Karnataka High Court

Sri Gangaiah vs Smt Jayalakshmamma on 10 December, 2021

Bench: B.Veerappa, K S Hemalekha

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF DECEMBER, 2021

                         PRESENT

            THE HON'BLE MR. JUSTICE B.VEERAPPA

                           AND

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

       MISCELLANEOUS FIRST APPEAL No. 4165/2018 (FC)


BETWEEN:

SRI GANGAIAH
S/O SRI MARIYAPPA
AGED ABOUT 58 YEARS
R/AT NO.67/5, RAILWAY QUARTERS
DIESEL LOKO SHED
K.R PURAM, BENGALURU - 560036
                                             ...APPELLANT

(BY SRI G.B NANDISH GOWDA, ADVOCATE FOR
SRI R.B SADASHIVAPPA, ADVOCATE)

AND:

SMT. JAYALAKSHMAMMA
W/O SRI GANGAIAH
AGED ABOUT 45 YEARS
R/AT NO.192, 5TH MAIN
1ST STAGE, MANJUNATHA NAGARA
BENGALURU - 560010.
                                            ...RESPONDENT
(BY SRI B.K CHANDRASHEKAR, ADVOCATE)
                        ****

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF THE FAMILY COURTS ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 13.03.2018
                           -2-

PASSED ON MC.NO.3052/2014 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE
PETITION FILED UNDER SECTION 9 OF HINDU MARRIAGE ACT.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, K.S.HEMALEKHA J., PASSED THE
FOLLOWING:


                      JUDGMENT

This appeal is filed by the appellant/husband against

the impugned judgment and decree dated 13/03/2018 in

M.C.No.3052/2014 on the file of the Principal Judge,

Family Court, Bengaluru, dismissing the petition filed by

the appellant/husband, under the provisions of Section 9

of the Hindu Marriage Act, 1955 (hereinafter referred to as

"the Act" for short) for restitution of conjugal rights.

2. The appellant/husband (hereinafter referred to

as "husband" and respondent/wife would be referred to as

"wife" for the sake of brevity).

3. It is the case of the husband that their

marriage was solemnized on 13/05/2007 at Bengaluru, as

per the Hindu rites and customs. It is contended that out

of the said wedlock, a male child by name Master Kiran

Kumar was born, who was in the care and custody of the

husband till May 2014. Thereafter, the wife took the child

forcibly in the last week of May 2014 and now the child is

in the custody of the wife. It is further contended that it is

the second marriage for both and that without sufficient

cause, the wife has left the matrimonial home on

14/05/2013 and filed a criminal case in Cr.No.244/2013

for the offences punishable under Sections 307, 498A and

506 of the Indian Penal Code, 1860 ("IPC") and after

investigation, the police have filed 'B' report.

4. It is also contended that Crl.Misc. No.100/2014

is filed under the Protection of Women from Domestic

Violence Act, 2005 against the husband and it is pending

consideration. It is the contention of the husband that

though he was providing good education to the child and

was taking care of the wife, she took away the child

without any reason deserting the husband and now that he

is suffering from diabetes and blood pressure, he needs his

wife and child back. Hence, he prayed for allowing the

appeal filed under Section 9 of the Act.

5. The wife has filed her objections denying the

allegations made by the husband. She specifically

contended that the husband was demanding dowry and

hence, she filed a complaint before the police and the

complaint came to be registered and the 'B' report filed by

the police is not correct and that is pending adjudication. It

is the further case of the wife that criminal cases have

been filed against the husband by her on the ground of

dowry harassment and she is now under the mercy of her

parents. She also contended that she was forcibly thrown

out of the matrimonial home and hence, she no longer

would be able to live with the husband and lead a happy

marital life and prays for dismissal of appeal filed by

appellant seeking restitution of conjugal rights.

6. In order to substantiate the case of the

husband, he examined himself as PW.1 and got marked

four documents at Exs.P-1 to P-4. On the other hand, the

wife examined herself as RW.1 and one Ramesh as RW.2

and got marked 10 documents at Ex.R-1 to R-10.

7. The trial Court, based on the pleadings on both

the parties, framed the following issues for consideration:

1. Whether the petitioner husband proves that respondent withdrawn from the society of petitioner without any reasonable excuse or cause?.

2. Whether the petitioner is entitled for the relief of restitution of conjugal rights?

3. What order?

Considering both the oral and documentary evidence

placed on record, the trial Court recorded a finding that the

husband has not proved that the wife has withdrawn from

the company of the husband without any reasonable cause

or excuse and held that the husband is not entitled for the

relief of restitution of conjugal rights and dismissed the

petition.

8. We have heard learned counsel for the parties.

9. Sri G.B.NandishGowda, learned counsel for the

husband appearing on behalf of learned counsel, Sri

R.B.Sadashivappa would contend that the impugned

judgment and decree dismissing the petition filed by the

husband is erroneous and contrary to the material

available on record. It is further contended that the wife

has left the company of the husband without reasonable

cause and has deserted him and that the husband has a

right to require his wife to live with him and the Court will

not absolve the wife from discharging the duty as a wife.

It is also contended that the wife making allegations on the

husband that he has meted out cruelty to her is without

any evidence and material on record and it is sought to

justify the reason that without any reasonable cause or

excuse the wife has withdrawn from the society of the

husband and thus, sought to allow the appeal.

10. Per contra, learned counsel for the wife, Sri

B.K.Chandrashekar would substantiate and sought to

justify the judgment and decree passed by the trial Court

dismissing the petition filed by the husband and contended

that it is due to the act of the husband, she was forced to

leave the matrimonial home and reside separately and also

file criminal cases against the husband for dowry

harassment and on other grounds. It is also contended

that the husband would consume alcohol and used to come

late at night and abuse the wife in filthy language and

assault her mercilessly. This was the reason for her to

leave the matrimonial home. Thus, he contended that she

no longer would be able to live with the husband and

hence, sought for dismissal of the appeal.

11. Considering the rival contentions urged by the

learned counsel for both the parties and on perusal of the

material available on record, the following points would

arise for consideration of this Court:

(i) Whether the trial Court is justified in dismissing the petition filed by the husband under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights?

(ii) Whether the husband 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 as contemplated under Section 9 of the said Act?

12. The relationship between the parties and that

it is the second marriage for both the parties and also, that

there is one male child born in their wedlock by name

Master Kiran Kumar is not in dispute. It is the specific

case of the husband that the wife has left the matrimonial

home without any reasonable cause and all his efforts to

take her back went in vain as she refused to come back to

the matrimonial home and as such, she deserted the

husband. Having no other alternative and he wanting his

wife and child back, the husband filed the petition for

restitution of conjugal rights. The husband, who was

examined as PW.1, in his evidence, denied the suggestion

that he had quarreled with the wife and had driven her out

of the matrimonial home during the night. It is admitted

by him that there are criminal cases filed by the wife, but

denied the contention that the criminal cases have been

filed for intolerable abuse and assault made by the

husband. In other words, he tried to justify his action

saying that he has not caused any harassment to the wife

and the wife left the matrimonial home without any

reasonable cause.

13. It is relevant to extract Section 9 of the said

Act, which reads as under:

"9. Restitution of conjugal right.-- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly."

A plain reading of Section 9 makes it clear that if the

wife has a reasonable excuse for withdrawal from the

society, then the husband cannot insist for restitution of

conjugal rights. It is also settled position of law that plea

of desertion by the wife cannot be treated to be raised by

the husband so as to permit him to take the advantage of

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his own wrong. Keeping this in mind, this Court, has

considered the evidence and the material on record as well

as on perused the original records. The undisputed facts

are that it is the second marriage for both the appellant

and respondent and the marriage was solemnized on

13/05/2007 at Bengaluru and out of the wedlock, they

have a male child Master Kiran Kumar. It is also not in

dispute that they lived together only till 14/05/2013 at

Bengaluru and thereafter, the wife has withdrawn from the

society of the husband. Now, the burden of proof is on the

wife to prove that she has withdrawn from the husband's

society due to reasonable excuse. To consider this aspect,

the evidence of PW.1, RW.1 and RW.2 needs to be looked

into.

14. In order to disprove the case of the husband,

the wife examined herself as RW.1. In her evidence, she

has categorically stated that due to the harassment,

torture and humiliation meted out by the husband, she

was forced to leave the matrimonial home on 14/05/2013.

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In her evidence, she would contend that the husband used

to demand dowry and due to which she filed criminal cases

against the husband under Sections 498A and 506 of the

Dowry Prohibition Act, 1961. She also specifically stated

that she is not ready and willing to join her husband due

the harassment, torture and humiliation meted out by him.

15. PW.1, in examination-in-chief, has reiterated

the averments made in the petition itself. In his cross-

examination, he has denied the allegations of the wife that

he has demanded dowry and that he has caused

harassment and humiliation to her. He tries to put up a

case saying that he wants his wife and child back and

wants to live a happy married life. On the other hand, the

wife in her cross-examination at page No.12 at paragraph

Nos.6 and 7 which reads thus:

"6. Q: The petitioner even today ready to take you to the matrimonial home are you ready?

7. Witness answers that she is not ready to go with petitioner since he used to assault her and

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kicking out from the house by removing clothes in the mid night."

Wherein she categorically stated that she is not

ready and willing to lead marital life with the husband as

he has ill-treated her and always quarreled with her by

consuming alcohol and harassed her and he has forcibly

thrown her out of the matrimonial home in the midnight by

removing her entire clothes. She has specifically stated

that she has withdrawn from his company due to the

cruelty and harassment by the husband himself. She also

examined RW.2, who is her brother-in-law i.e., her sister's

husband, who categorically stated in his cross-examination

that he has seen the cruelty committed by the husband on

the wife.

16. To authenticate her evidence, the wife has also

produced documents to show that the husband was cruel

to his first wife also and as such, the first wife had filed a

complaint and charge sheet was also issued and the same

is pending consideration. Ex.R-8 is the complaint filed by

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the first wife. Ex.R-9 is the FIR registered in K.R.Puram

Police Station through the first wife. Ex.R-10 is the charge

sheet filed against the husband. However, the case came

to be closed by way of settlement. On perusal of the

documents, it would clearly show that the husband is in

the habit of assaulting his wife and committing cruelty on

the wife. It is also not in dispute that the wife has filed a

complaint, which is numbered as Cr.No.244/2013 under

the provisions of Sections 3 and 4 of Dowry Prohibition

Act, 1961 for the offences punishable under Sections 498A

and 506 of the IPC and also filed a criminal miscellaneous

case under Domestic Violence Act due to the torture and

harassment meted out by the husband.

17. Thus, filing of the criminal petition and also the

complaint under the Domestic Violence Act would clearly

goes to show that the wife has suffered ill-treatment and

harassment from the husband. The trial Court, on

assessing the evidence adduced by the parties and the

material on record, has dismissed the petition filed by the

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husband and held that the husband cannot take advantage

of his own wrong for getting the relief under Section

23(1)(a) of the Hindu Marriage Act and also rightly held

that the withdrawal by the wife from the society of the

husband is with reasonable cause and excuse.

18. As per the explanation of Section 9 of the said

Act, it is for the wife to prove that there has been

justification to withdraw from the company of the husband.

Admittedly, from the facts and circumstances of the case

and the evidence and material on record, it has been

clearly established that the wife has withdrawn from the

society of the husband due to the cruelty meted out by

him and the harassment that has been caused by the

husband. The wife has expressed her unwillingness to live

with the husband and thus, there being a reasonable cause

for the withdrawal from the society of the husband.

19. Thus, from the facts and circumstances, we

would hold that the wife left the matrimonial home having

reasonable cause due to the mental cruelty meted out by

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the husband. Hence, seeking restitution of conjugal rights

by the husband appears to be without any justifiable

ground. Ultimately, both the parties are residing away

from each other since 2013 that is for more than eight

years and that there is no settlement arrived at between

the parties to solve the problem. In view of the above, it

can be seen that the husband has no justification to seek

for restitution of conjugal rights for his own wrong and the

wife has withdrawn the company from the husband is due

to a reasonable cause.

20. For the reasons stated above, we answer point

Nos.1 and 2 in the present appeal in the affirmative

holding that the trial Court is justified in dismissing the

petition filed by the husband seeking restitution of

conjugal rights and the husband has not made out a case

for this Court to interfere with the judgment and decree

passed by the Family Court. In view of the above, we pass

the following:

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ORDER

(i) The miscellaneous first appeal filed by the

husband is dismissed.

(ii) The impugned judgment and decree dated

13/03/2018 in M.C.No.3052/2014 on the file of

the Principal Judge, Family Court, Begaluru, is

hereby confirmed.