Karnataka High Court
Smt Usharani vs E Pushparaj on 14 March, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.9195/2011
C/W
M.F.A. No.111/2017
IN M.F.A.9195/2011
BETWEEN:
SMT. USHARANI
W/O E. PUSHPARAJ,
AGED ABOUT 36 YEARS,
PRESENTLY R/A HONCOCKS BLOCK,
MARIKUPPAM POST, K.G.F., KOLAR DISTRICT. ... APPELLANT
(By Sri G.Sukumaran, Adv.)
AND:
E. PUSHPARAJ
S/O ETHIRAJ
AGED ABOUT 42 YEARS,
R/A NO.94, PALARATHIMMANAHALLI,
DESIHALLI POST, BANGARPET,
BANGARPET TALUK, KOLAR DISTRICT. ... RESPONDENT
(Sri Puttige. R. Ramesh, Adv.)
IN M.F.A.111/2017
BETWEEN:
SMT. USHARANI
W/O E. PUSHPARAJ,
2
AGED ABOUT 41 YEARS,
HONCOCKS BLOCK,
MARIKUPPAM POST, K.G.F. ... APPELLANT
(By Sri Puttige. R. Ramesh, Adv.)
AND:
E. PUSHPARAJ
(EX-SERVICEMAN)
S/O ETHIRAJ
AGED ABOUT 46 YEARS,
R/A NO.94, PALARATHIMMANAHALLI,
DESIHALLI POST,
BANGARPET-563162. ... RESPONDENT
(Sri R.Vickramaditan, Adv.)
Miscellaneous First Appeal No.9195/2011 is filed under
Section 28(1) of the Hindu Marriage Act, against the
judgment and decree dated 1.7.2011 passed in
M.C.No.63/2009 on the file of Principal Senior Civil Judge and
JMFC, K.G.F., allowing the petition filed u/s 9 of Hindu
Marriage Act for restitution of conjugal rights.
Miscellaneous First Appeal No.111/2017 is filed under
Section 19(1) of the Family Courts Act, against the judgment
and decree dated 26.09.2016 passed in M.C.No.66/2011 on
the file of the Senior Civil Judge and Principal JMFC, K.G.F.,
dismissing the petition filed u/s 13(1) (ia) (ib) of Hindu
Marriage Act.
These appeals coming on for final hearing, this day,
VISHWAJITH SHETTY J., delivered the following:
JUDGMENT
1. These two appeals are filed by the wife challenging the
judgment and decree passed by the Court of Senior Civil
Judge & JMFC, K.G.F., in M.C.No.63/2009 dated 01.07.2011
and M.C.No.66/2011 dated 26.09.2016.
2. Since the parties to the appeals are common and the
dispute between the parties being interlinked, both the
appeals are clubbed together, heard and disposed of by this
common judgment.
3. Brief facts of the case that would be relevant for the
purpose of disposal of these two appeals are that the
marriage of the appellant-wife was solemnized with the
respondent-husband on 15.12.2005 as per the Hindu rites
and customs in the office of the Sub-Registrar, K.G.F. From
the wedlock, the couple have a son who was born on
12.04.2009. It appears that after the birth of the child, the
relationship between the parties had strained and the wife
started residing in her parents house along with her son.
4. The husband had filed the petition under Section 9 of
the Hindu Marriage Act, 1955 (for short, 'the Act') in
M.C.No.63/2009 before the Family Court, alleging that his
wife had left his company on 16.04.2009 without there being
any valid reasons and ever since then, she has been residing
in her parents house and inspite of best efforts made by him
to bring her back along with the child, she had refused to join
him. He had also contended that the wife had failed to fulfill
her marital obligations inspite of he providing her all the basic
facilities in the matrimonial house.
5. The respondent-wife had entered appearance in the
said proceedings and had filed statement of objections,
wherein she had admitted the relationship between the
parties, but had disputed the allegations made against her. It
was contended by her that the husband had ill-treated her
and was demanding dowry and in the month of April 2007, an
attempt was made to kill her by pouring kerosene oil and
setting her on fire. She had also stated that in this regard, a
police complaint was lodged and a criminal case was
registered against her husband. She, therefore, contended
that she had valid reasons to leave the company of her
husband.
6. During the course of trial, in order to substantiate his
case, the husband had examined himself as PW-1 and got
marked seven documents as Exs.P-1 to P-7. On the other
hand, the wife had examined herself as RW-1 and got marked
three documents as Exs.R-1 to R-3 in support of her case.
The Family Court, after appreciating the evidence on record,
by its judgment and decree dated 01.07.2011, allowed the
petition filed by the husband under Section 9 of the Act
seeking restitution of conjugal rights.
7. After the disposal of the petition filed by the husband
under Section 9 of the Act, the wife filed M.C.No.66/2011 on
15.07.2011 under Section 13(1)(i)(ia)(ib) read with Section
25 of the Act seeking dissolution of marriage. In the said
petition, the wife had contended that the mother of her
husband Smt. Padmavathi and her sister Smt. Umavathi had
proposed the marriage and they had assured that they will
not demand for dowry or marriage expenses as the husband
was a divorcee. However, at the time of marriage, the
husband and his family members demanded money for
printing invitation card and to bare 50% of marriage
expenses and to give jewels and house hold utensils and
Rs.10,000/- cash for stitching suit, and the said demands
were complied by the appellant-wife and her family. It was
further contended by the wife that after three months of
marriage, the husband and his parents demanded a two-
wheeler, bracelet and Rs.75,000/- as dowry and when her
parents expressed their inability, the husband and his parents
assaulted her and abused her in filthy language and the
husband had stated that he is already divorced and it is very
easy for him to divorce her as well.
8. It was further contended that during the month of
February 2007, the husband and his family members in
furtherance of their ill-treatment had confined her in a room
without providing food and basic necessities. During the
month of April 2007, they shifted her to another house and
made an attempt to kill her by pouring kerosene and setting
fire on her. When the said incident had come to the
knowledge of her brother and parents, they enquired with the
husband about the same and in turn, the husband had
assaulted her parents. During the month of March 2008, the
husband and his family members demanded a site and her
parents somehow arranged a sum of Rs.75,000/- and
thereafter, she pledged her jewels for Rs.51,000/- and gave
the amount to her husband and out of the said amount, the
husband has purchased a site at Palavathimmahalli,
Bangarpet Taluk, which was registered in the joint name of
husband and wife.
9. It was further contended that on 02.03.2009, she went
to her parents house for her delivery and the husband and his
family members threatened her that unless she brings a
motor cycle, they will not take her back. On 26.09.2009, the
husband enraged had assaulted her father with a slipper and
caused bleeding injury and in that regard, a complaint was
lodged against the husband in Marikuppam Police Station,
and the police had issued NCR.No.50/2009. Thereafter, when
her parents-in-law threatened her that they will kill her, she
lodged a complaint against her husband and her in-laws
before the Marikuppam Police in Crime No.39/2009 for the
offences punishable under Sections 498A read with Sections 3
& 4 of the Dowry Prohibition Act. She had also contended that
she had no source of income to support her and the child and
had claimed alimony from her husband.
10. The husband filed statement of objections denying the
averments made in the petition filed by his wife as false and
concocted. He had contended that his wife was not cordial
and cooperative with his family and picked up quarrels for
petty reasons putting him in disgrace amongst his family
members, friends and neighbours. He had also contended
that his wife was pestering him to shift his residence to her
maternal home. He had contended that after the delivery of
child, without his consent, she went to her parents house and
started residing there. Though he had made efforts to bring
her back, the same was in vain. He had also stated that he
had filed M.C.No.63/2009 seeking restitution of conjugal
rights and the said petition was allowed on 01.07.2011 and in
order to overcome the said order, the wife had filed the
present petition.
11. During the course of trial in M.C.No.66/2011, the wife
examined herself as PW-1 and got marked five documents as
Exs.P-1 to P-5. In support of his case, the husband got
himself examined as RW-1, however, he did not produce any
documents in support of his case. The Family Court, after
appreciating the evidence on record, vide its judgment and
decree dated 26.09.2016 dismissed the petition filed by the
wife under Section 13(1)(ia)(ib) of the Act. Aggrieved by the
judgment and decree passed in M.C.No.63/2009 and
M.C.No.66/2011, the wife has filed these two separate
appeals.
12. Learned Counsel for the appellant submits that the wife
was constrained to leave the company of her husband having
regard to the ill-treatment meted out on her. He submits that
admittedly the parties are staying separately ever since the
year 2009 and the marriage between the parties is virtually
dead. He submits that the wife had placed sufficient material
before the Family Court in order to prove the grounds of
cruelty and desertion against the respondent-husband and
the Family Court has not properly appreciated the same. He
submits that the petition for restitution of conjugal rights was
filed only after a criminal case in Crime No.39/2009 was
registered against the respondent and his relatives, though
he was not interested in taking back his wife. He submits that
the respondent has got a past history and even his first wife
was divorced by him.
13. Per contra, learned Counsel appearing for the
respondent-husband has argued in support of the impugned
judgment and decree and has submitted that the wife is
guilty of willfully deserting the husband and inspite of there
being a decree for restitution of conjugal rights, she had
failed to join him. He submits that the wife had not made out
a case before the Family Court under Section 13(1)(ia) of the
Act, and therefore, the Family Court had rightly dismissed the
petition. He submits that since his petition for restitution of
conjugal rights is allowed, the ground of desertion is not
available to the wife. He submits that even on this date, the
husband is ready and willing to take back the wife and the
son. However, the wife is adamant throughout and she has
refused to join him inspite of there being a court order, and
accordingly, he prays to dismiss the appeals.
14. Re: M.F.A.No.111/2017:
This appeal arises out of the judgment and decree
passed in M.C.No.66/2011. To substantiate the case of the
wife in the petition filed by her in M.C.No.66/2011, she had
examined herself as PW-1. During the course of deposition, it
has been specifically stated by her that she was ill-treated by
her husband and his family members for having not brought
sufficient dowry at the time of marriage and in the month of
February 2007, she was confined in a room without providing
food and basic necessities. Further, in the month of April
2007, she was shifted to another house and also attempt was
made to kill her by pouring kerosene and setting fire on her.
When her parents after coming to know about the same had
inquired with regard to the said incident, the husband had
assaulted her parents. Further, she has also stated that on
02.03.2009, she had gone to her parents house for delivery
and even at that time, the husband and his family members
had asked her to bring a motor cycle while coming back. Even
after the birth of the child, the husband had got discharged
his wife from the hospital forcibly and left her outside and it is
only with the help of her brother's wife, the appellant-wife
had gone to her parents house. She has narrated the incident
that had taken place on 26.09.2009 in her house, wherein the
husband had assaulted her father with a slipper and caused
bleeding injury on his lips. Even in this regard, a police
complaint was lodged. She has spoken in detail about the
complaint lodged by her against her husband and in-laws in
Crime No.39/2009 which was subsequently converted to
C.C.No.243/2010 after filing of the charge sheet. Though she
was cross-examined at length, nothing has been elicited from
her to completely disbelieve her version.
15. On an overall appreciation of the documentary and oral
evidence available on record, it cannot be said that the wife
did not have any valid reason to stay away from the company
of her husband. The material on record would go to show that
the husband not only ill-treated his wife, but, he even had
assaulted his father-in-law causing bleeding injuries to him.
In addition to the same, when the wife was in the hospital
after delivery, he got her discharged forcibly and had left her
in the hospital and it is only with the help of her sister-in-law,
the wife had gone back to her parents house with the child.
All these material on record would go to show that the
respondent was guilty of ill-treating his wife throughout after
the marriage and though the husband has contended that the
wife had left his company without there being any reason in
the month of April 2009, it is very difficult to believe the
same for the reason that the wife had given birth to a male
child on 12.04.2009. Therefore, the contention of the wife
that she had gone to her parents house on 02.03.2009 and
after delivery, the respondent-husband had not taken her
back appears to be more probable.
16. Cruelty for the purpose of Section 13(1)(ia) of the Act
could be both mental cruelty as well as physical cruelty
caused by one of the spouse to the other. In the case on
hand, the wife has produced sufficient material before the
Family Court to prove both physical as well as mental cruelty
meted out on her by her husband. From the appreciation of
various incidents narrated by the wife, an inference can be
drawn against the husband that he was not only ill-treating
his wife, but also was in the habit of behaving rudely with her
parents and relatives.
17. The material on record would also go to show that
admittedly the parties are residing separately ever since the
year 2009. Unless the parties have respect to each other, an
intention to live cordially and perform their respective marital
obligations, continuation of such a marriage could not be in
the interest of any of the parties and on the other hand, it
could be detrimental also. For the last 13 years, the parties
have been residing separately and the attempts made before
the Family Court as well as before this Court for conciliation
have failed. The marriage between the parties is virtually
dead.
18. The wife has produced sufficient oral and documentary
evidence before the Family Court and has made out a case
for allowing the petition under Section 13(1)(ia) of the Act,
though she has not made out a case under Section 13(1)(ib)
of the Act. Under the circumstances, we are of the considered
view that the Family Court had erred in dismissing the
petition filed by the appellant-wife for dissolution of her
marriage with the respondent by a decree of divorce.
19. Having regard to the finding recorded by us in
M.F.A.No.111/2017 arising out of M.C.No.66/2011, the
judgment and decree passed by the Family Court in
M.C.No.63/2009 filed by the husband under Section 9 of the
Act for the relief of restitution of conjugal rights cannot be
sustained and the same is required to be set aside.
Accordingly, the following order:
(i) M.F.A.No.111/2017 and M.F.A.No.9195/2011 are
allowed;
(ii) The judgment and decree passed in
M.C.No.66/2011 and M.C.No.63/2011 by the
Court of Senior Civil Judge & JMFC, K.G.F., are
set aside and the petition field by the appellant-
wife under Section 13(1)(ia) of the Act seeking
dissolution of marriage by a decree of divorce is
allowed and accordingly, the marriage of the
appellant-wife solemnized on 15.12.2005 with
respondent-husband is dissolved by a decree of
divorce;
(iii) The petition filed by the husband under Section 9
of the Act for restitution of conjugal rights stands
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KK
