Kantharaju B G vs Smt Veena N
2023 Latest Caselaw 3672 Kant

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                                                    NC: 2023:KHC:22019-DB
                                                       MFA No.1611 of 2017




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 26TH 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.1611 OF 2017 (FC)
               BETWEEN:

               1.    KANTHARAJU B.G.
                     AGED ABOUT 40 YEARS
Digitally            S/O GUURSIDDAPPA
signed by            R/AT D.NO.59, S.R.P. ROAD
RUPA V               BANNUR TOWN
Location:            T. NARASIPURA TALUK
High Court           MYSURU DISTRICT-571101.
of Karnataka
                     NOW R/AT SRINIVASA NILAYA
                     KARASAZVADI ROAD
                     VINAYAKANAGAR
                     MANDYA-571 401.
                                                              ...APPELLANT
               (BY SRI. P. NATARAJU, ADV.,)
               AND:

               1.    SMT. VEENA .N
                     AGED ABOUT 37 YEARS
                     W/O KANTHARAJU
                     D/O LATE NANJUNDASWAMY
                     R/AT D.NO.1176/77
                     KAMADENU MILK DAIRY
                     2ND CROSS, PATTEGAR STREET
                     MANDI MOHALLA, MYSURU-570 003.
                                                            ...RESPONDENT
               (BY SRI. N. NANJUNDA SWAMY, ADV.,)
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                                   NC: 2023:KHC:22019-DB
                                      MFA No.1611 of 2017




     THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED:07.01.2017
PASSED IN M.C.NO.378/2014 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, MYSURU, DISMISSING THE PETITION
FILED U/S 13(1)(ib) OF HINDU MARRIAGE ACT.

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

                       JUDGMENT

The instant appeal is filed under Section 19(1) of the

Family Courts Act, 1984, challenging the judgment and

decree passed in M.C.No.378/2014 on the file of Principal

Judge, Family Court at Mysuru. In terms of the impugned

judgment and decree dated 07.01.2017, the Family Court

has dismissed the petition filed by the husband seeking

dissolution of marriage on the ground of desertion.

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

proceedings are referred to as the 'husband' and the 'wife'.

3. Brief facts necessary for adjudication of the

case can be summarized as under:

The marriage of the parties was solemnized on

04.04.2002 at Nithyananda Kalyana Mantapa,

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Vidyaranyapuram, Mysuru. Admittedly, there are two

children from the marriage. The first child was born in the

year 2003 and the second child was born in the year

2006. It is stated by the petitioner that the marital life

was pleasant initially and later the dispute started

between the parties. It is further averred that on

22.08.2007, the parents and brothers of the wife who

visited the house of the husband raised a quarrel without

there being any cause and the wife went away with her

parents to the maternal home and took the gold

ornaments and cash of Rs.4 Lakhs belonging to the

husband. It is further stated that after 2007, the wife did

not return to the house of the husband. In the year 2014,

the husband issued a notice to the wife calling upon the

wife to join his company. It is further averred that the wife

issued a reply notice making false allegations against the

husband and thereafter, the husband has issued a

rejoinder to the reply notice and the husband was

constrained to file a petition seeking dissolution of

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marriage on the premise that the wife has deserted the

company of the husband and has sought dissolution of

marriage on the ground of desertion.

4. The wife appeared and filed statement of

objections and contested the allegations leveled against

her. The relationship between the parties is admitted

and the fact that two children are born from the wedlock

is also admitted. However, the wife has taken a stand

that the husband used to insist her father to give money

on the premise that his financial position is not good. It

is also her contention that despite her father having

assisted the husband financially, the husband is not

satisfied with the financial assistance provided by her

father. It is also contended by the wife that when her

sister was married, a site was given to her sister by her

father and the husband started insisting her father to

give a similar site to him and since, the demand was not

acceded to, the husband drew away the wife and

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children from his house and therefore, the wife is

constrained to live separately on account of ill treatment

given by the husband. Accordingly, she has prayed for

dismissal of the petition.

5. Before the Family Court, the husband is

examined as PW1 and 6 documents are marked viz.,

Ex.P1 to Ex.P6. The wife is examined as RW1 and 20

documents are marked viz., Ex.R1 to Ex.R20.

6. After hearing both the parties, the Family

Court dismissed the petition on the premise that the

plea of desertion is not established. Aggrieved by the

aforesaid judgment and decree, the husband is in

appeal.

7. Heard the Learned counsel for the husband

as well as the wife.

8. Learned counsel appearing for the husband

would submit that the plea of desertion is duly

established and the wife in the cross-examination has

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admitted that she is not willing to join the company of

the husband and despite, notice being given in the year

2014 i.e., after 7 years from the date when she left the

matrimonial home, the wife has not come forward to live

with the husband and accordingly, the Family Court

ought to have granted the decree for dissolution of

marriage. It is also contended that the wife has not

allowed him to meet his children for 7 years after she

left the house of the husband. This would clearly

indicate that the wife has no intention to come and join

the company of the husband. It is further contended

that the Family Court has not appreciated the plea and

evidence placed on record in its correct perspective and

erroneously dismissed the petition seeking dissolution

of marriage.

9. Learned counsel appearing for the wife would

submit that the plea of desertion is not properly pleaded

and evidence is not led to hold that the wife has

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deserted the husband with an intention to put a

permanent end to the marital relationship. It is further

submitted that it is established in the evidence that the

wife was harassed by the husband on the premise that

her father is not providing proper financial assistance to

the husband who is said to be in financial difficulty. It is

also contended that since, a site was given to wife's

sister who is married after the marriage of the

respondent/wife, the husband started harassing the

wife and her parents to give a site to him as well. Since,

the demand was not met, he has driven the wife and

children away from his house and he has not bothered

to maintain his wife and children. It is also urged that

the wife has filed the petition seeking maintenance for

herself and her children and the same is granted by the

Jurisdictional Court and accordingly, he would submit

that the plea of desertion is not established and prayed

for dismissal of the appeal.

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10. This Court has considered the contentions

raised at the bar and also perused the pleading and

evidence on record.

11. It is trite law that when a decree for

dissolution of marriage is sought, it has to be pleaded

and established that the spouse is living separately from

the company of another with an intention to put a

permanent end to the marital relationship. On perusal

of the pleadings, it is evident that no such plea has been

taken. The evidence of the husband is not enough to

accept the contention with regard to the desertion. It is

forthcoming from the cross-examination that the

husband has put a suggestion to the wife that the wife

is prevented from joining the company of the husband

by her parents. This itself would indicate that the

husband has not made any allegation that the wife is

living separately with an intention to put a permanent

end to the relationship. It is also an admitted fact that

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the petition filed by the wife seeking maintenance to

herself and children is allowed and the order has to be

confirmed by this Court. In a petition under Section 125

of the Code of Criminal Procedure, the person opposing

maintenance has to establish that the spouse is staying

away without there being any reasonable cause. Since,

the petition seeking maintenance is allowed by the

Jurisdictional Court, this Court has to conclude that

the husband has failed to prove the fact that the wife

has stayed away without there being any reasonable

cause. Thus, it leads to the conclusion that the wife is

made to stay away because of the ill treatment by the

husband. It is also forthcoming from the record that the

husband has not made any attempt to seek the custody

of the children. It is also admitted in the cross-

examination that in past 7 years prior to cross-

examination, he has not met his children. It can be

noticed that he has not filed any petition seeking the

custody or visitation rights. Under these circumstances,

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the Court can certainly draw an inference that the

husband has not shown any interest about the welfare

of the children and wife. Under these circumstances,

the fact that the wife was driven away from the house

appears to be more probable. Thus, merely because the

wife is staying away from the husband cannot be

construed as an act of desertion so as to grant a decree

for dissolution of marriage in favour of the husband.

12. The Family Court has considered all the

evidence on record and after analyzing the same, has

concluded that the husband has leveled false allegation

of theft of Rs.4 Lakhs, belonging to the husband against

the wife and the Family Court has also concluded that

the claim of the husband that he paid Rs.3.25 Lakhs

towards the treatment of wife's father is also incorrect.

After analyzing the entire evidence on record, the Family

Court has come to a conclusion that

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the plea of desertion by husband is not established and

dismissed the petition seeking dissolution of marriage.

13. This Court has perused the reasons assigned

by the Family Court and this Court does not find any

infirmity in the judgment and decree passed by the

Family Court dismissing the petition seeking dissolution

of marriage. Accordingly, the following:

ORDER

(i) The judgment and decree dated 07.01.2017

on the file of Principal Judge, Family Court,

Mysuru in M.C.No.378/2014 are confirmed.

(ii) Accordingly, the appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

SS