Karnataka High Court

Mallikarjunappa K M vs Smt. C.S.Mala on 10 March, 2023

Bench: Alok Aradhe, Vijaykumar A Patil

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                                      MFA No.4876 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    DATED THIS THE 10TH 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.4876 OF 2016 (FC)

BETWEEN:

MALLIKARJUNAPPA K M
S/O LATE MALLAPPA
AGED 56 YEARS
ASSISTANT DIRECTOR /
DEPUTY CHIEF,
UNIVERSITY EMPLOYMENT
INFORMATION & GUIDANCE BEREAU,
ASIATIC BUILDING, K G ROAD,
BANGALORE - 560009
                                             ...APPELLANT
(BY SRI DIVYATEJ H.V., ADV. FOR
    SRI R. KOTHWAL & SRI S.MUBARAK BEGUM, ADV.)

AND:

SMT. C.S.MALA
W/O MALLIKARJUNAPPA K M
AGED 39 YEARS
RESIDING AT 234/A, 25TH MAIN,
NEAR POLICE BOOTH,
21ST CROSS, 'D' BLOCK, J P NAGAR,
MYSURU - 570023.
                                           ...RESPONDENT
(BY SRI IMRAN G., ADV. FOR
    SRI S. ANIL KUMAR, ADV.)

       THIS M.F.A IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, AGAINST THE JUDGMENT AND DECREE
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                                             MFA No.4876 of 2016




DATED 06.02.2016 PASSED IN M.C.NO.438/2011 ON THE FILE
OF THE JUDGE, ADDITIONAL FAMILY COURT, MYSURU,
REJECTING THE PETITION FILED U/S 13(1) (ia) AND (ib) OF
HINDU MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
07.03.2023,    COMING       ON     FOR    PRONOUNCEMENT      OF
JUDGMENT, THIS DAY, VIJAYKUMAR A.PATIL J., DELIVERED
THE FOLLOWING:


                         JUDGMENT

This appeal is filed under Section 19(1) of the Family

Courts Act, 1984 against the judgment and decree dated

06.02.2016 passed in M.C.No.438/2011 by the Addl.

Judge, Family Court, Mysore, by which the petition filed by

the appellant seeking dissolution of marriage was

dismissed.

2. Brief facts giving rise to filing of this appeal are that

the appellant and respondent got married on 15.05.1998

as per the Hindu customs and rituals. Initially they have

led a happy married life. The appellant took the

respondent to her parental home and requested her to

stay there as he is working in Mangalore. It is further

averred that the respondent used to insult the appellant

MFA No.4876 of 2016

and always used to quarrel with him. It is further averred

that she used to leave the matrimonial home without

informing the appellant and used to threaten the appellant

that she will commit suicide.

3. It is further averred that on 10.08.1999 she gave

birth to the first child. It is averred that when the

appellant went to see the child she behaved rudely,

created scene and insulted the appellant. It is further

averred that the appellant was transferred to Shivamogga

on 20.08.2000 and thereafter the appellant took the

respondent to Shivamogga. It is averred that the

appellant has taken care of the respondent and child with

love and affection, despite the same the respondent used

to quarrel with the appellant on silly reasons.

4. It is averred that during 2003 respondent gave birth

to the second child and during her second pregnancy

doctor had advised her to take rest and not to travel

ignoring such advise she went to her parental home. It is

further averred that the appellant has provided treatment

MFA No.4876 of 2016

to the respondent in different hospitals and Dr.Anil Kumar

has opined that the respondent is suffering from 'Ego

Psychopathic'. It is further averred that on 4.3.2008

without informing the appellant the respondent left the

matrimonial home. The appellant has further averred that

the respondent has lodged complaint against him in

Shivamogga Police Station and also filed petition under the

provisions of Domestic Violence Act at Mysore and sought

maintenance.

5. The respondent filed statement of objections before

the Family Court admitting the factum of the marriage and

also admitted the birth of two children out of the wedlock.

The respondent has denied the averments of cruelty and

pleaded that the appellant has refused to take her to

Mangalore, hence she was required to stay at parental

home. It is further averred that the respondent's father

has provided money to the appellant for arranging the

house and procurement of household articles. It is further

averred that the appellant used to harass the respondent

MFA No.4876 of 2016

and forcibly sent her out of the matrimonial home without

any reason.

6. The Family Court recorded the evidence of the

parties. The appellant examined himself as PW.1 and got

marked the documents as Ex.P1 and respondent examined

herself as RW.1 and no documents were marked. The

Family Court by judgment dated 6.2.2016 inter alia held

that the appellant has failed to prove the ground of cruelty

and desertion. Accordingly, the petition was dismissed.

In the aforesaid factual matrix the present appeal has

been filed.

7. We have heard the learned counsel for the appellant

and the respondent.

8. Learned counsel for the appellant submitted that the

relationship between the parties were cordial in the

beginning. It is contended that out of the wedlock a son

and a daughter have been born and they are with the

respondent. It is contended that the respondent used to

quarrel with the appellant for one or other reason. It is

MFA No.4876 of 2016

further contended that the appellant took the respondent

to Shivamogga on his transfer and there also the

respondent has not changed her attitude and she used to

quarrel with the appellant and his family members without

any reason. It is further contended that without informing

the appellant the respondent used to go out from the

home, which has caused mental cruelty to him. It is

further contended that the respondent used to insult the

appellant and his relatives. It is further contended that on

02.03.2008 the respondent has assaulted the appellant

and caused injury and without any reason she has left the

matrimonial home. The Family Court has erred in

appreciating the evidence on record which has resulted in

rejection of the petition filed by the appellant.

9. Per contra, learned counsel for the respondent

supports the judgment and decree of the Family Court. It

is submitted that the appellant has failed to prove the

grounds of cruelty and desetion before the Family Court

and the Family Court has rightly rejected the petition. It is

submitted that the respondent admits the factum of

MFA No.4876 of 2016

marriage and birth of the children, however, she denies

the allegation of cruelty and desertion.

10. We have considered the submissions made by

learned counsel for the appellant and respondent and have

perused the records.

11. The appellant has pleaded in his petition that the

respondent used to quarrel with the appellant on silly

reasons and she has threatened the appellant that she will

commit suicide. It is further pleaded that the respondent

used to insult the appellant and his family members. It is

further pleaded that the respondent used to leave the

matrimonial home without informing the appellant. The

said averments are reiterated in the evidence of PW.1. On

careful examination of the pleading and evidence of PW.1,

it is evident that the appellant has narrated various

instances of quarrels stating that the respondent used to

quarrel with the appellant and his family members on

many occasions. However, no specific instance of cruelty

is pleaded nor adduced any evidence in support of such

MFA No.4876 of 2016

ground. The appellant has pleaded that the respondent

has been treated by various Doctors and she is suffering

from Ego psychopathic. However, no expert evidence is

adduced nor any document is placed in support of the said

plea. The appellant has further pleaded that on 2.3.2008,

the respondent has assaulted him with vegetable cutter

and abused him in filthy language. In support of the said

plea the appellant has not placed an iota of evidence. The

allegations are vague and specific instances of cruelty are

neither pleaded nor proved. The allegations are nothing

but usual wear and tear in the family.

12. It will be useful to refer the decision of the Hon'ble

Supreme Court in N.G. DASTANE (Dr.) Vs.

S. DASTANE AIR (1975) SC 1534 wherein it is held at

paragraph 72 as follows:-

"72. It is true that the more serious the original

offence, the less grave need be the subsequent acts

to constitute a revival and in cases of cruelty, "very

slight fresh evidence is needed to show a resumption

of the cruelty, for cruelty of character is bound to

MFA No.4876 of 2016

show itself in conduct and behavior, day in and day

out, night in and night out". But the conduct of the

respondent after condonation cannot be viewed apart

from the conduct of the appellant after condonation.

Condonation is conditional forgiveness but the grant

of such forgiveness does not give to the condoning

spouse a charter to malign the other spouse. If this

were so, the condoned spouse would be required

mutely to submit to the cruelty of the other spouse

without relief or remedy. The respondent ought not

to have described the appellant's parents as "wicked"

but that perhaps is the only allegation in the letter

Ex.318 to which exception may be taken. We find

ourselves unable to rely on that solitary circumstance

to allow the revival of condoned cruelty".