Karnataka High Court
Smt. Roopa W/O. Sanjeev Sanikoppa vs Shri. Sanjeev S/O. Basavaraj Snikoppa on 15 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 100089 of 2018
C/W MFA No. 100090 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 100089 OF 2018 (FC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100090 OF 2018
(FC-DIV)
IN MFA NO. 100089 OF 2018
BETWEEN:
SMT. ROOPA W/O. SANJEEV SANIKOPPA,
AGE: 35 YEARS, OCC: PRIVATE SERVICE,
D/O. RACHAPPA MURGI,
R/O. "AMAR KUNJ", ANANDASHRAMA ROAD,
NEAR HALKERIMATH, MASARI, GADAG-582101.
Digitally signed ...APPELLANT
by MANJANNA E
Location: HIGH (BY SRI. K. L. PATIL AND SMT. PADMAJA TADAPATRI, ADVOCATES)
COURT OF
KARNATAKA
DHARWAD AND:
BENCH
Date: 2024.11.25
10:53:17 +0530 SHRI. SANJEEV S/O. BASAVARAJ SANIKOPPA,
AGE: 40 YEARS, OCC: ENGINEER,
R/O. ITAGI, TQ: KHANAPUR, DIST: BELGAUM,
NOW AT: R/O. INFOSIS LTD., PLOT NO.24/3, FEZ 12
MANNAHALLI, TQ: MULSHI, DIST: PUNA-412115.
...RESPONDENT
(BY SRI. S. L. MATTI, ADV. FOR B. S. KUKANAGOUDAR, ADVOCATE)
THIS MFA IS FILED U/S.19(1) OF FAMILY COURTS ACT, 1984,
PRAYING TO CALL FOR THE RECORDS AND ALLOW THIS APPEAL BY
SETTING ASIDE THE ORDER DATED 08.12.2017 PASSED BY THE
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MFA No. 100089 of 2018
C/W MFA No. 100090 of 2018
HON'BLE PRINCIPAL JUDGE FAMILY COURT GADAG IN M.C
NO.63/2015 AND DISMISS THE CLAIM OF THE
RESPONDENT/HUSBAND FOR RESTITUTION OF CONJUGAL RIGHTS
IN THE ENDS OF JUSTICE.
IN MFA NO. 100090 OF 2018
BETWEEN:
SMT. ROOPA W/O. SANJEEV SANIKOPPA,
AGE: 35 YEARS, OCC: HOUSE HOLD WORK,
D/O. RACHAPPA MURGI, "AMAR KUNJ"
R/O. ANANDASHRAMA ROAD,
NEAR HALKERIMATH, MASARI,
GADAG-582101.
...APPELLANT
(BY SRI. K. L. PATIL AND SMT. PADMAJA TADAPATRI, ADVOCATES)
AND:
SHRI. SANJEEV S/O. BASAVARAJ SANIKOPPA,
AGE: 42 YEARS, OCC: ENGINEER INFOSIS,
R/O. INFOSIS LTD., PLOT NO. 24/3, FEZ 12,
MANNAHALLI, TQ: MULSHI, DIST: PUNA-411004.
...RESPONDENT
(BY SRI. S. L. MATTI, ADV. FOR B. S. KUKANAGOUDAR, ADVOCATE)
THIS MFA IS FILED U/S.19(1) OF FAMILY COURTS ACT, 1984,
PRAYING TO CALL FOR THE RECORDS AND ALLOW THIS APPEAL BY
SETTING ASIDE THE ORDER DATED 08.12.2017 PASSED BY THE
HON'BLE PRINCIPAL JUDGE FAMILY COURT GADAG IN M.C
NO.78/2014 AND GRANT DECREE OF DIVORCE IN THE ENDS OF
JUSTICE.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
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MFA No. 100089 of 2018
C/W MFA No. 100090 of 2018
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
These appeals are filed by the appellant-wife under
Section 19(1) of the Family Courts Act, 1984 challenging
the judgment passed by the Principal Judge Family Court,
Gadag (for short 'Family Court') in MC No.63/2015 and MC
No.78/2014 dated 08.12.2017 whereby, the Family Court
has dismissed the petition filed by the appellant-wife in MC
No.78/2014 under Section 13(1)(i-b) of the Hindu
Marriage Act, 1955 (for short 'the Act') and allowed the
petition filed by the respondent-husband in MC
No.63/2015 filed under Section 9 of the Act.
2. For the sake of convenience, the parties are
referred to according to their ranks before the Family
Court henceforth.
3. Brief facts of the case:
4. The marriage of the appellant-wife and
respondent-husband was solemnized on 25.02.2007 at
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Panchacharya Mangalya Mandira, Gadag. Both of them
belong to Hindu Lingayat community and their marriage
was solemnized as per the customs and rites of their
community. During the wedlock of their marriage, the
appellant-wife gave birth to a male child named as Nitin
on 14.09.2008. Respondent-husband led happy married
life for very short period and there after on account of
torture, mental harassment, dowry demand and cruel
activities towards appellant-wife, she came back along
with her son to her parents' house from Pune during
March-2013. Thereafter, nearly for a period of one year
the respondent-husband neither changed his attitude nor
he came to take the appellant-wife and son to lead happy
marital life. On the contrary, he further tortured and gave
mental cruelty to the appellant-wife and her parents by
sending obscene messages through mobile phones. Left
with no choice, the appellant-wife filed the petition seeking
decree of divorce before the Family Court and further she
filed a miscellaneous petition seeking maintenance. The
respondent-husband also filed a petition for restitution of
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conjugal rights. The Family Court by common judgment
dated 08.12.2017 has allowed the petition filed by the
respondent-husband and dismissed the petition filed by
appellant-wife. Being aggrieved by the judgment passed
by the Family Court, the appellant-wife has filed these
appeals.
5. Learned counsel for the appellant-wife has
contended that the Family Court has not considered the
oral and documentary evidence on record in a proper
perspective manner. In fact the respondent-husband
during the subsistence of marriage was abusing the
appellant and sending threatening messages as can be
seen from Ex.P6 which clearly establishes the mental
harassment, torture and cruel attitude of the respondent-
husband. This portion of the important evidence placed on
record coupled with corroborative documentary evidence
at Ex.P9 and oral evidence, clearly establishes the
ingredients of cruelty made by the respondent-husband.
But, the Family court has not considered this aspect.
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Further, the respondent-husband was addicted to
consuming alcohol that too in the presence of the child
and was harassed and ill treating the wife which reached
to the extent of in-tolerability by the appellant-wife. This
piece of evidence was also not discarded by the Family
Court. Further the Family Court has not appreciated the
irretrievable break down of marital status of the appellant-
wife and respondent-husband. On all these grounds he
prayed to allow the appeal.
6. Learned counsel appearing for the respondent-
husband vehemently contended that the appellant-wife
has failed to prove the ingredient of cruelty as required
under Section 13(1)(i-a) of the Act. Therefore, the Family
Court has rightly dismissed the petition filed by the
appellant-wife and rightly ordered for restitution of
conjugal rights. Hence, he prayed to dismiss the appeal
filed by the appellant-wife, confirming the order with
regard to restitution of conjugal rights.
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7. In order to establish the contention of
appellant, the appellant-wife herself examined as PW.1
and examined one witness Sri. Rachappa Muragi as PW2
and in support of evidence she relied upon Ex.P1 to P9
documents. For the defence, the respondent-husband
himself examined as RW1 and RW2, 3, 4 and in support of
evidence, he relied upon Ex.R1 to R104 documents.
8. Having heard the learned counsel for the
parties, and on perusal of the appeal papers, the only
point that would arise for our consideration in this appeal
is;
"Whether the quantum of compensation
awarded by the Tribunal is just and
reasonable or does it call for enhancement or
reduction?"
9. In order to prove her case, the appellant
examined on oath as PW1. In her chief examination she
has reiterated the averments made in the petition. She
has stated that, her marriage was solemnized with the
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respondent on 25.02.2007 at Panchcharya Mangal Mandira
Gadag. After the marriage she joined the company of her
husband-respondent. She stayed with her husband for
five years thereafter, she came back to her parental
house. Out of the marriage wedlock, she gave birth to
male child by name Nitin on 14.09.2008. The respondent
has been working as Software Engineer in Satyam
Company at Hyderabad. Thereafter, the respondent went
to abroad i.e., Belgium. Later he came back. In the year
2009 the respondent working company was closed, hence
he became unemployed. In the year 2010 respondent got
employed at Chennai. Hence, the appellant and
respondent were residing at Chennai in a rented house.
During this period, the respondent used to harass the
appellant to bring money from her parental house, he
used to abuse her, assaulted her, he also addicted to
consuming alcohol. In this regard the appellant requested
him not to abuse her or assault her and also requested
him to away from bad vices but, he did not heed her
request. Thereafter, respondent picked up quarrel with
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her, assaulted her, tortured her physically and mentally.
In the meanwhile, the appellant conceived, during such
period the respondent under intoxication condition
assaulted on her abdomen hence, abortion took place.
Later, the respondent brought her from Hyderabad to
Gadag in the railway station, left her and her son and went
away. In this way the respondent harassed her physically
and mentally.
10. In support of her contentions, the appellant got
examined her father as PW2, who in turn reiterated the
oral evidence of PW1 and corroborates her oral testimony.
11. To rebut the oral evidence of PW1 and PW2, the
respondent himself examined on oath as RW1, by
admitting marital relationship and son born out of their
wedlock. However, denied the allegations that respondent
harassed the appellant on the pretext of bringing more
amount from the parents of the appellant. He has stated
that he was interested to join the company of appellant
but, the appellant denied to join the matrimonial company
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and during the year 2014 she filed petition for divorce and
petition for maintenance, without there being no grounds.
She also filed suit for declaration and injunction in
O.S.No.317/2014. Apart from these proceedings the
appellant also filed criminal case against the respondent.
Thereby, the appellant is not ready to join the company of
respondent. All efforts made by the husband were went in
vein, hence, he had filed petition for restitution of conjugal
rights, in order to lead marital life with appellant. In
support of oral evidence of RW1 he also got examined
three more witnesses as RW2 to RW4, who reiterated the
oral evidence of RW1.
12. From perusal of the oral and documentary
evidence on record it clearly establishes that, the
respondent-husband was abusing the appellant-wife in a
vulgar language. Further from the contents of Ex.P6 it
appears that for the period from 26.09.2013 to
09.06.2014 the husband sends some messages to the
appellant-wife, which clearly establishes the mental
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harassment, torture and cruel attitude of the respondent-
husband towards appellant-wife. This portion of the
evidence placed on record coupled with corroborative
documentary evidence at Ex.P9 and oral evidence of
appellant-wife which clearly established the ingredients of
cruelty. But, the Family Court has not considered this
aspect. Further in the oral evidence of PW1 and PW2, they
have clearly stated that during the subsistence of the
marriage, the respondent was addicted to alcohol and that
too in the presence of child, he used to consume alcohol
and was harassing, ill-treating the appellant-wife.
Obviously this aspect of ill-treating the wife and no wife
could tolerate this aspect. However, this piece of evidence
also not considered by the Family Court. The Family Court
has given a clear go-by to the oral evidence and exhibited
documents furnished by the appellant, hence, the finding
of the Family Court requires some interference.
13. In view of the above, we are of the opinion that
the finding given by the Family Court liable to be set aside
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and the appeal filed by the appellant-wife under Section
13(1)(i-b) of the Act is deserves to be allowed.
Accordingly, we pass the following:
ORDER
i) The Appeal filed by the appellant-wife
in MFA No.100089/2018 is allowed.
ii) The appeal filed by the appellant-wife
in MFA No.100090/2018 is allowed and M.C.
No.63/2015 filed by the husband is dismissed.
iii) Consequently, the marriage
solemnized between appellant-wife and
respondent-husband on 25.02.2007 is hereby
dissolved.
iv) So far as permanent alimony is
concerned, the appellant-wife has filed an
affidavit stating that she has not claiming any
maintenance or permanent alimony from her
husband for herself and her child.
v) The child by name 'Nitin' is aged
about 16 years and hence, the respondent-
husband granted visiting rights.
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vi) The respondent-husband is at liberty
to visit the child once in fifteen (15) days
preferably by Sunday in near by place where
the child is residing, till he attains majority.
vii) The mother of the child i.e.,
appellant-wife shall facilitate when the
respondent-husband visiting the child.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
SMM/ct-an
