Karnataka High Court
Sri.Sabanna S/O Yamanappa ... vs Smt.Boravva W/O Sabanna ... on 19 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 103581 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH 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.103581 OF 2015
BETWEEN:
SRI. SABANNA S/O. YAMANAPPA KARIDYAVANNAVAR
AGE: 52 YEARS, OCC: K.S.R.T.C. DRIVER,
R/O: NAVANAGAR, BAGALKOT.
...APPELLANT
(BY SRI. SURESH N. KINI AND
Digitally signed
by MANJANNA E SRI. NAGAPRASAD S. KINI, ADVOCATES)
Location: HIGH
COURT OF
KARNATAKA
DHARWAD AND:
BENCH
Date: 2024.11.22
10:36:25 +0530
SMT. BORAVVA W/O. SABANNA KARIDYAVANNAVAR
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O: SORAKOPPA, TQ: DIST: BAGALKOT.
...RESPONDENT
(BY SRI. PRAKASH N. HOSAMANI, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 28 OF HINDU MARRIAGE
ACT, 1984, AGAINST THE JUDGMENT AND AWARD DATED
24.01.2015 PASSED IN M.C.NO.57/2012 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, BAGALKOT, DISMISSING THE
PETITION FILED UNDER SECTIONS 13(1)(ia) AND (ib) OF HINDU
MARRIAGE ACT, 1955.
THIS APPEAL, COMING ON FOR 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. 103581 of 2015
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
This appeal is filed challenging the judgment and
decree dated 24.01.2015 passed in M.C.No.57/2012 by
the learned Principal Senior Civil Judge, Bagalkot,
dismissing the petition filed by the appellant under Section
13(1)(ia) and (ib) of the Hindu Marriage Act, 1955
(hereinafter referred to as 'the Act', for short).
2. The appellant/husband was the petitioner and
the respondent/wife herein was the respondent in
M.C.No.57/2012 before the Family Court.
3. For the sake of convenience, the parties are
referred to as per their rank before the Family Court
henceforth.
4. Brief facts of the case are that, the marriage of
the appellant and the respondent was solemnized in the
year 1981 as per the Hindu tradition and custom
prevailing in their community. After marriage, the
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respondent went to marital house for leading marital life.
out of their wedlock, a male child by name Parashuram
was born and now he is aged about 23 years. After few
years of marriage, quarrel started between the appellant
and the respondent, as the petitioner, who was the driver
of KSRTC, used to go on trip and at that time, the
respondent alone was residing in the marital house. But
the respondent abruptly used to go to her parents house
situated at Sorakoppa village without any reason and
neglecting the mother of the petitioner. Further, the
respondent filed Criminal Miscellaneous No.124/1990 for
maintenance. Thereafter, the petitioner filed M.C.
No.14/1990 against the respondent for restitution of
conjugal rights. However, both the petitions were
compromised. Thereafter, the respondent came to the
house of the petitioner for leading marital life. The
respondent, again without informing to the petitioner and
to the elders, used to go to her parents house. The
appellant again requested the respondent to join his
company but the respondent refused to join with him
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even though his parents requested the respondent to join
the appellant. Therefore, petitioner and the respondent
are residing separately since many years. Hence, he
sought a decree for dissolution of marriage.
5. After institution of the petition before the
Family Court, the respondent/wife appeared through
counsel and filed a detailed objection opposing the
allegations made against her in the petition.
6. The appellant, in order to prove his case, got
examined himself as PW-1 and he also got examined one
Chandrashekar as PW.2 and got marked one document i.e
certified copy of the order in Crl.Misc.No.143/1996 as per
Ex-P1. For the defence, the respondent examined herself
on oath as RW.1 and got marked two documents as
Exs.R1 and R2.
7. The Family Court after considering the oral and
documentary evidence on record, dismissed the petition.
Being aggrieved by the dismissal of the petition for
divorce, the appellant has filed this appeal.
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8. Heard the learned counsel for the appellant and
the respondent.
9. Learned counsel for appellant vehemently
contended that, the Family Court ought to have seen that
the respondent has deserted the appellant and they have
been staying separately for more than 20 years and there
is no chance of resumption of marital life. Further, the
Family Court ought to have noticed that the appellant and
the respondent, even according to the respondent, as
claimed by her in her objection, are residing separately for
more than 20 years. Therefore, due to long passage of
time and on going litigation, the relationship of the parties
have become strained. Though the appellant established
the aspect of desertion and cruelty, the Family Court has
not considered those aspects. Hence, the learned counsel
prayed to allow the appeal.
10. On the other hand, learned counsel for the
respondent/wife contended that the appellant has willfully
neglected the respondent and now he is leading marital
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life with one Anasuya. The appellant has failed to prove
the ingredients of the term 'cruelty' and 'desertion'.
Hence, the Family Court has rightly dismissed the petition
filed by the appellant. On these grounds, the learned
counsel prayed to dismiss the petition.
11. Considering the submissions of the learned
counsel for the appellant and the respondent and on
careful perusal of the material on record, the point that
arises for our consideration is:
''Whether the judgment and decree passed
by the Family Court dismissing the petition of the
appellant filed under Section 13(1), (ia) & (ib) of
the Hindu Marriage Act is sustainable or calls for
interference?''
Reg. Desertion:
12. "Desertion" means the intentional abandonment
of one spouse by the other without the consent of the
other and without a reasonable cause. The deserted
spouse must prove that there is a factum of separation
and there is an intention on the part of deserting spouse
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to bring the cohabitation to a permanent end. In other
words, there should be animus deserendi on the part of
the deserting spouse. There must be absence of consent
on the part of the deserted spouse and the conduct of the
deserted spouse should not give a reasonable cause to the
deserting spouse to leave the matrimonial home.
13. Therefore, it is just and necessary to analyse
the explanation added to sub-section (1) of Section 13 by
Act 68 of 1976. The said Explanation reads thus:
"Divorce.--(1) * * *
Explanation.--In this sub-section, the
expression "desertion" means the desertion of the
appellant by the other party to the marriage
without reasonable cause and without the consent
or against the wish of such party, and includes
the wilful neglect of the appellant by the other
party to the marriage, and its grammatical
variations and cognate expressions shall be
construed accordingly."
14. Thus, it appears that, the reasons for a dispute
between husband and wife are always very complex. Every
matrimonial dispute is different from another. Whether a
case of desertion is established or not will depend on the
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peculiar facts of each case. It is a matter of drawing an
inference based on the facts brought on record by way of
evidence.
15. In the light of the aforesaid factors, now,
coming to the facts of the case, there is no dispute that
the marriage between the parties was solemnised in the
year 1981 and they stayed together for about 9 years and
thereafter, the appellant started living separately. As per
the contention of the respondent, the appellant had illicit
relationship with one Anasuya and he has a son through
Anasuya as evident from Exs.R1 and R2. Hence, the
respondent deserted the company of the appellant.
16. From the perusal of the material available on
record, it appears that RW-1 in her cross-examination has
admitted that herself and her husband were residing
separately since 25 years. In this regard she had filed
Criminal Miscellaneous under Section 125 of the Code of
Criminal Procedure for maintenance. Apart from the
criminal miscellaneous petition, the respondent has
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instituted a suit for partition against her husband. She
has admitted in her cross-examination that, herself, her
husband brothers and sister were jointly living together.
Later, she came to know that her husband i.e. the
appellant married another lady by name Anasuya without
her consent. It shows that the respondent is residing
separately since 25 years, as admitted by RW-1 in her
cross-examination but the Family Court has not discussed
the ingredients of 'desertion' as defined under Section
13(1),(i-b) of the Act.
17. So far as 'cruelty' in concerned, the respondent
has taken a contention that, the appellant has already
contracted second marriage with Aansuya and thereby
started ill-treating her physically and mentally. This
aspect has also not been discussed by the Family Court.
Therefore, we are of the opinion that the matter requires
to be remanded to the Family Court for re-consideration.
23. Hence, we proceed to pass the following:
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ORDER
i) The appeal is allowed. The judgment and
decree dated 24.01.2015 passed by the
learned Principal Senior Civil Judge, Bagalkot,
in MC No.57/2012, is hereby set aside. The
family Court is directed to dispose of the
matter afresh by giving opportunity to the both
the parties to adduce evidence, if any.
ii) All the contentions of the parties are left open.
iii) Both the parties are directed to appear before
the Family Court on 18.12.2024 without
awaiting any notice from the Family Court.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
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