IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS ON THE 20TH DAY OF JUDGE 2005
THE HON’BLE MR.JUSTICE A.M.FAROOQ
THE HON’BLE MR.JUSTICE ASHOK B HINCHIGERI
M F A No 9109 /2004 (FC)
1 P D MAHALAKSHMI
D/O LATE B RANGAIAH CHETTY
W/O P R DIWAKAR GUPTHA
NO.9, 1ST CROSS
BANGALORE 560042 … APPELLANT
(By Sri: M G KUMAR LAW FIRM)
1 P R DIWAKAR GUPTHA
S/O P V RATHNAM
R/O NO. 17, 1STCROSS
BANGALORE -560040 …. RESPONDENT
(By Sri : E RAJGOPAL)
MFA FILED U/S 19 OF THE FAMILY COURT ACT R/W SECTION 28 OF HINDU MARRIAGE ACT AGAINST THE ORDER DATED 07.10.2004 PASSED IN M.C. NO.711 /1998 ON THE FILE OF THE 1ST ADDITIONAL PRINCIPAL JUDGE FAMILY COURT, BANGALORE, DECREEING THE PETTION FILED U/S 13 OF THE HINDU MARRIAGE ACT FOR RESTITUTION OF CONJUGAL RIGHTS.
1) This is an appeal filed U/s. 19 of the Family Courts Act 1984. The appellant is the wife who was the respondent before the Family Court. The respondent –husband filed the petition U/s9 of the Hindu Marriage Act 1955. The respondent originally filed the petition seeking divorce from the appellant and thereafter amended the petition seeking restitution of conjugal rights.
2) During the course of the proceedings, the Family Court fixed Rs. 3500/- as maintenance to be paid to the appellant and her minor child aged about 12 years. It is stated that after the order passed by the Family Court, the respondent-husband has not paid any maintenance to the appellant and her child. They have been made to starve and fight the case. This court passed an order staying the operation of the order passed by the Court below. The appellant while contesting the petition for restitution contended that the respondent-husband was having an illicit affair with his employee which prevents her from joining him. The lower court appears to have not considered the matter properly.
3) We notice that the Family Court has not given any weight age to the statement of the husband, in the course of cross-examination, that both Rekha and Mahalakshmi (appellant) are important to him. If a husband says another woman is as important as his wife, then it raises a serious cloud of his an extra-marital relationship. In such a situation, We are of the considered view that this circumstance is a good ground for allowing the appellant –wife’s request for judicial separation than the respondent-husband’s request for restitution of conjugal rights.
4) We also find that the Family Court has reasoned that, if there is any unethical relationship between the respondent and rekha, then he would have been bringing her to his matrimonial home frequently. This reasoning is also unsound.
5) The conduct of the respondent –husband is also such that he is not entitled to any relief. The circumstances of the case reveal that he has sought restitution of conjugal rights only with a view to avoid paying maintenance to his wife and child. The interim maintenance to his wife and child. The interim maintenance of Rs.3,500/- per month, as fixed by the Family Court, is not paid in full. The husband cannot expect his wife and children to starve and fight the litigation started by him. The husband cannot excuse himself by taking the stand that the appeal is filed by the wife. Because appeal is only a continuation of the proceedings initiated by him in the Family Court.
6) For the reasons stated above, we allow this appeal by setting aside the judgment under appeal and dismissing the petitioned filed by the respondent in the Court below.