Smt.Jayanthi H L vs Sri.Purushotham Rao K
2022 Latest Caselaw 8630 Kant

                              1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH 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.6090 OF 2013 (FC)
                          C/W
              M.F.A. NO.6091 OF 2013 (FC)

IN M.F.A. NO.6090 OF 2013

BETWEEN:

SMT. JAYANTHI H.L.
W/O SRI K. PURUSHOTHAM RAO
AGED ABOUT 34 YEARS
R/O #332, MANJUNATHA NILIYA
KATARIPALYA
KOLAR-563101
                                       ... APPELLANT
(BY MR. RAMESH KUMAR R.V., ADV.,)

AND:

SRI. PURUSHOTHAM RAO .K
S/O SRI. KRISHNOJI RAO
AGED ABOUT 39 YEARS
R/O #394, F BLOCK
SAHAKARA NAGARA
BANGALORE-560092
                                      ... RESPONDENT
(BY MR. SHAMIR A. NAIK, ADV.,)
                            ---

THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 30.3.2013 PASSED IN M.C NO.1921/2010 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, DISMISSING THE PETITION FILED U/SEC 13(1)(i)& (ia) OF HINDU MARRIAGE ACT AND ALLOWING THE PETITION FILED U/SEC 13(1)(ib) OF HINDU MARRIAGE ACT.

IN M.F.A. NO.6091 OF 2013

BETWEEN:

SMT. JAYANTHI H.L.

W/O SRI. PURUSHOTHAM RAO AGED ABOUT 34 YEARS R/O # 332, MANJUNATHA NILAYA KATARIPALYA KOLAR-563101.

... APPELLANT (BY MR. RAMESH KUMAR R.V., ADV.,)

AND:

SRI. PURUSHOTHAM RAO .K S/O SRI. KRISHNOJI RAO AGED ABOUT 39 YEARS R/O # 394, F BLOCK SAHAKARA NAGARA BANGALORE-92.

... RESPONDENT (BY MR. SHAMIR A. NAIK, ADV.,)

---

THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 30.03.2013 PASSED IN M.C.NO.3669/2010 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, DISMISSING THE PETITION FILED U/S 9 OF HINDU MARRIAGE ACT, FOR RESTITUTION OF CONJUGAL RIGHTS.

THESE M.F.As. COMING ON FOR FINAL HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

Mr.Ramesh Kumar R.V., learned counsel for the

appellant.

Mr.Shamir A., learned counsel for the respondent.

Both these appeals preferred under Section 19(1) of

the Family Courts Act, 1984 arise from judgment dated

30.03.2013 passed by the Family Court in M.C.No.1921/2010

and M.C.No.3669/2010 by which petition filed by the

appellant / wife under Section 9 of the Hindu Marriage Act,

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

dismissed, whereas the petition filed by the respondent /

husband under Section 13 of the Act seeking dissolution of

marriage has been allowed on the ground enumerated under

Section 13(1)(ib) of the Act. In MFA No.6090/2013,

judgment and decree passed by the Family Court in

M.C.No.1921/2010 by which the marriage between the

parties has been dissolved, has been assailed whereas in

MFA No.6091/2013, judgment and decree passed by the

Family Court in M.C.No.3669/2010 has been challenged by

which petition filed by the wife under Section 9 of the Act,

has been dismissed. Both the aforesaid appeals arise from

the common judgment and therefore, the same were heard

analogously and are being decided by this common

judgment.

2. Facts leading to filing of these appeals briefly stated

are that appellant is the legally wedded wife of the

respondent. Their marriage was solemnized on 27.11.2005

at Bengaluru. Out of the wedlock, son was born on

12.09.2006. It is the case of the appellant / wife that the

respondent / husband unreasonably and without any excuse

withdrew himself from the company and society of the wife

since August 2010 at the instance of his sisters and mother.

According to the appellant / wife, she joined the matrimonial

home in December 2009 and resided there till 2010. The

respondent / husband, in his petition under Section 13 of the

Act, averred that appellant / wife continued to exhibit total

disrespect for marital time and conjugal obligation. It was

further averred that even after marriage she did not change

her surname. It was also averred that the appellant / wife

used to visit Kolar on one pretext or the other and did not

care to spend time with the family of the respondent and

quarrelled with the respondent and found fault with him. The

respondent further averred that the appellant treated him

with cruelty and deserted him since 29.01.2008.

3. The respondent thereupon filed a petition under

Section 13 of the Act on 23.06.2010 seeking dissolution of

marriage on the ground of desertion and cruelty. The

appellant subsequently after a period of approximately more

than 2½ years i.e. 01.02.2013 filed a petition under Section

9 of the Act. Both the petitions were clubbed and were tried

together. The husband examined himself as PW-1 and

another witness Shri.R.Krishnoji Rao (PW-2) and exhibited

documents namely Ex.P1 to P7. The appellant / wife

examined herself and did not produce any documentary

evidence.

4. The Family Court vide common judgment dated

30.03.2013 inter alia dismissed the petition filed by the

appellant / wife under Section 9 of the Act whereas the

petition filed by the respondent / husband under Section 13

of the Act was allowed on the ground that the appellant /

wife has deserted the respondent / husband for a continuous

period of 2 years preceding the date of filing of the petition.

In the aforesaid factual background, these appeals have been

filed.

5. Learned counsel for the appellant / wife submitted

that there is no pleading in the petition with regard to

desertion and therefore, any evidence on record with regard

to desertion could not have been looked into by the Family

Court. It is further submitted that the Family Court grossly

erred in rejecting the petition filed by the appellant / wife

under Section 9 of the Act. On the other hand, learned

counsel for the respondent has supported the judgment and

decree passed by the Family Court.

6. We have considered the submissions made on both

sides and have perused the record. Section 13(1)(ib) of the

Act is extracted below for the facility of reference:

"13(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--

     (i) xxxx
     (ia) xxxx
     (ib)   has      deserted   the   petitioner    for   a

continuous period of not less than two years immediately preceding the presentation of the petition; or"

7. 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 a case of desertion is made out or

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

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

the instant case, from perusal of paragraphs 28 and 29 of the

petition filed under Section 13 of the Act, it is evident that

the respondent / husband has pleaded that the appellant /

wife has left the matrimonial home on 29.01.2008.

Therefore, the contention that the date of desertion has not

been pleaded in the petition, is misconceived.

9. The respondent / husband, in his evidence, has

reiterated the averments made in paragraphs 28 and 29 of

the petition. The appellant / wife, in her objection

statement, has stated that she left the matrimonial home in

September 2009 and joined the matrimonial home in

December 2009 and lived with respondent / husband till June

2010. However, in her evidence, in paragraph 14 of

examination-in-chief, has stated that she has left the

matrimonial home in August 2010. Thus, inconsistent stand

has been taken by the appellant / wife with regard to her

stay in the matrimonial home. It is noteworthy that father of

the respondent / husband namely Shri.R.Krishnoji Rao, has

stated in paragraph 40 of his examination-in-chief that the

appellant / wife was employed as a lecturer in KGF Law

College, Kolar in the year 2008 and thereafter was pursuing

M.Phil. course in Kolar. However, the aforesaid statement

made by the father-in-law of the appellant / wife has not

been challenged in the cross-examination. It is trite law that

any statement of fact which is not challenged in the cross-

examination is deemed to have been admitted.

10. It is the case of the appellant / wife that she did

the M.Phil. course from Bengaluru and not Kolar. However,

no documentary evidence was adduced to prove the

aforesaid fact. It has also been admitted by the appellant /

wife in her cross-examination that she got the son of the

parties admitted to Eurokids school in Kolar in the year 2008

whereas the respondent / husband was residing in

Bengaluru. The appellant / wife has further admitted in her

cross-examination that she is not aware about the details of

death of respondent's grandmother when she was residing

with him. She has further admitted in the cross-examination

that she did not attend the family trip to Shirdi. The

aforesaid admissions in the cross-examination indicate that

she did not reside with the respondent / husband after 2008.

11. Learned counsel for the appellant has invited the

attention of this court to order dated 19.07.2012 passed by

the family court by which child was granted maintenance at

the rate of Rs.6,000/- by the family court. Learned counsel

for respondent has submitted that the aforesaid order is ab

initio void as the affidavit in support of the application does

not contain verification clause suffice it to say that the same

would not render the order ab initio void as the affidavit

suffer from an irregularity. The respondent did not take such

a contention before the family court. The aforesaid order

binds the parties. Therefore, I.A.2/2013 is disposed of with a

direction to the respondent to make payment at the rate of

Rs.6,000/- per month during the pendency of this appeal to

the respondent. Needless to state that the appellant shall be

at liberty to take recourse to such remedy as may be

available in law with regard to permanent alimony and with

regard to expenses towards the maintenance of the son.

12. In view of the aforesaid evidence on record, it can

safely be concluded that the plea of desertion has been

proved by the respondent / husband. The Family Court, on

the basis of meticulous appreciation of the evidence on

record, has held the ground of desertion to be proved and

has dissolved the marriage between the parties by a decree

of divorce. The aforesaid finding does not call for any

interference in this appeal.

For the aforementioned reasons, we do not find any

merit in these appeals.

In the result, the same fail and are hereby dismissed.

Sd/-

JUDGE

Sd/-

JUDGE RV