Manohar S/O Mallappa Kinni vs Roopadevi W/O Manohar Kinni
2021 Latest Caselaw 2724 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 9TH DAY OF JULY 2021

                          PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                            AND
         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

MISCELLANEOUS FIRST APPEAL NO. 201692/2015 (FC)

Between:

Manohar S/o Mallappa Kinni
Age: 44 years, Occ: Meter Reader
GESCOM, R/o Shanti Nagar
Kalaburgi
                                                 ... Appellant

(By Sri Shivanand Patil, Advocate)

And:

Roopadevi W/o Manohar Kinni
Age: 35 years, Occ: Nurse
R/o C/o Basawaraj
DAR Police block No.83,
DAR Police Colony
Kalaburgi-585102
                                               ... Respondent


      This Miscellaneous First Appeal is filed under 19 (1) of
the Family Court Act, praying to set aside the Judgment and
Decree dated 30.04.2015 in M.C. No. 233/2013 on the file of
the Dist. Judge Family Court Kalaburagi, and allow the
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petition for grant of decree of divorce dissolving the marriage
of petitioner and the respondent.

      This appeal having been heard and reserved on
06.07.2021 coming on for pronouncement of judgment this
day, S.G.Pandit, J., delivered the following:

                           JUDGMENT

This appeal is filed under Section 19(1) of the

Family Courts Act, 1955, by the husband aggrieved by

the rejection of the petition filed under Section 13(1) (ia)

and (ib) of the Hindu Marriage Act, against the

judgment dated 30.04.2015 passed in M.C.233/2013 on

the file of the District Judge, Family Court at

Kalaburagi.

2. Heard Sri Shivanand Patil learned counsel for the

appellant and perused the records. The respondent

even though is served has remained absent.

3. Appellant and respondent are husband and wife,

their marriage having been solemnized on 19.04.2000.

They lived happily for a period of one year. On

20.02.2002 from out of their wedlock a female child was

born and named as Bhumika @ Nandini. It is stated

that the respondent at the instigation of her parents

started giving trouble to the appellant. It is alleged that

respondent had not allowed the appellant to see the

child. The respondent along with her father lodged a

false complaint before the Mahila Police Station,

Gulbarga. After trial the appellant was acquitted. The

respondent had voluntarily left the company of the

appellant and since August 2003, she is living

separately. The respondent is working as Nurse in

Chirayu Hospital. In spite of she being employed, the

respondent filed maintenance petition. It is the case of

the appellant that filing of false complaint would

amount to cruelty and as the respondent has

voluntarily left the matrimonial home, it would amount

to desertion. Further it is stated that marriage has

irretrievably broken down.

4. The respondent appeared through her counsel and

filed written statement denying the petition averments.

On the other hand, the respondent alleged that

appellant and his parents started giving trouble for

giving birth to a girl child and demanded more money

and gold as additional dowry. Further it is alleged that

respondent was meted with physical and mental

torture. Further respondent denied the allegation of

cruelty and desertion by stating that she is ready and

willing to live with the appellant husband. Respondent

also alleged that appellant has taken second marriage

and further alleged harassment by appellant-husband,

with the above she prayed for dismissal of the petition.

5. Before the Family Court to prove his case,

appellant-husband examined himself as PW.1 and also

examined his relative one Sri Vittal as PW.2, Exs.P1 to

P4 were marked. Respondent wife examined herself as

DW.1 and no documents was marked. The Family

Court on scrutiny of material on record dismissed the

appellant's petition on the ground that appellant has

not established his case by producing cogent evidence.

Aggrieved by the same, appellant-husband is before this

Court in this appeal.

6. Sri Shivanand Patil, learned counsel submits that

marriage of appellant and respondent, which had taken

place on 19.04.2000 has irretrievably broken down.

The respondent-wife is residing separately since 2003

and she has not come back to the matrimonial home.

Respondent-wife has left the matrimonial home

voluntarily without any reason for more than 18 years,

which would amount to desertion. Further he submits

that respondent along with her father filed a false

criminal case against the appellant, wherein the

appellant was subsequently acquitted. He contends

that filing of false criminal case would amount to

cruelty. Hence he submits that Family Court failed to

properly appreciate the material on record and prays for

allowing the appeal.

7. On hearing the learned counsel for the appellant

and on perusal of the lower court records the only point

that falls for consideration is as to 'Whether the Family

Court is justified in dismissing the petition filed under

Section 13 (1)(ia) and (ib) of Hindu Marriage Act?'. The

answer to the above point would be in the affirmative for

the following reasons :-

From the facts narrated above, it is clear that

marriage of appellant and respondent was solemnized

on 19.04.2000. From their wedlock a female child was

born on 20.02.2002 and named Bhumika @ Nandini. It

is stated that respondent had filed false criminal case

against the appellant and filing of false criminal case

would amount to cruelty. On perusal of the material on

record, we are unable to accept the contention of the

appellant. A criminal case in C.C.No.349/2004 was

registered against the appellant under Sections 498(A),

504 and 506 of IPC wherein the appellant was

acquitted. The other case filed was for maintenance

under Section 125 of Cr.P.C. Filing series of false

criminal cases repeatedly, in the facts and

circumstances of each case, may amount to cruelty. In

the instant case, no material much less cogent material

to prove the allegation of cruelty is placed on record.

The onus or burden to prove cruelty lies on the person

alleging cruelty. No decree of divorce could be granted

unless person seeking divorce proves cruelty on the

basis of pleadings and evidence.

8. Learned counsel for the appellant contends that

since 2003 the respondent-wife is living separately,

having left the matrimonial home voluntarily, which

would be sufficient to grant divorce on the ground of

desertion. In support of his case, appellant has

examined himself as PW.1 and examined his relative

one Sri Vittal as PW.2. To substantiate his contention

of desertion there is no cogent material. Mere allegation

of staying away would not amount to desertion.

Intention to live separately would not be the criteria to

decide desertion. If a person lives separately to break

the marriage, then it might amount to desertion

depending on the facts of the case. In the instant case,

the evidence of respondent, which is on record indicates

that respondent-wife is ready and willing to join the

appellant-husband and to lead marital life. In that

circumstances, we are unable to accept the contention

of desertion by respondent-wife.

The appeal is devoid of merit and accordingly

stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE NG*