Karnataka High Court
Smt Latha vs Sri Mohan Prakash on 11 January, 2023
Bench: Alok Aradhe, S Vishwajith Shetty
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.4793/2015 (MC)
BETWEEN:
SMT. LATHA
W/O SRI MOHAN PRAKSH
D/O SRI POOVAPPA POOJARY
AGED ABOUT 36 YEARS
R/AT GIRIMAJALU HOUSE
KULA VILLAAGE, BANTWAL TALUK
D.K. DISTRICT - 574 243. ...APPELLANT
(BY SRI PRASANNA V.R, ADV.)
AND:
SRI MOHAN PRAKASH
S/O LATE RAGHAVAA POOJARY
AGED ABOUT 42 YEARS
R/AT NATTILU HOUSE
SAJIPAA PADU VILLAGE & PO
BANTWAL, D.K. DISTRICT - 574 231. ...RESPONDENT
(BY SRI RAVISHANKAR SHASTRY, ADV.)
THIS M.F.A. IS FILED UNDER SECTION 28(1) OF THE
HINDU MARRIAGE ACT, 1955, PRAYING AGAINST THE
JUDGMENT AND DECREE DATED:30.03.2015 PASSED IN
M.C.NO.22/2012 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, & JMFC, BANTWAL, D.K., ALLOWING THE
PETITION FILED U/S 13(1)(i-a) OF HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:
2
JUDGMENT
This Miscellaneous First Appeal has been filed under
Section 28(1) of the Hindu Marriage Act, 1955 assailing
the judgment and decree 30.03.2015 passed in
M.C.No.22/2012 by the Principal Senior Civil Judge &
JMFC, Bantwal, D.K, (hereinafter referred to as the 'Trial
Court), wherein the marriage of the appellant with the
respondent was solemnized on 01.04.2002 was dissolved
by a decree of divorce on the ground of cruelty.
2. We have heard the learned counsel for the
parties and also perused the material available on record.
3. Brief facts of the case as revealed from the
records which may be relevant for the purpose of
disposal of this appeal are, the marriage of the appellant
with the respondent was solemnized on 01.04.2002 at
Sumangala Kalyana Mantapa, Panemangalore, Bantwal
Taluk as per rites and customs that prevailed in their
community. The appellant resided with the respondent in
the matrimonial house for about two years after their
marriage. Thereafter, the relationship between the couple
got strained in view of differences between them and
therefore the appellant had left the company of the
respondent and took shelter in her parents house. It is
under this circumstance the petition under Section
13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter
referred to as the "Act of 1955") was filed by the
respondent before the Trial Court for dissolution of the
marriage on the ground of cruelty.
4. The appellant had entered appearance in the
said proceedings and had filed detailed statement of
objections denying the petition averments and she had
also contended that the respondent was having illicit
relationship with one Smt. Harinakshi and therefore, he
does not want to continue his marital life with the
appellant. Before the Trial Court, the respondent had
examined himself as PW.1 and got marked two
documents as Exs.P1 and P2. In support of her case the
appellant got examined herself as RW.1 and also got
marked one document as Ex.R1. The Trial Court vide the
impugned judgment and decree had dissolved the
marriage between the parties that was solemnized on
01.04.2002 and counterclaim made by the respondent
seeking maintenance was also dismissed. Being
aggrieved by the said judgment and decree passed in
M.C.No.22/2012. the appellant-wife is before this Court.
5. Learned counsel for the appellant submits
that the Trial Court had erred in allowing the petition as
the respondent had failed to prove the cruelty alleged by
him. He submits that the Trial Court allowed the petition
on the ground that the allegation made by the appellant
against the respondent that he had illicit relationship with
one Harinakshi amounts to cruelty and also on the
ground that the appellant was guilty of desertion without
there being any sufficient cause. He submits that both
the grounds were not urged in the petition filed before
the Trial Court and therefore the Trial Court had erred in
allowing the petition.
6. Per contra, learned counsel for the
respondent arguing in support of the impugned judgment
submits that the appellant had voluntarily left the
company of the respondent without there being any
sufficient cause and therefore, the Trial Court was
justified in allowing the petition and accordingly, prays
for dismiss the appeal.
7. From perusal of the petition filed before the
Trial Court by the respondent herein seeking a decree of
divorce it is seen that he had approached the Trial Court
invoking only Section 13(1)(i-a) of the Act of 1955 for
grant of decree of divorce. For the purpose of granting
decree under the aforesaid provision, the party who has
approached the Court is required to prove that after
solemnization of his/her marriage with the respondent,
he/she was treated with cruelty and as a result, it was
not possible for the party approaching the Court to
continue the marital tie with the other spouse. The Trial
Court has arrived at a conclusion that the allegation
made by appellant that he was having illicit relationship
with one Smt. Harinakshi would amount to cruelty.
8. From the perusal of the averments made in
the petition, it is seen that no specific allegation has been
made in the petition narrating details of any incident
wherein the appellant had allegedly treated the
respondent with cruelty. The petition also did not contain
any averments to the effect that the appellant had
accused the respondent that he was having illicit
relationship with one Smt. Harinakshi. It is in the
statement of objection that was filed by the appellant a
statement was made by her that the respondent was
having illicit relationship with one Harinakshi.
9. The respondent had not approached the Trial
Court seeking relief of divorce against the appellant on
the ground that she was making false allegations against
him that he had illicit relationship with one Harinakshi
and therefore, the Trial Court was not justified in holding
that the allegation made by the appellant as against the
respondent in her statement of objections would amount
to cruelty for the purpose of granting decree of divorce
under Section 13(1)(i-a) of the Act of 1955.
10. Further, it is also seen that the respondent
had not approached the Trial Court seeking a decree of
divorce on the ground of desertion. The respondent has
approached the Trial Court only under Section 13(1)(i-a)
of the Act of 1955 and not under Section 13(1)(i-b) of
the Act of 1955. In the absence of any pleading or issue
with regard to desertion, the Trial Court was not justified
in holding that the appellant was also guilty of deserting
the respondent without there being sufficient cause and
thereby granting decree in favour of the respondent.
Under the circumstance, we are of the considered view
that the judgment and decree passed by the Trial Court
allowing the petition filed by the respondent seeking
dissolution of marriage between the parties cannot be
sustained. Accordingly, the following :-
::ORDER::
Miscellaneous First Appeal is allowed.
Judgment and decree passed by the Principal
Senior Civil Judge, & JMFC, Bantwal, D.K., in
M.C.NO.22/2012 dated 30.03.2015 is set
aside.
Sd/-
JUDGE
Sd/-
JUDGE
NMS
