Smt Sudha vs A H Suresh
2023 Latest Caselaw 1237 Kant

                                                 -1-
                                                         MFA No.1890 of 2015




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                           DATED THIS THE 9TH DAY OF FEBRUARY 2023
                                               PRESENT
                             THE HON'BLE MR. JUSTICE ALOK ARADHE
                                                 AND
                         THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY
                        MISCELLANEOUS FIRST APPEAL NO.1890 OF 2015 (FC)

                   BETWEEN:

                   1.    SMT. SUDHA
Digitally signed         AGED ABOUT 41 YEARS
by RUPA V                W/O A.H. SURESH
Location: High           R/O DOOR, NO.377, SHIVA KRUPA
Court of                 MALLIKARJUNA BADAVANE
Karnataka
                         AMARAVATHI COLONY, HARIHAR TALUK
                         DAVANAGERE DISTRICT 577 601.
                                                                ...APPELLANT
                   (BY SRI. GOPALA R, ADV.,)
                   AND:

                   1.    A.H. SURESH
                         AGED ABOUT 51 YEARS
                         S/O LATE A. HANUMANTHAPPA
                         R/O KUMBALUR VILLAGE, HARIHAR TALUK
                         DAVANAGERE DISTRICT 577 601.

                                                              ...RESPONDENT
                   (RESPONDENT SERVED AND UNREPRESENTED)

                          THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS
                   ACT      AGAINST    THE       JUDGMENT    AND    DECREE
                   DATED:28.1.2015 PASSED IN M.C NO.282/2014 ON THE FILE
                   OF THE JUDGE, FAMILY COURT, DAVANGERE, DISMISSING
                              -2-
                                         MFA No.1890 of 2015




THE PETITION FILED U/SEC 13(1)(i-a)(i-b) OF THE HINDU
MARRIAGE ACT.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:


                         JUDGMENT

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

1984 has been filed against judgment dated 28.01.2015 passed

by the Family Court by which the petition filed by the appellant

under Sections 13(1)(i-a) and (i-b) of the Hindu Marriage Act,

1955, has been dismissed.

2. Facts giving rise to filing of this appeal briefly stated

are that the marriage between the parties was solemnized on

15.03.1993 at Dogganahalu Village of Holalkere Taluk. Out of

the wedlock, two children namely Megha A.S. and Sachin A.S.

were born to the parties. However, it is the case of the

appellant / wife that the respondent treated her with cruelty

and deserted her in the year 2004 and did not join the

matrimonial home.

MFA No.1890 of 2015

3. The appellant / wife filed a petition on 05.12.2014

seeking dissolution of marriage on the ground of cruelty and

desertion. Despite service of notice, respondent neither

appeared nor contested the claim of the appellant. The

appellant examined herself as PW-1 and exhibited 3

documents. The Family Court, however, vide judgment dated

28.01.2015, has dismissed the petition filed by the appellant

inter alia on the ground that the appellant has failed to make

out the grounds of cruelty and desertion. In the aforesaid

factual background, this appeal has been filed.

4. Learned counsel for the appellant submitted that the

Family Court ought to have relied upon the evidence adduced

by the appellant and should have decreed the suit filed by the

appellant / wife.

5. Despite service of notice, respondent has not appeared

even before this Court.

6. We have considered the submission made by the

learned counsel for the appellant and have perused the record.

MFA No.1890 of 2015

The appellant, in order to prove her case, has examined herself

as PW-1. In paragraph 6 of her evidence, PW-1 has clearly

stated that the respondent deserted the matrimonial home in

the year 2004 and did not join the matrimonial home. The

petition seeking dissolution of marriage was filed on

05.12.2014. The aforesaid testimony of the appellant has not

been assailed by the respondent and she has not been

subjected to cross-examination. It is trite law that where one

party does not lead any evidence, very little evidence is

required to discharge the initial burden much less on a party.

It is equally well settled legal preposition that if the testimony

of the witness is not challenged by way of cross-examination,

the same ought to be taken to be true. The Family Court while

passing the impugned judgment and decree has not taken into

account the aforesaid well settled legal principles. In our

considered opinion, there is no reason to disbelieve the

uncontroverted testimony of the appellant. Therefore, we hold

that the appellant has established the ground of desertion and

she is entitled to a decree. Since the decree for dissolution of

marriage is being granted on the ground of desertion,

therefore, it is not necessary for us to examine the other

MFA No.1890 of 2015

ground raised by the appellant with regard to dissolution of

marriage on the ground of cruelty.

For the aforementioned reasons, the impugned judgment

and decree dated 28.01.2015 passed by the Family Court is set

aside. The marriage solemnized between the parties on

15.03.1993 is dissolved by a decree of divorce.

In the result, the appeal is partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE

RV