SOUMYA W/O DR.H.B.M PRABHUSWAMY vs DR.H B M PRABHUSWAMY PRABHUSWAMY

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MFA No. 201086 of 2016

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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH


TH
DATED THIS THE 6 DAY OF OCTOBER, 2026

PRESENT

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

AND

THE HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO

MISCL. FIRST APPEAL NO.201086 OF 2016 (MC)


BETWEEN:

SOUMYA W/O DR. H.B.M. PRABHUSWAMY,
AGE: 28 YEARS, OCC: B.E. STUDENT,
R/O. C/O. PROF. MRITYUNJAYASWAMI,
SARASWATIPURAM, KUSNOOR ROAD AREA,
KALABURAGI-585 105.

…APPELLANT

(BY SRI. SUDHEER KULKARNI, ADVOCATE)

AND:

DR. H.B.M. PRABHUSWAMY
S/O H.B.M. SHIVAMURTHAYYA,
AGE: 33 YEARS, OCC: LECTURER,
GOVERNMENT JUNIOR COLLEGE,
HEBBAL, TQ. CHITTAPUR,
DIST. KALABURAGI-585 211.

…RESPONDENT

(BY SMT. CHANDRAKALA, ADVOCATE)









Digitally
signed by
SHIVALEELA
D UDAGI
Location:
HIGH COURT
OF
KARNATAKA

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THIS MFA IS FILED U/S. 19(1) OF FC ACT R/W ORDER 41
RULE 1 OF CPC, PRAYING TO A) ALLOW THE APPEAL AND SET-
ASIDE THE JUDGMENT AND DECREE DATED 30.04.2016
PASSED BY THE COURT OF DISTRICT JUDGE, FAMILY COURT,
AT KALABURAGI, IN MATRIMONIAL CASE NO.107/2013 AND
FURTHER ALLOW THE SAID PETITION SEEKING RESTITUTION
OF CONJUGAL RIGHTS AND DISMISS THE COUNTER CLAIM OF
THE RESPONDENT WITH COSTS. B) COSTS BE AWARDED TO
THE APPELLANT AND ETC.

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

CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
and
HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO

ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO )
This Miscellaneous First Appeal is filed assailing the
judgment and order passed in M.C.No.107/2013 dated
30.04.2016 on the file of the District Judge, Family Court
at Kalaburagi (for short Family Court’) in dismissing the
petition filed by the Appellant herein under Sec.9 of the
Hindu Marriage Act, 1955, seeking restitution of conjugal
rights and allowing the counter claim filed by the
Respondent under Sec.23(A) of the Hindu Marriage Act,

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1955, thereby dissolving the marriage between the

Appellant and Respondent solemnized on 28.06.2012.

2. The parties are referred to as per their ranking
before the Family Court.

3. The facts germane to this appeal are that the
Petitioner and the Respondent were married on
28.06.2012 at Vasavi Kalyan Mantap, Hagaribomman Halli,
Ballari District. The Petitioner contended that she was
pursuing a Bachelor of Engineering and was unsuccessful
in the examination because she failed a few subjects. She
applied for revaluation and later proceeded to a friend’s
house. The Petitioner’s father gave a missing complaint
dated 11.07.2012 to the University Police Station,
Kalaburagi, apprehending the kidnapping of the Petitioner.
It is stated that after one month, the Petitioner returned to
her parents’ house and resided there. In October 2012,
the Respondent asked the Petitioner to agree to divorce,
which the Petitioner refused. Accordingly, the Respondent

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issued a legal notice for divorce, and the Petitioner replied.
The Petitioner asserts that, as the Respondent failed to
take her back despite her efforts, she had no option but to
file a petition under Section 9 of the Hindu Marriage Act,
1955, seeking restitution of conjugal rights.

4. Upon service of summons, the Respondent appeared
and filed objections to the petition filed under Sec.9 of the
Hindu Marriage Act, 1955. The Respondent, though
admitting the marriage and the relationship, stated that
the Petitioner had gone to Pune with the Respondent’s
permission and, based on the missing complaint lodged by
her father, the Petitioner was brought back from Pune
after a month, i.e., on 10.08.2012. The Respondent also
filed a counterclaim seeking dissolution of marriage under
Sec.23(A) of the Hindu Marriage Act, 1955. The
Respondent asserts that the Petitioner stayed in Pune for
over 30 days and, in her statement to the police, stated
that she has no interest in leading marital life with the
Respondent and that the marriage was performed by force

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without her consent. The Respondent further states that
the marriage was not consummated and that a panchayat
was called in August 2012, but the Petitioner has shown
no inclination to join the Respondent's company or lead
marital life. The Respondent claims that he issued a legal
notice to the Petitioner on 22.09.2012 and, despite the
same, the Petitioner failed to join the Respondent’s
company. The Respondent therefore sought dismissal of
the petition filed under Sec. 9 of the Hindu Marriage Act,
1955, for restitution of conjugal rights, and sought to
allow the counterclaim filed under Sec. 23(A) of the HM
Act dissolving the marriage.

5. The Petitioner stated to have examined herself as
PW.1 and got marked Ex. P1 to 11 in support of her
contention. The Respondent examined himself as DW.1
and got Ex.D1 to D10 marked. The Family Court has
framed the following points for determination:

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1) Whether the petitioner proves that the
respondent has voluntarily left the company of
petitioner without reasonable excuse?
2) Whether the counter claim claimed by
respondent under section 23(A) of Hindu
Marriage Act 1955 deserves to be allowed?
3) Whether petitioner proves that she is entitled
for interim maintenance and litigation expenses
as prayed?
4) What order?

The Family Court answered Point No.1 in the negative
and Point No.2 in the affirmative . On Point No. 3 , it
answered partly in the affirmative . Accordingly, the
Family Court dismissed the petition filed under Sec. 9 of
the Hindu Marriage Act, 1955, for restitution of conjugal
rights, and allowed the Respondent's counterclaim under
Sec. 23(A) of the Hindu Marriage Act, 1955, dissolving the
marriage between the Petitioner and the Respondent. It is
this order which is impugned in the present appeal.

6. The learned counsel for the Appellant submits that
the Family Court erred in rejecting the petition filed under

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Sec. 9 of the Hindu Marriage Act, 1955, and ought to have
allowed it, directing the Respondent to perform the marital
obligation. Learned counsel argued that the Appellant was
always willing to join the Respondent, and that the
Respondent failed to take the Petitioner back into his
company despite her sincere efforts. The learned counsel
urged this Court to allow the appeal and the petition filed
under Sec. 9 of the Hindu Marriage Act, 1955.

7. Per contra , learned counsel for the Respondent
submits that the Petitioner has made no attempt to join
the Respondent despite the Respondent issuing a legal
notice dated 22.09.2012. The learned counsel further
submits that the Appellant had given a voluntary
statement before the police that the marriage between the
Appellant and Respondent was performed by force and
without her consent. The Appellant expressed that she has
no interest in leading a marital life with the Respondent. In
furtherance of the same, the Appellant has deserted the
Respondent for more than three and a half years;

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accordingly, the Respondent preferred a counterclaim
under Sec. 23(A) of the Hindu Marriage Act, 1955, for
dissolution of marriage. It is submitted by the learned
counsel that the Family Court is justified in rejecting the
petition filed by the Appellant under Sec. 9 of the Hindu
Marriage Act, 1955 and allowing the counterclaim filed
under Sec. 23(A) of the Hindu Marriage Act, 1955.
Accordingly, he prays for dismissal of the appeal.

8. We have heard the learned counsel appearing for the
Appellant and the Respondent and perused the material
documents placed on record, including the Trial Court
records.

9. Having heard the learned counsel for the parties, the
point that would arise for our consideration is:
“ Whether the judgment and order passed
in M.C.No.107/2013 dated 30.04.2016 on
the file of the District Judge, Family Court
at Kalaburagi, in dismissing the petition
filed by the appellant herein under Sec.9 of
the Hindu Marriage Act, 1955, warrants
interference in the present appeal?”

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The above point is answered in the negative for the
following;
R E A S O N S

10. The relationship between the Appellant and
Respondent is not in dispute. The marriage between the
Appellant and the Respondent took place on 28.06.2012 at
Vasavi Kalyan Mantap, Hagaribommanahalli, Ballari
District, as per prevailing customs, has not been disputed.
The parties have also not disputed that the Appellant left
for Pune on 10.07.2012, and that the Appellant’s father
lodged a missing complaint with the University Police
Station as per Ex.D7; and that the University Police
brought her back from Pune on 10.08.2012.

11. The Appellant has admitted that she gave a voluntary
statement to the police as per Ex.D9 stating that the
marriage was performed by force without her consent and
she has no interest in leading the marital life. The
Appellant further admitted that the Respondent had issued

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legal notice as per Ex.D10. The Appellant has stated that
she was under depression as she was unsuccessful in the
th
8 semester of Bachelor of Engineering and also taken a
stance that she had been to Pune to attend an interview.
However, the Appellant has not produced an interview
letter or call letter to substantiate the said contention. The
Appellant stated that she left for Pune after obtaining the
Respondent's permission.

12. The Respondent denied the aforementioned
assertions, and the Appellant failed to establish that she
went to Pune after obtaining the Respondent's permission.
In cross-examination as PW.1, the Appellant categorically
admitted that she had not informed her father about the
interview call from Tata Motors or her intention to visit
Pune. In support of her stand, she failed to produce any
material or documentary evidence that she received a call
letter from Tata Motors, nor did she examine the
concerned person to depose in support of her stand. The
Appellant even asserted that she worked at Tata Motors

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from 11.07.2012 to 10.08.2012. However, the Appellant
has not duly discharged the burden of establishing the
same by examining the concerned persons or by producing
the relevant documents. Another contention, that she
stayed in a P.G. Centre when she visited Pune, has also
not been established by producing materials relevant to
supporting her case.

13. Having due regard to the stand taken by the
Appellant, and in light of the unanswered inconsistencies
and the missing complaint lodged by the appellant's
father, an inference can be drawn that she might have
eloped with a stranger, as the purpose of stay at Pune for
about a month has not been clarified. Appellant's
statement, recorded during cross-examination, is that she
has been residing separately from the Respondent for over
three and a half years from the date of marriage. Taking
note of the facts of the case and having regard to the
material documents and the oral testimony of the parties,
it can be held that the Respondent has proved and

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established that the Appellant has voluntarily deserted the
Respondent and subjected him to physical and mental
cruelty. The fact remains that the Appellant has been
residing separately for more than two years continuously.
The Appellant has admitted that the marriage between the
Appellant and the Respondent was not consummated.

14. The cross-examination of the Appellant, which is
relevant for the determination of the issue involved in the
present appeal, is extracted hereunder;
“ It is true to suggest that, I had not contacted
to respondent nor my father during the above
said one month period stayed at Pune. It is true
to suggest that, police had brought me Gulbarga.
I had given my statement before the police on
10-8-2012. I had seen the said statement. I had
given the said statement. The said statement is
already marked at Ex D-9. It is false to say that,
the respondent was present at the time of
recording my statement Ex. D-9. Respondent
had sent legal notice against me on 22-9-2012.
The said notice is already marked at Ex D-10. It
is true to suggest that. I had not joined the
company of respondent despite of I received
legal notice Ex. D-10 true to suggest that there
was no marriage consummation between me and
respondent. It is true to suggest that, there was
no romance activities between myself and

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respondent. It is true to suggest that, we had
not gone for honeymoon program. I do not know
cell number of respondent. I did not go to
respondent college where he is working. Now I
am residing with my parents for period of 3
and half years after the marriage.”


15. The Appellant's statement in cross-examination
establishes that she has been living separately for more
than three and a half years. The cross-examination would
further depict that the Appellant did not contact the
Respondent or her father when she went to Pune and
stayed there for one month. The Appellant admitted that
the police brought her back on 10.08.2012 and further
admitted the voluntary statement she made to the police,
which was marked as Ex.D9. In light of the oral testimony
of the Appellant, the Family Court has committed no error
in dismissing the petition filed by the Appellant and
allowing the counterclaim filed by the Respondent under
Sec. 23(A) of the Hindu Marriage Act, 1955, dissolving the
marriage between the Appellant and Respondent. In our
view, the judgment and order passed by the Family Court

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is not perverse and no illegality can be pointed out with
the conclusion arrived at by the Family Court. In view of
the reasons assigned hereinabove, we decline to interfere
with the judgment and order passed by the Family Court.

16. Hence, we proceed to pass the following:
ORDER
The Appeal is hereby dismissed .
Sd/-
(ASHOK S. KINAGI)
JUDGE


Sd/-
(SUBRAMANYA RANGARAO)
JUDGE



MSR
List No.: 1 Sl No.: 11
CT: AK