Sri Dharmendra S N vs Smt Chaya Kumari B D
2023 Latest Caselaw 725 Kant

                            1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH 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.2348/2021 (MC)

BETWEEN:

SRI DHARMENDRA S.N
S/O NARASIMHA SETTY
AGED ABOUT 36 YEARS
OCC: PRIVATE SERVICE
R/AT 102, S.L.V. DEFENCE
PARADISE, DUO MARVEL
LAYOUT, ANANTHAPURA ROAD
YELAHANKA, BANGALORE - 560 064.       ...APPELLANT

(BY SRI M.C. JAYAKIRTHI, ADV.)

AND:

SMT. CHAYA KUMARI B.D
@ CHUDAMANI @ APOORVA
D/O LATE DHANANJAYA
AGED ABOUT 30 YEARS
OCC: HOUSE WIFE
R/AT MAGGADA BEEDI
BELLUR, NAGAMANGALA TALUK
MANDYA DISTRICT - 571 433.            ...RESPONDENT

( SERVED )

     THIS M.F.A. IS FILED UNDER SECTION 28(1) OF THE
HINDU MARRAIGE ACT, PRAYING AGAINST THE JUDGMENT
AND DECREE DATED: 11.09.2019, PASSED IN MC
NO.85/2018, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE,   BENGALURU     RURAL  DISTRICT,   BENGALURU,
                               2

DISMISSING THE PETITION FILED U/SEC.12(1) (a) AND
13(i)(ia) OF HINDU MARRIAGE ACT, 1955.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, VISHWAJITH SHETTY J.,         DELIVERED THE
FOLLOWING:

                        JUDGMENT

This Miscellaneous First Appeal under Section 28(1)

of the Hindu Marriage Act, 1955 (for short, 'the Act') is

filed assailing the judgment and decree dated 11.09.2019

passed by the Prl. Senior Civil Judge, Bangalore Rural

District, Bangalore, in M.C.No.85/2018, wherein the

petition filed by the appellant-husband under Sections

12(1)(a) and 13(i(ia) of the Act for dissolution of his

marriage with the respondent was dismissed.

2. Heard the learned Counsel for the appellant. The

respondent though served in the matter has remained

absent.

3. Brief facts of the case as revealed from the

records that may be necessary for the purpose of

disposal of this appeal are, the marriage between the

appellant and the respondent was solemnized on

18.05.2017 at Bellur as per the prevailing rites and

customs in the community. The parties stayed together

as husband and wife only for a short period, and

thereafter, their relationship got strained, and therefore,

the respondent had left the company of the appellant and

started residing separately. It is the specific case of the

appellant that the marriage between the parties was not

consummated, as the respondent had refused for

consummation of the marriage. It is under these

circumstances, the appellant had got issued a legal notice

to the respondent calling upon her to file a joint petition

for divorce. Inspite of receipt of the said notice, she had

not replied to the same, nor had joined the company of

the appellant. It is under these circumstances, the

appellant had filed M.C.No.85/2018 before the Trial Court

with a prayer to dissolve the marriage between the

parties.

4. The respondent who was served in the said

proceedings before the Trial Court had remained absent

even before the said court, and therefore, she was placed

ex-parte. To substantiate his case, the appellant got

examined himself as PW-1 and got marked nine

documents as Exs.P-1 to P-9. However, the Trial Court by

the impugned judgment and decree has dismissed the

petition filed by the appellant seeking divorce, and

therefore, he is before this Court in this appeal.

5. Learned Counsel for the appellant submits that

the Trial Court has failed to appreciate the evidence

produced before it. He submits that denial of sex by the

other spouse amounts to cruelty and the Trial Court has

failed to appreciate the uncontroverted statements of the

appellant. He submits that the respondent has also filed

false criminal complaint against him, which also amounts

to cruelty. He also submits that the respondent was

threatening to commit suicide whenever the appellant

tried to advise or reform her. He, accordingly, prays to

allow the appeal.

6. We have carefully considered the submissions

made on behalf of the appellant and also perused the

material on record.

7. The appellant has approached the Trial Court

with a specific plea that the respondent was not co-

operating for having sex, and therefore, the marriage

between the parties was not consummated. He has also

stated that the respondent was in the habit of abusing

him using filthy language and whenever he advised or

tried to reform her, she was threatening of committing

suicide. He has also alleged that the respondent has filed

a false criminal complaint against him. The appellant has

got examined himself as PW-1 and has reiterated the

averments made in the petition and the said statements

of his have remained uncontroverted. In support of his

case, he has also produced nine documents which are

marked as Exs.P-1 to P-9. He has produced the legal

notice issued to the respondent and also the copy of the

complaint lodged by her before the Karnataka State

Women Commission, Bengaluru.

8. The Hon'ble Supreme Court in the case of

VIDHYA VISWANATHAN VS KARTIK BALAKRISHNAN -

(2014)15 SCC 21, has held that denial of sexual

intercourse by wife for long time without sufficient reason

amounts to mental cruelty. In the case on hand, the

appellant has specifically pleaded and deposed before the

Trial Court that his marriage with the respondent has not

consummated as she has not co-operated for having

sexual intercourse. This statement of his, has remained

uncontroverted. In addition to the same, the material on

record would go to show that the respondent had lodged

a complaint against the appellant before the Karnataka

State Women Commission, Bengaluru, and according to

the appellant, the allegations made in the said complaint

are all false. Even the said statement made by the

appellant has remained uncontroverted. The Trial Court

has failed to properly appreciate the pleadings and

material evidence that was placed before it and thereby it

has erred in dismissing the petition. The respondent has

remained absent before this Court and also before the

Trial Court, and therefore, a presumption is required to

be drawn against her that she is not interested in the

marriage .

9. Under the circumstances, we are of the

considered view that the impugned judgment and decree

passed by the Trial Court cannot be sustained.

Accordingly, the following order:

10. The appeal is allowed. The judgment and

decree dated 11.09.2019 passed by the Trial Court in

M.C.No.85/2018 is set aside. Consequently, the petition

filed by the appellant under Sections 12(1)(a) and

13(i(ia) of the Act is allowed. The marriage between the

parties solemnized on 18.05.2017 stands dissolved by a

decree of divorce.

Sd/-

JUDGE

Sd/-

JUDGE

KK