Karnataka High Court
Sri B C Shashidhar vs Smt R Rashmi M.Tech on 3 June, 2022
Bench: Alok Aradhe, J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.9555 OF 2012 (FC)
BETWEEN:
SRI B C SHASHIDHAR
S/O CHANDRAPPA,
AGED ABOUT 39 YEARS,
AGRICULTURAL OFFICER,
VEERABHADRESWARA NILAYA,
3RD CROSS, NETHAJI EXTENSION,
NEAR CHURCH, VINOBHANAGARA,
SHIVAMOGGA CITY - 577 203
... APPELLANT
(BY SRI. H.MALLAN GOUD, ADVOCATE)
AND:
SMT R RASHMI M.TECH
D/O. RAJASHEKARAPPA,
AGED ABOUT 35 YEARS,
LECTURER IN COMPUTER SCIENCE,
C/O. NESARA
SRIPATH ROAD, 3RD CROSS,
KEERTHI NAGARA,
SHIVAMOGGA CITY - 588 201
...RESPONDENT
(BY SRI. RAVI V, ADVOCATE)
2
THIS MFA IS FILED UNDER SECTION 19 (1) OF THE
FAMILY COURT ACT 1984 PRAYING TO a) SET ASIDE THE
JUDGMENT AND DECREE DATED 31.07.2012 PASSED BY THE
FAMILY COURT, SHIMOGA IN M.C.NO.31/2011 BY ALLOWING
THIS APPEAL; b) ALLOW THE PETITION FILED BY THE
APPELLANT ON THE FILE OF THE FAMILY COURT SHIMOGA IN
M.C.NO.31/2011; c) PASS SUCH OTHER SUITABLE JUDGMENT
OR DECREE AS THIS HON'BLE COURT FINDS IT APPROPRIATE IN
THE ADMITTED FACTS AND CIRCUMSTANCES OF THE CASE IN
THE INTEREST OF JUSTICE.
THIS MFA HAVING BEEN HEARD AND RESERVED ON
30.05.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 19(1) of the Family Courts
Act, 1984, has been filed by husband challenging the
impugned judgment and order, by which his petition filed by
him under Section 13(1) (i-a) & (i-b) of Hindu Marriage Act,
1955 (hereinafter referred to as 'the Act' for short) has been
dismissed.
2. For the sake of convenience the parties are
referred to by their rank before the Family Court.
3. The brief facts leading to the filing of petition are
that the marriage of petitioner and respondent was
solemnized on 11.11.2002 at Veerashaiva Kalyana Mantapa,
as per the customs and rituals prevailing in Hindu community.
At the time of marriage, petitioner was working in Agriculture
Department at Kudligi, Ballari District and respondent was
working as Lecturer in Computer Science at JNNCE,
Shivamogga. Petitioner used to visit Shivamogga once in a
week. During 2003, he was transferred to Shivamogga.
Respondent gave birth to a son on 18.10.2003. Petitioner has
alleged that respondent was not treating the petitioner with
respect on the ground that he was drawing lesser salary than
her and that she was not compatible with her in-laws. Inspite
of the fact that he set up separate residence, the respondent
was not happy and used to quarrel. She was always
complaining that he comes home late. Since petitioner was
working as Agricultural Extension Officer, his work compelled
him to stay back in rural areas and as such, he used to return
home late. Respondent stayed only for a period of two months
in their rented premises and went back to her parents house.
She forced him to shift to the ground floor of her parents
house on rent from February 2005 to October 2007. She was
not cordial with the petitioner and was not discharging her
marital obligations. She deprived him of the family life. She
was not allowing him to speak to his son. Respondent never
cared to join the petitioner and she continued to stay with her
parents. Thus, on the grounds of cruelty as well as desertion,
the petitioner had sought for a decree of divorce.
4. Respondent appeared through counsel and filed
written statement admitting the relationship between the
parties and that they are blessed with a son. She has denied
all the allegations made in the petition. Inter-alia respondent
has contended that petitioner was never a responsible
husband. It was contended that the petitioner was after the
salary of the respondent and that no point of time, he treated
her with love. It was further contended that he never bore
any family expenses and the petitioner was cruel and totally ill
treating her. He was not regularly coming home. It was also
contended that no women could live with him as wife. He was
behaving as though he was forced to marry her and he never
had any love and affection towards the child and as such the
respondent sought for dismissal of the petition.
5. The Family Court has conducted an enquiry,
wherein petitioner is examined as PW-1 and documents
namely Ex.P1 to 4 are marked.
6. On the other hand respondent has examined
herself as RW-1 and closed her side.
7. By the impugned judgment and order, the Family
Court has dismissed the petition on the ground that petitioner
has failed to prove he grounds of cruelty as well as desertion
on the part of respondent.
8. We have heard the arguments of the learned
counsel for petitioner as well as respondent and perused the
record.
9. The learned counsel for petitioner argued that the
impugned the judgment and order is contrary to law, facts
and legal evidence placed on record and that it is contrary to
the provisions of the Act and law declared by the Hon'ble Apex
Court. It is further argued that the Family Court has not
applied its mind properly to the facts and grounds urged by
the petitioner. It is also submitted that the Family Court has
failed to appreciate the fact that the respondent never shown
any inclination to live with the petitioner and treated him with
cruelty. It is also pointed out that there is no compatibility
between the parties and that there is no cohabitation between
them since more than five years and the same has not been
appreciated by the Family Court. It is contended that even
though the petitioner has proved both the grounds i.e.,
cruelty as well as desertion, the Family Court has wrongly
refused to grant a decree of divorce. It is submitted that from
any angle the impugned judgment and order is not tenable
and has accordingly sought for setting aside the same with a
prayer to grant a decree of divorce.
10. On the other hand the learned counsel
representing the respondent has supported the impugned
judgment and order and has sought for dismissal the appeal.
11. It is relevant to note that while petitioner was
working as Agricultural Extension Officer, respondent is an
employee of Jawaharlal Nehru Institute of Technology at
Shivamogga. At the time of marriage, the petitioner was
working at Kudligi. He used to visit Shivamogga once in a
week. Ultimately, in the month of June 2003, he was
transferred to Shivamoga. At that time, respondent was
pregnant and she has given birth to a son on 18.10.2003. So
far as the ground of cruelty is concerned, petitioner has
pleaded that while he was serving at Kudligi, whenever he
used to come to Shivamogga, petitioner and her parents were
not giving him due respect. Even though at the instance of the
respondent, he set up a separate residence, respondent never
stayed in the house for more than two months and she
returned back to her parents house. He has alleged that at
her insistence, though he had set up residence in the first
floor of her parent's house, despite the same she hardly
stayed in the house and she used to stay with her parents.
12. On this aspect, respondent has pleaded that since
the parents of the petitioner did not wholeheartedly welcome
her into their family, she was not getting any assistance from
them. She has alleged that the petitioner used to come home
late and sometimes he was not returning to home and
therefore, as no one was there to take care of the child, she
was taking the help of her parents and as such she shifted to
her parents house. He has also pleaded that the respondent
was never co-operative and deprived him of her
companionship. She never allowed him to mix with the child.
The pleadings as well as the evidence led by the petitioner
with regard to the ground of cruelty hardly attracts the
provisions of Section 13 (1) (i-a) of the Act. It is well settled
law that in order to succeed on the ground of cruelty, the
party must prove that the cruelty is of such nature that it is
not safe for the petitioner to live with the respondent.
13. Petitioner has admitted that he was returning
home late on account of the nature of his work and the same
was not intentional. As rightly observed by the Family Court,
respondent who was employed with a young child was in need
of some assistance and therefore, she was trying to find it
with her parents. However, the same cannot be termed as
cruelty. As observed by the Family Court, except the self-
serving statement of the petitioner, he has not led any
evidence to prove the ground of cruelty as pleaded by him.
Therefore, the Family Court has rightly rejected his petition so
far as cruelty is concerned.
14. Now we may deal with the ground with regard to
desertion. Petitioner has pleaded that since 2008, there is no
cohabitation between the petitioner and respondent. During
the course of her cross-examination, respondent has admitted
this fact. The reason assigned by the respondent in not
staying with the petitioner is that he was coming late and
therefore, there were no one to help her with the young child
and as such she withdrew from the company of the petitioner.
It is relevant to note that after petitioner got transferred to
Shivamogga, he has shifted his parents to Shivamogga and
was staying with them. As an Agricultural Extension Officer,
petitioner was required to work late hours and by the time he
returned home, he used to be late. However, his parents were
available at the home. Therefore, the reasons assigned by the
respondent to shift to her parents house and thereby
withdraw from the company of petitioner is not justifiable.
15. During her cross-examination, a suggestion is
made to the effect that since the parents of the petitioner was
available in the house, she was getting proper assistance and
inspite of that she was staying in her parents house. For this
respondent has answered that her mother-in-law had
demanded that unless and until she pays dowry of
Rs.4,00,000/- she should not come to the house. She has also
deposed that at the time of marriage, dowry of Rs.1,00,000/-
was given and silver articles were also given. However, there
are no pleadings to the effect that there was any demand of
dowry and for not fulfilling the said demand, she was
prevented from entering the house of the petitioner.
16. When suggested that even after the child became
five month old, she did not choose to return to her husband's
house, respondent has stated that the parents of the
petitioner were not ready to welcome the child into their
family. It is pertinent to note here that in the objection
statement, the petitioner has not taken the aforesaid ground.
Before the petition was filed the couple had undergone
counseling at the Santvana Kendra of Shivamooga. This fact is
admitted by the respondent. However, she has alleged that
the counsel who is representing the petitioner before the
family court was the one present the Santvana Kendra.
However, the fact remains that before filing the petition,
petitioner tried to reconcile with the respondent and after the
failure of the conciliation efforts, he has filed the petition.
Even though petitioner has failed to prove the ground of
cruelty, he is able to establish that without any justifiable
reasons, the respondent has withdrawn from his company and
has thereby deserted him. Therefore, on the ground of
desertion, petitioner is entitled for a decree of divorce. To this
extent, impugned judgment and order is liable to be modified
and accordingly, we proceed to pass the following:
ORDER
(i) The appeal filed by the petitioner is allowed in
part. The impugned judgment and order in so
far as it rejects the petition on the ground of
desertion is here by set aside.
(ii) Consequently the petition under section
13(1)(1b) is allowed.
(iii) The marriage of petitioner with respondent
solemnized on 11.11.2002 at Veerashaiva
Kalyana Mantapa, Shivamogga is hereby
dissolved by a decree of divorce of the ground
of desertion.
(iv) The registry is directed to transmit the trial
Court record along with the copy of this
Judgment to the Family Court.
Sd/-
JUDGE
Sd/-
JUDGE
RR
