Roopa W/O Mrutyunjaya Hiremath vs Mrutyunjaya S/O Veerayya ...
2022 Latest Caselaw 2386 Kant

          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH

      DATED THIS THE 15TH DAY OF FEBRUARY 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                          AND

THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

               MFA No.103761/2016 (FC)

BETWEEN

ROOPA W/O MRUTYUNJAYA HIREMATH
@ DR RUDRAMMA @ RUDRANI R
HIREMATH, AGE: 43 YEARS
OCC: ASSISTANT PROFESSOR
R/O: R.V. HIREMATH,
SHIVBASAVANAGAR, BELAGAVI

NOW RESIDING AT RUDRANI NILAYA
2ND MAIN ROAD, BASAV COLONY
BAUXITE ROAD TAL AND DIST:
BELAGAVI-590001
                                          ...APPELLANT
(BY SRI. SHIVARAJ S BALLOLI, ADVOCATE)

AND

MRUTYUNJAYA S/O VEERAYYA HIREMATH
AGE: 52 YRS, OCC: DOCTOR
R/O KESARAHALLI,
N/A:HOSARITTI
TAL AND DIST: HAVERI-581110
                                         ...RESPONDENT
(BY SRI.T M NADAF, ADVOCATE)
                               2



     THIS APPEAL IS FILED U/S.19(1) OF THE FAMILY COURT
ACT,    AGAINST     THE    JUDGEMENT     AND     DECREE
DATED:07.11.2016,    PASSED   IN    MATRIMONIAL    CASE
NO.222/2015 ON THE FILE OF THE JUDGE, FAMILY COURT,
BELAGAVI, ALLOWING THE PETITION FILED U/SEC. 13(1)(1a)
AND   (1b)  OF    THE   HINDU   MARRIAGE    ACT,   1955.

    THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:


                       JUDGEMENT

The wife of the petitioner, who suffered a decree for

dissolution of marriage in M.C.No.222/2015 on the file of

the Family Court, Belagavi (for short, 'trial Court') in a

petition filed by her husband seeking dissolution of

marriage on the ground of cruelty and desertion, is in

appeal.

2. For convenience, the parties are referred to as

per their ranking before the trial Court.

3. Certain facts narrated in the pleadings can be

summarized as under:

3.1 The petitioner and respondent were married on

22.12.1997 at Haveri. The respondent was doing her

internship at the time of marriage. After staying 5 days in

the matrimonial house, she left for her parent's house in

Belagavi, stayed there for 5 months, and came back to the

matrimonial house and lived for 30 days. It is the case of

the petitioner-husband that the respondent-wife used to

visit her parent's house frequently without there being any

justifiable reasons and used to stay there for a long period

discarding her marital obligations at her matrimonial

house. It is stated that the elder brother and elder sister of

the petitioner approached the respondent at her

matrimonial house in Belagavi and requested her to join

her husband at Haveri. It is alleged in the petition that the

respondent returned to her matrimonial house reluctantly.

A few years later, the male child was born to the couple. It

is alleged that in the month of September-2000

respondent again went to her parent's house along with

the child without any reason and consent of the petitioner.

It is alleged that the respondent has withdrawn from the

society of the petitioner without any valid reason. The

petitioner alleges that he is deprived of the company of his

son. This led to the petitioner filing M.C.No.15/2001 before

the Principal Civil Judge (Sr.Dn.), Haveri for restitution of

conjugal rights. In the alternative, he also sought

dissolution of marriage.

3.2 The prayer for restitution of conjugal rights was

granted in terms of decree dated 30.06.2008. Respondent-

wife challenged the said judgement and decree by filing

MFA No.22464/2009. The matter was settled before this

Court in terms of compromise petition filed by the parties.

In terms of the said compromise petition, the parties

agreed to visit each other during weekends. However, it is

alleged that the terms of the compromise petition were not

adhered to by the respondent-wife. The wife alleges that

the husband also did not adhere to the terms of the

compromise.

3.3 It is further alleged that the respondent has filed

a petition in Crl.Misc.No.164/2011 alleging domestic

violence against the husband. The petitioner further

alleged that the wife has not looked after him properly,

has treated him with cruelty, and deserted him. As such,

he filed a petition seeking dissolution of marriage for the

second time.

3.4 The respondent contested the matter denying

all allegations leveled against her and made a statement

that she is ready to join the petitioner and also stated that

the husband is insisting her to resign from her job. It is her

case that she completed post-graduation after her

marriage at the instance of the petitioner and she is

pursuing her career after post-graduation and she is not in

a position to give up her job. She would state that she

would pursue her career as well as continue her marital

relationship with the husband and prayed for the dismissal

of the petition.

3.5 The parties led evidence in support of their

respective claim. The trial Court after considering the

material on record has concluded that the respondent has

indeed deserted petitioner-husband and also upheld the

plea of cruelty and granted decree of dissolution of

marriage on both grounds. Aggrieved by the said decree,

the respondent-wife is in appeal.

4. Heard the learned counsel, Sri.Shivaraj S

Balloli appearing for the respondent-wife and Sri.T.M.Nadaf

appearing for the petitioner-husband.

5. Sri. Shivaraj S Balloli, learned counsel for the

respondent-wife elaborating on the grounds urged in the

appeal memo, would take us through the evidence led

before the trial Court and also the reasonings assigned by

the trial Court. He would submit that though there is no

material before the Court to accept the plea of cruelty and

desertion, the trial Court on improper appreciation of

evidence has erroneously concluded that cruelty and

desertion are established. He would refer to paragraph

No.12 of the judgement of the Trial Court, wherein the

following oral evidence is extracted:

"£ËPÀj SÁAiÀÄA DzÀ ªÉÄÃ¯É £ËPÀj ©lÄÖ §gÀ¨ÃÉ PÉAzÀÄ ºÉAqÀwUÉ £Á£ÀÄ ºÉýzÉ£ÀÄ CAzÀgÉ ¤d."

Learned counsel would also refer to the oral evidence

recorded in Crl.Misc.No.248/2013, which is extracted in

paragraph No.13 of the judgement as under:

"¸ÀzjÀ PÉù£À°è ºÉAqÀwAiÀÄÄ £À£Àß eÉÆvÉ §AzÀÄ ¨Á¼Éé ªÀiÁqÀÄvÉÛÃ£É JAzÀÄ ºÉýzÁUÀ ªÀPð À Ol DUÀĪÀÅ¢®è JAzÀÄ ºÉýzÉ£ÀÄ CAzÀgÉ ¤d. FUÀ®Æ ºÉAqÀwAiÀÄÄ £ËPÀj ªÀiÁrPÉÆAqÀÄ £À£Àß eÉÆvÉ fêÀ£À ªÀiÁqÀ®Ä ¹zÀÞ½zÁÝg,É ¤ÃªÀÅ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛÃgÁ JAzÀÄ ¥À² æ ß¹zÁUÀ ºÉÆAzÁtÂPÉ DUÀĪÀÅ¢®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛg.É "

6. By referring to these evidence, learned counsel

appearing for the wife would urge that the wife is willing to

have a marital relationship with husband and it is only

because of unjustified insistence on the part of the

husband asking her to quit the job for which wife is not

ready, petitioner-husband is seeking dissolution of

marriage.

7. Learned counsel for the petitioner-husband,

Sri.T.M.Nadaf would take us through the discussion found

in paragraph No.15 of the judgement. He would also refer

to the evidence in the cross-examination of the wife, which

reads as under:

"£Á£ÀÄ PÉ®¸À ©lÄÖ §AzÀ°è UÀAqÀ FUÀ®Æ PÀgz É ÀÄPÉƼÀî®Ä ¹zÀÝjzÁÝgÉ CAzÀgÉ £Á£ÀÄ PÉ®¸À ©qÀĪÀÅ¢®è."

8. From this statement and other materials

placed on record, it is apparent that the husband and wife

are staying apart for more than 22 years. The wife is

giving preference to her career and the husband is

insisting for the wife to quit the job and join him at the

matrimonial home. Both the parties are not ready to give

up their respective stand. From the evidence placed on

record, though this Court is of the opinion that the

husband has failed to establish plea of cruelty alleged in

the petition, there is enough material to conclude that

desertion is established. For the last 22 years, the husband

and wife are not living together and have been rigorously

fighting the litigation in various Courts.

9. During the course of the submission, learned

counsel for the petitioner-husband, Sri.T.M.Nadaf would

place reliance on the judgement of Co-ordinate Bench of

this Court in the matter of K.Mallikarjuna vs. H.A.

Sudha Mallikarjuna in MFA No.4314/2012 decided on

16.11.2021 and placing reliance on the said judgement

would submit that on account of the long separation of

husband and wife which in that case was 21 years and in

this case the separation being 22 years would submit that

the ratio laid down in the said case squarely applies to the

case if this Court to grant a decree for divorce on account

of desertion.

10. This Court has gone through the said

judgement and the ratio laid down therein. This Court

while considering the ratio laid down by the Hon'ble Apex

Court in Geeta Jagdish Mangtani vs. Jagdish Mangtani

[2005 (4) KCCR SN 267] and Sivasankaran vs.

Santhimeenal [2021 SCC Online SC 702] has concluded

that if the parties are living separately with an intention to

stay separate then the Court can grant a decree for

divorce if the Court is of the opinion that the parties are

not in a position to live together.

11. This Court perused the evidence placed on

record. From the evidence placed on record, it is apparent

that chances of a resumption of marital life between the

petitioner and the respondent is extremely bleak. It is also

forthcoming from the record that the wife has intentionally

stayed away from the husband giving preference to career

over the matrimonial relationship. This Court is not saying

that the respondent-wife is wrong in giving preference to

career, however, from the evidence on record it is

apparent that she has no intention to be in the company of

her husband. Even in the previous round of litigation when

the compromise was arrived at between the parties,

wherein they agreed to spend some time with each other

on weekends, the same did not work out. Under the

circumstances, it is apparent that the wife has wilfully

stayed away from the society of the husband and that

leads to the conclusion that the wife has deserted the

husband.

12. Learned counsel for the petitioner-husband,

Sri.T.M.Nadaf during his submission would also make an

offer in the form of an affidavit dated 15.02.2022, that the

husband is ready to pay Rs.20 lakhs as permanent alimony

to the wife. It is submitted during the hearing that the only

son of the couple has completed engineering graduation

and is working. There is no dispute over the fact that the

wife is working as a professor in a medical college and is

financially independent.

13. Learned counsel for the respondent-wife, Sri.

Shivaraj S Balloli would submit that the wife is not insisting

on alimony and is not ready to accept the same and she

prays for dismissal of the petition seeking dissolution of

marriage.

14. We have considered the case from several

perspectives. Dismissal of a petition seeking dissolution of

marriage is not likely to lead to a resumption of marital life

as the wife is still 49 years old and has got another 11-12

years of career as a professor. Moreover, enough material

is placed on record to hold that the wife has deserted the

petitioner. From the overall perspective of the matters

placed before the court, this court is of the opinion that the

plea of desertion is established as the wife is intentionally

staying apart and away from the husband. However, the

finding on cruelty is to be set aside as is not established.

The decree for dissolution of marriage on the ground of

desertion is to be upheld. Accordingly, the appeal has to

be allowed in part with the above-said modification.

15. This Court has taken note of the affidavit dated

15.02.2022 filed by the petitioner-husband, wherein he

has offered to pay Rs.20 lakhs as permanent alimony to

the wife. This Court directs the petitioner-husband to pay

Rs.20 lakhs in three equal monthly installments

commencing from 1st March 2022. The amount shall be

deposited before the Family Court, Belagavi. The Family

Court, Belagavi shall issue notice to the respondent-wife

before the trial Court requesting her to receive the amount

on proper identification. In case, the wife refuses to

receive the amount, notice shall be sent to the son,

Prabhudda and if he is willing to accept the same, the

same shall be released in his favor on proper identification.

16. The appeal partly allowed and judgment and

dated 07.11.2016 in M.C. No.222/2015 on the file of the

Family Court, Belagavi is set aside in so far as it relates to

finding on cruelty and petition in M.C. No.222/2015 is

allowed in part on the ground of desertion and marriage

dated 22.12.1997 between the petitioner and respondent

is dissolved by a decree of divorce.

17. The petitioner-husband shall pay Rs.20 lakhs

to the respondent-wife as observed in paragraph No.15 of

the judgment.

18. No order as to cost.

SD/-

JUDGE

SD/-

JUDGE

sh