Sri Niranjana Reddy vs Smt Sujathamma
2023 Latest Caselaw 1496 Kant

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                                                    MFA No.5856 of 2016




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                       DATED THIS THE 22ND 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.5856 OF 2016 (MC)
               BETWEEN:

Digitally      1.    SRI. NIRANJANA REDDY
signed by            S/O SRI RANGA REDDY
RUPA V               AGED ABOUT 32 YEARS
Location:            R/O AYYANAHALLI
High Court           LAKSHMIPURA POST
of Karnataka         MIDIGESHI HOBLI
                     MADHUGIRI TALUK
                     TUMKUR DISTRICT-572132.

                                                           ...APPELLANT
               (BY SRI. G.S. VENKAT SUBBA RAO, ADV.,)
               AND:

               1.    SMT. SUJATHAMMA
                     W/O SRI. NIRANJAN REDDY
                     D/O SRI. ADI NARAYANA REDDY
                     AGED ABOUT 36 YEARS
                     R/AT NARASAPPANAHALLI
                     KYATHAGONDANAHALLI POST
                     MIDIGESHI HOBLI, MADHUGIRI TALUK
                     TUMKUR DISTRICT-572132.

                                                         ...RESPONDENT
               (BY SRI. HARISH H.V. ADV.,)

                    THIS MFA IS FILED U/S 28(1) OF THE HINDU MARRIAGE
               ACT AGAINST THE JUDGMENT AND DECREE DATED:13.6.2016
               PASSED IN M.C NO.15/2008 ON THE FILE OF THE PRINCIPAL
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                                      MFA No.5856 of 2016




SENIOR CIVIL JUDGE, MADHUGIRI, DISMISSING THE PETITION
FILED U/SEC 13 OF HINDU MARRIAGE ACT.

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

                       JUDGMENT

This appeal has been filed under Section 28 of the

Hindu Marriage Act, 1955 (hereinafter referred to as 'the

Act' for short) has been filed against judgment dated

13.06.2016, by which petition filed by the appellant

under Section 13 of the Act seeking dissolution of

marriage has been dismissed.

2. Facts giving rise to filing of this appeal briefly

stated are that the marriage between the parties was

solemnized on 29.04.2004 and a daughter was born to

them in the year 2005.

3. The appellant filed a petition under Section

13 of the Act on 28.02.2008. In the petition, in para 3, it

was inter alia stated that after the marriage, the

appellant and respondent lived together for about 2

years and about 1 year back the respondent has left the

MFA No.5856 of 2016

matrimonial home and is residing in her parents house.

In para 4, it was stated that the respondent despite

advice given to her in panchayat, is living in her parents

house without any reasonable cause. In para 5, it was

pleaded that respondent has made unreasonable

demands and has deserted the appellant and therefore,

has put him to mental agony. It was also averred that

conduct of the respondent in insisting the appellant to

live separately from his parents amounts to cruelty. It

was further pleaded that the appellant sent a notice to

the respondent. However, she refused to join the

matrimonial home. It was pleaded that respondent was

aged about 28 years at the time of marriage and the age

of the respondent was suppressed by her parents at the

time of marriage. Accordingly, the decree for dissolution

of marriage was sought.

4. The respondent after service of notice, filed

statement of objections, in which she admitted the

MFA No.5856 of 2016

factum of marriage with the appellant and the fact that

a daughter was born to the parties. It was pleaded that

the appellant is a close relative. It was further pleaded

that after the birth of the female child, the appellant

indulged in drinking, gambling and womanizing and

used to ill treat the respondent. It was also averred that

the appellant used to assault her and abused her in

filthy language.

5. The family court recorded the evidence of the

parties. The appellant examined himself as PW1 and his

parents viz., Sri.Rangareddy and Smt.Parvthamma as

PW2 and PW3. The villagers present in the panchayat

viz., Jayarama and Kuntappa were examined as PW4

and PW5. The appellant exhibited documents Ex.P1 to

Ex.P33. The respondent examined herself as RW1 and

exhibited 20 documents viz., Ex.R1 to Ex.R20.

MFA No.5856 of 2016

6. The family court vide judgment dated

13.06.2016 inter alia held that the parties have not lived

separately for 2 years prior to filing the petition.

Therefore, the ground of dissolution of marriage on the

ground of desertion is not made out. Accordingly, the

petition preferred by the appellant was dismissed.

7. Learned counsel for the appellant submitted

that the family court ought to have appreciated that the

appellant had not sought dissolution of marriage on the

ground of desertion. It is submitted that the appellant

had sought dissolution of marriage on the ground of

cruelty. It is further submitted that the fact that

respondent was elder in age to the appellant was

suppressed and therefore, the marriage is void. It is

submitted that the matter be remitted to the family

court. In support of aforesaid submissions, reliance has

been placed on decision of Hon'ble Supreme Court in

'N.RAJENDRAN VS. S. VALLI', LAW (SC)-2022-2-42.

MFA No.5856 of 2016

8. On the other hand, learned counsel for the

respondent submitted that from perusal of the petition

filed by the appellant in entirety, it is evident that the

appellant had sought dissolution of marriage on the

ground of desertion and the family court therefore, has

rightly held that the ground of desertion is not proved.

Attention of this court has been invited to cross-

examination of the appellant (PW1) and it has been

pointed out that the appellant knew that respondent is

elder to him in age. It is also pointed out that in the

cross-examination, the appellant has stated that he is

ready and willing to reside with the respondent.

Therefore, it is submitted that the appeal be dismissed.

9. We have considered the submissions made on

both sides and have perused the record. The averments

made in the petition under Section 13 of the Act filed

by the appellant reads as under:

MFA No.5856 of 2016

3. The petitioner and respondent lived together at Ayyanahalli for about two years only. During her stay she was not looking after the petitioner and his parents with love and after the petitioner and his parents with love and affection. About one year back the respondent without informing the petitioner left the marital house and living in her parents house.

4. The petitioner through elders of the village got convened a panchayath and advised the respondent to rectify her misdeeds and to come and live with him. But the respondent instead of heeding to the advice of the petitioner and other elders have aggravated the circumstances and living in her parents house permanently without any probable and reason cause.

5. The respondent unnecessarily put her unreasonable demands and deserted the petitioner. The petitioner is put to unnecessarily mental agony. The

MFA No.5856 of 2016

conduct of respondent insisting the petitioner to make a separate family and making unnecessary quarrels squarely also amounts to cruelty.

6. Inspite of all the illegal desertion and cruelty by the respondent the petitioner tolerated all her acts, as he is a respectable person and shown his love and affection towards respondent and his child and ready and prepared to bring back to the marital house and to lead a happy life for getting all the misdeeds done by her so far. But all his efforts are in vain. The respondent heeding to the words of her parents flately refused to come and live with the petitioner.

7. In this behalf the petitioner got issued a legal notice to the respondent and instead of coming to petitioner's house , she gave reply to the notice. Inspite of the reply notice the petitioner also once again two days back personally approached the respondent,

MFA No.5856 of 2016

but she refused to come and live with the petitioner.

8. The respondent is aged 28 years and elder than the petitioner and this fact was suppressed by the parents at the time of marriage.

9. The cause of action for the petitioner arose at Ayyanahalli Village when the respondent last resided with the petitioner and also when respondent deserted the petitioner about one year back and also when refused to come and live with the petitioner and also when caused notice and also when deserted by the respondent, within the jurisdiction of this Hon'ble Court.

10. The fixed court fee is paid on the petitioner.

     11. Prayer       for   Judgement   and
Decree:

Wherefore, the petitioner prays the Hon'ble Court be pleased to dissolve the marriage of the petitioner and respondent

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MFA No.5856 of 2016

solemnized on 21.04.2004 and to grant a decree of divorce and to grant such other reliefs as the Hon'ble Court deem fit to grant to the petitioner in the circumstances of the case, in the ends of justice.

10. Thus, from careful scrutiny made in the

petition, it is evident that the cause of action pleaded by

the appellant is the desertion. In para 3 of the petition,

it is pleaded that respondent has deserted the appellant

one year back i.e., on 28.02.2007. The petition was

filed on 28.02.2008. Thus, the appellant has not

pleaded that the respondent has deserted him for a

continuous period of 2 years immediately preceding the

presentation of the petition. Therefore, on this ground

alone, the decree for desertion as sought for by the

appellant cannot be granted.

11. The power of this court, being a court of

appeal is co-extensive with that of family court. We

therefore, instead of remanding the matter to the family

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MFA No.5856 of 2016

court, shall advert to the pleadings and evidence to find

out whether appellant is entitled to a decree of divorce

on the ground of cruelty. A petition seeking decree of

divorce on the ground of cruelty should contain specific

instances of cruelty (See: NEELAM KUMAR VS. DAYA

RANI)1. It is equally well settled legal proposition that

mere difference of opinion between the couples and

ordinary wear and tear of married life and the disputes

between them, do not by itself amount to cruelty. (See:

SAVITHRI PANDEY VS. PREM CHANDRA PANDEY) 2.

The parties to a dispute are required to describe the

major and standard of cruelty and to lead cogent

evidence to succeed in the plea of dissolution of

marriage on the ground of cruelty. (See:

SMT.MAYADEVI Vs. JAGDISH PRASAD3).

12. It is equally well settled legal proposition that

there is a difference between the ordinary wear and tear

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MFA No.5856 of 2016

of marriage life and cruelty and that the dispute

between the parties are not attributable to cruelty.

[SEE: 'SAVITHRI PANDEY VS. PREM CHANDRA

PANDEY', AIR 2002 SC 591].

13. In the light of aforesaid legal principles, if the

averments made in the petition are seen, it is evident

that the allegations made are vague without any specific

pleading. From the averments made in the petition, it

cannot be inferred that respondent has subjected the

appellant to cruelty. The instances narrated by the

appellant amount to ordinary wear and tear of marriage.

It is also noteworthy that from perusal of cross-

examination of the appellant, it is evident that the

appellant was related to respondent and was aware that

she is elder in age to him. Even otherwise, the appellant

has not sought dissolution of marriage on the ground

that the same is void.

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MFA No.5856 of 2016

14. The decision relied upon by learned counsel

for the appellant deals with powers of Hon'ble Supreme

Court under Article 142 of Constitution of India,

wherein it has granted a decree of divorce on the ground

that the marriage has been irretrievably broken down.

This court cannot pass a decree on the said ground and

therefore, the decision relied upon by learned counsel

for the appellant has no application to the facts of the

case.

For the aforementioned reasons, we do not find

any merit in this appeal, the same fails and is hereby

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE SS