Sri Sadashiva Reddy vs Smt T Manjula
2021 Latest Caselaw 6003 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH 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.3999/2018 (FC)

BETWEEN:

SRI SADASHIVA REDDY,
S/O ANKA REDDY,
AGED ABOUT 59 YEARS,
RESIDING AT NO. 140,
MYLSANDRA VILLAGE,
BEGUR POST, BENGALURU SOUTH TALUK,
BENGALURU - 560068.
PRESENTLY R/A BUILDING,
NEXT TO NANJUNDESHWARA NILAYA,
SURVEY NO 130, MYLSANDRA DINNE,
SRI RENUKAMBA YELLAMMA LAYOUT,
BEGUR POST, BENGALURU - 560068.
                                              ...APPELLANT
(BY SRI. K.GOVINDA RAJ, ADVOCATE FOR NEHRU ASSOCIATES)

AND:

SMT. T. MANJULA,
W/O SADASHIVA REDDY,
AGED ABOUT 46 YEARS,
RESIDING AT NO 140,
                                  2




MYLSANDRA VILLAGE,
BEGUR POST, BENGALURU SOUTH TALUK,
BENGALURU - 560068
                                                     ...RESPONDENT
(BY SMT. NAGARATHNAMMA K.N., ADVOCATE)

                           ***
      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF THE FAMILY COURTS ACT, 1984, AGAINST THE
JUDGMENT AND DECREE DATED 19/03/2018 PASSED IN M.C.
NO.2006/2015, ON THE FILE OF THE VI ADDITIONAL PRINCIPAL
JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE PETITION
FILED UNDER SECTION 13(1)(ia) OF THE HINDU MARRIAGE ACT,
1955.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:

                         JUDGMENT

The husband filed the present Miscellaneous First Appeal

against the judgment and decree dated 19.03.2018 made in M.C.

No.2006/2015 on the file of the VI Additional Principal Judge,

Family Court, Bengaluru, dismissing the petition filed by him under

the provisions of Section 13(1)(ia) of the Hindu Marriage Act, 1955.

2. It is the case of the appellant/husband that his first wife -

Manjulamma died and he married the respondent on 27.05.2001 at

Kaiwara. Appellant has two daughters from his first wife, both are

married and living with their respective families. The respondent

was always pestering the appellant to transfer his properties to her

name and in this regard, she had abused and humiliated the

appellant. Respondent had also lodged a complaint against

appellant, his daughters and their husbands, falsely alleging

harassment and ill treatment and also had filed a petition against

the appellant under the provisions of Protection of Women From

Domestic Violence Act, 2005, and thereby caused mental cruelty to

the appellant. Hence, appellant filed a petition seeking divorce

from the respondent on the grounds of cruelty.

3. The respondent/wife filed objections admitting the

relationship between the parties and the litigation between them.

However, she denied the other averments in the petition. She

contended that the petitioner willfully deserted her without there

being any fault on her part, due to which she is struggling for

maintenance and subsistence. The respondent and her minor child

want the company of the petitioner, without which they cannot live.

She further contended that the appellant has filed the petition for

divorce on false and frivolous grounds and therefore sought to

reject the petition.

4. Based on the aforesaid pleadings, the Family Court framed

the following issue:

"Whether the petitioner proves that he was subjected to cruelty at the hands of the respondent?"

5. In order to prove his case, appellant got examined himself as

P.W.1 and got marked the documents Exs.P.1 to P.5. The

respondent was examined as R.W.1 and was partly cross-examined.

No documents were marked on behalf of the respondent.

6. After considering both oral and documentary evidence on

record, the Family Court recorded the finding that the appellant has

not proved that he was subjected to cruelty at the hands of

respondent and therefore, dismissed the petition. Hence, the

present Miscellaneous First Appeal is filed by the husband.

7. We have heard the learned counsel for the parties to the lis.

8. Sri K.Govinda Raj, learned counsel for the appellant

contended with vehemence that the impugned judgment and

decree passed by the Family Court dismissing the petition filed

under Section 13(1)(ia) of the Hindu Marriage Act is erroneous and

contrary to the material on record. Learned counsel further

contended that the Family Court, has not considered the evidence

of both the parties and thereby dismissed the petition. The Family

Court failed to notice that the respondent had lodged a police

complaint against the appellant and his daughters on 20.05.2014,

alleging that they had abused, assaulted, harassed and ill-treated

her. The police registered a case against the appellant in Crime

No.176/2014 for the offences punishable under Sections 498A, 504,

506 r/w 34 of the Indian penal Code.

9. Learned counsel further contended that the respondent was

spreading rumors that she was pregnant though, from the year

2014 the respondent was staying separately and there was no

conjugal relationship between them for more than ten years. The

respondent, thereafter had filed an application against the appellant

under Section 12 of the Protection of Women From Domestic

Violence Act, 2005, in Crl.Misc.No.86/2014. Even at the time of

amendment for including other properties of the appellant, on

12.09.2014, the respondent had not stated that she is pregnant/

having a child. Even in the examination-in-chief she had not

whispered anything about her pregnancy. The II MMTC, Bengaluru,

by the Order dated 27.04.2017 had directed the appellant to pay

maintenance of `10,000/- per month to the respondent to meet the

expenses including food, rent, clothes, shelter, medication and

other basic necessities. The respondent has unnecessarily harassed

the appellant and his married daughters. Therefore the conduct of

the respondent amounts to cruelty which aspect has not been

considered by the Family court. Therefore, sought to allow the

Appeal.

10. Per contra, Smt.Nagarathnamma, learned counsel for the

respondent sought to justify the impugned judgment and decree

passed by the Family Court.

11. In view of the aforesaid rival contentions urged by learned

counsel for the parties, the only point that arises for our

consideration is:

"Whether the appellant/husband has made out a case to interfere with the impugned judgment and decree

passed by the Family court, in facts and circumstances of the present case?"

12. We have given our anxious consideration to the arguments

advanced by the learned counsel for the parties and perused the

entire material on record, carefully.

13. It is undisputed fact that after the death of first wife of the

appellant, he married the respondent on 27.05.2001 and they lived

together for 14 years. According to the appellant, respondent

demanded transfer of property into her name. Though appellant

tried to convince the respondent stating that if the property is

transferred to her name, some unscrupulous elements will knock it

off, the respondent did not listen and started to behave very rude

and started to humiliate him. The evidence on record clearly

depicts that in the cross-examination, P.W.1/appellant herein has

stated that he had not lodged any complaint regarding threat given

by the respondent and perusal of the allegations made, it is seen

that they are vague and are general in nature. Not even a single

incident has been narrated by the appellant which could be termed

as an act of cruelty. Though it is averred that respondent had

abused, humiliated and pressurized the appellant to transfer the

property into her name, no material has been produced to

substantiate the same.

14. Learned counsel for the appellant submits that the complaint

was lodged and case was registered against the appellant and his

daughters and it amounts to cruelty as contemplated under Section

13(1)(ia) of the Hindu Marriage Act, 1955. It is also not in dispute

that the Crime No.176/2014 registered against the appellant and

his daughters is still pending consideration in C.C.No.6357/2014.

The respondent had also filed an application against the appellant

under Section 12 of the Protection of Women From Domestic

Violence Act, 2005 in Crl. Misc.No.86/2014 in which the appellant

was directed to pay maintenance of `10,000/- per month to the

respondent. The same cannot be considered as a ground to say

that it amounts to cruelty to file an petition under Section 13(1)(ia)

of the Hindu Marriage Act, by the husband. Mere filing of a criminal

case and obtaining interim order under the provisions of Protection

of Women From Domestic Violence Act, 2005, is not a ground to

allege cruelty, without there being any cogent evidence produced

by the appellant.

15. Though the appellant has contended that the respondent

pressurized him to transfer the property and filed a suit for partition

which amounts to cruelty, it is to be noted that, the respondent has

taken steps to protect her rights in respect of immovable property,

as she lived in the matrimonial home with the appellant for more

than 14 years. It is the specific case of the respondent/wife that

the appellant/husband started neglecting her and her minor son.

Even the appellant has gone to the extent of disputing the paternity

the child born to respondent, even though they were residing

together for 14 years. The appellant is having two daughters from

his first wife. He married the respondent after the death of his first

wife and is doubting the paternity of his son born to the respondent

and filed petition under Section 13(1)(ia) of the Hindu Marriage Act,

after 14 years of marriage. Absolutely there is no material to prove

that the conduct of the respondent amounts to cruelty to attract the

provisions of Section 13(1)(ia) of the Hindu Marriage Act, 1955.

16. It is also very strange that the appellant stated that he and

the respondent were living separately for more than four years and

there was no physical relationship between them as on the date of

filing of the petition for divorce before the Family court. If that is

so, he should have filed petition under Section 13(1)(ib) of the

Hindu Marriage Act, 1955.

17. The Family court, considering the entire material on record,

recorded a finding that the appellant has not made out a case of

cruelty by the respondent/wife and accordingly, dismissed the

petition.

18. After re-assessing the entire material on record, in the facts

and circumstances of the present case, the appellant has not made

out any ground to interfere with the impugned judgment and

decree passed by the Family court. Thereby, the point raised for

consideration in the present Appeal is answered in the negative

holding that the appellant has not made out any ground to interfere

with the impugned judgment and decree.

19. In view of the above, we pass the following:

ORDER

(i) The Miscellaneous First Appeal is dismissed as devoid of merits.

(ii) The judgment and decree dated 19.03.2018 made in M.C. No.2006/2015 on the file of the VI Additional Principal Judge, Family Court, Bengaluru, dismissing the petition filed by him under the provisions of Section 13(1)(ia) of the Hindu Marriage Act, 1955, is hereby confirmed.

Sd/-

JUDGE

Sd/-

JUDGE

kcm