Karnataka High Court
H.D.Yogesh vs Jayalakshmi @ Sudha on 25 May, 2022
Bench: Alok Aradhe, J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MAY 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
M.F.A. NO.9564 OF 2013 (FC)
BETWEEN:
H.D. YOGESH
S/O H L DODDAIAH
AGED ABOUT 46 YEARS
R/O. NO.3004, CHIKKAGARADI STREET
HASSAN-573201.
... APPELLANT
(BY MRS/MS. BHARATHI M, ADV., FOR
MR. M.V. HIREMATH, ADV.,)
AND:
JAYALAKSHMI @ SUDHA
W/O H D YOGESH
D/O H. MANUMEGOWDA
AGED ABOUT 47 YEARS
R/O C/O CHUNCHEGOWDA
2ND MAIN MIG-14
HOUSING BOARD
KUVEMPU NAGARA
HASSAN-573201.
... RESPONDENT
(BY MRS. KAVITHA H.C. ADV., (ABSENT))
---
THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURT ACT,
AGAINST THE JUDGMENT AND DECREE DATED:23.09.2013
PASSED IN M.C.NO.75/2013 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, HASSAN, DISMISSING THE PETITION
2
FILED U/S 13(1)(ia)(ib)(iii)(b) OF HINDU MARRIAGE ACT, FOR
DIVORCE.
THIS M.F.A. COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 19 of the Family Courts
Act, 1984 has been filed against judgment dated
23.09.2013, by which petition filed by the appellant
seeking dissolution of marriage has been dismissed.
2. Facts giving rise to filing of the appeal briefly
stated are that the marriage between the appellant and
respondent was solemnized on 12.03.2004 at
Dharmasthala. The appellant filed the petition seeking
dissolution of marriage inter alia on the ground that
respondent stayed in the matrimonial home reluctantly
and never adjusted with the members of the family of the
appellant. It was further pleaded that respondent used to
visit her parents house very frequently without informing
the appellant and used to quarrel frequently with the
appellant. It was also pleaded that respondent did not care
for the appellant and started non cooperation moment in
the house of the appellant. As the respondent was unable
to conceive a child, the appellant requested her to undergo
medical examination. However, with great difficulty, the
respondent got herself examined. It was averred that the
respondent left the matrimonial home on 18.06.2007 and
deserted the appellant. The appellant therefore, sought
dissolution of marriage on the grounds of cruelty,
desertion and on the ground that the respondent is
incurably of unsound mind.
3. The respondent filed objections to the petition
and inter alia admitted the relationship between the
parties. However, rest of the averments made in the
petition were denied. It was denied that the respondent
had treated the appellant with cruelty or that she used to
visit her parents house frequently. It was further pleaded
that appellant used to treat the respondent with cruelty
and forced her to consent for his second marriage. It was
averred that the petition is not maintainable either on law
or on facts.
4. The family court on the basis of pleadings of
parties framed issues and recorded evidence. The
appellant as well as respondent got themselves examined
as witnesses and adduced the documentary evidence. The
family court on thereafter vide judgment dated 24.09.2013
dismissed the petition filed by the appellant. Hence, this
appeal.
5. 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
erroneous finding and the consequent decree. However, it
is fairly submitted that there is no evidence on record to
prove the fact that respondent is incurably of unsound
mind.
6. We have considered the submissions made by
learned counsel for the appellant and have perused the
record. In celebrated case of 'DASTANE VS. DASTANE',
AIR 1975 SC 1534, the Supreme Court while dealing
with cruelty as a ground for divorce has held that in a
case for divorce on the ground of cruelty, the conduct
charged as cruelty is to be of such a character so as to
cause in the mind of the petitioner a reasonable
apprehension that it will be harmful or injurious for the
petitioner to live with the respondent. It was further held
that it was not necessary that cruelty must be of such
nature as to cause danger to life limb or health or as to
give rise to a reasonable apprehension of such a danger of
harm or injury to health or reputation or the like would be
an important consideration in determining whether the
conduct of the respondent amounts to cruelty or not. It
was also held that the question of cruelty as ground for
divorce has to be determined on the4 basis of facts and
circumstances of each case.
7. In the backdrop of aforesaid well settled legal
principles, the facts of the case in hand may be adverted
to. From perusal of the averments made in the petition, it
is evident that petitioner has miserably failed to even
plead the ground of cruelty. The averments made in para
3 do not establish the plea of cruelty taken by the
appellant. In order to succeed on the ground of desertion,
the desertion has to be a for a continuous period of not
less than 2 years immediately preceding the presentation
of the petition. However, in the instant case, in para 5 of
the petition, the appellant has averred that respondent
has left the matrimonial home on 18.06.2007, whereas,
the petition has been filed on 26.06.2007. Thus, from the
pleading itself it is evident that it is not the case of the
appellant that the respondent has deserted him for a
continuous period of 2 years immediately preceding the
presentation of the petition. There is neither any pleading
nor any evidence on record to infer that respondent is
incurably of unsound mind. For the aforementioned
reasons, we do not find any ground to interfere with the
judgment passed by the family court.
In the result, we do not find any merit in the appeal,
the same fails and is hereby dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SS
