Smt T Roopa @ Meenakshi vs Sri Manjunatha A B
2023 Latest Caselaw 1956 Kant

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                                    MFA No.3988 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 23RD 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.3988 OF 2016 (FC)

BETWEEN:

SMT. T. ROOPA @ MEENAKSHI
W/O MANJUNATHA A. B.
AGED ABOUT 26 YEARS
HOUSE WIFE
R/O NALKUND VILLAGE
DAVANAGERE TALUK
DAVANAGERE DIST-577002.
                                           ...APPELLANT
(BY SRI N.K.SIDDESWARA, ADV.)

AND:

SRI MANJUNATHA A. B.
S/O LATE EREHALLI BASAPPA
AGED ABOUT 46 YEARS
R/O KOLAHALU VILLAGE
BHARAMASAGARA HOBLI
CHITRADURGA TALUK AND DIST-577701
                                        ...RESPONDENT
(BY SRI R.SHASHIDHARA, ADV.)

       THIS M.F.A IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE
DATED 26.02.2016 PASSED IN MC NO.125/2015 ON THE FILE
OF THE JUDGE, FAMILY COURT AT DAVANGERE, DISMISSING
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                                             MFA No.3988 of 2016




THE PETITION FILED U/SEC. 13(1) (1a) & (1b) OF THE HINDU
MARRIAGE ACT, 1955.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
20.03.2023,    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, has been filed against the judgment and decree

dated 26.02.2016 passed in M.C.No.125/2015 by the

Judge, Family Court, Davanagere, by which the petition

filed by the appellant/wife seeking decree of divorce, was

dismissed.

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

the marriage of appellant and respondent was solemnized

on 06.05.2012 as per the Hindu customs and traditions at

Sri Taralabalu Brihanmath, Sirigere, Chitradurga. Out of

the wedlock a female child was born. It is averred that

the respondent has caused physical and mental

harassment to the appellant. It is further averred that on

24.05.2015, the respondent had assaulted the appellant

MFA No.3988 of 2016

and caused physical and mental cruelty on the appellant.

It is also averred that the respondent used to insist for

transfer of family properties of the appellant in his name.

It is pleaded that the respondent has not changed his

attitude despite advise of the elders, the act of the

respondent has caused cruelty and the respondent has

deserted the appellant without any reason.

3. The respondent has entered appearance before the

Family Court and filed the statement of objections. The

respondent has admitted the relationship between the

parties and the birth of the female child, however, he

denies the allegation of physical, mental cruelty, desertion

and sought to dismiss the petition.

4. The Family Court recorded the evidence. The

appellant examined herself as PW.1 and another witness

as PW.2 and marked Exs.P1 to P2. The respondent

examined himself as RW.1 and another witness as RW.2.

The Family Court based on the evidence adduced by the

parties vide judgment dated 26.02.2016 inter alia held

that the petitioner has failed to prove the ground of cruelty

MFA No.3988 of 2016

and desertion. Accordingly the petition was dismissed the

petition In the aforesaid factual matrix the present appeal

has been filed.

5. Learned counsel for the appellant 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

parties are residing separately for more than eight years.

It is further submitted that the respondent was in the

habit of quarreling with the appellant and on 24.05.2015,

the respondent assaulted the appellant and threatened her

with dire consequences. It is also submitted that due to

the harassment, the father of the appellant has passed

away as the conduct of the respondent was intolerable.

It is submitted that the Family Court has not considered

the evidence on record in its proper prospective and has

given incorrect finding, which has resulted in dismissal of

the petition.

6. Learned counsel for the appellant relies on the

decision of the Hon'ble Supreme Court in JOYDEEP

MAJUMDAR Vs. BHARTI JAISWAL MAJUMDAR AIR 2021 SC 1165 and

MFA No.3988 of 2016

RANI NARASIMHA SASTRY Vs. RANI SUNEELA RANI AIR Online 2019

SC 2063.

7. Per contra learned counsel for the respondent

supports the judgment of the Family Court and contends

that it is the appellant who has voluntarily left the

matrimonial home without any reason. It is submitted

that the respondent has not caused any physical or mental

cruelty as alleged by the appellant and sought dismissal of

the appeal.

8. We have heard learned counsel for the appellant and

the respondent and perused the material on record. The

parties have not disputed the relationship and birth of the

female child. The case of the appellant is that the

respondent has caused physical and mental cruelty during

her stay in the matrimonial home and on 24.05.2015 at

about 8.00 p.m. the respondent has assaulted and

threatened the appellant with dire consequences. The

allegations made in the petition are vague. Except for a

specific instance of 24.05.2015, no other instances are

pleaded nor proved. Insofar as the alleged assault and

MFA No.3988 of 2016

threat on 24.05.2015 by the respondent it is only a self

serving statement of the appellant. The appellant has

neither adduced any independent witnesses, who have

witnessed the said incident, nor has given any justification

for not filing the police complaint against the respondent.

The appellant has deposed that the respondent used to

insist for transfer of family properties of wife to his name

which was not acceded to, was the cause for cruelty. The

respondent in his evidence has specifically denied the said

allegation and in the absence of any evidence on record to

substantiate the said assertion, we do not find any reason

to disbelieve the finding recorded by the Family Court.

The decisions in JOYDEEP MAJUMDAR and RANI NARASIMHA

cited supra by the appellant has no application to facts and

circumstances of the case, as the issue of cruelty is to be

decided in the facts and circumstances of each case. In

the absence of any cogent and acceptable evidence of

cruelty on record, the decree of divorce on the ground of

cruelty cannot be granted on vague averments.

MFA No.3988 of 2016

9. The Family Court on meticulous appreciation of evidence

on record has recorded a finding that the appellant has failed

to prove the grounds for dissolution of marriage i.e., cruelty

and desertion. The findings recorded by the Family Court do

not suffer from any infirmity warranting interference by this

Court in the present appeal.

10. For the aforementioned reasons, we do not find any

merit in this appeal. The same fails and is hereby dismissed.

No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: DMN