Karnataka High Court
Laxman vs Smt. Philomina on 6 June, 2024
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NC: 2024:KHC-K:3643-DB
MFA No. 201999 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH 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. 201999 OF 2017 (MC-DIV)
BETWEEN:
LAXMAN
S/O MALLAPPA KOPPER,
AGE:41 YEARS,
OCC:TMC EMPLOYEE, DEODURGA,
R/O DEODURGA,
TQ.DEODURGA,
DISTRICT: RAICHUR-584 111.
...APPELLANT
Digitally signed (BY SRI. AVINASH A UPLOANKAR, ADVOCATE)
by VARSHA N
RASALKAR
Location: HIGH AND:
COURT OF
KARNATAKA
SMT. PHILOMINA
W/O LAXMAN D/O DESHAPPA,
AGE:36 YEARS,
OCC:TEACHER IN GOVT PRIMARY SCHOOL,
R/O NEAR CHURCH,
NAGANOOR VILLAGE,
TQ.LINGASUGUR,
DISTRICT:RAICHUR-584122.
...RESPONDENT
(BY SRI. SHIVANAND PATIL, ADVOCATE)
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NC: 2024:KHC-K:3643-DB
MFA No. 201999 of 2017
THIS MFA IS FILED UNDER SECTOPM 28 OF HINDU
MARRIAGE ACT, PRAYING TO ALLOW THE APPEAL BY SETTING
ASIDE THE JUDGMENT AND DECREE DATED 01.09.2017
PASSED IN M.C.NO.34/2015 BY THE LEARNED SENIOR CIVIL
JUDGE AND JMFC AT LINGASUGUR, AND CONSEQUENTLY
ALLOW THE PETITION, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This miscellaneous first appeal is filed under Section
28 of the Hindu Marriage Act, challenging the judgment
dated 01.09.2017 passed in M.C.No.34/2015 on the file of
the Senior Civil Judge & JMFC, Lingasugur (for short 'trial
Court').
2. Brief facts leading to filing of this appeal are as
under;
The marriage of the appellant with the respondent
was performed on 04.05.2007 in front of house of the
appellant at Deodurga and the said marriage was
performed as per the customs prevailing in their
community. After the marriage, the Nuptial function was
arranged and respondent has refused for co-habitation and
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to discharge her marital obligation. On enquiry by the
appellant, the respondent has expressed that the marriage
was against her will and wish and she has been compelled
by her parents to the marriage. Therefore, she is not
ready for physical contact with the appellant and after 8
days she left her parents house. The respondent during
her stay with the appellant, she always refused for marital
obligation and refused for the same. Therefore, there was
no physical relationship between the appellant and
respondent till day. The appellant, aggrieved by the in-
action on the part of the respondent in not performing her
marital obligation filed divorce petition under Section 13 of
the Hindu Marriage Act.
3. The respondent has filed written statement
admitting the relationship with the appellant and denied
the allegations made by the appellant in the petition. It is
contended that the respondent being a school teacher in
her young age with future ambitions married with the
appellant without knowledge of his illegal relationship.
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When she advised to end his illegal relationship, he took
scuffle with her and ultimately driven out from matrimonial
home. It is contended that, she is ready and willing to
joint the company of the appellant and on the contrary the
appellant is not permitting the respondent to join the
company of the appellant. Hence, on these grounds, she
prayed to dismiss the petition.
4. The trial Court, on the basis of the pleading of
the parties framed the relevant issues.
5. The appellant, in order to substantiate his case,
examined himself as PW.1 and also examined two
witnesses as PWs.2 and 3 and got marked one document
as Ex.P1. The respondent examined herself as RW.1 and
one witness as RW.2, however no documents have been
marked.
6. The trial Court, after recording the evidence,
hearing on both sides and on the assessment of oral and
documentary evidence, answered point No.1 in the
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negative, point No.2 as per final order and dismissed the
petition filed by the appellant. The appellant, being
aggrieved by the judgment has filed this appeal.
7. Heard the learned counsel for the appellant and
learned counsel for respondent.
8. Learned counsel for the appellant submits that
the respondent has failed to fulfill the marital obligation
and further she has voluntarily deserted the appellant and
residing separately since from 10 years. Hence, there is a
breakdown of marriage between the appellant and
respondent. He submits that the respondent has deserted
the appellant. The appellant also examined the witnesses,
however the trial Court has not properly appreciated the
evidence of the witnesses. Hence, the judgment passed by
the trial Court is contrary to the records. Accordingly, he
prays to allow the appeal.
9. Per contra, learned counsel for the respondent
submits that the appellant had illicit relationship with
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Lordha Merry since from prior to her marriage and he did
not disclose his illegal relationship with the lady referred
above. Hence, he submits that though the respondent
requested the appellant, but the appellant did not heed to
the request made by the appellant. He also submits that
the respondent is ready and willing to join the company of
the appellant, but the appellant has driven her out from
the house. Hence, he submits that the appellant has failed
to establish the allegations made against the respondent
in the petition. He also submits that the trial Court has
rightly appreciated the evidence placed on record and
passed the impugned judgment. Hence, on these grounds
he prays to dismiss the appeal.
10. Perused the records and considered the
submissions of learned counsel for the parties. The points
that arises for our consideration are:
(a) Whether the appellant has proved that the
impugned judgment is arbitrary and
erroneous?
(b) What order?
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11. Point No.1: The appellant in order to
substantiate his case, examined himself as PW.1 re-
iterating the petition averments in the examination-in-
chief and also in support of his petition, he has got marked
marriage invitation card as Ex-p1 to establish the
relationship as husband and wife. Further, in the cross-
examination, it was suggested to PW.1 that, whether the
appellant is ready to take back her even though she is
willing to join the company of respondent, for which the
PW.1 has replied that he is not ready to take back her and
he is not willing to join the company of respondent. It was
also suggested that respondent is ready and wiling to
perform her martial obligation for which, PW.1 has denied
and further the appellant also examined two witnesses in
order to prove his case. From the perusal of evidence of
PWs.2 and 3, wherein they have deposed that the
marriage of appellant and respondent was performed they
are the hear say witnesses and their evidence cannot be
considered to hold that the respondent has deserted the
appellant. Further, in rebuttal, the respondent led the
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evidence and she was also examined herself as RW.1 and
she has re-iterated the written statement and in the
examination-in-chief. Further she has also deposed that
she is ready and willing to join the company of the
appellant and also ready to perform the matrimonial
obligation. On the contrary, the appellant is not ready and
willing to perform his part of marital obligation. The
burden is on the appellant to prove that the respondent
has deserted the appellant. In fact, from the perusal of the
evidence produced by the appellant, it does not disclose
that the respondent has voluntarily deserted the appellant.
Further the respondent also examined one witness as
RW.2 who depicts in the same line of RW.1. The trial Court
on the basis of the evidence and also documents produced
by the parties, has rightly held that the appellant has not
come to the Court with clean hands and further the
appellant has failed to establish that the respondent was
not willing to perform her martial obligation. Hence, the
trial Court was justified in passing the impugned
judgment, we do not find any error in the impugned
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judgment. Therefore, we decline to interfere with the
impugned judgment. Accordingly, we answer point No.1 in
the negative.
12. Point No.2: In view of the above discussions,
we proceed to pass the following:
ORDER
(a) The appeal is dismissed.
(b) The judgment dated 01.09.2017 passed in
M.C.No.34/2015 on the file of the Senior
Civil Judge & JMFC, Lingasugur, is hereby
confirmed.
(c) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
MSR
CT;BN
