Sri R Purushottam @ Kumar vs Smt Pushpa
2023 Latest Caselaw 2105 Kant

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                                    MFA No.6019 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 31ST 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.6019 OF 2016 (FC)

BETWEEN:

SR. R.PURUSHOTTAM @ KUMAR,
S/O K.V.RAJAMMA,
AGED ABOUT 35 YEARS,
R/AT NO.526, 4TH CROSS,
WEAVERS COLONY,
GOTTIGERE POST,
BANGALORE-560083.
                                           ...APPELLANT
(BY SMT. SANDHYA JANADAGNI, ADV.)

AND:

SMT. PUSHPA
W/O R.PURUSHOTTAM @ KUMAR,
AGED ABOUT 28 YEARS,
R/AT NO.170, ROSE GARDEN
JARAGANAHALLY,
J P NAGAR, 6TH PHASE,
BANGALORE - 560078
                                        ...RESPONDENT
(SERVED HELD SUFFICIENT)

     THIS M.F.A IS FILED UNDER SECTION 19(r) OF THE
FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE
DATED 29.06.2016 PASSED IN MC NO.111/2015 ON THE FILE
OF THE III ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU, DISMISSING THE PETITION FILED U/SEC.13(1)
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                                          MFA No.6019 of 2016




(ia) OF THE HINDU MARRIAGE ACT, FOR DISSOLUTION OF
MARRIAGE

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
29.03.2023,  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 29.06.2016 passed in M.C.No.111/2015 by which

the petition filed by the appellant seeking dissolution of

marriage on the grounds of cruelty and desertion has been

dismissed.

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

that the marriage of the appellant and respondent was

solemnized on 21.04.2004 at Sri Prasanna Prarthana

Mandir, Sampangiramanagar, Bengaluru as per the

customs and rituals. It is averred that after the marriage

the couple started living together along with the other

family members and the relationship was cordial for few

months. It is further averred that the respondent wife

started picking up quarrel with the appellant on flimsy

grounds. The appellant was of the hope that the situation

MFA No.6019 of 2016

would improve and the respondent would change her

behavior, however, the situation remained the same. It is

also pleaded that a female child has been born out of the

wedlock and when the appellant and his mother went to

see the child the respondent and her family members

abused the appellant and his mother and did not allow

them to see the child. The respondent has gone to the

extent of calling police and threatened that she would file

a complaint. The issue was resolved at the intervention of

police. However, the respondent did not change her

attitude and demanded for separate residence. It is

pleaded that during the said period the father of the

appellant has passed away and they have sustained heavy

loss in the business. In the month of October 2005 the

respondent left the matrimonial home along with the child

without informing the appellant. It is also pleaded that the

respondent has filed a police complaint against the

petitioner and his mother, wherein after the intervention

of the police, she returned back to her matrimonial home

and stayed only for a period of two days. Thereafter she

MFA No.6019 of 2016

left the matrimonial home without informing the appellant.

It is averred that the respondent filed a petition seeking

restitution of conjugal rights in M.C.No.1013/2009 before

the Family Court, the same was dismissed for want of

prosecution.

3. The Family Court has recorded the evidence of the

appellant. The appellant has examined himself as P.W.1

and got marked Exs.P-1 and P-2. The respondent, though

served, remained absent, hence, placed exparte. The

Family Court based on the evidence adduced by the

appellant, vide judgment dated 29.06.2016 dismissed the

petition filed by the appellant/husband. In the aforesaid

factual background this appeal has been filed.

4. Learned counsel for the appellant submits that the

family Court has erred in dismissing the petition filed

under Section 13 of the Hindu Marriage Act, 1955, seeking

dissolution of marriage on the ground of cruelty and

desertion. It is submitted that the appellant does not

dispute the relationship between the parties and the birth

of the child. It is further submitted that the respondent

MFA No.6019 of 2016

was of quarrelsome nature and use to abuse the appellant

and his mother, she has not allowed them to see the child

after the birth and she has left the matrimonial home

without informing the appellant. It is also submitted that

the family Court has erred in dismissing the petition on the

ground that there is delay in filing the petition under

Section 13 and without considering the matter on merit

and has therefore, sought to allow the appeal. Though the

notice of the above proceedings is served on the

respondent, she remained absent hence placed exparte.

5. We have heard the learned counsel for the appellant

and perused the material on record. The appellant is not

disputing the relationship between the parties and he does

not dispute the birth of the child. The appellant has

contended that the attitude of the respondent was quarrel

some and she has abused the appellant and his mother.

She used to quarrel on silly reasons which has caused

mental cruelty to the appellant. It is further contended

that the respondent gave birth to a female child and

thereafter she started living in her parental house. When

MFA No.6019 of 2016

the appellant and his mother went to see the child, the

respondent abused them and threatened to file complaint

and finally she has left the matrimonial home in October

2005 by deserting the appellant. On meticulous

appreciation of pleading and evidence on record, it is

evident that the respondent has left the matrimonial home

in the month of October 2005 and the petition for

dissolution of marriage on the ground of cruelty and

desertion was filed on 06.01.2015. There is delay of more

than 10 years in initiation of proceedings. The appellant

has contended that the respondent has filed a petition

under Section 9 for restitution of conjugal rights and the

same is registered as M.C.No.1013/2009 however, the

same was dismissed for want of prosecution.

6. It is further contended that the respondent initiated

proceedings under the provision of Domestic Violence Act

2005 in the year 2010. The appellant had knowledge

about these proceedings despite the same he has chosen

not to initiate any proceedings for a period of 10 years.

The appellant has not given any cogent and acceptable

MFA No.6019 of 2016

reasons for the delay in initiation of the proceedings before

the family Court. The family Court has rightly held that the

appellant is not entitled to any relief in view of Section

23(1)(d) of the Hindu Marriage Act, 1955 and has

dismissed the petition. We do not find any error in the

said finding.

7. The Family Court on meticulous appreciation of

material on record and law, has recorded a finding that the

petition is filed belatedly and therefore, required to be

rejected. The aforesaid finding does not suffer from any

infirmity warranting interference by this Court in the

present appeal.

8. For the aforesaid mentioned reasons we do not find

any merit in this appeal. The same fails and it is hereby

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: DMN