Karnataka High Court
Smt Shreeshyla vs Sri Mahadevaiah on 9 March, 2023
Bench: Alok Aradhe, Vijaykumar A Patil
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MFA No.2347 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.2347 OF 2013 (FC)
BETWEEN:
1. SMT. SHREESHYLA
Digitally
signed by W/O MAHADEVAIAH
RUPA V AGED ABOUT 38 YEARS
Location: R/A NO.83, 2ND CROSS
High Court of JYOHTINAGAR, NAGARABHAVI
Karnataka BANGALORE-560072.
...APPELLANT
(BY SRI. MANJUNATH K.V. ADV.,)
AND:
1. SRI. MAHADEVAIAH
DEAD BY LRs.
1(a) DEEPAK .M
S/O LATE MAHADEVAIAH P
AGED ABOUT 29 YEARS.
1(b) DIVYA .M
D/O LATE MAHADEVAIAH P
AGED ABOUT 25 YEARS.
BOTH ARE R/AT. NO.83
2ND CROSS, JYOTHINAGAR
NAGARABHAVI, BANGALORE-560072.
...RESPONDENTS
(BY SRI. HEMANTH S, ADV., FOR
SRI. LOKESH D.K. ADV., FOR PROPOSED LR'S OF
R1(a & b) ON IA 1/22 AND IA 3/22
SRI. H. MOHAN KUMAR, ADV., FOR RESPONDENT
ON IA 1/21)
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MFA No.2347 of 2013
THIS MFA IS FILED U/S 19(1) OF HINDU MARRIAGE ACT,
AGAINST THE JUDGMENT AND DECREE DATED:19.1.2013
PASSED IN M.C NO.2340/2008 ON THE FILE OF II ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, ALLOWING
THE PETITION FILED U/SEC 13(1)(i)(ia)& (ib) OF THE HINDU
MARRIAGE ACT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 28(1) of the Hindu
Marriage Act, 1955 has been filed against the judgment
and decree dated 19.01.2013 passed by the family
Court by which the petition filed by the deceased-
husband, namely, late Sri.Mahadevaiah, seeking
dissolution of marriage on the ground of cruelty has
been allowed.
2. The facts giving rise to fling of this appeal
briefly stated are that the parties got married on
08.05.1988. Admittedly from the wedlock two children
i.e., son and daughter were born. The children born
from the wedlock have attained majority and are
admittedly, 30 years and 25 years respectively. They
MFA No.2347 of 2013
have been arrayed as respondent No.1(a) and (b) in this
appeal.
3. On 28.08.2007, respondent filed a petition
under Section 13 of the Hindu Marriage Act, 1955
seeking dissolution of marriage on the ground of cruelty.
It was inter alia pleaded that appellant had quarrelsome
nature and used to abuse and scold the husband. It was
further pleaded that at the insistence of the appellant,
the deceased-respondent No.1 (hereinafter referred to as
'husband' for short) shifted to a rented house. However,
the husband learnt that the wife developed an extra
marital relationship with respondent No.2, who used to
visit the matrimonial house very often in the absence of
the husband. It was averred that on 29.01.2007, when
the husband returned from his work, he found the
appellant in the company of respondent No.2. When the
husband questioned the conduct of the appellant and
respondent No.2, the respondent No.2 assaulted the
MFA No.2347 of 2013
husband, due to which he sustained severe injuries.
Despite intervention of the elders and relations,
appellant continued her relationship with respondent
No.2.
4. It was also pleaded that on 13.11.2007, the
appellant and respondent No.2 locked the husband in a
room with an intention to kill him and had lodged a
false complaint before the State Women's Commission
against the husband wherein he was summoned.
Accordingly, it was pleaded that the appellant has
treated the husband with cruelty. The appellant
therefore sought dissolution of marriage on the ground
of cruelty.
5. The appellant filed statement of objections, in
which the factum of marriage as well as the birth of
children have been admitted. However, all other
averments made in the petition were denied. It was
averred that the husband did not arrange for the
MFA No.2347 of 2013
residence of the appellant and the appellant was aged
about 15 years at the time of marriage. It was also
pleaded that the appellant has discharged her duties as
dutiful wife and it was denied that she had any extra
marital relationship with respondent No.2.
6. In order to prove the case, the husband
examined himself as PW-1 and exhibited 11
documents, namely, Exs.P-1 to P-11. The appellant
examined herself as RW-1. The Family Court vide
judgment dated 19.01.2013 inter alia held that the
ground of desertion as well as cruelty is made out.
Accordingly, the decree for dissolution of marriage was
granted.
7. Learned counsel for the appellant submitted
that the family Court ought to have appreciated that the
ground pleaded by the appellant with regard to cruelty
was not made out and the family Court has failed to
MFA No.2347 of 2013
appreciate the evidence on record on its correct
perspective which has resulted in erroneous findings.
8. Learned counsel for respondent No.1(a) and
1(b) has pointed out that the husband has expired
during the pendency of the appeal. It is further
submitted that respondent No.1(a) and 1(b) supported
the appellant.
9. We have considered the submissions made on
both sides and have perused the record. In
Dr.N.G.DASTANE VS. S.DASTANE, the Supreme Court
while dealing with cruelty as a ground for divorce has
held that in a case for divorce on the ground of cruelty,
the conduct charged as cruelty is to be of such a
character so as to cause in the mind of the petitioner a
reasonable apprehension that it will be harmful or
injurious for the petitioner to live with the respondent. It
was further held that it was not necessary that cruelty
must be of such nature as to cause danger to life, limb
MFA No.2347 of 2013
or health or as to give rise to a reasonable apprehension
of such a danger of harm or injury to health or
reputation or the like would be an important
consideration in determining whether the conduct of the
respondent amounts to cruelty or not. It was also held
that the question of cruelty as ground for divorce has to
be determined on the basis of facts and circumstances
of each case.
10. It is well settled in law that in a petition
seeking decree of divorce on the ground of cruelty,
special instances of cruelty have to be pleaded. (See:
NEELAM KUMAR VS. DAYA RANI). It is equally well
settled legal proposition that if a testimony of witness is
not challenged in the cross examination, the same is
taken to be admitted. [See: MUDDASANI VENKATA
NARSAIAH (D) THROUGH LRS. VS. MUDDASANI
SAROJANA', (2016) 12 SCC 288]
MFA No.2347 of 2013
11. In the backdrop of aforesaid well settled legal
principles, we may advert to the facts of the case in
hand. The husband who was examined as PW1 has
stated that in his evidence that appellant used to insult
him in front of his friends and relatives, which amounts
to mental cruelty. The statement of the husband that
he was insulted in public has remained unchallenged.
The husband in para 8 of his examination in chief has
stated that the appellant has developed extra marital
relationship with respondent No.2 and respondent No.2
used to visit the matrimonial home very often during the
absence of the husband and the children. It has further
been stated in para 8 of the examination in chief that on
29.01.2007, when the husband returned home he found
the appellant and respondent No.2 inside the house and
on query being raised, appellant and respondent No.2
assaulted him and inflicted injuries on the husband.
Thereupon the husband filed a police complaint Ex.P3.
MFA No.2347 of 2013
The aforesaid statement has also not been challenged in
the cross examination.
12. Thus, insulting the husband in public and
the presence of respondent No.2 in the matrimonial
home with the appellant in the absence of the husband
and on query being raised, the husband being assaulted
by the appellant and respondent No.2 which leads to
filing of a police complaint Ex.P3 clearly amounts to
inflicting mental cruelty on the husband. Therefore, the
family court on the basis of meticulous appreciation of
evidence on record, has granted the decree of divorce on
the ground of cruelty.
13. However, from the perusal of averments made
in the petition, the ground pertaining to dissolution of
marriage on the ground of desertion has not been
pleaded. The date on which the husband was compelled
to leave the matrimonial home has not been disclosed
and the petition does not contain an averment that
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MFA No.2347 of 2013
appellant has deserted the husband for a continuous
period of 2 years. In the absence of any specific
pleading with regard to essential ingredients of
desertion, the family court was not justified in granting
a decree of divorce on this ground.
14. For the aforementioned reasons, the
impugned judgment and decree passed by the family
court in M.C.No.2340/2008 insofar as it grants decree
of dissolution of marriage on the ground of desertion is
set aside. However, the same is affirmed insofar as it
pertains to grant of decree on the ground of cruelty.
In the result, the appeal is partly allowed.
Sd/-
JUDGE
Sd/-
JUDGE
MDS/SS
