Karnataka High Court
Mr. Lloyed D'Souza vs Mrs.Mamatha Rebello on 28 February, 2023
Bench: Alok Aradhe, Vijaykumar A Patil
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MFA No.9115 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH 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.9115 OF 2013 (IDA)
BETWEEN:
1. MR. LLOYED D'SOUZA
Digitally signed AGED 40 YEARS
by RUPA V
SON OF ALEX D'SOUZA
Location: High
Court of RESIDING AT DEVINE HOM
Karnataka NEAR M.C.C. BANK
KULSHEKAR POST
MANGALORE-575005.
...APPELLANT
(BY SRI. P.P. HEGDE, SR. COUNSEL FOR
SRI. VENKATESH SOMAREDDI, ADV.,)
AND:
1. MRS. MAMATHA REBELLO
AGED 35 YEARS
D/O LATE LOUIS ROBELLO
RESIDING AT FLAT NO.4
NEAR K.E.B. ATTAVAR, MANGALORE-2.
...RESPONDENT
(BY SRI. R.B. DESHPANDE, ADV., (ABSENT))
THIS MFA IS FILED U/S 55 OF INDIAN DIVORCE ACT,
R/W SEC. 19(1) OF FAMILY COURTS ACT, AGAINST THE
JUDGMENT AND DECREE DATED:22.08.2013 PASSED IN
M.C.NO.29/2011 ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY COURT, D.K., MANGALORE, DISMISSING THE
PETITION FILED U/S 10(1)(ix)(x) OF THE DIVORCE ACT, FOR
DIVORCE.
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MFA No.9115 of 2013
THIS APPEAL COMING ON FOR FINAL DISPOSAL, THIS
DAY ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 55 of the Indian Divorce
Actm 1869, has been filed against judgment and decree
dated 22.08.2013 passed by the Family Court in
M.C.No.29/2011 by which the petition filed by the
appellant seeking dissolution of marriage on the ground
of cruelty, desertion and adultery, has been dismissed.
2. Facts giving rise to filing of this appeal briefly
stated are that the marriage between the parties was
solemnized on 01.01.1995 at Valencia Church,
Mangalore. At the time of marriage, the appellant was
employed as a Manager in a Cinema Theatre at Udupi.
After the marriage, the respondent joined matrimonial
home and from the wedlock, a son namely Malcolm
Mallone D'Souza was born on 10.11.1995.
MFA No.9115 of 2013
3. The appellant filed a petition seeking dissolution
of marriage on the ground of cruelty, desertion and
adultery on or about 03.01.2008. In the petition, it was
inter alia pleaded that on 19.06.1996, when the son of
the parties was very sick, in the absence of parents of
the appellant and without informing the appellant, the
respondent called her father and took away all the
jewellery and belongings and left the house of the father
of the appellant. It was pleaded in the petition that the
respondent was seen in a Maruti car several times with
one Mr.Sharath. It was averred that the respondent
joined the matrimonial home in the year 1999 on easter.
It was further averred that without consent of the
appellant, the respondent changed the name of the son
and was leading an adulterous life. It was also pleaded
that the respondent was having an affair with one Alwyn
Rego and one Sharath. It was pointed out in the
petition that the appellant has been able to lay hands
MFA No.9115 of 2013
on the letters exchanged between the wife of the
appellant and aforesaid Alwyn Rego.
4. It was also pleaded that the appellant left
Mangalore and shifted to Mumbai for a job and was
sending money to the respondent from time to time.
However, the respondent refused to join the matrimonial
home. Thereafter, from November 2007 onwards, the
respondent filed false and frivolous complaints against
the appellant and his parents on the ground that she
was subjected to cruelty and demand of dowry was
made from the respondent. The aforesaid complaints
filed against the appellant and his parents were found to
be false and no action was taken against the
respondent. The appellant further pleaded that the
respondent is residing separately without any justifiable
cause for a period of more than 2 years immediately
preceding the presentation of the petition. It is also
pleaded that the respondent has subjected the appellant
MFA No.9115 of 2013
to cruelty inasmuch as she was living an adulterous life
and filed false and frivolous complaints against the
appellant and his family members. Accordingly, decree
of divorce was sought on the ground of desertion,
cruelty as well as adultery.
5. The respondent filed her statement of objections
in which inter alia the factum of marriage with the
appellant on 01.01.1995, was admitted. It was also
admitted that from the wedlock, a son was born on
10.11.1995. It was pleaded that gold ornaments of the
respondent are in the custody of her mother-in-law who
has refused to return the same. The allegations of
adultery made against the respondent in the petition
were specifically denied by the respondent. It was
pleaded that she does not know any person by name
Sharath and Alwyn Rego is infact the cousin of the
respondent. It was also pleaded that the appellant is
MFA No.9115 of 2013
guilty of inflicting mental cruelty to the respondent by
making false allegations on unchastity.
6. The appellant, in order to prove his case,
examined himself and exhibited documents namely
Ex.P1 to Ex.P124. The respondent examined herself as
well as 3 witnesses namely Mohanrj H (RW-2), Mamatha
(RW-3) and Dr.M.Ajith Kumar (RW-4) and exhibited
documents namely Ex.R1 to Ex.R12(a) & (b). At the
time of hearing of the arguments on 15.07.2013, a
memo was filed on behalf of the appellant stating that
the appellant seek to not press the ground of adultery
pleaded in the petition. The Family Court, vide
judgment dated 22.08.2013 inter alia held that there is
no intention on the part of the respondent to desert the
appellant. It was further held that the appellant who
has committed wrong, cannot be allowed to take
advantage of his own wrong of seeking divorce. It was
held that the appellant has not been able to prove the
MFA No.9115 of 2013
ground of desertion. It was further held that the
appellant himself has made reckless and false
allegations against the respondent about her character
and has treated her with cruelty. It was also held that
the ground of cruelty pleaded by the appellant are not
made out. Accordingly, the petition filed by the
appellant seeking dissolution of marriage was
dismissed. Hence this appeal.
7. Learned counsel for the appellant submitted
that the appellant had sent a notice to the respondent
asking her to join the matrimonial home on 12.04.2002.
It was argued that despite the aforesaid notice, the
respondent did not join the matrimonial home. It is
further submitted that respondent has made false and
frivolous complaints not only against the appellant but
also against his old and infirm parents and therefore,
the conduct of respondent in making false and frivolous
complaints against the appellant amounts to cruelty. It
MFA No.9115 of 2013
is further submitted that the Family Court has failed to
appreciate the evidence on record in its proper
perspective. In support of aforesaid submissions,
learned Senior counsel for the appellant has placed
reliance on the decisions of the Supreme Court in
NAVEEN KOHLI Vs. NEELU KOHLI1, SAMAR GHOSH
Vs. JAYA GHOSH2, R.ANAND Vs. P.INDU3, RAJ
TALREJA Vs. KAVITA TALREJA4, MANGAYAKARASI
Vs. M.YUVARAJ5 AND SIVS SANKARAN Vs.
SANTHIMEENAL6.
8. None has appeared on behalf of the respondent.
9. We have considered the submissions made on
both sides and have perused the record. Before
adverting to the facts of the case on hand, we may take
(2006) 4 SCC 558
(2007) 4 SCC 511
2007 SCC Online Mad 939
(2017) 14 SCC 194
(2020) 3 SCC 786
2021 SCC Online SC 702
MFA No.9115 of 2013
note of well settled legal principles. It is trite law that in
a petition seeking dissolution of marriage on the ground
of cruelty, specific instances of cruelty should be
pleaded and proved. (See: NEELAM KUMAR VS. DAYA
RANI)7. 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 PRASAD8). It is equally
well settled legal proposition that mere filing of the
complaint by one spouse against other does not amount
to cruelty if there are justifiable reasons to file a
complaint (See: RAJ TALREJA, supra). 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
(2010) 13 SCC 298
AIR 2007 SC 1426
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MFA No.9115 of 2013
itself amount to cruelty. (See: SAVITHRI PANDEY VS.
PREM CHANDRA PANDEY)9.
10. A Five Judge Bench of the Supreme Court in
LACHMAN UTAMCHAND KIRIPALANI Vs. MEENA @
MOTA10 which has been followed in DEBANANDA
TAMULI Vs. KAKUMONI KATAKY11 while dealing with
the expression 'desertion', has held that desertion
means the intentional abandonment of the spouse by
the other without the consent of the other and without a
reasonable cause. It has further been held that
deserted spouse must prove that there is a factum of
separation and there is an intention on the part of
deserting spouse to bring the cohabitation to a
permanent end. It has also been held that in other
words, there should be animus deserendi on the part of
the deserting spouse. The issue whether a case of
AIR 2002 SC 591
AIR 1964 SC 40
2022 SCC Online SC 187
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MFA No.9115 of 2013
desertion is made out or not, depends on the facts of
each case and is a matter of drawing an inference on the
basis of evidence on record.
11. In the backdrop of aforesaid well settled legal
principles, we may advert to the evidence on record.
PW-1, in his evidence, had stated that respondent has
written letters to one Alwyn Rego and therefore, she is
leading an adulterous life on account of which the
respondent became pregnant and was admitted to
Athena Hospital, Falnir. It has also been stated that out
of the aforesaid illicit relationship, she gave birth to a
female child on 13.03.1998. It has further been stated
that she used to entertain youngsters to share her bed
and used to have illicit sexual relationship. It has also
been alleged that the appellant has seen her several
times with one Sharath. It has also been stated that the
appellant has produced the letters allegedly written by
respondent as exhibits. It has also been stated by him
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MFA No.9115 of 2013
in the evidence that the respondent has filed frivolous
complaints not only against him but also his parents
and the aforesaid complaints have been placed on
record as Ex.P81 to Ex.P92. The appellant has
therefore stated that the respondent has treated the
appellant with cruelty. It is pertinent to note that
initially the appellant filed a petition seeking dissolution
of marriage on the ground of cruelty, desertion as well
as adultery. However, at the time of arguments, a
memo was field on behalf of the appellant on
15.07.2013 stating that the appellant does not want to
press the ground of adultery.
12. The respondent has denied that she has
written such letters. Therefore, it was incumbent on the
appellant to lead evidence to prove that she had written
letters namely Ex.P1 to Ex.P21. The appellant has not
lead any evidence to prove that letters Ex.P.1 to Ex.P21
has been written by respondent. The respondent, in her
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MFA No.9115 of 2013
evidence, has stated that Alwyn REgo is her cousin and
she does not know any person by name Sharath. The
Family Court has held that the appellant has failed to
prove that the respondent was having any extra marital
affair with Sharath or aforesaid Alwyn Rego. It is also
pertinent to note that the appellant has not examined
either of the aforesaid persons namely Alwyn Rego or
Sharath. Thus, the appellant has made reckless and
baseless allegations against his wife with regard to
unchastity and had alleged that she had given birth to a
female child.
13. The Family Court has therefore rightly held
that the appellant has treated the respondent with
cruelty by making false and frivolous allegations against
her character. Sofar as the factum of filing of
complaints against the appellant and his parents by the
respondent, it is well settled in law that mere filing of
complaint does not amount to cruelty if there are
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MFA No.9115 of 2013
justifiable reasons to file a complaint. It is also
pertinent to mention here that the complaints filed by
the respondent were closed at the stage of investigation
and no charge sheet has been filed either against the
appellant or his family members. Therefore, in the state
of evidence on record, we hold that the appellant has
failed to prove the grounds of cruelty.
14. Sofar as the ground of desertion pleaded by the
appellant is concerned, suffice it to say that the
appellant has failed to prove the factum of separation as
well as intention on the part of the respondent to bring
the cohabitation permanently to an end. The
respondent was residing with the appellant in
Mangalore. Thereafter, the appellant made reckless
allegations against the respondent with regard to her
character which has not been substantiated by him.
The appellant thereafter shifted to Bombay and
therefore, the respondent has remained in Mangalore.
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MFA No.9115 of 2013
As stated supra, the appellant has failed to prove the
factum of separation and intention on the part of the
deserting spouse to bring the cohabitation to a
permanent end. The Family Court has therefore
concluded that no ground either of desertion or cruelty
are made out by the appellant. The findings of the
Family Court are based on meticulous appreciation of
evidence on record which do not call for any interference
in this appeal.
For the aforementioned reasons, we do not find
any merit in the appeal. The same fails and is hereby
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
RV
