Sri.K.N.Vijendra vs Smt. Asha
2023 Latest Caselaw 2022 Kant

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                                    MFA No.1722 of 2017




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 27TH 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.1722 OF 2017 (MC)

BETWEEN:

SRI K.N.VIJENDRA
S/O LATE K.NAGAPPA,
AGED ABOUT 43 YEARS,
OCC. AGRICULTURIST,
R/O. OPPORTUNITIES,
SRIRAM COMPLEX,
NEHRU ROAD, HOSANAGARA,
SHIVAMOGGA-577 418.
                                           ...APPELLANT
(BY SRI GANAPATHI C.V., ADV.)

AND:

SMT. ASHA
W/O K.N.VIJENDRA
D/O LATE SARVOTTHAMA,
AGED ABOUT 39 YEARS,
R/O 'PUSHPA NILAYA'
BIRANTHABAILU VILLAGE,
KASARAGODU DIST.,
KERALA-671 121.
                                        ...RESPONDENT
(BY SRI SRINIVAS BHAT, ADV.)

       THIS M.F.A IS FILED UNDER SECTION 28 OF HINDU
MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED
17.12.2016 PASSED IN MC NO.22/2011 ON THE FILE OF THE
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                                                   MFA No.1722 of 2017




ADDITIONAL         SENIOR      CIVIL      JUDGE    &     JMFC,   SAGAR,
DISMISSING THE PETITION FILED U/SEC.13(1) (ia) AND (ib)
OF THE HINDU MARRIAGE ACT.


        THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
23.03.2023,     COMING         ON      FOR    PRONOUNCEMENT          OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:

                               JUDGMENT

This appeal under Section 28 of the Hindu Marriage

Act, 1955, has been filed against the judgment and decree

dated 17.12.2016 passed in M.C.No.22/2011 by the Addl.

Senior Civil Judge and JMFC, Sagar, 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 marriage of the appellant and respondent was

solemnized on 21.05.2009 at Balambat Hall, Mangalore, as

per the customs and rituals. It is pleaded that the couple

lived together for sometime. The respondent was

quarrelsome and doubtful by nature and used to threaten

the appellant which caused mental harassment. It is

MFA No.1722 of 2017

averred that respondent has assaulted the appellant's

mother, made false allegations against his married sister.

It is further averred that the respondent compelled the

appellant to set up a separate house, despite appellant

agreeing to the same she had not changed her attitude.

She left the matrimonial home abruptly, deserting the

appellant and started living with her parents, which caused

mental shock to the appellant's father and he died on

24.05.2011. The respondent neither attended the funeral

ceremony nor did she see the dead body. All the aforesaid

acts of the respondent would amount to mental cruelty

and desertion.

3. The respondent has filed the statement of objection

by admitting the relationship between the parties.

However, she categorically denies the allegations of

desertion and cruelty. It is averred that they led happy

marital life for a period of six months in the joint family,

gradually the family members of the appellant started ill

treating the respondent by coercing her to bring money

and gold as dowry, they have treated her as a maid

MFA No.1722 of 2017

servant, made her to do all household work and did not

permit her to go out of the house. It is further averred

that respondent's parents made efforts to reconcile the

couple, which went in vain. It is pleaded that the appellant

and his family members have caused mental cruelty by

not providing groceries, left with no other alternative the

respondent was compelled to file a criminal case against

the appellant. The respondent never deserted the

appellant.

4. The Family Court has recorded the evidence. The

appellant examined himself as PW.1 and marked Exs.P1 to

P28. The respondent examined herself as RW.1. The

Family Court based on the evidence inter alia held that the

appellant has failed to prove the grounds of cruelty and

desertion, hence dismissed the petition vide judgment

dated 17.12.2016. 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

MFA No.1722 of 2017

parties. It is submitted that the Family Court has erred in

coming to the conclusion that pages 1 and 2 of Ex.P3 is

written by the respondent, however, the remaining pages

i.e., 3 to 6 were not written by the respondent. It is

further submitted that respondent has admitted in her

evidence about Ex.P3. The Family Court ought not to have

disbelieved the same. It is also submitted that Family

Court has not appreciated the pleading and evidence on

record in its proper perspective as the respondent has filed

various criminal cases against the appellant, which

amounts to cruelty.

6. Per contra learned counsel for the respondent

supports the judgment of the Family Court and contends

that appellant has failed to prove the grounds of cruelty

and desertion. It is submitted that appellant and his family

members have caused cruelty against the respondent,

thus she was forced to file said criminal complaints against

the appellant. It is the appellant's acts which forced the

respondent to leave the matrimonial home and reside with

MFA No.1722 of 2017

her parents, therefore, she prays for dismissal of the

appeal.

7. We have heard the learned counsel for the appellant

and the respondent and perused the material on record.

The appellant has made certain assertions in paragraphs 4

to 9 of the petition regarding cruelty and desertion. On

careful perusal of the pleadings, it is evident that the

appellant has asserted that the respondent was

quarrelsome, doubted the appellant, and was negligent

towards the appellant, which has caused cruelty. It is also

stated that the respondent has physically assaulted

appellant's mother and made false allegations against his

married sister. Despite the appellant arranging a separate

house at Hosanagara, she has not changed her behaviour

and deliberately she left the house and started living

separately with her parents, due to which the appellant's

father underwent mental shock and passed away on

24.05.2011. The aforesaid assertions are reiterated in the

evidence of PW.1 and he deposed that the respondent has

filed criminal case against the appellant.

MFA No.1722 of 2017

8. On meticulous appreciation of pleading and evidence

on record it is evident that the appellant has made only

vague allegations, without pointing out any specific

instances of cruelty. The person who comes to the Court

making allegations of cruelty is required to discharge the

burden by pleading and by producing cogent and

corroborative evidence to the effect that he is unable to

lead marital life with the respondent, due to such acts of

cruelty.

9. It would be useful to refer to the decision of

N.G. DASTANE (DR) Vs. S. DASTANE, (1975) 2 SCC 326

wherein para 32 reads as follows :-

"The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse."

MFA No.1722 of 2017

10. In the instant case, the appellant failed to discharge

the said burden and failed to prove the grounds of cruelty.

The appellant has produced exhibits to contend that

respondent has filed false criminal cases against the

appellant, however neither there is pleading in the petition

to that effect nor there is any evidence to substantiate

that initiation of criminal cases are false and malicious.

Hence in the absence of any finding by the criminal court,

mere initiation of proceedings ipso facto does not amount

to mental cruelty, which requires legitimacy of conduct to

be relied on.

11. We have meticulously perused the contents and

handwriting of Ex.P3, it is evident that the handwriting

contained in pages 1 and 2 are different from that of

remaining pages and there is contradictory versions in

Ex.P3. Hence the Family Court has rightly disbelieved the

aforesaid exhibit P3, therefore, we do not find any error in

the said finding. The pleading and evidence adduced on

behalf of the appellant is not sufficient to come to the

conclusion that appellant has proved the ground of cruelty.

MFA No.1722 of 2017

Hence we do not find any error in the finding recorded by

the Family Court.

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

Supreme Court in DEBANANDA TAMULI V. KAKUMONI

KATAKY, (2022) 5 SCC 459, wherein at para 7 it has

elaborated that the deserted spouse requires to prove that

there was compelling motive, to come to a reasonable

conclusion that the factum of separation was not

consensual on lines of ending cohabitation.

13. The petition is filed on the ground of desertion,

however, the appellant has not pleaded on which date the

respondent has left the matrimonial home and there is no

pleading and evidence to the effect that the respondent

has left the matrimonial home with an intention to end the

cohabitation. In the absence of any proper pleading and

evidence to prove the ground of desertion, to the effect

that respondent left the matrimonial home two years

immediately preceding the presentation of the petition, the

marriage cannot be dissolved on the ground of desertion.

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MFA No.1722 of 2017

Hence the appellant has failed to prove the ground of

desertion.

14. The Family Court has recorded a finding that

appellant has failed to prove the grounds for dissolution of

marriage on the grounds of cruelty and desertion. The

aforesaid finding do not suffer from any infirmity

warranting interference by this Court in the present

appeal.

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

merit in this appeal. The same fails and is hereby

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: DMN