Karnataka High Court
Smt Kanakashree R vs Devaraj @ Papanna on 26 June, 2023
Bench: Alok Aradhe, Anant Ramanath Hegde
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MFA No. 4378 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. 4378 OF 2017 (FC)
BETWEEN:
SMT KANAKASHREE R
AGED ABOUT 24 YEARS,
D/O RAMAKRISHNA
W/O DEVARAJ @ PAPANNA
R/AT D.NO.103/2A/3
1ST MAIN ROAD, RAMAYYA BLOCK
DATTANAGAR, MYSURU-570 002
...APPELLANT
(BY SRI. P NATARAJU., ADVOCATE)
AND:
DEVARAJ @ PAPANNA
AGED ABOUT 38 YEARS,
S/O MARIYAPPA
R/AT 9-103/2A/3, 2ND CROSS,
Digitally signed
by BELUR RAMAYYA BLOCK,
RANGADHAMA
NANDINI DATTANAGARA, MYSURU-570 002
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI.S.RUPESH KUMAR, ADVOCATE - ABSENT)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED
27.03.2017 PASSED IN M.C.NO.353/2015 ON THE FILE OF THE
I ADDITIONAL PRINCIPAL FAMILY COURT AT MYSURU,
DISMISSING THE PETITION U/S 13(1)(ia) OF THE HINDU
MARRIAGE ACT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, ANANT RAMANATH HEGDE J., DELIVERED THE
FOLLOWING:
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MFA No. 4378 of 2017
JUDGMENT
The petition is filed under Section 13(1)(1-a) of the Hindu
Marriage Act, 1955. The appellant/wife in M.C. No.353/2015 on
the file of I Additional Principal Court, Mysuru is before this
Court challenging the judgment and decree dated 27.03.2017.
In terms of the impugned judgement and decree, the petition
filed by the appellant/wife alleging cruelty against the
respondent/husband is dismissed.
2. For the sake of convenience, the appellant is
referred to as the wife and the respondent as the husband.
3. Brief facts necessary for adjudication of the case
can be summarised as under:
The marriage between the parties was solemnised on
08.06.2009 at Mysuru. It is her case that the couple lived
together only for two months and even in those two months
there was no harmony and there used to be quarrel between the
couple. It is stated that despite the best efforts made by the
elders, a normal marital relationship did not resume. The wife
further alleged that the husband under the influence of alcohol,
every day used to abuse her in the presence of others. It is
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MFA No. 4378 of 2017
further submitted that she was not treated with respect and the
husband did not have an adjustable nature and both the
husband and wife were forced to marry against their wish. It is
alleged that the husband used to frequently quarrel for petty
reasons. Alleging these facts, the wife filed a petition seeking the
dissolution of the marriage.
4. Husband appeared before the Court, however, did
not file statement of objections. Thereafter, the wife has led
evidence. She has reiterated the averments made in the petition
relating to the alleged act of cruelty on the part of the husband
and she has stated that it is not possible for her to lead marital
life with the husband and as such prayed for dissolution of
marriage.
5. The Family Court dismissed the petition. Being
aggrieved by the said judgment and decree, this appeal is filed.
6. Learned counsel appearing for the husband
submitted that the evidence of the wife relating to cruelty is not
contested by the husband and is not challenged, as such the
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MFA No. 4378 of 2017
Family Court is not justified in dismissing the petition seeking
dissolution of marriage.
7. It is further submitted that the plea relating to
cruelty is very much established. The husband and the wife
lived together only for two months after the marriage and in
those two months, the relationship between the husband and
the wife was not cordial and the husband abused the wife under
the influence of alcohol and this fact is established and the
evidence led by the petitioner/wife is not challenged by the
respondent/husband by cross-examining the wife. The wife in
support of her contention has produced 6 documents marked at
Exs.P1 to P6. One of the documents, namely Ex.P5 is the SSLC
marks card of the wife. It is evident from the said records that
she was born on 10.12.1994. When marriage was solemnised on
10.12.1994, the wife was aged 15 years. However, the Family
Court has not considered the case of the petitioner/wife under
Section 15 of the Hindu Marriage Act as the wife did not press
the petition under Section 12 of the Act by way of an
amendment. However, it is noticed that in the impugned
judgment, the Family Court has not considered the case of the
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MFA No. 4378 of 2017
petitioner/wife, whether the petitioner/wife has made out a case
for dissolution of marriage on the ground of cruelty.
8. We have considered the contentions raised at the
bar and perused the materials placed on record and the
impugned judgment.
9. 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 the witness has to be taken to be 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.
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MFA No. 4378 of 2017
10. Keeping in mind the aforesaid principle, this Court
must consider whether the wife has made out a case seeking
dissolution of marriage on the ground of cruelty. As already
stated, there is no cross-examination and there is no objection
filed by the husband to the petition filed by the wife. When there
is no challenge to the petition as well as to the evidence led by
the wife, this Court is of the view that the Family Court erred in
rejecting the petition. It is also required to be noticed that the
Family Court has not adverted its attention to the evidence led
by the petitioner/wife relating to cruelty. The Family Court has
proceeded to dismiss the petition on the ground that though the
marriage was solemnised in 2009 when the wife was aged 15,
the petition is not filed in 2015, three years after attaining
majority.
11. As already noticed the husband has not filed an
objection and has not cross-examined the wife. The testimony of
the wife has remained unchallenged. Even before this court,
none appeared opposing the appeal when the matter is heard
today.
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MFA No. 4378 of 2017
12. Considering the materials placed on record this Court
is of the view that the wife has established her plea of cruelty
and she is entitled to a decree of dissolution of marriage.
13. For the aforementioned reasons, this Court is of the
view that the judgment passed by the Family Court, Mysuru
which is under challenge has to be set aside. Hence the
following:
ORDER
(i) The judgment and decree dated 27.03.2017
passed by the I Additional Family Court at
Mysuru in M.C. No.353/2015 are set aside. The
petition filed under Section 13(1)(1-a) of the
Hindu Marriage Act, 1955 seeking dissolution of
marriage on the file of the I Additional Principal
Court, Mysuru in M.C. No.353/2015 is allowed.
Consequently, the marriage solemnised on
08.06.2009 between the parties to the
proceeding is dissolved.
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MFA No. 4378 of 2017
(ii) Accordingly, the appeal is allowed.
Sd/-
JUDGE
Sd/-
JUDGE
GVP
