Karnataka High Court

Smt. Shilpa Rani vs Sri. Suresh H R on 13 March, 2023

Bench: Alok Aradhe, Vijaykumar A Patil

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                                     MFA No.5626 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 13TH 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.5626 OF 2016 (MC)

BETWEEN:

SMT. SHILPA RANI
W/O SURESH H.R.
D/O MANJAPPA AGARADAHALLI,
AGED ABOUT 32 YEARS,
OCC:HOUSE HOLD
R/O KALLIHAL VILLAGE,
BHADRAVATHI TALUK-577 301.
                                            ...APPELLANT

(BY SRI PRASAD B.S., ADVOCATE)

AND:

SRI. SURESH H R
S/O H.REVAPPA,
AGED ABOUT 41 YEARS,
OCC:AGRICULTURIST,
R/O HIREKOGALURU VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577 213.
                                         ...RESPONDENT

(BY SRI. K.B.CHANDRASHEKARA SWAMY, ADVOCATE )

       THIS MFA IS FILED UNDER SECTION 28(1) OF HINDU
MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED
20.04.2016 PASSED IN M.C.NO.03/2010 (OLD NO.06/2009) ON
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                                          MFA No.5626 of 2016




THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, CHANNAGIRI,
ALLOWING THE PETITION FILED U/S 13(1) (i-a) OF HINDU
MARRIAGE ACT.


     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 under Section 28(1) of the Hindu

Marriage Act, 1955, has been filed against the judgment

and decree dated 20.04.2016 passed in M.C.No.3/2010 by

the Senior Civil Judge and JMFC, Channagiri, by which the

petition filed by the respondent/husband seeking

dissolution of marriage, was allowed.

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

the appellant/wife and respondent/husband got married

on 13.11.2005 as per the Hindu customs and rituals. The

respondent/husband has averred that he is from a

respectable family and his father is a government servant.

It is further averred that the appellant/wife was happily

residing in the matrimonial home initially after the

MFA No.5626 of 2016

marriage and out of the wedlock a male child has been

born. It is further averred that the appellant/wife was not

discharging her marital obligations properly, she used to

quarrel with the respondent/husband and she had not

shown any interest in cooking. It is further averred that

mother of the respondent/husband is suffering from skin

disease, hence the appellant/wife used to disrespect her

and did not allow her to touch household articles. It is

further averred that the appellant/wife used to pick up

quarrel with the mother in law for silly reasons and as per

the wish of the appellant/wife the respondent/husband

had arranged separate house hoping that situation would

improve. However, the appellant/wife has not changed

her attitude. It is averred that appellant/wife threatened

the respondent/husband and his family members and later

went to her parental house without informing the

appellant/wife, but later she came back. The act of the

appellant/wife caused mental agony to the

respondent/husband. It is further averred that

appellant/wife is suffering from psychological problems,

MFA No.5626 of 2016

hence she was treated by the Psychiatrist and the Doctor

has opined that the brain of the appellant/wife is not

matured and was provided treatment. The appellant/wife

refused to follow the Doctor's advise, by not taking the

tablets. It is further averred that during second week of

February 2009 the appellant/wife left the matrimonial

home and started living with her parents and she refused

to rejoin the matrimonial home. It is further averred that

respondent/husband sent a letter to the appellant/wife

and her father on 15.04.2009 and got issued legal notice

dated 25.05.2009 to the appellant/wife, however, there

was no reply from the appellant/wife. It is further averred

that appellant/wife was harassing the

respondent/husband, thus the acts of the appellant/wife

amounts to cruelty.

3. The appellant/wife has entered appearance before

the Family Court and filed the statement of objections.

The appellant/wife has admitted the relationship and the

birth of the child out of the wedlock. The appellant/wife

has specifically denied the allegation of cruelty and

MFA No.5626 of 2016

averred that parents of the appellant/wife have given gold

ornaments to the respondent/husband. It is further

averred that it is the respondent/husband and his family

members, who have behaved rudely with the

appellant/wife. It is further averred that immediately after

the birth of the child, the respondent/husband's family

members used to get the household work done by the

appellant/wife and did not provide her with sufficient food.

Hence, she was not able to feed the new born baby. It is

further averred that respondent/husband and his family

members have harassed in order to forcefully send out

the appellant/wife from matrimonial home.

4. The Family Court on the basis of pleading and

evidence, framed the issues and recorded the evidence.

The respondent/husband examined himself as PW.1 and

other two witnesses and produced Exs.P1 to P13. The

appellant/wife examined herself as RW.1 and examined

other two witnesses and produced Ex.R1. The Family

Court based on the evidence adduced by the parties vide

judgment dated 20.04.2016 allowed the petition by

MFA No.5626 of 2016

dissolving the marriage between the appellant/wife and

the respondent/husband. In the aforesaid factual matrix

the present appeal has been filed.

5. We have heard learned counsel for the appellant/wife

and the respondent/husband and perused the material on

record.

6. Learned counsel for the appellant/wife submits that

there is no dispute with regard to the relationship between

the parties and the birth of the child. It is submitted that

the respondent/husband has filed petition before the

Family Court seeking dissolution of marriage on the

ground of cruelty however, he has failed to prove the

ground of cruelty by adducing proper evidence and

without considering the same the Family Court has

erroneously allowed the petition.

7. It is submitted that the Family Court has mainly

relied on the Ex.P12 (CD) and has come to the conclusion

that the appellant/wife has caused cruelty on the

respondent/husband. The said finding is perverse and

MFA No.5626 of 2016

contrary to the evidence on record and sought to set aside

the same.

8. Per contra learned counsel for the

respondent/husband supports the judgment of the Family

Court and contends that it is the appellant/wife, who has

caused mental cruelty on the respondent/husband by not

treating the respondent/husband and his family members

well. She always used to quarrel with the

respondent/husband and his family members. She has

failed to discharge the marital obligations and failed to act

as a dutiful wife.

9. On considering the rival submissions and meticulous

scrutiny of the evidence on record, it is evident that the

relationship between the parties and birth of the child is

not disputed. The appellant/wife in her pleading and

evidence has denied the allegation of cruelty by stating

that it is the respondent/husband, who has caused cruelty

on her and against her wish, she has been sent out from

the matrimonial home in the second week of February

2009. However, she has admitted that Sirigere Swamiji

MFA No.5626 of 2016

had held panchayat and sent the appellant/wife to the

matrimonial home and she has further deposed that when

she was not well, the respondent/husband has forced her

to write a letter as per his dictation, which has been

marked as Ex.P11. She has admitted the voice recorded

in CD which is produced and marked as Ex.P12 is her

voice, however, she has deposed that the recording of the

CD was forceful. The Family Court has recorded a finding

that the appellant/wife was in love with one Basavaraj and

wanted to marry him prior to this marriage. It has further

recorded that now at this stage there is no chance of

reunion between the appellant/wife and the

respondent/husband, hence proceed to dissolve the

marriage. The said finding the Family Court is perverse

for the reason that RW.1 in her cross-examination has

clearly stated that the recording of CD is by force and the

said act amounts to cruelty by the respondent/husband.

The Family Court has not appreciated this fact in its proper

perspective, hence it has committed error in coming to the

conclusion that the appellant/wife has admitted her voice

MFA No.5626 of 2016

in the CD and also admitted the writings at Ex.P11. Mere

admission of voice by RW.1 is not sufficient to come to the

conclusion that the said act of the appellant/wife amounts

to cruelty as the appellant/wife has clearly deposed that

the recording CD is by force. The Family Court has relied

on the electronic evidence i.e., Ex.P12 (CD). It is borne

out from the record that no certificate is made available as

contemplated under Section 65B(4) of the Indian Evidence

Act, 1872. For admissibility of electronic evidence, the

certificate contemplated under sub-Section (4) of Section

65B of the Evidence Act is mandatory and in the absence

of such a certificate the oral evidence adduced by the

party cannot be admissible as it is not in accordance with

the Act. It is useful to refer to decision of the Hon'ble

Supreme Court in the case of RAVINDER SINGH Vs.

STATE OF PUNJAB (2022) 7 SCC 581, wherein at

paragraphs 21 and 22 it is held as follows :-

"21. Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under Sections 65-A and 65-B of the

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MFA No.5626 of 2016

Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. The uncertainty of whether Anvar P.V v. P.K Basheer occupies the field in this area of law or whether Shafhi Mohammad v. State of H.P lays down the correct law in this regard has now been conclusively settled by this court by a judgment dated14-7-2020 in Arjun Panditrao Khotkar v.

Kailash Kushanrao Gorantyal wherin the court has held that: (Arjun Panditrao Khotkar, SCC pp.56 & 52, paras 61 & 73)

"61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V, and incorrectly 'clarified' in Shafhi Mohammad. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law"

(emphasis supplied)

22. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certificate requirement, for it to be admissible in the court of law. As rightly stated

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MFA No.5626 of 2016

above, oral evidence in place of such certificate, as is the case in present matter, cannot possibly suffice as Section 65-B(4) is a mandatory requirement of law."

10. The Family Court has given a finding that the

appellant/wife has produced a document which establishes

the fact that she has been treated by the psychiatrist. It

is evident from Ex.R1 that the treatment taken by the

appellant/wife is after the appellant/wife left the

matrimonial home. The said exhibit does not disclose that

the appellant/wife is mentally ill and in the absence of any

examination of doctor before the Family Court, the plea of

mental illness requires to be rejected. The Family Court

has given a finding that all attempts have been made by

the panchayat to reunite the appellant/wife and

respondent/husband and they have failed, thus there is no