Smt Roopa vs Sri Karibasava @ Basavaraju
2022 Latest Caselaw 8535 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH 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.3659 OF 2017 (FC)

BETWEEN:

SMT. ROOPA
W/O SRI. KARIBASAVA @ BASAVARAJA
AGED ABOUT 39 YEARS
C/O SRI. MARULASIDDAPPA B.M.
GENERAL MERCHANT
DURVIGERE POST
CHENNAGIRI TALUK
DAVANGERE DISTRICT.
                                       ... APPELLANT
(BY MR. M.P. SRIKANTH, ADV.,)

AND:

SRI. KARIBASAVA @ BASAVARAJU
S/O LATE B. GURUSHANTHAPPA
AGED ABOUT 45 YEARS
NO.13, VALAGEREHALLI
KRISHNAPPA GARDEN
KENGERI UPA NAGARA
BENGALURU-560060.
                                      ... RESPONDENT
(BY MR. UMESH MOOLIMANI, ADV., FOR
    MR. S.V. PRAKASH, ADV.,)
                             ---
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      THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED:30.11.2016
PASSED IN M.C.NO.42/2012 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, SHIVAMOGGA, ALLOWING THE PETITION
FILED UNDER SECTION 13(1)(ia)(ib) OF THE HINDU MARRIAGE
ACT.
      THIS M.F.A. COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal under Section 19(1) of the Family Courts

Act, 1984 has been filed against the judgment dated

03.11.2016 passed by the Family Court by which marriage

between the parties has been dissolved by a decree of

divorce on the ground of cruelty and desertion.

2. Facts leading to filing of this appeal briefly stated are

that the marriage of the appellant and the respondent was

solemnized on 12.12.2002 at Shivamogga according to the

customs prevalent in the community of the parties. Out of

the wedlock, son was born to the parties on 11.07.2004. It

is the case of the respondent that some time in the year

2006, he suffered a loss in his business and therefore, the

respondent as well as the appellant shifted to Bengaluru. It

has also been pleaded that in the month of February 2009,

the appellant left the matrimonial home without any

reasonable excuse and started residing with son in

Davanagere District. It is also the case of the respondent

that he tried his best to bring the appellant to join the

matrimonial home however, the appellant did not respond.

3. The respondent / husband filed a petition on

09.04.2012 under Section 13 of the Hindu Marriage Act,

1955 (hereinafter referred to as 'the Act' for short) seeking

dissolution of marriage on the ground of cruelty and

desertion. The appellant / wife filed objections in which inter

alia the factum of performance of marriage between the

parties was admitted. It was also admitted that the

appellant as well as the respondent shifted to Bengaluru in

the year 2006. However, it was asserted that the appellant

was turned out of matrimonial home. Thereupon, she went

to her parents' home. It was pleaded that the appellant has

been treated with cruelty by the respondent and the

respondent himself is guilty of desertion.

4. On the basis of the pleadings of the parties, the

Family Court framed the issues. The respondent / husband,

in order to prove his case, examined himself as PW-1 and

exhibited documents namely Exs.P1 to P14. The appellant /

wife examined herself as RW-1 and two other witnesses

namely RW-2 and RW-3 and produced two documents

namely Ex.R1 and Ex.R2. Thereafter, the Family Court vide

judgment and decree dated 03.11.2016, dissolved the

marriage between the parties on the ground of cruelty and

desertion. In the aforesaid factual background, this appeal

has been filed.

5. Learned counsel for the appellant submitted that

there is no material on record to prima facie prove the

ground of cruelty. However, it is admitted that the appellant

is residing away from the respondent since February 2009.

It is however contended that the appellant was forced to stay

out of the matrimonial home. It is also argued that two

witnesses have been examined on behalf of the appellant

namely Mr.Marulasiddappa and Mr.Lingaraju as RW-2 and

RW-3. However, their evidence has not been considered by

the Family Court. It is further submitted that the Family

Court could not have dissolved the marriage between the

parties on the ground that the marriage between the parties

has irretrievably broken down as such power is not available

to the Family Court. However, it is admitted that in

pursuance of the judgment and decree directing grant of

permanent alimony of Rs.5,00,000/-, the respondent has

deposited a sum of Rs.5,00,000/- in terms of permanent

alimony. It is asserted that a Bench of this Court had

directed the respondent to the pay the educational expenses

of the son vide order dated 25.08.2020 which has not been

paid. It is therefore submitted that the impugned judgment

and decree cannot be sustained and is therefore, required to

be set aside.

6. On the other hand, learned counsel for the

respondent has submitted that on the basis of material

available on record, the Family Court has held that the

ground enumerated under Section 13 of the Hindu Marriage

Act namely cruelty and desertion is made out. Our attention

has also been invited to the evidence of RW-1 namely

appellant herself wherein it is admitted by her that until and

unless some property is conveyed to her, she would not join

the matrimonial home. It is also submitted that the factum

of desertion as well as intention to desert have been proved.

It is also contended that after the expiry of period of

limitation, the respondent has re-married.

7. We have considered the submissions made on both

sides and have perused the record. A five Jude Bench of the

Supreme Court in 'LACHMAN UTAMCHAND KIRPALANI

Vs. MEENA @ MOTA' AIR 1964 SC 40 which has been

followed in 'DEBANANDA TAMULI Vs. KAKUMONI

KATAKY' 2022 SCC ONLINE SC 187 while dealing with the

expression 'desertion', has held that desertion means the

intentional abandonment of the spouse by the other without

the consent of the other and without a reasonable cause. It

has further been held that deserted spouse must prove that

there is a factum of separation and there is an intention on

the part of deserting spouse to bring the cohabitation to a

permanent end. It has also been held that in other words,

there should be animus deserendi on the part of the

deserting spouse.

8. The issue whether the ground of desertion is proved

or not, depends on the facts of each case and is a matter of

drawing inference on the basis of evidence on record. In the

instant case, from perusal of paragraph 3 of the petition, it is

evident that the respondent has averred that the appellant

has left the matrimonial home in February 2009. The

aforesaid averment has been denied by the appellant in her

statement of objection. It is the case of the appellant that

she has been forcibly thrown out of the matrimonial home.

It is pertinent to note that the respondent / husband, before

filing of the petition under Section 13 of the Act, had sent a

notice dated 01.03.2012 Ex.P4, by which the appellant / wife

was asked to join the matrimonial home. However the

appellant neither responded to the aforesaid notice nor

joined the matrimonial home. It is also pertinent to note

that the appellant / wife, after February 2009, neither filed

any complaint nor instituted any proceeding seeking

restitution of conjugal rights. It is also note worthy that in

her evidence, appellant / wife has voluntarily stated that in

case some property is conveyed in her name, she would join

the matrimonial home. Thus, on the aforesaid evidence on

record, it can safely be inferred that the appellant / wife has

deserted the husband for a continuous period of 2 years

immediately preceding the date of filing of the petition i.e.

09.04.2012. Therefore, the ground for dissolution of

marriage is made out.

9. The judgment and decree was passed by the Family

Court on 03.11.2016. This appeal was filed before this Court

on 27.04.2017, which was admitted by a Division Bench of

this Court on 10.07.2018 and stay was granted. However,

the respondent asserts that he has re-married on

08.02.2017. The aforesaid fact has been denied by the

appellant by stating that no cogent evidence has been placed

on record by the respondent / husband in support of his

assertion that he has been re-married on 08.02.2017.

10. Be that as it may, since we have affirmed the

judgment and decree passed by the Family Court on the

ground of desertion, we do not propose to examine whether

the ground under Section 13(1)(ia) of the Act i.e. cruelty is

made out. Admittedly, the respondent / husband has

deposited a sum of Rs.5,00,000/- on account of permanent

alimony which has been paid to the appellant / wife.

However, taking into account the fact that the Family Court,

without there being any evidence on record and without a

petition being filed, has granted a sum of Rs.5,00,000/- as

permanent alimony. In the facts of the case, we deem it

appropriate to grant liberty to the appellant to file a petition

under Section 25 of the Act seeking permanent alimony for

the balance amount to which, according to her, she may be

entitled. Needless to state that in case such a petition is

filed, the same shall be dealt with in accordance with law. In

addition, it will be open to the appellant to recover the

amount of educational expenses, which the respondent ought

to have paid.

To the aforesaid extent, judgment and decree passed

by the Family Court is modified.

In the result, the appeal is partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE RV