Karnataka High Court
Smt R Bhagya vs Sri S A Gangadhar on 29 May, 2023
Bench: Alok Aradhe, Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MFA NO.7124 OF 2016 (FC)
C/W
MFA NO.7637 OF 2016 (FC)
IN MFA NO.7124/2016:
BETWEEN:
SMT R BHAGYA,
W/O S A GANGADHAR,
D/O N RAMAIAH,
AGED ABOUT 31 YEARS
R/AT 1ST MAIN ROAD,
5TH "A"CROSS, HANUMANTHAPURA,
TUMAKURU TOWN-572 101. ... APPELLANT
(BY SRI C.S.MADHU, ADVOCATE)
AND:
SRI S A GANGADHAR,
S/O LATE ANNEGOWDA,
AGED ABOUT 44 YEARS,
R/AT SURANAHALL VILLAGE,
MUGULUVALLI POST,
CHIKKAMAGALUR DISTRICT - 577101,
2
NOW RESIDING BEHIND
VIDYAVAHINI COLLEGE,
13TH LINK ROAD, KRISHNA NAGAR,
SIT, TUMKUR CITY.
... RESPONDENT
(BY SRI PATEL D KAREGOWDA, ADVOCATE)
THIS MFA IS FILED U/S.19(1) OF THE FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE
DATED 06.09.2016 PASSED ON MC NO.5/14 ON THE FILE
OF THE PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU,
PARTLY ALLOWING THE PETITION FILED U/S.25 OF THE
HINDU MARRIAGE ACT 1955.
IN MFA NO.7637/2016:
BETWEEN:
SMT R BHAGYA,
W/O S A GANGADHAR,
D/O N RAMAIAH,
AGED ABOUT 31 YEARS,
R/AT 1ST MAIN ROAD,
5TH "A"CROSS,
HANUMANTHAPURA,
TUMAKURU TOWN. ... APPELLANT
(BY SRI C.S.MADHU, ADVOCATE)
AND:
SRI S A GANGADHAR,
S/O LATE ANNEGOWDA,
AGED ABOUT 43 YEARS,
R/AT SURANAHALL VILLAGE,
MUGULUVALLI POST,
3
CHIKKAMAGALUR DISTRICT - 577101,
NOW RESIDING BEHIND
VIDYAVAHINI COLLEGE,
13TH LINK ROAD, KRISHNA NAGAR,
SIT, TUMKUR CITY. ... RESPONDENT
(BY SRI PATEL D KAREGOWDA, ADVOCATE)
THIS MFA IS FILED U/S 19(1) OF THE FAMILY
COURTS ACT, AGAINST THE JUDGMENT AND DECREE
DATED 31.08.2016 PASSED IN M.C.NO.36/2013
(M.C.NO.135/2012) ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, TUMAKURU, DISMISSING THE
PETITION FILED U/S 13(i-a) OF THE HINDU MARRIAGE
AC`T FOR DISSOLUTION OF MARRIAGE.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 23.05.2023, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANANT
RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
JUDGMENT
MFA. No.7124/2016 is filed by the respondent/wife in
M.C.No.5/2014 on the file of Family Court, Tumkur. In
terms of the impugned judgment and decree dated
06.09.2016, the Family Court, allowed the petition filed by
the husband in part and directed the wife to pay
maintenance of Rs.3,000/- per month to the husband.
Aggrieved by the said judgment and decree, the wife is in
appeal in MFA No.7124/2016.
2. MFA No.7637/2016 is filed by wife challenging
the judgment and decree dated 31.08.2016 in
M.C. No.36/2013 on the file of the Family Court at Tumkur.
In terms of the said judgment and decree, the petition
filed by the wife seeking dissolution of marriage
solemnized with the respondent is dismissed. Hence, the
wife is in appeal seeking dissolution of marriage
solemnized on 30.03.2000.
3. Since the parties in both the proceedings are the
same, both the appeals are heard together and disposed of
by this common judgment. For the sake of convenience,
the parties are referred to as husband and wife in both
appeals.
4. The brief facts of the case in M.C. No.5/2014 are:
The marriage of the parties was solemnized on
30.03.2000. The husband filed a petition stating interalia
that after the marriage the husband and wife lived
together for three months in the husband's native place
and thereafter the couple resided in Tumkur. A child was
born one year after the marriage and the couple led
happily married life for 9 years. It is further stated that the
wife had studied only up to 10th standard and after the
marriage, husband got her admitted to B.Com course. It is
stated that, the husband suffered a gangrene attack to his
left leg in the year 2009, treatment did not yield the
desired result and his leg was amputated on 30 th
December 2009. It is alleged that the wife left the
company of the husband after the amputation. Since the
husband's leg is amputated, he is not in a position to earn.
Hence he has filed the petition seeking maintenance of
Rs.10,000/- per month and it is contended by him that his
wife is earning Rs.25,000/- per month from her avocation.
5. The wife contested the petition. She denied
allegations leveled against her. It is her case that the
petition seeking maintenance is filed as a counterblast to
her petition in M.C. No. 36/2013 where she sought divorce
on the ground of desertion and cruelty. The wife denied
her husband's claim that he is not in a position to earn and
also denied that she is earning Rs.25,000/- per month and
prayed for the dismissal of the petition.
6. Facts in M.C. No. 36/2013.
This petition is by the wife for the dissolution of the
marriage on the grounds of cruelty and desertion. The wife
contended that the wife started residing with the husband
after the marriage. Further, the wife's parents provided
financial assistance to the husband to purchase a mini
lorry and a ten-wheeler lorry. It is further stated that from
the wedlock a child Jamuna was born. It is alleged that the
respondent started ill-treating and harassing the wife, used
to assault her and demanded dowry from her parents. It is
further alleged that the husband was not discharging his
marital obligation towards the wife and used to quarrel
without any reason. It is further contended that the efforts
of the elders who advised the husband to lead normal
happy marital life with the wife went in vain. Hence the
petition is filed for dissolution of marriage.
7. The husband contested the petition. Admitted
the relationship, however, disputed the contention relating
to financial assistance said to have been provided by the
wife's parents. The husband denied the allegations of
cruelty and desertion. It is stated that his wife is the
daughter of his maternal uncle and they knew each other
even before the marriage. He contended that he and his
wife led normal marital life for nine years and they have a
daughter from the marriage. It is further contended that
since the respondent suffered gangrene his left leg was
amputated and when he was in the hospital the wife left
his company and started living with her daughter in her
parent's house. The husband contended that his parents
are dead and the brothers are living separately and due to
amputation, he is not able to earn, without there being any
valid ground, the petition is filed seeking dissolution of
marriage.
8. Before the Family Court, in M.C. No.36/2013 the
wife is examined as PW1 and one more witness is
examined as PW2 and the documents are marked on
behalf of the wife at Ex.P.1 to P.11. The husband is
examined as RW1 and got marked Ex.R.1.
9. In M.C.No.5/2014 the respondent/husband has
sought maintenance of Rs.10,000/- per month from his
wife on the premise that he is not able to work and earn
after the amputation of his left leg. He contends that there
is a permanent functional disability as he is not able to
drive the vehicle.
10. Before the Family Court, in M.C. No.5/2014 the
husband is examined as PW1 and got Ex.P.1 to P.4
marked. The respondent/wife is examined as RW1 and got
Ex.R.1 to R.8 marked.
11. Heard the learned counsel for both husband and
wife in both the appeals and perused the records.
Discussion in MFA no. 7124/2016 (M.C. no. 5/2014)
12. The Counsel for the wife urged that the
impugned judgment and decree awarding Rs.3000.00 per
month in favour of the husband is unsustainable and liable
to be set aside. It is urged that husband is still driving an
auto and has income from family properties. It is also
urged that the wife has no independent source of income.
It is also urged that the Family court after having held that
there are no material evidence to hold that the wife is
having an independent source of income, could not have
granted a decree for maintenance.
13. The learned Counsel of the husband defended
the impugned judgment and award and submitted that on
account of the amputation of the leg, he is not in a position
to earn and the wife is under obligation to maintain the
husband. It is also urged by him that the wife is having an
independent source of income.
14. It is to be noticed that the husband has not
produced any records to show that the wife is earning. The
Family court has recorded a finding that the husband has
not produced any evidence in this regard. However, the
trial court has held that the wife has a moral obligation to
maintain the husband. The cross-examination of the
husband reveals that the husband purchased the auto-
rickshaw in 2012, i.e., 2 years after the amputation of his
leg. This indicates that he is having an income. However,
no evidence is led to show that the wife is capable of
earning. This being the position this Court is unable to
affirm the judgment and decree of the family court which
has passed a decree for maintenance of Rs.3000/- per
month against the wife and in favour of the husband.
Hence the said judgment and decree have to be set aside.
Discussion relating to MFA 7637/2016 arising
from M.C. No. 36/2013 seeking dissolution of
marriage:
15. Learned counsel for the wife would contend that
the petition seeking dissolution of marriage ought to have
been allowed as the grounds urged by the petitioner/wife
are proved by leading cogent evidence. Learned counsel
urged that the entire approach of the Family Court in
assessing the evidence is erroneous. Though the wife has
proved the fact that the money was paid by her parents to
purchase the vehicles in the name of the husband and the
husband failed to prove that he purchased the vehicles
from his funds the Family Court failed to draw the
inference that the husband was insisting for dowry and
thereby inflicted cruelty on her. It is also urged that the
husband has lived separately from her and has deserted
her for no reason.
16. The learned counsel for the husband contended
that the grounds urged in the appeal memo are not the
grounds in support of the alleged plea of cruelty and
desertion. It is further contended that the learned counsel
for the husband that the wife has left the company of the
husband after his leg was amputated. It is contended that
she left the company of her husband for no fault only to
avoid the responsibility of taking care of her husband
whose leg was amputated.
17. It is also urged that the husband and wife
shared a cordial relationship till the husband's leg was
amputated and since the wife has left the company of the
husband without there being any cause, it cannot be held
that the husband has deserted the wife.
18. This Court has considered the contentions raised
at the bar and perused the records including the impugned
judgment and decree.
19. The Family Court has dismissed the petition on
the premise that there is no evidence relating to cruelty
and there is no evidence to hold that the husband has
deserted the wife. The Family Court has taken a view that
the wife has left the company of the husband when his leg
was amputated.
20. The point for consideration is, "Whether the
finding of the Family Court is supported by the evidence?"
21. The evidence in the cross-examination of the
wife would suggest that the relationship between the
husband and wife was cordial till the husband's leg was
amputated. A minor difference of opinion or disagreement
between the husband and wife cannot be construed as an
act of cruelty on the part of the spouse. The wife has
alleged that she had filed a complaint against the husband
on the ground of ill-treatment by the husband. However,
no evidence is produced in this regard. The cross-
examination of the wife also indicates that six years after
the marriage a discussion was held in the presence of
elders to resolve the difference of opinion between the
husband and wife. Till then there were no such instances
where the alleged difference of opinion was brought to the
knowledge of mediators/elders. The evidence would also
reveal that the wife pursued her studies after the marriage
staying with the husband. The evidence of the wife in the
cross-examination further reveals after the discharge from
the hospital, the husband went to the maternal home of
the wife to meet her as she was staying there. It is also
forthcoming that husband and wife were living together till
2010 and only in the year 2010 when the husband's leg
was amputated, the wife left the company of the husband.
The evidence on record does not indicate that after 2010
the husband has ill-treated the wife to attract the ground
of cruelty to seek divorce. Though the wife by way of an
amendment averred certain facts alleging unnatural sexual
acts and assault by the husband, the allegations are not
proved.
22. On overall appreciation of the materials on
record, this Court is of the view that the wife has left the
company of the husband without any reasonable cause and
she was living with him till 2009. Only when his leg was
amputated in December 2009, she left his company. Under
the circumstances, the Family Court is justified in holding
that plea of desertion is also not established.
23. It is also relevant to note that the petition
averments are vague insofar as a plea relating to cruelty
and desertion. The wife has not pleaded the specific
instances of cruelty and has not provided the particulars.
The pleading relating to desertion does not say that the
husband is intentionally staying away from the company of
the wife to put an end to the marital relationship.
24. For these reasons, this Court is of the view that
the Family Court is justified in arriving at a finding that the
plea of cruelty and desertion is not proved. This Court
does not find any valid reasons or grounds to interfere with
the judgment and decree passed by the Family Court.
Hence, the following:
25. Hence the following:
ORDER
(i) MFA No. 7124/2016 is allowed.
(ii) The impugned judgment and decree dated
06.09.2016 in M.C.5/2014 on the file of the
Family Court at Tumakuru are set-aside.
Consequently, M.C.5/2014 on the file of the
Family Court at Tumakuru is dismissed.
(iii) MFA No.7637/2016 is dismissed. The impugned
judgment and decree dated 31.08.2016 passed in
M.C.No.36/2013 by the Principal Judge, Family
Court at Tumakuru is confirmed.
(iv) No order as to cost.
Sd/-
JUDGE
Sd/-
JUDGE
brn
