY SMT.D.A.VISMAYA., ADVOCATE FOR SRI.P.N.HEDGE, ADVOCATE FOR RESPONDENT)

¶18

2 - NC: 2025:KHC:44017-DB MFA No. 6308 of 2017 C/W MFA No. 5953 of 2017

¶19

HC-KAR

¶20

THIS MFA IS FILED U/SEC.19(1) OF THE HINDU MARRIAGE ACT, 1955, AGAINST THE JUDGMENT AND AWARD DATED 21.06.2017 PASSED IN M.C.NO.353/2015 ON THE FILE OF THE PRL. JUDGE, FAMILY COURT, D.K. MANGALURU, DISMISSING THE PETITION FILED U/SEC.9 OF HINDU MARRIAGE ACT, SEEKING RESTITUTION OF CONJUGAL RIGHTS.

¶21

IN MFA NO. 5953/2017

¶22

BETWEEN:

¶23

SRI.RAGHAVENDRA SHETTY, AGED ABOUT 37 YEARS, S/O SRI.JAYARAM SHETTY, R/O LINGARAJ PRESS ROAD, NAYAK COMPOUND, MALMADDI, DHARWAD-580 001.

¶24

...APPELLANT

¶25

(BY SRI.RAMAKRISHNA HEGDE., ADVOCATE)

¶26

AND:

¶27

SMT. BHAVYA SHETTY, AGED ABOUT 36 YEARS, D/O SRI. MOHAN SHETTY, W/O SRI. RAGHAVENDRA SHETTY, R/O DOOR NO.5-71/7, NADDAL, GOKARNA ROAD, KULASHEKARA, MANGALURU-575 001.

¶28

...RESPONDENT (BY SMT.D.A.VISMAYA., ADVOCATE FOR SRI.P.N.HEGDE ., ADVOCATE FOR RESPONDENT)

¶29

THIS MFA IS FILED U/S 19(1) OF THE HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 21.06.2017 PASSED IN M.C.NO.115/2015 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, D.K., MANGALURU, PARTLY ALLOWING THE PETITION FILED U/S 13(1)(ia) OF HINDU MARRIAGE ACT.

¶30

3 - NC: 2025:KHC:44017-DB MFA No. 6308 of 2017 C/W MFA No. 5953 of 2017

¶31

HC-KAR

¶32

THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶33

CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI and HON'BLE MR. JUSTICE K. V. ARAVIND

¶34

ORAL JUDGMENT

¶35

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

¶36

Heard the learned counsel for the appellant and

¶37

Ms. Vismaya appearing for the respondent.

¶38

Appeal No. 6308/2017 has been filed

¶39

challenging the decree and common judgment dated 21.06.2017 passed by the Family Court, D.K. Mangalore in M.C.No.353/2015 whereby the petition filed by the husband under Section 9 of the Hindu Marriage Act, 1955¹ was dismissed. MFA No.5953/2017 has been filed seeking to set aside the aforesaid decree and the common judgment dated 21.06.2017 passed by the Principal Judge, Family Court, D.K. Mangalore in M.C.No.115/2015 whereby the petition filed by the wife under Section 13(1)(ia) of the HM Act was allowed and the husband was

¶40

1 HM Act

¶41

4 - NC: 2025:KHC:44017-DB MFA No. 6308 of 2017 C/W MFA No. 5953 of 2017

¶42

HC-KAR

¶43

directed to pay a sum of Rs.15.00 lakhs as permanent alimony to the child.

¶44

The wife’s case was that their marriage was solemnised on 23.05.2005 at RNS Kalyana Mantap, Opp. Glass House, Hubli. Thereafter the marriage came to be registered before Registrar of Marriages at Dharwad on 14.06.2005. It was stated that the wife’s father-in-law had taken Rs.1.00 lakh from the petitioner stating that he had not taken any dowry for the marriage. This amount was paid from the salary of the wife. The gold ornaments belonging to the wife was pledged by the husband after three weeks from the date of marriage. Since wife got employed in Bengaluru she went to Bengaluru, the husband also went to Bengaluru and joined the wife and started to stay with her. Thereafter, a child was born and he was named as Eshaan Shetty.

¶45

The allegations against the husband for having

¶46

the habit of consuming alcohol and chewing gutka and

¶47

5 - NC: 2025:KHC:44017-DB MFA No. 6308 of 2017 C/W MFA No. 5953 of 2017

¶48

HC-KAR

¶49

quarreling with the wife for silly reasons was alleged. The husband was not interested to take care of the wife and her child. However, the wife used to go to her matrimonial home every month twice or thrice. Subsequently wife left her job in a company in April 2006 and joined Infosys in Bengaluru and was transferred to Mangaluru in the month of December 2011. It is alleged that the husband assured the wife that he would join her at Mangaluru and therefore the wife took a residential house on rent. However, the husband said that he will join the wife later. Allegation was made that the husband was only interested in the salary of the wife instead of taking care of her and her child. It is stated that the wife refused to pay money to the respondent as she required money for her and her child. The husband directed the wife to quit the job and threatened that he would take the custody of the child by force. The wife then filed a petition under the provisions of

¶50

the Protection of Women from Domestic Violence Act, in M.C.No.29/2015 in the Court of JMFC (III), Mangalore, in

¶51

6 - NC: 2025:KHC:44017-DB MFA No. 6308 of 2017 C/W MFA No. 5953 of 2017

¶52

HC-KAR

¶53

which an interim order was granted on 03.03.2015.

¶54

Despite the interim order the husband came to the parental house of the wife and tried to take the child forcibly. Intervention of the police was necessitated.

¶55

The husband filed objections denying the averments made in the petition. He stated that he is ready and willing to lead a happy marital life with the wife. He filed a petition for restitution of conjugal rights but the wife was not cooperative and adamantly trying to avoid the husband. It was contended that the husband and his father are engaged in hotel business since more than 18 years which has earned goodwill and daily turnover of the hotel is in thousands. Since the wife had availed of some educational loan and had to repay the loan, the husband allowed the wife to continue the job in Bengaluru. He used to go all the way from Dharwad to Bengaluru to spend two to three days every week with the wife. She used to quarrel with him and asked him to stop hotel business or to avoid his parents and insisted him to stay at Bengaluru.

¶56

7 -

¶57

NC: 2025:KHC:44017-DB MFA No. 6308 of 2017 C/W MFA No. 5953 of 2017

¶58

HC-KAR

¶59

Since the father of the respondent had a massive heart attack in the year 2007, he had to take up the entire responsibility of running the business, also to look after the wife at Bengaluru, the health of his father and do regular house hold work. But the wife did not leave her

¶60

job. Various other allegations were made.

¶61

The Family Court framed the following points

¶62

for consideration:

¶63

1. Whether the petitioner in M.C.No.115/2015 is entitled for the relief of dissolution of marriage as prayed in the petition?

¶64

2. Whether the petitioner in M.C.No.115/2015 is entitled for custody of the child?

¶65

3. Whether the petitioner in M.C.No.115/2015 is entitled for permanent alimony as prayed for?

¶66

4. Whether the respondent-husband is entitled for the relief of restitution of conjugal rights as prayed in M.C.No.353/2015?

¶67

5. What Order?

¶68

7. These points were answered as follows:

¶69

Point No.1: In the Affirmative Point No.2: in the Affirmative Point No.3: Partly in the Affirmative Point No.4: In the Negative Point No.5: As per the final order

¶70

8. It appears from perusal of the so called reasons

¶71

assigned by the Family Court, that after narrating the case

¶72

8 - NC: 2025:KHC:44017-DB MFA No. 6308 of 2017 C/W MFA No. 5953 of 2017

¶73

HC-KAR

¶74

of the parties and parts of the evidence, the Court went on

¶75

to record the contention of learned counsel for the respondent and relying upon certain decisions answered the points framed for its consideration and passed the common judgment and the separate decrees which are under challenge in the instant appeal. There is no consideration or analysis of the evidence. A judgment of the Apex Court had been relied upon mechanically without analysing the facts of the present case and without there being any finding as to the applicability of the judgment to the facts and circumstances of the case of the respective parties. We are surprised at the manner in which the aforesaid judgment has been passed by the Principal Judge, Family Court, Mangalore.

¶76

In view of the facts and circumstances of the present case, the impugned common judgment passed in the aforesaid two matrimonial cases, cannot be allowed to stand and is therefore set aside. The consequent decrees, therefore, are also set aside.

¶77

9 - NC: 2025:KHC:44017-DB MFA No. 6308 of 2017 C/W MFA No. 5953 of 2017

¶78

HC-KAR

¶79

The matter is remanded to the competent Court

¶80

to take a decision afresh after duly analysing the evidence on record and on independent application of mind. It is

¶81

made clear that any observations made herein are only for purpose of judgment of the instant case and shall not be taken by the Family Court as an expression of and opinion in the case.

¶82

The appeals are accordingly allowed.

¶83

The registry is directed to send the original record to

¶84

the competent Court.

¶85

Sd/(JAYANT BANERJI) JUDGE

¶86

Sd/(K. V. ARAVIND) JUDGE

¶87

BVK