Karnataka High Court
Surekha W/O Virupakshayya Hiremath vs Virupakshayya And Ors on 25 July, 2024
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NC: 2024:KHC-K:5310-DB
MFA No.201631 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.201631 OF 2022 (MC)
BETWEEN:
SUREKHA
W/O VIRUPAKSHAYYA HIREMATH,
AGE: 34 YEARS,
OCC: GOVT. TEACHER,
R/O MAHAGAON CROSS,
HUMNABAD ROAD,
TQ: KAMALAPUR,
DIST: KALABURAGI - 585 316.
...APPELLANT
Digitally signed by (BY SRI KADLOOR SATYANARAYANACHARYA, ADVOCATE)
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
Location: HIGH AND:
COURT OF
KARNATAKA
VIRUPAKSHAYYA
S/O SHIVABASAYYA HIREMATH,
AGE: 34 YEARS,
OCC: GOVT. SERVANT,
R/O RAVOOR (B) VILLAGE,
TQ: AFZALPUR,
DIST: KALABURAGI - 585 301.
PRESENTLY RESIDING H.NO.0-587/3/2/59,
SWAMI VIVEKANAND NAGAR,
ALAND ROAD, NEAR MILLENIUM SCHOOL,
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NC: 2024:KHC-K:5310-DB
MFA No.201631 of 2022
KALABURAGI - 585 101.
PLACE OF WORK: PHYSICAL TEACHER,
GOVT. HIGH SCHOOL, MADAGUNAKI,
TQ: ALAND,
DIST: KALABURAGI - 585 302.
...RESPONDENT
(BY SRI ARUNAKUMAR AMARGUNDAPPA, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, 1984, PRAYING TO CALL FOR THE RECORDS AND
ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT DATED
16.07.2022 PASSED BY THE PRINCIPAL JUDGE FAMILY COURT
IN M.C.NO.285/2019, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS MISCL. FIST APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Miscellaneous First Appeal is filed under Section 19 of the Family Court Act, 1984, challenging the judgment and decree dated 16.07.2022, passed in M.C.No.285/2019 by the learned Principal Judge, Family Court, Kalaburagi. -3-
NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022
2. For the sake of convenience parties are referred to as per their ranking before the Family Court. Appellant is the respondent, respondent is the petitioner.
3. The petitioner filed a petition under Section 13(1)(ia) (ib) of Hindu Marriage Act, 1955, praying to dissolve his marriage with respondent on 16.05.2017. It is the case of the petitioner that, marriage of the petitioner with respondent was solemnized on 16.05.2017 at Balaji Kalyana Mantap, Sultanpur Road, Kalaburagi, as per the customs, traditions and rituals prevailing in their community. After the marriage, they have led a happy married life hardly for one week, thereafter the respondent started disliking him and giving ill treatment without any reasonable cause, abusing him and his parents before his friends and relatives and refuse to prepare food. The respondent always used to visit her parents house without any information to the petitioner. Whenever he asked for the behaviour of the respondent, she used to abuse the petitioner in filthy language. It is contended that she is always dancing to the tune of her mother and acting in cruel manner with the petitioner. The petitioner has informed about the ill treatment given by the respondent to his parents and immediately, the -4- NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022 petitioner took elders of the family members to the house of the respondent on 16.04.2019, in spite of advise by them, she was not ready to hear the words of the elders and even her parents have insulted and abused them in filthy language. The respondent did not co-operate the petitioner to share the bed and never excited mood for sex. Hence, he has suffered mental torture. It is contended that, respondent did not informed regarding the birth of baby and not invited the petitioner and his parents for the cradle ceremony. The respondent deserted the company of the petitioner and contended that there is no physical relationship between the petitioner and respondent and there is no hope of reunion. Hence, the petitioner filed this petition for dissolution of marriage with the respondent.
4. The respondent filed objections admitting the relationship between them and birth of a child on 19.07.2018. She denied the allegations made by the petitioner in regard to the cruelty. It is contended that there is no cause of action to file the petition. It is contended that herself and the petitioner resided happily and performed a marital obligation and when she was carrying she went to her parents house for proper -5- NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022 nourishment with the consent and permission of the petitioner and his parents. The petitioner used to visit her parents house frequently and spent happy time. It is contended that petitioner and his family members did not attended the cradle ceremony and demanded cash and gold from her parents. It is contended that only to harass the respondent the petitioner has filed this petition on the instigation of the brother of the petitioner and his wife and contended that she is ready to live with him and prayed to dismiss the petition.
5. The petitioner in order to substantiate his case examined himself as PW.1 and examined two witnesses as PWs.2 and 3 and got marked 7 documents as Exs.P1 to 7. The respondent got examined herself as RW.1 and examined one witness as RW.2 and no documents are marked on behalf of the respondent.
6. The learned Family court after recording the evidence framed the following points for consideration.
i. Whether the petitioner proves that the respondent has subjected him to cruelty as stated in the petition?
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NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022 ii. Whether petitioner proves that, the respondent has deserted him continuously for more than two years without reasonable cause?
iii. Whether petitioner is entitled for the relief as prayed for?
iv. What order?
7. The Family Court on the assessment of oral and documentary evidence, answered point Nos.1 and 3 in the affirmative, point No.2 in the negative and point No.4 as per the final order. It is ordered that the petition filed under Section 13(1)(ia) of Hindu Marriage Act, 1955, by the petitioner was allowed and petition filed under Section 13(1)(ib) of Hindu Marriage Act, by the petitioner was dismissed. It is further ordered that the marriage of the petitioner solemnized with respondent on 16.05.2017 at Balaji Kalyana Mantap, Sultanpur Road, Kalburagi, was dissolved by decree of divorce on the ground of cruelty.
8. The respondent, aggrieved by the judgment passed by the Family Court in M.C.No.285/2019 dissolving the marriage of the petitioner with respondent by decree of divorce on the ground of cruelty, has filed this appeal. -7-
NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022
9. Heard the learned counsel for the respondent and also learned counsel for the petitioner.
10. Learned counsel for the respondent submits that the respondent has led a happy married life with the petitioner by performing marital obligation. He submits that the petitioner has failed to prove the alleged cruelty by respondent. He submits that the trial court has committed an error in recording its finding that the petitioner has made attempts by sending elder family members to take her back why she has not gone back to the house of the petitioner. He submits that the respondent has taken defence in the written statement that, the petitioner and his parents used to demand money and they forced her to part away her salary and demanded cash and gold and the family court has recorded finding that she has not taken any legal action against the petitioner. Hence it amounts to harassment and cruelty by the respondent. He submits that except examining PWs.2 and 3, who are the interested witnesses, the petitioner has not led any evidence of any independent witnesses and has not produced any records to establish that the respondent was harassing the petitioner. The Family court committed an error in allowing the petition -8- NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022 filed by the petitioner under Section 13(1)(ia) of Hindu Marriage Act. Hence, on these grounds, he prays to allow the appeal.
11. Per contra, learned counsel for the petitioner submits that the petitioner and respondent are residing separately from 2019 and respondent used to harass the petitioner by abusing in filthy language to him and his parents. He submits that the respondent gave birth to a baby and she has not invited the petitioner for cradle ceremony and further she has made allegation against the petitioner for payment of entire salary and ATM card. Thus it amounts to cruelty and the petitioner was subjected to cruelty. Hence, the Family court was justified in passing impugned judgment. Hence on these grounds, he prays to dismiss the appeal.
12. Perused the records and considered the submissions of the learned counsel for the parties.
13. The point that arises for our consideration is: -9-
NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022 i. Whether the petitioner proves that the respondent has subjected him to cruelty as alleged in the petition?
ii. Whether the respondent proves that impugned judgment and decree passed by the Family court is perverse and arbitrary?
iii. What order or decree?
14. The petitioner in order to substantiate his case, examined himself as PW.1. He has reiterated the petition averments in the examination-in-chief and in order to prove his case, he has produced documents as Ex.P1 is the copy of the legal notice. It is alleged that the respondent has misbehaved and ill treated the petitioner and is ready to condone the misbehaviour and ill treatment of the respondent and further stated that if the respondent is interested in marital life, the petitioner called upon the respondent through the notice, joined the petitioner within a week from the date of receipt of the notice. Ex.P2 is the reply notice to the Ex.P1. The said reply was got issued by the respondent to the advocate of the petitioner dated 26.08.2019. She denied the allegations made in the legal notice and it is also stated to advise his client to take back the respondent and reside with her by leading happy
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NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022 married life by making a separate house and further she has made allegations against Siddaiah i.e., brother of the petitioner and his wife. Exs.P3 to 5 are the photographs, Ex.P6 is the prescription issued by Dr.Nirmala Hiremath, Consulting Gynaecologist, it discloses that she has prescribed the medicine to the respondent.
15. In the course of cross examination of PW.1, he has denied the defence of the respondent and further in order to prove his case he has examined one Mahantayya as PW.2, who has deposed that the respondent started to abuse the petitioner in front of all the family members and refused to prepare the food to the petitioner and family members. The respondent has a habit of taking up quarrel and abusing the petitioner and other family members in filthy language and elders of the family advised the respondent to behave properly and lead happy married life and there is no chance of reunion.
16. In the course of cross examination he admits that the petitioner and the respondent are working as teachers and they are going to school to discharge their duties. PW.2 admits that PW.1 is his brother. He admits that the petitioner is
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NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022 residing in Kalaburagi and PW.2 is the resident of Rovoor. Further, the petitioner also examined one Dayanand as PW3, who has deposed in the same line of PW.2. In rebuttal, the respondent was examined as RW.1 and she has reiterated the written statement averments in the examination-in-chief. Nothing has been elicited from the mouth of this witness in the course of cross examination. Further, she also examined one Basavaraj Hiremath as RW.2 i.e., father of the respondent. He has deposed in the same line of RW.1.
17. From the perusal of evidence of the parties, the petitioner has failed to establish that the petitioner was subjected to cruelty by the respondent. If at all if the petitioner was subjected to cruelty, the petitioner could have lodged the complaint against the respondent. Admittedly, in the instant case, the petitioner has not lodged any complaint against the respondent for alleged cruelty. Though the petitioner has made allegations in the Ex.P1, respondent replied to Ex.P1 and denied the allegations made in the legal notice. Further, PW.2 and PW.3 are the relatives of PW.1. As observed above, if the petitioner was subjected to cruelty by the respondent, the petitioner could have examined the neighbours to establish that
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NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022 he was subjected to cruelty by the respondent. The petitioner has not examined any independent witnesses. The learned Principal Judge, Family Court has allowed the petition only on the ground that the petitioner has made attempts even by sending elder family members to take her back. Why she has not gone back to the house of the petitioner is according to her that, petitioner was hearing the words of his brother and his wife and they have all taken entire salary and used to take her money and they forced her to part away her salary and the petitioner demanded cash and gold, but the respondent has not taken any legal action against the petitioner. The findings recorded by the trial court is contrary to the records. On the contrary, the petitioner has made allegations against the respondent that he was subjected to cruelty by the respondent, and as observed above, the petitioner has not lodged any complaint against the respondent for treating him with cruelty. The petitioner except the oral evidence has not produced any records to establish that he was subjected to cruelty by the respondent.
18. The learned Family court without properly considering the material placed on record, on the assumption
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NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022 has passed the impugned judgment. The petitioner has failed to prove that the respondent has subjected him to cruelty. In view of the above discussion, point No.1 is answered in the negative.
19. Point No.2: The trial court without properly considering the material placed on record, merely on the basis of some stray sentence that respondent has not taken any action against the petitioner amounts to cruelty and further in the reply in Ex.P2, the respondent has clearly stated that respondent is ready to join the company of the petitioner and lead a happy marital life, in spite of petitioner has filed this petition for dissolution of marriage. From the perusal of the petition and also evidence of PWs.1 to PW.3, it does not specify any kind of misbehaviour by the respondent which tentamounts to cruelty. Therefore, evidence of PWs.1 to 3 is totally vague without particular specification like that of the petition and therefore it does not inspire our confidence as to reach to the conclusion that the wife is guilty of matrimonial cruelty and we do not find any misbehaviour on the part of the respondent so grave and intense as to constitute a matrimonial cruelty. Thus in view of the above discussion, impugned judgment and
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NC: 2024:KHC-K:5310-DB MFA No.201631 of 2022 decree passed by the Family court is arbitrary and erroneous and same is liable to be set aside. In view of the above discussion, we answer point No.2 in the affirmative.
20. Point No.3: Accordingly, we proceed to pass the following:
ORDER i. Appeal is allowed.
ii. Impugned Judgment and decree dated 16.07.2022 passed in M.C.No.285/2019 by the learned Principal Judge, Family Court, Kalburagi, is set aside.
iii. Consequently, the petition filed under Section 13(1)(ia) of Hindu Marriage Act, by the petitioner is dismissed.
iv. No order as to the costs.
Sd/-
(ASHOK S. KINAGI) JUDGE Sd/-
(RAJESH RAI K) JUDGE SKS List No.: 1 Sl No.: 2