Karnataka High Court

Smt. Kamakshi Dixit vs K. Srinivas on 7 March, 2025

                                                 -1-
                                                         NC: 2025:KHC:9892-DB
                                                        MFA No. 1046 of 2016




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 7TH DAY OF MARCH, 2025

                                             PRESENT
                             THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                                 AND
                             THE HON'BLE MR JUSTICE C.M. POONACHA
                      MISCELLANEOUS FIRST APPEAL NO. 1046 OF 2016 (FC)
                   BETWEEN

                   SMT. KAMAKSHI DIXIT
                   D/O SRI SEETHARAMA DIXIT,
                   W/O SRI K SRINIVAS,
                   AGED ABOUT 42 YEARS,
                   R/AT NO. 397, 2ND CROSS,
                   KRISHNA ROAD,
                   GIRINAGAR, 1ST STAGE,
                   OPPOSITE SHANKARA MANTAPA,
                   NEAR VIVEKANANDA PARK,
                   BANGALORE - 560 085.
                                                                  ...APPELLANT
                   (BY SMT RASHMI GEORGE, ADVOCATE)

                   AND

Digitally signed   K. SRINIVAS
by NIRMALA         S/O S KASHINATH SASTRY,
DEVI               AGED ABOUT 46 YEARS,
Location:          R/AT NO. 769, A BLOCK,
HIGH COURT         15TH MAIN ROAD, 19TH CROSS,
OF
KARNATAKA          SAHAKARANAGAR,
                   BANGALORE - 560 092.
                                                                 ...RESPONDENT
                   (BY SRI RAVIKUMAR M C, ADVOCATE)

                         THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURT ACT,
                   AGAINST THE JUDGMENT AND DECREE DATED 05.01.2016 PASSED
                   ON M.C NO.1440/2010 ON THE FILE OF THE II ADDITIONAL
                   PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE
                   PETITION FILED U/S 13(1)(ib) OF HINDU MARRIAGE ACT AND ETC.
                                          -2-
                                                      NC: 2025:KHC:9892-DB
                                                     MFA No. 1046 of 2016




     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.02.2025, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, POONACHA.J., DELIVERED THE FOLLOWING:


CORAM:         HON'BLE MRS JUSTICE K.S.MUDAGAL
               and
               HON'BLE MR JUSTICE C.M. POONACHA


                                CAV JUDGMENT

(PER: HON'BLE MR JUSTICE C.M. POONACHA)

The above appeal is filed under Section 19(1) of the

Family Courts Act, 19641 challenging the judgment and decree

dated 5.1.2016 passed in MC No.1440/2010 by the II

Additional Principal Judge, Family Court, Bengaluru2.

2. For the sake of convenience, the parties are

referred to henceforth as per their status in the relationship.

3. The factual matrix in a nutshell leading to the

present appeal is that the marriage between the parties was

solemnized on 22.10.1997 at Smt Padmavathamma and Sri

D.Narayanarao Memorial Hall, Ashoknagar Bengaluru,

according to Hindu rituals and customs. That the parties lived

together up to 13.1.2007.

Hereinafter referred to as 'Act, 1964'

Hereinafter referred to as 'Family Court/Trial Court'

NC: 2025:KHC:9892-DB

4. The respondent husband filed a petition under

Section 13(1)(ia), 13(1)(ib) read with Section 13(1)(iii)(a)(b)

of the Hindu Marriage Act, 1955 (i.e., on the ground of cruelty,

desertion and unsoundness of mind) seeking for dissolution of

marriage between the parties. The said petition was opposed

by the wife. The Family Court by its judgment and decree dated

5.1.2016 party allowed the petition under Section 13(1)(ib) of

the H.M.Act (i.e., on the ground of desertion) and the petition

filed under Section 13(1)(ia) and 13(1)(iii)(a) and (b) of the

H.M.Act (i.e., on the ground of cruelty and unsoundness of

mind) was rejected. Being aggrieved, the wife has filed the

present appeal challenging the grant of divorce on the ground

of desertion.

5. It is pertinent to note hear that the husband has

not filed any appeal challenging the dismissal of his petition

insofar as Section 13(1)(ia) (i.e., cruelty) and 13(1)(iii)(a) and

(b) (i.e., unsoundness of mind) is concerned. Hence the case

put forth by the respective parties will be briefly noticed on the

said context.

6. It is the case of the husband before the Family

Court that after the marriage between the parties on

NC: 2025:KHC:9892-DB

22.10.1997 they lived together for about 9 years in their

matrimonial home along with his parents. However, the parties

had no children from their marriage. It is alleged by the

husband that the wife suffered from mental depression and she

was being treated for mental disorder. That whenever she had

a medical problem, she would consult her brother who is a

medical practitioner by profession and resident of London, who

would decide the medicines to be prescribed to her. That any

well intentioned steps/measures taken by the husband for

treatment of his wife was disbelieved. That various doctors

were consulted as recommended by the wife's brother. The

uncle of the husband, who was a doctor was also consulted.

That the wife was not involving herself in any household work

from the beginning and would never mingle with the husband's

family members. That the parents of the husband, who lived

along with the parties tried their level best to console the wife

and give her confidence. That the wife regularly complained

that she is not normal and she has gynecological problem. That

the wife was diagnosed with having neurotic depression. That

the parties consulted with various doctors due to their inability

to beget a child, which aspects have been averred in detail.

NC: 2025:KHC:9892-DB

7. It is the further case of the husband that the wife

was not regularly employed. However to enable her to lead a

normal life, the husband assisted the wife in securing

employment as a Receptionist in Tulec Computers in May 1998.

However, the wife did not continue the said employment.

Thereafter, the wife joined M/s. Deepak Laboratories, which

employment also she did not continue. That the respondent is

suffering from multiple mental disorders, obsessive compulsive

disorder, neurosis, sleeplessness, anxiety, etc., and that she

has taken treatment with various doctors in various hospitals.

That the parties attempted to have a child through IVF

procedure on two occasions, which was not successful. That

due to various treatments taken by her, her behaviour was not

normal and that the wife went into complete depression having

mental disorders and developed suicidal tendencies also.

8. It is further alleged by the husband that there was

lot of interference from his wife's brother, who interfered with

the treatment prescribed by the local doctors treating his wife.

That his wife's brother assured that he will arrange for the best

treatment in United Kingdom3 and having regard to the health

Hereinafter referred to as 'UK'

NC: 2025:KHC:9892-DB

of his wife, he agreed for her to go to UK where her brother

was residing. That after completing the VISA formalities, his

wife left to UK on 18.2.2007. That his wife used to stay with

her parents on many occasions during the time when she was

undergoing treatment and that she was staying in her parents

place even during the time when VISA formalities for her travel

were being completed. That his wife visited their matrimonial

home for the last time on 18.2.2007 before boarding her flight

to UK and assured that she will return after 80 days. That after

his wife reached UK, she stopped calling him, which made him

and his family members sense that the wife will not return to

the matrimonial home. That the husband learnt from certain

relatives that his wife returned after her trip to UK. However,

she did not come over to the matrimonial home after her return

and that she also did not attend a function arranged in

connection with the death ceremony of his grand-father on

7.7.2007. That by chance on 22.4.2008, he met her at ICICI

Bank, Jayanagar Branch and she was asked to return back to

his home, which she neglected. Hence, he came to understand

that she was never interested to continue the marital

relationship, as a result of which he got issued a legal notice on

NC: 2025:KHC:9892-DB

16.4.2009, to which she gave a reply dated 13.5.2009. Hence,

the husband filed the petition seeking divorce on the grounds of

cruelty, desertion and the respondent/wife being of unsound

mind.

9. The wife entered appearance before the Family

Court and contested the petition filed by the husband and

denied various allegations/assertions made in the petition.

However, the relationship between the parties was not

disputed. It is contented by the wife that the father of the

husband was dominant, strict and short tempered person and

that her husband and his mother were scared of him. That she

was required to seek permission of the father-in-law every time

she wanted to go to her parents house. It is further alleged

that her father-in-law would shout at her even for doing the

day to-day household work and for any other reason which was

allegedly not due to his liking. That the wife's parents or her

brother were not permitted to visit her without the permission

of her father-in-law.

10. It is further alleged by the wife that her father-in-

law was desirous of the parties having a male child being born

to them and for the said purpose they were taken to various

NC: 2025:KHC:9892-DB

temples and the wife was forced to participate in various

religious ceremonies in that regard. That the parties had

various medical problems, for which they took treatment from

various doctors and were on medication. That the husband

used to take money for such medical expenses from her father.

That she was not being treated properly in the matrimonial

home by the family members of the husband and that the wife

was diagnosed as being in a mental traumatic state having

depression due to stress. That she was constantly pressurised

to have a male child and the said fact further aggravated the

stress that was caused. That the wife had secured a job on two

occasions, however her father-in-law was not supportive of she

being gainfully employed. That her father-in-law would

interfere even in small differences between the husband and

wife and would make the same a big issue. That the parties

attempted to have a child through IVF procedure on two

occasions and it was not successful. It is further averred by the

wife that her brother got married on 8.2.2024 and the parties

participated in the said marriage ceremonies. Subsequent to

the said marriage, a child was born to her brother and being

desirous of seeing her newly born nephew, she wanted to visit

NC: 2025:KHC:9892-DB

her brother at UK. That there was no assurance of arranging

for any medical treatment for the wife during her trip to UK.

That her father-in-law opposed to the wife to travel to UK.

However, after convincing husband and father-in-law, she was

permitted to travel to UK and accordingly, after getting VISA

she left the matrimonial home to go to UK on 19.2.2007. That

she would call her husband everyday from UK and also to wish

him on his birthday, but the husband never tried to contact her

when she was staying at UK and never tried to contact on her

birthday i.e., on 13th June. That despite the same, the wife

repeatedly attempted to contact her husband. That, by the

time she returned from UK, her husband, without informing

her, shifted the matrimonial home. Hence, she could not

return to the matrimonial home. That even after returning

from UK, her husband did not contact her, he always

disconnected the phone whenever she attempted to get in

touch with him.

11. It is further contended by the wife that the husband

got issued a notice on 16.4.2009, which was replied by her on

13.5.2009. That the husband has falsely branded her as having

major mental illness when no specialists have certified the

- 10 -

NC: 2025:KHC:9892-DB

same. That the wife has undergone sexual harassment,

physical abuse, blackmailing and mental harassment by the

husband and his family members. That the legal notice has

been sent with malicious intent by the husband to tarnish her

character. Hence, she sought for dismissal of the petition filed

by the husband.

12. Based on the pleadings of the parties, the Trial

Court framed the following points for consideration:

"1. Whether the petitioner proves that the respondent has treated him with cruelty?

2. Whether the petitioner further proves that respondent has deserted him without any reason?

3. Whether the petitioner proves that the respondent is suffering from incurable unsound mind or from mental disorder to such an extent that he cannot reasonably be expected to live with the respondent?

4. Whether the petitioner is entitled for the reliefs claimed in the petition?

5. What order? "

13. The husband examined himself as PW.1. Exs.P1 to

P214 have been marked in evidence. The wife examined herself

as RW.1. Exs.R1 to R6 have been marked in evidence.

14. The Trial Court while considering point Nos.1 and 3

regarding allegations that the wife having treated the husband

- 11 -

NC: 2025:KHC:9892-DB

with cruelty and the wife being of unsound of mind, has

recorded a finding that none of the documents produced by the

husband certify that the wife is mentally or physically unfit.

Hence, the Trial Court has held that there is no concrete

evidence to prove that the wife is suffering from depression and

that she was not mentally or physically fit to carryout her

marital life. It is further held by the Trial Court that there was

no cogent evidence to hold that the brother of the wife used to

interfere in the marital life or treatment of the wife. Hence, it

was held that there was no evidence to hold that the mental

condition of the wife is so abnormal, due to which she is not

able to live normal life. Further, the Trial Court recorded a

finding that undergoing various investigations cannot be

considered as a cause for depression. That the medical records

are not sufficient to hold that the wife is suffering from

incurable mental illness. Further, upon an overall appreciation

of the material on record, the Trial Court held that there was no

serious allegation of the attitude of the wife towards husband,

which caused physical and mental cruelty. That the husband

was not able to establish and prove that depression of the wife

is such that it is incurable, he is not expected as a reasonable

- 12 -

NC: 2025:KHC:9892-DB

person to tolerate the same and such conduct has caused

mental cruelty.

15. It is pertinent to note that the said findings

recorded on point Nos.1 and 3 have resulted in the Trial Court

dismissing the petition filed by the husband on the ground of

cruelty and unsoundness mind of the wife, which has not been

challenged by the husband.

16. The Trial Court while considering issue No.2 on

desertion has noticed that the wife had no intention of

returning to the marital home after her trip to UK and hence,

the period of her stay in UK also requires to be considered as

desertion. Hence, the Trial Court recorded a finding that from

2007, the parties have been living separately and therefore,

the marriage is broken down. It is further noticed that the Trial

Court has taken the period of the pendency of the proceedings

before it and held that during such pendency the parties could

not reconcile their differences and hence recorded a finding that

the wife willfully left the company of the husband without any

reason.

17. Being aggrieved by the judgment and decree of the

Trial Court granting divorce under Section 13 (1)(ib) of the

- 13 -

NC: 2025:KHC:9892-DB

H.M.Act (on the ground of desertion), the wife has filed the

present appeal.

18. Learned counsel for the appellant/wife Smt.Rashmi

George assailing the findings recorded by the Trial Court

submits that the wife left to UK on 19.2.2007 with the consent

of her husband and returned in June 2007. That by the time the

wife returned from UK, her husband had shifted his residence,

as a result of which the wife was unable to join her husband in

the matrimonial home. That meeting of the parties on

22.4.2008 at the ICICI bank was not a pre-arranged one and

that even in his response to the legal notice dated 16.4.2009

(Ex.P3) issued by the husband, the wife vide her reply dated

13.5.2009 (Ex.P4) categorically asserted that she is willing to

rejoin the husband. Reference is also made to the averments

made in the rejoinder notice dated 23.9.2009 (Ex.P5) and the

testimony of RW.1. Hence, it is contended that the finding of

the Trial Court regarding desertion is erroneous and liable to be

set aside.

19. Per contra, learned counsel Sri M.C. Ravikumar

appearing for the respondent/husband contends that during the

pendency of the appeal, there being no stay, the husband has

- 14 -

NC: 2025:KHC:9892-DB

married again on 9.5.2016 and a daughter is born from the

said marriage on 2.5.2017 who is now aged 7 years. It is

further contended that from the date of marriage between the

parties on 22.10.1997, the wife stayed in the matrimonial

home only for a few days and she would spend most of her

time at her parents place, which continued for the entire period

of the matrimonial relationship of approximately 9 years. That

the wife visited the matrimonial home for the last time on

18.2.2007 before her travel to UK and took her belongings

informing that she will return after visiting her brother at UK.

However, the wife did not come back to the matrimonial home

after her return from UK. Hence, the last time when wife came

to the matrimonial home was more than 17 years ago, which

aspect clearly demonstrates that wife has completely deserted

the matrimonial home. It is further contended that there has

been no consummation of marriage and the wife suffered from

various health, medical and gynaecological problems and that

various facts regarding the health condition of the wife was

suppressed by herself and her family members.

20. It is further contended that the husband was aged

29 years when he was married and was aged 42 years when

- 15 -

NC: 2025:KHC:9892-DB

the divorce petition was filed. That the proceedings before the

Trial Court went on for 6 years and the husband was 48 years

when the divorce was granted in the year 2016. That the

parents of the husband were desirous of the husband having a

child and in order to have progeny and the parents of the

husband being aged more than 80 years, finally have had the

satisfaction of a grand child being born. That the cruelty is

embedded in the ground of desertion and the factual matrix in

the present case clearly demonstrates that there is constructive

desertion. That the purpose of marriage is progeny. Trial

Court's Judgment and decree of divorce does not call for

interference of this Court.

21. The submissions of both the learned counsels have

been considered and the material on record including the

records of the Trial Court have been perused. The question that

arises for consideration is:

"Whether the Trial Court was justified in allowing the petition filed by the husband under Section 13(1)(ib) of the H.M.Act on the ground of desertion?"

- 16 -

NC: 2025:KHC:9892-DB

Analysis

22. Section 13(1)(ib) of the H.M.Act stipulates that a

marriage can be dissolved by a decree of divorce on the ground

of desertion if "the other party has deserted the petitioner for a

continuous period of not less than two years immediately

preceding presentation of the petition".

23. The matrimonial relationship between the parties is

admitted. It is admitted that the marriage between the parties

took place on 22.10.1997 and parties stayed together till the

wife travelled to UK to visit her brother. Admittedly, the wife

travelled to UK on 18/19.2.2007. It is forthcoming from para

19 of the petition that the husband convinced his parents and

decided to send the wife to UK, where his brother-in-law was

residing keeping in mind the wife's health point of view and for

her betterment. Hence, it is clear that the date on which the

wife travelled to UK cannot be construed as the date for

commencement of the period of desertion since it admitted in

the petition itself that the wife with the consent of husband and

his family travelled to UK. It is further relevant to note that the

wife returned from UK in June 2007. However, she did not

return to the matrimonial home.

- 17 -

NC: 2025:KHC:9892-DB

24. The husband got issued legal notice dated

16.4.2009 (Ex.P3), whereunder he called upon his wife to

cooperate in dissolving the marriage and that the parties should

jointly make an application before the jurisdictional Court under

Section 13B of the H.M.Act, failing which the husband would

approach the jurisdictional Court for necessary reliefs. The wife,

vide reply dated 13.5.2009 (Ex.P4) after responding in detail to

the assertions/allegations made in the legal notice, has

categorically stated in para 23 of her reply notice that "she is

willing to lead a happy married life" with the husband. In

response to the reply dated 13.5.2009, the husband got issued

a rejoinder dated 23.9.2009 (Ex.P5), whereunder he in detail

set out aspects and called upon the wife to agree for dissolution

of marriage by mutual consent, failing which he would

approach the jurisdictional Court for proper reliefs. Thereafter

the husband filed the petition on 24.5.2010. It is clear that a

period of two years has not lapsed between the issuance of the

legal notice and the filing of the petition.

25. It is also forthcoming that after the wife returned

from UK in June 2007, there is no material on record to indicate

that the husband requested her to come to the matrimonial

- 18 -

NC: 2025:KHC:9892-DB

home and that she refused to do so. On the contrary, she

contends that he shifted his residence without her knowledge

which was a hardship for her to join him. Further, to the legal

notice (Ex.P3) issued by the husband calling upon the wife to

agree for a divorce by mutual consent, the wife has

categorically stated vide reply notice (Ex.P4) that she is willing

to live with the husband and lead a happy marital life. The

husband vide his rejoinder (Ex.P5) also did not call upon the

wife to join him in the matrimonial home. Instead, he reiterated

his demand seeking for a divorce by mutual consent. It is clear

from the same that the husband has miserably failed to

demonstrate that the wife has continuously deserted him for a

period of 2 years immediately preceding presentation of the

divorce petition.

26. The Trial Court while considering the aspect of

desertion has recorded the following findings:

"72. According to petitioner respondent had assured to return from U.K., within 80 days, but even after return from U.K., she did not kept her promise. Her expression of intention to join the petitioner in her evidence appears to be false and not acceptable. When she had no intention of returning to marital home, the period of her stay in U.K., also can be considered as desertion. She has not given the exact date of her return from U.K., and for how many days she lived there. In the absence of these

- 19 -

NC: 2025:KHC:9892-DB

materials, the court has to consider that she has deserted the petitioner continuously for a period of not less than two years immediately preceding the presentation of this petition. From 2007 till date the parties are living separately. The conciliation made after filing petition between them also failed. They have not made any efforts to rejoin. Under these circumstances, the marriage is broken down. Even if the marriage is to be preserved, it will be nothing but a legal tie with any emotional bonding causing hardship to them. It is more than 10 years they are living separately."

(emphasis supplied)

27. From the aforesaid finding of the Trial Court, it is

clear that the Trial Court has held that the wife had no intention

to return to her matrimonial home when she left for UK.

However, the said finding is not based on any material on

record. On the contrary, the only material on record being the

legal notice (Ex.P3), reply notice (Ex.P4) and rejoinder (Ex.P5)

which clearly disclose that it is the wife who has expressed that

she is willing to lead marital life with the husband. However, it

is the husband who has repeatedly called upon the wife to

agree for a divorce by mutual consent. In view of the

aforementioned, it is clear that the finding recorded by the Trial

Court that the wife has deserted the husband is erroneous,

- 20 -

NC: 2025:KHC:9892-DB

without any basis and contrary to the material available on

record.

28. A Division Bench of this Court in the case of

Suvarna Kom Ratnakar Shet v. Ratnakar Vinayak Shet4

has held that in order to constitute desertion as contemplated

under Section 13(1)(ib) of the H.M.Act not only should there be

a separation for a period of two years without any reasonable

cause between the parties, but there should also be an

intention ("animus deserendi"), to separate. That in order to

constitute desertion, the fact of separation as well as animus

deserendi requires to co-exist for the entire period of two

years.

29. In the present case, the husband has miserably

failed to demonstrate that he called upon his wife to live with

him in the matrimonial home and that the wife refused without

any reasonable cause. Hence, the finding recorded by the Trial

Court on issue No.2 and the judgment of the Trial Court

allowing the petition filed by the husband under Section

13(1)(ib) of the H.M.Act, requires to be set aside. Further, the

Trial Court has construed the period of her stay in UK as

ILR 2013 KAR 2384

- 21 -

NC: 2025:KHC:9892-DB

desertion and has also held that the wife has not given the

exact date of her return from UK and for how many days she

lived there. It is pertinent to note here that the burden of

proving desertion is on the husband. As already noticed above,

the husband has clearly averred that he convinced his parents

to send his wife to UK. Further, the wife has specifically

contended that when she was un UK the husband has shifted

the matrimonial home, as a result of which she could not return

to the matrimonial home which has not been denied or

controverted by the husband. Further, admittedly, the meeting

of the parties in the bank on 22.4.2008 was not a planned one.

Thereafter, the legal notice has been issued. The Trial Court

has also taken into account the period of the pendency of the

proceedings before the Trial Court. The basis of the reasoning

of the Trial Court is ex facie erroneous and liable to be

interfered with.

30. Although it is the vehement contention of the

learned counsel for the husband that cruelty is inbuilt in

desertion, in view of the admitted position that the Trial Court

has recorded a finding that the husband has failed to prove his

assertion/allegation of cruelty and the husband having not

- 22 -

NC: 2025:KHC:9892-DB

challenged the said finding and the dismissal of his petition filed

under Section 13(1)(ia) and 13(1)(iii)(a) and (b) of the

H.M.Act, the question of considering the said contention put

forth by the husband does not arise. On accepting the defence

of wife that husband's allegation of cruelty and mental illness

are not proved, it was unfair to accept the claim of desertion

more particularly when husband in his notices did not show any

inclination for reunion and insisted for divorce. Husband's

remarriage pending this appeal even without any leave of the

Court does not render the appeal infructuous. Court cannot

encourage such conduct.

31. Reliance placed by the learned counsel for the

respondent on the judgment of the Hon'ble Supreme Court in

the case of Naveen Kohli v. Neelu Kohli5 will not aid the case

of the husband in view of the fact the Trial Court has rejected

the petition filed by the husband on the ground of cruelty and

the husband has not challenged the same. The Hon'ble

Supreme Court in the said case5 has granted divorce on the

ground of "irretrievable breakdown of marriage", which has

been granted in exercise of its powers contained under Article

(2006) 4 SCC 558

- 23 -

NC: 2025:KHC:9892-DB

142 of the Constitution of India, which cannot be done in the

present case.

32. In view of the discussion made above, the question

framed for consideration is answered in the affirmative.

33. Hence, the following:

ORDER

i. The above appeal is allowed with costs; ii. The judgment and decree dated 5.1.2016 passed in MC No.1440/2010 by the II Additional Principal Judge, Family Court, Bengaluru, is hereby set aside;

iii. The petition filed in MC No.1440/2010 on the file of the II Additional Principal Family Court, Bengaluru, under Section 13(1)(ib) of the Hindu Marriage Act, 1955, is rejected.