Pradeep Borkar vs Smt Savithri Rao
2022 Latest Caselaw 7494 Kant

                            1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 26TH 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.4742 OF 2017 (FC)

BETWEEN:

PRADEEP BORKAR
S/O DEVAPPA NAIK,
AGED 54 YEARS,
R/O 1-657, BORKAR COTTAGE,
NEAR MAHAVEER MEDILCAL CENTRE
PUTTUR - 574 201
                                          ... APPELLANT
(BY SMT. GEETHA G.MENON, ADVOCATE)
AND:

1.     SMT SAVITHRI RAO
       W/O PRADEEP BORKAR
       AGED ABOUT 45 YEARS,
       R/O 1202, A LINDEN
       GODREJ WOODMAN ESTATE
       HEBAL, BANGALORE - 560 024

2.     SMT.SUCHETA BANDARY
       W/O SRI HARISH BHANDARY
       AGED ABOUT 41 YEARS,
       R/O C/O JAGGANATH RAI G
       ADVOCATE & NOTARY
       PUTTUR CENTRE
       NEAR SBI MARKET ROAD,
       PUTTUR-574201
                                          ...RESPONDENTS
                                  2



(BY SMT/MISS. UDITA RAMESH, ADVOCATE FOR C/R;
    VIDE ORDER DATED 10.08.2018 & 15.09.2018,
    NOTICE TO R2 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 19 (1) OF FAMILY
COURT ACT PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 13.04.2017 PASSED IN MC 3732/2012 ON THE
FILE OF THE PRINCIPAL FAMILY JUDGE AT BENGALURU IN THE
INTEREST OF JUSTICE AND EQUITY.
     THIS MFA COMING ON FOR FINAL HEARING THIS DAY,
J.M.KHAZI, J., DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal under Section 19(1) of the Family Courts Act,

1984 has been filed by the husband against the impugned

judgment and order dated 13.04.2017 passed by the Family

Court, at the instance of the wife, in her petition filed under

Section 13(1) (i) & (i-a) of Hindu Marriage Act, 1955, by which

the marriage of petitioner and respondent No.1- husband has

been dissolved on the grounds of adultery and cruelty.

2. For the sake of convenience, hereinafter the parties

are referred to by their rank before the Family Court.

3. FACTS: Brief facts leading to the filing of the petition

are that the marriage of petitioner and respondent No.1 was

solemnized on 24.04.1994 at Bengaluru as per the Hindu

customs and ceremonies. It was an arranged marriage. A son

was born through the wedlock. After the marriage, petitioner and

respondent No.1 lived in the parental home of petitioner as

respondent No.1 demanded that petitioner's parents should

provide him accommodation. Respondent No.1 used to insult the

petitioner in the presence of maids, family members and

relatives. He was berating her for her dark complexion and

saying that she was not good looking. He forced her to abort her

pregnancy on the ground that her parents did not give him a

house. Only after her parents set up a full fledged home and

gifted a car, they started living separately.

4. It is the further case of the petitioner that

respondent No.1 was addicted to bad vices such as drinking. He

used to come late under the influence of alcohol, bring his

friends and force her to cook for them during odd night hours.

She gave him her gold ornaments weighing 160 gms to buy

equipments for his specialty Orthopedics. She even melted her

gold bangles weighing 48 gms to gift bangles to his mother. He

never took care of their son. It was also pleaded that he forced

the petitioner's parents to get him membership in a prestigious

club. He traumatized her by burning her prayer books, Sai Baba

figurines and throwing away items of sentimental value. It is the

case of the petitioner that once the respondent No.1 started

physically assaulting her, she left the matrimonial home and

started working at Bengaluru. He used to send messages during

odd hours making remarks about the petitioners character.

During her absence, he was bringing women to their matrimonial

home and used to indulge in sexual activities. It is also alleged

that the aforesaid fact came to the knowledge of the petitioner

through the secret camera that she had installed in their

bedroom. It is further alleged that the respondent No.1 has an

illicit relationship with respondent No.2 who has left her husband

and children and is presently the living with respondent No.1.

Though without condoning the acts of respondent No.1, the

petitioner offered to get their marriage dissolved by mutual

consent, he did not agree for the same. consequently, she has

filed the petition seeking dissolution of marriage on the grounds

of adultery and cruelty.

5. Though duly served respondent No.2 remained

Ex-parte.

6. The Respondent No.1 appeared and filed objections

admitting his relationship with the petitioner and the fact that

the petitioner and respondent No.1 have a son through their

wedlock. However, other averments in the petition were denied.

7. Inter-alia respondent No.1 has contended that it is

petitioner who is living in adultery with one Suresh Settipalli

since 5 years and he came to know about it during 2011. It was

further contended that while he was working at Mudabidri,

petitioner refused to join him on the ground that he is working in

the rural area. It is also contended that after the death of their

son, it is the petitioner who underwent abortion 5 times against

his wishes. It is pleaded that the petitioner was negligent with

the child and used to leave it with the servants and that the

petitioner used to visit her parents every alternative day without

his consent. It is alleged that though he had set up a separate

residence at Casa Grands Apartments in Mangaluru during the

year 2002, the petitioner's brother joined them at their residence

against his wishers and that they used to indulge in immoral and

illegal activities.

8. It is further case of respondent No.1, that under the

pretext of work, the petitioner shifted to Bengaluru. Though

initially she was staying with one Reshma Bange, the petitioner

later set up a separate residence and was living with one Suresh

Settipalli. It is also alleged that the petitioner shifted the child to

a Boarding school to prevent him from knowing her adulteress

life. It was contended that there was no physical relationship

between the petitioner and respondent No.1 since May 2010.

Though he issued legal notice dated 18.04.2011, calling upon

petitioner to return to their matrimonial home or to agree to

dissolve their marriage by mutual consent, suppressing true

facts petitioner has filed this petition making false allegations.

9. In support of her case, petitioner examined herself

as PW-1 and relied upon Ex.P1 to 15.

10. Respondent No.1 examined himself as RW-1 and got

exibited documents namely Ex.R1 to 16 in support of his case.

11. Vide impugned judgment and award, the Family

Court allowed the petition granting a decree of divorce on both

the grounds.

12. Being aggrieved by the impugned judgment and

order, respondent No.1 has come up with this appeal.

13. We have heard arguments of the learned counsel for

petitioner and respondent No.1 and have perused the record.

14. During the course of arguments, the learned counsel

for respondent No.1 submitted that the Family Court has erred in

holding that though the contents of CD at Ex.P13 are not proved

as per Section 65-B, the petitioner has proved the charges of

adultery against respondent No.1. It is further submitted that

the Family Court has also erred in holding that the allegations

regarding cruelty to be proved by the petitioner against

respondent No.1. It is also submitted that the Family Court has

also erred in not accepting the evidence adduced by respondent

No.1 and in holding that it is the petitioner to have committed

adultery.

15. In order to prove the ground of adultery, except the

interested testimony of petitioner, no other witnesses are

examined. To support her contention, petitioner has relied upon

the contents of CD at Ex.P13 which are extracted from the hard

disc at Ex.P15. As admitted by the petitioner, during her cross-

examination, she has not chosen to examine the person who

installed and maintained the secret camera in the bed room of

the residence of petitioner and respondent No.1. The Family

Court has rightly held that the contents of Ex.P13 and 15 are not

proved as required under Section 65-B of the Evidence Act.

Though the Family Court has rightly observed that from the

perusal of Ex.P13, it evident that the content therein is not

continuous but it is edited and Ex.P13 and 15 are not proved in

accordance with Section 65-B of the Evidence Act and thereby

rejected the said evidence, it has erred in holding that the

petitioner has proved the ground of adultery only on the basis of

non-denial of the electronic evidence by respondent No.1 that

the person found in Ex.P13 is not him. It is pertinent to mention

here that during the course of objection statement, his

examination-in-chief as well as during the cross-examination of

PW-1, the respondent No.1 has disputed the allegations that he

is living in adultery. Having regard to the fact that the allegation

of adultery is a grave charge, the interested testimony of

petitioner and the contents of Ex.P13 which is not proved in

accordance with law, the non-denial of the same by respondent

No.1 is not sufficient to prove the said averment. Consequently,

we hold that petitioner has failed to prove the ground of adultery

for the purpose of dissolution of marriage between the petitioner

and respondent No.1 and to that extent the impugned judgment

is liable to be set aside.

16. Now we may deal with the ground with regard to

cruelty. It is the definite case of the petitioner that soon after

the marriage it was realised that respondent No.1 was addicted

to drinking and under the influence of alcohol and that he used

to abuse her, berate her family members and when he failed to

take care of her needs, she had to work and for this purpose she

shifted to Bengaluru. It is her further case that the Respondent

No.1 started making false allegations against her of living in

adultery with one Suresh Settipalli and that he used to send

messages making such allegations as well as used abusive and

foul words. To this effect, she has produced the said messages

at Ex.P4. Learned counsel for appellant has fairly submitted the

contents of Ex.P4, i.e, the messages sent by appellant to

respondent on 19.5.2012, 21.3.2012, 25.3.2012, 26.3.2012,

23.4.2012, 5.5.2012 & 26.7.2012, therefore it is not necessary for

us to reproduce the same.

17. Admittedly, petitioner and respondent No.1 are not

living together since 2010. Respondent No.1 has alleged that the

petitioner has deserted him and that she is living in adultery with

one Suresh Settipalli and thereby inflicted cruelty on him,

admittedly he has not made any attempts to either seek the

restitution of conjugal rights or divorce on these grounds. As

rightly held by the Family Court, he has also failed to establish

the allegations of adultery against the petitioner. On the other

hand, the evidence led by the petitioner clearly prove that the

respondent No.1 has treated her cruelly. The mere perusal of

these messages makes evident that the same were sent with an

intention to inflict mental cruelty on the petitioner. Though the

impugned judgment and order in so far as the allegations of

adultery is concerned is not sustainable, having regard to the

fact that petitioner has succeeded in establishing the ground of

cruelty for the purpose of dissolution of the marriage between

the petitioner and respondent No.1, the impugned judgment and

order is confirmed to that extent.

18. In the result, we proceed to pass the following:

ORDER

(i) Appeal is allowed in part.

(ii) The impugned judgment and order granting decree

of divorce under Section 13(1) (i) of the Hindu

Marriage Act, 1955, is set aside.

(iii) The impugned judgment and order granting decree

of divorce under Section 13(1) (i-a) of the Hindu

Marriage Act, 1955, is confirmed.

(iv) The registry is directed to transmit the record to the

Family Court along with copy of this Judgment.

Sd/-

JUDGE

Sd/-

JUDGE

RR