Basawaraj S/O Mallappa Biradar, vs Smt.Sujata W/O Basavaraj Biradar
2021 Latest Caselaw 2734 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.201701/2014 (FC)

Between:

Basawaraj,
S/o.Mallappa Biradar,
Age: 39 years,
Occ: Nil,
R/o.C/o.Sri.Anil,
S/o.Narayan Jadhav Plot,
No.31, Ahmed Colony,
Near Ramanagar,
Bijapur.                                             ... Appellant

(By Sri.Shivanand Patil, Advocate)

And:

Smt.Sujata,
W/o.Basavaraj Biradar,
Age: 30 years,
Occ: Household,
R/o.C/o.M.S.Kerur Building,
Lasxmi Nagar, Ashram Road,
Bijapur-586 101.                                  ... Respondent

(Court notice served)

       This Miscellaneous First Appeal is filed under Section 19(1)
of Family Court Act against the Judgment and Decree
dt.07.10.2014 passed in M.C.No.71/2013 on the file of the Judge,
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Family Court, at Bijapur, wherein petition filed u/s.13(1)(1A) of
Hindu Marriage Act, 1955 was dismissed.

      This appeal having been heard and reserved for judgment
on 28.06.2021, coming on for pronouncement of judgment, this
day, M.G.S.Kamal, J., delivered the following:


                         JUDGMENT

This appeal under Section 19(1) of the Family

Courts Act filed by appellant-husband aggrieved by the

Judgment and Order dated 07.10.2014 passed in

M.C.No.71/2013 on the file of the Judge, Family Court,

Bijapur, dismissing his petition seeking dissolution of

marriage.

2. Brief facts of the case are that marriage of the

appellant with the respondent was solemnized on

28.06.2004 at KEB Mangal Karyalaya of Bijapur town

as per the Hindu rights and customs. After the

marriage, appellant and respondent lived as husband

and wife happily only for a period of six months. That

thereafter, the respondent was quarreling with the

appellant and his parents demanding a separate

accommodation and luxurious life. That the appellant

was unable to cater to the demands of the respondent-

wife. The appellant had no regular source of income.

That the respondent was abusing the appellant and his

parents and expressing her superiority complex and

abused them in the presence of the neighbours, friends

and relatives of the appellant. The respondent had

developed hatredness towards the appellant and his

parents. That the respondent being the only daughter

of her parents, she left the company of the appellant

during the year 2006 and went to her parental house

and filed a false complaint before the Police against the

appellant and his parents. That after the trial, the

appellant and his parents were acquitted. That there

was no justifiable reason for the respondent to have left

the company of the appellant. Consequently, the

appellant had filed a petition under Section 9 of the

Hindu Marriage Act, seeking relief of restitution of

conjugal rights in M.C.No.110/2011 which was allowed.

Despite the aforesaid order directing the respondent to

join the marital life with the appellant, the respondent

refused. Finding no other alternate, the appellant filed

the petition under Section 13(1)(ia)(iii)(a) of the Hindu

Marriage Act, 1955, seeking grant of decree of divorce.

3. On service of summons, the respondent

appeared and filed statement of objection, admitted the

relationship, denied all the averments and allegations in

the petition. It is the specific case of the respondent

that she had led marital life with the petitioner upto

2012 and that she is ready and willing to lead marital

life with the petitioner. That out of the marriage, male

child was born who is studying in 1st standard. That it

was the appellant who had deserted the respondent and

the son without providing for maintenance for their

livelihood. That the appellant at the instigation of his

parents and sister was torturing the respondent

physically and mentally. That the respondent tried her

level best to adjust and live with her parents and his

parents, but in vein. The petition for restitution of

conjugal rights was filed with an intention to create

grounds for the petitioner for divorce. It is her case that

she is ready and willing to join the appellant and lead

marital life for the sake of their son. Hence, sought for

dismissal of the petition.

4. Upon the pleadings, the Family Court framed

the following points for consideration and recorded the

evidence:

i) Whether the petitioner proves that the respondent has caused him cruelty both physically and mentally and thereby a decree of divorce be granted in favour of the petitioner as sought?

ii) Whether the petitioner proves that the respondent is staying away from him since more than one year even after the passing of the decree of the restitution of the conjugal rights against the respondent as alleged?

iii) Whether the petitioner proves that he is entitled for the relief of the decree of divorce against the respondent as claimed?

iv) What order?

5. The appellant examined himself as P.W.1 and

produced two documents-ExP1 and P2 while

respondent-wife examined herself as D.W.1 and did not

produce any document. The Family Court dismissed

the petition filed by the appellant negating all the

points. Being aggrieved by the aforesaid Judgment and

Order, the appellant is before this Court.

6. Heard the learned counsel for the appellant.

7. It is necessary at this juncture to mention that

the counsel who represented respondent was elevated

as Hon'ble Judge of this High Court. Consequently, this

Court issued notice to the respondent. The said notice

was served on the respondent through the office of

Principal District and Sessions Judge, Vijayapura.

Despite the service of notice, respondent has remained

unrepresented.

8. Perused the records.

9. The marriage is of the year 2004. According to

the appellant, the respondent has been living separately

from the year 2006. The appellant/husband has

reiterated the petition averments in his evidence. The

respondent-wife has deposed that the appellant and his

parents used to abuse, assault and ill-treat the

respondent both physically and mentally constraining

her to file complaint against the respondent and her

parents in C.C.No.377/2011 on the file of III Addl.

Senior Civil Judge and JMFC, Bijapur. The appellant

has been acquitted in the said case.

10. The Family Court referring to the said filing of

the complaint by the respondent, has opined that

"As on the date of filing of the said complaint, respondent must have been subjected to cruelty by the appellant and his parents and has further opined that after filing the complaint at the advice of the elders and in order to save her husband, she had

given false evidence against the appellant to acquit him from the case."

11. The respondent has further deposed that her

father-in-law had tried to snatch her saree with an

intention to outrage her modesty. On this allegation,

the Family Court has reasoned as under:

"In this regard when a father-in-law of the respondent, who has to give more love and affection towards his daughter-in-law as his own daughter, he cannot snatch the saree of the respondent. Therefore, even if the said allegation has not been proved by the respondent against her father-in-law, it is sufficient that when the respondent makes such grave allegation more particularly, she filed a complaint before the police against her father-in-law, it is sufficient that when the respondent makes such grave allegation more particularly, she filed a complaint before the police against her father-in-law and the petitioner, this itself fortifies the fact that the petitioner and his parents must have been caused cruelty to the respondent both physically and mentally."

12. Based on the aforesaid reasoning, the Family

Court has declined to accept the case of the appellant

that the respondent was causing cruelty to the

petitioner and his parents. This in our considered view,

is incorrect approach by the Family court. The

averments and allegation if any made should be proved

with the probable evidence and the same cannot be lent

for presumption and surmises. In the instant case, it is

clear that the complaint filed by the respondent in

C.C.No.377/2011 before III Addl. Senior Civil Judge and

JMFC, Bijapur against the appellant and his parents

has resulted in their acquittal. The Family Court has

taken this to be grace shown by the respondent in

having her husband acquitted without there being any

material in this regard. It is another matter of

justification for above reasonings if the matter had

resulted in compromise or compounding of the offence.

In the absence of such material, the reasoning given by

the Family Court cannot be accepted.

13. As regards the grounds of desertion, the

appellant had earlier filed a petition under Section 9 of

the Hindu Marriage Act in M.C.No.110/2001 seeking

order of restitution of conjugal rights. The said

application was allowed directing the respondent to join

the appellant. Despite decree of restitution of conjugal

rights in M.C.No.110/2011, the respondent did not join

the appellant. This constrained the appellant to file the

present petition for divorce on the ground of desertion.

The Family Court has referred to the deposition of the

respondent wherein she has stated that if in the event of

appellant arranging a separate accommodation near

and around Ashrama in Bijapur, she is ready and

willing to join him and lead the life. Taking this answer

of the respondent, the Family Court has concluded that

the respondent was still ready and willing to lead

marital life with the petitioner if he arranged a separate

residence for her stay and that the said conduct of the

respondent would not amount to desertion as there was

no "animus decedendi". The Family Court has further

referred to the allegation of the respondent against the

father of the appellant allegedly trying to snatch her

saree and trying to outrage her modesty and alleged

abuse and assault to be the acceptable the reasons and

circumstances for respondent to justify her refusal to

reside with the appellant along with father-in-law and

mother-in-law. It has concluded that the respondent

was not at wrong path when she pleaded that she

wanted to lead a marital life with the appellant by

staying away from the parents-in-law. On these

observations, the Family Court has concluded that the

appellant failed to prove the cruelty and the desertion

resulting in dismissal of the petition.

14. Admittedly, marriage is of the year 2004 and

the respondent has been living with her parents after

the year 2012. The child which is born of the marriage

is aged 7 years. The respondent despite service of

notice, has not contested the matter. It was mentioned

at the bar that efforts were made for reconciliation even

during pendency of the present appeal, however, the

respondent has not shown any interest in reconciling

the matter. The respondent being aware of the

pendency of the appeal and despite service of court

notice as stated above, has remained absent. That

apart we do not find the reasons assigned by the Family

Court in dismissing the petition filed by the appellant

are sound and proper.

15. The family court could not have negated the

case of cruelty merely accepting the allegation of

respondent that the father-in-law had tried to outrage

her modesty, without there being cogent evidence in this

regard. The very fact that the respondent-wife has been

residing separately even prior to initiation of the

proceedings refusing to join the appellant on a condition

of he arranging a house near or around Ashrama at

Bijapur cannot be countenanced as sufficient cause.

The respondent-wife has not led any independent

evidence to prove her allegation against her father-in-

law, except her self-serving statement. Filing of

complaint against the appellant and his parents

resulting their acquittal and making unsubstantiated

serious allegations against the father of the appellant

would definitely amount to cruelty. Based on the

material and evidence on record, we conclude that the

appellant-husband has proved cruelty and desertion

against respondent-wife.

16. In the facts and circumstances of the above

matter, we are of the considered view that the appeal

deserves to be allowed and the order dated 07.10.2014

passed by the Family Court in M.C.No.71/2013 on the

file of the Judge, Family Court, Bijapur is liable to be

set aside.

17. We are present to the fact that the minor child

is with the respondent. Appellant is bound to provide

financial support. Therefore, we deem it appropriate to

make suitable provision in this regard. Accordingly, the

petitioner is directed to deposit a sum of Rs.5,00,000/-

in the joint name of the respondent and the minor child

till he attains the age of majority. In addition, the

appellant is directed to pay a sum of Rs.3,000/- p.m.,

towards the maintenance of the minor child. It is

however, made clear that the respondent will be entitled

to seek permanent alimony if she is suitably advised

and if she is entitled to in accordance with law. This

would meet the ends of justice in the facts and

circumstances of the case.

18. For the aforesaid reasons, Appeal is allowed

and the Judgment and Order dated 07.10.2014 in

M.C.No.71/2013 on the file of the Judge, Family Court,

Bijapur, is set aside. Consequently, M.C.No.71/2013 is

allowed and marriage solemnized between appellant and

respondent on 28.06.2004 is dissolved and decree of

divorce is granted.

Appellant is directed to deposit Rs.5,00,000/-

within four weeks from today in the joint names of the

minor child and the respondent till the minor attaining

the age of majority. It is made clear that withdrawal of

the said amount shall be with the prior permission of

this Court. Appellant shall pay Rs.3,000/- every month

towards maintenance of the minor child.

Sd/-

JUDGE

Sd/-

JUDGE

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