Karnataka High Court
Sanjeev vs Smt Neelamma on 4 June, 2024
-1-
NC: 2024:KHC-K:3559-DB
MFA No. 201880 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 201880 OF 2018 (FC-DIV)
BETWEEN:
SANJEEV
S/O ARJUN TALAWAR,
AGE: 47 YEARS, OCC: EMPLOYEE OF BSNL,
R/O HARTI VILLAGE,
TQ:INDI, DISTRICT: VIJAYAPURA.
...APPELLANT
(BY SRI. MAHANTESH PATIL, ADVOCATE)
AND:
SMT. NEELAMMA
Digitally signed by
BASALINGAPPA W/O SANJEEV TAAWAR,
SHIVARAJ
DHUTTARGAON AGE: 32 YRS, OCC: HOUSEHOLD WORK,
Location: HIGH
COURT OF R/O C/O V.S. KOLKAR HOUSE RAJAJI NAGAR,
KARNATAKA
VIJAYAPURA - 586 101.
...RESPONDENT
(SERVED)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 10.08.2018 PASSED BY THE I ADDL. PRL.
JUDGE, FAMILY COURT, VIJAYAPUR, IN M.C.NO.174/2016 AND
CONSEQUENTLY ALLOW THE DIVORCE PETITION AS PRAYED IN
THE FAMILY COURT, IN THE INTEREST OF JUSTICE AND
EQUITY.
-2-
NC: 2024:KHC-K:3559-DB
MFA No. 201880 of 2018
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and
order dated 10.08.2018 passed by the I Additional Prl.
Judge, Family Court, Vijayapura in Matrimonial Case
No.174/2016, wherein the Family Court dismissed the
divorce petition filed by the appellant under Section
13(1)(ia)(ib) of Hindu Marriage Act, 1995.
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 respondent is the legally wedded wife of the
petitioner and their marriage was solemnized on
14.05.2003 at Horti, Indi Taluk, Vijayapura District. After
the marriage, the respondent joined the matrimonial
house of the petitioner at Horti. Out of the wedlock, they
NC: 2024:KHC-K:3559-DB
have begotten two sons and one daughter. It is the further
case of the appellant that, his father was in service in
Telephone Department and he died in the year 1995
leaving behind his wife i.e., mother of the petition, his
brother and three sisters. The petitioner has completed
PUC and had applied for job on compassionate ground by
giving assurance to his siblings that he will properly look
after them. After the marriage, the respondent was
insisting the petitioner to have a separate house and to
settle at Vijayapura but, the appellant was not in a
position to leave his mother and his dependent brother
and sisters. Though the appellant made an effort to
convince the respondent, she was not in a position to
listen the words of the petitioner. As such, the respondent
cultivated the habit of going to her parental house and
staying there for months together. In all 13 years of
marital life, the respondent stayed only about 4 to 5 years
with the petitioner. The adamant nature of the
respondent made the life of the appellant miserable and
he lost his mental peace and he was not able to discharge
NC: 2024:KHC-K:3559-DB
his duty peacefully. The respondent used to abuse the
petitioner and his family members and made an attempt
to commit suicide by consuming sleeping tablets. During
the year 2016, she lodged a false complaint against the
petitioner in relation to harassment and left the
matrimonial house. However, after panchayath, though
she joined the petitioner, in the month of September
2014, once again she left the matrimonial house ever
since then she left the petitioner without any valid
reasons. Though the petitioner issued legal notice for
restoration of the conjugal relationship, she failed to join
the matrimonial house. As such, the petitioner filed
divorce petition in M.C.No.5/2015 and the same was
dismissed on 01.12.2015 on the ground that the petitioner
had filed the same before expiry of 2 years from the date
of desertion. Hence, the appellant once again filed the
divorce petition i.e., M.C.No.174/2016.
4. After service of notice, the respondent appeared
through her counsel and resisted the divorce petition by
NC: 2024:KHC-K:3559-DB
filing objection. She denied all the averments made in the
divorce petition.
5. After considering the facts and circumstances of
the case, the Family Court framed the following points for
consideration:
1) Whether petitioner proves that
the respondent has ill-treated
her with cruelty?
2) Whether the petitioner proves
that respondent deserted him?
3) What order?
6. In order to prove the case before the Family
Court, the petitioner himself examined as PW.1 and got
examined 2 witnesses as PWs.2 and 3 so also got marked
6 documents as Exs.P1 to P6. However, the respondent
neither examined any witness on her behalf nor got
marked any documents.
7. After assessment of the oral and documentary
evidence, the Family Court dismissed the petition filed by
NC: 2024:KHC-K:3559-DB
the petitioner as stated supra. Challenge to the same is lis
before this Court.
8. We have heard the learned counsel Sri
Mahantesh Patil for appellant so also perused the materials
available on record.
9. It is the primary contention of the learned
counsel for the appellant that, the Family Court
erroneously passed the impugned judgment by relying on
the dismissal of the divorce petition in M.C.No.5/2015
dated 01.12.2015. The said case was dismissed on the
ground that the petition was filed within two years from
the date of desertion. As such, the reliance of the said
order is totally misconceived by the Family Court. He
would further contend that the desertion and cruelty are
continues wrongs, each day would give a fresh cause of
action. The respondent lodged the false complaint against
the petitioner itself, which amounts to cruelty as per the
settled principles by the Hon'ble Apex Court.
Nevertheless, she willfully deserted the petitioner from
NC: 2024:KHC-K:3559-DB
September, 2014. The said aspect was not considered by
the Family Court. As such, the impugned judgment is
liable to be set-aside. Accordingly, he prays to allow the
appeal.
10. Though notice served to the respondent, she
failed to appear before this Court personally or through
her counsel.
11. Having heard the learned counsel for the
appellant so also having perused the documents made
available before us, the only point that would arise for our
consideration is:
"Whether the judgment and order
passed by the Family Court suffers from
perversity and requires any interference
by this Court?"
12. As could be seen from the evidence adduced by
the appellant as PW.1, he categorically admitted that the
respondent filed maintenance petition against him in
Crl.Misc.No.534/2014 and lodged a complaint against him.
NC: 2024:KHC-K:3559-DB
The Police called him to the Police Station and advised him
to take care of his wife. Accordingly, he agreed in the
Police Station to make a separate house and stay along
with his wife. The elders of the family also advised him to
that effect. However, the petitioner failed to act as per his
assurance and harassed & neglected to maintain his wife.
Apart from that, he totally deserted her. It is also
forthcoming in the cross examination of PW.1 that though
the respondent is ready and willing to join the matrimonial
house, the petitioner is not ready to accept her to the
matrimonial house to lead a happy married life. As such,
the petitioner failed to prove that the respondent
abandoned him without intending to join the matrimonial
home. Nevertheless, the evidence of PWs.2 and 3 who are
the hearsay witnesses also admitted in their cross
examination that they were not personally aware about
the family relationship between the petitioner and the
respondent. As such, their evidence no way helps to the
case of the petitioner. Hence, on overall perusal of the
pleadings and evidence, the petitioner failed to prove that
NC: 2024:KHC-K:3559-DB
the respondent has treated him with such cruelty so as to
cause a reasonable apprehension in the mind that it would
be harmful or injurious for the petitioner to lead life with
the respondent. In that view of the matter, we are of the
considered opinion that the Family Court passed the
considerable order which does not call for any
interference. Accordingly, we answer the point raised
above in the negative and proceed to pass the following:
ORDER
The appeal is dismissed being devoid of merits.
Sd/-
JUDGE
Sd/-
JUDGE
HKV
CT;BN
