Karnataka High Court
Surekha W/O Virupakshayya Hiremath vs Virupakshayya And Ors on 25 July, 2024
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MFA No.201631 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH 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.201631 OF 2022 (MC)
BETWEEN:
SUREKHA
W/O VIRUPAKSHAYYA HIREMATH,
AGE: 34 YEARS,
OCC: GOVT. TEACHER,
R/O MAHAGAON CROSS,
HUMNABAD ROAD,
TQ: KAMALAPUR,
DIST: KALABURAGI - 585 316.
...APPELLANT
Digitally signed by (BY SRI KADLOOR SATYANARAYANACHARYA, ADVOCATE)
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
Location: HIGH AND:
COURT OF
KARNATAKA
VIRUPAKSHAYYA
S/O SHIVABASAYYA HIREMATH,
AGE: 34 YEARS,
OCC: GOVT. SERVANT,
R/O RAVOOR (B) VILLAGE,
TQ: AFZALPUR,
DIST: KALABURAGI - 585 301.
PRESENTLY RESIDING H.NO.0-587/3/2/59,
SWAMI VIVEKANAND NAGAR,
ALAND ROAD, NEAR MILLENIUM SCHOOL,
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MFA No.201631 of 2022
KALABURAGI - 585 101.
PLACE OF WORK: PHYSICAL TEACHER,
GOVT. HIGH SCHOOL, MADAGUNAKI,
TQ: ALAND,
DIST: KALABURAGI - 585 302.
...RESPONDENT
(BY SRI ARUNAKUMAR AMARGUNDAPPA, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, 1984, PRAYING TO CALL FOR THE RECORDS AND
ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT DATED
16.07.2022 PASSED BY THE PRINCIPAL JUDGE FAMILY COURT
IN M.C.NO.285/2019, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS MISCL. FIST APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This Miscellaneous First Appeal is filed under Section 19
of the Family Court Act, 1984, challenging the judgment and
decree dated 16.07.2022, passed in M.C.No.285/2019 by the
learned Principal Judge, Family Court, Kalaburagi.
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2. For the sake of convenience parties are referred to
as per their ranking before the Family Court. Appellant is the
respondent, respondent is the petitioner.
3. The petitioner filed a petition under Section
13(1)(ia) (ib) of Hindu Marriage Act, 1955, praying to dissolve
his marriage with respondent on 16.05.2017. It is the case of
the petitioner that, marriage of the petitioner with respondent
was solemnized on 16.05.2017 at Balaji Kalyana Mantap,
Sultanpur Road, Kalaburagi, as per the customs, traditions and
rituals prevailing in their community. After the marriage, they
have led a happy married life hardly for one week, thereafter
the respondent started disliking him and giving ill treatment
without any reasonable cause, abusing him and his parents
before his friends and relatives and refuse to prepare food. The
respondent always used to visit her parents house without any
information to the petitioner. Whenever he asked for the
behaviour of the respondent, she used to abuse the petitioner
in filthy language. It is contended that she is always dancing to
the tune of her mother and acting in cruel manner with the
petitioner. The petitioner has informed about the ill treatment
given by the respondent to his parents and immediately, the
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petitioner took elders of the family members to the house of
the respondent on 16.04.2019, in spite of advise by them, she
was not ready to hear the words of the elders and even her
parents have insulted and abused them in filthy language. The
respondent did not co-operate the petitioner to share the bed
and never excited mood for sex. Hence, he has suffered
mental torture. It is contended that, respondent did not
informed regarding the birth of baby and not invited the
petitioner and his parents for the cradle ceremony. The
respondent deserted the company of the petitioner and
contended that there is no physical relationship between the
petitioner and respondent and there is no hope of reunion.
Hence, the petitioner filed this petition for dissolution of
marriage with the respondent.
4. The respondent filed objections admitting the
relationship between them and birth of a child on 19.07.2018.
She denied the allegations made by the petitioner in regard to
the cruelty. It is contended that there is no cause of action to
file the petition. It is contended that herself and the petitioner
resided happily and performed a marital obligation and when
she was carrying she went to her parents house for proper
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nourishment with the consent and permission of the petitioner
and his parents. The petitioner used to visit her parents house
frequently and spent happy time. It is contended that
petitioner and his family members did not attended the cradle
ceremony and demanded cash and gold from her parents. It is
contended that only to harass the respondent the petitioner has
filed this petition on the instigation of the brother of the
petitioner and his wife and contended that she is ready to live
with him and prayed to dismiss the petition.
5. The petitioner in order to substantiate his case
examined himself as PW.1 and examined two witnesses as
PWs.2 and 3 and got marked 7 documents as Exs.P1 to 7. The
respondent got examined herself as RW.1 and examined one
witness as RW.2 and no documents are marked on behalf of
the respondent.
6. The learned Family court after recording the
evidence framed the following points for consideration.
i. Whether the petitioner proves that the
respondent has subjected him to cruelty as
stated in the petition?
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ii. Whether petitioner proves that, the respondent
has deserted him continuously for more than
two years without reasonable cause?
iii. Whether petitioner is entitled for the relief as
prayed for?
iv. What order?
7. The Family Court on the assessment of oral and
documentary evidence, answered point Nos.1 and 3 in the
affirmative, point No.2 in the negative and point No.4 as per
the final order. It is ordered that the petition filed under
Section 13(1)(ia) of Hindu Marriage Act, 1955, by the petitioner
was allowed and petition filed under Section 13(1)(ib) of Hindu
Marriage Act, by the petitioner was dismissed. It is further
ordered that the marriage of the petitioner solemnized with
respondent on 16.05.2017 at Balaji Kalyana Mantap, Sultanpur
Road, Kalburagi, was dissolved by decree of divorce on the
ground of cruelty.
8. The respondent, aggrieved by the judgment passed
by the Family Court in M.C.No.285/2019 dissolving the
marriage of the petitioner with respondent by decree of divorce
on the ground of cruelty, has filed this appeal.
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9. Heard the learned counsel for the respondent and
also learned counsel for the petitioner.
10. Learned counsel for the respondent submits that
the respondent has led a happy married life with the petitioner
by performing marital obligation. He submits that the
petitioner has failed to prove the alleged cruelty by respondent.
He submits that the trial court has committed an error in
recording its finding that the petitioner has made attempts by
sending elder family members to take her back why she has
not gone back to the house of the petitioner. He submits that
the respondent has taken defence in the written statement
that, the petitioner and his parents used to demand money and
they forced her to part away her salary and demanded cash
and gold and the family court has recorded finding that she has
not taken any legal action against the petitioner. Hence it
amounts to harassment and cruelty by the respondent. He
submits that except examining PWs.2 and 3, who are the
interested witnesses, the petitioner has not led any evidence of
any independent witnesses and has not produced any records
to establish that the respondent was harassing the petitioner.
The Family court committed an error in allowing the petition
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filed by the petitioner under Section 13(1)(ia) of Hindu
Marriage Act. Hence, on these grounds, he prays to allow the
appeal.
11. Per contra, learned counsel for the petitioner
submits that the petitioner and respondent are residing
separately from 2019 and respondent used to harass the
petitioner by abusing in filthy language to him and his parents.
He submits that the respondent gave birth to a baby and she
has not invited the petitioner for cradle ceremony and further
she has made allegation against the petitioner for payment of
entire salary and ATM card. Thus it amounts to cruelty and the
petitioner was subjected to cruelty. Hence, the Family court
was justified in passing impugned judgment. Hence on these
grounds, he prays to dismiss the appeal.
12. Perused the records and considered the
submissions of the learned counsel for the parties.
13. The point that arises for our consideration is:
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i. Whether the petitioner proves that the
respondent has subjected him to cruelty as
alleged in the petition?
ii. Whether the respondent proves that impugned
judgment and decree passed by the Family
court is perverse and arbitrary?
iii. What order or decree?
14. The petitioner in order to substantiate his case,
examined himself as PW.1. He has reiterated the petition
averments in the examination-in-chief and in order to prove his
case, he has produced documents as Ex.P1 is the copy of the
legal notice. It is alleged that the respondent has misbehaved
and ill treated the petitioner and is ready to condone the
misbehaviour and ill treatment of the respondent and further
stated that if the respondent is interested in marital life, the
petitioner called upon the respondent through the notice, joined
the petitioner within a week from the date of receipt of the
notice. Ex.P2 is the reply notice to the Ex.P1. The said reply
was got issued by the respondent to the advocate of the
petitioner dated 26.08.2019. She denied the allegations made
in the legal notice and it is also stated to advise his client to
take back the respondent and reside with her by leading happy
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married life by making a separate house and further she has
made allegations against Siddaiah i.e., brother of the petitioner
and his wife. Exs.P3 to 5 are the photographs, Ex.P6 is the
prescription issued by Dr.Nirmala Hiremath, Consulting
Gynaecologist, it discloses that she has prescribed the medicine
to the respondent.
15. In the course of cross examination of PW.1, he has
denied the defence of the respondent and further in order to
prove his case he has examined one Mahantayya as PW.2, who
has deposed that the respondent started to abuse the
petitioner in front of all the family members and refused to
prepare the food to the petitioner and family members. The
respondent has a habit of taking up quarrel and abusing the
petitioner and other family members in filthy language and
elders of the family advised the respondent to behave properly
and lead happy married life and there is no chance of reunion.
16. In the course of cross examination he admits that
the petitioner and the respondent are working as teachers and
they are going to school to discharge their duties. PW.2 admits
that PW.1 is his brother. He admits that the petitioner is
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residing in Kalaburagi and PW.2 is the resident of Rovoor.
Further, the petitioner also examined one Dayanand as PW3,
who has deposed in the same line of PW.2. In rebuttal, the
respondent was examined as RW.1 and she has reiterated the
written statement averments in the examination-in-chief.
Nothing has been elicited from the mouth of this witness in the
course of cross examination. Further, she also examined one
Basavaraj Hiremath as RW.2 i.e., father of the respondent. He
has deposed in the same line of RW.1.
17. From the perusal of evidence of the parties, the
petitioner has failed to establish that the petitioner was
subjected to cruelty by the respondent. If at all if the petitioner
was subjected to cruelty, the petitioner could have lodged the
complaint against the respondent. Admittedly, in the instant
case, the petitioner has not lodged any complaint against the
respondent for alleged cruelty. Though the petitioner has made
allegations in the Ex.P1, respondent replied to Ex.P1 and
denied the allegations made in the legal notice. Further, PW.2
and PW.3 are the relatives of PW.1. As observed above, if the
petitioner was subjected to cruelty by the respondent, the
petitioner could have examined the neighbours to establish that
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he was subjected to cruelty by the respondent. The petitioner
has not examined any independent witnesses. The learned
Principal Judge, Family Court has allowed the petition only on
the ground that the petitioner has made attempts even by
sending elder family members to take her back. Why she has
not gone back to the house of the petitioner is according to her
that, petitioner was hearing the words of his brother and his
wife and they have all taken entire salary and used to take her
money and they forced her to part away her salary and the
petitioner demanded cash and gold, but the respondent has not
taken any legal action against the petitioner. The findings
recorded by the trial court is contrary to the records. On the
contrary, the petitioner has made allegations against the
respondent that he was subjected to cruelty by the respondent,
and as observed above, the petitioner has not lodged any
complaint against the respondent for treating him with cruelty.
The petitioner except the oral evidence has not produced any
records to establish that he was subjected to cruelty by the
respondent.
18. The learned Family court without properly
considering the material placed on record, on the assumption
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has passed the impugned judgment. The petitioner has failed
to prove that the respondent has subjected him to cruelty. In
view of the above discussion, point No.1 is answered in the
negative.
19. Point No.2: The trial court without properly
considering the material placed on record, merely on the basis
of some stray sentence that respondent has not taken any
action against the petitioner amounts to cruelty and further in
the reply in Ex.P2, the respondent has clearly stated that
respondent is ready to join the company of the petitioner and
lead a happy marital life, in spite of petitioner has filed this
petition for dissolution of marriage. From the perusal of the
petition and also evidence of PWs.1 to PW.3, it does not specify
any kind of misbehaviour by the respondent which tentamounts
to cruelty. Therefore, evidence of PWs.1 to 3 is totally vague
without particular specification like that of the petition and
therefore it does not inspire our confidence as to reach to the
conclusion that the wife is guilty of matrimonial cruelty and we
do not find any misbehaviour on the part of the respondent so
grave and intense as to constitute a matrimonial cruelty. Thus
in view of the above discussion, impugned judgment and
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decree passed by the Family court is arbitrary and erroneous
and same is liable to be set aside. In view of the above
discussion, we answer point No.2 in the affirmative.
20. Point No.3: Accordingly, we proceed to pass the
following:
ORDER
i. Appeal is allowed.
ii. Impugned Judgment and decree dated
16.07.2022 passed in M.C.No.285/2019 by
the learned Principal Judge, Family Court,
Kalburagi, is set aside.
iii. Consequently, the petition filed under
Section 13(1)(ia) of Hindu Marriage Act, by
the petitioner is dismissed.
iv. No order as to the costs.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
SKS
