IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No. 5155/2016 (FC) BETWEEN:
SMT. SHARMILA AGED ABOUT 42 YEARS W/O K.R.SADASHIVA ACHARYA RESIDING AT FLAT NO 6 ‘C’ BLOCK SOORAJ APARTMENT INFRONT OF SYNIDACATE BANK KADRI, PUMPWELL MANGALURU. ...APPELLANT (BY SMT. SHARADI SHETTY, ADVOCATE FOR SRI P.P. HEGDE ADVOCATE) AND SRI. K.R. SADASHIVA ACHARYA AGED ABOUT 37 YEARS S/O RUKMAYYA ACHARYA R/AT K.R.S. FURNITURE INFRONT OF CHAMUNDESHWARI TEMPLE HOIGEBAILU, URWA MARIGUDI MANGALURU – 575 006 ... RESPONDENT (BY MS. SHARADI SHETTY., FOR ADVOCATE) THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY COURT ACT, AGAINST THE JUDGMENT AND AWARD DATED : 07.04.2016 PASSED ON MC NO.93/15 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, DAKSHINA KANNADA, MANGALURU, DISMISSING THE PETITION FILED UNDER SECTION 9 OF THE HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T We have heard Smt. Sharadi Shetty, learned counsel for Sri P.P. Hegde, learned counsel for the appellant.
2. The appellant herein has assailed the judgment of the Family Court at D.K., Mangaluru, dated 07/04/2016, passed in M.C.No.93/2015, by which, the petition filed by her under section 9 of the Hindu Marriage Act, 1955, seeking the relief of restitution of conjugal rights has been dismissed. The respondent is served and unrepresented.
3. Learned counsel for the appellant contended that the Family Court, D.K., could not have dismissed the petition filed by the appellant herein under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act” for short). It may be that the appellant herein belongs to the Christian faith, but the respondent is a Hindu. That the marriage of the parties took place before the sanctum sanctorum of Murudeshwara Temple in U.K. District, on 17/10/2007 as per Hindu rites and customs. That they lived together since 2007 and had two children. That the trial Court could not have held that the marriage between the parties had not taken place under the Act and consequently, Section 9 of the Act could not have been invoked by the appellant herein. She contended that the petition under Section 9 of the Act was maintainable as the appellant is the legally wedded wife of the respondent. That the appellant sought for restitution of conjugal rights under Section 9 of the Act. The Family Court ought to have granted the relief to the appellant. That the appellant has a good case on merits and therefore, the impugned order may be set aside and the relief sought for by the appellant may be granted.
4. Having heard learned counsel for the appellant, at the outset, we find that the appellant herein is a Christian. Her evidence that she renounced Christianity and developed faith in Hinduism and followed Hindu ceremonies has not been established. That it has come in the evidence that the appellant is a Roman Catholic, while the respondent belongs to the Hindu faith. The marriage between such persons cannot be cannot be considered as a Hindu Marriage for the purpose of Section 9 of the Hindu Marriage Act. When a marriage is solemnized between any two Hindus subject to certain conditions being fulfilled, it would result in a Hindu marriage. In other words, both the parties must be Hindus, but in the instant case, the appellant does not belong to the Hindu faith. She is a Christian and hence, her marriage with the respondent cannot be considered to be “a Hindu marriage”.
5. That apart, it has come in evidence that the parties exchanged garlands and the respondent tied mangalsutra to the appellant before the sanctum sanctorum of Murudeshwara Temple. Such a ceremony is also not a ceremony under the Hindu Marriage Act. Section 7 of the Hindu Marriage Act states that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. That the essential ceremonies of the marriage must be performed. There is no evidence on record that exchange of garlands before the sanctum sanctorum of Murudeshwara Temple and tying of mangalasutra by the respondent to the appellant are essential ceremonies or their customary rites. Therefore, on that score also it has to be held that there is no “Hindu marriage” in accordance with Section 7 of the Hindu Marriage Act. In the circumstances, the Family Court has held that invocation of Section 9 of the Act seeking restitution of conjugal rights is inappropriate and hence the petition filed under the said provision by the appellant has been dismissed. We do not find any infirmity in the judgment of the Family Court, D.K., Mangaluru. Hence, the appeal is dismissed.
6. However, if the appellant is entitled to any other remedy in law, she could seek such a remedy in accordance with law. If any such proceeding is filed by her seeking any matrimonial relief vis-à-vis the respondent herein, then any finding arrived at by the Court below vis- à-vis the aspect of restitution of conjugal rights would not come in the way of prosecuting such a proceeding. Subject to the aforesaid liberty and observation, the appeal is dismissed.
In view of dismissal of the appeal, I.A.No.1/16 also stands dismissed.
Sd/- JUDGE Sd/- JUDGE S*