Sri H.K. Sreenivasa vs Smt. C. Jayanthi
2022 Latest Caselaw 13165 Kant

                             1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 21ST 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.1549/2014 (FC)

BETWEEN:

SRI H.K. SREENIVASA
S/O LATE H.B. KONDAPPA
AGED ABOUT 51 YEARS
22/1,CENTRAL STREET
CLEVELAND TOWN
BANGALORE - 560 005.                         ...APPELLANT

(BY SRI H.K. SREENIVASA - PARTY-IN-PERSON)

AND:

SMT. C. JAYANTHI
W/O SRI H.K. SREENIVAS
AGED ABOUT 50 YEARS
R/AT NO.38, NEW POTTERY
TOWN, BENSON TOWN
POST, BANGALORE - 560 046.              ...RESPONDENT

      THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURT ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE PASSED BY THE LEARNED FIRST ADDITIONAL
PRINCIPAL FAMILY COURT JUDGE BANGALORE DATED
04.12.2013 PASSED IN M.C.NO.483/2005 AND ALLOW THE
SAID PETITION BY GRANTING A DECREE OF DIVORCE
AGAINST THE RESPONDENT ON THE GROUND OF CRUELTY,
DESERTION AND IRRETRIEVABLY BROKE DOWN OF
MARRIAGE AND ALSO GRANT SUCH OTHER RELIEF/S AS THIS
HON'BLE COURT DEEMS FIT TO GRANT UNDER THE
CIRCUMSTANCES OF THE ABOVE CASE WITH COST IN THE
INTEREST OF JUSTICE.
                               2


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

                     JUDGMENT

This Miscellaneous First Appeal is filed under

Section 19(1) of the Family Courts Act, 1984, assailing

the judgment and decree dated 04.12.2013 passed by

the I Addl. Principal Judge, Family Court, Bengaluru, in

M.C.No.483/2005, wherein the petition filed by the

appellant-husband under Section 13(1)(ib) of the Hindu

Marriage Act, 1955 (for short, 'the Act') for dissolution of

the marriage solemnized between the parties on

14.02.1990 at Devanga Sangha, Palani, Dindagul District,

Tamilnadu, by a decree of divorce has been dismissed.

2. Heard the appellant who has appeared in person

and also perused the material available on record.

3. Brief facts of the case that may be necessary for

the purpose of disposal of this appeal as revealed from

the records are, the marriage of the appellant with the

respondent was solemnized on 14.02.1990 at Devanga

Sangha, Palani, Dindagul District, Tamilnadu, and after

the marriage, for a short period, the couple lived in

Bengaluru, and thereafter they were residing together at

Silcher and Cuttack where the appellant was working

upto 1994. It is the case of the appellant that when they

were staying at Silcher and Cuttack, the respondent was

ill-treating him and she was very rude and arrogant and

she was not serving him food and was always insisting

for a lavish life. It is also his case that the respondent

failed to perform her marital obligations and she did not

cooperate with him for cohabitation. It is the further case

of the appellant that the parents of the respondent had

not advised her properly and the behaviour of the

respondent became intolerable and she was insisting the

appellant to take transfer to Bengaluru. However, the

appellant was transferred to K.G.F., but the respondent

did not join him at K.G.F. and she started residing with

her parents. She not only started neglecting him, but

also started assaulting him in public and she threatened

that she will commit suicide. She also allegedly filed false

criminal complaint against him. It is under these

circumstances, the appellant had filed M.C.No.190/1996

before the Family Court, Bengaluru, seeking a decree of

judicial separation on the ground that the respondent

was treating him with cruelty. The said petition was

dismissed by the Family Court on 18.10.2001.

Thereafter, the appellant had filed the petition under

Section 13(1)(ib) of the Act before the Family Court,

Bengaluru, seeking a decree of divorce on the ground of

desertion.

4. In the said proceedings, the respondent-wife had

entered appearance and filed her detailed statement of

objections denying the allegations made against her. She

has contended in the statement of objections that for

about 5 to 6 months after the marriage, they lived

happily at Bengaluru, and thereafter, at the intervention

of the in-laws, trouble started in her life. There was a

constant demand for dowry from the appellant and her

in-laws. She also contended that the appellant had

contracted a second marriage with his maternal uncle's

daughter namely Parimala and from the said wedlock, he

had two children and only to get rid of the respondent,

he had initiated proceedings seeking decree of divorce.

5. In order to substantiate the appellant's case, he

had examined himself as PW-1 and another witness as

PW-2 and got marked 11 documents as Exs.P-1 to P-11.

Whereas, the respondent examined herself as RW-1 and

got marked 12 documents Exs.R-1 to R-12. The learned

Judge of the Family Court vide the impugned judgment

and decree has dismissed the petition filed by the

appellant under Section 13(1)(ib) of the Act and being

aggrieved by the same, he has preferred this appeal.

6. The appellant who has appeared in person

submits that the respondent has been constantly ill-

treating him and she has filed false criminal complaints

against him and his family members and made is life

miserable. He submits that the marriage between the

couple has not consummated and the respondent had left

his company without any reasonable excuse. He also

submits that the respondent has falsely alleged that the

appellant has contracted a second marriage. He submits

that they are residing separately for nearly about 25

years, and therefore, there is no purpose in continuing

the marital tie when the marriage between them has

irretrievably failed. He, accordingly, prays to allow the

appeal.

7. The appellant prior to the filing of the present

petition under Section 13(1)(ib) of the Act seeking decree

of divorce on the ground of desertion, had filed

M.C.No.190/1996 under Section 10 of the Act seeking

decree of judicial separation. The judgment passed in the

said case is produced by the respondent at Ex.R-5. From

the perusal of the same, it is seen that though the

appellant had made various allegations against the

respondent contending that she had ill-treated him after

the solemnization of the marriage. In the said case, the

Family Court had observed that the appellant has failed

to prove the said allegations against the respondent. The

Family Court has also recorded a finding that there is

prima facie material as against the appellant to show that

he has contracted the second marriage with his maternal

uncle's daughter viz., Pramila. It is under these

circumstances, the Family Court had dismissed the

appellant's petition filed under Section 10 of the Act

seeking decree of judicial separation. The said judgment

and decree has attained finality. It is only after dismissal

of the said petition, the appellant has initiated the

present proceedings before the Family Court under

Section 13(1)(ib) of the Act seeking a decree of divorce

on the ground of desertion.

8. From the perusal of the pleadings made in the

petition, it is seen that the appellant has made various

allegations against the respondent stating that she has

treated him with cruelty. However, he has not stated as

to on which date, she had deserted him and such a

desertion is for a continuous period of two years

immediately prior to he filing the petition under Section

13(1)(ib) of the Act.

9. For the purpose of granting a decree of divorce

under Section 13(1)(ib) of the Act, the party approaching

the court is required to prove that the other spouse is

guilty of deserting him/her without there being any

reasonable excuse and such a desertion was for a period

of two years continuously immediately prior to the filing

of the petition. The party approaching the court is also

required to prove that the other spouse had left his/her

company with an intention to put an end to the marital

status between the parties and unless such a animus

deserendi is established by the party approaching the

court no relief can be granted in a petition under Section

13(1)(ib) of the Act.

10. On the other hand, the material on record

would go to show that the appellant had contracted a

second marriage with Smt. Pramila who is the daughter

of his maternal uncle and from the said wedlock, they

have two children. Under the circumstances, even if the

respondent had left the company of the appellant and

she had taken shelter with her parents, the same will not

amount to desertion for the purpose of Section 13(1)(ib)

of the Act. The respondent had a reasonable excuse for

leaving the company of the appellant and no fault can be

found in her conduct.

11. Section 23(1)(a) of the Act provides that the

party approaching the court cannot take advantage of

his/her own wrong or disability for the purpose of such

relief sought for in the petition. In the present case, the

appellant's conduct disentitles him of any relief under the

provisions of the Act. The Family Court having

appreciated all these aspects of the matter, has rightly

dismissed the petition filed by the appellant under

Section 13(1)(ib) of the Act seeking decree of divorce on

the ground of desertion.

12. We do not find any illegality or infirmity in the

judgment and decree passed by the Family Court.

Accordingly, the appeal fails and the same is hereby

dismissed.

SD/-

JUDGE

SD/-

JUDGE

KK