Karnataka High Court
Sri Gopala Krishna vs Smt Vijaya Lakshmi on 21 February, 2023
Bench: Alok Aradhe, Vijaykumar A Patil
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MFA No. 2175 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY 2023
PRESENT
THE HON'BLE MR JUSTICE ALOK ARADHE
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A PATIL
MISCELLANEOUS FIRST APPEAL NO.2175 OF 2016 (MC)
BETWEEN:
1. SRI. GOPALA KRISHNA
S/O LATE VENKATA GOWDA
Digitally AGED ABOUT 47 YEARS
signed by R/A C/O MUDDA GANGAIAH
RUPA V
DOOR NO.527, 5TH CROSS
Location: SHANTHI NAGAR
High Court DODDABALLAPUR TOWN.
of Karnataka
...APPELLANT
(BY SRI. MANJUNATH, ADV.,)
AND:
1. SMT. VIJAYA LAKSHMI
W/O GOPALA KRISHNA
AGED ABOUT 43 YEARS
R/A MARUTHI CABLE CENTRE
5TH WARD MAIN ROAD
D CROSS, DODDABALLAPUR
BANGALORE RURAL DISTRICT.
...RESPONDENT
(BY SRI. D.T. NANJESH GOWDA, ADV., (ABSENT))
THIS MFA IS FILED U/S.28 OF THE HINDU MARRIAGE
ACT, AGAINST THE ORDER DATED:31.10.2015 PASSED ON MC
NO.28/2002 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC, DODDABALLAPURA, REJECTING THE PETITION FILED
U/S.13 OF THE HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
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MFA No. 2175 of 2016
JUDGMENT
This appeal under Section 28 of Hindu Marriage Act,
1955 (hereinafter referred to as 'the Act for short) has been
filed against judgment and decree dated 31.10.2015 by
which the petition filed by the appellant under Section 13(ia)
and (ib) of the Act has been dismissed.
2. Facts giving rise to filing of this appeal briefly
stated are that the marriage between the parties was
solemnized on 12.08.1993 at Doddaballapur. The appellant
after the marriage got an employment as Assistant School
Teacher. Out of the wedlock, a daughter was born.
3. The appellant filed a petition on or about
03.12.2005 seeking dissolution of marriage. It was averred
that immediately after the marriage, respondent and her
parents insisted that the appellant should live in the house
of the respondent along with his parents. It was pleaded
that the behaviour of the respondent was quarrelsome and
she used to ill treat the appellant. It was also pleaded that
respondent lodged a false complaint against the appellant
MFA No. 2175 of 2016
due to which the appellant had to remain in judicial custody
for one day. It was also pointed out in the petition that on
the basis of complaint made by the respondent to the
Commissioner of public instructions, Government of
Karnataka, the appellant was suspended for a period of 10
days. It was therefore, pleaded that the respondent has
deserted the appellant and has treated him with cruelty.
4. The respondent filed statement of objection in
which factum of marriage was admitted. However,
averments made regarding cruelty and desertion were
denied.
5. The family court on the basis of pleadings of
parties framed the issues. The family court thereafter,
recorded the evidence of the parties. The appellant examined
himself as PW1 and two witnesses viz., Venkataramaiah and
Channaramaiah and exhibited 11 documents viz., Ex.P1 to
Ex.P11, whereas, respondent examined herself as RW1 and
six witnesses viz., Smt.Mariyamma, Mr.S.R.Murthy,
Sri.B.M.Ramanjinappa, Mr.B.N.Devaraju, Mr.Girivardhana
MFA No. 2175 of 2016
G.S. and Mr.Stanley P., and exhibited 56 documents viz.,
Ex.R1 to Ex.R56.
6. The family court vide judgment date 30.10.2015
inter alia held that as per the appellant himself, the
respondent left the matrimonial home in the month of March
2002 and the petition seeking dissolution of marriage has
been filed on 05.06.2002. It was therefore held that the
ground of dissolution of marriage on the ground of desertion
has not been proved. The family court rejected the prayer for
grant of dissolution of marriage on the ground of cruelty, on
the ground that the appellant has failed to prove the
allegation of cruelty.
7. Learned counsel for the appellant submitted that
a false and frivolous compliant for an offence under Section
498A of the Indian Penal Code was filed against the
appellant, in which the appellant has been subsequently
acquitted. It is further submitted that since, the appellant
was required to face the trial and therefore, the appellant is
entitled to dissolution of marriage on the ground of cruelty.
MFA No. 2175 of 2016
In support of aforesaid submission, reliance has been placed
on decision in 'RANI NARASIMHA SASTRY VS. RANI
SUNEELA RANI', CIVIL APPEAL NO.8871/2019 DATED
19.11.2019.
8. None has appeared on behalf of the respondent.
9. We have considered the submissions of learned
counsel for the appellant and have perused the record. From
perusal of evidence of PW1 as well as the documents
available on record, it is evident that a complaint against the
appellant was filed for an offence under Section 498A of
Indian Penal Code. The respondent also made a complaint
against the appellant to commissioner of public instructions,
Government of Karnataka. In pursuance of the complaint
made by the respondent, the appellant was placed under
suspension and was arrested for one day. The appellant
thereafter was tried for the offence and was acquitted of the
allegation of offence under Section 498A of the Indian Penal
Code.
MFA No. 2175 of 2016
10. The Hon'ble Supreme Court in RANI
NARASIMHA SASTRY supra has held as under:
But when a person undergoes a trial in
which he is acquitted of the allegation of
offence under Section 498-A of IPC, levelled by
the wife against the husband, it cannot be
accepted that no cruelty has meted on the
husband. As per pleadings before us, after
parties having been married on 14.08.2005,
they lived together only 18 months and
thereafter they are separately living for more
than a decade now.
11. In view of aforesaid enunciation of law by Hon'ble
Supreme Court and in the facts of the case, it is evident that
respondent has treated the appellant with cruelty. The
parties are living separately since, 2002. However, the
family court has failed to appreciate the aforesaid aspect of
the matter. The impugned judgment insofar as it rejects the
claim of the appellant seeking dissolution of marriage on the
ground of cruelty is set aside. The marriage performed
between the parties is dissolved by a decree of divorce under
Section 13(i-b) of the Act.
MFA No. 2175 of 2016
In the result, the appeal is partly allowed.
Sd/-
JUDGE
Sd/-
JUDGE
ss
