L. Lokesh vs Smt. Usha
2023 Latest Caselaw 2334 Kant

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                                       M.F.A.No.8669 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 21ST 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.8669 OF 2016 (FC)
BETWEEN

L. LOKESH
S/O LAKSHMAN SHETTY
AGE 48 YEARS
R/OF BILEKALLU,
JYOTHINAGARA POST,
CHIKMAGALUR-577 101.
                                               ...APPELLANT
(BY V.D.RAVIRAJ, ADVOCATE)

AND

SMT. USHA
W/O L.LOKESH
AGE 46 YEARS,
R/OF JAGANAHALLI,
SHANIVARASANTHE POST
SOMWARPET TALUK,
COORG DISTRICT-571235.
                                             ...RESPONDENT
(BY SRI CHETHAN C.P., ADV.-ABSENT)

       THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURTS
ACT,    AGAINST   THE   JUDGMENT     AND   DECREE    DATED
22.02.2014 PASSED IN M.C.NO.52/2013(133/11) ON THE FILE
OF THE PRINCIPAL JUDGE, FAMILY COURT, CHIKMAGALUR,
DISMISSING THE PETITION FILED U/S. 13(1) OF THE HINDU
MARRIAGE ACT.
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                                            M.F.A.No.8669 of 2016




     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
19.04.2023,   COMING     ON     FOR        PRONOUNCEMENT      OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:


                        JUDGMENT

This appeal under Section 19 of the Family Courts

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

dated 22.02.2014 passed in M.C. No.52/2013 by the

Principal Judge, Family Court, Chikmagalur, by which the

petition filed by the appellant seeking dissolution of

marriage, was dismissed.

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

that the marriage of the appellant and respondent was

solemnized in the year 1999 and out of the wedlock two

children viz., Rashmi and Rakesh have been born. It is

averred that initially the marital life was good between the

parties, the dispute started when their daughter sustained

fracture and was admitted to Wenlock Hospital,

Mangalore. The respondent got in contact with one

Mr.Arun, resident of Sakaleshpura and she used to speak

M.F.A.No.8669 of 2016

to him over the phone regularly. It is further averred that

on 25.04.2011, Mr.Arun along with his friends kidnapped

the appellant and threatened him, however, the appellant

escaped from their clutches and lodged compliant before

Chikmagalur Police Station. It is also averred that the

respondent is not taking care of the appellant as a dutiful

wife and she is not providing him proper food. The

respondent has deserted the appellant and there is no

cohabitation between them since two years.

3. The respondent has entered appearance before

the Family Court and filed statement of objections, she has

admitted their relationship and birth of two children. It is

averred that, it is the appellant who was not looking after

the respondent and their children by providing basic needs

for life, the appellant has not paid school fees of the

children and it is the respondent's mother who has paid

the school fees. It is further averred that the appellant

and respondent are living as husband and wife in the same

house and the allegation of adultery is denied as false and

M.F.A.No.8669 of 2016

without any basis. It is also specifically denied that the

respondent has deserted the appellant.

4. The Family Court, on the basis of pleadings and

evidence, framed the issues and recorded the evidence.

The appellant examined himself as PW.1 and another

witness as PW-2 and produced Exs.P1 to P3. The

respondent examined herself as RW.1 and produced

Exs.R1 to R8. The Family Court based on the evidence

adduced by the parties, vide judgment dated 22.02.2014

dismissed 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 relationship and birth of

their children. It is submitted that the appellant has

specifically pleaded and proved that the respondent was

having illicit relationship with one Mr.Arun, she used to call

him frequently over the phone and in the absence of the

appellant the said Mr.Arun used to visit the house. It is

further submitted that despite the advise of the appellant

M.F.A.No.8669 of 2016

and elders, the respondent has not changed her attitude

and she has continued her relationship with the said

Mr.Arun. On 25.04.2011 said Mr.Arun, with an intention to

take the life of the appellant, has kidnapped the appellant,

however, the appellant has escaped from his clutches and

filed the police complaint against Mr.Arun before

Chikmagaluru Police Station. It is also submitted that the

respondent has not cohabitated with the appellant for

more than two years and she has deserted him. The

Family Court has not appreciated the evidence on record

in its proper perspective resulting in dismissal of the

petition. The appellant has filed an application under Order

XLI Rule 27 of the Code of Civil Procedure, for production

of additional evidence in this proceeding.

6. None for the respondent.

7. We have heard learned counsel for the

appellant and perused the material on record. The petition

for the dissolution of marriage was filed under section

13(1) of the Hindu Marriage Act, 1955 before the Family

M.F.A.No.8669 of 2016

Court without specifically stating the grounds on which

petition is filed. On careful perusal of the pleading, it is

evident that the petition is filed for dissolution of marriage

on the ground of adultery and desertion. The appellant has

pleaded that the respondent had illicit relationship with

Mr.Arun, resident of Sakleshpura and he used to visit the

respondent when she was accompanying her daughter to

Wenlock hospital, Mangalore and later the respondent

continued her relationship with said Mr.Arun. Mr.Arun used

to visit the house and they were in constant touch over

the phone.

8. On meticulous appreciation of pleading and

evidence on record, it is evident that the appellant has not

arrayed Mr.Arun as a party to the proceedings before the

Family Court. The allegations of adultery are required to

be pleaded properly and the same is required to be

substantiated by cogent, corroborative and independent

testimony of the witnesses. The appellant has made

vague assertion of adultery, he has not adduced any

independent witness to substantiate the assertion that the

M.F.A.No.8669 of 2016

said Mr.Arun used to visit the house in the absence of the

appellant and they had illicit relationship. The appellant

has made assertion that said Mr.Arun along with others

have kidnapped the appellant on 29.04.2007 however he

has escaped from their clutches and lodged the police

complaint. Mere lodging of the police complaint against the

Mr.Arun and others ipso facto does not establish that the

respondent had adulterous life with the said Mr.Arun. The

criminal court has not recorded any findings on the said

complaint. In the absence of any cogent and corroborative

evidence of adultery, we do not find any substance in the

allegation.

9. The appellant in paragraph No.3 of the petition

has pleaded that from past two years the appellant is not

having any cohabitation with the respondent and the

respondent is not cooperating in that regard, hence, the

respondent has deserted the appellant. The said pleadings

are not sufficient to prove the ground of desertion. The

appellant has failed to plead and prove that the

respondent has deserted the appellant with an intention to

M.F.A.No.8669 of 2016

end cohabitation with the appellant. The assertion of the

appellant is vague and in his evidence he himself has

admitted that the respondent is residing with him. In view

of the said admission, it cannot be said that the

respondent has deserted the appellant, the appellant failed

to prove the ground of desertion also.

10. The appellant has filed an application under

Order XLI Rule 27 of the Code of Civil Procedure on

15.03.2023 for production of additional documents in the

above proceedings. The documents intended to be

produced by the appellant was very much available at the

time of filing the petition and was within the knowledge of

the appellant before the Family Court and no explanation

whatsoever has been offered by the appellant in support of

the said application as to why it was not produced before

the Family Court. The appellant has failed to fulfill the

requirements mentioned in Order XLI Rule 27 of CPC.

Hence, I.A.No.1/2023 for production of additional

document is rejected.

M.F.A.No.8669 of 2016

11. The Family Court, on meticulous appreciation of

evidence on record, has recorded the finding that the

appellant has failed to prove the grounds for dissolution of

marriage i.e., adultery and desertion. The aforesaid

findings do not suffer from any infirmity warranting

interference by this Court in the present appeal.

For the aforementioned reasons, we do not find any

merit in this appeal. The same fails and is hereby

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

BSR CT:DMN