B Jagannath vs Bhagya
2021 Latest Caselaw 5654 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF DECEMBER, 2021

                        PRESENT

          THE HON'BLE MR. JUSTICE B.VEERAPPA

                         AND

       THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

               M.F.A.NO.3594/2017 (MC)

BETWEEN:

B.JAGANNATH
AGED ABOUT 41 YEARS
S/O BYATAPPA
NITTUR, GUBBI TALUK
TUMAKURU DISTRICT-572 101.                 ... APPELLANT

       (BY SRI R.V.SHIVANANDA REDDY, ADVOCATE)

AND:

BHAGYA
AGED ABOUT 35 YEARS
D/O G.V.GANGANNA
W/O B.JAGANNATH
KEB QUARTERS
RAILWAY STATION ROAD, GUBBI,
TUMAKURU DISTRICT-572 101.               ... RESPONDENT

          (BY SMT. ANUSHA M., ADVOCATE FOR
          SRI A.MADHUSUDAN RAO, ADVOCATE)

     THIS M.F.A. IS FILED UNDER SECTION 28(1) OF THE
HINDU MARRIAGE ACT, 1955 AGAINST THE JUDGMENT AND
DECREE DATED 25.03.2017 PASSED IN M.C.NO.14/2012 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, GUBBI,
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DISMISSING THE PETITION FILED UNDER SECTION 13(1),
(ii)(iii) OF THE HINDU MARRIAGE ACT.

     THIS M.F.A. COMING ON FOR HEARING THIS DAY,
B.VEERAPPA J., DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is filed by the appellant-husband against

the impugned judgment and decree dated 25.03.2017

passed in M.C.No.14/2012 on the file of the Principal Senior

Civil Judge at Gubbi dismissing the petition filed under the

provisions of Section 13(1)(ii)(iii) of the Hindu Marriage Act,

2. The parties are referred to as per their rankings

before the Trial Court for the purpose of clarity and

convenience of the Court.

3. It is the case of the petitioner-Husband that the

respondent is the legally wedded wife of the petitioner. The

marriage of the petitioner was solemnized with the

respondent on 17.01.2005 at Sri Siddarameshwara

Samudaya Bhavan of Herur Village as per their customs and

out of their wedlock, one male child by name Gagan was

born. After the marriage, the petitioner and the respondent

lived together only for two days and the respondent during

her stay with the petitioner, she began to ill-treat the

petitioner mentally and also giving pinpricks to the

petitioner and his parents. The respondent used to make

quarrel with the petitioner for petty reasons and also used

to behave arrogantly towards the petitioner and she has

voluntarily left the house of petitioner without informing the

petitioner and his parents. The petitioner has tolerated the

act of the respondent thinking that one or the other day she

will mend her attitude in future and she will come back.

After few days, petitioner and his parents have gone to the

house of the respondent and requested the respondent to

join the company of the petitioner for continuing marital

obligations, but the respondent and her parents have

refused the same. The petitioner and his parents have

approached the elders of the community and conveyed

panchayath in the presence of petitioner and parents of the

respondent and also the parents of the petitioner. At that

time, the elders have advised the respondent and her

parents to reunite the petitioner and respondent and to

continue marital obligations between them but, the parents

of the respondent refused for the same. Thereafter, the

petitioner had issued legal notice to the respondent on

06.06.2005 calling upon the respondent to join and continue

the marital obligations. The notice was served on the

respondent, however, the respondent has not joined the

petitioner.

4. It is the further case of the petitioner that, he

has filed the petition in M.C.No.51/2006 against the

respondent for restitution of conjugal rights and the same

came to be dismissed as not pressed on 01.09.2007. It is

further contended that though the panchayathdars and the

parents of the petitioner requested the respondent to come

and join the petitioner, she did not join. During the stay,

she has not co-operated with the petitioner regarding sexual

affairs and she never behaved like a good wife to the

petitioner. It is further contended that the respondent is

well-off and her father is an employee of K.E.B. who was

earning Rs.40,000/- per month and the respondent family

owns 15 acres of garden land at Gubbi Taluk and also owns

a Tractor, Swift Dzire car, 2 motorbikes, 2 house, many

sites at Gubbi and other places.

5. The petitioner further contends that the

respondent is an LIC agent and she is getting an income of

Rs.10,000/- per month. The respondent has deserted the

petitioner since from more than 4½ years. The respondent

is interested and moving in closeness with Veeranna. The

petitioner came to know that the respondent has done

family planning without the knowledge of the petitioner.

The respondent never impressed the petitioner as a loving

wife to him during her stay in his house.

6. After service of notice, the respondent appeared

and filed the objection statement denying all the allegations

made in the petition, except the relationship between the

parties as husband and wife. It is the case of the

respondent that, at the time of marriage, her parents had

given 10 grams ring, 50 grams golden chain, 30 grams

necklace and Vale set and 10 grams hangings to the

respondent and 25 grams chain, 40 grams bracelet, 10

grams ring, golden ornaments and Rs.10,000/- to purchase

cloths and Rs.50,000/- towards dowry, besides cooking

articles and also spent Rs.4,00,000/- for the marriage. It is

her further case that they lived at Gubbi in the house of

father of the respondent and from Gubbi, the petitioner was

travelling to Nittur for his Lecturer work. Thereafter, the

petitioner subjected the respondent to cruelty and

demanded her to bring dowry from her parents and tortured

mentally and physically. Hence, in order to avoid his brutal

cruelty, the parents of the respondent gave Rs.35,000/-

cash to the petitioner. After six months, the petitioner

deserted the respondent and settled at Nittur along with his

maternal father-in-law and mother-in-law and in the house

of Jayamma. After three months, the parents of the

respondent questioned the illegal acts of the petitioner and

conveyed panchayath and after the advice, the petitioner

again spent his life with his wife at Gubbi and after five

months, again the petitioner subjected the respondent to

cruelty and harassed the respondent mentally and physically

and again demanded to bring dowry and assaulted and

abused the respondent and thrown out of her own house

stating that she has to return to the house subject to

bringing of dowry.

7. It is the further case of the respondent that on

27.04.2012 at about 10.30 p.m., the petitioner assaulted

seriously and tried to take away her life by making attempts

to squeeze her neck forcibly and also crushed her head to

the wall attempting to take away her life. At that time, the

neighbourers came and rescued the life of the respondent

and her child and the respondent took her child at 11.00

p.m., came to Gubbi and explained the incident to her

parents and lodged a complaint to the police against the

petitioner. She further contends that the petitioner also

threatened the respondent at Nittur that if she intimates the

alleged incident to the police, he will kill the respondent and

her child. It is her further contention that the petitioner

filed M.C. petition when she was pregnant. The intention of

the petitioner is to take second marriage and to swallow

dowry given by them, suppressing the earlier marriage. The

petitioner is not a law abiding citizen and sought for

dismissal of the petition.

8. In order to substantiate the case of the

petitioner, the petitioner examined himself as P.W.1 and got

marked the documents as Exs.P1 to P22. On the other

hand, the respondent examined herself as R.W.1 and a

witness as R.W.2 and did not produce any documents.

9. Based on the pleadings of the parties, the Trial

Court framed the following issues for consideration:

"1) Whether the petitioner is entitled for the relief sought for in the petition?

2) What order?"

10. Considering both oral and documentary evidence

placed on record, the Trial Court recording a finding that the

petitioner-husband has not proved the desertion as well as

adultery and held that the petitioner is not entitled for the

relief of divorce as sought in the petition. Accordingly, the

petition filed for divorce was dismissed.

11. We have heard the learned counsel for the

parties to the lis.

12. Sri R.V. Shivananda Reddy, learned counsel for

the appellant-Husband contends that the impugned

judgment and decree dismissing the petition filed by the

appellant is erroneous and contrary to the material available

on record. He would further contend that the respondent

had deserted the appellant for more than 4½ years and did

not have any interest to continue with the appellant's

matrimony. Without giving credence to this aspect, the Trial

Court proceeded to dismiss the petition. He would further

contend that the appellant had initially filed M.C.No.51/2006

for restitution of conjugal rights. However, with the fond

hope that she would return, the appellant withdrew the

petition, but the respondent did not return to the appellant's

matrimony. The Trial Court without appreciating these

aspects, erroneously dismissed the petition.

13. It is the contention of the learned counsel for

the appellant that, after undergoing severe harassment,

trauma, pinpricks and unbearable torture at the hands of

the respondent, has lost all hopes of leading a normal

marital life with the respondent. Even though there is not

even an iota of error on his part, the respondent has willfully

deserted him and filed false complaint against him only to

cause hardship and humiliate him and his family members.

The Trial Court without giving credence to these aspects,

erroneously dismissed the petition. Therefore, learned

counsel for the appellant sought to allow the appeal.

14. Per contra, Smt. Anusha M., learned counsel for

Sri A. Madhusudan Rao, learned counsel for the respondent-

wife sought to justify the impugned judgment and decree

passed by the Trial Court dismissing the petition filed by the

appellant-Husband and contended that, though the

appellant has taken a specific ground that respondent had

deserted him for more than 4½ years since from the date of

filing the petition and the respondent is interested in moving

closeness with Veeranna and tortured the appellant, the said

aspects have not been proved. The Trial Court, considering

both oral and documentary evidence placed on record,

rightly dismissed the petition filed by the appellant for

divorce. The scope of the present appeal is very limited and

he is not entitled for the relief as sought in the appeal and

sought to dismiss the same.

15. Considering the rival contentions urged by

learned counsel for both parties and on perusal of the

material available on record, the points that would arise for

consideration of this Court are:

(i) Whether the Trial Court is justified in dismissing the petition filed by the petitioner-Husband for divorce?

(ii) Whether the appellant has made out a case to interfere with the impugned judgment and decree passed by the Trial Court in the facts and circumstances of the present case?

Point Nos.(i) & (ii)

16. Admittedly, the relationship between the parties

as husband and wife is not in dispute. The fact that their

marriage was solemnized on 17.01.2005 and out of the

wedlock, one male child by name Gagan was born is also

not in dispute. It is the specific case of the petitioner-

Husband that the respondent-wife herself voluntarily left the

house of the petitioner without informing his parents.

Inspite of the efforts made to take her back, she refused to

came back to the matrimonial home and deserted the

petitioner. However, it is the specific case of the

respondent-Wife that, after the child was born, the

petitioner demanded more dowry and tortured her mentally

and physically. It is contended that the petitioner himself

deserted her and made allegation against her, which has not

been proved.

17. The petitioner, who examined himself as P.W.1

has reiterated the averments made in the petition filed for

divorce. In the cross-examination, he has admitted that, he

has filed an application for restitution of conjugal rights at

Turuvekere and that time, his wife was pregnant. He also

admits that, since he had assaulted his wife and made

grievous injuries, she had filed complaint before the police

against him. However, he denied all the other allegations

made. He further denied the suggestion that in the petition,

he has stated that his wife was with him for only 2 days and

also denied that he was along with his wife and child for five

years and he has not given any physical or mental

harassment to the wife.

18. In order to disprove the case, the respondent,

who examined herself as R.W.1 reiterated the averments

made in the petition and contended that it is the petitioner,

who deserted her and nothing has been elicited to disprove

the contents of the affidavit filed by her in the examination-

in-chief. She denied the suggestion that the petitioner was

taking care of her and the child and she also denied the

suggestion that parents of the petitioner was age old and

she was not taking care of them.

19. It is an undisputed fact that the respondent-wife

was pregnant at the time when the petitioner had filed the

petition in M.C.No.51/2016 under Section 9 of the Hindu

Marriage Act for restitution of conjugal rights before the

Trial Court at Turuvekere. It is also not in dispute that the

said petition came to be dismissed as not pressed vide

memo dated 21.08.2007. The petitioner has admitted in the

cross-examination that, in the said memo, he has not

mentioned that he has compromised the case with his wife

and further admits that after the memo, both of them were

leading their marital life as husband and wife for two

months and thereafter, he had sent the respondent to her

parents house. However, admits that he has given the legal

notice to the respondent on 06.06.2005 and denied the

suggestion that he had sent his wife to her parents house

demanding Rs.50,000/- from her parents to purchase the

household articles. Further, he also admits that, when he

filed the M.C. petition before the Turuvekere Court, at that

time, his wife was carrying and his wife has filed criminal

case against him and he has challenged the order passed by

this Court, including other two accused before the District

Court, Tumakuru. He further denied that he and his wife

were living together as husband and wife for five years and

though he has given harassment to his wife, his wife

tolerated everything and lead her marital life with him.

20. The Trial Court, on perusal of the entire material

on record, recording a finding that, on perusal of the oral

and documentary evidence of the parties, it reveals that

both the parties have admitted their relationship with each

other and there is no dispute with regard to their separate

residence since from 2012 and they have not disputed or

denied regarding their giving birth to male child by the

respondent due to the wedlock and both the parties have

not denied the filing of M.C.No.51/2006 for restitution of

conjugal rights by the petitioner against the respondent and

they have also not denied the withdrawal of the said petition

by the petitioner by filing a not pressed memo. The Trial

Court has also observed that the petitioner has made

allegation in Para No.10 that the respondent has deserted

the petitioner since from more than 4½ years and the

respondent is interested and moving in closeness with

Veeranna. But to prove this aspect, the petitioner has not

examined any competent witness before the Court and the

petitioner has not produced any document to prove this

aspect i.e., adultery which has to be proved very carefully

and seriously.

21. The Trial Court further recorded a finding that

the P.W.1 in the cross-examination has stated that he is not

aware about as to in which hospital respondent gave birth to

male child itself is sufficient that the petitioner is not at all

interested in taking back the respondent, but merely to

avoid the complications in future, it appears that he has filed

the M.C. petition for conjugal rights before the Turuvekere

Court. No doubt, the petitioner has been paying

maintenance amount to the respondent before the Court

but, that does not amount that the petitioner is entitled for

the relief of divorce sought in the petition. The Trial Court,

considering both oral and documentary evidence placed on

record has come to the conclusion that no grounds are

made out by the petitioner for decree of divorce sought in

the petition.

22. Hence, for the reasons stated above, we answer

point Nos.(i) and (ii) raised in the present appeal as

'affirmative' holding that the Trial Court is justified in

dismissing the petition filed by the petitioner for decree of

divorce and the petitioner has not made out a case to

interfere with the impugned judgment and decree passed by

the Trial Court.

23. Accordingly, we pass the following:

ORDER

(i) The miscellaneous first appeal filed by the appellant-Husband is dismissed.

(ii) The impugned judgment and decree dated 25.03.2017 passed in M.C.No.14/2012 on the file of the Principal Senior Civil Judge at Gubbi is hereby confirmed.

In view of dismissal of the appeal, I.A.Nos.1 to 4 of 2018 do not survive for consideration.

Sd/-

JUDGE

Sd/-

JUDGE ST