Smt G V Savitha vs Sri D Jayadev
2022 Latest Caselaw 7698 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH 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.3843 OF 2018 (FC)

BETWEEN:

SMT. G.V. SAVITHA
D/O G.R. MANJAPPA
AGED ABOUT 33 YEARS
R/AT C/O G.R. MANJAPPA
AREKAL VILLAGE, MELPAL
BELEHONNUR POST - 577 112.
N.R. PURA TALUK
DIST: CHIKKAMAGALURU
                                      ...APPELLANT
(BY SRI. SHRISHA CHANDRA, ADVOCATE FOR
    SMT/MISS. RASHMI JADHAV, ADVOCATE)(P/H)

AND:

SRI. D. JAYADEV
S/O DEVARAJ
AGED ABOUT 37 YEARS
R/AT NO.309, 7TH CROSS
SBI MAIN ROAD
                           2




HEBBAL, 1ST STAGE
MYSORE - 570 016.
                                        ....RESPONDENT
(BY SRI. P.N. HEGDE, ADVOCATE FOR C/R)

     THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, 1984, AGAINST THE JUDGMENT
AND    DECREE     DATED:27.01.2018    PASSED    IN
M.C.NO.10/2016 ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY COURT, CHIKKAMAGALURU, ALLOWING THE
PETITION UNDER SECTION 13(1) (IB) OF THE HINDU
MARRIAGE ACT, 1955.


    THIS MFA COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J.,DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal under Section 19(1) of the Family

Courts Act, 1989 (hereinafter referred to as 'the Act')

has been filed by the appellant/wife against the

Judgment dated 27th January 2018, by which the

Family Court has allowed the petition preferred by the

respondent/husband under Section 13(1)(ia) and (ib)

of the Hindu Marriage Act, seeking dissolution of

marriage on the grounds of cruelty and desertion, by

which marriage between the parties has been

dissolved by a decree of divorce on the ground of

desertion.

2. Facts leading to filing of this appeal briefly

stated are that the marriage between the parties was

performed on 30.11.2003. It is not in dispute that

two children are born out of the wedlock. It is the

case of the husband that some time in July 2009, wife

left the matrimonial home. Thereafter, the

respondent/husband filed a petition on 23.04.2011

under Section 9 of the Hindu Marriage Act seeking

restitution of conjugal rights. However, the aforesaid

petition was withdrawn by the respondent/husband.

3. Thereafter, the husband filed a petition

seeking dissolution of marriage under Section

13(1)(ia) and (ib) of the Hindu Marriage Act on the

ground of cruelty and desertion. In the petition it was

inter alia contended that the wife has left the

matrimonial home since July 2009 and has deserted

him for a continuous period of two years. It was also

pleaded that the wife had subjected him to cruelty.

Accordingly, the marriage was sought to be dissolved

on the grounds of cruelty and desertion. The

appellant/wife in her written statement inter alia

admitted the marriage and the fact that the two

children were born to the parties from the wedlock.

However, it was pleaded that the respondent, his

parents as well as his sister ill-treated the appellant

and made a demand for dowry. It was also pleaded

that appellant/wife was forcibly thrown out of the

matrimonial house.

4. The Family Court on the basis of pleadings of

the parties, framed the issues and recorded the

evidence of the parties. The Family Court vide

Judgment dated 27.01.2018 dissolved the marriage

between the parties by granting a decree of divorce

on the ground of desertion. In the aforesaid factual

background, this appeal has been filed.

5. Learned counsel for the appellant/wife

submitted that the respondent/husband had forcibly

driven the appellant out of the matrimonial home and

that she has not deserted the respondent. It is

further submitted that the Judgment and Decree of

the Family Court therefore, deserves to be set aside.

6. We have considered the submission made

by the learned counsel for the appellant and have

perused the record.

7. In Paragraph 5 of the written statement,

the wife has admitted the fact of marriage and the

fact of giving birth to two children from the marriage.

Further, the respondent has stated in his evidence

that the appellant left the matrimonial home in the

month of July 2009. Thereafter, respondent had filed

a petition on 23.04.2011 seeking restitution of

conjugal rights. Thereafter, the respondent filed the

petition on 12.06.2014 seeking dissolution of marriage

on the ground of desertion.

8. Thus, on the basis of aforesaid evidence on

record, it is evident that the respondent/husband

alone had to make efforts to ensure that the

appellant/wife joins the matrimonial home. However,

the findings on record does not indicate that any

attempt was made by the appellant/wife to join the

matrimonial home except by stating that the appellant

had made a complaint to the elders of the respondent.

The respondent in the state of evidence on record, has

proved that the wife had left the matrimonial home in

July 2009 and that the parties were residing

separately for a period of two years continuously from

the date of presentation of the petition. The Family

Court, therefore, rightly has concluded that the

ground for dissolution under Section 13(1(ia) of the

Act is made out. The finding recorded by the Family

Court is based on meticulous appreciation of the entire

evidence on record and does not call for any

interference in the instant appeal.

9. In the result, the appeal fails and the same

is hereby dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

bnv Ct-nn