Sri T Lakshmi Narayan vs Smt Saroja
2022 Latest Caselaw 9933 Kant

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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.6453 OF 2013 (MC)

BETWEEN:

SRI. T.LAKSHMI NARAYAN
(GOVINDAPPA)
S/O THIMMAIAH
AGED ABOUT 32 YEARS
RESIDING AT NO.85, 2ND CROSS
MARATHAHALLI
BANGALORE-37
                              ... APPELLANT
(BY SMT. BHUVANESHWARI D, ADVOCATE)

AND:

SMT. SAROJA
W/O LAKSHMI NARAYAN
D/O CHIKKA UCHHAPPA
AGED ABOUT 29 YEARS
RESIDING AT THIGELARA HOSALAHALLI
BEKUPPA GRAMA POST
KASABA HOBLI
KANAKAPURA TALUK-562 117

                               ... RESPONDENT
(BY SRI.D.P. PRASANNA, ADVOCATE)
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     THIS MFA IS FILED UNDER SECTION 19 (1) OF
THE FAMILY COURTS ACT PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED IN
M.C.NO.1697/2008 DATED 26.07.2012 ON THE
FILE OF IV ADDITIONAL PRL.JUDGE, FAMILY
COURT, AT BANGALORE THREBY DISMISING THE
PETITION FILED BY THE PETITIONER FOR
DIVORCE ON THE BASIS OF CRUELTY.

     THIS MFA HAVING BEEN HEARD AND RESERVED
ON 24.06.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE
FOLLOWING:
                        JUDGMENT

Being aggrieved by dismissal of his petition filed

under Section 13(1) (i-a) and (i-b) of the Hindu

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

for short) seeking a decree of divorce on the grounds of

cruelty and desertion, petitioner/husband 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 filing of the

petition are that the marriage of petitioner and

respondent was solemnized on 31.08.2006 at

Dharmasthala as per the Hindu customs and rituals. It

was a second marriage for the petitioner. His first wife

had committed suicide in the year 2006 after which he

married the respondent as his second wife. Since

respondent is the daughter of petitioner's maternal

uncle, she was knowing the reason for petitioner's first

wife committing suicide. Unfortunately, they are not

having any issues through the wedlock.

4. They led a happy married life for a period

of six months after which differences arose between

them. Thereafter respondent started harassing and ill

treating the petitioner. She was forcing him to take her

to her parents house at Kanakapura frequently and

threatened to commit suicide if he fails to do so. Since,

the petitioner was working as a casual labourer on

contract basis, it was difficult for him to oblige the

respondent. She was not cooking food and harassing

the petitioner and his family members. She used to go

to her parents house without informing the petitioner

and his family members. Ultimately, respondent left the

matrimonial home on 20.04.2007, without any just

cause giving rise to the cause of action for the petitioner

to file the instant petition.

5. After due service of notice, respondent

appeared and filed objection statement admitting the

relationship between the parties and that petitioner

married the respondent as his second wife after the

death of his first wife. However, she has denied that at

any point of time, she harassed and ill treated the

petitioner and his family members and threatened to

commit suicide and that she was forcing the respondent

to take her to her maternal home frequently. On the

other hand, she has alleged that petitioner and his

family members were demanding dowry and she was

not provided with food and shelter and unable to bare

the harassment, she has filed a police complaint against

the petitioner and his family members and has sought

for dismissal of the petition.

6. In support of his case, petitioner got himself

examined as PW-1 and relied upon Ex.P1 to 6.

7. On the other hand respondent has entered

the witness box and examined herself as RW-1 and she

has relied upon Ex.R1.

8. Vide the impugned judgment and decree,

the Family Court has dismissed the petition on both

grounds holding that petitioner has failed to establish

that the respondent treated him with cruelty of such

nature that it is dangerous for him to live with her and

that she has deserted him without any justifiable cause.

9. During the course of arguments, learned

counsel representing the petitioner submitted that the

impugned judgment and decree is contrary to the

pleadings and evidence placed on record and as such it

is perverse. The Family Court has not appreciated the

oral and documentary evidence placed on record in its

proper perspective. The very fact that respondent has

filed false complaint against the petitioner, his family

members including his aged parents, sister and brother-

in-law who are staying 20 kms away from the

petitioner's family and his unmarried brother amounts

to cruelty. This fact has not been appreciated by the

Family Court. So far as the allegations of dowry is

concerned, the Family Court has failed to appreciate the

fact that respondent has went on changing her version.

10. On the other hand the learned counsel for

respondent has supported the impugned judgment and

decree and prays to dismiss the appeal.

11. We have heard the arguments of both sides

and perused the record.

12. It is not in dispute that respondent is the

second wife of the petitioner. His first wife had

committed suicide in the year 2006, after which the

petitioner married respondent who knew about the fact

that the petitioner's first wife had committed suicide.

The cause of suicide of the first wife of the petitioner

cide is not a matter in issue in the present case. After

the death of the first wife, petitioner married the

respondent on 31.08.2006. It is relevant to note that

both the petitioner and respondent are first cousins. The

petitioner has alleged that respondent was not a dutiful

wife and she did not perform her marital obligations

including cooking the food and taking care of the

petitioner and his parents.

13. On the other hand respondent has alleged

that even though at the time of marriage, dowry was

paid and marriage was performed by spending huge

amount, petitioner and his family members were not

happy and she was troubled and harassed for additional

dowry and that was the reason of rift between them.

14. Though petitioner has alleged that

respondent treated him with cruelty and on that basis

he is seeking a decree of divorce, he has not specifically

stated the instances of cruelty and has failed to lead any

convincing evidence to support his contention. Petitioner

has relied upon Ex.P1 certified copy of order in

C.C.No.22600/2010, charge sheet, discharge sheet of

the hospital, encumbrance certificate, certified copy of

bail order and statement of respondent in

C.Misc.620/2008 to show that respondent made false

allegations of dowry harassment and ultimately

petitioner and his family members were acquitted.

However, respondent has also relied upon these

documents to show that she was harassed and ill

treated by the petitioner and his family members for

additional dowry, as a result of which she had to leave

the matrimonial home and file a complaint.

15. She has also secured an order granting

maintenance. In support of his contention that he was

treated with cruelty by the respondent and the cruelty

so alleged is of such nature as to prevent him from

living with the respondent, petitioner has not chosen to

examine any independent witnesses. In the absence of

pleadings with regard to the specific instances of cruelty

and proof of the same, the documents relied upon by

him support the contention of the respondent that

unable to bear the dowry harassment, she had to leave

the matrimonial home.

16. Even though petitioner has also sought for

decree of divorce on the ground that respondent has

deserted him and withdrawn from his company without

any justifiable reasons, admittedly, according to the

petitioner, respondent has deserted him on 20.04.2007,

whereas the petition came to be filed on 26.06.2008

within two years from the date of alleged desertion and

therefore technically, he has no cause of action for filing

the petition on the ground of desertion. Based on the

oral and documentary evidence placed on record, the

Family Court has rightly concluded that the petitioner

has failed to prove both the grounds of desertion and

cruelty for seeking a decree of divorce. We find no

reason to interfere with the conclusions arrived at by

the Family Court and accordingly, we proceed to pass

the following:

ORDER

(i) The appeal is hereby dismissed.

(ii) The impugned judgment and decree dated 26.07.2012 passed in M.C.No.1697/2008 by the Family Court, Bengaluru is confirmed.

(iii) The registry is directed to transmit the trial Court record along with copy of this order.

Sd/-

JUDGE

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JUDGE RR