Karnataka High Court
J C Vijayakumar vs K V Managala @ Mohanakumari on 9 January, 2023
Bench: Alok Aradhe, S Vishwajith Shetty
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MFA No. 6169 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE ALOK ARADHE
AND
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
MISCELLANEOUS FIRST APPEAL NO. 6169 OF 2014 (MC)
BETWEEN:
J.C. VIJAYAKUMAR
S/O J.T. CHIKKANNSHETTY
AGED ABOUT 40 YEARS
R/O JAVAGAL, JAVAGAL HOBLI
ARSIKERE - 573 103.
...APPELLANT
(BY SRI JAGADEESH H.T., ADV.,)
AND:
K.V. MANAGALA @ MOHANAKUMARI
Digitally signed W/O J.C. VIJAYAKUMAR
by B A KRISHNA
KUMAR D/O K.T. VENU GOPAL
Location: High
Court of AGED ABOUT 27 YEARS
Karnataka
R/O GAYATHRINAGARS
3RD CROSS, HALEPALYA POST
TIPTUR TOWN - 572 201
TUMKUR DISTRICT.
...RESPONDENT
(SERVICE OF NOTICE HELD SUFFICIENT V/O DATED 20.08.2022)
THIS MFA IS FILED U/S 28 OF THE HINDU MARRIAGE ACT,
PRAYING AGAINST THE JUDGMENT AND DECREE DATED: 25.06.2014
PASSED IN M.C. NO.12/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE, & JMFC, ARASIKERE, DISMISSING THE PETITION FILED U/S
13(I)(a)(b) OF HINDU MARRIAGE ACT, FOR DIVORCE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
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MFA No. 6169 of 2014
JUDGMENT
This appeal under Section 28 of the Hindu Marriage Act,
1955, has been filed against the judgment and decree dated
25.06.2014 passed by the Trial Court, by which the petition
filed by the appellant seeking dissolution of marriage on the
ground of desertion and cruelty has been dismissed.
2. Facts leading to filing of this appeal briefly stated are,
that the marriage between the parties was solemnized on
28.03.2005. After the marriage, the appellant and the
respondent resided together for a period of two years and a
child was born to them. However, it is the case of the appellant
that the respondent was having illicit relationship with other
persons and the appellant himself witnessed the same. A
panchayath was convened on 02.08.2009. However, the
respondent did not mend her ways.
3. According to the appellant, the respondent left the
matrimonial home on 28.06.2010. The appellant, thereafter,
sent a notice to the respondent on 11.04.2011 for dissolution of
marriage. Despite receipt of the notice, the respondent did not
join the matrimonial home. The appellant, thereupon, filed a
petition seeking dissolution of marriage on the ground of
cruelty and desertion on 30.01.2013 before the Trial Court.
MFA No. 6169 of 2014
4. The appellant himself examined and exhibited five
documents which were marked as Exs.P-1 to P-5. However,
despite service of notice, the respondent did not appear before
the Trial Court. The Trial Court, therefore, proceeded to decide
the matter on merits and by a judgment and decree dated
25.06.2014, the Trial Court inter alia held that the appellant
has failed to prove the ground of cruelty for dissolution of
marriage. However, the Trial Court did not examine the ground
pertaining to desertion and dismissed the petition filed by the
appellant. Being aggrieved, this appeal has been filed.
5. Learned Counsel for the appellant submitted that the
Trial Court grossly erred in not considering the contention
raised by the appellant with regard to dissolution of marriage
on the ground of desertion. It is further submitted that from
the evidence on record, it has been duly proved that the
respondent had deserted the appellant for a continuous period
of two years prior to filing of the petition.
6. Even in this appeal, despite service of notice, none has
appeared on behalf of the respondent.
7. We have considered the submissions made by the
learned Counsel for the appellant and have perused the
records.
MFA No. 6169 of 2014
8. From the perusal of records, it is evident that the
marriage between the parties was performed on 28.03.2005.
From the evidence of PW-1 who has not been subjected to
cross-examination by the respondent, it is evident that the
respondent had left the matrimonial home on 28.06.2010.
Thereafter, the appellant served a notice on the respondent
seeking dissolution of marriage. Despite service of the aforesaid
notice, the respondent did not join the matrimonial home. After
a period of two years i.e., on 30.01.2013, the appellant has
filed the petition seeking dissolution of marriage on the ground
of cruelty and desertion.
9. It is settled in law that when the other side leads no
evidence, a very little evidence is required to discharge the
burden that there is no plausible reason to disbelieve the
uncontroverted testimony of the appellant. On perusal of the
evidence of the appellant in its entirety, the ground of desertion
for dissolution of marriage is clearly made out. The respondent
despite service of notice neither appeared before the Trial Court
nor has appeared before this Court. In the facts and
circumstances of the case, the Trial Court ought to have
granted the decree dissolving the marriage on the ground of
desertion.
MFA No. 6169 of 2014
10. The impugned judgment and decree in so far as it
relates to rejecting the claim of the appellant for dissolution of
marriage on the ground of desertion is set aside. The marriage
between the parties performed on 28.03.2005 is dissolved by a
decree of divorce on the ground of desertion.
11. To the aforesaid extent, the judgment and decree
passed by the Trial Court is modified. In the result, the appeal
is partly allowed.
Sd/-
JUDGE
Sd/-
JUDGE
KK
