Smt Suma @ Narasamma vs Sri H Kumar
2022 Latest Caselaw 10122 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
     DATED THIS THE 1ST DAY OF JULY 2022
                     PRESENT
   THE HON'BLE MR. JUSTICE ALOK ARADHE
                      AND

         THE HON'BLE MS.JUSTICE J.M.KHAZI

            M.F.A.NO.3245 OF 2013 (FC)
                       C/W
              R.P.F.C.NO.48 OF 2013

  IN M.F.A.NO.3245 OF 2013

  BETWEEN:

  SMT SUMA @ NARASAMMA
  W/O SRI H KUMAR
  AGED ABOUT 40 YEARS
  R/AT C/O P CHANNAVEERAIAH
  RETIRED TEACHER
  TUMBADI VILLAGE AND POST
  KORATAGERE TALUK
  TUMKUR DISTRICT - 572131
                                  ... APPELLANT
  (BY SRI. G.S.BALAGANGADHAR, ADVOCATE)

  AND:

  SRI H KUMAR
  S/O P HANUMANTHAPPA
  AGED ABOUT 45 YEARS
  WORKING AS POLICE CONSTABLE
  R/A NO.2717, GUNDUMGERE
  POST & VILLAGE
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DODDABALLAPURA TALUK
BANGALORE DISTRICT - 560044
                               ... RESPONDENT

(BY SRI. H.E.BASAVARAJ, ADVOCATE - ABSENT)

THIS MFA IS FILED UNDER SECTION 19 (1) OF THE FAMILY COURTS ACT PRAYING TO a) SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, IN M.C NO.2680/2008 DATED 04.03.2013; b) TO DISMISS THE PETITION FILED BY THE RESPONDENT / HUSBAND BEFORE THE LEARNED PRINCIPAL FAMILY JUDGE, FAMILY COURT, BANGALORE IN M.C.NO.2680/2008 SEEKING RELIEF OF RESTITUTION OF CONJUGAL RIGHTS; c) TO GRANT COSTS AND SUCH OTHER RELIEF'S AS THIS HON'BLE COURT MAY DEEM FIT TO GRANT IN THE CIRCUMSTANCES OF THE PETITION, TO THE APPELLANT IN THE ENDS OF JUSTICE.

IN R.P.F.C.NO.48 OF 2013

BETWEEN:

1. SMT SUMA @ NARASAMMA W/O SRI H. KUMAR, AGED ABOUT 40 YEARS,

2. KUMARI POOJA K D/O SRI H. KUMAR AGED ABOUT 12 YEARS,

3. KUMARI UMA K D/O SRI H. KUMAR AGED ABOUT 8 YEARS,

2 AND 3 BEING MINORS REPRESENTED BY THEIR

MOTHER AND NATURAL GUARDIAN SMT SUMA @ NARASAMMA ALL ARE R/AT C/O P. CHANNAVEERAIAH, RETIRED TEACHER, TUMBADI VILLAGE AND POST, KORATAGERE TALUK, TUMKUR DISTRICT - 572132

... PETITIONERS

(BY SRI. G.S.BALAGANGADHAR, ADVOCATE)

AND:

SRI H KUMAR S/O P. HANUMANTHAPPA, AGED ABOUT 45 YEARS, WORKING AS POLICE CONSTABLE R/A NO.2717, GUNDUMGER POST & VILLAGE, DODDABALLAPURA TALUK, BANGALORE DISTRICT - 560044 ... RESPONDENT (BY SRI. RAJA R, ADVOCATE FOR C/R-ABSENT;

SRI. S.R.RAJASHEKAR, AGA - SERVED)

THIS RPFC FILED U/SEC.19(4) OF THE FAMILY COURTS ACT, PRAYING TO a) SET ASIDE THE JUDGMENT PASSED BY THE LEARNED PRINCIPAL FAMILY JUDGE, FAMILY COURT, BANGALORE, IN CRL.MISC.NO.368/2007 DATED 04.03.2013; b) TO ALLOW THE PETITIONER FILED BY THE PETITIONERS BEFORE THE LEARNED PRINCIPAL FAMILY JUDGE, FAMILY COURT, BANGALORE IN CRL.MISC.NO.368/2007 AND GRANT MAINTENANCE TO THE PETITIONERS AS SOUGHT BY THEM AND ETC.,

THIS MFA C/W RPFC HAVING BEEN HEARD AND RESERVED ON 27.06.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

This appeal and petition are filed by the wife

challenging the judgment and decree in

M.C.No.2680/2008 granting restitution of conjugal

rights, at the instance of her husband and

dismissing Crl.Misc. No.368/2007 filed by her

seeking maintenance at the rate of Rs.6,000/- p.m.

in favour of herself and her two daughters.

2. Since, both the appeal and petition arise

out of a common judgment, they are clubbed

together and are decided by this common order.

3. For the sake of convenience, the parties

are referred to by their rank in M.C.No.2680/2008.

4. Brief facts leading to the filing of the

petition seeking restitution of conjugal rights as well

as initiation of proceedings under Section 125 of

Cr.P.C. by the wife and daughters for maintenance

are that the marriage of petitioner and respondent

was solemnized on 05.05.1998 at Tumbadi of

Koratagere Taluk, Tumkur District. Through the

wedlock, two daughters are born who are aged 13

years and 8 years respectively at the time of filing

the petition.

5. Petitioner sought restitution of conjugal

rights contending that after leading a marital life of

5 years and after the birth of two daughters,

without any justifiable cause, respondent has

withdrawn from the company of the petitioner. On

the other hand, respondent has alleged that after

the marriage parties resided together at police

quarters, Adugodi. After 5 years of marriage,

petitioner, his mother, brother and sisters started ill

treating and harassing the respondent demanding

dowry. On 01.04.2007, at 4.45 p.m., the petitioner

and his brother assaulted her causing bleeding

injury. Therefore, she lodged a complaint namely

Cr.No.81/2007. After issuing a legal notice, she filed

petition under Section 125 of Cr.P.C., in Crl.Misc.

No.368/2007 claiming maintenance.

6. Of course, petitioner and respondent

have resisted the respective petitions filed by the

other party. Thereafter, an order in

W.P.No.40124/2011 (GM-FC), came to be passed

with a direction to decide both matters together. A

separate enquiry had commenced in both cases and

as such recording of evidence continued separately.

7. In M.C.No.2680/2008, petitioner

examined himself as PW-1 and relied upon Exs.P-1

to 12. In this case, respondent examined herself as

RW-1 and two witnesses as RWs-2 and 3 and no

documents are marked on her behalf.

8. However, in Crl.Misc. No.368/2007,

respondent, who is petitioner has examined herself

and the same two witnesses as PWs-1 to 3 and she

has relied upon Exs.P-1 to 10. On the other hand,

petitioner has examined himself as RW-1 and he

has relied upon Ex.R-1 to 28.

9. Vide the impugned judgment and decree,

the Family Court allowed the petition filed by the

petitioner-husband granting restitution of conjugal

rights and rejected the petition filed by the

respondent-wife and her two daughters for

maintenance.

10. Being aggrieved by the aforesaid orders,

the respondent-wife has come up with the appeal

and petition.

11. The learned counsel representing the

respondent argued that the Family Court has not

appreciated the oral and documentary evidence

placed on record in its proper perspective and

consequently erred in allowing the petition filed by

the petitioner and in dismissing the petition filed by

the respondent for maintenance. The Family Court

has erred in not noticing the fact that petitioner

filed the petition seeking restitution of conjugal

rights after the respondent and daughters had filed

the petition seeking maintenance. The Family Court

has erred in not noticing the fact that petitioner has

not made any arrangements for maintenance of his

daughters and erred in rejecting the petition filed by

them.

12. The reasoning of the entire order is based

on stray admissions of the respondent. The Family

Court has erred in placing reliance on the fact that

in the criminal complaint, the respondent had

arrayed the mother of the petitioner who had died

long back. However, it is urged that the Family

Court has failed to appreciate the fact that the

principle of Falsus in Uno, Falsus in Omnibus is not

applicable in Indian Courts and in Indian Society.

The Family Court has also not appreciated the fact

that petitioner has not produced any independent

witness and prays to allow the appeals.

13. We have heard arguments of the

appellant and have perused the record.

14. Undisputed facts are that the marriage

between the parties took place on 05.05.1998 and

they are blessed with two daughters aged 13 years

and 8 years respectively. For a period of five years

i.e., till the date of filing the complaint on

01.04.2007, the parties have led a happy married

life and all of a sudden on 01.04.2007, the

respondent filed a criminal complaint against the

petitioner alleging that petitioner, his mother,

brother and sisters have ill treated and harassed

her by demanding dowry and that on 01.04.2007,

petitioner and his brother assaulted the respondent

causing bleeding injury.

15. It is pertinent to note that the petitioner,

respondent and their children were staying in the

quarters allotted to the petitioner situated at

Adugodi, Bengaluru. The complaint filed by her

came to be registered in Cr.No.81/2007. Thereafter,

she has got issued a legal notice to the petitioner on

25.05.2007 and filed a Crl.Misc.368/2007 claiming

maintenance at the rate of Rs.6,000/-p.m on behalf

of herself and her two daughters alleging that

petitioner/husband has refused and neglected to

maintain them. In the petition, petitioner/husband

has claimed that without any justifiable cause,

respondent/wife has withdrawn from his company.

16. As rightly held by the Family Court,

though the respondent has alleged that for a period

of five years, petitioner took good care of the

respondent and her children, since about 2 years

prior to the filing of the petition, petitioner, his

brother, sisters and mother started harassing and

ill treating her for dowry and ultimately, after

assaulting her they drove from the matrimonial

home. However, during her cross-examination,

respondent has admitted that till the filing of the

complaint dated 01.04.2007, there were no instance

of quarrel between her and the petitioner and she

stayed in the police quarters till 2007.

17. Similarly, though in the complaint she

has alleged that petitioner and his brother

assaulted the respondent on 01.04.2007 and

caused bleeding injury, she has not produced any

wound certificate to prove the said injury or to prove

that she has taken any medical treatment. In fact,

during her cross-examination, she has admitted

that on 01.04.2007 after lodging the complaint she

went back to the quarters and prior to the said

incident, there were no instances of quarrel between

her and the petitioner and therefore she has not

lodged complaint earlier to it.

18. Though in her petition, respondent has

claimed that the petitioner was addicted to alcohol

and other vices, during her cross-examination, she

has admitted that the petitioner was not consuming

liquor when he was living with her in the quarters

and he was also not having the habit of smoking

beedi or cigarette. It is pertinent to note that the

mother of the petitioner had died even before he

married the respondent. However, in her complaint

at Ex.P7, respondent has alleged that the mother of

the petitioner also joined the petitioner, his brother

and sisters in harassing and ill treating her and in

fact a case was also registered against the mother of

the petitioner.

19. It is relevant to note that respondent has

lodged complaint dated 01.04.2007 alleging that on

that day the petitioner and his brother assaulted

her. However, with regard to the said aspect, in the

cross-examination she has stated that on that day,

petitioner had gone to his father's house i.e., to

Gundumgere. This fact is also forthcoming in the

enquiry report at Ex.R6. This itself goes to show

that though petitioner was not present in the house

on 01.04.2007, she has chosen to file a false

complaint to the effect that she was assaulted by

the petitioner / husband on 01.04.2007.

20. As already noted, though she claims that

she sustained bleeding injury due to the assault,

she has not taken any medical treatment for the

same. A close scrutiny of her evidence indicates that

she had made allegations regarding incidences

which have not occurred. In fact, in respect of

Cr.No.81/2007, a charge sheet came to be filed in

C.C.No.29533/2007 on the file of VI Addl.CMM

Court, Bengaluru and vide judgment dated

20.02.2016, petitioner and his siblings came to be

acquitted (as per the copy of the judgment uploaded

in the website of High Court).

21. Throughout her cross-examination, time

and again, suggestions have been made to the

respondent that the petitioner/husband is ready

and willing to take her back. However, every

suggestion has been rejected by her stating that she

is not ready to go and live with the petitioner. On

the other hand, her conduct indicates that, she is

interested in merely getting maintenance. During

the course of her evidence, she has made

allegations that the petitioner has contracted a

second marriage. However, she has not produced

any material to establish the said fact. The Family

Court has examined the entire case thread bare and

come to a proper conclusion that respondent has

left the matrimonial home without any justifiable

cause and therefore, petitioner is entitled for

restitution of conjugal rights, whereas respondent is

not entitled for any maintenance. We find no reason

to interfere with the well reasoned judgment of the

Family Court.

22. In the result, both the appeal as well as

the petition fail and accordingly, we proceed to pass

the following:

ORDER

(i) MFA.No.3245/2013 and RPFC.No.48/2013 are hereby dismissed.

(ii) The registry is directed to transmit the trial Court record along with copy of this order.

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JUDGE

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JUDGE

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