Sri Nandaprayag vs Smt S Geetha
2022 Latest Caselaw 5843 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 31ST 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.11420/2011
                          C/W
                  M.F.A.No.11421/2011

BETWEEN:

SRI NANDAPRAYAG
S/O ANANTHAMURTHY S. N.,
AGED ABOUT 36 YEARS,
R/AT NO.10, IST MAIN ROAD,
SUDHAMANAGAR,
BANGALORE - 560027.                           ... APPELLANT
                                                (COMMON)
(By Sri K.S.Venkataramana, Adv.)

AND:

SMT. S. GEETHA
W/O NANDAPRAYAG,
AGED ABOUT 28 YEARS,
R/AT NO.88, 2ND CROSS,
KAVERI RIVER LANE,
GAVIPURAM DHOBIGHAT,
BANGALORE 560 019.                         ... RESPONDENT
                                             (COMMON)
(By Sri P.D.Surana, Adv.)


      Miscellaneous First Appeal No.11420/2011 is filed under
Section 19(1) of Family Courts Act of 1984, against the
judgment and decree dated 7.9.2011 passed in M.C.
No.1993/2006 on the file of Principal Judge, Family Court,
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Bangalore, allowing the petition filed u/Sec.9 of the Hindu
Marriage Act.


       Miscellaneous First Appeal No.11421/2011 is filed under
Section 19(1) of Family Courts Act, against the judgment and
decree dated 07.09.2011 passed in M.C.No.30/2008 on the
file of the Principal Judge, Family Court, Bangalore,
dismissing the petition filed u/s 13(1)(ia) of Hindu Marriage
Act, for divorce.

     These appeals coming on for Final Hearing, this day,
Vishwajith Shetty J., delivered the following:


                          JUDGMENT

1. These appeals are filed by the husband challenging the

judgment and decree dated 07.09.2011 passed by the

Principal Judge, Family Court, Bengaluru, in

M.C.No.1993/2006 c/w M.C.No.30/2008.

2. The parties are referred to by the rank assigned to

them before the Family Court.

3. Brief facts of the case relevant for the purpose of

disposal of these appeals are, the marriage of the petitioner-

wife with the respondent-husband was solemnized on

02.10.2003 as per the Hindu customs and rites. For a short

period after the marriage, the couple lived together as

husband and wife, and thereafter, difference of opinion

cropped up between them and they started to quarrel on

petty issues. The petitioner had gone to her parents house on

13.06.2004 during Ashadamasa and at that point of time, she

was pregnant. It is the case of the petitioner that her

husband and his parents did not thereafter bother to inquire

about her health nor did they visit her. On 26.02.2005, she

gave birth to a male child who was named Danush. It is the

further case of the petitioner that the respondent did not

come to see the petitioner and the newly born child, nor did

he take her back to the matrimonial house. It is her further

case that though efforts were made by her and her parents to

settle the difference of opinion between the parties, the

respondent did not co-operate. It is under these

circumstances, the petitioner-wife had filed the petition under

Section 9 of the Hindu Marriage Act, 1955 (for short, 'the

Act') for restitution of conjugal rights, which was numbered

as M.C.No.1993/2006.

4. Upon service of notice in the said proceedings,

respondent-husband had entered appearance and filed a

detailed statement of objections admitting the relationship,

but denied the allegations made in the petition. He stated

that he had taken proper care of the petitioner and she was

regularly taken to the hospital during her pregnancy. He had

also stated that he himself had admitted her in the Nursing

Home for delivery and he only had met all the hospital

expenses. However, the petitioner did not show any interest

to join him and efforts made by him and his parents in this

regard were all in vain, and accordingly, he had prayed to

dismiss the petition filed by the wife for restitution of conjugal

rights.

5. During the pendency of the said petition, the

respondent-husband had filed a petition under Section

13(1)(ia) of the Act which was numbered as M.C.No.30/2008

seeking decree of divorce on the ground that the wife had

treated him with cruelty after solemnization of his marriage

with her. He had averred in the said petition that during the

stay in the matrimonial house, his wife used to get telephone

calls from unknown persons and whenever he inquired, she

used to quarrel with him. He also stated that the petitioner-

wife used to visit her parents house very often without even

intimating him and she was showing minimum respect to him

and his parents. He also alleged that the petitioner-wife used

to show indifferent attitude towards him and used to react

with him in a violent manner, and accordingly, had prayed for

a decree of divorce on the ground of cruelty.

6. The petitioner-wife had filed objections to the said

petition denying the averments made in the said petition,

while admitting the relationship.

7. The Family Court clubbed both the cases and recorded

common evidence in both the cases. In order to substantiate

their respective cases, the petitioner-wife was examined as

PW-1 and she got marked seven documents as Exs.P-1 to

P-7. The respondent-husband was examined as RW-1.

However, no documents were marked in support of his case.

The Family Court vide the impugned judgment and decree

allowed the petition filed by the wife under Section 9 of the

Act, and dismissed the petition filed by the husband under

Section 13(1)(ia) of the Act. Being aggrieved by the same,

the husband has preferred these two appeals before this

Court.

8. Learned Counsel for the respondent-husband submits

that the petitioner is guilty of desertion. She did not allow the

husband to see the child after delivery and she did not come

back to the matrimonial house though the petitioner had

made efforts in this regard. He submits that the petitioner-

wife was behaving rudely and indifferently with the husband

and she was not doing the household works and she was

always watching TV in the house. He also submits that from

the year 2004 onwards, the parties are residing separately,

and therefore, there is no purpose in continuing the marriage,

and accordingly, he prays to allow the appeals. In support of

his arguments, he has relied upon the judgment of the

Hon'ble Supreme Court in the case of SAMAR GHOSH VS

JAYA GHOSH - (2007)4 SCC 511.

9. Per contra, learned Counsel for the petitioner-wife has

submitted that there are no sufficient pleadings or evidence

placed before the Family Court to establish cruelty for the

purpose of Section 13(1)(ia) of the Act. He submits that the

allegations made against the petitioner-wife are not serious

or grave enough to consider it as cruelty. The day today wear

and tear in the family life cannot be considered as cruelty and

the marriage between the parties cannot be dissolved on the

material evidence available on record. He submits that the

petitioner-wife was always willing to join the husband and it is

the husband who was not co-operating with the wife. He

submits that the couple have a son who is aged about 17

years and the wife has been taking care of the son. He also

submits that merely for the reason that the parties are living

separately, decree of divorce cannot be passed as the

petitioner at any point of time had no intention to severe the

marital tie with the respondent-husband. Under the

circumstances, he prays to dismiss the appeals.

10. We have carefully considered the arguments addressed

on behalf of both the parties and also perused the material on

record.

11. The respondent-husband, in order to prove that the

wife had treated him with cruelty after solemnization of his

marriage with her, has examined himself as RW-1, but no

documents are marked in support of his case. During the

course of his deposition, he has reiterated the facts alleged in

the petition. The allegations made against the petitioner are

not grave and serious which can be construed as cruelty for

the purpose of Section 13(1)(ia) of the Act. The respondent

has contended that his wife was in the habit of watching TV

whole day and she was not doing household work and she

used to visit her parents house very often without informing

him. He has further stated that she used to behave very

rudely with him and his parents and she used to quarrel with

him on petty issues. All these allegations made by the

petitioner have not been proved by him. He has not specified

any specific instances wherein the wife had misbehaved with

him or ill-treated him or his parents.

12. On the other hand, the material on record would go to

show that after the wife went to her parents house during

Ashadamasa, he had not bothered to take back her nor had

he inquired about her health conditions though she was

pregnant by then. The wife has also specifically stated that

even after delivery of the child, the husband and his parents

had not bothered to take back the child and the mother nor

had they come to see them. She also stated that the efforts

made by her to join the matrimonial house had failed because

the husband was not cooperating.

13. The learned Judge of the Family Court after

appreciating the available pleadings and oral evidence on

record, has rightly held that the respondent-husband had

failed to make out a case for grant of divorce under Section

13(1)(ia) of the Act and we are of the view that the said

judgment and decree passed by the Family Court does not

call for any interference.

14. In so far as the petition filed by the wife under Section

9 of the Act is concerned, she has clearly stated that after she

had gone to her parents house in the month of June 2004

during Ashadamasa, her husband and his parents did not

take her back. She also stated that she was pregnant by then

and the husband had not taken care to inquire about her

health conditions and he had also not come to the hospital

after she gave birth to the male child. She has also stated

that even thereafter, when she made efforts to join the

husband, she was not taken back by him and his parents.

15. The wife had gone to her parents house in the month of

June 2004 and in the month of February 2005, she had given

birth to a male child. The petition under Section 9 of the Act

has been filed her on 11.09.2006, whereas the petition for

divorce has been filed by the husband only on 02.01.2008.

Therefore, it is very clear that the wife has made all efforts to

join her husband, but it was the husband who was not

cooperating with her. To substantiate her case, the petitioner

has examined herself as PW-1 and has reiterated all the facts

narrated by her in the petition. In her cross-examination,

nothing has been elicited from her by the respondent-

husband so as to disbelieve her evidence. On the basis of the

material available on record, the Family Court has rightly

allowed the petition filed by her for restitution of conjugal

rights and we are of the considered view that the said

judgment and decree does not require any interference.

16. The judgment of the Hon'ble Supreme Court in Samar

Ghosh's case supra would not be applicable to the facts of the

present case as in the said case, serious and grave

allegations were made against the wife. It is trite law that

judgments can be relied as precedence only if they are

applicable to the facts and circumstances of the case. In the

case on hand, the allegations made by the petitioner against

the husband with regard to cruelty are not of grave and

serious nature. On the other hand, the normal wear and tear

in the family life are sought to be made much of by the

husband. Therefore, we are of the considered view that the

judgment in Samar Gosh's case will not come to the aid of

the respondent-husband's case. Accordingly, we pass the

following order:

Both the appeals are dismissed. The judgment and

decree dated 07.09.2011 passed by the Family Court in

M.C.No.1993/2006 c/w M.C.No.30/2008 are confirmed.

Sd/-

JUDGE

Sd/-

JUDGE

KK