Karnataka High Court
C Divyashree vs D Yashavanth on 1 April, 2024
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MFA No. 2107 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 2107 OF 2020 (FC)
BETWEEN:
C DIVYASHREE,
AGED ABOUT 28 YEARS,
D/O LATE S B CHANNABASAVAIAH,
W/O D YASHAVANTH,
DEEPAK NILAYA, NALANDA CONVENT RD
RAGHAVENDRA ROAD, TUMAKURU-572101.
...APPELLANT
(BY SRI VINAYA KEERTHY M, ADVOCATE)
AND:
D YASHAVANTH,
AGED ABOUT 32 YEARS,
S/O T J DEVARAJ,
5TH CROSS, SAPTHAGIRI EXTN. TUMAKURU,
Digitally signed
by BELUR AND ALSO AT: TUMAKURU GRANITES,
RANGADHAMA
NANDINI SHED NO.26/A, KIADB INDUSTRIAL AREA-572101
Location: HIGH
COURT OF HIREHALLI, TUMAKURU TALUK
KARNATAKA
AND DISTRICT-572101.
...RESPONDENT
(BY SRI ANANDEESHWARA D R, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGEMENT AND DECREE DATED
04.01.2020 PASSED IN M.C.NO.141/2019 ON THE FILE OF THE
PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU, DISMISSING
THE PETITION FILED UNDER SECTION 13(1)(i-a)(i-b)OF THE
HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
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MFA No. 2107 of 2020
JUDGMENT
The wife who sought dissolution of her marriage is
aggrieved by the dismissal of petition in M.C. No.141/2019 on
the file of the Principal Judge, Family Court at Tumakuru. The
Family Court in terms of the impugned judgment and decree,
rejected the petition seeking dissolution of marriage on the
grounds of cruelty and desertion.
2. The parties to the proceeding shall be referred to as
per their ranking before the Family Court.
3. The petition would reveal that petitioner and
respondent knew each other since 2008. On 31.03.2013, the
marriage between the petitioner and the respondent was
solemnised. It is further stated that for two years, the marital
relationship was cordial. Petitioner completed her post
graduation in engineering after the marriage. The respondent
was a partner in a partnership firm dealing with granite. It is
further stated that three years after the marriage, the
respondent started torturing the petitioner and suspected her
character and used to check the call details on petitioner's cell
phone. It is further stated that the respondent used to
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physically assault the petitioner. Petitioner claims that being
unable to live with the respondent, she started residing with
her grandmother at Bengaluru and it is also alleged that the
respondent insisted the petitioner to go for an abortion alleging
that she was impregnated by another. It is further stated that
after the diagnosis, it was revealed that the petitioner had not
conceived. It is also alleged that the respondent once took the
petitioner to a secluded place and attempted to take away her
life. It is also alleged that once he attempted to hang the
petitioner and she was rescued by her mother. The petitioner
has further stated that since 2017, she is residing separately
from the respondent being unable to live with him.
4. Except the relationship, the respondent has denied
every allegation made in the petition. It is further stated that
the petitioner is having superiority complex ever since she
completed her post graduation in engineering. The respondent
alleges that petitioner insisted him to stay with her maternal
family and he could not accede to the demand of the petitioner
as he had aged parents and his sister to maintain. The
respondent has stated that he is ready to stay with the
petitioner in his house at Tumakuru. The respondent has
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specifically denied the allegation that he suspected the fidelity
of the petitioner.
5. Petitioner and respondent have led oral and
documentary evidence in support of their claim. The Family
Court has dismissed the petition. Aggrieved by the
aforementioned judgment and decree, the petitioner/wife is in
appeal.
6. Learned counsel for the appellant would urge that the
Family Court failed to appreciate the evidence which clearly
pointed out to the ill-treatment of the respondent and also the
character assassination by the respondent. Learned counsel for
the appellant invited the attention of this Court to the evidence
in the cross examination of the petitioner where it is suggested
that the petitioner is having an affair with her colleague,
Pradeep. It is suggested in the cross examination of the
petitioner that the petition is filed with an intention to marry
the said Pradeep. Learned counsel for the appellant would also
urge that the Family Court ignored the police complaint lodged
by the petitioner which clearly pointed to the act of cruelty on
the part of the respondent.
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7. Learned counsel for the respondent would urge that
the allegations levelled by the petitioner are seriously disputed
by the respondent and the petitioner failed to prove the
allegations levelled in the petition. It is also his submission
that the materials on record disclosed that the petitioner and
respondent lived together till 2018 and that being the position,
the Family Court was justified in dismissing the petition filed
seeking dissolution of marriage on the ground of cruelty and
desertion.
8. This Court has considered the contentions raised at
the bar and perused the materials on record.
9. The point for consideration is whether the petitioner
has made out a case for grant of divorce on the ground of
cruelty and desertion.
10. The relationship is not in dispute. The marriage
was solemnised on 31.03.2013. The grievance of the petitioner
is that respondent suspected her character which according to
her is an act of cruelty. The petitioner in her petition has
stated that the respondent has suspected her character and
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used to make inquiries with her friends about her movements
and used to often look into the call details in petitioner's cell
phone. These allegations are no-doubt denied in the statement
of objections filed by the respondent.
11. It is elicited in the cross examination of the petitioner
that the petitioner worked in Zilla Panchayat, Tumakuru while
pursuing her post graduation in engineering and one Mamata
was the Chief Executive Officer of the Zilla Panchayat in
Tumakuru. On transfer of Mamata to Ramanagara, the
petitioner also worked in a project at Ramanagara under said
Mamata. It has come in evidence that while the petitioner was
commuting between Ramanagara to Tumakuru, the respondent
used to drop the petitioner to the Railway Station and used to
pick up from the Railway Station on few days. It is also
suggested in the cross examination that after the petitioner
left the job, she did not live with the respondent. The
petitioner states that the respondent made her to resign from
the job. What emerges from the said evidence is that the
petitioner was working in Ramanagara for considerable time.
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12. As already noticed, the petition is filed on the
premise that the respondent used to suspect the character of
the petitioner. Though this allegation is denied in the written
statement, the suggestion in the cross examination nullifies the
very defence taken in the written statement denying the
allegation of suspicious character made in the petition.
Paragraph 14 of the cross examination reads as under:
14) £Á£ÀÄ gÁªÀÄ£ÀUÀgÀzÀ°è JgÀqÄÀ ªÀµÀðUÀ¼À PÁ® r.¹. PÀbÉÃjAiÀÄ°è PÉ®¸À
ªÀiÁqÀÄwÛzÁÝUÀ ¥Àæ¢Ã¥ï ©. UËqÀ J£ÀÄߪÀªÀgÀÄ ZÀÄ£ÁªÀuÁ ±ÁSÉAiÀÄ°è PÉ®¸À
ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀgÉ - ¥Àæ¢Ã¥ï ©. UËqÀ JAzÀÄ UÉÆwÛ®è, ¥Àæ¢Ã¥ï
J£ÀÄߪÀªÀgÀÄ PÉ®¸À ªÀiÁqÀÄwÛzÝÀ gÄÀ . ¸ÀzÀj ¥Àæ¢Ã¥ï £ÉÆA¢UÉ £Á£ÀÄ
C£ÉÆåãÀåªÁV EzÉÝ JAzÀgÉ - PÀbÉÃjAiÀÄ°è MnÖUÉ PÉ®¸À ªÀiÁqÀÄwÛzÄÀ ÝzÀjAzÀ
ZÉ£ÁßVzÉÝ. ¸ÀzÀj ¥Àæ¢Ã¥ï CªÀgÀ eÉÆvÉ £À£ÀUÉ ¦æÃw EzÀÄÝ, DvÀ£À£ÄÀ ß
ªÀÄzÀĪÉAiÀiÁUÀ¨ÉÃPÉA§ GzÉÝñÀ¢AzÀ JzÀÄgÀÄzÁgÀ¤AzÀ «ZÉÒÃzÀ£À ¥ÀqÉAiÀÄ®Ä
F CfðAiÀÄ£ÀÄß ¸À°è¹zÉÝÃ£É JAzÀgÉ - ¸ÀļÀÄî.
13. On careful perusal of the aforementioned
suggestion, it is evident that the allegation is levelled against
the petitioner stating that she is having an affair with one
person by name Pradeep and is intending to marry Pradeep
after obtaining divorce. It is also forthcoming from the other
evidence on record that respondent worked in Ramanagara for
two years. Since the petitioner worked in Ramanagara for two
years, the suggestion made in the cross examination referred
to above assumes significant importance. The suggestion does
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not just link the name of a person with the petitioner but also
makes an allegation that the petitioner is having an affair with
the said person who was working in the same office when the
petitioner was working in Ramanagar. And it is also suggested
that the petitioner wanted to marry him. The aforementioned
evidence in the cross examination would lead to the conclusion
that the respondent used to suspect the character of the
petitioner stands established. This is what is alleged by the
petitioner.
14. Learned counsel for the respondent would submit
that the suggestion in the cross examination should not be
construed as an allegation made prior to the filing of the
petition, as such, it cannot be a ground to hold that the
husband inflicted cruelty on the wife.
15. The institution of marriage rests on the mutual trust,
confidence, love and respect between the couple. When one
spouse makes an allegation suspecting the character of the
other and if that allegation is not substantiated, the Court has
to hold that the allegation is unfounded. The unfounded
allegation on the character of a spouse shakes the edifice of
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institution of marriage. In such a situation, it would be
extremely difficult for the spouse to live peacefully in
matrimony. This being the position, this Court is of the view
that the Court has to accept the evidence of the petitioner who
has stated that the conduct of the respondent has resulted in
mental cruelty. Thus, the petitioner is justified in seeking
petition for dissolution of marriage on the ground of cruelty.
16. Though, the petition is also filed on the ground of
desertion, this Court finds that the pleading is not sufficient to
uphold the plea of desertion though the Court finds some
justification in the act of the petitioner being away from the
respondent. However for want of proper plea regarding
desertion, this Court is of the view that the decree for
dissolution of marriage cannot be granted on the ground of
desertion.
17. It is also relevant to state that when a petition is
filed seeking dissolution of marriage on the grounds of cruelty
and desertion, the law does not mandate that both the grounds
are to be established to grant the decree for dissolution of
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marriage. Even if one of the grounds is established, that would
be sufficient to grant a decree for dissolution of marriage.
18. It is also relevant to note that umpteen attempts
have been made by the Court to resolve the dispute through
mediation. Successive attempts for mediation have failed.
Though the respondent who is present before the Court (who
also made submission with the consent of the Court in the
presence of his counsel) expressed his intention to revive the
marital relationship, on a specific query put by the Court, the
appellant/wife has stated that it is impossible to live with the
respondent. It is also relevant to note that when the question
was put to the respondent as to how he would explain the
suggestion made to the petitioner in the cross examination
where it is suggested that the wife is having an affair with
another person, the respondent replied stating that the
suggestion in the cross examination is true, nevertheless he is
willing to stay with his wife and start marital life afresh.
19. As already noticed, this Court has recorded a finding
that the allegation is unfounded and baseless. Apart from that,
the allegation is reckless as well as scandalous.
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20. Having considered all the materials on record, this
Court is of the view that the petitioner is able to establish the
ground of cruelty. The Family Court has not considered the
aforementioned evidence in proper perspective.
21. Referring to Ex.R.1 - the photograph taken in the
year 2018 when the petitioner and respondent together
attended a wedding reception, the Family Court held that there
is no reason to grant the divorce. Merely because the
petitioner and respondent have attended the reception in the
year 2018, it does not mean that all is well with the petitioner
and respondent. One photograph may not give the clear
picture relating to the relationship between the appellant and
the respondent.
22. Under these circumstances, this Court is of the view
that the judgment and decree of the Family Court have to be
set-aside and are accordingly set-aside.
23. The petitioner/wife is also present before the Court
has made a statement that she is not making any claim relating
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to alimony or any other monetary benefits. Said submission is
placed on record.
24. Hence, the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree dated 04.01.2020 passed
by the Principal Judge, Family Court at Tumakuru in
M.C.No.141/2019 are set-aside.
(iii) The marriage solemnised between the appellant and
respondent on 31.03.2013 is dissolved by a decree of
divorce.
(iv) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
BRN
