Sri Nagendrappa.M vs Smt Lakshmidevi @ Lakshmamma
2023 Latest Caselaw 138 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF JANUARY 2023

                       PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

  THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY

             M.F.A. No.5488 OF 2014 (FC)
BETWEEN:

SRI. NAGENDRAPPA .M
S/O K M SIDDAPPA
AGED ABOUT 52 YEARS
R/A KUNIBELEKERE VILLAGE
HARIHARA TALUK
DAVANAGERE DISTRICT
DAVANAGERE-577001.
                                   ... APPELLANT
(BY MR. G.J. SUNKAPUR, ADV.,)

AND:

SMT. LAKSHMIDEVI
@ LAKSHMAMMA
W/O M. NAGENDRAPPA
AGED ABOUT 44 YEARS
R/A KUNIBELAKERE VILLAGE
HARIHARA TALUK
DAVANAGERE DISTRICT
DAVANAGERE-577001.

PRESENTLY R/AT
KULAGAHATTE VILLAGE
HONNALLI TALUK
DAVANAGARE DISTRICT
DAVANAGERE-577001.
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                                          ... RESPONDENT
(BY MR. M.R. HIREMATHAD, ADV.)
                         ---

     THIS MFA IS FILED U/S 19(1) OF FAMILY COURT ACT
AGAINST THE JUDGMENT AND DECREE DATED:12.10.2012
PASSED IN M.C NO.210/2011 ON THE FILE OF THE JUDGE,
FAMILY COURT, DAVANGERE, DISMISSING THE PETITION
FILED U/SEC 13(1)(i-a)(& 13(1)(i-b) OF THE HINDU
MARRIAGE ACT.

     THIS M.F.A. 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 arises out of judgment dated 12.10.2012 by

which petition filed by the appellant / husband seeking

dissolution of marriage on the ground of cruelty and

desertion has been dismissed.

2. Facts leading to filing of this appeal briefly

stated are that the appellant and the respondent got

married on 19.12.1992 as per Hindu Customs and Rites.

There is no child born out of the wedlock. It is the case of

the appellant that after leading a happy married life, in

few years, the respondent exhibited real colours verbally

and emotionally tortured the appellant in front of his

family members and did not perform the duties as a wife.

The appellant filed petition seeking dissolution of

marriage on or before 10.11.2021 inter alia on the ground

that in the month of April, 2008, the respondent

voluntarily left the matrimonial home and despite efforts

being made by the appellant has not joined the

matrimonial home. It was pleaded that respondent used to

emotionally torture the appellant in front of his family

members and did not cook food. It was also pleaded that

the appellant used to pick up the fights without any cause

and ill treated the appellant. Accordingly, the appellant

sought dissolution of marriage on the ground of desertion

and cruelty.

3. respondent filed statement of objection, in

which the relationship between the parties was admitted.

However, the assertion made on behalf of the appellant

that respondent used to abuse him in front of public in

general and did not cook food was denied. It was further

pleaded that after marriage, the respondent stayed with

the appellant as a dutiful housewife. It was also pleaded

that the appellant abused the respondent as she did not

beget the child. It was also pleaded that since, the

appellant intended to marry another lady, he used to

harass the respondent.

4. family court on the basis of the pleadings of

the parties, framed issues and recorded evidence. The

appellant got examined himself as PW1 and got exhibited

two documents. The respondent got herself examined as

RW1 and exhibited three documents The family court vide

judgment dated 12.10.2012 inter alia held that the

appellant miserably failed to prove the allegation made by

him against the respondent. It was further held that the

ground of desertion as pleaded in the petition has also not

been proved. Accordingly, the petition was dismissed. In

the aforesaid factual background, this appeal has been

filed.

5. Learned counsel for the appellant submitted

that the marriage between the parties has been

irretrievably broken down and they are living separately

since, 2008 and therefore, the decree of divorce in the

facts and circumstances of the case ought to have been

granted. In support of his submission, learned counsel for

the appellant has placed reliance on division bench

decision in 'SMT.R.REKHA @ PRANEETHA VS.

SRI.K.G.RAVI', ILR 2022 KAR 1251.

6. On the other hand, learned counsel for the

respondent has supported the judgment and decree

passed by the family court.

7. We have considered the submissions made on

both sides and have perused the record. From the

evidence of the appellant, it is clear that the appellant has

no way stated in his evidence that he has been subjected

to any physical cruelty by the respondent. In his evidence,

the appellant has stated that respondent treated him with

cruelty as she asked the appellant to deposit the money in

the bank in her name and she used to tell the appellant

that she would go away to her parents house. The

appellant has further stated that the respondent used to

go away to her parents house several times and when he

went to his in laws house, the respondent refused to

accompany him and would go on another day. He has

further stated that the respondent did not prepare food.

The instance, which the appellant has mentioned in his

evidence cannot be treated as a conduct which inflicts

upon the appellant such a mental pain and suffering as

would make impossible for the appellant to live with the

respondent.

8. In KOLLAM PADMA LATHA VS. KOLLAM

CHANDRA SEKHAR', (2007) 1 ALD 598, it has been held

that the marriage is highly revered in India and we are a

nation that prides itself on the strong foundation of our

marriages, come hell or high water, rain or sunshine. Life

is made up of good times and bad, and the bad times can

bring with it terrible illnesses and extreme hardships. The

partners in a marriage must weather these storms and

embrace the sunshine in equanimity.

9. The instances narrated by the appellant

therefore, cannot be treated as inflicting cruelty on him.

The appellant has failed to mentioned any grave

circumstances constituting the mental cruelty. At the

most, the same can be treated as the incidents during the

course of ordinary wear and tear of marital life. The family

court on the basis of evidence on record therefore, has

rightly held that the appellant has not been able to prove

the cruelty as pleaded by him in the petition.

10. It is pertinent to note that the appellant had

married the younger sister of the respondent in the month

of April 2008 and according to the case pleaded by the

appellant himself, the respondent had left the matrimonial

home. The appellant therefore, cannot be permitted to

take advantage of his own wrong. Therefore, the ground of

desertion as pleaded by the appellant has also not been

proved. The judgment and decree passed by the family

court is based on meticulous appreciation of evidence on

record.

11. So far as the reliance placed by learned

counsel for the appellant on the division bench decision of

this court in SMT.R.REKHA @ PRANEETHA VS.

SRI.K.G.RAVI is concerned, suffice it to say that the

aforesaid decision has no application to the facts of the

case as in the aforesaid decision, husband had

established the ground of cruelty as pleaded in the

petition. An irretrievable breakdown of marriage is not a

ground under Section 13 of the Hindu Marriage Act, 1955.

In any case, this court cannot grant a decree on the

ground that marriage has been irretrievably being broken

down. Similarly, the marriage also cannot be dissolved on

the ground that the parties have been living separately for

a long time. It is noteworthy that the respondent is

residing separately from the appellant on a justifiable

ground as the appellant had married the younger sister of

the respondent.

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