LAXMAN KRISHNA GADEKAR Vs. SUVARNA LAXMAN GADEKAR

JUDGEMENT

(1.) This appeal is directed against the order of the Senior Civil Judge, Kumta (henceforth for brevity referred to as the 'Court below') in M.C. No. 25/2011 dated 08.12.2015 whereby the petition filed by the respondent under section 9 of the Hindu Marriage Act, 1955 (henceforth for brevity referred to as 'the Act') seeking restitution of conjugal rights was allowed with costs dismissing the counter claim of divorce filed by the appellant.

(2.) The marriage between the appellant and respondent was solemnized on 06.07.1997 as per the Hindu rituals. It transpires that, due to the difference of opinion between the parties, the appellant filed M.C. No. 4/2006 seeking decree of divorce to dissolve the marriage solemnized between the parties, which came to be dismissed and was confirmed by this Court in MFA No. 24963/2011(MC). Subsequently, respondent preferred a petition under Section 9 of the Act for restitution of conjugal rights. In the said proceedings, the appellant filed counter claim seeking dissolution of the marriage solemnized between the parties. The Court below after analyzing the material placed on record allowed the petition filed by the respondent under Section 9 of the Act dismissing the counter claim of the appellant. Hence, this appeal.

(3.) Learned counsel Sri. Mallikarjun S. Hiremath, appearing for the appellant would contend that the Court below has failed to appreciate the contentions of the appellant that the respondent on 04.04.2000 without any reasonable cause left the house of the appellant with all her belongings without the consent of the appellant by handing over the keys to the neighbour. This act of the respondent clearly envisages hat the respondent has deserted the appellant in order to bring the cohabitation permanently to an end. This vital aspect was not considered properly by the Court below in allowing the petition filed by the respondent. Filing of the petition after lapse of 10 years seeking restitution of conjugal rights does not entitle the respondent to get favourable order, but despite the same, the Court below allowed the petition of the respondent dismissing the counter claim of the animus appellant, albeit the proof of desertion and desidendi on the part of the respondent to bring the cohabitation permanently to an end being established. On the other hand, the Court below ought to have allowed the counter claim of the appellant for divorce on the ground of desertion. Merely placing reliance on the order of this Court in the earlier proceeding, the Court below dismissed the counter claim. Thus, it is submitted that the order impugned deserves to be set aside by allowing the appeal.