Smt T Sujatha vs Sri R Govindaraju
2023 Latest Caselaw 2255 Kant

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                                     M.F.A.No.7990/2017




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 18TH 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.7990 OF 2017 (MC)
BETWEEN

SMT. T. SUJATHA
W/O R.GOVINDARAJU,
D/O M.N.THIMMADASAPPA,
AGED ABOUT 48 YEARS,
OCC. TEACHER,
RAMEGOUDA STREET,
PAVAGADA ROAD,
MADHUGIRI-572132,
TUMKUR DIST.
                                          ...APPELLANT
(BY SRI GURURAJ JOSHI, ADV.)

AND

SRI R.GOVINDARAJU
S/O RANGAPPA,
AGED ABOUT 54 YEARS,
OCC. ASST. POLICE SUB-INSPECTOR (ASI),
MADANAYAKANAHALLI-NELAMANGALA TALUK,
BENGALURU RURAL.

PERMANENT RESIDENT OF BYCHENAHALLI
VILLAGE,
KOLALA HOBLI,
KORATAGERE TALUK-572129,
DIST-TUMKUR.
                                         ...RESPONDENT
(BY SRI A.SAMPATH, ADV.)
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                                                    M.F.A.No.7990/2017




     THIS MFA IS FILED U/S.28(1) OF HINDU MARRIAGE ACT,
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2017
PASSED IN M.C.NO.47/2011 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE & JMFC, MADHUGIRI, ALLOWING THE
PETITION FILED U/S 13(1) (a & b) OF HINDU MARRIAGE ACT.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
13.04.2023,        COMING      ON      FOR       PRONOUNCEMENT     OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:
                              JUDGMENT

This appeal under Section 28(1) of the Hindu

Marriage Act, 1955, has been filed against the judgment

and decree dated 22.07.2017 passed in M.C.No.47/2011

by the Principal Senior Civil Judge & JMFC, Madhugiri, by

which the petition filed by the respondent seeking

dissolution of marriage on the ground of cruelty and

desertion, was allowed.

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

that the marriage of the respondent and appellant was

solemnized on 29.04.2001 at Kannikaparameshwari

Temple, Madhugiri town. They led a happy marital life for

a period of five years and out the wedlock two children are

M.F.A.No.7990/2017

born. It is averred that the appellant used to quarrel with

the respondent and his parents for no reason. The

appellant also had an illicit relationship with Sri.Ramesha,

later for which the panchayat was held and the appellant

was advised to lead the married life with respondent, but

the same went in vain. It is further averred that the

appellant along with the children deserted the respondent

in the year 2007. Consequently, respondent requested

the appellant to join the matrimonial home by issuing the

legal notice dated 18.08.2009. It is also averred that the

respondent has filed the petition for restitution of conjugal

rights in M.C No.57/2009, but he withdrew the same, the

appellant has filed a suit in O.S No.101/2010 for seeking

maintenance, the respondent has made efforts to bring

back the appellant to matrimonial home, but all his efforts

went in vain.

3. The appellant has entered appearance before

the Family Court and filed the statement of objections.

The appellant has admitted their relationship and birth of

two children. It is averred that the respondent has agreed

M.F.A.No.7990/2017

that he would reside with her parents, but the respondent

refused to do so. It is further averred that the respondent

refused to visit the appellant's parents and when the

appellant questioned the same, the respondent used to

abuse her. It also averred that the respondent has

received a telephonic call from Smt.Manjula and when the

appellant has enquired regarding the telephonic call, the

respondent abruptly left the matrimonial home and on

further enquiry the appellant came to know that the said

call was made by Smt.Manjula and the respondent is

having illicit relationship with her. It is averred that the

respondent is working as a Police Constable and the

appellant is a Teacher. The appellant has made a request

to the respondent to make arrangement for transfer to

one place, however, the respondent refused to do so. The

respondent intentionally withdrew the petition filed for

restitution of conjugal rights, as the appellant filed

objections stating that she is ready and willing to lead

marital life with the respondent.

M.F.A.No.7990/2017

4. The Family Court has recorded the evidence of

the parties. The appellant examined herself as RW.1 and

no documents were produced. The respondent examined

himself as PW.1 and produced Exs.P1 to P12. The Family

Court based on the evidence adduced by the parties vide

judgment dated 22.07.2017 allowed the petition by

granting decree of divorce. In the aforesaid factual matrix,

the present appeal has been filed.

5. Learned counsel for the appellant submits that

the Family Court has committed error in granting decree of

divorce on the ground of cruelty and desertion without

properly appreciating the evidence on record. It is

submitted that the respondent has failed to plead and

adduce any evidence to establish the factum of cruelty and

desertion. Without looking into the pleadings, the Family

Court has proceeded to pass the judgment by recording

incorrect finding that the respondent has proved the

grounds of divorce.

M.F.A.No.7990/2017

6. It is further submitted that there is no dispute

with regard to the relationship between the parties and

birth of two children. It is also submitted that the Family

Court has committed error in not allowing the appellant to

adduce her further evidence after providing one more

opportunity to the respondent to adduce his further

evidence, hence, the Family Court has committed

procedural irregularity. It is submitted that the

respondent has filed petition for restitution of conjugal

rights and when the appellant has filed the statement of

objections stating that she is ready to join the matrimonial

home, the respondent withdrew the petition, which clearly

establishes that the appellant has not deserted the

matrimonial home and it is because of the conduct of the

respondent, she has started living with her parents.

7. Per contra, learned counsel for the respondent

supports the impugned judgment and contends that the

Family Court has properly appreciated the evidence on

record and given categorical finding that the appellant in

her objections has made allegation of illicit relationship

M.F.A.No.7990/2017

and extra marital affair of the respondent which amounts

to mental cruelty. It is submitted that the appellant has

led married life only for a period of 5 years and she has

left the matrimonial home without any reason by denying

conjugal relationship to the respondent and the same

amounts to mental cruelty on the respondent. It is further

submitted that the respondent has sent legal notice dated

18.08.2009 requesting the appellant to join the

matrimonial home. Despite the same, she has failed to

join the matrimonial home which clearly establishes that

the appellant is not interested to lead married life with the

respondent.

8. We have heard the learned counsel for the

appellant and the respondent and perused the material on

record. It is not in dispute that the appellant and

respondent have married on 29.04.2001, out of the

wedlock two children have been born and the appellant

started residing separately after five years of marriage.

On perusal of the petition filed by the respondent seeking

dissolution of marriage on the ground of cruelty and

M.F.A.No.7990/2017

desertion, it is pleaded that the appellant used to quarrel

unnecessarily with the respondent and his parents and he

has advised her to mend herself however, she has failed to

change her behavior. It is further pleaded that the

respondent has learnt that the appellant is having illicit

relationship with Sri.Ramesha and when the panchayats

were held, it was advised to the appellant to live happily

with the respondent by giving up all unlawful activities,

however, she has not changed.

9. It is also pleaded that the appellant left the

respondent about four years back voluntarily along with

the children and without intimating the respondent and

since then there has been no cohabitation between the

parties. The aforesaid allegations of cruelty and desertion

are reiterated in the evidence of PW.1. The said assertion

of cruelty and desertion has been denied by the appellant

in her statement of objections and evidence.

10. On careful scrutiny of the pleading and

evidence on record, it is evident that except vague

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assertion that the appellant used to quarrel unnecessarily

with the respondent and his parents, she had illicit relation

with Sri.Ramesh and that she has left the matrimonial

home four years ago with the children, no specific

instances of cruelty is pleaded nor substantiated with the

evidence. The allegations of cruelty are very vague and

are in the nature of usual wear and tear of marital life.

11. The allegation of adulterous life of the appellant

is not substantiated with any corroborative evidence. The

allegations of cruelty are not so weighty to come to the

conclusion that the respondent is unable to lead married

life with the appellant. The respondent has failed to plead

and prove the ground of desertion. The respondent has

not stated that the appellant has left the matrimonial

home with an intention to end the cohabitation

permanently and without any reason. The respondent has

made assertion that the appellant has left the matrimonial

home along with the children by deserting the respondent

and also alleged cruelty. However, the respondent has

filed the petition for dissolution of marriage on the ground

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M.F.A.No.7990/2017

of cruelty and desertion only on 09.06.2011 after six

years, there is no explanation whatsoever for the delay

and the Family Court has failed to consider this aspect

while allowing the petition.

12. The Family Court has given the finding that

both the parties have made allegation of illicit relationship

with other persons and both have failed to prove the

same. It has further observed that since 2007 both the

parties are not in good terms. The respondent has

deposed that there is no cohabitation between them since

2010 and there is no point in asking the parties to live

together, hence, proceeded to dissolve the marriage. The

Family Court has failed to appreciate the fact that the

respondent is required to discharge the burden of proving

the grounds of cruelty and desertion by proper pleading

and evidence in which he has failed. The Family Court has

given an incorrect finding that the marriage can be

dissolved on the ground that the parties have not

cohabitated for long time and there are no chances of

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M.F.A.No.7990/2017

reunion. The aforesaid finding of the Family Court is

contrary to law, pleading and evidence on record.

For the aforementioned reasons, the impugned

judgment and decree dated 22.07.2017 passed by the

Family Court in M.C.No.47/2011 is set aside. In the result

the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

BSR CT:DMN