Smt B N Veena vs Sri S Mahesh Kumar
2022 Latest Caselaw 9999 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 30TH 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.9464 OF 2012 (FC)

 BETWEEN:

 SMT B N VEENA
 AGED 31 YEARS,
 W/O SRI. S MAHESH KUMAR,
 RESIDING AT 76, 6TH CROSS,
 MARUTHI NAGAR,
 MADIWALA,
 BANGALORE - 560 068
                                    ... APPELLANT
 (BY SRI. AMBRISH, ADVOCATE FOR
     SRI. SANTHOSH S.NAGARALE, ADVOCATE)

 AND:

 SRI S MAHESH KUMAR
 AGED ABOUT 37 YEARS,
 S/O SRI. SONNE GOWDA,
 RESIDING AT NO.171,
 13TH MAIN, 4TH BLOCK,
 KORMANGALA,
 BANGALORE - 560 034
                                   ... RESPONDENT
 (BY SRI. V.RAJIVNATH, ADVOCATE)

      THIS MFA FILED U/S 19(1) OF THE FAMILY
 COURTS ACT, PRAYING TO CALL FOR RECORDS IN
 M.C.NO.837/2008 ON THE FILE OF THE ADDITIONAL
 PRINCIPAL JUDGE FAMILY COURT AT BANGALORE AND
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SET ASIDE THE JUDGMENT AND DECREE DATED
31.01.2012 PASSED THEREIN AND DISMISS THE
DIVORCE PETITION IN THE INTEREST OF JUSTICE AND
EQUITY.

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

                          JUDGMENT

This appeal under Section 19(1) of the Family

Courts Act has been filed against the judgment and

decree dated 31.01.2012 passed by the Family

Court by which the petition preferred by the

respondent seeking dissolution of marriage on the

ground of desertion and cruelty has been allowed.

2. The facts giving rise to filing of this

appeal briefly stated are that the marriage between

the parties was solemnized on 04.07.2002 at

Bengaluru. It appears that the appellant was not

comfortable in the matrimonial home and

frequently visited her parents house and used to

stay there for a considerable length of time. Out of

the wedlock, a female child was born on

21.01.2005. The appellant thereafter went to hand

over the custody of the child on 03.09.2006 and

thereafter on 06.09.2006 collected her belongings

from the matrimonial home.

3. The respondent filed the petition on

20.03.2008 seeking dissolution of the marriage on

the ground of cruelty and desertion. In the petition,

it was inter alia pleaded that the appellant used to

verbally abuse the respondent and had told that he

is even worse than a street dog. It was also pleaded

that the appellant humiliated respondent on several

occasions and had filed false complaints against

the respondent and his family members. It was

further pleaded that the appellant left the

matrimonial home on 29.10.2004 and thereafter,

did not join the matrimonial home. Accordingly, the

decree of dissolution of marriage on the ground of

desertion and cruelty was sought.

4. The appellant filed statement of

objections in which the relationship between the

parties and the birth of the child was admitted.

However, the allegations with regard to cruelty and

desertion were denied. It was inter alia pleaded that

the appellant stayed in the matrimonial home

happily along with the respondent as well as with

his parents for a period of two months. It was

further pleaded that thereafter, the appellant was

subjected to demand of dowry. It was however

pleaded that after the delivery of the child, the

appellant along with her parents went to handover

the custody of the child to the respondent on

03.09.2006. However, the respondent and his

family members did not allow the appellant to enter

the matrimonial home. It was averred that the

appellant lodged the complaint against the

respondent on 28.04.2006. It was also pleaded that

the respondent has not made any effort to resolve

the difference between the parties. Thereafter, the

appellant lodged another complaint on 16.07.2007

against the respondent, pursuant to which, charge

sheet was filed against the respondent as well as

his members of the family.

     5.     The       Family     Court    recorded     the

evidence   of   the    parties   and     thereafter,   vide

judgment dated 31.01.2013 inter alia held that the

appellant has treated the respondent with cruelty

inasmuch as she has filed four false complaints

against the respondent and his members of the

family. It was further held that the appellant has

left the matrimonial home in the month of October

2004 and thereafter, did not join and has deserted

the respondent. The Family Court therefore, vide

judgment dated 31.01.2012 dissolved the marriage

by a decree of divorce on the grounds of desertion

and cruelty. In the aforesaid factual background,

this appeal has been filed.

6. Learned counsel for the appellant

submitted that the Family Court has failed to

appreciate the evidence on record in its correct

perspective which has resulted in the erroneous

judgment. It was also further submitted that the

Family Court has grossly erred in holding that the

appellant has treated the respondent with mental

cruelty. It was also urged that the respondent

forced to leave the matrimonial home. It is therefore

contended that the impugned judgment and decree

deserves to be set aside. It is also submitted that

the respondent has performed second marriage.

Therefore, the appellant be granted liberty to seek

permanent alimony.

7. We have considered the submissions of

both sides and perused the records. It is settled in

law that if a false criminal complaint is preferred by

either spouse, it would invariably constitute a

mental cruelty so as to entitle the other spouse to

claim divorce. [See:'K.R.SRINIVAS VS. DEEPA',

(2013) 5 SCC 226].

8. In the instant case from the perusal of

the statement of the appellant, it is evident that the

appellant had filed four complaints against the

respondent as well as his family members. The

respondent and his family members have been

acquitted in respect of the aforesaid complaints.

The appellant is therefore guilty of unfounded

allegations and subjected the respondent and his

family members to the prosecution filed on the

basis of false complaints. Respondent as well as the

members of his family have faced the complications

and difficulties of a criminal case and have been

acquitted in the same. Thus, the action of the

appellant in making four complaints against the

respondent as well as his family members amounts

to mental cruelty.

9. Therefore, the Family Court has rightly

held that the respondent has been able to prove

that the appellant subjected him to mental cruelty.

10. The appellant has been residing

separately since October 2004. Admittedly, on

03.09.2006, the appellant along with her parents

went to the house of respondent to hand over the

custody of the child. However, it is the case of the

appellant-wife that the respondent and his family

members refused to accept the custody of the child.

Therefore, the appellant on 06.09.2006 visited the

matrimonial home and collected her belongings.

Thus, the aforesaid two instances clearly evince the

intention of the appellant to desert the respondent.

11. The Family Court has therefore, rightly

concluded that the appellant has deserted the

respondent.

12. For the aforementioned reasons, we do

not find any ground to interfere with the judgment

passed by the Family Court. Needless to state that

the appellant, if so, advised is at liberty to

prosecute the proceedings under Section 25 of the

Hindu Marriage Act, 1955.

In the result, the appeal fails and is hereby

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

Mds/-