Karnataka High Court
Savita W/O Viayakumar Ghadge vs Vijayakumar S/O Pandit Ghadge on 1 July, 2024
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MFA No. 200737 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 200737 OF 2021 (MC)
BETWEEN:
SAVITA W/O VIJAYAKUMAR GHADGE
AGE: 30 YEARS, OCC: SERVICE,
R/O DHANAVADHATTI,
TQ. AND DISTRICT: VIJAYAPUR
NOW RESIDING AT BANGALORE- 560001.
...APPELLANT
(BY SRI. SANGOLI NAGANNA, ADVOCATE)
AND:
Digitally signed by VIJAYAKUMAR S/O PANDIT GHADGE
BASALINGAPPA
SHIVARAJ AGE: 36 YEARS, OCC COOLIE,
DHUTTARGAON
R/O DYABERI,
Location: HIGH
COURT OF TQ. AND DISTRICT: VIJAYAPUR-586101.
KARNATAKA ...RESPONDENT
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)
THIS MFA IS FILED U/S 28 OF HINDU MARRIAGE ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE, ALLOW
THE APPEAL BY SETTING ASIDE JUDGMENT AND DECREE
DATED 21.04.2021 IN M.C.NO.225/2019 ON THE FILE OF THE
LEARNED I ADDL. PRL. JUDGE, FAMILY COURT, VIJAYAPUR
AND COST WITH SUCH OTHER OR FURTHER RELIEF AS THIS
HON'BLE COURT MAY DEEM FIT TO GRANT IN THE
CIRCUMSTANCES OF THE CASE.
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MFA No. 200737 of 2021
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
JUDGMENT
This miscellaneous first appeal is directed against the
judgment and order passed in M.C.No.225/2019 dated
21.04.2021 by the Prl. Family Judge, at Vijayapur, wherein
the learned Family Judge allowed the petition filed by the
respondent under Section 13(1)(ia) (ib) of Hindu Marriage
Act and dissolved the marriage of the appellant and
respondent solemnized on 31.12.2007 at Sangapur Math,
of VIjayapur Taluk.
2. The parties are referred to as per their ranking
before the Family Court.
3. The facts arise for consideration which are
borne out from the pleadings are as under:
The marriage of the petitioner with respondent was
solemnized on 31.12.2007 at Sangapur Math, Vijayapura
Taluka as per the Hindu Customs prevailing in their
community. Post marriage, the respondent joined the
petitioner and they both lead happy married life for a
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period of one year. Subsequently, there was a change in
the behavior respondent towards the petitioner. She used
to insist the petitioner to leave the company of his parents
and thereby she started to reside along with parents by
deserting the petitioner. In the meantime, she got a job
and thereafter she completely deserted the petitioner.
Though he made several efforts to restitute the marital
relation, the same went in vain. Finally, he filed a petition
under Section 9 of the Hindu Marriage Act, for restitution
of conjugal rights in MC No.48/20147 before the Family
Court, Vijayapur, However, after service of notice, the
respondent appeared and shown her interest to
compromise the matter. Accordingly, the matter was
settled before the Lok Adalath. In spite of that, the
respondent failed to join the company of the petitioner.
Hence, he filed E.P.No.19/2017 to enforce the order
passed in 48/2017. In the meantime, a panchayath was
held and the respondent once again agreed to join the
company of the petitioner. However, she failed to perform
her promise. Hence, without any other alternative, the
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petitioner filed divorce petition to dissolve the marriage
solemnized between them on the ground of cruelty so also
desertion.
4. After service of notice to respondent, she
appeared through counsel and filed the statement of
objection by denying the averments made in the petition.
5. Based on the pleading of the rival parties, the
family Court framed relevant issued for consideration.
6. In order to prove the case before the Family
Court, the petitioner examined himself as PW.1 and got
marked 8 documents as Ex.P1 to P8. The respondent also
examined herself as RW.1 and got examined two more
witnesses on her behalf as RWs.2 and 3 and also got
marked documents as ExR1 to R8.
7. After assessment of the oral and documentary
evidence, the Family Court allowed the petition filed by the
petitioner and granted the decree of divorce on the ground
of cruelty as stated supra.
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8. We have heard Sri. Sangolli, learned counsel for
the appellant/respondent and Sri.Sanganabasava B.Patil,
learned counsel for the respondent/petitioner.
9. It is the primary contention of the learned
counsel for the appellant, the family Court erred in passing
the judgment by granting divorce to the petitioner by
dissolving the marriage solemnized between the parties.
The petitioner miserably failed to prove the alleged cruelty
meted out by her to the husband so also the desertion
caused due to her end. The family Judge wrongly
appreciated the evidence of petitioner husband. According
to the learned counsel, the respondent was ever ready and
willing to join the matrimonial home even by resigning her
job. However, the petitioner failed to take her back.
Hence, there is no question of desertion caused by the
respondent. He would submit by emphasizing the evidence
deposed by the RW.1 to 3 that they have categorically
deposed that the respondent had made all efforts to join
the respondent but he is reluctant to take her back.
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Further, absolutely there is no such cruelty alleged by the
petitioner even in his petition or in the evidence. In such
circumstances, the grant of divorce decree by the family
Judge is totally misconceived and liable to be set aside.
10. Per contra, learned counsel for respondent-
husband submits that the learned Family Judge granted
the decree of divorce after meticulously examining the oral
and documentary evidence in a well reasoned judgment,
which does not call for any interference. He would submit
that the after the marriage the respondent stayed only for
a period of one year and thereafter she stared to reside at
her parental house. In spite of passing a decree in
M.C.No.48/2017 for restitution of conjugal rights and
E.P.No.6/2018, the respondent failed to join the company
of the petitioner and she was residing at her parental
house for a period of more than four years. Hence, there is
a clear desertion on her part. Though she agreed to join
his company, after filing of Restitution Petition and
Execution Petition but she failed to do so and as such the
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same amounts to cruelty. Hence, the Family Judge has
rightly granted the decree of divorce. Accordingly, he
prays to dismiss the appeal.
11. Having heard the learned counsel for the
parties, the only point that would arise for our
consideration is:
"Whether the Family Judge was justified in
passing the impugned judgment by grating a
decree of divorce in favour of the petitioner by
dissolving the marriage of the petitioner and
respondent?"
12. We have carefully perused the entire evidence
and documents placed before us. As could be seen from
the records, the marriage between the petitioner and
respondent was solemnized 31.12.2007 and in the year
2017, the husband i.e. the petitioner filed M.C.No.48/2017
against the respondent for restitution of conjugal rights.
The said matter ended up in compromise decree before
the Loka Adalath, wherein the respondent agreed to join
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the company of the petitioner. Since she failed to do so,
the petitioner filed an execution petitioner in
E.P.No.19/2017 against the respondent for enforcing the
order passed in M.C.No.48/2017. Thereafter the
respondent once again assured that, she will join the
company of petitioner and as such the said execution
petition was got dismissed as not pressed. In spite of the
same, the respondent failed to join the company of
petitioner.
13. By perusal of the above evidence of the
petitioner i.e., PW.1, it clearly goes to show that the
petitioner is intended to lead happy married life along with
respondent, however, the respondent failed to join the
company of petitioner. Further on perusal of the evidence
of RW.1 and the documents placed by her, discloses that
after the marriage the respondent got a job and started to
reside at her parental house. Whenever she used to get
leave, she was visiting the house of petitioner. Hence, it is
evident that after the marriage only petitioner completed
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her D-Ed and got job. Thereafter she started to neglect
the petitoner by residing at parental house. Admittedly,
the petitioner is an agriculturist who is residing at village
Dyaberi of Vijapur Taluk and after getting the job, the
respondent was not interested to reside in the matrimonial
house at the village. The respondent in her cross
examination admitted that after marriage, for four years
she used to visit the house of petitioner often and often. It
is also admitted by her that she is working as Junior
Assistant in BMTC, but the company appointed her as
conductor and she is getting a salary of Rs.20,000/-.
Though the respondent, stated in her evidence stated that
the petitioner has harassed her physically and mentally,
absolutely there is no such complaint or proceeding
initiated by her against the petitioner. Per contra, the
petitioner himself filed the petition for restitution of
conjugal rights, in spite of that the respondent has failed
to join the company. Hence, there is a clear desertion on
the part of respondent and there is no cohabitation
between the parties for several years due to the desertion
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caused by the respondent. Hence the petitioner also
proved the ground of cruelty against the respondent. In
such circumstances on overall perusal of the evidence, we
are of the considered view that the Family Judge has
rightly appreciated the evidence on record and allowed the
petition filed by petitioner-husband, which does not call for
any interference by this Court. In that view of the matter,
we answer the above raised point in the negative.
Accordingly, we proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
msr
CT:BN
