Allowed

Smt. Usharani v. E.Pushparaj

Karnataka HC14 Mar 2022MFA/111/2017

Case brief

AI extract

What is this about?

High Court allowed wife's appeals challenging restitution of conjugal rights and dismissal of divorce petition. Court found husband guilty of cruelty, including physical assault and dowry harassment. Marriage deemed virtually dead after 13 years of separation, leading to dissolution of marriage.

What did the court decide?

Marriage dissolved by decree of divorce and petition for restitution of conjugal rights dismissed.

Smt. Usharani Vs E.Pushparaj — Matrimonial and Divorce | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF MARCH, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY

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M.F.A. No.9195/2011 C/W M.F.A. No.111/2017

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IN M.F.A.9195/2011

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BETWEEN:

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SMT. USHARANI W/O E. PUSHPARAJ, AGED ABOUT 36 YEARS, PRESENTLY R/A HONCOCKS BLOCK, MARIKUPPAM POST, K.G.F., KOLAR DISTRICT.

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… APPELLANT

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(By Sri G.Sukumaran, Adv.)

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AND:

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E. PUSHPARAJ S/O ETHIRAJ AGED ABOUT 42 YEARS, R/A NO.94, PALARATHIMMANAHALLI, DESIHALLI POST, BANGARPET, BANGARPET TALUK, KOLAR DISTRICT. … RESPONDENT

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(Sri Puttige. R. Ramesh, Adv.)

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IN M.F.A.111/2017

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BETWEEN:

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SMT. USHARANI W/O E. PUSHPARAJ,

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AGED ABOUT 41 YEARS, HONCOCKS BLOCK, MARIKUPPAM POST, K.G.F. … APPELLANT

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(By Sri Puttige. R. Ramesh, Adv.)

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AND:

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E. PUSHPARAJ (EX-SERVICEMAN) S/O ETHIRAJ AGED ABOUT 46 YEARS, R/A NO.94, PALARATHIMMANAHALLI, DESIHALLI POST, BANGARPET-563162. … RESPONDENT

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(Sri R.Vickramaditan, Adv.)

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Miscellaneous First Appeal No.9195/2011 is filed under Section 28(1) of the Hindu Marriage Act, against the judgment and decree dated 1.7.2011 passed in M.C.No.63/2009 on the file of Principal Senior Civil Judge and JMFC, K.G.F., allowing the petition filed u/s 9 of Hindu Marriage Act for restitution of conjugal rights.

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Miscellaneous First Appeal No.111/2017 is filed under Section 19(1) of the Family Courts Act, against the judgment and decree dated 26.09.2016 passed in M.C.No.66/2011 on the file of the Senior Civil Judge and Principal JMFC, K.G.F., dismissing the petition filed u/s 13(1) (ia) (ib) of Hindu Marriage Act.

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These appeals coming on for final hearing, this day, VISHWAJITH SHETTY J . , delivered the following:

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JUDGMENT

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These two appeals are filed by the wife challenging the

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judgment and decree passed by the Court of Senior Civil

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Judge & JMFC, K.G.F., in M.C.No.63/2009 dated 01.07.2011 and M.C.No.66/2011 dated 26.09.2016.

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Since the parties to the appeals are common and the dispute between the parties being interlinked, both the appeals are clubbed together, heard and disposed of by this common judgment.

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Brief facts of the case that would be relevant for the purpose of disposal of these two appeals are that the marriage of the appellant-wife was solemnized with the respondent-husband on 15.12.2005 as per the Hindu rites and customs in the office of the Sub-Registrar, K.G.F. From the wedlock, the couple have a son who was born on 12.04.2009. It appears that after the birth of the child, the relationship between the parties had strained and the wife started residing in her parents house along with her son.

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The husband had filed the petition under Section 9 of the Hindu Marriage Act, 1955 (for short, ‘the Act’) in M.C.No.63/2009 before the Family Court, alleging that his wife had left his company on 16.04.2009 without there being

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any valid reasons and ever since then, she has been residing in her parents house and inspite of best efforts made by him to bring her back along with the child, she had refused to join him. He had also contended that the wife had failed to fulfill her marital obligations inspite of he providing her all the basic facilities in the matrimonial house.

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The respondent-wife had entered appearance in the said proceedings and had filed statement of objections, wherein she had admitted the relationship between the parties, but had disputed the allegations made against her. It was contended by her that the husband had ill-treated her and was demanding dowry and in the month of April 2007, an attempt was made to kill her by pouring kerosene oil and setting her on fire. She had also stated that in this regard, a police complaint was lodged and a criminal case was registered against her husband. She, therefore, contended that she had valid reasons to leave the company of her husband.

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During the course of trial, in order to substantiate his case, the husband had examined himself as PW-1 and got

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marked seven documents as Exs.P-1 to P-7. On the other hand, the wife had examined herself as RW-1 and got marked three documents as Exs.R-1 to R-3 in support of her case. The Family Court, after appreciating the evidence on record, by its judgment and decree dated 01.07.2011, allowed the petition filed by the husband under Section 9 of the Act seeking restitution of conjugal rights.

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After the disposal of the petition filed by the husband under Section 9 of the Act, the wife filed M.C.No.66/2011 on 15.07.2011 under Section 13(1)(i)(ia)(ib) read with Section 25 of the Act seeking dissolution of marriage. In the said petition, the wife had contended that the mother of her husband Smt. Padmavathi and her sister Smt. Umavathi had proposed the marriage and they had assured that they will not demand for dowry or marriage expenses as the husband was a divorcee. However, at the time of marriage, the husband and his family members demanded money for printing invitation card and to bare 50% of marriage expenses and to give jewels and house hold utensils and Rs.10,000/- cash for stitching suit, and the said demands

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were complied by the appellant-wife and her family. It was further contended by the wife that after three months of marriage, the husband and his parents demanded a twowheeler, bracelet and Rs.75,000/- as dowry and when her parents expressed their inability, the husband and his parents assaulted her and abused her in filthy language and the husband had stated that he is already divorced and it is very easy for him to divorce her as well.

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It was further contended that during the month of February 2007, the husband and his family members in furtherance of their ill-treatment had confined her in a room without providing food and basic necessities. During the month of April 2007, they shifted her to another house and made an attempt to kill her by pouring kerosene and setting fire on her. When the said incident had come to the knowledge of her brother and parents, they enquired with the husband about the same and in turn, the husband had assaulted her parents. During the month of March 2008, the husband and his family members demanded a site and her parents somehow arranged a sum of Rs.75,000/- and

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thereafter, she pledged her jewels for Rs.51,000/- and gave the amount to her husband and out of the said amount, the husband has purchased a site at Palavathimmahalli, Bangarpet Taluk, which was registered in the joint name of husband and wife.

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It was further contended that on 02.03.2009, she went to her parents house for her delivery and the husband and his family members threatened her that unless she brings a motor cycle, they will not take her back. On 26.09.2009, the husband enraged had assaulted her father with a slipper and caused bleeding injury and in that regard, a complaint was lodged against the husband in Marikuppam Police Station, and the police had issued NCR.No.50/2009. Thereafter, when her parents-in-law threatened her that they will kill her, she lodged a complaint against her husband and her in-laws before the Marikuppam Police in Crime No.39/2009 for the offences punishable under Sections 498A read with Sections 3 & 4 of the Dowry Prohibition Act. She had also contended that she had no source of income to support her and the child and had claimed alimony from her husband.

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The husband filed statement of objections denying the averments made in the petition filed by his wife as false and concocted. He had contended that his wife was not cordial and cooperative with his family and picked up quarrels for petty reasons putting him in disgrace amongst his family members, friends and neighbours. He had also contended that his wife was pestering him to shift his residence to her maternal home. He had contended that after the delivery of child, without his consent, she went to her parents house and started residing there. Though he had made efforts to bring her back, the same was in vain. He had also stated that he had filed M.C.No.63/2009 seeking restitution of conjugal rights and the said petition was allowed on 01.07.2011 and in order to overcome the said order, the wife had filed the present petition.

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During the course of trial in M.C.No.66/2011, the wife examined herself as PW-1 and got marked five documents as Exs.P-1 to P-5. In support of his case, the husband got himself examined as RW-1, however, he did not produce any documents in support of his case. The Family Court, after

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appreciating the evidence on record, vide its judgment and decree dated 26.09.2016 dismissed the petition filed by the wife under Section 13(1)(ia)(ib) of the Act. Aggrieved by the judgment and decree passed in M.C.No.63/2009 and M.C.No.66/2011, the wife has filed these two separate appeals.

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Learned Counsel for the appellant submits that the wife was constrained to leave the company of her husband having regard to the ill-treatment meted out on her. He submits that admittedly the parties are staying separately ever since the year 2009 and the marriage between the parties is virtually dead. He submits that the wife had placed sufficient material before the Family Court in order to prove the grounds of cruelty and desertion against the respondent-husband and the Family Court has not properly appreciated the same. He submits that the petition for restitution of conjugal rights was filed only after a criminal case in Crime No.39/2009 was registered against the respondent and his relatives, though he was not interested in taking back his wife. He submits that

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the respondent has got a past history and even his first wife was divorced by him.

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Per contra, learned Counsel appearing for the respondent-husband has argued in support of the impugned judgment and decree and has submitted that the wife is guilty of willfully deserting the husband and inspite of there being a decree for restitution of conjugal rights, she had failed to join him. He submits that the wife had not made out a case before the Family Court under Section 13(1)(ia) of the Act, and therefore, the Family Court had rightly dismissed the petition. He submits that since his petition for restitution of conjugal rights is allowed, the ground of desertion is not available to the wife. He submits that even on this date, the husband is ready and willing to take back the wife and the son. However, the wife is adamant throughout and she has refused to join him inspite of there being a court order, and accordingly, he prays to dismiss the appeals.

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Re: M.F.A.No.111/2017:

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This appeal arises out of the judgment and decree

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passed in M.C.No.66/2011. To substantiate the case of the

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wife in the petition filed by her in M.C.No.66/2011, she had examined herself as PW-1. During the course of deposition, it has been specifically stated by her that she was ill-treated by her husband and his family members for having not brought sufficient dowry at the time of marriage and in the month of February 2007, she was confined in a room without providing food and basic necessities. Further, in the month of April 2007, she was shifted to another house and also attempt was made to kill her by pouring kerosene and setting fire on her. When her parents after coming to know about the same had inquired with regard to the said incident, the husband had assaulted her parents. Further, she has also stated that on 02.03.2009, she had gone to her parents house for delivery and even at that time, the husband and his family members had asked her to bring a motor cycle while coming back. Even after the birth of the child, the husband had got discharged his wife from the hospital forcibly and left her outside and it is only with the help of her brother’s wife, the appellant-wife had gone to her parents house. She has narrated the incident that had taken place on 26.09.2009 in her house, wherein the husband had assaulted her father with a slipper and caused

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bleeding injury on his lips. Even in this regard, a police complaint was lodged. She has spoken in detail about the complaint lodged by her against her husband and in-laws in Crime No.39/2009 which was subsequently converted to C.C.No.243/2010 after filing of the charge sheet. Though she was cross-examined at length, nothing has been elicited from her to completely disbelieve her version.

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On an overall appreciation of the documentary and oral evidence available on record, it cannot be said that the wife did not have any valid reason to stay away from the company of her husband. The material on record would go to show that the husband not only ill-treated his wife, but, he even had assaulted his father-in-law causing bleeding injuries to him. In addition to the same, when the wife was in the hospital after delivery, he got her discharged forcibly and had left her in the hospital and it is only with the help of her sister-in-law, the wife had gone back to her parents house with the child. All these material on record would go to show that the respondent was guilty of ill-treating his wife throughout after the marriage and though the husband has contended that the

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wife had left his company without there being any reason in the month of April 2009, it is very difficult to believe the same for the reason that the wife had given birth to a male child on 12.04.2009. Therefore, the contention of the wife that she had gone to her parents house on 02.03.2009 and after delivery, the respondent-husband had not taken her back appears to be more probable.

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Cruelty for the purpose of Section 13(1)(ia) of the Act could be both mental cruelty as well as physical cruelty caused by one of the spouse to the other. In the case on hand, the wife has produced sufficient material before the Family Court to prove both physical as well as mental cruelty meted out on her by her husband. From the appreciation of various incidents narrated by the wife, an inference can be drawn against the husband that he was not only ill-treating his wife, but also was in the habit of behaving rudely with her parents and relatives.

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The material on record would also go to show that admittedly the parties are residing separately ever since the year 2009. Unless the parties have respect to each other, an

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intention to live cordially and perform their respective marital obligations, continuation of such a marriage could not be in the interest of any of the parties and on the other hand, it could be detrimental also. For the last 13 years, the parties have been residing separately and the attempts made before the Family Court as well as before this Court for conciliation have failed. The marriage between the parties is virtually dead.

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The wife has produced sufficient oral and documentary evidence before the Family Court and has made out a case for allowing the petition under Section 13(1)(ia) of the Act, though she has not made out a case under Section 13(1)(ib) of the Act. Under the circumstances, we are of the considered view that the Family Court had erred in dismissing the petition filed by the appellant-wife for dissolution of her marriage with the respondent by a decree of divorce.

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Having regard to the finding recorded by us in M.F.A.No.111/2017 arising out of M.C.No.66/2011, the judgment and decree passed by the Family Court in M.C.No.63/2009 filed by the husband under Section 9 of the

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Act for the relief of restitution of conjugal rights cannot be sustained and the same is required to be set aside. Accordingly, the following order:

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(i) M.F.A.No.111/2017 and M.F.A.No.9195/2011 are allowed;

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(ii) The judgment and decree passed in M.C.No.66/2011 and M.C.No.63/2011 by the Court of Senior Civil Judge & JMFC, K.G.F., are set aside and the petition field by the appellantwife under Section 13(1)(ia) of the Act seeking dissolution of marriage by a decree of divorce is allowed and accordingly, the marriage of the appellant-wife solemnized on 15.12.2005 with respondent-husband is dissolved by a decree of divorce;

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(iii) The petition filed by the husband under Section 9 of the Act for restitution of conjugal rights stands dismissed.

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Sd/JUDGE

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Sd/JUDGE

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Smt. Usharani v. E.Pushparaj

Case brief

What is this about?

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Smt. Usharani v. E.Pushparaj

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