Karnataka High Court

Sri. T.M. Vishwas vs Smt. Sunitha on 28 March, 2023

Bench: Alok Aradhe, Vijaykumar A Patil

                                       -1-
                                                   MFA No. 2335 of 2016




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                 DATED THIS THE 28TH DAY OF MARCH, 2023

                                   PRESENT
                    THE HON'BLE MR JUSTICE ALOK ARADHE
                                      AND
               THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
                         M.F.A.NO.2335 OF 2016 (FC)
             BETWEEN:

                SRI. T.M. VISHWAS
                S/O MEGHANATH.T.M
                AGED ABOUT 37 YEARS,
                PRESENTLY RESIDING AT NO.3254,
                GROUND FLOOR, GIRINAGAR, 1ST PHASE,
                1ST CROSS, BSK III STAGE,
                BENGALURU - 560 085

                FORMERLY RESIDING AT
                KANASU NILAYA,
                VIDYA NAGAR
Digitally       KOPPA,
signed by       CHIKKAMAGALURU DISTRICT
GAYATHRI N                                                 ...APPELLANT
Location:
HIGH         (BY SRI. SURYA KANTH C S, ADVOCATE)
COURT OF
KARNATAKA
             AND:

                SMT. SUNITHA
                W/O T.M.VISHWAS
                D/O LATE. KITTA POOJARI
                AGED ABOUT 32 YEARS,
                RESIDING AT SRI.SHANKAR NILAYA
                VARANGA POST
                KARKALA TALUK
                UDUPI DISTRICT
                                                         ...RESPONDENT
                                   -2-
                                              MFA No. 2335 of 2016




(BY SRI. H PAVANA CHANDRA SHETTY, ADVOCATE)

     THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURT ACT, PRAYING TO i) SET ASIDE THE JUDGMENT
PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT,
CHIKKAMAGALURU IN M.C.NO.233/2013 DATED 29.01.2016
DISMISSING THE PETITION FOR DIVORCE FILED BY THE
APPELLANT; ii) GRANT THE DECREE OF DIVORCE TO THE
APPELLANT BY DISSOLVING THE MARRIAGE OF THE
APPELLANT SOLEMNIZED WITH RESPONDENT ON 26TH
NOVEMBER 2007; iii) GRANT SUCH OTHER RELIEF OR RELIEFS
AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN THE
CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE
AND EQUITY.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
                            JUDGMENT

Sri.Surya Kanth C.S., learned counsel for the

appellant.

Sri.H.Pavana Chandra Shetty, learned counsel for the

respondent.

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

Act, 1984 has been filed against the judgment and decree

dated 29.01.2016 passed by the Family Court by which

the petition filed by the appellant/husband seeking

dissolution of marriage on the ground of desertion has

been dismissed.

MFA No. 2335 of 2016

2. The facts giving rise to filing of this appeal

briefly stated are that the marriage between the parties

was performed on 26.11.2007. It is the case of the

appellant/husband that the parties resided in the

matrimonial home for a period of six months and out of

wedlock, a daughter, namely, Vishmay was born.

3. The appellant filed a petition on 08.12.2011

seeking dissolution of marriage inter alia on the ground

that the parties resided together for a period of six months

after their marriage. It was further pleaded that many

panchayaths were also held in which the respondent/wife

was advised to join the matrimonial home. However,

respondent has deserted the appellant without any valid

reason.

4. The respondent/wife entered appearance

through the counsel and filed objections, in which inter alia

the relationship between her and the appellant was

admitted. It was also admitted that the daughter was born

from the wedlock. It was further pleaded that the

MFA No. 2335 of 2016

appellant used to pick up quarrel with her and used to ill-

treat her. It was also averred that the respondent during

her stay in the matrimonial home was not provided with

proper food and clothing. It was also pleaded that the

appellant was forcing her to give her consent to perform

second marriage.

5. The appellant in order to prove his case got

examined himself as PW-1 and one Vinayaka as PW-2 and

exhibited 32 documents, which were marked as Exs.P-1 to

P-32. The respondent examined herself as RW-1. The

family Court vide judgment and decree dated 29.01.2016

has dismissed the petition filed by the appellant inter alia

on the ground that the appellant has failed to prove the

ground of desertion. Hence, this appeal.

6. Learned counsel for the appellant fairly

admitted that there is no pleading in the petition filed by

the appellant under Section 13 of the Act that the parties

have been residing separately for continuous period of two

years immediately preceding the presentation of the

MFA No. 2335 of 2016

petition. However, it is submitted that from the material

available on record, it is evident that the parties are

residing separately from eight years and marriage

performed between them are irretrievably broken as there

are no chances of reunion.

7. On the other hand, learned counsel for the

respondent has invited the attention of this Court to the

cross examination of the appellant (PW-1) and has

submitted that the appellant has admitted that he is not

ready to stay with the respondent. It is further submitted

that the family Court on the basis of the meticulous

appreciation of material on record has held that the

ground for dissolution of marriage is not made out.

8. We have considered the submissions made on

both sides and have perused the record. A five Judge

Bench of the Supreme Court in LACHMAN UTAMCHAND

KIRPALANI Vs. MEENA @ MOTA1 which has been

followed in DEBANANDA TAMULI Vs. KAKUMONI

AIR 1964 SC 40

MFA No. 2335 of 2016

KATAKY2 while dealing with the expression 'desertion',

has held that desertion means the intentional

abandonment of the spouse by the other without the

consent of the other and without a reasonable cause. It

has further been held that deserted spouse must prove

that there is a factum of separation and there is an

intention on the part of deserting spouse to bring the

cohabitation to a permanent end. It has also been held

that in other words, there should be animus deserendi on

the part of the deserting spouse.

9. The issue whether the ground of desertion is

proved or not, depends on the facts of each case and has

to be dealt with on the basis of pleadings and evidence on

record. Section 13(1)(b) of the Hindu Marriage Act, 1955

reads as under:

13(1)(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in

2022 SCC ONLINE SC 187

MFA No. 2335 of 2016

abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment;

10. Thus, parties seeking dissolution of marriage is

required to prove that he/she has been deserted for

continuous period of two years immediately preceding

presentation of petition. Parties are also required to prove

animus/intention of the other spouse to leave the

matrimonial home with an intention to bring the

cohabitation to permanent end.

11. In the instant case, in the petition under

Section 13 of the Act, the appellant has not disclosed the

date on which the respondent has allegedly left the

matrimonial home and the petition seeking dissolution of

marriage was filed on 08.12.2011. However, the same