[Cites 10, Cited by 0]
Karnataka High Court
Amit vs Priyanka on 15 December, 2025
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 203790 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
MISCL. FIRST APPEAL NO. 203790 OF 2023 (FC-DIS)
BETWEEN:
AMIT S/O. BHEEMARAY BELLUBBI,
AGE: 35 YEARS, OCC: SERVICE,
R/O. C/O. B.Y. BELLUBBI, SP. (RETD.),
H.NO. 56, NAVARASPUR COLONY,
OPPOSITE COURT COMPLEX,
VIJAYAPURA - 586 109.
...APPELLANT
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
Digitally signed by AND:
VARSHA N
RASALKAR
Location: HIGH
COURT OF SMT. PRIYANKA W/O. AMIT BELLUBBI,
KARNATAKA
AGE: 31 YEARS, OCC: CHAIRWOMAN AND
BUSINESS, R/O. C/O. RAJU ALAGOOR,
EX-MLA, ATHANI ROAD,
GHEWARCHAND COLONY,
BEHIND EXCELLENT COLLEGE,
VIJAYAPURA - 586 102.
...RESPONDENT
(BY SRI. SANGOLI NAGANNA, ADVOCATE)
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MFA No. 203790 of 2023
HC-KAR
THIS MFA IS FILED UNDER SECTION 19(i) OF FAMILY
COURTS ACT, PRAYING TO ALLOW THE APPEAL AND THEREBY
SET ASIDE THE JUDGMENT AND DECREE DATED 03.08.2023
PASSED IN MATRIMONIAL CASE NO.48/2023 BY THE HON'BLE
I ADDL. PRINCIPAL JUDGE, FAMILY COURT, VIJAYAPURA AND
DECREE THE DIVORCE PETITION FILED BY THE APPELLANT
UNDER SECTION 13(1)(IA)(IB) OF HINDU MARRIAGE ACT
THEREBY DISSOLVE THE MARRIAGE OF THE APPELLANT AND
RESPONDENT DATED 07.05.2017 PERFORMED AT BDLE
CAMPUS, VIJAYAPURA WITH COST IN THE INTEREST OF
JUSTICE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.11.2025 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY)
This appeal has arisen from the judgment and decree
dated 03.08.2023 of the I Addl. Principal Judge, Family
Court, Vijayapura (for short 'the Family Court') in
M.C.No.48/2023, wherein the petition filed by the
appellant under Section 13(1)(ia)(ib) of Hindu Marriage
Act, 1955 (for short 'HM Act') is dismissed.
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2. For convenience, the parties to this appeal are
hereinafter referred to in their ranks before the Family
Court in the petition.
3. The petitioner filed petition against the
respondent under Section 13(ia)(ib) of HM Act before the
Family Court, paying for an order to grant decree of
divorce by dissolving his marriage solemnized with the
respondent on 07.05.2017, on the grounds of cruelty and
desertion.
4. The case of the petitioner in brief is that the
petitioner and respondent are legally wedded husband and
wife, their marriage having been solemnized on
07.05.2017 at BLDE campus, Vijayapura as per the
prevalent rituals and customs in the presence of relatives
and friends. After the marriage, the respondent joined
marital company of the petitioner. But the respondent did
not cooperate with the petitioner for consummation of
marriage on the first night itself on the ground that she
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was menstruating during that time. Even after completion
of her menstruation period the respondent did not extend
any cooperation with the petitioner. The said issue was
brought to the notice of the parents of the respondents
and they suitably advised the respondent to mend herself.
But in spite of such advice by her parents, there was no
change in the behaviour of the respondent. On the other
hand, she started picking up quarrel with the petitioner
and his parents on trivial matters. The respondent used to
visit her parents' house frequently without informing the
petitioner. The respondent being daughter of the former
MLA, used to demand Rs.50,000/- per month from the
petitioner to fulfill her demands and when the petitioner
failed or refused to pay the amount, the respondent did
not cooperate with him and she used to frequently quarrel
with the petitioner over silly matters and used to taunt
him and thereby torture him physically and mentally. The
respondent spent her major time watching television and
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talking over mobile. She used to insult and humiliate the
respondent in front of his family members and relatives.
5. That being so, in the month of December 2017,
the petitioner had been to Belagavi to attend the office
meeting and when he returned he learnt that the
respondent without informing him had left the matrimonial
home with her gold and silver ornaments and also clothes
and sarees etc. Thereafter, the petitioner along with his
parents and elderly persons approached the respondent
and her parents to set right the matter, requesting the
respondent to join matrimonial company of the petitioner.
But the respondent flatly refused to join him. In the month
of September 2018, the respondent, her parents and her
sister came to the house of petitioner and picked up
quarrel with his mother and misbehaved with her, abusing
and insulting her. The petitioner found out that the
respondent was having illicit affair and the said fact was
concealed and she married the petitioner. On 13.12.2022
the respondent filed false complaint against the petitioner
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and his family members making false allegations of
demand of dowry and harassment before Vijayapura
Women Police Station and the case was registered against
the petitioner and his family members in Crime
No.189/2022. The investigation was completed and the
charge sheet has been filed against the petitioner and his
family members. Hence, on these facts the petitioner felt
that his marriage was broken beyond repair and therefore,
he was constrained to file petition for divorce on the
ground of cruelty and desertion.
6. In spite of service of notice to the respondent
on the petition before the Family Court, the respondent did
not choose to appear and contest the matter. In support of
the case of the petitioner, he got examined himself as
PW.1. He also examined two witnesses as PW2 and PW3
and produced 4 documents at Exs.P1 to P4. On the other
hand, the respondent was placed ex-parte and hence,
there was no contest by the respondent of the petition.
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7. After hearing the arguments of the learned
counsel for the petitioner and also on considering the
relevant materials on record, the Family Court coming to
the conclusion that the petitioner has failed to prove the
grounds of desertion and cruelty for divorce, has
dismissed the petition filed by him under impugned
judgment and decree, which resulted in the petitioner
approaching this Court with the present appeal.
8. The ground urged by the petitioner in the
appeal is that the impugned judgment and decree of the
Family Court is devoid of merits. The Family Court has not
appreciated the evidence of petitioner in proper
perspective. In spite of the fact that allegations leveled
against the respondent remained unchallenged, the Family
Court has failed to accept the evidence and allow the
petition. In view of the pleadings, evidence and other
materials on record, there is clear case of harassment
amounting to mental and physical cruelty by the
respondent to the petitioner, which is sufficient to pass
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decree of divorce in favour of the petitioner. Even though
there is nothing on record to impeach the version of the
petitioner put forth in the petition for divorce on the
ground of cruelty and desertion, the Family Court has
committed serious error in dismissing the petition ignoring
the material evidence forthcoming on record. The
respondent never extended cooperation for cohabitation
with the petitioner and those facts remained unchallenged,
as in spite of service of notice the respondent failed to
appear and contest the petition. The Family Court ought to
have noted the intention and conduct of the parties as the
ground for desertion and cruelty and ought to have
granted divorce as prayed for in the petition. The Family
Court has failed to appreciate the evidence on human
sensitivity and emotions. The Family Court has proceeded
in the matter mechanically and in a casual manner and
hence, the approach of the Family Court to the matter is
not correct. Therefore, the petitioner has prayed for
allowing the appeal and thereby to set aside the impugned
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judgment and decree of the Trial Court and grant divorce
on the ground of desertion and cruelty as prayed for.
9. In pursuance of service of notice on this appeal,
the respondent has appeared through the counsel. The
Trial Court records have been called for.
10. Heard the arguments of the learned counsel for
both the parties. Perused the relevant materials on record.
Now the point that arises for the consideration of this
Court is that:
"Whether the Family Court has committed
error in appreciating the oral and
documentary evidence forthcoming on the
record in proper perspective and thereby
committed error in not granting divorce in
favour of the petitioner on the ground of
desertion and cruelty as sought for in the
petition?"
11. On the basis of the pleadings of the petitioner
put forth in the petition, it is clear that the petitioner and
respondent legally wedded husband and wife, their
marriage having been solemnized on 07.05.2017. The
argument of the learned counsel per the petitioner is that
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the respondent did not cooperate with the petitioner for
consummation of marriage from the first night of the
marriage itself. Further, in spite of the advice by her
parents, the respondent did not try to mend herself. It is
also the contention of the petitioner that the respondent
used to pick up quarrel with the petitioner and his parents
over silly reasons and she being daughter of former MLA,
used to demand Rs.50,000/- per month from him to fulfill
her demand and if the petitioner failed refused to pay the
amount, the respondent did not cooperate with him.
12. The petitioner has contended that in the month
of December 2017 when the petitioner had been to
Belagavi to attend office meeting, the respondent left the
matrimonial house without informing the petitioner. The
respondent took her gold and silver ornaments and also
clothes and went to her parents' house and thereafter, in
spite of approach by the petitioner and his parents and
elderly persons, the respondent did not join the matrimony
home and she flatly refused to join the petition.
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13. In support of the case of the petitioner before
the Family Court, he has got himself examined as PW1. He
filed his affidavit as evidence in chief examination, wherein
he has reiterated the facts averred in the petition. It is
very pertinent to note that the respondent has not chosen
to appear and contest the petition in spite of service of
notice. Hence, as submitted by the learned Counsel for the
petitioner, the petition averments and the evidence of
petitioner as PW.1 stands unchallenged.
14. Moreover, the petitioner has produced one
marriage photo and invitation regarding his marriage with
the respondent as per Exs.P.1 and P2 respectively. The
petitioner has also produced certified copy of FIR in Crime
No.189/2022 of the Women's Police Station, Vijayapura
and the complaint given by the respondent against the
petitioner and his parents and family members before the
Women's Police Station, Vijayapura and same marked at
Exs.P.2 and P.4 respectively. The documented Exs.P.2 and
P.4 would show that the respondent gave complaint
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against the petitioner and his parents and family members
alleging harassment demanding dowry and the case was
registered against petitioner and others for the offences
punishable under Sections 498A, 109, 323, 504, 506 read
with Section 34 of the Indian Penal Code (for short 'IPC')
and Section 4 of Dowry Prohibition Act (for short 'DP Act').
15. In the complaint at Ex.P.4, the respondent
made some allegations against the petitioner and his
family members. But, as submitted by the learned counsel
to the petitioner, the respondent did not choose to appear
and contest the petition before the Family Court and
therefore, the evidence of petitioner as PW1 and the
documents at Exs.P.1 to P.4 stood unchallenged. Hence,
the argument of the learned counsel for the petitioner is
that the Trial Court has committed error in dismissing the
petition for divorce not appreciating the unchallenged oral
and documentary evidence forthcoming on record.
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16. Per contra, the argument of the learned counsel
by the respondent is that the petitioner has filed the
petition before the Family Court on false allegations.
However, the respondent has not chosen to appear and
file any file any objections to the petition, denying the
petition averments. Hence, as submitted to lead a marital
life and hence, the marriage between the by the learned
counsel for the petitioner, the petition averments stand
not disputed. As discussed herein above, the petitioner as
PW1 in his evidence in chief examination has reiterated
the facts averred in the petition. The evidence of PW1 in
chief-examination is in accordance with plaint averments.
It is very pertinent to note that as per the petition
averments and the evidence of PW1, from the first night of
the marriage itself, the respondent did not cooperate with
the petitioner and the respondent was not consummated.
17. Further, the contention of the petitioner that
the respondent is daughter of Ex-MLA and she was having
an illicit relationship with some other person stands not
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controverted. Moreover, it is very interesting to note that
the respondent lodged complaint against the petitioner, his
parents and his relatives before Women Police Station,
Vijayapura, as per Ex.P.4 and the FIR was issued by the
concerned police as per Ex.P.3. In the complaint at Ex.P.4
the respondent has stated that her marriage with the
petitioner was solemnized on 07.05.2017 at BLDE college
premises, Vijayapura. The allegation against the
petitioner, his parents and relatives is that they subjected
the respondent to ill-treatment and drove her out of the
matrimony home. It is also mentioned in the complaint at
Ex.P.4 that accused No.4, who is the younger brother of
the petitioner was looking at her as follows:
"DgÉÆæ £ÀA.4 FvÀ£ÀÄ £À£U
À É C²èîªÁV ªÀiÁvÀ£ÁqÀĪÀzÀÄ ºÁUÀÆ
£À£ÀߣÀÄß PÉlÖ zÀȶ֬ÄAzÀ £ÉÆÃqÀÄwÛz£
ÀÝ ÀÄ."
18. Further, in the complaint at Ex.P.4, it is stated
that the parents of respondent took her to the house of
petitioner and the petitioner's parents and relatives looked
after her only for four to five days. Again, on 25.08.2017
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the petitioner, his parents and relatives drove the
respondent out of the matrimonial home. The relevant
portion in Ex.P.4 reads thus:
"¢£ÁAPÀ: 25/08/2017 gÀAzÀÄ J®è DgÉÆævÀgÀÄ PÀÆr ºÉÆr-
§r ªÀiÁr £À£ÀߣÀÄß CªÀgÀ ªÀģɬÄAzÀ ºÉÆgÀUÉ ºÁQzÀgÀÄ. ¤Ã£ÀÄ
MAzÀÄ ªÉÃ¼É £ÁªÀÅ ºÉýzÀµÀÄÖ ºÀt §AUÁgÀ vÀg¢
À zÀg
Ý ,É ¤Ã£ÀÄ «ªÁºÀ
«ZÉÃÑ zÀ£À PÉÆqÀÄ CAvÁ ºÉý CªÀgÀÄ ªÀģɬÄAzÀ ºÉÆgÀUÉ ºÁQzÀgÀÄ."
19. This material on record would show that
from 25.08.2017 the respondent has not been residing
with the petitioner in the matrimonial home. As
discussed herein above, it is not in dispute that the
marriage of the petitioner and respondent was
solemnized on 07.05.2017. Hence, if the contention of
the respondent in the complaint at Ex.P.4 is taken into
consideration, it would be clear that she resided with
the petitioner in the matrimonial home only for about
3½ months from the date of their marriage.
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20. Further, in the complaint at Ex.P.4 the
contention of the respondent is that father of
petitioner told her father over phone to convene a
panchayat in the presence of elders. This would show
that the petitioner's father tried to reconcile marriage
of the petitioner and respondent, but the respondent
did not make any attempt for settlement.
21. Further, it is averred in the complaint at Ex.P.4
that:
"PÉÆ£ÉAiÀiÁzÀ £À£Àß vÀAzÉAiÀĪÀgÀÄ £À£Àß ªÀiÁªÀ£ª
À g
À À
¸Àºz
À ÉÆåÃVUÀ½UÉ ªÀÄzsÀå¹ÜPÀ ªÀ»¹ £À£U
À É £ÁåAiÀÄ PÉÆqÀĸÀĪÀAvÉ
PÉüÀzg
À ÀÄ CªÀg®
É è ªÀiÁwUÉ PÀªq
À É PÁ¸ÀÄ QªÀÄävÀÄÛ PÉÆqÀzÀ £ÀªÀÄä£ÀÄß
¸ÀvÁ¬Ä¹ UÀAqÀ£À ªÀÄ£ÉUÉ PÀgz
É ÀÄPÉÆAqÀÄ ºÉÆUÀz.É EµÀÄÖ ¢ÃWÁðªÀ¢ü
ªÉgU
É É £À£U
À É vÉÆAzÀgÉ PÉÆqÀÄwÛzÁÝg,É C®èzÉ £À£Àß fêÀ£ª
À £
À ÀÄß ºÁ¼ÀÄ
ªÀiÁrzÁÝg.É "
22. This would also show that the settlement was
attempted to be made by the colleagues of the father of
petitioner. But there was no attempt made by the
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respondent's father to settle the matter between the
petitioner and the respondent.
23. Moreover, as submitted by the learned counsel
for the petitioner, if the averments of the FIR at Ex.P.3 are
taken into consideration, the alleged offence took place
between 23.07.2017 to 25.08.2017. But the complaint
was given by the respondent to the Police Station on
13.12.2022 i.e., after more than 5 years from the date of
the alleged incident.
24. In spite of service of notice in the petition, the
respondent has not chosen to appear and contest the
petition. Therefore, the petition averments and the
evidence forthcoming on record stand not controverted by
the respondent. There is absolutely no material
forthcoming from the respondent to show why there was
inordinate delay of more than 5 years in lodging the
complaint, if at all she was subjected to ill-treatment and
harassment at the hands of the petitioner and his family
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members demanding dowry. Hence, the evidence on
record would show that the respondent willfully neglected
the petitioner and she deserted the matrimonial home
after three months of marriage. As on the date of filing the
petition, the respondent has deserted the petitioner for a
period of more than two years.
25. The petition was filed before the Family Court
on 03.02.2023. Hence, as on the date of filing of the
petition the respondent left the matrimonial home and
deserted the petitioner for the period of about 4½ years.
As there is no evidence on record to show that the
respondent made any attempt to join the company of
petitioner, it would clearly go to show that the respondent
has willfully deserted the petitioner. Moreover, the fact
that the respondent did not cooperate with the petitioner
to consummate marriage from the first night of the
marriage itself would show that the petitioner was
subjected to mental cruelty by the respondent.
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26. Further, the petition averments regarding the
harassment at the hands of the respondent stand not
controverted. There is no reason to disbelieve the petition
averments and the evidence of PW1. The petitioner has
examined his father Bheemaraj S/o. Yallappa Bellubbi as
PW2 and one Siddalingappa S/o. Hasanappa Hadimani, a
retired government servant and elder of the family, as
PW3. The PW2 and PW3 have filed their affidavit as
evidence in chief-examination reiterating the petition
averments regarding on the ground of desertion and
cruelty put forth by the petitioner in the petition. The
evidence of PW2 and PW3 also stands not controverted by
the respondent.
27. The PW2 in his evidence has stated that he
along with elders of the family tried to settle the matter,
but the respondent did not heed to their request. PW3 in
his evidence has deposed that the mother of respondent
used to come to the house of petitioner and take her
daughter/respondent outside without informing the
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parents of petitioner and the respondent used to go out of
matrimonial home without informing the family members
and she was behaving adamantly in the family.
28. The very fact that in spite of service of notice
the respondent has not chosen to appear and contest the
petition, would show that the petition averments and the
evidence of PW1 to PW3 stand not controverted by the
respondent. There is absolutely no reason to disbelieve the
evidence forthcoming on record from the petitioner.
However, the Family Court instead of applying the law to
the facts of the case has discussed more about the
principles of law without taking into consideration the
petition averments and the evidence forthcoming on
record. As argued by the learned counsel for the
petitioner, no reason is forthcoming in the impugned
judgment of show as to why the evidence of PW1 to PW3
cannot be believable.
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29. Further, it is strange that the Family Court in
the impugned judgment has discussed that the general
rule in all cases of cruelty is that:
"The entire matrimonial relationship must
be considered and that rule is a special
value when cruelty consists not of violent
acts but also of injurious, reproaches,
complaints, accusation or taunts. In the
present case there is no specific pleading
by the petitioner that, he has undergone
intolerable violence by the respondent."
30. The Family Court has not stated as to what
should be the adequate evidence to prove the grounds of
desertion and cruelty for divorce. There is no mention by
the Family Court in the impugned judgment as to why the
evidence of PW1 to PW3 is not believable, when it stands
not controverted by the respondent.
31. It is true that the Section of 13(1)(i-a) of HM
Act reads thus:
"13. Divorce. (1) Any marriage solemnised,
whether before or after the commencement
of this Act, may, on a petition presented by
either the husband or the wife, be dissolved
by a decree of divorce on the ground that the
other party-
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1(i)xxx xxx
1(ia) has, after the solemnization of the
marriage, treated the petitioner with cruelty;
or
1(ib) xxx"
32. The explanation to Section 13(1) reads thus:
"Explanation-In this sub-section, the
expression "desertion" means the desertion
of the petitioner by the other party to the
marriage without reasonable cause and
without the consent or against the wish of
such party, and includes the willful neglect of
the petitioner by the other party to the
marriage, and its grammatical variations and
cognate expressions shall be construed
accordingly."
33. As submitted by the learned counsel for the
petitioner, as per Section 13(1)(i-a) of HM Act, if one
person to the marriage would treat other person with
cruelty it would be a ground to take divorce. But it is very
strange to note that even though the Family Court has
come to the conclusion that mental cruelty cannot be
established by direct evidence. It is further observed that
the petitioner has miserably failed to make out any case
as per the law and to produce evidence, which would lead
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to draw an inference that the petitioner was subjected to
cruelty by the respondent.
34. Further, the Family Court has observed in the
impugned judgment that no adequate evidence is adduced
by the petitioner to prove that the marriage between him
and respondent broke down irretrievably and there is no
chance of them coming together. But, as submitted by the
learned counsel for the petitioner, such observation of the
Family Court is without considering the evidence of
petitioner, which stood not controverted by the
respondent. There is absolutely no material forthcoming in
the impugned judgment to show why the evidence of
petitioner has not been believed by the Family Court,
when such evidence stands not controverted by the
respondent.
35. Moreover, even though, the Family Court has
referred to some judgments of the Hon'ble Apex Court
regarding the grounds of cruelty and desertion, the Family
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Court has failed to observe as to whether those decisions
are applicable to the facts of the case on hand. It is well
settled principle of law that every case should be
considered on the facts of each case. As discussed herein
above, in the case on hand, the attitude of the respondent
as averred by the petitioner, which is not contraverted by
the respondent, would clearly show that the respondent
did not cooperate with the petitioner from the first day of
the marriage itself and due to the conduct of respondent,
the marriage of petitioner with the respondent was not
consummated.
36. Further, even though the petitioner and their
family members tried to settle the matter by convening
panchayat with the help of elders in the family, the
respondent did not heed to the advice of the parents of
the petitioner and the elders of the family and thereby she
failed to join the matrimonial home of the petitioner.
37. As discussed hereinabove, the marriage of the
petitioner with respondent was solemnized on 07.05.2017.
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From the complaint averments of the respondent as per
Ex.P.4, it would be clear that from 25.08.2017 the
respondent has not been residing with the petitioner in the
matrimonial home i.e., she resided with the petitioner only
for the period of 3½ months and thereafter the respondent
has not resided with the petitioner.
38. The petition averments that the respondent left
the matrimonial home without informing or intimating the
petitioner and his family members and his parents stand
not controverted. The allegation made by the respondent
in the complaint at Ex.P.4 that for more than five years
she has been residing separately from the petitioner,
would show that she is not willing to join the matrimonial
home of petitioner. Further, in spite of service of notice,
the respondent has not chosen to appear before the
Family Court and contest the petition. Even in the appeal
on hand, there is no any ground made out by the
respondent to make the pleadings and the evidence of the
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petitioner before the Family Court regarding the ground of
cruelty and desertion for divorce, disbelievable.
39. Further, the respondent did not taken any steps
to show that she is willing to join the petitioner and
thereby not to grant of divorce in favour of petitioner
dissolving her marriage with the petitioner. Now, it is
necessary to refer to the decision of the Hon'ble Apex
Court in the case of ROOPA SONI Vs. KAMALNARAYAN
SONI reported in (2023) 16 SCC 615 decided on
September 6, 2023, wherein in the petition for divorce
filed under Section 13(1)(i-a) of HM Act, under the
ground of cruelty, it is held that:
"Burden of proof, lies on person who asserts it.
However, degree of probability is not one
beyond reasonable doubt, but of
preponderance.
The word "cruelty" under Section 13(1)(i-a)
has no fixed meaning, and therefore, gives a
very wide discretion to court to apply it liberally
and contextually. What is cruelty in one case
may not be in another. It has to be applied
from one person to person while taking note of
attendant circumstances.
Concept of mental cruelty cannot remain
static; it is bound to change with passage of
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time, impact of modern culture through print
and electronic media and value system, etc.
What may be mental cruelty now may not
remain a mental cruelty after a passage of time
or vice versa."
40. Moreover, the Hon'ble Apex Court in the case of
AMUTHA versus A.R. SUBRAMANIAN reported in 2024
SCC OnLine SC 3822 decided on December 19, 2024, has
held that:
"The appellant's false criminal complaint and her
indifferent to reconciliation efforts caused
significant mental agony to the respondent,
amounting to cruelty. Additionally, her
prolonged separation without reasonable cause
constituted desertion. The High Court dissolved
the marriage and set aside the decisions of the
Trial Court and the First Appellate Court,
granting a decree of divorce to the husband."
41. The facts of the above referred case squarely
apply to the facts of the case on hand. It is true that
burden of proof lies on person, who approaches the Court
with a definite case. However, the petition averments and
the evidence of PW1 to PW3 in the case on hand stand not
challenged by the respondent by contesting the petition
and hence, the pleadings and evidence of the petitioner
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have remained undisputed. The burden of proof arises
only if the other side denies the contentions of the person
who approached the Court. In present case, the
respondent has not chosen to contest the petition.
42. Moreover, as discussed hereinabove, the
complainant averments of the respondent as per Ex.P.4
would clearly show that she resided with the petitioner in
matrimonial home only for the period of three months and
thereafter, she left the matrimonial home and she has
been residing in her parents' house for a period of more
than 5 years as on the date of filing of the petition. The
attempt made by the petitioner to join the respondent to
matrimonial home remained unsuccessful. Hence, the
materials on record would clearly show that there is clear
ground of desertion in favour of the petitioner for granting
divorce as prayed for.
43. The petitioner has also proved that he was
subjected to cruelty by the respondent. Such cruelty may
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not be physical cruelty. As held in the above referred
decisions of the Hon'ble Apex Court, it is clear that the
cruelty has no fixed meaning and there is wide discretion
to the Court to apply it liberally and contextually. In the
case on hand, under the circumstances, it would be clear
that the respondent has subjected the petitioner to mental
cruelty. She has no willingness to join the matrimonial
home of the petitioner.
44. Therefore, as argued by the learned counsel for
the petitioner, the petitioner has made out sufficient
ground to set aside the impugned judgment and decree
and thereby to grant a decree of divorce in his favour,
dissolving his marriage solemnized with the respondent on
the grounds of cruelty and desertion. Consequently, the
petition filed by the petitioner before the Family Court
deserves to be allowed. Hence, we are of the considered
view that the appeal on hand deserves to be allowed.
45. In the result, answering the above point in the
affirmative, we proceed to pass the following:
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ORDER
(i) The appeal is hereby allowed.
(ii) Consequently, the judgment and decree
dated 03.08.2023 of the I Addl. Principal
Judge, Family Court, Vijayapura in MC
No.48/2023 is hereby set aside.
(iii) The petition filed by the petitioner before the
Trial Court under Section
13(1)(ia)(ib) of Hindu Marriage Act, 1955
stands allowed and a decree of divorce is
granted dissolving the marriage of petitioner
with respondent solemnized on 07.05.2017.
(iv) No order as to cost.
(v) Decree of divorce shall be drawn accordingly.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(TYAGARAJA N. INAVALLY)
JUDGE
AMM/List No.: 1 Sl No.: 58
