Karnataka High Court

Panduranga S/O Jeenappa vs Kamala W/O Panduraga And on 1 February, 2024

Author: B.M.Shyam Prasad

Bench: B.M.Shyam Prasad

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                                                     MFA No. 201218 of 2019




                              IN THE HIGH COURT OF KARNATAKA,
                                      KALABURAGI BENCH
                          DATED THIS THE 1ST DAY OF FEBRUARY, 2024

                                           PRESENT

                          THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
                                             AND
                      THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

                          MISCL. FIRST APPEAL NO. 201218 OF 2019 (MC)

                   BETWEEN:
                      PANDURANGA S/O JEENAPPA,
                      AGE: 42 YEARS, OCC: PRIVATE SERVICE,
                      R/O H.NO. 1-1-803, MILLENNIUM GARDEN,
                      NIJALINGAPPA COLONY, RAICHUR.
                                                             ...APPELLANT
                   (BY SMT. PATIL SHANTABAI SUBHASH, ADVOCATE FOR
                       SRI. BASAVARAJ C.K., ADVOCATE)

                   AND:
                      KAMALA W/O PANDURAGA AND
                      D/O SHIVAPPA CHAVAN,
                      AGE: 32 YEARS, OCC: HOUSEWIFE,
Digitally signed
                      R/O MUKTHNAIK TANDA,
by RAMESH
MATHAPATI
                      POST: B. GANEKA, TQ: DEODURGA,
Location: HIGH        DIST: RAICHUR-584101.
COURT OF
KARNATAKA                                                    ...RESPONDENT
                   (BY SRI. ANANTH S JAHAGIRDAR, ADVOCATE)

                        THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
                   COURT ACT, PRAYING TO CALL FOR THE LOWER COURT
                   RECORDS AND ALLOW THIS APPEAL, AND PLEASED TO SET-
                   ASIDE THE JUDGMENT AND ORDER DATED 08.04.2019,
                   PASSED BY THE PRL.JUDGE, FAMILY COURT AT RAICHUR IN
                   M.C.NO.93/2018, IN THE INTEREST OF JUSTICE AND EQUITY.

                        THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
                   B.M.SHYAM PRASAD J. DELIVERED THE FOLLOWING:
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                                     MFA No. 201218 of 2019




                        JUDGMENT

The appellant, whose marriage to the respondent is

solemnized on 25.04.2008, is aggrieved by the judgment and

decree dated 08.04.2019 in M.C.No.93/2018 on the file of

the Principal Judge, Family Court, Raichur [for short, 'the

Family Court'], and the Family Court by its impugned

judgment and decree has dismissed the appellant's petition

for dissolution of marriage under Section 13(1)(i-a) of the

Hindu Marriage Act, 1955 [for short, the 'HM Act'].

2. The undisputed facts are that the appellant and

respondent, after their marriage in the year 2008, have lived

together until 2018 and they have two children viz., Master

Pankaj Pawar who is aged about 14 years and Miss Arpita

who is aged about 9 years. The appellant and respondent

have been living separately from 2018 and their elder child

Master Pankaj is residing in a residential school and the

younger child is residing with the respondent. The appellant

is meeting all the educational expenses of the elder child.

The respondent has initiated proceedings under Section 125

of Cr.P.C. in Crl.Misc.No.480/2019 with the concerned

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Court at Devadurga, and this application is disposed of on

20.01.2023 granting maintenance in a sum of Rs.1,000/- to

the respondent and Rs.2,000/- to the younger child. This

application is filed on 09.08.2019, and in terms of the order

dated 20.01.2023, the appellant will have to pay a sum of

Rs.1,59,000/- as of today and such amount remains

unpaid.

3. This Court, in the peculiar circumstances of the

case, has tried to verify from the parties, with the assistance

of their learned counsels, on whether there could be a

settlement especially with the appellant acknowledging that

he has married another and he has two children from such

marriage. The appellant states that he would continue to

pay a sum of Rs.3,000/- as ordered by the concerned Court

in Crl.Misc.No.480/2019 and also pay all the educational

expenses and other expenses for the younger child but there

must be dissolution of marriage, and the respondent is

categorical that the marriage must not be dissolved and the

appeal could be disposed of directing the appellant to make

certain arrangements for her living with the younger child in

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Raichur apart from meeting certain expenses. Therefore,

this Court must observe that the parties are unable to come

to any consensus ad idem, and in fact, the learned counsels

for the parties seek for disposal of the appeal on merits.

4. The appellant has filed the petition for

dissolution of marriage under Section 13(1) (i-a) of the H.M.

Act asserting that the respondent lived with him happily

until 2017 but thereafter started neglecting him, his two

children and aged parents and she developed hate towards

all of them without any reason. The appellant has also

asserted that the respondent refused all conjugal obligations

and that it was also regular for her to remain absent from

the house for 2-3 days and the repeated advise by the elders

in the families was of no effect. The respondent has filed

statement of objections denying the allegations and

contending that she is driven out of the matrimonial home

by the appellant because she refused to consent to the

appellant marrying again.

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5. The appellant has examined himself as PW.1, his

parents as PWs.2 and 3, and his younger brother as PW.4.

The respondent has examined herself as RW.1 and her

brother, a resident of Pune, as RW.2. The appellant has

reiterated the petition averments in his evidence, and the

parents have also deposed in consonance with such

evidence but adding that the respondent was cruel in her

conduct even with them despite their medical conditions. In

the cross examination, these witnesses have admitted that

immediately after the marriage, the respondent joined the

appellant in matrimony at the matrimonial home, that they

later shifted to Bangalore for a few months and returned to

the native place and yet again the appellant and respondent

shifted to Raichur.

6. The appellant's parents in their cross -

examination have also stated that as and when the occasion

demanded, they would visit the appellant and respondent

and it was during these visits they witnessed the

respondent's difficult conduct. The appellant's younger

brother [PW.4] has stated in his evidence for the first time

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that the appellant had secured a mobile for the respondent

and the respondent received frequent calls from a particular

number and having developed friendship with the caller, she

ran away from the matrimonial home.

7. The respondent in her evidence has reiterated her

case that the discord is only because she refused to consent

to the appellant marrying for the second time and her

younger brother [RW2] has stated in his evidence that he

lives with his wife and children in Pune and the respondent,

after being driven out of her home by the appellant, visits

him frequently and stays with him and his family members

whenever she could. This witness has also stated that the

reason for matrimonial discord between the appellant and

respondent is because the respondent refused to consent to

the appellant marrying again.

8. The Family Court in the light of this evidence on

record has opined that the appellant has failed to establish

cruelty. Smt. Shantabai Patil, the learned counsel for the

appellant, is unable to present any ground which would

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justify interference with the impugned judgment. The

allegations, after 10 years of marriage, such as that the

respondent did not look after the children and that she

would not attend to the visiting guests after 10 years of

marriage are difficult to be accepted when the appellant

himself is categorical in his pleadings and evidence that both

of them lived a harmonious life for more than nine years

after marriage.

9. Admittedly, the minor daughter stays with the

respondent and the elder son is with the appellants. The

question is whether this situation is contrived to the

respondent's disadvantage. The respondent has had to

suffer un-substantiated allegation of affection for another.

Further, it is settled that normal wear and tear of everyday

life in a relationship cannot be called cruelty and to pass

muster in law the conduct alleged must be such that it

would be impossible for any reasonable person to live with

such conduct. The appellant has set up family with another

cannot be a reason to grant dissolution of marriage and

therefore, the appellant must fail in his case for dissolution

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of marriage. This Court must opine that Family Court has

rightly considered the evidence on record.

10. The next question for consideration would be

whether the respondent must be awarded any litigation cost

and this aspect must necessarily be examined in view of the

provisions of Section 24 of the H.M. Act, which stipulate that

when it is shown a spouse has no independent sufficient

income for her or his support, the necessary expenses of the

proceedings will have to be paid by the other spouse and

this must be on an application. Sri. Ananth Jaghirdar, the

learned counsel for the respondent, while emphasizing that

the respondent has not received any amount of maintenance

despite the orders in proceedings under Section 125 of

Cr.P.C., submits that the respondent has no source of

income and is dependant on her family members and she

has to bear the expenses of looking after a girl child who is

only 9 years, and therefore, this Court must consider her

request to grant in the least a reasonable cost of litigation.

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11. The appellant has commenced proceedings

making allegations which, as observed, do not pass muster

in law to hold that he has been subjected to cruelty by the

respondent; and on the other hand, the respondent is put to

some humiliation because the appellant's younger brother

[PW.4] states that the respondent has deserted the

matrimonial home because of a friendship with somebody

who used to call on her phone regularly. The appellant does

not state anything about the same in his pleadings or in his

evidence, but his younger brother states in his evidence that

the appellant has given him the details of the numbers as

maintained by him in his diary. These circumstances must

be considered. Admittedly, the respondent has no

independent income [a fact which is not controverted even

before this Court] and she has to look after a girl child who

is nine years, and though the appellant professes to pay the

maintenance for the respondent and her children, has not

placed any record to substantiate that maintenance in terms

of the order in Crl.Misc.No.480/2019 is paid.

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12. The respondent has had to defend the

proceedings to contest the unsubstantiated allegations

before the Family Court and before this Court incurring cost

having to travel frequently from Pune where she would

generally reside with her brother as stated by her and even

otherwise. On a careful examination of all these

circumstances in the case, this Court is of the considered

view that the appellant should be directed to pay cost of

Rs.2,00,000/- [apart from the maintenance payable in terms

of the order Crl.Misc.No.480/2019] with necessary

directions that would enable the respondent to recover the

cost without much ado. In the light of the afore, the

following:

ORDER

I. The appeal is dismissed, and the appellant is directed to pay a sum of Rs.2,00,000/- as litigation expenses to the respondent.

II. The appellant shall pay the cost as aforesaid to the respondent within a period of four [4] weeks from the date of receipt of a certified copy of this order.

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III. If there is any failure, the respondent shall be at liberty to file an application before the jurisdictional Deputy Commissioner to initiate proceedings against all assets of the appellant to recover the cost as arrears in revenue.