Karnataka High Court

Mr Kiran Albert Pinto vs Mrs Anitha Pinto on 29 June, 2022

Bench: Alok Aradhe, J.M.Khazi

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH 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.4608 OF 2015 (FC)

BETWEEN:

MR KIRAN ALBERT PINTO
S/O CHARLES PINTO,
AGED ABOUT 36 YEARS
RESIDING AT "ROSE KIRAN VILLA",
SARIPALLA,PADIL POST,
ALAPE VILLAGE,
MANGALURU - 575 007
                                   ... APPELLANT
(BY MISS. RACHITHA RAJASHEKAR, ADVOCATE FOR
    M/S P.P.HEGDE AND ASSTS)

AND:

MRS ANITHA PINTO
W/O KIRAN ALBERT PINTO,
AGED 34 YEARS
R/AT SUTERPETE, 9TH CROSS,
VALENCIA,KANKANADY,
MANGALURU - 575 002
                                   ... RESPONDENT
(BY SRI. S.N.BHAT, ADVOCATE - ABSENT)

     THIS MFA FILED U/S 19(1) OF FAMILY COURTS
ACT, 1984 READ WITH SECTION 55 OF THE INDIAN
DIVORCE ACT, 1869 PRAYING TO SET ASIDE THE
JUDGMENT DATED 25.08.2014 PASSED BY THE
PRINCIPAL JUDGE, FAMILY COURT, MANGALURU, D.K.,
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IN M.C NO.141/2013; AND CONSEQUENTLY ALLOW
THE PETITION FILED BY THE APPELLANT HEREIN FOR
DIVORCE, IN THE INTEREST OF JUSTICE AND
EQUIYTY.

     THIS MFA HAVING BEEN HEARD AND RESERVED
ON 22.06.2022, 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 r/w Section 55 of the

Indian Divorce Act, 1869, is filed by the husband

challenging the judgment and decree dated

25.08.2014 dismissing petition filed under

Section 10(1) (ix) of the Indian Divorce Act,

seeking divorce on the ground of desertion.

2. For the sake of convenience the parties

are referred to by their rank before the Family

Court.

3. Briefly stated the case of the petitioner

and respondent as enumerated in the petition as

well as the statement of objections are as under:

4. The marriage of petitioner and

respondent was solemnized on 03.01.2002. The

parties are Christians. They are blessed with a

son born around 2005 i.e three years after the

marriage. Both of them stayed in the parental

home of the petitioner and initially they worked in

the private establishment. After a year and a half

of marriage, both of them obtained Visa and

accordingly, went to Kuwait to be employed as

driver and house maid respectively. After about

two years, they returned to India. Petitioner

thereafter, again went to Gulf Countries in search

of work and he briefly visited to attend naming

ceremony of his son.

5. Petitioner has alleged that under the

pretext of going to attend beautician course,

respondent slowly started staying in the house of

her parents, without informing her parents-in-law

and when questioned regarding the same, she

stated that after the beautician classes, she

would be very tired to return to the matrimonial

home. Inspite of request and advice by the

husband and elders of the family, she continued

to stay in her parents house. After the second

birthday of the son, she left the matrimonial

home for good. The parents of the respondent

instead of advising her to return to the

matrimonial home, supported her. When

questioned by the petitioner, respondent stated

that she would return to the matrimonial home

and stay with him only when he returns to India

and would stay with him only for the duration of

his stay in India.

6. When petitioner returned to India for a

short stay, though respondent returned to the

matrimonial home and stayed with him, however

as soon as he left India, she also returned to her

parental home. When the mother and other

relatives of the petitioner insisted upon

respondent to return to the matrimonial home,

the brother of the respondent assaulted the

mother of the petitioner and a police complaint

was lodged. Over telephonic communication

respondent told the petitioner she is not

interested in returning to the matrimonial home.

Since the year 2009, respondent has not returned

to the matrimonial home and she has deserted

him. In the year 2011 also, petitioner tried to get

the respondent back to the matrimonial home but

in vain. Respondent is not having any justifiable

grounds to stay away from the company of the

petitioner.

7. Ultimately, on 17.05.2012, petitioner

got issued a legal notice seeking restitution of

conjugal rights. Instead of returning to the

matrimonial home, respondent has sent a evasive

reply. In the year 2013, when the petitioner came

to India, he tried to contact the respondent but

she had changed her cell phone number. When

petitioner, his mother, one Lesley and Ganapathi

who is a common acquaintance of both petitioner

and respondent went to the house of parents of

the respondent, she did not agree to return to the

matrimonial home. Petitioner also came to know

that respondent is involved in a theft case. With

no other alternative, he has filed this petition

seeking divorce on the ground of desertion.

8. In the objection statement, respondent

admitted the relationship and birth of the son

through the wedlock. However, though at para-9

respondent states that she is ready and willing to

live with the petitioner, provided he establishes a

separate residence for her and mend his habits,

at the same time in the next sentence she has

stated that at this stage it is impossible to stay

with the petitioner and lead a safe life.

9. She has alleged that when she filed

C.Misc.25/2013 for maintenance, as a counter

blast, petitioner has filed this petition. She has

alleged that shortly after the marriage, the

petitioner started treating her cruelly, abusing,

insulting and actively supporting his parents. He

was demanding that her entire salary should be

paid to him. She admits that for a short period,

petitioner and respondent worked in Kuwait, but

alleges that all their income was sent to the

petitioner's mother and when they returned to

India, they were rendered without any savings. At

the time of birth of their son, petitioner was not

in India and he went back to Gulf in search of

work. After delivery, when she was in the house

of her parents-in-law, she was harassed and

petitioner did not send money to her and

therefore she had to secure a job, but the parents

of petitioner were not ready to take care of the

child.

10. Respondent further averred that she

passed the beautician course with the help of her

parents. Petitioner did not make any efforts to

take the respondent and their son to Dubai.

Petitioner deserted the respondent since the year

2007. The mother-in-law of respondent ousted

the respondent and her son from the matrimonial

home. During the year 2010, a lady called Janet

came to the office of the respondent and insulted

her. The complaint filed against the brother of the

respondent was settled in the police station. In

the year 2011, petitioner demanded her to give

divorce. He issued the legal notice to escape from

the liability of paying maintenance and his

parents have spoiled the reputation of respondent

in the Society and has sought for dismissal of the

petition.

11. During the enquiry, petitioner has

examined himself as PW-1, his mother as PW-2

and their common friends as PW-3 and 4. He has

relied upon Ex.P1 to 43.

12. On the other hand respondent has

examined herself as RW-1 and her father as

RW-2. She has relied upon Ex.R1.

13. During the course of arguments, the

learned counsel representing the petitioner

submitted that the impugned judgment and

decree is unsustainable both in law and on facts.

The Family Court has not appreciated the

evidence on record in its correct legal perspective.

It has not considered the evidence and points

canvassed on behalf of the petitioner and thereby

misdirected itself in holding that petitioner has

not established that the respondent had the

animus to desert the petitioner. The evidence on

record clearly establish that since the year 2009,

the respondent is living separately from the

petitioner without any reasonable and justifiable

cause and consequently the marriage bond

between the parties is broken down. The

dismissal of the petition has resulted in serious

miscarriage of justice.

14. We have considered the arguments of

the learned counsel for petitioner and have

perused the record.

15. The marriage between the parties was

solemnized on 03.01.2002 and after the marriage

both of them stayed in the parental home of the

petitioner. They are blessed with a son after three

years of marriage i.e., around the year 2005. The

evidence led by the petitioner establishes the fact

that even during her time, petitioner's mother

worked in Gulf Countries. Though petitioner and

respondent were working in private employment

in India, after about one and half years, both of

them have gone to Kuwait and worked under the

same employer, while petitioner worked as driver,

the respondent worked as a house maid. Though

respondent has alleged that while she was

working as house maid, she was harassed by the

employer, no such evidence is placed on record to

prove the same. Nevertheless, when the

respondent became pregnant, they returned to

India. Subsequently, respondent refused to go to

Gulf Countries for work.

16. On the other hand, she has worked as

Gym instructor and later on after completing the

beautician course, she has also worked as a

beautician. It is pertinent to note that she used to

go to the work while staying with her parents-in-

law. Though in the pleadings, respondent has

alleged that as her mother-in-law refused to take

care of her child, she had to shift to her parents

house, during the course of her cross-

examination, she has admitted that while she

was working at the Gym, doing the beautician

course and working as beautician, her mother-in-

law used to take care of the child.

17. After the respondent left the

matrimonial home and started living with her

parents, petitioner, his parents as well as friends

and acquaintances have repeatedly approached

her and have requested her to return to the

matrimonial home. Each time such a request was

made, she insisted that the petitioner should set

up a separate residence and only then she would

stay with the petitioner. It is pertinent to note

that since the petitioner was working

continuously at Gulf Countries and was coming

to India briefly on holidays and as he is having

aged parents, he was reluctant to set up a

separate residence for the respondent.

18. Even though the respondent has

pleaded that petitioner used to abuse her and

insult her and she was even harassed by the in-

laws, she has not led any evidence to that effect.

She has alleged that since the year 2009, she has

been deserted by the petitioner. Admittedly, she

has not taken any steps by issuing legal notice

and filing petition seeking restitution of conjugal

rights.

19. The allegations of respondent that the

petitioner did not take care of her financial needs

is negated by the documents produced by the

petitioner to prove that he has sent money to the

respondent. Of course, he has also sent money to

his parents, as it was his responsibility to take

care of them. On the contrary, the respondent

has not led any evidence to show that their entire

salary i.e., the entire salary of petitioner as well

as respondent while they worked at Kuwait was

sent to her mother-in-law and thereby when they

returned they were rendered penniless and

without any savings.

20. Before issuing the legal notice, during

the year 2011, the petitioner, his mother, one

Lesley and Ganapathi who are examined as PWs-

2 to 4 have gone to the house of respondent's

parents where she has reluctantly met them and

expressed her intention not to return to the

matrimonial home. During her cross-

examination, respondent has admitted that all

along she has insisted for setting up of a separate

residence. She has admitted that Ex.P19 to 29

are the documents evidencing the petitioner

having sent money to her and her father. In fact,

she has admitted that while she was working

from 9.00 a.m. to 6.00 p.m., her son was taken

care by the mother-in-law and on 18.05.2007,

she along with the child left the matrimonial

home.

21. Though in page No.14 of her cross-

examination, respondent has stated that before

leaving for Kuwait, petitioner himself had

permitted her and the son to stay in her parents

house, as there was no one to take care of them,

however, there are no pleadings to that effect and

for the first time she has come up with such an

explanation. Though she has denied that when

her mother-in-law requested her to return to the

matrimonial home, her brother threatened her

mother-in-law, she has admitted that Ex.P9 and

10 are the documents regarding the complaint

given about the said incident. These are the

documents regarding the endorsement given by

the police advising the brother of respondent not

to indulge in threatening to the petitioner's

mother.

22. At page-18 of her deposition,

respondent has admitted that Lesley, Ganapathi

and others advised her to stay in the parental

home of the petitioner as they are old, she has

volunteered that as her relationship with her

mother-in-law is not cordial, she is not ready to

stay with her. She has admitted that after she

changed her phone number, when petitioner tried

to contact her, she has sent messages

questioning who is he, ask his parents not to call

her. In this regard, she has given an explanation

that as she was assaulted and driven out of the

matrimonial home and that her conduct is

attributable to the same. Admittedly, respondent

has not taken any steps against the in-laws for

allegedly driving her out of the matrimonial home

such as giving complaint to the concerned police

authorities or approaching the local church or

other parties who may have prevailed over her

mother-in-law. There are no pleadings that she

was assaulted and driven out of the matrimonial

home and the same is made as an after thought.

She has admitted that during the year 2011,

when petitioner returned to India and contacted

her, she has sent a message asking "whether you

are still alive". The examination of the evidence

placed on record in the light of the pleadings put

forth by the parties, it is evident that respondent

is not having any justifiable reasons to live away

from the petitioner and by making false

allegations against the petitioner, she has

deserted him.

23. Ex.P5 to 8 are the documents

pertaining to the criminal complaint filed against

the respondent for being involved in theft of a

purse containing gold ornaments, cell phone and

other articles by some third person. As per Ex.R1

in the said criminal case, she was acquitted for

lack of support by the recovery witnesses. Even

though these documents have no bearing on the

matrimonial dispute between the parties, it

supports the case of the petitioner that he has

not made any false allegations against the

respondent spoiling her reputation as alleged by

her in the objection statement.

24. The evidence placed on record

establish the fact that while respondent without

any justifiable cause has left the matrimonial

home and was not ready to come back and stay

with petitioner, respondent has failed to establish

that she was treated cruelly either by the

petitioner or his family members forcing her to

leave the matrimonial home. All along her

intention is to desert the petitioner and bring a

permanent end to the co-habitation. It is

pertinent to mention here that though the

respondent has denied that she has deserted the

petitioner, no efforts have been made by her to

resume co-habitation with the petitioner. Before

filing for divorce, the petitioner has time and

again made genuine efforts to see that respondent

returns to the matrimonial home and things are

normalized. However, knowing that petitioner is

working in Gulf Countries and returns to India

only during holidays and having regard to his

income, he is not in a position to set up a

separate residence, without any intention to

return to the matrimonial home, respondent has

taken up a false contention that she would have

returned to the matrimonial home, had he set up

a separate residence. Without appreciating the

evidence on record in its proper perspective, the

Family Court has rejected the petition. In view of

the preceding analysis, we are of the considered

opinion that the impugned judgment and decree

is not sustainable and accordingly proceed to

pass the following:

ORDER

(i) Appeal is hereby allowed.

(ii) The impugned judgment and decree is set aside and a decree of divorce is granted dissolving the marriage dated 03.01.2002 between the parties held at Cordel Church, Kulshekar, Mangaluru.