Sri Hanumanth Gowda vs Smt Kavitha @ Sheela
2023 Latest Caselaw 3014 Kant

                                             -1-
                                                   NC: 2023:KHC:19580-DB
                                                        MFA No. 4629 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 8TH DAY OF JUNE, 2023

                                          PRESENT
                           THE HON'BLE MR JUSTICE ALOK ARADHE
                                             AND
                     THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                   MISCELLANEOUS FIRST APPEAL NO. 4629 OF 2017 (MC)
                   BETWEEN:

                   SRI HANUMANTH GOWDA,
                   S/O MALLESHAPPA,
                   AGED ABOUT 40 YEARS,
                   R/AT MALLENAHALLI VILLAGE,
                   SHIKARIPURA TALUK-577428,
                   SHIVAMOGGA DISTRICT.
                                                                ...APPELLANT
                   (BY SMT ANITHA H R, ADVOCATE)
                   AND:

                   SMT KAVITHA @ SHEELA,
                   W/O HANUMANTH GOWDA,
Digitally signed   AGED ABOUT 29 YEARS,
by BELUR
RANGADHAMA         C/O SOMAPPA BYRANNANAVAR,
NANDINI            SATHENAHALLI VILLAGE AND POST,
Location: HIGH     HIREKERUR TALUK-577426,
COURT OF
KARNATAKA          HAVERI DISTRICT.
                                                              ...RESPONDENT
                   (BY SRI. SRIKANTH PATIL K, ADVOCATE)
                        THIS MFA IS FILED UNDER SECTION 28(1) OF THE
                   HINDU MARRIAGE ACT, AGAINST THE JUDGEMENT AND
                   DECREE DATED 17.03.2017 PASSED IN M.C.NO. 57/2014 ON
                   THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
                   SHIKARIPURA, DISMISSING THE PETITION FILED UNDER
                   SECTION 13(1)(a) OF THE HINDU MARRIAGE ACT, FOR
                   DISSOLLUTION OF MARRIAGE.
                                  -2-
                                       NC: 2023:KHC:19580-DB
                                             MFA No. 4629 of 2017




    THIS APPEAL COMING ON FOR HEARING THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal under Section 28(1) of the Hindu Marriage

Act, 1955 (hereinafter referred to as 'the Act' for short) has

been filed against the judgment and decree dated 17.03.2017

passed by the Family Court, by which petition filed by the

appellant/husband under Section 13(1)(A) of the Act has been

dismissed.

2. For the sake of convenience, parties to this appeal

are hereinafter referred to as husband and wife.

3. Facts giving rise to filing of this appeal briefly stated

are that the marriage between the parties was solemnized

13.07.2007. The parties thereafter resided together in the

marital home. It is also not in dispute that from the wedlock

three children were born to the parties.

4. The husband filed a petition seeking dissolution of

marriage on the ground of cruelty. It was interalia pleaded that

the wife used to harass the husband physically and mentally. It

was averred that the wife did not provide food to the husband

NC: 2023:KHC:19580-DB MFA No. 4629 of 2017

and used to leave the marital home without informing anyone.

It was also pleaded that the wife did not take care of the

children and she used to abuse the children in filthy language.

It was also averred that prior to two months of filing of the

petition, the wife left the marital home. Accordingly, the

husband sought dissolution of marriage on the ground of

cruelty.

5. The wife filed statement of objections in which

averments made in the petition were denied, except the factum

of relationship and the birth of three children from their

wedlock. It was averred by the wife that the husband used to

pick-up quarrel for no reason and that he is having elicit

relationship with one lady. It was also pleaded that without any

reason about the elicit relationship, husband used to beat her

and the husband was in the habit of consuming alcohol. It was

also averred that the husband used to abuse the wife in front of

the neighbours.

6. The husband in order to prove his case examined

himself. However, the wife neither cross-examined the husband

nor examined herself. The Family Court vide judgment dated

NC: 2023:KHC:19580-DB MFA No. 4629 of 2017

17.03.2017 interalia held that merely because the wife has not

cross-examined the husband and has not entered the witness

box, cannot be a ground to end the marital relationship

between the parties. Accordingly, the petition filed by the

husband is dismissed.

7. Learned counsel for the appellant submitted that

the Family Court was not justified in discarding the

uncontroverted testimony of the husband. It is further

submitted that adverse inference ought to have been drawn

against the wife. On the other hand, learned counsel for the

respondent has supported the judgment passed by the Family

Court.

8. We have considered the submissions made on both

sides and have perused the record. The effect of not cross-

examining the witness is settled in law. The Hon'ble Supreme

Court in MUDDASANI VENKATA NARSAIAH (D) THROUGH

LRS. VS. MUDDASANI SAROJANA, (2016) 12 SCC 288

has held that the cross-examination is a matter of substance

and not of procedure and the effect of non cross-examination of

a witness is that the statement of witness has to be taken to be

NC: 2023:KHC:19580-DB MFA No. 4629 of 2017

admitted. Similarly, in 'VIDHYADHAR VS. MANIKRAO AND

ANOTHER', (1999) 3 SCC 573, the Hon'ble Supreme Court

has held that when a party to the proceeding does not enter

into a witness box and states his/her case and does not offer

himself/herself for cross-examination by the other side, a

presumption would arise that the case set up by him/her is not

correct.

9. In the light of the aforesaid legal principles, we may

advert to the facts of the case on hand. The husband has

stated that the wife used to abuse and insult him and he has

further stated that the wife did not provide food to the husband

and used to leave her marital home without informing anybody.

It is also been stated that the wife did not take care of the

children and she used to abuse the children. If the evidence of

the husband is read in whole, it clearly proves the ground

pertaining to cruelty. It is pertinent to note that the wife has

neither cross-examined her husband nor has entered the

witness box. Therefore, there is no justification in accepting

uncontroverted testimony of the husband. The Family Court

erred in holding that no ground of cruelty is made out. The

aforesaid approach of the learned Judge of the Family Court is

NC: 2023:KHC:19580-DB MFA No. 4629 of 2017

erroneous. The judgment and decree passed by the Family

Court cannot be sustained in the eye of law, it is accordingly,

set aside.

10. For the aforementioned reasons, the marriage

performed between the parties solemnised on 13.07.2007 is

dissolved by decree of divorce. In the result, the appeal is

allowed.

11. Since no materials are placed to assess the alimony

payable, this Court is not deciding on the alimony payable to

the wife and the children. The wife is at liberty to claim alimony

from the husband if advised in law. If such a claim is made, the

same should be decided on its merits, notwithstanding the

decree for divorce granted by this Court.

Sd/-

JUDGE

Sd/-

JUDGE GVP