Karnataka High Court
Sharanamma vs Sumanth on 28 May, 2024
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MFA No.200452 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.200452 OF 2018 (FC-DIS)
BETWEEN:
SHARANAMMA
W/O SUMANTH BHANKUR,
AGE: 51 YEARS,
OCC: ANGANWADI TEACHER,
R/O CHINCHOLI, DIST: KALABURAGI,
NOW RESIDING AT H.NO.11-366/7A/1,
GANGA NAGAR COLONY,
BRAHMPUR, KALABURAGI.
...APPELLANT
(BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE)
Digitally signed
by VARSHA N
RASALKAR AND:
Location: HIGH
COURT OF
KARNATAKA SUMANTH
S/O RAMCHANDRAPPA BHANKUR,
AGE: 57 YEARS, OCC: NIL,
R/O CHINCHOLI,
TQ: CHINCHOLI,
DIST: KALABURAGI.
...RESPONDENT
(BY SRI SHARANAGOUDA V. PATIL, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURT ACT, 1984, PRAYING TO CALL FOR THE FAMILY
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MFA No.200452 of 2018
COURT RECORDS AND ALLOW THE APPEAL AND SET-ASIDE
THE JUDGMENT AND DECREE DATED : 30.01.2018, PASSED BY
THE DISTRICT JUDGE FAMILY COURT AT KALABURAGI, IN M.C.
NO.125/2016, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MFA COMING ON FOR HEARING THIS DAY, RAJESH
RAI K. J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and order
dated 30.01.2018 passed in MC No.125/2016 by the learned
District Judge, Family Court at Kalaburagi, wherein the
Family Court dismissed the petition filed by the appellant
under Section 13 (1)(ia)(ib) of Hindu Marriage Act, 1955.
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:
4. The marriage of the appellant/petitioner and
respondent was solemnized on 22.05.1985 at
Venkateshwara Temple at Chincholli, as per the customs
prevailing in their community. Thereafter, they both have
resided together and lead married life for a period of 25
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years. Out of the wedlock, a daughter by name Ishwari and a
son, by name Mahantesh are born. It is the case of the
appellant/petitioner that the respondent is not working as
well as earning for livelihood to help the family requirements
thereby, he has failed to perform the marital obligations as a
duty bound husband. The whole family of respondent is
depending on salary of the petitioner's mother-in-law who
was serving as AMI in Government Hospital, Chincholi.
Nevertheless, the respondent caused physical and mental
harassment to the petitioner by abusing her in filthy
language and assaulting her physically in a drunken
condition. The respondent is drunkard and also a gambler.
The petitioner was appointed as a Anganwadi Teacher in the
year 2006, thereafter, she used to maintain the family
including the respondent. Inspite of that, the respondent has
started ill-treating by forcing her to give her entire salary to
him. He also kept her in a wrongful confinement without
providing food and other amenities. Hence, without no other
options, she has left the matrimonial house on 06.03.2016
and started to reside along with her parents and accordingly,
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filed the divorce petition for dissolution of her marriage with
the respondent.
5. After service of summons the respondent has
appeared before the Family Court and filed his objections.
6. After considering the facts and circumstances of
the case, the learned Family Judge has raised the following
points for consideration:
"i. Whether the petitioner proves that
respondent has treated her with cruelty and it is
not possible for her to reside with him?
ii. Whether petitioner has proves that
respondent has deserted the petitioner for more
than 2 years without any justifiable reasons?
iii. Whether petitioner is entitled to decree of
divorce?"
7. In order to prove the case of the petitioner, she
herself was examined as PW.1 and got examined one more
witness as PW.2 on her behalf and got marked one
document as Ex.P1. Though the respondent examined
himself as DW.1, not produced any document.
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8. After assessment of oral and documentary
evidence, the learned Family Judge answered point No.1 to 3
in negative and thereby, dismissed the divorce petition filed
by the petitioner. Challenge to the same is lis before this
Court.
9. Heard Sri.Sharanabasappa K. Babshetty, learned
counsel for the appellant/petitioner and Sri.Sharanagouda
V.Patil, learned counsel for respondent and also perused the
evidence and documents made available before us.
10. It is the primary contention of the learned counsel
for the petitioner that the Family Judge totally erred by
dismissing the petition filed by the petitioner without
properly appreciating the evidence available on record. PW.1
in her evidence categorically stated that the respondent/
husband tried to manipulate things and poured kerosene on
her body in order to commit her murder and due to such
intolerable harassment meted out by him, she left the
matrimonial home. The said aspect was very much proved
before the Family Court. There is a fundamental and
temperamental difference between the petitioner and her
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husband and their marriage has been irrevocably broke
down. Accordingly, he prays to allow the appeal.
11. Alternatively, the learned counsel submits that
the Family Judge failed to appreciate the evidence of PWs.1
and 2 and passed the impugned judgment on surmise and
conjectures which required to be remitted back to the Family
Court for fresh consideration.
12. Per contra, learned counsel for the respondent
would submit that the Family Court after meticulously
examining the evidence available on record, has rightly
dismissed the petition in a well reasoned judgment which
does not call for any interference. By enunciating his
arguments, he submits that the petitioner and respondent
have led married life for about 31 years happily and after the
petitioner got appointed as Anganwadi Teacher and started
to earn income, she intentionally deserted the respondent
and filed divorce petition without any such valid grounds, as
such, the Family Court rightly dismissed the petition.
13. Having heard the learned counsel for the parties
so also having perused the documents made available before
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us including the impugned judgment, the only point that
would arise for our consideration is:
i. Whether the impugned judgment passed by the
Family Judge in MC No.125/2016 suffers from
any perversity and calls for any interference by
this Court?
14. On careful perusal of the impugned judgment
passed by the Family Court, the Family Judge instead of
meticulously examining the evidence available on record and
passing the judgment, relied on surmise and conjectures and
came to the conclusion that since the parties have led
married life for more than 20 years, as such, there is no
possibility of such difference of opinion from the last three
years before filing the petition. Further, the Family Judge
opined that there are no specific instances when the
petitioner was beaten and abused by the respondent and
there is no such complaint registered by the police to that
effect. Nevertheless, the Family Court opined that the length
of marriage between the petitioner and respondent itself will
go to show that if there are any shortcomings they will be
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condoned and led married life. As such, they both must try
to reconcile and sort out their differences when such
possibilities are available for them, hence, held that the
petitioner failed to prove the cruelty as well as desertion and
dismissed the petition filed by the appellant.
15. This reasoning of the learned Family Judge is
totally misconceived as much as the facts and circumstances
of the case and the same cannot be accepted for the reason
that instead of relying the evidence and documents placed
before the Family Court, the Family judge passed the
judgment on surmise and conjectures. In that view of the
matter, we are of the view that the judgment and order
passed by the Family Court is liable to be set aside and the
matter is required to be remitted to the Family Court for
fresh consideration. Accordingly, we answer the point raised
above in the affirmative and proceed to pass the following:
ORDER
i. The appeal is allowed.
ii. The judgment and decree dated 30.01.2018
passed by the District Judge, Family Court,
Kalaburagi in M.C.No.125/2016 is set aside.
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iii. The matter is remitted to the Family court,
Kalaburagi for fresh consideration.
iv. Family Court is directed to reconsider the
matter afresh and consider the evidence of
both the parties and pass appropriate
judgment in accordance with law.
v. Parties are directed to appear before the
Family Court on 22nd July, 2024, without
awaiting further notice from the Family
Court.
vi. We have not made any observation on
merits of issue.
vii. All the contentions of the parties are kept
open.
Sd/-
JUDGE
Sd/-
JUDGE
VNR
CT;BN
