Sri Varade Gowda vs Smt Chennamma @ Anandi @ Mangala
2022 Latest Caselaw 8852 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF JUNE 2022

                      PRESENT
       THE HON'BLE MR. JUSTICE ALOK ARADHE

                        AND

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

 MISCELLANEOUS FIRST APPEAL NO.3702 OF 2012 (FC)

BETWEEN:
SRI VARADE GOWDA
S/O KADE GOWDA
AGED ABOUT 50 YEARS
RESIDING AT #12
1ST MAIN, II CROSS
MUNESHWARANAGAR
PATTEGARPALYA
BENGALURU - 560 079
                                        ... APPELLANT
(BY SMT. P.V. KALPANA, ADVOCATE)

AND:

SMT. CHENNAMMA @ ANANDI @ MANGALA
D/O CHIKKONU & W/O SRI. VARDE GOWDA
AGED ABOUT 45 YEARS
PRESENTLY RESIDING AT #62/3
4TH CROSS, 1ST MAIN, ASHWATHNAGARA
ADJACENT TO P & T COLONY
SUNKADA KATTE
BENGALURU - 560 091
                                      ... RESPONDENT

(RESPONDENT SERVED AND UNREPRESENTED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF THE FAMILY COURTS ACT, PRAYING TO
SET ASIDE JUDGMENT AND DECREE DATED 2ND DAY OF
DECEMBER 2011 PASSED BY THE PRINCIPAL JUDGE FAMILY
COURT, BENGALURU CITY MADE IN M.C.NO.2514/2011 AND
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ALLOW THE PETITION M.C.NO.2514/2011 ON THE FILE OF
THE PRINCIPAL JUDGE FAMILY COURT BENGALURU CITY
AND GRANT A DECREE OF DIVORCE BY DISSOLVING THE
MARRIAGE OF THE APPELLANT WITH RESPONDENT AS
PRAYED FOR IN THE PETITION AND PASS SUCH OTHER
ORDER AS THIS HON'BLE COURT DEEMS FIT UNDER THE
CIRCUMSTANCE OF THIS CASE IN THE INTERESTS OF
JUSTICE.

      THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:


                        JUDGMENT

Smt. P.V. Kalpana, learned counsel for the

appellant.

This appeal under Section 19(1) of the Family

Courts Act, 1984 has been filed against the

judgment dated 02.12.2011 passed by the Family

Court by which the petition filed by the appellant

seeking dissolution of marriage on the ground of

cruelty and desertion has been dismissed.

2. The facts giving rise to filing of this

appeal briefly stated are that the marriage between

the parties was solemnized on 07.05.1989 in

Mandya District. Out of the wedlock, two children,

namely, Prameela and Pradeep Kumar were born to

the parties. The aforesaid children are now major.

3. The appellant filed the petition on

21.07.2011 under Section 13 of the Hindu Marriage

Act, 1955 (hereinafter referred to as 'the Act' for

short). In the said petition, it was averred that the

daughter of the parties, namely, Prameela, married

a person of her own choice contrary to the wishes

of the appellant as well as the respondent.

Thereafter, in the year 2008, she approached the

appellant as well as the respondent seeking their

pardon. However, the respondent refused to pardon

the daughter and insisted upon the appellant not to

speak to her and not maintain any relationship with

the daughter. Due to the quarrel which use to take

place between the appellant and respondent, the

land lord asked the appellant to vacate the

premises. The respondent thereupon set up a

separate house and resided separately and received

Rs.1,15,000/- from the land lord which was the

deposit money handed over by the appellant. It was

pleaded that the respondent has deserted the

appellant for the period of two years. It was also

pleaded that the respondent is residing separately

and has failed to perform any conjugal duties.

Therefore, a decree of dissolution on the ground of

cruelty and desertion under Section 13(1)(ia) & (ib)

was sought.

4. Despite service of notice, respondent

failed to put in appearance or to contest the

proceedings and was placed exparte. The appellant

in support of his case examined himself as PW-1,

his daughter Prameela as PW-2 and land lord

Sri.M.Narayanaswamy as PW-3. The appellant

exhibited the documents, namely, Exs.P-1 to P-6.

5. The Family Court vide judgment dated

02.12.2011 inter alia held that the averments made

in the petition even if they are accepted at the face

value, do not amount to cruelty. It was further held

that the appellant has failed to plead and put up a

plea of desertion. Accordingly, it was held that the

grounds for dissolution of marriage are not made

out. In the aforesaid factual background, this

appeal is filed.

6. Learned counsel for the appellant fairly

submitted that no pleading is made by the appellant

with regard to the desertion. However, residing

separately without any justification and not

performing the conjugal duties itself tantamounts to

cruelty. It is therefore submitted that the impugned

judgment and decree is therefore liable to be set

aside.

7. We have considered the submissions

made by the learned counsel for the appellant and

have perused the records. It is trite law that when

one party to the lis adduce the evidence and the

other party does not lead any evidence against the

same, the burden of proof in such a case is lighter.

8. The Hon'ble Supreme Court in the case

of 'VINITA SAXENA VS. PANKAJ PANDIT',

(2006) 3 SCC 778 has held that mental cruelty

can cause even more serious injury than the

physical harm and create in the mind of the injured

appellant such apprehension as is contemplated

under Section 13. It is to be determined on whole

facts of the case and the matrimonial relations

between the spouses. To amount to cruelty, there

must be such wilful treatment of the party which

caused suffering in body or mind either as an actual

fact or by way of apprehension in such a manner as

to render the continued living together of spouses

harmful or injurious having regard to the

circumstances of the case. It has also been held

that mere coldness or lack of affection cannot

amount to cruelty. It has also been held that the

mental cruelty is a state of mind and a sustained

course of abusive and humiliating treatment

calculated to torture, discommode or render

miserable life of the spouse would amount cruelty.

It has also held that sustained reprehensible

conduct, studied neglect, indifference or total

departure from the normal standard of conjugal

kindness causing injury to mental health or deriving

sadistic pleasure can also amount to mental cruelty.

It has further held that not allowing a spouse for a

long time, to have sexual intercourse by his or her

partner, without sufficient reason, itself amounts

mental cruelty to such spouse. A Bench of Three

Judges of Hon'ble Supreme Court in 'SAMAR

GHOSH VS. JAYA GHOSH', (2007) 4 SCC 511

has enumerated some of the illustrations of mental

cruelty.

9. On the touchstone of well settled legal

principles if the evidence adduced by the appellant

is analyzed, it is evident that even if the statement

made by the appellant and his land lord are

accepted in entirety, it may lead to inference that

the respondent use to quarrel with the appellant

and had asked appellant not to pardon their

daughter. Mere coldness or lack of affection does

not amount to cruelty. Thus, the averments made

by the appellant as well as the evidence adduced by

the appellant does not make out any ground for

dissolution of marriage on the ground of cruelty.

10. Insofar as the ground of desertion is

concerned, suffice it to say in the petition that there

is no pleading with regard to the actual date of

desertion. The appellant has sent the notice on

25.06.2011 at Ex.P-3 and has filed the petition on

21.07.2011. Thus, in the absence of any pleading

that the respondent has deserted the appellant for

a continuous period of two years immediately

preceeding the presentation of the petition, the

Family Court has rightly held that no ground for

desertion is made out.

11. For the aforementioned reasons, we do

not find any merit to differ with the view taken by

the Family Court.

The appeal fails and is hereby dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

Mds/-