Jayanthi vs A M Lakshminarayana
2022 Latest Caselaw 5159 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF MARCH 2022

                          PRESENT
       THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

  THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

              MFA NO. 5758 OF 2012(MC)

BETWEEN:

JAYANTHI
W/O. A.N. LAKSHMINARAYANA
AGE 42 YEARS
OCC: HOUSE MAKER
R/O. NEECHADI VILLAGE
POST THYAGARTHI
SAGAR TALUK-577 401
SHIMOGA DISTRICT.                     ... APPELLANT

(BY SRI. UMESH MOOLIMANE, ADV FOR SRI. S.V. PRAKASH)

AND:

A.M. LAKSHMINARAYANA
S/O. MAHABALAIAH
AGE 52 YEARS
R/O. AMADE, POST BARUVE
SAGAR TALUK-577 401.
SHIMOGA DISTRICT.                        ...RESPONDENT

(BY SRI. NARAYAN MAYYAR, ADV
FOR SRI. S.R. HEGDE HUDLAMANE)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 28 OF HINDU MARRIAGE ACT, 1955 AGAINST THE
JUDGMENT AND DECREE DATED 28.03.2012 PASSED IN
M.C.NO.26/2007 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE & J.M.F.C., SAGAR, ALLOWING THE PETITION
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FILED UNDER SECTION 13(1)(ia) AND (ib) OF HINDU
MARRIAGE ACT FOR DIVORCE.

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

                          JUDGMENT

This appeal is filed under Section 28 of the Hindu

Marriage Act, 1955 against the judgment dated 28.03.2012

passed by the Addl. Senior Civil Judge and JMFC, Sagar in

M.C.No.26/2007 by which the petition filed by the

respondent/husband seeking dissolution of marriage has

been allowed and decree of divorce has been granted on the

ground of cruelty.

2. Facts giving rise to the filing of this appeal briefly

stated are that the marriage between the appellant and the

respondent was performed on 05.06.1995 at Amade Village,

Sagara Taluk. It is the case of the respondent that on

13.09.1995 the appellant left the matrimonial home and a

panchayat was held on 26.11.1995, however, the appellant

refused to join the matrimonial home and stayed with her

parents. The appellant also filed a criminal case against the

respondent including his parents. In the aforesaid criminal

case, the respondent was acquitted on 01.12.2006. The

appellant thereafter filed Criminal Petition No.55/2007 which

was dismissed on 03.08.2007. The appellant thereafter filed

O.S.181/1997 on the ground that the respondent is trying to

contract a second marriage. The aforesaid Civil Suit was

also dismissed. The respondent thereafter filed a petition

seeking dissolution of marriage on the ground of desertion

and cruelty.

3. Appellant filed objection to the petition. The

appellant in the objection denied that on 13.09.1995 she left

the matrimonial home. It was further stated in the objection

that the respondent harassed her during her stay in the

matrimonial home and threatened to take away her life. It

was pleaded that since there was threat to the life of the

appellant, she left the matrimonial home on 12.08.1996.

The factum of filing criminal case against the respondent was

admitted. It was denied that the appellant has voluntarily

left the matrimonial home.

4. The Trial Court on the basis of the pleadings of the

parties framed the issues and recorded the evidence. The

respondent got himself examined as PW1 and exhibited two

documents marked as Ex.P.1 and P.2. The appellant did not

tender any rebuttal evidence. The Trial Court vide judgment

dated 28.03.2012 interalia held that the appellant has made

false allegations against the respondent and has initiated

false prosecution against the respondent. It was further held

that the allegation of cruelty in the facts of the case are

established. It was further held that the appellant has

deserted the respondent. Accordingly, the marriage was

dissolved by a decree of divorce on the ground of cruelty and

desertion.

5. Learned counsel for the appellant submitted that

the respondent did not tender any credible evidence in

support of the averments made in the petition and the Trial

Court has failed to appreciate the evidence on record in its

correct perspective which has recorded erroneous findings

and the consequent decree. On the other hand learned

counsel for the respondent has supported the conclusions

recorded by the Trial Court.

6. We have considered the submissions made on both

sides and have perused the record.

7. Admittedly the marriage between the parties was

performed on 05.06.1995. It is not in dispute that the

parties are residing separately since 2007 i.e. for past about

15 years. From the perusal of the record of the Trial Court it

is evident that even though the respondent has led evidence,

the appellant has not led any evidence, neither cross

examined the respondent nor has led any rebutable

evidence. In such a case, the burden on the one side is

very slight and the same shifts on the other side.

8. The respondent in his evidence stated that the

appellant has made false allegation against the respondent

that he has performed the second marriage with one

Shashikala. The appellant had initiated criminal case against

the respondent and his parents and respondent as well as his

parents were acquitted in the aforesaid criminal case on

01.12.2006. Thereafter, the appellant had filed a Criminal

Petition viz., Crl.P.55/2007 which was dismissed on

03.08.2007. The respondent has also stated in his evidence

that the appellant has left the matrimonial home. In the

absence of any rebutable evidence by the appellant, the Trial

Court has held that the averments with regard to cruelty and

desertion have been fulfilled.

9. The aforesaid findings are based on evidence

tendered by the respondent and cannot be said to be either

erroneous or perverse. Even otherwise, the parties are

residing separately since the year 2007. For the

aforementioned reasons, in our considered opinion, no

grounds to interfere with the judgment and decree passed by

the Trial Court is made out.

10. At this stage, learned counsel for the appellant

submits that the respondent is in arrears of maintenance for

the period from 01.10.2016 till 31.03.2022.

11. On the other hand, learned counsel for the

respondent has asserted that he is in arrears for the period

01.01.2018 to 31.03.2022. It is further submitted by the

respondent that a Demand Draft for an amount of

Rs.72,500/- and Rs.4,000/- in cash shall be handed over to

learned counsel for the appellant during the course of the

day.

12. In view of the aforesaid submissions, the appellant

is granted liberty to establish her case with regard to

remaining amount of maintenance before the Executing

Court.

13. Learned counsel for the respondent undertakes to

pay the interim maintenance @ Rs.5,000/- per month to the

appellant during her lifetime or till she is remarried.

14. For the aforementioned reasons, we do not find

any merit in this appeal. The same fails and is hereby

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

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