Sri Gnanesh vs Manjula. S
2023 Latest Caselaw 4181 Kant

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                                              NC: 2023:KHC:23686-DB
                                                   MFA No. 1066 of 2018




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 10TH DAY OF JULY, 2023

                                     PRESENT
                     THE HON'BLE MR JUSTICE ALOK ARADHE
                                       AND
                THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
              MISCELLANEOUS FIRST APPEAL NO. 1066 OF 2018 (MC)
              BETWEEN:

              SRI GNANESH,
              S/O. SHAMARAJU,
              AGED ABOUT 33 YEARS,
              RESIDING AT MUDIGERE VILLAGE - 577132,
              KASABA HOBLI,
              SIRA TALUK, TUMKUR DISTRICT.
                                                           ...APPELLANT
              (BY SRI N SURESHA, ADVOCATE - (ABSENT))

              AND:

              MANJULA S,
              W/O GNANESH,
Digitally
signed by     AGED ABOUT 30 YEARS,
PRAMILA G V   RESIDING AT MUDIGERE VILLAGE - 577132,
Location:     KASABA HOBLI,
HIGH COURT    SIRA TALUK, TUMKUR DISTRICT.
OF
KARNATAKA
                                                         ...RESPONDENT
              (BY SRI SUNIL K.N, ADVOCATE FOR
               SRI K.R.RAMESH, ADVOCATE)

                   THIS MFA IS FILED UNDER SECTION 28(1) OF HINDU
              MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED
              23.11.2017 PASSED IN M.C.NO.61/2012 ON THE FILE OF THE
              SENIOR CIVIL JUDGE AND JMFC, SIRA, TUMAKURU
              DISMISSING THE PETITION FILED UNDER SECTION 13(b) OF
              THE HINDU MARRIAGE ACT, 1957.
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                                         NC: 2023:KHC:23686-DB
                                              MFA No. 1066 of 2018




     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, ANANT RAMANATH HEGDE J., DELIVERED THE
FOLLOWING:
                             JUDGMENT

This appeal is filed under Section 28(1) of the Hindu

Marriage Act, 1955 (hereinafter referred to as the 'Act, 1955'

for short) challenging the judgment and decree dated

23.11.2017 on the file of the Senior Civil Judge, Sira in

M.C.No.61/2012. The petition filed by the husband seeking

dissolution of marriage under Section 13(1)(ia) and (ib) of the

Act, 1955 on the grounds of cruelty and desertion is dismissed

by the Family Court. Aggrieved by the said judgment and

decree, the husband is in appeal.

2. The parties to the proceeding are referred to as the

husband and the wife for the sake of convenience.

3. Brief facts necessary for adjudication of the case can

be summarized as under:

-the husband in his petition has stated that the marriage

was solemnised in the year 2005. It is further stated that a

child was born in the year 2007 and till then there was cordial

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relationship between the husband and wife and thereafter, in

the year 2007, the rift started between the husband and wife.

It is also stated that the wife used to quarrel with the husband

for no reason and inspite of advise by the elders in the family,

she continued with adamant, arrogant and rude behavior and

thereafter, she left the company of the husband and started

residing with her parents. It is further stated that she has filed

O.S. No.137/2007 on the file of the Civil Judge, Sira seeking

partition and separate possession in respect of the properties

held by the husband and his family members. It is further

stated that the wife has left the company of the husband and

she has no intention to join the company of the husband. It is

the contention of the husband that the wife has caused

intolerable mental torture and she has separated from his

company.

4. The petition was resisted by the wife. She has filed

statement of objections. The relationship is admitted. It is also

admitted that a son is born from the marriage. The wife filed a

partition suit on behalf of the son as the husband and his family

wanted to alienate the property to deprive the legitimate share

of the son. It is also her contention that the marriage was an

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inter-caste one and it was registered before the office of the

Sub-registrar on 06.10.2005. It is stated in her statement of

objections that the husband was not properly taking care of the

wife and the child. For this reason, she was constrained to file

a suit for partition. It is further stated that she is ready and

willing to join the company of the husband and lead normal

matrimonial life and accordingly, has prayed for dismissal of

the petition.

5. The husband has examined himself as PW1 and in

addition he has examined two witnesses namely PW 2 and PW3

and produced two documents as Ex.P.1 and Ex.P.2. The wife

has examined herself as RW1 and one more witness is

examined as RW2. The wife has not produced any documentary

evidence.

6. The Trial Court on appreciation of evidence has

concluded that the plea of cruelty and desertion urged by the

husband is not established and accordingly, dismissed the

petition. Aggrieved by the aforementioned judgment and

decree, the husband is in appeal.

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7. Heard learned counsel for respondent/wife. This

Court has perused the grounds raised in the appeal memo.

8. The husband has raised the contention that the

judgment and decree passed by the Trial Court are not

maintainable in law and on facts. The Trial Court erred in

dismissing the petition and the evidence led by the parties are

not appreciated in proper perspective. It is further argued that

the husband has established the adamant and rude behavior of

the wife and that the wife treated the husband cruelly. It is

further urged that the wife has deserted the company of the

husband and she was ill-treating the husband which amounted

to cruelty and despite the fact that she is staying separately in

the house of her parents, the Trial Court failed to take note of

the fact that the wife has deserted the husband.

9. It is further urged that the husband has established

before the Trial Court that the wife is not at all willing to

continue the marital relationship with the husband and she has

failed to take care of the husband. It is further stated that the

wife is only interested in the property and as such, she has filed

a suit claiming share in the property held by the husband. It is

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further stated that the husband looked after the wife with lots

of love and affection and wife has not looked after the husband

which compelled the husband to seek dissolution of marriage.

10. Learned counsel for the respondent/wife would

submit that the plea of cruelty is not established. The wife had

to file a suit for partition to secure the property of her minor

child. It is further urged that the husband has not made any

arrangement for the maintenance of the wife and the child. It is

further urged that the wife is willing to join the company of the

husband. The Trial Court has rightly dismissed for want of

evidence relating to plea of cruelty and desertion.

11. This Court has considered the grounds urged in the

appeal memo and the evidence led by the Court and also the

contentions raised by the learned counsel.

12. It is well established principle of law that when a

person files a petition for dissolution of marriage on the ground

of cruelty he has to plead specific instances of cruelty and the

same is required to be established in evidence. It is well settled

principle of law that a minor and trivial difference of opinion

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between the husband and wife cannot be construed as cruelty

within the meaning of Section 13(1)(ia) of the Hindu Marriage

Act. And the person seeking dissolution of marriage on the

ground of desertion has to specifically plead that the deserting

spouse has deserted the company of the other spouse with an

intention to put a permanent end to the relationship. It is also

required to be pleaded that the spouse deserted the company

for more than two years prior to the filing of the petition.

13. Keeping in mind the above said well established

principles, this Court has considered the contentions raised and

also the materials placed on record.

14. This Court has perused the petition averments.

There is no specific plea relating to instances of cruelty in the

petition. The particulars of incidents which led to cruelty are

lacking in the petition. As far as plea relating to the desertion is

concerned, the husband has not even pleaded that the wife has

deserted his company with an intention to put a permanent end

to the relationship.

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15. This Court has perused the evidence led by the

husband. The husband has examined two witnesses. The two

witnesses examined on behalf of the husband have not

supported the case of the husband in the cross-examination.

Though in the examination-in-chief, they have stated that they

participated in the talks held between the husband and the wife

to bring in conciliation, in the cross-examination, they have

stated that they did not participate in the talks where the wife

was allegedly advised to lead a normal marital relationship with

the husband. Even the evidence of the husband is lacking in

respect of the particulars relating to cruelty and the desertion

as required under law. Under the circumstances, the Trial Court

has concluded that the husband has not established his case

relating to the cruelty and desertion as alleged.

16. From the cross-examination of the wife, it can be

concluded that the wife has not left the company of the

husband with an intention to put an end to the marital

relationship. It is forthcoming from the evidence that she filed a

suit for partition and separate possession to secure the

property rights of the minor, child as there was a threat of

alienation of the property. The act of filing the suit keeping in

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mind the interest of the minor child cannot be construed as an

act of desertion. The evidence on record does not indicate that

the husband has made arrangements of the maintenance of the

wife and the child. This being the position, the Court cannot

hold that the wife left the company of the husband with an

intention to put an end to the marital relationship.

17. Having re-appreciated the evidence on record with

reference to the pleadings, this Court is of the view that the

Trial Court is justified in holding that the petition seeking

dissolution of marriage on the ground of cruelty and desertion

has to be dismissed and has rightly dismissed the petition.

18. No grounds are made out to interfere with the

judgment and decree passed by the Trial Court.

19. Hence the following:

ORDER

(i) The impugned judgment and decree dated

23.11.2017 passed by the Senior Civil Judge &

JMFC, Sira in M.C.No.61/2012 is affirmed.

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(ii) Accordingly, appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

BRN