Karnataka High Court
Bhimaraya @ Bhimannagouda S/O ... vs Smt. Maitrabai W/O Bhimaray ... on 26 February, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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NC: 2024:KHC-K:1757-DB
MFA No. 201316 of 2014
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K.V.ARAVIND
MISCL. FIRST APPEAL NO. 201316 OF 2014 (FC)
BETWEEN:
BHIMARAYA @ BHIMANNAGOUDA
S/O GOLLALEPPA SANNAKKI,
AGED ABOUT 41 YEARS,
OCC: COOLIE, R/O: ADARSH NAGAR,
BIJAPUR -586101.
...APPELLANT
(BY SRI. C. A. SUGOOR, ADVOCATE)
AND:
SMT. MAITRABAI
W/O BHIMARAY @BHIMANAGOUDA
SANNAKKI, AGED ABOUT 33 YEARS,
Digitally signed
by VARSHA N
OCC: HOUSEHOLD WORK,
RASALKAR R/O: DONI BUDIHAL, TQ: SINDAGI,
Location: HIGH
COURT OF DIST: BIJAPUR - 586101.
KARNATAKA
...RESPONDENT
(NOTICE HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, PRAYING TO ALLOW THIS APPEAL BY SETTING
ASIDE THE IMPUGNED ORDER AS PER ANNEXURE-A DATED
10.11.2011 IN M.C.NO.39/2011 ON THE FILE OF THE COURT
OF FAMILY JUDGE AT BIJAPUR AND ALLOW THE PETITION FOR
DIVORCE AS PRAYED IN M.C.NO.39/2011.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, H.T.NARENDRA PRASAD J., DELIVERED THE
FOLLOWING:
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NC: 2024:KHC-K:1757-DB
MFA No. 201316 of 2014
JUDGMENT
This appeal is filed by the appellant-husband
challenging the order dated 10.11.2021 passed by the
Family Court, Bijapur, in matrimonial case No.39/2011,
wherein the petition filed by the petitioner is dismissed.
2. The brief facts of the case are as under:
The appellant and the respondent are the husband
and wife. They got married on 26.05.1997 at Devar
Navadagi village, as per Hindu customs. They led a happy
married life for two years and out of the wedlock, two
children were born by name of Madhumati and Kaveri.
The respondent started to pressurize the petitioner-
appellant to make a separate house at Bijapur. Since, the
appellant refused to make a separate house, living away
from his parents, the respondent started picking up
quarrels and went to her parents house. Even after ten
years, she has not returned to her matrimonial house. In
spite of best efforts made by the appellant and his
relatives, she has not come back to the matrimonial home.
Since, there was no cohabitation between the parties for
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more than five to six years, it amounts to mental
harassment. Therefore, the petitioner had no alternative,
but to file a petition under Section 13(B) of Hindu Marriage
Act. On service of summons, the respondent-wife
appeared through her counsel and filed objections to the
petition. She admits the marriage. But, she contends that
after two years of marriage, the petitioner started
harassing her and ill treated her demanding dowry,
alleging that she came from a very rich family and her
brothers are doing jobs. He assaulted her, ill treated her
and abused her in filthy language. She denied the
allegations made in the petition and sought for the
dismissal of the petition.
3. After hearing both parties, the Family Court
referred the matter for reconciliation by the counselor.
However, reconciliation has failed. On the basis of the
pleadings made by the parties, the Family Court has
framed following points for consideration:
1) Whether the petitioner proves that, the
respondent without any sufficient or
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the reasonable cause has deserted him
as alleged in the petition?
2) Whether the petitioner is entitled to a
decree of the divorce as claimed?
3) What order or the decree?
4. To prove the case, petitioner-appellant got
examined himself as PW-1 and got marked documents as
Ex.P-1 to P-5. The respondent got examined as RW-1. On
appreciation of the oral and documentary evidence, Family
Court answered the points No.1 and 2 in negative and
dismissed the divorce petition.
5. Being aggrieved by the same, petitioner-husband
has filed this appeal.
6. Sri.C.A.Sugoor, learned counsel appearing for
appellant has contended that the appellant and the
respondent led a happy married life for nearly two years.
Thereafter, the respondent started picking up unnecessary
quarrel and went to her parents house. In spite of the
best efforts from the appellant and his relatives, she has
not returned, even after ten years. For more than five to
six years, there is no cohabitation between the parties,
due to which he has suffered mental agony. To support
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his case, he has placed reliance on the decision of the
Hon'ble Apex Court in Civil Appeal No.7567/2004
(Satish Sitole V/s Ganga), which contends that when
the marriage is dead emotionally and practically and there
is no chance of it being retrieved, the continuation of such
a marriage would amount to cruelty. Without considering
this aspect of the matter, the Trial Court committed an
error in dismissing the petition. Hence, he has sought for
allowing the appeal.
7. Heard learned counsel for the appellant.
Respondent-wife is served and remained unrepresented.
8. It is not in dispute that the appellant and
respondent are husband and wife and that they got
married on 26.05.1997 at Devara Navadagi village, as per
Hindu customs. It is also not in dispute that they led
happy married life for about two years and out of their
wedlock, two children are born by name of Madhumathi
and Kaveri. The specific case of the appellant is that the
respondent unnecessarily picked up quarrel and she went
to her parents house. In spite of best efforts from him
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and his relatives, she did not come back. But, in the cross
examination of PW-1, he has denied that he is ready to
take the respondent and the children back. Even though,
in the latter part of the cross examination, he has
admitted that he is ready to take them back. This itself
shows that the petitioner is blowing hot and cold at the
same time, therefore, his evidence becomes
untrustworthy. The respondent suggested that for the last
ten years, there is no cohabitation between them and the
evidence of the appellant claims that there is no
cohabitation between them for last five years.
9. Considering the evidence of the parties, it clearly
shows that the allegations made by the appellant against
the respondent is not correct and he has failed to prove
his case under the ground of cruelty. The judgment relied
upon by the appellant in case above mentioned, the
Hon'ble Apex Court held that when the marriage is dead
emotionally and practically and there is no chance of being
retrieved, the continuation of such a marriage would
amount to cruelty. In the case at hand, the respondent-
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wife and the children are ready to go back to her
matrimonial house, but as per the evidence of PW-1, he is
not ready to take them back. Therefore, the said
judgment is not applicable to the facts of the case.
10. The Trial Court after considering the evidence of
the parties and material available on record, rightly
dismissed the petition. There is no error in the judgment
passed by the Trial Court.
ORDER
Accordingly, this appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
NJ
CT: CS
