Smt Sandhya Rani vs Sri G V Vishwamohan
2022 Latest Caselaw 9365 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND 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.5040 OF 2018 (FC)

BETWEEN:

SMT SANDHYA RANI
W/O G V VISHWAMOHAN
AGED ABOUT 29 YEARS
R/AT BAGATH SINGH ROAD,
C/O VEKATASWAMY NAIDU
MUTHYALPET
MULBAGAL
KOLAR DISTRICT - 563131
                                      ... APPELLANT
(BY SMT. BINDU, ADVOCATE FOR
    SRI. SHIVA SHANKAR C, ADVOCATE)

AND:

SRI G V VISHWAMOHAN
S/O P M VENKATAPPATAPPA
AGED ABOUT 36 YEARS
R/AT NEAR ADHARSHA COLLEGE
PETECHAMANAHALLI P C LAYOUT
KOLAR - 563101
                                      ...RESPONDENT
(BY SRI SHANKARAPPA, ADVOCATE)
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    THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 21.04.2018 PASSED IN MC NO.59/2016
VIDE DOCUMENT 1 ON THE FILE OF THE PRL. JUDGE,
FAMILY COURT, KOLAR.

     THIS MFA HAVING BEEN HEARD AND RESERVED ON
14.06.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE
FOLLOWING:

                      JUDGMENT

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

Courts Act, 1984, is preferred by the wife against the

impugned judgment and decree in M.C.No.59/2016, by

which the Family Court granted a decree of divorce on

the petition filed by the husband under Section 13(1)(i-a),

but rejected the petition filed by the husband under

Section 13(1)(i-b) of the Hindu Marriage Act, 1955

(hereinafter referred to as 'the Act' for short).

2. For the sake of convenience the parties are

referred to by their rank before the Family Court.

3. Brief facts leading to the filing of the petition

by the husband seeking decree of divorce under Section

13(1)(i-a) & (i-b) of the Act are that the marriage of

petitioner and respondent was solemnized on 25.05.2015

at Srinivasa Kalyana Mantapa, Mulbagal town of Kolar

District as per Hindu customs and rituals. Since

respondent was coming from a poor family all the

expenses of the marriage were borne by petitioner's

family. Respondent lived with the petitioner only for a

period of 8 days. However, she did not allow the marriage

to be consummated. Respondent was not happy by the

fact that petitioner is only ordinary Graduate whereas

she is a B.E. Graduate working in KMF and is getting a

handsome salary. The respondent expressed that she

married the petitioner at the insistence of her mother.

4. After 8 days, she left the matrimonial home

without informing the petitioner and his aged parents.

She made false allegations that the petitioner is impotent.

Even though panchayaths were held and she was advised

by the elders of the family, respondent did not come

forward to join the petitioner. On 11.12.2015, though the

petitioner agreed for divorce by mutual consent by

receiving Rs.1,00,000/-, suddenly she changed her mind

by demanding Rs.50,00,000/-. She has chosen to file

false complaint alleging harassment on account of

demand of dowry. She has also issued legal notice

seeking maintenance. Even though respondent sent reply

requesting her to come and join the matrimonial home,

she has not conceded to the same. Without any

alternative, this petition is filed seeking a decree of

divorce.

5. Respondent appeared and filed objections

admitting the relationship between the parties. However,

she has denied that the marriage expenses were borne by

the petitioner and his family. She has alleged that their

marriage was performed by spending huge amount upon

mortgaging the house. Though she has denied that she

stayed in the house of petitioner for only 8 days, but

claimed that she lived with him for one month.

Respondent has alleged that through the broker,

petitioner and his family members falsely represented

that petitioner is a Post Graduate with M.Sc., working at

Emphasis and is getting salary of Rs.50,000/- p.m. and

that they are having landed properties and houses

fetching income of Rs.1,00,000/-p.m. However, she

realised that the petitioner has studied only upto 10th

standard and was not working and that his father who

was a retired Government employee who managed to get

false certificates and thereby she was cheated.

6. She has also alleged that the marriage was not

consummated during the period of 15 days of her stay in

the house of petitioner as he is impotent. The petitioner

and his family members have secured injunction

restraining her from disclosing to the media about the

petitioner and his father having concocted false

certificates. When she sent legal notice seeking

maintenance, as a counter blast the petitioner has filed

this petition and prays to dismiss the same.

7. Based on the pleadings, the Family Court

framed issues and recorded the evidence.

8. During the enquiry, the petitioner examined

himself as PW-1 and two witnesses as PWs-2 and 3. He

has got marked Ex.P1 to 17.

9. On the other hand, respondent examined

herself as RW-1 and two witnesses as RWs-2 and 3 and

got marked Ex.R1 to 39.

10. Vide the impugned judgment and decree the

Family Court has partly allowed the petition granting

decree of divorce under Section 13(1) (i-a), but rejected

the same on the ground of desertion under Section

13(1)(i-b) of the Act.

11. During the course of the arguments the

learned counsel for appellant submitted that the Family

Court has not assigned any cogent and convincing

reasons for partly allowing the petition, despite the

petitioner having failed to prove the ingredients of Section

13 (1) (i-a) and that the Family Court has not appreciated

the oral and documentary evidence placed on record.

The Family Court has not given any findings regarding

the fraud and misrepresentation committed by the

petitioner in falsely claiming that he has done Masters in

Science and was working in a company.

12. On the other hand, learned counsel for

petitioner supported the impugned judgment and decree

and sought for dismissal of the appeal. At the time of

arguments, the learned counsel for respondent - wife has

filed I.A.No.2/2022 seeking grant of permanent alimony

to an extent of Rs.1 crore.

13. In the affidavit appended to the application

viz., IA No.2/2022, petitioner has pleaded that she is a

BE Graduate and is working in KMF on contract basis for

a gross salary of Rs.25,000/- per month. Whereas, the

petitioner is a M.Sc. Graduate working in Emphasis and

getting salary of Rs.50,000/- and inspite of having

sufficient resources he has failed to maintain her. It is

averred that the petitioner has not disclosed his financial

position and job status.

14. Petitioner has filed objections stating that

respondent is highly qualified and is having a job and

earning more than Rs.40,000/-p.m. She is owning two

houses and getting rent of Rs.30,000/- p.m. As a make

up artist, also she earns money. The impugned judgment

and decree came to be passed after providing opportunity

to both parties and rightly no alimony is granted to the

respondent. It is the petitioner and his family members

who bore the expenses of the marriage. No dowry was

demanded or received. In fact, in the criminal case,

respondent has admitted that there was no demand of

dowry and she filed the complaint because petitioner

sought decree of divorce. Respondent's petition filed

under Section 125 Cr.P.C is pending. Though petitioner

was working in HGS company, for his passion in

agriculture, he resigned on 24.01.2020 and is pursuing

agriculture. When respondent has not sought for alimony

before the Family Court, the same is not maintainable

before this Court in appeal and prays to dismiss the

appeal and reject I.A.No.2/2022. In support of his

objections to I.A.No.2/2022, respondent has relied upon

the following decisions:

         i)     D Balakrishnan Vs. Pavalamani
                (Balakrishnan's case)1



    AIR 2001 MADRAS 147



         ii)    Subramanian Vs. Srividya
                (Subramanian's case)2

15. We have heard arguments made on both sides

and have perused the record.

16. The marriage between the parties was

performed on 25.05.2015. Though petitioner claims that

respondent stayed only for a period of one week in the

matrimonial home, according to the respondent she

stayed there for a period of one month. Petitioner has

alleged that the respondent never allowed the petitioner

to consummate the marriage. Fact remains that within a

month of the marriage, respondent has left the

matrimonial home for the good. According to the

petitioner, respondent was not willing to the marry the

petitioner and only on the insistence of her mother, she

agreed for the marriage. However, making baseless

allegations of impotency, she left the matrimonial home

and after he filed petition seeking divorce, making false

LAWS(KAR)-2012-8-110

allegations of dowry demand, she made complaints to the

police and also filed Misc.Petition for maintenance. He

has also alleged that she even made allegations that the

father of petitioner managed to get him false marks card

for SSLC and upto Masters and in order to defame the

petitioner as well as his parents, especially his father,

who is a District President of Congress, she wanted to

call for a press meeting and petitioner and his family

members had to file a suit and secure temporary

injunction against it. Though they have made several

attempts to get back the respondent to the matrimonial

home, she was not willing and ultimately she demanded

permanent alimony of Rs.1 Crore to give divorce by

mutual consent and on these grounds, petitioner has

sought divorce not only on the ground of cruelty but also

on the ground of desertion.

17. On the other hand respondent has contended

that petitioner has failed in 10th Standard, but he and his

family members falsely represented that he is a Masters

in Science and working in Emphasis and getting

Rs.50,000/- as salary and that they are also owning

immovable and landed properties worth Crores of Rupees

and they are getting income of Rs.5 lakhs p.m. and with

this background, they got her married to the petitioner.

Later on, she realized that he has not even passed SSLC

and thereby the petitioner and his family members have

cheated her. In the objection statement, she has

specifically pleaded that had she been aware of the fact

the petitioner has not even passed SSLC, she would have

not married him. She has made allegations that the

petitioner is impotent and for this reason the marriage

was not consummated. Respondent has alleged that

within a period of one month, she was harassed and ill

treated for dowry forcing her to leave the matrimonial

home.

18. So far as desertion is concerned, as rightly

observed and held by the Family Court, the marriage of

petitioner and respondent took place on 25.05.2015

whereas petition seeking divorce came to be filed on

07.09.2016. The condition seeking for divorce on the

ground of desertion i.e., respondent has withdrawn

without any justifiable cause from the company of the

petitioner for a minimum period of two years immediately

prior to the filing of the petition is not fulfilled and

therefore, the Family Court has rightly rejected the

petition so far as ground of desertion is concerned. Of

course the petitioner has not challenged the said

findings.

19. So far as ground of cruelty is concerned, it is

an admitted fact that right from the first day of the

marriage, the respondent was entertaining a doubt that

petitioner has not even passed 10th Standard and that

his father being a retired employee of the Education

Department, has managed to get false certificates in his

favour, the respondent has specifically pleaded that had

she known about this fact prior to the marriage, she

would not have married the petitioner. It appears that

this is the real reason behind the respondent in not

leading a marital life with the petitioner. It is relevant to

note that petitioner is having three sisters and all of them

are highly educated, two of them being Doctors, their

spouses are also Doctors. His another sister has done

M.A and her husband is working in Horticulture

Department.

20. In the result the petitioner and his family

members wanted to have a daughter-in-law who is also

highly qualified. The petitioner has specifically pleaded

that inspite of the fact that the respondent is coming

from a humble background, they were satisfied by the

fact that she is an Engineering Graduate and therefore

they went ahead with her alliance.

21. Though petitioner claims that respondent

stayed in the matrimonial home only for one week, even

according to the respondent she stayed only for a period

of one month at the most and making allegations that the

petitioner is an impotent, she has left the matrimonial

home. One month is too short a period to make

allegations that the petitioner is impotent, especially

when respondent herself was not willing to stay in the

matrimonial home. It supports the contention of the

petitioner that it is the respondent who did not co-

operate with the petitioner to consummate the marriage.

It was too early for the respondent to make such

allegations without providing both of them reasonable

time to cohabit with each other and develop faith and

confidence in each other. From the manner in which

respondent has conducted herself goes to show that she

wanted to get rid of the petitioner and therefore has left

the matrimonial home. The evidence placed on record

indicate that at the instance of petitioner, panchayaths

have been held and inspite of it, the respondent did not

agree to go back to the matrimonial home.

22. As rightly discussed and held by the Family

Court, after leaving the matrimonial home, respondent

has tried to make defamatory allegations against the

petitioner and his family members and as such they were

forced to file a suit and secure interim order of temporary

injunction of restraint. She has even gone to the extent of

making false allegations of dowry demand and ill

treatment on account of the same forcing her to leave the

matrimonial home. However, the evidence led by her

establish the fact that it is an after thought and that she

has chosen to make false allegations by filing a

complaint. Admittedly, the criminal case filed alleging

dowry harassment came to be dismissed and the

petitioner and his family members were acquitted. The

said judgment establish the fact that during the course of

her evidence, respondent has admitted that there was no

demand for dowry and because petitioner sought a

decree of divorce, she filed a false complaint.

23. It is also relevant to note that throughout the

proceedings before the Family Court, the respondent has

consistently maintained that petitioner has not even

completed SSLC and it was falsely represented that he

has done Masters in Science. It is pertinent to note that

the respondent has taken a volte face stand in her

application viz., IA No.2/2022 that the petitioner is a

highly qualified person and is an employee in a private

company which reflects the inconsistent stand taken by

the respondent with regard to the qualification of the

petitioner which is the bone of contention between the

parties.

24. The very fact that respondent is making false

allegations against the petitioner that he has not even

completed SSLC and that his father managed to get false

certificates and the conduct of the respondent, making

false allegations of impotency, dowry harassment as well

as attempt to defame the petitioner and his family

members by making defamatory allegations establish the

ground of cruelty and therefore rightly, the Family Court

has allowed the petition under Section 13(1) (i-a) of the

Act and granted decree of divorce. We find no ground to

interfere with the said findings of the Family Court.

25. Now we may advert to the application viz., IA

No.2/2022 filed by respondent seeking permanent

alimony. Though the petitioner has contended that now

he has resigned and is pursuing agriculture, in his letter

of resignation and the acceptance of the same by the

employer itself, there is reference that after resigning his

job in Emphasis, he has joined Altruist Technologies

Private Limited. It could be reasonable to expect that he

is earning Rs.50,000/- p.m. Even though respondent has

claimed that petitioner is having several landed

properties including residential house, fact remains that

petitioner and his father are living in a joint family and

there are nearly 50 sharers in the said properties.

Therefore, as rightly stated by the petitioner at the most

he may get around 9 guntas of land. It is relevant to note

that the respondent is a Graduate in Engineering and

she is working with KMF and taking into account these

aspects, we are of the considered opinion that granting

permanent alimony in a sum of Rs.15 lakhs would meet

the ends of justice.

26. In D Balakrishnan's case, it was held that

permanent alimony could be granted only if application is

filed under Section 25 of the Act. Though respondent did

not file such application before the Family Court and

therefore rightly the Family Court has refrained from

granting from permanent alimony. However, before this

Court, she has filed necessary application and therefore,

this decision is no avail to the petitioner.

27. In Subramanian's case, it was held that if

spouse is gainfully employed, there is no need to grant

alimony. It is true that in the present case, respondent is

employed. However, it cannot be said that her income is

such that she does not require grant of any alimony. At

the same time, the petitioner is not absolved of his

responsibility to pay permanent alimony. In the

circumstances, we hold that this decision is also not of

any aid to the petitioner.

28. Thus, in view of the preceding analysis, we

hold that the appeal filed by the respondent is devoid of

merits but at the same time, respondent is entitled for

permanent alimony which is quantified at Rupees Fifteen

Lakhs and accordingly, we proceed to pass the following:

ORDER

(i) Appeal filed by respondent is dismissed.

(ii) The impugned judgment and decree

granting decree of divorce under Section

13(1) (i-a)of the Act is confirmed.

(iii) However, the petitioner is directed to pay

permanent alimony to an extent of Rs.15

lakhs to the respondent.

(iv) The registry is directed to transmit the

trial Court record along with copy of this

judgment to the Family Court forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

RR