Smt Anupama @Anuroopa vs Hemaraju N
2023 Latest Caselaw 1943 Kant

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                                       MFA No.338 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 21ST 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.338 OF 2016 (FC)

BETWEEN:

SMT. ANUPAMA @ ANUROOPA,
W/O SRI HEMARAJU,
AGED ABOUT 27 YEARS,
N.KATTETHIMMANNAHALLI,
CHIKKAMAGALUR TALUK & DIST.-577101.
                                             ...APPELLANT
(BY SRI S.V.PRAKASH, ADV.)

AND:

HEMARAJU N.
S/O SRI NIRVANEGOWDA,
AGED ABOUT 32 YEARS,
NARASIPURA VILLAGE,
LEKKA HOBLI,
CHIKKAMAGALURU TALUK-577101.
                                           ...RESPONDENT
(BY SRI K.S.GANESH, ADV.)

       THIS M.F.A IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED
19.11.2015 PASSED IN MC NO.205/2013 ON THE FILE OF THE
PRL. JUDGE, FAMILY COURT AT CHIKKAMAGALURU, ALLOWING
THE PETITION FILED U/S. 13(1) (i-a) (i-b) OF THE HINDU
MARRIAGE ACT.
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                                             MFA No.338 of 2016




     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
15.03.2023,     COMING   ON     FOR      PRONOUNCEMENT      OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:


                         JUDGMENT

This appeal under Section 19(1) of the Family Courts

Act, 1984 along with Section 28 of the Hindu Marriage Act,

1955, has been filed against the judgment and decree

dated 19.11.2015 passed in M.C.No.205/2013 on the file

of Principal Judge, Family Court at Chikkamagaluru, by

which the petition filed by the respondent under Section

13(1)(ia)(ib) and (iii) of the Hindu Marriage Act, 1955 (for

short 'the Act') seeking dissolution of marriage on the

ground of cruelty, desertion and unsoundness of mind has

been allowed.

2. Facts leading to filing of this appeal briefly stated are

that the marriage of the appellant and respondent was

solemnized on 13.03.2011 at Banashankari Kalyan

Mantap, Belur Road, Halebeedu, as per the Hindu Rites

and Customs. It is averred that the respondent is working

in Indian Army and both the parties lived together for a

MFA No.338 of 2016

period of 45 days in the matrimonial home and thereafter,

the respondent rejoined the work and left the appellant in

his parents house. It is further averred that appellant

used to speak over the phone with strangers hours

together and when the parents of the respondent

enquired, she gave evasive replies. It is also averred that

in June 2011 the appellant left the house of the

respondent on the pretext of attending M.A. examination

and without attending the examination she was with one

Ashoka S/o. Siddegowda, her matrimonial uncle's son. On

enquiry the appellant has informed that she had an affair

with the said Ashoka and intended to marry him, however,

her parents have not agreed for the same. It is pleaded

that on 06.09.2011 around 20 to 30 family members of

the appellant came to the house of the respondent and

caused nuisance. After knowing the real fact they left the

respondent's house, hence the respondent has got issued

legal notice to the appellant on 09.09.2011 calling upon

her to give consent for divorce. It is further pleaded that

vague reply has been sent and false criminal case was

MFA No.338 of 2016

filed for demand of dowry and that the attitude of the

appellant was intolerable causing mental torture,

harassment and cruelty to the respondent.

3. The appellant has filed statement of objections

before the Family Court admitting the factum of marriage

and also admitted that respondent is working in Indian

Army. It is averred that respondent is making false and

baseless allegations against the appellant. It is also

averred that parents of the respondent insisted and

arranged the marriage, as both the families knew each

other. It is the father of the respondent, who was in the

habit of suspecting and dictating terms to the appellant,

which has caused physical and mental harassment to the

appellant. It is pleaded that the appellant tried her best to

lead happy married life. However, the respondent and his

parents did not allow her to live happily, hence she was

compelled to file criminal case. Respondent's parents

have insisted the respondent to file this petition with an

intention to get the respondent married with another

woman.

MFA No.338 of 2016

4. The Family Court has recorded the evidence. The

respondent examined himself as PW.1 and got marked

Exs.P1 to P7. The appellant examined herself as RW.1

and got marked Exs.R1 to R4. The Family Court based on

the evidence adduced by the parties vide judgment dated

19.11.2015 allowed the petition filed by the

respondent/husband. In the aforesaid factual background

this appeal has been filed.

5. Learned counsel for the appellant submits that

Family Court has allowed the petition without application

of mind and is contrary to the material on record. It is

submitted that Family Court has not considered the oral

and documentary evidence in its proper perspective, which

has resulted in miscarriage of justice. It is further

submitted that Family Court has failed to appreciate that

respondent has failed to prove the grounds for dissolution

of marriage as required under Section 13 of the Act and

without making paramour party to the proceedings.

MFA No.338 of 2016

6. The Family Court has accepted the allegation of

adultery, which has resulted in giving incorrect finding. It

is also submitted that appellant lived with the respondent

only for about 45 days and without examining the parents

of the respondent, the Family Court has believed the oral

statement of the respondent and erroneously come to the

conclusion that appellant went to Bangalore along with one

Ashoka on the pretext of writing M.A. Examination, the

said finding is not supported by evidence, however the

same has been relied by the Family Court and allowed the

petition. It is submitted that Family Court was not

justified in holding that since respondent has been

acquitted in criminal case registered against him, itself

cannot be construed as a ground of cruelty and desertion.

Learned counsel placed reliance on the decision of Hon'ble

Supreme Court in SMT. CHANDRA MOHINI SRIVASTAVA Vs.

SHRI AVINASH PRASAD SRIVASTAVA AND ANOTHER, AIR

1967 SC 581 and the decision of this Court in HARSHITHA @

MANJULA Vs. HARISH LAWS(KAR)-2013-12-25.

MFA No.338 of 2016

7. Per contra, learned counsel for the respondent

supports the impugned judgment and decree passed by

the Family Court and submits that respondent has placed

sufficient material before the Family Court and on

appreciation of evidence on record the Family Court has

rightly come to the conclusion that appellant has caused

mental cruelty and deserted the respondent without any

cause and thus seeks to dismiss the appeal.

8. We have heard the learned counsels for the parties

and perused the materials on record. On meticulous

scrutiny of the evidence on record there is no dispute with

regard to the relationship between the parties and it is

also not disputed that respondent has rejoined the Indian

Army after 45 days of marriage. PW.1 in his oral

testimony has deposed that appellant used to talk to one

Ashoka, who is none other than her maternal uncle's son

and that she had an affair with him. It is further deposed

that with the intervention of well wishers the things were

set right, however, the appellant has not changed her

attitude and subsequently she has filed false criminal case

MFA No.338 of 2016

against him and his parents, which has resulted in

acquittal.

9. The testimony of PW.1 is nothing but reiteration of

averments made in the petition, the respondent has not

placed any independent witness to substantiate the

allegation of appellant's affair with one Ashoka. Oral

testimony of PW.1 is based on the inputs received from his

parents, the respondent has neither examined his parents

nor examined any independent witness, who have

intervened and set right the things as claimed by the

respondent. The respondent has not made aforesaid

Sri Ashoka as party to the proceedings before the Family

Court.

10. In the absence of any cogent and acceptable

evidence of adulterous life of the appellant, it would be

difficult to believe the oral testimony of the respondent.

The Family Court has given the finding that appellant went

to Bangalore on the pretext of attending M.A.

Examination, however, she went with one Ashoka, and she

MFA No.338 of 2016

has admitted that she has not attended the examination.

The said admission of RW.1 in her cross-examination is

not sufficient to establish the factum of adulterous life.

Even though appellant went to Bangalore and did not

attend the examination, it cannot be construed that the

appellant had an affair with aforesaid Ashoka, which

caused mental cruelty to the respondent/husband. The

Family Court has grossly erred in appreciating the

evidence on record and consequently allowed the petition

filed by the husband.

11. The respondent has asserted that the criminal case

filed against him has resulted in acquittal, clearly

establishes that false criminal case has been filed and the

same amounts to mental cruelty. It is well settled law

that mere acquittal in criminal case ipso facto cannot be

construed as mental cruelty, unless a clear finding is

recorded by the criminal Court that initiation of

proceedings is malicious or false. The standard of proof

required in criminal case to prove the guilt of the accused

should be beyond all reasonable doubt compared to the

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MFA No.338 of 2016

standard of proof required in civil proceedings. Hence

acquittal in criminal proceedings cannot be construed as

mental cruelty.

12. For the aforementioned reasons it is evident that the

respondent has failed to prove the grounds of cruelty and

desertion to grant decree of dissolution of marriage.

However, the Family Court has not appreciated the

aforesaid aspects of the matter and has come to an

incorrect conclusion.

13. For the aforesaid mentioned reasons the impugned

judgment and decree dated 19.11.2015 passed in

M.C.No.205/2013 is set aside.

In the result the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: DMN