Karnataka High Court
K.Doddaranga Reddy S/O Venkanna vs Ushamama @ Hushamma W/O Doddarngareedy on 30 May, 2024
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MFA No. 202028 of 2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH 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. 202028 OF 2015 (MC-DIS)
BETWEEN:
K.DODDARANGA REDDY
S/O VENKANNA,
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE
R/O CHANNALLI, TQ. SINDHANUR,
DISTRICT: RAICHUR.
...APPELLANT
(BY SRI.I.R.BIRADAR, ADVOCATE)
Digitally signed AND:
by VARSHA N
RASALKAR
Location: HIGH USHAMMA @ HUSHAMMA
COURT OF
KARNATAKA W/O DODDARANGAREEDY
AGE: 50 YEARS,
OCC: HOUSEHOLD,
R/O CHANNALLI
NOW AT HIRAL VILLAGE,
TQ. & DISTRICT: BALLARI-583101.
...RESPONDENT
(BY SRI. SUSHIT GANACHARI, ADVOCATE
FOR SRI NITESH PADIYAL, ADVOCATE)
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MFA No. 202028 of 2015
THIS MFA IS FILED UNDER SECTION 28 OF THE HINDU
MARRIAGE ACT, PRAYING TO ALLOW THIS APPEAL AND SET-
ASIDE THE JUDGMENT AND ORDER DATED 30.08.2014
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT
LINGASUGUR, SITTING AT SINDHANUR IN MC NO.19/2009
AND CONSEQUENTLY TO SET-ASIDE THE JUDGMENT AND
ORDER DATED 01.04.2015 PASSED BY THE IIND ADDL
DISTRICT AND SESSIONS JUDGE AT RAICHUR IN MA
NO.65/2014, IN THE INTEREST OF JUSTICE AND EQUITY.
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 01.04.2015 passed by the II Additional District and
Sessions Judge in MA No.65/2014 filed by the appellant herein
under Order 41 Rule 1 of CPC, wherein the Appellate Judge
dismissed the appeal filed by the appellant thereby confirmed
the order passed in MC No.19/2009 dated 30.08.2014 by the
Senior Civil Judge and JMFC, at Lingasugur sitting at Sindhanur.
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:
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4. The petitioner is the legally wedded wife of the
respondent. Their marriage was solemnized on 05.06.1983 at
Hirehal village as per their customs and rituals. After the
marriage, the petitioner joined the house of respondent at
Chennahalli village. Their marriage was consummated. Both the
petitioner and respondent were leading happy marital life for
about 5 to 6 years. Later, the respondent started to ill-treat the
petitioner by harassing her both physically and mentally. He
used to abuse and insult her so also assaulted her on several
occasions for the reason that she was not begotten child and
not brought dowry at the time of marriage. Though the
petitioner informed the same to her parents and they made
such efforts to reconcile the marital relationship by advising the
respondent not to indulge in such acts, however, he continued
with the same. Hence, the petitioner filed a criminal
miscellaneous petition in the year 1989 in Criminal
Misc.No.41/1989 for maintenance against the respondent. The
said case was ended up with compromise. The respondent gave
four acres of land with house to the petitioner for her
maintenance. Thereafter, the petitioner started to reside along
with her parents, as the respondent totally deserted her. The
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further case of the petitioner is that on 18.02.1989, the
respondent got married with one Sunitha. Out of the said
marriage, three children were born to the respondent through
second wife. As such, he completely stopped either to visit the
petitioner or to continue the marital relationship with her. Per
contra, he filed several civil and criminal cases against the
petitioner in various Courts in order to harass her for getting
back the land and house property which was given to her in the
compromise made in Criminal Misc.No.41/1989. Hence, due to
intolerable mental and physical torture, the petitioner filed the
divorce petition under Section 13(1)(ia) of Hindu Marriage Act,
1955 to dissolve her marriage with the respondent.
5. After service of notice, the respondent has
appeared before the Family Court and filed his statement of
objections by denying all the averments made in the divorce
petition. According to him, at no point of time, himself or his
family members have ill-treated the petitioner for demand of
dowry, though he had given four acres of land to the petitioner
as per the compromise with the condition that the petitioner
should not alienate the said property in any manner. However,
the petitioner made an attempt to dispose of the land and
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house property. Hence, he filed the suit against her. As such,
the same cannot be termed as cruelty. Accordingly, he prayed
to dismiss the petition.
6. After considering the facts and circumstances of the
case, the Family Court framed the relevant issues for
consideration. In order to prove the case of the petitioner
before the Family Court, she got herself examined as PW.1 and
got marked five documents as Exs.P1 to P5. Nevertheless, the
respondent also got examined himself as RW.1 and examined
two more witnesses on his behalf as RWs.2 and RW.3 and got
marked three documents as Exs.R1 to R3.
7. After assessment of the oral and documentary
evidence, the Trial Court allowed the divorce petition filed by
the petitioner and dissolved the marriage of the petitioner with
the respondent dated 05.06.1983. Aggrieved by the said order,
the respondent preferred an appeal before the
II Addl. District and Sessions Judge in Raichur in MA
No.65/2014 under Order 41 Rule 1 of CPC. The appellate Court
after appreciating the entire evidence on record, dismissed the
appeal filed by the respondent by confirming the order passed
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by the Trial Court. Challenge to the same is lis before this
Court.
8. We have heard Sri. I.R.Biradar, learned counsel for
the appellant/respondent and Sri.Sushit Ganachari, learned
counsel for the respondent/petitioner.
9. It is the primary contention of the learned counsel
for the appellant/respondent that the Trial Court and first
appellate Court totally erred while granting the decree of
divorce to the respondent/petitioner, without properly
appreciating the evidence so also the facts and circumstances
of the case. By enunciating his arguments, he would submit
that thought the compromise has been entered into between
the petitioner and the respondent in Criminal Miscellaneous
No.41/1989 and land measuring 4 acres has been given to the
petitioner for her maintenance by providing house
accommodation and though both the petitioner and respondent
are living separately, the petitioner often used to visit the
respondent's house and there was no such any fundamental
and temperamental difference between them. According to the
learned counsel, the petitioner herself performed the second
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marriage of the respondent through one Sunitha for the reason
that there was no issue out of the wedlock of petitioner and
respondent. The petitioner also made an attempt to alienate
the property given by him. Absolutely, there was no
harassment, cruelty or torture at the hands of respondent to
the petitioner. All these aspects have not been considered by
both the Courts below and passed the impugned judgments
which require interference by this Court. On these grounds, he
prays to allow the appeal.
10. Per contra, learned counsel for the respondent
/petitioner would submit that both the Family Court and first
appellate Court passed the judgment after meticulously
examining the evidence and documents placed before it.
According to the learned counsel, ever since the year 1989, till
this date, there is no any cohabitation between the petitioner
and the respondent. Moreover, the respondent got contracted
second marriage and out of the said wedlock, three children
were born. He totally deserted the petitioner and residing along
with the second wife. Nevertheless, he harassed the petitioner
both physically and mentally by filing false and frivolous cases
against her in order to grab the land which was given to her in
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the compromise arrived in Criminal Miscellaneous No.41/1989.
Such act of the petitioner itself amounts to cruelty and a
ground for granting divorce as held by the Hon'ble Apex Court
in the case of Mangayakarasi vs. M.Yuvaraj reported in
(2020) 3 SCC 786. Accordingly, he prays to dismiss the
appeal.
11. Having heard the learned counsel for the respective
parties so also having perused the documents, the points that
would arise for our consideration are:
1. Whether the judgments passed by the Family
Court and the first appellate Court suffer from any
perversity or illegality?
2. Whether the first appellate Court is justified in
dismissing the appeal filed by the appellant under
Order 41 Rule 1 of CPC by confirming the judgment
and order passed by the Senior Civil Judge and JMFC
in MC No.19/2009 dated 30.08.2014?
12. Since both the questions are interlinked, they are
taken up together for consideration. As per the admitted facts
in the case on hand, the petitioner and respondent were living
separately since 1989. It is not in dispute that the petitioner
had filed a Criminal Misc.No.41/1989 and it was ended in
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compromise on 17.04.1997 with a condition that the
respondent shall not interfere with the property allotted to the
petitioner for her maintenance. However, after said
compromise, the respondent had filed several suits against the
petitioner in O.S.No.225/1997, O.S.No.215/1992,
O.S.No.41/1999, O.S.No.78/1992 and also in O.S.No.11/2006
and O.S.No.165/2007 and against the judgment and decree in
some of the cases, appeals are also preferred before this Court.
Hence, on careful examination of the evidence and records, it is
clearly forthcoming that the respondent harassed the petitioner
not only by torturing physically and mentally but also by filing
false and frivolous suits as above. It could be seen that the
respondent had adopted the method to regain the property
from the petitioner by filing false suits. As rightly contended by
the learned counsel for the appellant, this amounts to cruelty
as per the law laid down by the Hon'ble Apex Court in the
above case supra. Nevertheless, as admitted by the
respondent, he got contracted the second marriage and out of
the said marriage, three children were born and he presently
residing with them by totally deserting the petitioner. As on
date of filing the MC petition, the petitioner and respondent are
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residing separately for more than 20 years. Hence, the marital
relationship between the petitioner and the respondent has
completely broke down and there is no such ray of hope of
reunion of the marital relationship. In such circumstance, in our
considered view, both the Family Court and the first appellate
Court have concurrently recorded finding of facts against the
appellant and rightly passed the judgments which do not call
for any interference.
13. In that view of the matter, we answer the point
No.1 raised above in negative and point No.2 in the affirmative
and proceed to pass the following:
ORDER
The appeal is dismissed as being devoid of merits.
Sd/-
JUDGE
Sd/-
JUDGE
VNR
CT;BN
