Smt Sharadamma vs Sri Holalu Sathyanarayana
2023 Latest Caselaw 2023 Kant

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                                     MFA No.438 of 2013




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.438 OF 2013 (MC)

BETWEEN:

SMT. SHARADAMMA
@ KALAMMA
W/O SRI HOLALU SATHYANARAYANA,
AGED ABOUT 36 YEARS,
HOME MAKER
C/O HALEMANE KENCHAPPA,
JOSHI LINGAPURA VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DIST.-577 002.
                                           ...APPELLANT
(BY SRI G.S.BALAGANDHAR, ADV.)

AND:

SRI HOLALU SATHYANARAYANA
S/O LATE HANUMANTHAPPA
AGED ABOUT 43 YEARS,
UNEMPLOYEE
R/O UPPARAGERE 12TH WARD
HARAPANAHALLI,
DAVANAGERE DIST.-577002.
                                        ...RESPONDENT
(BY SRI C.P.PUTTARAJU, ADV.)

     THIS M.F.A IS FILED UNDER SECTION 28(1) OF HINDU
MARRIAGE ACT R/W SEC.19(1) OF THE FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED 01.09.2012
PASSED IN MC NO.14/2010 ON THE FILE OF THE II
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                                               MFA No.438 of 2013




ADDITIONAL SENIOR CIVIL JUDGE, DAVANGERE, ALLOWING
THE PETITION FILED U/SEC.13(1) (i-a) AND (i-b) 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 19(1) of the Family Courts

Act, 1984, R/w Section 28(1) of the Hindu Marriage Act,

1955 has been filed against the judgment and decree

dated 01.09.2012 passed in M.C.No.14/2010 by the Senior

Civil Judge, Harapanahalli, by which the petition filed by

the respondent seeking dissolution of marriage, was

allowed.

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

the marriage of the appellant and respondent was

solemnized on 05.03.1999 at Joshilingapura Village as per

Hindu rites and customs. It is averred that the parties led

happy married life for a period of one year and thereafter

appellant/wife left the matrimonial home without any

reason, went back to her parental house and never

returned. The respondent's efforts to bring her back went

MFA No.438 of 2013

in vain. It is further averred that the appellant has filed

petition under Section 125 of the Cr.P.C., a false complaint

which is registered as C.C.No.220/2007 and also initiated

proceedings under the provisions of Protection of Women

from Domestic Violence Act, 2005, the same was

registered as Crl.Misc.No.67/2008 against the respondent.

It is also averred that the said case filed against the

respondent has resulted in acquittal. The act of the

appellant deserting willfully and filing criminal cases has

caused mental cruelty to the respondent.

3. The appellant has filed statement of objections in

which the allegations of cruelty and desertion are denied.

It is averred that appellant has led married life for a period

of three years and the respondent and his family members

gave physical and mental torture, abused her in filthy

language as she could not beget children. It is further

averred that the respondent and his family members have

not provided proper food, clothing, medicine and have

driven out the appellant from the matrimonial home with

an intention to perform the marriage of the respondent

MFA No.438 of 2013

with another woman. It is also averred that the appellant

is ready to join the company of the respondent and lead

married life. The cases are filed with an intention that the

respondent would come for conciliation and take appellant

to matrimonial home.

4. The Family Court recorded the evidence of the

parties. The appellant examined herself as RW.1, other

two witnesses as RWs.2 and 3 and no documents were

marked. The respondent examined himself as PW.1,

examined other two witnesses as PWs.2 and 3 and marked

Exs.P1 to P17. The Family Court by the judgment dated

01.09.2012 has allowed the petition. In the aforesaid

factual matrix the present appeal is filed.

5. Learned counsel for the appellant submits that

marriage between the parties was solemnized as per the

customs and practices, the appellant has led married life

for quite some time and discharged her marital

obligations. It is the respondent and his family members

who have caused physical and mental harassment to the

appellant. It is submitted that the Family Court has erred

MFA No.438 of 2013

in appreciating the oral and documentary evidence on

record. The Family Court has given an incorrect finding

that parties are living separately for more than nine years,

which amounts to cruelty and desertion and further the

family court has erred in coming to the conclusion that the

respondent's acquittal in criminal case amounts to cruelty.

It is further submitted that the family court has not

considered the evidence on record in its proper

perspective and it has resulted in erroneous finding.

Therefore, the present appeal.

6. Per contra learned counsel for the respondent

submits that there is no dispute with regard to the

relationship between the parties. It is submitted that the

appellant has stayed in the matrimonial home only for a

period of one year, without any reason she has deserted

the respondent and filed criminal cases, which caused

mental cruelty to the respondent and marriage has been

broken irretrievably.

7. We have heard the learned counsel for the parties

and perused the evidence on record.

MFA No.438 of 2013

8. On close scrutiny of pleading and evidence on record

the parties have not disputed the relationship and also do

not dispute that the appellant has initiated various

proceedings against the respondent. The petition

averments disclose that the appellant has led marital life

for a period of one year and thereafter left the matrimonial

home and started living with her parents, the said fact is

also admitted by RW.1 in her evidence that she is residing

with her parents since 9 years. This establishes the fact

that the appellant has led married life only for a period of

one year and the Family Court has given the finding that

without any reasons the appellant has left the matrimonial

home. We do not find any error in the aforesaid finding.

The appellant as well as RWs.2 and 3, who are the

mediators, have admitted that the appellant has filed

criminal case in C.C.No.220/2007 for the offence under

Section 498A of IPC and the same has resulted in acquittal

of the respondent. The appellant has filed a private

complaint alleging the demand of dowry by the

respondent/husband which has also resulted in acquittal

MFA No.438 of 2013

and the Court has recorded a finding that there is no

demand of dowry. The initiation of the criminal

proceedings by the appellant itself amounts to cruelty as

the said proceeding has resulted in acquittal, as laid down

by the Hon'ble Supreme Court in the case of RANI

NARASHIMHA SHASTRY Vs. RANI SUNEELA RANI (2020) 18

SCC 247.

9. The appellant has initiated proceedings against the

respondent under Section 125 of Cr.P.C. claiming

maintenance, and under the provisions of The Protection

of Women from Domestic Violence Act, 2005. In all the

said proceedings the allegations of cruelty and demand of

dowry are the grounds urged in support of her contentions

and these proceedings are admitted by both the parties.

The appellant has admittedly stayed with the respondent

approximately for a period of one year and thereafter, she

has not made any efforts to join the matrimonial home by

either sending legal notice or by filing a petition under

Section 9 of the Hindu Marriage Act, 1955 for restitution of

conjugal rights. In the absence of any such attempt, a

MFA No.438 of 2013

clear inference can be drawn based on the pleading and

evidence that the appellant has left the matrimonial home

without any cause and the said act of the appellant

amounts to desertion and cruelty.

10. The Family Court has recorded a finding that the

respondent has proved the grounds of cruelty and

desertion. The aforesaid finding does not suffer from any

infirmity warranting interference by this Court in the

present appeal.

For the aforementioned reasons, there is no merit in

appeal and is hereby dismissed.

No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: DMN