Karnataka High Court

Smt. Sunitha M K vs Sri K Shivappa 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.9629 OF 2013 (FC)

BETWEEN:

SMT. SUNITHA M K
W/O K SHIVAPPA
AGED ABOUT 35 YEARS
R/A NO.21, BHYRAVANILAYA
VIJAYANAGAR IST STAGE
OPP: KANNADA SAHITHYA PARISHATH
MYSORE - 570 001
                                    ... APPELLANT
(BY SRI. ARUN GADAG, ADVOCATE FOR
    SMT. PREETHY K, ADVOCATE)

AND:

SRI K SHIVAPPA
S/O KARIYAPPA
AGED ABOUT 54 YEARS
R/A NO.7/511
NEAR INDUSTRIAL ESTATE
MAHADESHWARA COLLEGE ROAD
SUDERAN EXTENSION
KOLLEGAL - 571 440
                                 ... RESPONDENT
(BY SRI. L.S.CHIKKANAGOUDR, ADVOCATE)

    THIS MFA FILED U/S 19(1) OF THE FAMILY
COURTS ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 22.04.2013 IN M.C.NO.127/2011
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PASSED BY THE JUDGE, FAMILY COURT, MYSORE.

     THIS MFA HAVING BEEN HEARD AND RESERVED
ON 21.06.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE
FOLLOWING:

                    JUDGMENT

Being aggrieved by the dismissal of her

petition filed under Section 13(1) (i-a) (i-b) of the

Hindu Marriage Act, 1955 (hereinafter referred to

as 'the Act' for short), appellant/wife has come up

with this appeal under Section 19(1) of the Family

Courts Act, 1984.

2. For the sake of convenience, the

parties are referred to by their rank before the

Family Court.

3. FACTS: Brief facts leading to the filing

of the petition are that the marriage of petitioner

and respondent was solemnized on 04.11.1992 at

Kollegal, as per Hindu customs and rituals

prevailing in their community. Petitioner started

to live in the matrimonial home along with

respondent and his family members at Kollegal

and lived happily for a period of one and half

years. Petitioner was working in a Wine store at

Gundlupet and was visiting the petitioner once in

a week or in 15 days. From the beginning

respondent failed to take care of the petitioner.

During 1993, petitioner gave birth to a son.

Respondent used to quarrel with the petitioner

without any reason.

3.1 During the year 1996, they set up

separate residence in a rented premises at

Mysuru. Parents of the petitioner supported them

financially. During the year 2000, petitioner gave

birth to second son. However, respondent did not

bother to take care of petitioner and their

children. Respondent was addicted to vices such

as playing lottery. He was harassing the

petitioner to get money from her parents. He used

to snatch away the money from her and also

taking away valuable things including gold

ornaments without the permission of the

petitioner. Unable to bare the harassment,

petitioner even attempted to commit suicide on

09.10.2004. When she was in the hospital,

respondent went to Bombay with his friends for

enjoyment. Later he ousted the petitioner from

the matrimonial home in the dead of the night at

2.00 a.m.

4. For the last seven years, petitioner is

living in her parents' house along with her second

son. Her first son is studying in boarding school

at Bengaluru. Respondent is not taking care of

the petitioner. He has gone to the extent of

threatening the petitioner through goondas,

making threatening phone calls. He even

suspects her character. Without any alternative,

this petition is filed seeking decree of divorce. The

cause of action for the petition arose in the year

2004, when respondent had completely deserted

and neglected the petitioner.

5. Respondent has appeared and filed

objections admitting the relationship between the

parties and that they are blessed with two sons.

However, he has denied that he is addicted to

vices such as playing lottery and he has failed

and neglected to maintain the petitioner and

children. At the time of marriage, petitioner has

completed SSLC. Since she was very bright in

academics, respondent advised her to join PUC at

Maharaja's College. He supported her financially

and morally. In fact petitioner completed her B.A.

and M.A. in Open University, Mysuru through

correspondence course. Respondent had even

sent her to Delhi for taking coaching classes for

attending IAS examination along with her

younger brother. However, petitioner failed to

take the exam.

6. While working with a wholesale liquor

dealer at Kollegal and at Mysuru, respondent was

earning a handsome salary. They were living in

different rented houses at Mysuru. However,

during 2004, while living at Gokulam area of

Mysuru, petitioner left the matrimonial home by

taking all the furniture, utensils, including

Ambassador car belonging to the respondent and

shifted to her parents' house at V.V.Mohalla,

Mysuru. She also forced respondent to live with

her.

7. The mother of the petitioner is running

educational institutions in the name and style of

Sunitha Institutions. During 2003, respondent

lost his job. Though he was working at his cousin

sister's company, he was getting a meagre salary.

Hence, petitioner started treating him with

contempt by addressing him as jobless. When

petitioner started getting busy in taking care of

educational institutions and neglected the family,

respondent questioned her. This led to the rift

between the parties. In fact he resided with the

petitioner till he received summons in this case.

When he questioned the petitioner about the

filing of the petition, she gave an adamant answer

saying that if he does not appear, then she will

get an ex-parte decree. Even now, respondent is

in contact with the petitioner and children. To

harass the respondent, petitioner has admitted

their second son to the Bishop Boarding School,

Bengaluru, where the first son is also studying.

After becoming financially sound, petitioner has

neglected the respondent and prays to dismiss

the petition.

8. During the enquiry, petitioner has

examined herself as PW-1 and got marked Ex.P1

and 2.

9. On the other hand respondent has

examined himself as RW-1.

10. Through the impugned judgment and

decree, the Family Court has rejected the petition

on both grounds holding that the petitioner has

failed to prove both cruelty as well as desertion.

The Family Court has observed that due to long

age gap between the petitioner and respondent, a

difference of opinion arose between them.

11. During the course of arguments, the

learned counsel for petitioner submitted that the

impugned judgment and decree is contrary to law

and the evidence placed on record. The Family

Court has failed to appreciate the evidence

regarding the mental cruelty suffered by the

petitioner at the hands of the respondent. The

Family Court has given findings which are

contrary to the evidence led by the parties. It has

failed to appreciate the fact that as a person

belonging to a cultured and respectable family,

petitioner did not chose to file police complaint

against the respondent and on this ground, the

Family Court has rejected the petition on the

ground of cruelty.

12. He would further submit that it has

also failed to appreciate the fact that since last 7

years prior to the filing of the petition, the parties

are living separately and thereby respondent has

deserted the petitioner and on this ground also

she is entitled for a decree of divorce.

13. We have heard the arguments of both

sides and have perused the record.

14. Though the petitioner has contended

and pleaded that the respondent was addicted to

bad habits such as drinking, playing lottery and

demanding dowry, it is also pleaded that the

respondent used to assault and ill treat the

petitioner. Admittedly, she has not filed any

complaint with the police. However, she has given

an explanation that in order to maintain the

prestige of the family, she did not want to file any

complaint. It does not stand to reason, especially

when according to the petitioner, the harassment

was unbearable and therefore, she attempted to

commit suicide and in that condition, she was in

the hospital for a fortnight. It is pertinent to

mention here that even though she has deposed

that in year 2004, she was removed from the

matrimonial home in the mid of the night by

snatching away her mangalasutra, toe rings

which are symbols of her being married and when

she was going to her parents' house, the Garuda

Police came and escorted her to house, in respect

of the said incident also she has not chosen to file

any complaint. Her evidence to the aforesaid

effect is not supported by any other testimony

either of independent witnesses or her family

members. In the result, the petitioner has failed

to establish that she was treated cruelly by the

respondent and therefore, rightly the Family

Court has rejected her petition so far as the

ground of cruelty is concerned.

15. Admittedly, the petitioner and

respondent are living separately since the year

2004. In this regard the respondent has pleaded

that during the year 2004, petitioner left the

matrimonial home by taking away all the

furnitures, household articles, including a

Ambassador car belonging to him and at the

same time he says that she also forcibly took him

with her to her parental home. If at all the

petitioner wanted to go away from the

matrimonial home i.e., away from the respondent,

there was no need for her to seek his company at

her maternal home. On the other hand, it is the

definite case of the petitioner that during the year

2004, she was ousted from the matrimonial home

and without any alternative she is living in her

parental home. Admittedly, respondent has not

taken any steps to bring back the petitioner to his

matrimonial home by issuing a notice or seeking

restitution of conjugal rights. In the cause title of

the petition, his address is given as resident of

Kollegal. In fact he has received the notice of this

petition at the said address.

16. In the objection statement, respondent

has not pleaded that he is not staying in the said

address and on the other hand, it is averred that

he is living with the petitioner in her house. In

fact, he has not led any evidence to prove that till

the filing of the petition, he was staying with the

petitioner and only after the petition was filed, he

left out of the said house. Respondent has also

not led any evidence to prove that even now at

least till the filing of the petition, he was taking

care of the petitioner and children. Therefore,

from the contrary stands taken by the respondent

with regard to his stay with the petitioner, it is

clear that the respondent has been living

separately from the petitioner since the year 2004

and that there is an intention on the part of the

respondent to bring the cohabitation to a

permanent end.

17. To this extent, the evidence led by the

petitioner establish the fact that the respondent

has deserted and neglected to maintain the

petitioner and children. However, the Family

Court has not appreciated this piece of evidence

in correct perspective. On the other hand, giving

undue importance to the fact that there is age

gap between the petitioner and respondent, it has

come to a wrong conclusion that due to the age

disparity, between the parties the petitioner

doesn't want to live with the respondent. After

leading a married life of 18 years, it cannot be

accepted that on account of the age gap, the

petitioner is intending to seek divorce on false

grounds. To this extent the impugned judgment

and decree is liable to be set aside and

accordingly, we proceed to pass the following:

ORDER

i) The appeal is allowed in part.

      ii)    The impugned judgment and decree
             dated      22.04.2013                 passed      in

M.C.No.127/2011 by Family Court, Mysuru is confirmed insofar as the petition for divorce is dismissed on the ground of cruelty.

iii) However, the petition seeking divorce on the ground of desertion is allowed.

A decree of divorce is granted

dissolving the marriage of petitioner with respondent which was solemnized on 04.11.1992 under Section 13(1)(i-b) of the Hindu Marriage Act, 1955.