Smt Shashikala vs Sri Balakrishna G
2023 Latest Caselaw 2181 Kant

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                                         M.F.A.No.322 of 2017




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 12TH DAY OF APRIL, 2023
                         PRESENT
        THE HON'BLE MR JUSTICE ALOK ARADHE
                            AND
  THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
               M.F.A. NO.322 OF 2017 (FC)
BETWEEN

SMT. SHASHIKALA
W/O BALAKRISHNA
AGED ABOUT 34 YEARS
R/AT NO.246/1
THALGHATAPURA,
KANAKAPURA MAIN ROAD,
BANGALORE-560062.
                                                ...APPELLANT
(BY SRI K.SURESH DESAI, ADV.)

AND

SRI BALAKRISHNA G.
S/O GANGADHARA
AGED ABOUT 37 YEARS,
R/AT NO.14/3,
SRI NARAYANA NILAYA,
2ND 'A' CROSS,
MANRAYANAPALYA,
BANGALORE-560032.
                                              ...RESPONDENT
(BY SRI MOHIT KUMAR, ADV.-ABSENT)

       THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURTS
ACT,    AGAINST   THE    JUDGMENT    AND     DECREE   DATED
16.08.2016 PASSED IN M.C.NO.1504/2014 ON THE FILE OF
THE    V   ADDITIONAL   PRINCIPAL   JUDGE,   FAMILY   COURT,
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                                                        M.F.A.No.322 of 2017




BENGALURU, ALLOWING THE PETITION FILED U/S 13(1) (ia) &
(ib) OF HINDU MARRIAGE ACT.


         THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
10.04.2023,       COMING         ON     FOR       PRONOUNCEMENT          OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:


                               JUDGMENT

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

Act, 1984, has been filed against the judgment and decree

dated 16.08.2016 passed in M.C.No.1504/2014 by the V

Additional Principal Judge, Family Court, Bengaluru, by

which the petition filed by the respondent seeking

dissolution of marriage, was allowed.

2. Brief facts giving rise to filing of this appeal are that

the marriage of the appellant and respondent was

solemnized on 28.10.2006 at Hemavathi Kalyana Mantapa,

Thalagattapura, Bangalore, as per the Hindu customs and

rites. Out of the wedlock two female children are born

viz., Gangashree on 17.08.2008 and Ashwini on

18.05.2010. It is averred that the appellant/wife used to

M.F.A.No.322 of 2017

abuse the respondent in filthy language, never used to

cook food for the respondent and his parents and she has

neglected the matrimonial home. It is further averred that

the appellant was quarrelsome and used to harass the

respondent's aged parents, she used to threaten that she

would file police complaint against the respondent and his

parents and she has forced the respondent to arrange a

separate house. It is also averred that despite arranging a

separate house, the appellant continued her harassment

to the respondent and she left the matrimonial home

without the knowledge and consent of the respondent,

leaving the elder daughter in the matrimonial home. It is

pleaded that the appellant has deprived the conjugal rights

to the respondent without any justification and she has

refused to join the matrimonial home from 2009 onwards

despite making all the efforts to bring the appellant back

to matrimonial home.

3. The appellant has entered appearance before the

Family Court and filed the statement of objections. The

M.F.A.No.322 of 2017

appellant has admitted the relationship between the

parties and birth of the children. The appellant has

specifically denied the allegations of cruelty and desertion.

It is averred that the parents of the respondent used to

harass the appellant by demanding dowry, they used to

find fault with the appellant for silly reasons. It is further

averred that the respondent used to abuse and assault the

appellant for demand of dowry, the respondent used to act

as per the instructions and dictate of the parents. It is

also averred that after the delivery of the second female

child, the appellant informed the birth of the child to the

respondent and his family members, however, they have

not come forward to see the child and after three months

of delivery, the appellant went to the respondent's house,

but the mother of the respondent has not allowed the

appellant to enter the matrimonial home. It is contended

that the appellant's parents had convened a panchayat,

and the respondent has agreed to take back the appellant

to the matrimonial home, however he has failed to fulfill

promise. It is pleaded that the respondent is calling the

M.F.A.No.322 of 2017

appellant over the phone and threatening her to give

divorce.

4. The Family Court framed the issues and recorded the

evidence of the respondent. The appellant did not

examine herself and did not mark any documents. The

respondent examined himself as PW.1 and marked Exs.P1

to P6. The Family Court based on the evidence adduced

by the respondent vide judgment dated 16.08.2016

allowed the petition. In the aforesaid factual matrix the

present appeal has been filed.

5. Learned counsel for the appellant submits that there

is no dispute with regard to the relationship between the

parties and the birth of the children. It is submitted that

the respondent filed petition before the Family Court

seeking dissolution of marriage on the ground of cruelty

and desertion. The Family Court without properly

appreciating the evidence on record has proceeded to

grant decree of divorce. It is further submitted that the

Family Court has erred in coming to the conclusion that

M.F.A.No.322 of 2017

the respondent has proved the grounds of cruelty and

desertion. It is also submitted that the appellant was

staying with the respondent/husband and the respondent

has not allowed the appellant to meet her counsel to

enable her to adduce evidence before the Family Court. It

is contended that the Family Court has erred in

appreciating the pleadings and evidence on record

resulting in giving erroneous finding and seeks to allow the

appeal. Learned counsel for the respondent has remained

absent.

6. We have heard learned counsel for the appellant and

perused the material on record. The relationship between

the parties and birth of the children is not disputed. The

respondent has filed the petition seeking dissolution of

marriage on the ground of cruelty and desertion. The

respondent has pleaded that the appellant lived with the

respondent up to 2009 and thereafter the appellant

deserted the respondent. While she was staying with the

respondent, she has not taken proper care of the

respondent, she always used to abuse the respondent in

M.F.A.No.322 of 2017

filthy language and she never cooked the food. Despite

making several requests to the appellant to take care of

his aged parents, but for the reason best known to the

appellant she failed to look after the respondent and his

aged parents. It is further pleaded that the appellant used

to pick up unnecessary quarrels, she has harassed the

respondent and requested for arranging a separate house

and despite arranging separate house, she has not

changed her behavior and one fine day, she left the

matrimonial home without the knowledge and consent of

the respondent, leaving behind her elder daughter in the

matrimonial home.

7. The aforesaid allegations of cruelty are reiterated by

PW.1 in his examination-in-chief. It is admitted that the

appellant has not adduced any evidence to controvert the

allegations of cruelty and desertion. However it is the

respondent, who has pleaded before the Family Court that

the appellant has caused mental cruelty and deserted him

voluntarily and the same is required to be proved by the

respondent. The burden is on the respondent to prove the

M.F.A.No.322 of 2017

grounds pleaded before the Family Court to grant decree

of divorce.

8. Keeping in mind the above principle of law, we now

examine the pleading and evidence on record. The

allegations of cruelty that the appellant was quarrelsome,

she has neglected the respondent and his aged parents,

she used to abuse the respondent and his parents in filthy

language, are usual wear and tear in the matrimonial

home. The respondent has failed to point out specific

instances of cruelty before the Family Court by proper

pleadings and acceptable evidence. The assertions made

in the petition seeking dissolution of marriage on the

ground of cruelty are very vague and the same are not

substantiated by cogent and acceptable evidence.

9. It is not disputed that the marriage between the

parties was solemnized on 28.10.2006 and two daughters

were born out of the wedlock on 17.08.2008 and

18.05.2010. The duration from the date of marriage to

the date of separation, is a period of four years and the

M.F.A.No.322 of 2017

instances of cruelty pointed out by the respondent are not

so weighty to come to the conclusion that the appellant

has caused mental cruelty on the respondent. The

respondent has not examined any independent witness

who has seen or was present at the time of incidents of

cruelty as pointed out by the respondent. In the absence

of testimony of independent witness to substantiate the

allegations of cruelty and desertion, the reliance of self

serving statement of PW1 by the Family Court is

unjustifiable.

10. It is evident from the record that the petition for

dissolution of marriage was filed on 04.04.2014, alleging

that the appellant has deserted the respondent in the year

2009. The respondent has not specifically pleaded that

the appellant has deserted the respondent for continuous

period of more than two years immediately preceding the

presentation of petition with an intention to end the

marital relationship. In the absence of any specific plea of

desertion, the Family Court has erred in giving finding that

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M.F.A.No.322 of 2017

the appellant has deserted the respondent and caused

cruelty. The said finding is contrary to the material on

record.

11. The respondent is required to prove that the conduct

of the appellant is such that he is unable to lead marital

life with the appellant. The allegations of cruelty pleaded

are vague and isolated and the same are not substantiated

by any cogent evidence. The Family Court has proceeded

to grant decree of divorce mainly on the ground that the

appellant has failed to appear or place any oral or

documentary evidence in support of her case. The Family

Court has failed to appreciate that the burden to prove the

allegations of cruelty and desertion is heavily placed on

the respondent on considering the material on record, it

can be fairly held that the respondent has failed to

discharge the said burden and has failed to prove the

grounds of cruelty and desertion.

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M.F.A.No.322 of 2017

12. For the aforementioned reasons, the impugned judgment

and decree dated 16.08.2016 passed in M.C.No.1504/2014 is

set aside.

In the result the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT:DMN