Shanthamma vs D Ramakrishna
2023 Latest Caselaw 909 Kant

                             1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH 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.7065/ 2015 (FC)

BETWEEN:

SHANTHAMMA
W/O D. RAMAKRISHNA
AGED ABOUT 43 YEARS
R/AT 12TH CROSS, NEAR STD
SIT EXTENSION, TUMAKURU
TOWN - 572 103.                              ...APPELLANT

(BY SMT. NALINA K, ADV., FOR
SRI S.K. VENKATA REDDY, ADV.)

AND:

D. RAMAKRISHNA
S/O LATE DODDA THIMMAIAH
AGED ABOUT 53 YEARS
R/O SHILPA KALA MANDIR
SOMESHWARA EXTENSION
TUMAKURU DIST - 572 101.                    ...RESPONDENT

(BY SRI M.B. CHANDRA CHOODA, ADV.,)


       THIS MFA IS FILED U/S.19(1) OF FAMILY COURT ACT,
PRAYING     AGAINST   THE        JUDGMENT   AND   DECREE
DATED05.08.2015 PASSED IN MC NO.153/2013 (OLD MC
NO.64/2006), ON THE FILE OF THE COURT OF PRINCIPAL
                             2

JUDGE, FAMILY COURT, TUMKUR, ALLOWING THE PETITION
FILED U/SEC.13 OF THE HINDU MARRIAGE ACT.


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


                      JUDGMENT

This Miscellaneous First Appeal under Section 19(1)

of the Family Courts Act, 1984, has been filed assailing

the judgment and decree dated 05.08.2015 passed by

the Prl. Judge, Family Court, Tumkur, in

M.C.No.153/2013 (M.C.No.64/2006), wherein the petition

filed by the respondent-husband under Section 13 of the

Hindu Marriage Act, 1955 (for short, 'the Act') has been

allowed and the marriage between the parties that was

solemnized on 04.07.1991 was dissolved by a decree of

divorce.

2. Heard the learned Counsel for the parties and

also perused the material available on record.

3. Facts leading to filing of this appeal briefly

narrated are, the marriage of the appellant with the

respondent was solemnized on 04.07.1991 at Agni

Vamsha Kshatriya Hostel, Tumkur, as per the prevailing

rites and customs in their community. From the wedlock,

the couple have two children and after the marriage they

allegedly lived together for about 12 years. Thereafter,

the relationship between the parties was strained since

the appellant herein was having illicit relationship with

one STD Nagaraj. It is under these circumstances, the

appellant had left the matrimonial home in the year 2003

and the said STD Nagaraj allegedly provided

accommodation to her in a rented house at Tumkur and

ever since then, she is living in the said house. It is

under these circumstances, the respondent had filed a

petition under Section 13 of the Act with a prayer to

dissolve the marriage between the parties that was

solemnized on 04.07.1991, by a decree of divorce.

4. In the said proceedings, the respondent had

entered appearance and had filed her statement of

objections denying the allegations made against her.

Before the Family Court, the respondent got himself

examined as PW-1 and two other witnesses as PWs-2 & 3

and got marked 20 documents as Exs.P-1 to P-20. The

appellant examined herself as RW-1 and got marked two

documents as Exs.R-1 & R-2 in support of her case. The

Family Court vide the impugned judgment and decree

dated 05.08.2015 allowed the petition and has dissolved

the marriage between the parties. Being aggrieved by

the same, the appellant-wife is before this Court.

5. Learned Counsel for the appellant submits that

since the parties have been residing separately for the

last nearly 20 years, the appellant is not interested in

continuing the marital life with the respondent. She

submits that the appellant would be satisfied if

permanent alimony is granted to her as she is not having

any independent source of income.

6. Per contra, learned Counsel appearing for the

respondent submits that the appellant is guilty of leading

a adulterous life which has been proved before the

Family Court, and therefore, she is not entitled for any

permanent alimony.

7. The respondent had approached the Family

Court under Section 13 of the Act specifically contending

that the respondent was having illicit relationship with

one STD Nagaraj who was a Councilor of Tumkur

Municipal Corporation and she was found along with the

said Nagaraj on multiple occasions. Though several

panchayaths were held in this regard, the appellant had

continued her illicit relationship with the said Nagaraj.

The respondent has reiterated this aspect of the matter

during the course of his examination-in-chief and nothing

is elicited from him during his cross-examination to

disbelieve this version of his.

8. In addition to the same, PW-2 - Adarsh who is

none other than the son of the appellant and the

respondent has categorically stated that the appellant

had illicit relationship with the aforesaid Nagaraj and he

had witnessed the appellant in the company of the said

Nagaraj in a compromising position. The appellant has

not elicited anything even from PW-2 during his cross-

examination to disbelieve this version of his. It would

also be relevant to take note of the fact that PW-2 is

none other than the son of the appellant, and therefore,

he has no reason to make such an allegation as against

her. Certain letters produced by PW-1 during the course

of his examination would also go to show that the

appellant had confessed in the said letters about her illicit

relationship with the said Nagaraj. Ex.P-3 also reveals

that the appellant was talking to said Nagaraj frequently

over phone. It is under these circumstances, the Family

Court having appreciated the evidence of PWs-1 & 2, has

arrived at the conclusion that the allegation of illicit

relationship of the appellant with the said STD Nagaraj

cannot be ruled out.

9. Further, the appellant has not filed any

application either before the Family Court or before this

Court seeking permanent alimony from the respondent.

Though this Court can award permanent alimony even in

the absence of any application for the same by the party,

having regard to the facts and circumstances of the

present case, we are of the considered view that it is not

a fit case for us to exercise such a the discretion for

granting permanent alimony to the appellant even in the

absence of any application for the same. Therefore, we

are not inclined to grant the prayer made by the

appellant for awarding permanent alimony.

10. For the aforesaid reasons, the appeal stands

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE KK