Karnataka High Court
Sanjeev vs Smt Neelamma on 4 June, 2024
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NC: 2024:KHC-K:3559-DB
MFA No. 201880 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 201880 OF 2018 (FC-DIV)
BETWEEN:
SANJEEV
S/O ARJUN TALAWAR,
AGE: 47 YEARS, OCC: EMPLOYEE OF BSNL,
R/O HARTI VILLAGE,
TQ:INDI, DISTRICT: VIJAYAPURA.
...APPELLANT
(BY SRI. MAHANTESH PATIL, ADVOCATE)
AND:
SMT. NEELAMMA
Digitally signed by
BASALINGAPPA W/O SANJEEV TAAWAR,
SHIVARAJ
DHUTTARGAON AGE: 32 YRS, OCC: HOUSEHOLD WORK,
Location: HIGH
COURT OF R/O C/O V.S. KOLKAR HOUSE RAJAJI NAGAR,
KARNATAKA
VIJAYAPURA - 586 101.
...RESPONDENT
(SERVED)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 10.08.2018 PASSED BY THE I ADDL. PRL.
JUDGE, FAMILY COURT, VIJAYAPUR, IN M.C.NO.174/2016 AND
CONSEQUENTLY ALLOW THE DIVORCE PETITION AS PRAYED IN
THE FAMILY COURT, IN THE INTEREST OF JUSTICE AND
EQUITY.
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NC: 2024:KHC-K:3559-DB
MFA No. 201880 of 2018
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and order dated 10.08.2018 passed by the I Additional Prl. Judge, Family Court, Vijayapura in Matrimonial Case No.174/2016, wherein the Family Court dismissed the divorce petition filed by the appellant under Section 13(1)(ia)(ib) of Hindu Marriage Act, 1995.
2. The parties are referred to as per their ranking before the Family Court.
3. The facts arise for consideration, which are borne out from the pleadings, are as under:
The respondent is the legally wedded wife of the petitioner and their marriage was solemnized on 14.05.2003 at Horti, Indi Taluk, Vijayapura District. After the marriage, the respondent joined the matrimonial house of the petitioner at Horti. Out of the wedlock, they -3- NC: 2024:KHC-K:3559-DB MFA No. 201880 of 2018 have begotten two sons and one daughter. It is the further case of the appellant that, his father was in service in Telephone Department and he died in the year 1995 leaving behind his wife i.e., mother of the petition, his brother and three sisters. The petitioner has completed PUC and had applied for job on compassionate ground by giving assurance to his siblings that he will properly look after them. After the marriage, the respondent was insisting the petitioner to have a separate house and to settle at Vijayapura but, the appellant was not in a position to leave his mother and his dependent brother and sisters. Though the appellant made an effort to convince the respondent, she was not in a position to listen the words of the petitioner. As such, the respondent cultivated the habit of going to her parental house and staying there for months together. In all 13 years of marital life, the respondent stayed only about 4 to 5 years with the petitioner. The adamant nature of the respondent made the life of the appellant miserable and he lost his mental peace and he was not able to discharge -4- NC: 2024:KHC-K:3559-DB MFA No. 201880 of 2018 his duty peacefully. The respondent used to abuse the petitioner and his family members and made an attempt to commit suicide by consuming sleeping tablets. During the year 2016, she lodged a false complaint against the petitioner in relation to harassment and left the matrimonial house. However, after panchayath, though she joined the petitioner, in the month of September 2014, once again she left the matrimonial house ever since then she left the petitioner without any valid reasons. Though the petitioner issued legal notice for restoration of the conjugal relationship, she failed to join the matrimonial house. As such, the petitioner filed divorce petition in M.C.No.5/2015 and the same was dismissed on 01.12.2015 on the ground that the petitioner had filed the same before expiry of 2 years from the date of desertion. Hence, the appellant once again filed the divorce petition i.e., M.C.No.174/2016.
4. After service of notice, the respondent appeared through her counsel and resisted the divorce petition by -5- NC: 2024:KHC-K:3559-DB MFA No. 201880 of 2018 filing objection. She denied all the averments made in the divorce petition.
5. After considering the facts and circumstances of the case, the Family Court framed the following points for consideration:
1) Whether petitioner proves that the respondent has ill-treated her with cruelty?
2) Whether the petitioner proves that respondent deserted him?
3) What order?
6. In order to prove the case before the Family Court, the petitioner himself examined as PW.1 and got examined 2 witnesses as PWs.2 and 3 so also got marked 6 documents as Exs.P1 to P6. However, the respondent neither examined any witness on her behalf nor got marked any documents.
7. After assessment of the oral and documentary evidence, the Family Court dismissed the petition filed by -6- NC: 2024:KHC-K:3559-DB MFA No. 201880 of 2018 the petitioner as stated supra. Challenge to the same is lis before this Court.
8. We have heard the learned counsel Sri Mahantesh Patil for appellant so also perused the materials available on record.
9. It is the primary contention of the learned counsel for the appellant that, the Family Court erroneously passed the impugned judgment by relying on the dismissal of the divorce petition in M.C.No.5/2015 dated 01.12.2015. The said case was dismissed on the ground that the petition was filed within two years from the date of desertion. As such, the reliance of the said order is totally misconceived by the Family Court. He would further contend that the desertion and cruelty are continues wrongs, each day would give a fresh cause of action. The respondent lodged the false complaint against the petitioner itself, which amounts to cruelty as per the settled principles by the Hon'ble Apex Court. Nevertheless, she willfully deserted the petitioner from -7- NC: 2024:KHC-K:3559-DB MFA No. 201880 of 2018 September, 2014. The said aspect was not considered by the Family Court. As such, the impugned judgment is liable to be set-aside. Accordingly, he prays to allow the appeal.
10. Though notice served to the respondent, she failed to appear before this Court personally or through her counsel.
11. Having heard the learned counsel for the appellant so also having perused the documents made available before us, the only point that would arise for our consideration is:
"Whether the judgment and order passed by the Family Court suffers from perversity and requires any interference by this Court?"
12. As could be seen from the evidence adduced by the appellant as PW.1, he categorically admitted that the respondent filed maintenance petition against him in Crl.Misc.No.534/2014 and lodged a complaint against him. -8-
NC: 2024:KHC-K:3559-DB MFA No. 201880 of 2018 The Police called him to the Police Station and advised him to take care of his wife. Accordingly, he agreed in the Police Station to make a separate house and stay along with his wife. The elders of the family also advised him to that effect. However, the petitioner failed to act as per his assurance and harassed & neglected to maintain his wife. Apart from that, he totally deserted her. It is also forthcoming in the cross examination of PW.1 that though the respondent is ready and willing to join the matrimonial house, the petitioner is not ready to accept her to the matrimonial house to lead a happy married life. As such, the petitioner failed to prove that the respondent abandoned him without intending to join the matrimonial home. Nevertheless, the evidence of PWs.2 and 3 who are the hearsay witnesses also admitted in their cross examination that they were not personally aware about the family relationship between the petitioner and the respondent. As such, their evidence no way helps to the case of the petitioner. Hence, on overall perusal of the pleadings and evidence, the petitioner failed to prove that -9- NC: 2024:KHC-K:3559-DB MFA No. 201880 of 2018 the respondent has treated him with such cruelty so as to cause a reasonable apprehension in the mind that it would be harmful or injurious for the petitioner to lead life with the respondent. In that view of the matter, we are of the considered opinion that the Family Court passed the considerable order which does not call for any interference. Accordingly, we answer the point raised above in the negative and proceed to pass the following:
ORDER The appeal is dismissed being devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE HKV List No.: 1 Sl No.: 11 CT;BN