Sarvamangala vs Nagaraj
2022 Latest Caselaw 12723 Kant

                            1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF NOVEMBER, 2022

                        PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

               M.F.A. NO.192/2014 (FC)

BETWEEN:

SARVAMANGALA
AGED ABOUT 47 YEARS
D/O DYAVAPPA KASETTY
W/O NAGARAJ
HARNAHALLI VILLAGE AND POST
SHIVAMOGGA TALUK AND DISTRICT.

AND ALSO AT D.NO.21 I CROSS
I MAIN, DWARAKANAGAR
HESARAGHATTA MAIN ROAD
BENGALOORU - 560 073.                 ...APPELLANT

(BY SRI N.S. NARASIMHA SWAMY, ADV.)

AND:

1.     NAGARAJ
       AGED ABOUT 52 YEARS
       S/O G. MALAPPA
       DHANEHALLI, MADANABHAVI POST
       HONNALLI TALUK, SHIVAMOGGA
       DIST - 577 217.

2.     KUMARI LATHA @ SHREE
       D/O SARVAMANGALA
       AGED ABOUT 22 YEARS
       R/AT NO 21, IST CROSS I MAIN
       DWARAKANAGAR
       HESARA GHATTA MAIN ROAD
       BANGALORE - 560 073.           ...RESPONDENTS
                                    2


(BY SRI UMESH M, ADV., FOR
SRI S.V. PRAKASH, ADV., FOR C/R
NOTICE TO R-2 IS D/W)

      THIS M.F.A. IS FILED UNDER SECTION 19 OF THE
FAMILY COURT ACT, 1923, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 26.11.2013 PASSED BY THE
LEARNED I ADDL. PRL. JUDGE, FAMILY COURT, BENGALURU
IN M.C.NO.804/2009 AND DISMISS THE SAID PETITION, IN
THE INTEREST OF JUSTICE & EQUITY.

    THIS APPEAL COMING ON FOR ORDERS THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:

                        JUDGMENT

This miscellaneous first appeal is filed under

Section 19 of the Family Court Act, 1984 assailing the

judgment and decree dated 26.11.2013 passed by the I

Additional Principal Judge, Family Court, Bengaluru in

M.C.No.804/2009 wherein the marriage between the

parties solemnized on 28.05.1990 at Dhanehalli Village,

Honnali Taluk, Shivamogga District has been dissolved by

a decree of divorce.

2. Brief facts leading to filing of the case as

revealed from the records are, the marriage of the

appellant with the respondent was solemnized on

28.05.1990 as per the customs and rites prevailed in

their community. At the time of marriage, the

respondent-husband was worked in a private firm at

Bengaluru. Therefore, in the month of June, 1990 he

came to Bengaluru along with his wife and started living

in a rented house at Chikkabidirekallu of Nelamangala

Taluk. The appellant - wife started quarrelling with the

respondent - husband on petty issues and she also used

to quarrel with the neighbours for no reason. Due to the

behaviour of the appellant - wife, the landlord of the

house insisted for vacating the premises. Whenever the

couple quarreled, the appellant - wife used to go out of

the house and start shouting loudly standing in the street

which embarrassed the respondent and because of this

behaviour of the appellant, the respondent had to

frequently change his residence. The appellant was

throughout non-cooperative and behaving arrogantly

with the respondent and in the month of August, 1992,

she left the company of the respondent and started

residing with her parents and thereafter she had not

come back and all efforts made by the respondent to

bring her back had failed. Thereafter, the respondent

herein had filed petition before the jurisdictional civil

Court, Shivamogga for dissolution of marriage which was

subsequently transferred to the Family Court, Bengaluru

and re-numbered as M.C.No.804/2009. In the said

proceedings, the appellant -wife had filed statement of

objections denying the petition averments. She has also

contended that after the birth of girl child in the year

1992, the respondent had not taken her back. Before the

Family Court, the respondent had examined himself as

P.W.1 and two other witnesses were examined as P.W.2

and P.W.3 and four documents were marked as Ex.P.1 to

P.4 whereas the appellant examined herself as R.W.1 and

got marked 5 documents as Ex.R.1 to R.5. The Family

Court vide the impugned judgment and decree allowed

the petition and dissolved the marriage between the

appellant and the respondent and being aggrieved by the

same, the appellant is before this Court.

3. Learned Counsel for the appellant submits

that the respondent has not made out the grounds for

dissolution of marriage either under Section 13(1)(ia) or

13(1)(ib) of the Act. He submits that the Family Court

has completely erred in appreciating the material

evidence available on record. He also submits that the

Family Court has not exercised its power under Section

25 of the Act while passing the order of divorce dissolving

the marriage between the parties.

4. Per contra, learned Counsel for the

respondent has argued in support of the impugned

judgment and decree and submits that no application has

been filed by the appellant either before the Family Court

or before this Court under Section 25 of the Act, and

therefore, she is not entitled for any permanent alimony.

5. The material on record would go to show that

the learned Judge of the Family Court has granted decree

of divorce both on the ground of cruelty as well as

desertion. The learned Judge of the Family Court having

appreciated the oral and documentary evidence placed

on record on behalf of the respondent-husband has come

to a conclusion that the appellant-wife was guilty of

treating the respondent with cruelty after solemnization

of their marriage. The respondent during the course of

deposition has reiterated the petition averments and

stated that the appellant was quarrelling with him and

neighbours without there being any valid reason and she

was in a habit of going out to the street and shouting

loudly. This evidence has been corroborated by the

witnesses examined in support of respondent's case who

have also stated that house owner had therefore

requested the respondent to vacate the house. It has

come on record that the appellant was also misbehaving

with the relatives of the respondent. Undisputedly, the

couple are residing separately ever since the year 1992

and their daughter is now married and she is staying

separately with her husband. Since the parties have been

staying separately for the last nearly 30 years it would

not be practicable to ask them at this juncture to stay

under a same roof. Institution of marriage can subsist

only when the couple have respect to each other and

they have belief and faith on each other.

6. The Hon'ble Apex Court in the case of

SAMAR GHOSH VS. JAYA GHOSH1 has observed that

"where there has been a long period of continuous

separation, it may fairly be concluded that the

matrimonial bond is beyond repair. The marriage

(2007) 4 SCC 511

becomes a fiction though supported by a legal tie. By

refusing to sever that tie, the law in such cases, doe not

serve the sanctity of marriage; on the contrary, it shows

scant regard for the feelings and emotions of the parties.

In such like situations, it may lead to mental cruelty."

Under the circumstances, the only question that arise for

consideration in the said appeal would be whether the

appellant is entitled for grant of any permanent alimony?

7. The Honb'le Apex Court in the case of

RAMESH CHANDRA RAMPRATAPJI DAGA VS

RAMESHWARI RAMESH CHANDRA DAGA2 has held

that when by court intervention under the Hindu Marriage

Act, affectation or disruption to the marital status has

come by, at that juncture, while passing the decree, it

undoubtedly has the power to grant permanent alimony

or maintenance, if that power is invoked at that time.

8. Section 25 of the Hindu Marriage Act, 1955 is

an enabling provision, which empowers the court to

consider at the time of passing any decree, whether or

not to grant permanent alimony or maintenance. The

AIR 2005 SC 422

Division Bench of this Court in the case of AMIT VINAY

WELANGI VS MRS.NUPUR AMIT WELANGI3 has held

that while granting a decree of divorce in favour of the

husband, permanent alimony can be granted in favour of

a wife even if she has not filed an application.

9. It has come on record that the respondent

was working in a private firm as an Accountant at the

time of the marriage and he also owns some agricultural

property at Danehalli, Honnali Taluk. The appellant also

do not have any income of her own to lead her life.

Though the parties have not filed any particulars with

regard to their assets and liabilities, having regard to the

facts and circumstances of the case and taking into

consideration the material available on record, we are of

the considered view that, if a sum of Rs.5 lakhs is

directed to be paid by the respondent to the appellant

towards permanent alimony, the same would serve the

ends of justice. Accordingly, the following:-

::ORDER::

Miscellaneous First Appeal is disposed of affirming the judgment and decree dated

AIR 2018 KAR 156

26.11.2013 passed by the I Additional Principal Judge, Family Court, Bengaluru in M.C.No.804/2009 dissolving the marriage of the appellant with the respondent that was solemnized on 28.05.1990 at Dhanehalli Village, Honnali Taluk, Shivamogga District.

The respondent-husband is directed to pay a sum of Rs.5,00,000/-(Rupees Five Lakhs) to the appellant towards permanent alimony within a period of three months from the date of receipt of certified copy of this order.

SD/-

JUDGE

SD/-

JUDGE

NMS