Karnataka High Court
Venkat Reddy S/O Chanbassappa Kareddy vs Siddamma W/O Venkatreddy on 28 May, 2024
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MFA No. 200252 of 2014
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.200252 OF 2014 (FC)
BETWEEN:
VENKAT REDDY
S/O CHANBASSAPPA KAREDDY,
AGE: 40 YEARS, OCC:TEACHER,
R/O H.NO.221, PLOT NO.47/8
BIDDAPUR COLONY, GULBARGA - 585103.
...APPELLANT
(BY SRI. GANESH NAIK, ADVOCATE)
AND:
SIDDAMMA
Digitally signed W/O VENKATREDDY KAREDDY,
by VARSHA N AGE: 30 YEARS, OCC:HOUSEHOLD,
RASALKAR
Location: HIGH R/O GULBARGA, NOW RESIDING AT
COURT OF C/O CHANNAPPAGOUDA KAKALWAR,
KARNATAKA
VILLAGE MARADAGI, TQ.CHITTAPUR,
DISTRICT: GULBARGA-585211.
...RESPONDENT
(BY SRI. MOHD. KHADER KHAN, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, PRAYING TO ALLOW THE APPEAL, CALL FOR THE
RECORDS, SET ASIDE THE JUDGMENT PASSED BY THE
DISTRICT JUDGE FAMILY COURT GULBARGA IN MC
NO.85/2010 DATED 19.12.2013, BY GRANTING A DECREE OF
DIVORCE, IN THE INTEREST OF JUSTICE.
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MFA No. 200252 of 2014
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 passed in MC No.85/2010 dated 19.12.2013 by the
District Judge, Family Court, Kalaburagi wherein the
learned District Judge dismissed the petition filed by the
appellant/petitioner under Section 13(1)(ia)(ib) of the
Hindu Marriage Act, 1955 (for short, hereinafter referred
to as 'the Act').
2. The parties are referred to as per their ranking
before the Family Court.
3. The facts apposite 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
30.04.2004 at Sri.Bhajlingeshwar Math at Sugoor (N)
village, Chittapur as per the customs prevailing in their
community. After marriage the respondent had joined the
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company of the petitioner and they led happy married life
for a period of 08 months. The further case of the
petitioner is that subsequently, the respondent started to
refuse the company of the petitioner and started to leave
separately in the matrimonial house for a period of one
year. The respondent was always complaining that she
was forced to marry the petitioner by her brother and
mother, though she was not willing to marry the
petitioner. It is further alleged that respondent used to
avoid the petitioner as she had great ambitions to marry
an engineer and the petitioner was not the person who
fulfills her ambitions. Things stood thus, after two years
from the date of marriage, the brother of the respondent
had come to the petitioner's house i.e., matrimonial house
and took the respondent with him on the pretext of post
maternal care taking of his wife. Thereafter, the
respondent had not returned back to the matrimonial
house inspite of several efforts made by the petitioner and
his well-wishers, thereby, she deserted the petitioner
without any just and reasonable cause. Though efforts
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were made by the petitioner to bring back the respondent
to the matrimonial home, the same went in vain.
4. It is also contended that the respondent herself
instituted case for a decree of divorce against the
petitioner and when he refused for the same, she started
to harass him by filing false and frivolous complaints
against him and his family members before the
jurisdictional police. However, those complaints were not
registered against the petitioner. Such being the case, the
petitioner decided that the relationship with the
respondent cannot be continued and as such, he sought
for a decree of divorce before the Family Court by filing MC
No.85/2010.
5. After service of notice, respondent remained
absent and accordingly, she was placed ex-parte. Since
the respondent placed ex-parte, the learned Family Judge
after hearing the petitioner allowed the petition filed by
the petitioner and granted decree of divorce by dissolving
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the marriage of the petitioner and respondent vide order
dated 19.12.2013.
6. Subsequently, the respondent has filed a Civil
Misc. Case No.06/2012 for restoration of matrimonial case
i.e., MC No.85/2010. The said petition came to be allowed
on 05.07.2013 and the MC case is restored to its original
number. Thereafter, notice issued to both the parties and
the respondent appeared through her counsel and filed
objection by denying the averments made in the divorce
petition. According to her, she is ever ready and willing to
lead happy married life with the petitioner and it is the
petitioner and his family members who are ill-treating her
for the reason that her parents have not given sufficient
dowry at the time of marriage. Additionally, the petitioner
used to assault at her. Hence, he himself harassed her
both physically and mentally. As such, she had lodged a
complaint against him before the jurisdictional police
which came to be registered against the petitioner in
Crime No.1727/2010 for the offences punishable under
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Sections 498(A), 323, 342, 504, 506 read with Section 34
of IPC and under Sections 3 and 4 of Dowry Prohibition
Act. Thereafter, the police have filed the final report
against the petitioner. Hence, according to the respondent,
the harassment meted out by the petitioner is clearly
established. Accordingly, she prayed to dismiss the
petition. The learned Family Judge after considering the
facts and circumstances of the case, framed the following
points for consideration:
"1. Whether petitioner proves that
respondent has treated the petitioner with
cruelty?
2. Whether petitioner further proves that
respondent has deserted the petitioner for a
continuous period of not less than two years
immediately preceding the presentation of this
petition?
3. Whether petitioner is entitled to decree
of divorce?
4. What order?
7. In order to prove the case of the petitioner
before the Family Court, he himself was examined as PW.1
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and other two witnesses were examined as PWs.2 and 3
and got marked 5 documents as Exs.P1 to P5. However,
the respondent examined herself as DW.1 but not marked
any document on her behalf.
8. After assessment of the oral and documentary
evidence, the learned Family Judge answered point Nos.1
to 3 in negative and point No.4 as per the final order and
dismissed the petition filed by the petitioner as stated
supra. Challenge to the same is lis before this Court.
9. Heard the learned counsel for the appellant-
petitioner and the learned counsel for the respondent.
10. It is the primary contention of the learned
counsel for the petitioner that the Family Judge totally
erred while dismissing the petition filed under Section 13
(1)(ia)(ib) of the Act. Though, the petitioner proved the
cruelty meted out by the respondent to him and his family
members by placing cogent evidence and documents
before the Family Judge, but those materials are not
perused by the Family Court. According to the learned
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counsel, respondent has filed a false complaint against him
and such false prosecution itself is a ground for decree of
divorce. The same is substantiated by the petitioner since
he and his family members were acquitted in the criminal
case filed by the respondent in C.C.No.1602/2011 vide
judgment dated 05.09.2013 by the V Additional Civil Judge
and JMFC at Kalaburagi. Hence, on that ground alone the
petitioner is entitled for a decree of divorce as held by the
Hon'ble Apex Court in the case of Mangayakarasi vs.
M.Yuvaraj reported in (2020) 3 SCC 786.
11. Learned counsel would further enunciate his
arguments by emphasizing the evidence deposed by the
petitioner and other two witnesses wherein they have
categorically deposed before the Family Court about the
harassment meted out by the respondent and that she
herself insisted for a decree of divorce from the petitioner.
When he failed to do so, she lodged a false prosecution
against him. However, after filing of the divorce petition
before the Family Court by the petitioner, she remained
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absent and exparte decree was granted by the Family
Judge. After a year of passing such decree, the
respondent filed an application to set aside the decree and
to restore the proceedings. Accordingly, the proceedings
were restored and the Family Court dismissed the divorce
petition by placing reliance on the evidence of respondent
which is not sustainable under law. Accordingly, he prays
to allow the appeal.
12. Refuting the above submission made by the
learned counsel for the petitioner, learned counsel for
respondent would vehemently contend that the Family
Judge after properly appreciating the evidence and
documents placed before it passed a well reasoned
judgment which does not call for any interference at the
hands of this Court. He would further contend that the
petitioner himself harassed the respondent both physically
and mentally to bring additional dowry. The petitioner
being the husband failed to perform marital obligation, per
contra, he used to assault physically to the respondent
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repeatedly. As such, she filed complaint before the
jurisdictional police which came to be registered for the
offences punishable under Sections 498(A), 323, 342, 504,
506 read with Section 34 of IPC and under Sections 3 and
4 of Dowry Prohibition Act. Though said case ended up
with the order of acquittal, the same itself will not be a
ground to grant decree of divorce. Further, the petitioner
failed to produce any such document to substantiate his
case before the Trial Court. Accordingly, he prays to
dismiss the appeal.
13. Having heard the learned counsel for the
respective parties so also having perused the documents
made available before us, the only point that would arise
for consideration is :
i. Whether the judgment passed by the
Family Court suffers from any perversity?
14. We have carefully perused the evidence and the
documents made available before us. Though the
petitioner examined himself as PW.1 before the Family
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Court and reiterated the contents of his petition in the
evidence and marked five documents on his behalf, on
careful perusal of the same, either in his evidence or the
documents placed by him does not disclose any such
harassment meted out by the respondent to him. Except
the oral say of the petitioner, he miserably failed to prove
the allegation of harassment meted out by the respondent
which cause rise to filing of the divorce petition. Though
learned counsel for the petitioner contended that
launching of false criminal prosecution against the
petitioner itself amounts to harassment by relying the
judgment of the Hon'ble Apex Court in the case stated
supra, but as per the settled principle of law, the appellant
being the petitioner himself has to prove his case before
the Family Court by placing relevant documents. But in the
case on hand, the petitioner has failed to place such
cogent evidence. Though the petitioner has examined two
more witnesses on his behalf, they also reiterated the
petitioner's version and they being the hearsay witnesses,
much credence cannot be given to their evidence.
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15. Nevertheless, the respondent examined herself
as DW.1 and categorically deposed about the harassment
meted out by the petitioner both physically and mentally.
In order to substantiate her case, she relied the criminal
case registered against the appellant before the
jurisdictional police and filing of charge sheet in the said
case against the petitioner for the offences punishable
under Section 498(A) of IPC and under Sections 3 and 4 of
Dowry Prohibition Act. As rightly contended by the
learned counsel for the respondent that though the said
criminal case ended up with acquittal, that itself cannot be
a ground to grant divorce against the respondent since
petitioner was acquitted in the said criminal case for lack
of evidence to prove his case beyond reasonable doubt.
16. Further, the desertion claimed by the petitioner
that the respondent was residing separately in the
matrimonial house no worthwhile document is placed to
that effect. Per contra, the respondent who was examined
as DW.1 deposed before the Family Court that she is
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willing to join the company of the petitioner. But the
petitioner is not willing to get her back to the matrimonial
home to live a married life. Hence, on overall examination
of the evidence and materials placed before us, we are of
the considered view that the petitioner failed to prove the
cruelty and desertion at the hands of respondent to grant
a decree of divorce.
17. In view of the above discussion, we are of the
view that the Family Judge rightly dismissed the petition
filed by the petitioner. Accordingly, we answer the point
raised above in the negative and proceed to pass the
following:
ORDER
The appeal is dismissed as being devoid of merits.
Sd/-
JUDGE
Sd/-
JUDGE
VNR
CT; BN
