Allowed

Papamma @ Manjamma v. Papaiah

Karnataka HC26 Jul 2022MFA/1712/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal against a divorce decree. It held that the trial court erred in placing the burden of proving paternity on the wife under Section 112 of the Evidence Act, as the child was born during a valid marriage. The appeal against the divorce decree was allowed and the lower court's petition dismissal was reversed.

What did the court decide?

The appeal was allowed. The impugned judgment and decree of 07.02.2014 in M.C. No.6/2013 were set aside, and the petition under Section 13(1)(ib) was dismissed.

Papamma @ Manjamma Vs Papaiah — Matrimonial and Divorce | Karnataka HC (2022)

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M.F.A. NO.1712/2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF JULY, 2022

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PRESENT

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THE HON’BLE MRS.JUSTICE K.S.MUDAGAL

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AND

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THE HON’BLE MR.JUSTICE S.RACHAIAH

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MISCELLANEOUS FIRST APPEAL NO.1712/2014 (MC)

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BETWEEN:

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PAPAMMA @ MANJAMMA W/O PAPAIAH AGED ABOUT 31 YEARS OCCUPATION HOUSE WIFE BORAPPANA HATTI GRAMA CHALLAKERE TALUK – 577 522 CHITRADURGA DISTRICT

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...APPELLANT (BY SRI SHIVAKUMARAPPA T.C., ADVOCATE FOR SRI B.M. SIDDAPPA, ADVOCATE)

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AND :

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PAPAIAH S/O LATE CHANNAIAH AGED ABOUT 36 YEARS OCCUPATION AGRICULTURIST R/O NALAJAMANA HATTI CHALLAKERE TALUK – 577 522 CHITRADURGA DISTRICT

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…RESPONDENT

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(BY SRI H. ASHOK KUMAR, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 28 OF HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 07.02.2014 PASSED IN M.C.

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M.F.A. NO.1712/2014

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NO.6/2013 ON THE FILE OF THE LEARNED SENIOR CIVIL JUDGE & JMFC, CHALLAKERE, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ib) OF HINDU MARRIAGE ACT.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, S.RACHAIAH J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Aggrieved by the judgment and decree of divorce passed against her, the respondent in M.C.No.6/2013 on the file of the learned Senior Civil Judge and JMFC at Challakere (for short ‘trial Court’) has preferred this appeal.

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By the impugned judgment and decree, the trial Court has allowed the petition filed by the respondent herein for dissolution of marriage under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (‘the Act’ for short). For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.

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The marriage of the petitioner and the respondent was solemnized on 12.03.2004 at Borappanahatti village as per their religious customs and

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M.F.A. NO.1712/2014

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rites. The respondent filed M.C.No.6/2013 before the trial Court seeking decree for dissolution of their marriage.

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4. The petitioner’s case in brief is as follows:

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At the time of marriage, quarrel took place between the families of the petitioner and the respondent in the marriage venue itself. The marriage was broken and the parties returned to their respective houses. The efforts to reconcile failed. They are residing separately since last eight years. There was no consummation of marriage that has caused him physical and mental cruelty. Therefore the marriage shall be dissolved.

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The respondent contested the petition. Her defence was as follows:

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The allegations of quarrel at the time of marriage, breaking of the marriage, efforts of reconciliation, non consummation of the marriage were all denied. At the time of marriage, her parents gave dowry in cash and kind. After marriage, she lived with the petitioner for nine years. The petitioner was addicted to vices and was suspecting

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M.F.A. NO.1712/2014

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her fidelity. He subjected her to physical and mental cruelty due to his vices and demanding her to get Rs.50,000/- from per parents. Tolerating that, she continued to live with him. Out of the marriage, they got a son by name Suresh. Even after birth of the child, the petitioner continued his ill treatment and neglected the respondent and her child. Ultimately, he drove her out of the matrimonial home on 20.12.2012. Since the petitioner failed and neglected to maintain herself and her child, she has filed Crl.Misc.No.127/2013 seeking maintenance under Section 125 of Cr.P.C. The petitioner himself is guilty of cruelty and desertion. Therefore the petition shall be dismissed.

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In support of his case, the petitioner was examined as PW.1, one Boraiah as PW.2 and Ex.P1 was marked. The respondent was examined as RW.1 and no document was produced in support of her case.

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The trial Court on hearing the parties, by the

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impugned judgment and decree allowed the petition and

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M.F.A. NO.1712/2014

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dissolved the marriage on the prime ground that she has failed to prove that Suresh is the son of the petitioner. The trial Court accepts the evidence of the petitioner and further holds that the respondent has failed to prove that the petitioner has driven her out of the matrimonial home.

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Submissions of Sri.Shivakumarappa.T.C., learned counsel for the appellant.

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The impugned judgment and decree of the trial Court is unsustainable both on facts and law. The petitioner himself drove the respondent out of the matrimonial home after harassing her to the possible extent. The trial Court was in error in casting the burden on the wife to prove the fact that Suresh was the son of the petitioner ignoring Section 112 of the Indian Evidence Act, 1872 (‘the Evidence Act’ for short). The trial Court should have cast the burden on the husband to disprove that Suresh was not his son. Subsequent to the impugned judgment and order on 22.08.2016 the learned JMFC, Challakere allowed Crl.Misc.No.127/2013 awarding

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M.F.A. NO.1712/2014

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maintenance to wife and son holding that the relationship is proved and the petitioner has failed and neglected to maintain his wife and the child. That order is now challenged. That subsequent event has to be taken into consideration. By denying the paternity of the child, the petitioner himself has committed cruelty. Thus he seeks reversal of the impugned judgment and decree.

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Submissions of Sri H.Ashok Kumar, learned Counsel for the respondent:

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The trial Court after considering both oral and documentary evidence available on record has held that the respondent has deserted the petitioner from beginning of the marriage. There was no cohabitation since the date of the marriage and there was no consummation of the marriage. When the paternity of the child was denied, the respondent ought to prove the same. The respondent except her self-serving testimony did not adduce any evidence in proof of paternity of the child or her cohabitation with the petitioner in the matrimonial home. Therefore he seeks dismissal of the appeal.

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M.F.A. NO.1712/2014

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Having heard both learned Counsel for the parties and after perusing both oral and documentary evidence on record, the point that arises for consideration is “ Whether the impugned judgment and decree is sustainable in law”?

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The husband sought for decree of divorce under Section 13(1)(ib) of the Act which deals with the ground of desertion. Whereas the contents of the petition are to the effect that wife deserted him since the time of marriage itself and her denial for consummation of the marriage has caused him cruelty. Whereas the trial Court grants the decree of divorce on the ground that the wife has failed to prove the paternity of the child which amounts to granting decree of divorce on the ground of adultery.

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The burden of proving the fact that there was a quarrel in the marriage venue itself at the time of the marriage and the couple parted their ways from the

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M.F.A. NO.1712/2014

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marriage venue was on the petitioner. The petitioner in his cross-examination admits the receipt of cash of Rs.10,000/-, clothes and watch at the time of marriage. Though he denies the cohabitation, his own witness PW.2 in the cross-examination gives a clear cut admission that out of their matrimonial life, the petitioner and the respondent begot son Suresh. PW.2 does not deny the suggestions that the petitioner is addicted to alcohol and after physically ill-treating the respondent drove her out from the matrimonial home, but he pleads his ignorance about that. If at all PW.2 was well versed with the family affairs of the petitioner and the respondent, he could not have pleaded such ignorance.

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Further Section 112 of the Evidence Act which deals with the presumption with regard to paternity reads as follows:

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“112. Birth during marriage, conclusive proof of legitimacy.-

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The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and

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M.F.A. NO.1712/2014

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eighty days after its dissolution, the mother remaining unmarried , shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

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In view of Section 112 of the Evidence Act, once if it is admitted/proved that the child is born during the subsistence of marriage, there is presumption as to the legitimacy of the child. That is the conclusive proof. Then it is for the party denying such paternity to disprove the said fact. To disprove that the petitioner was required to prove that the marriage was not valid, or he had not access to the respondent during the period of gestation of the child or respondent was remarried during that time.

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The petitioner did not claim that their marriage was invalid or the respondent was remarried. The admission of PW.2 his own witness to the effect that Suresh is born out of the marriage of the petitioner and the respondent belies his denial of paternity. Under the aforesaid facts and circumstances, the trial Court

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M.F.A. NO.1712/2014

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committed serious error in holding that the respondent should have proved the paternity and she has failed to discharge that burden.

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Further the fact that in Crl.Misc.No.127/2013, the Magistrate granted maintenance returning the findings that the child is born out of marriage of the petitioner and the respondent and he has failed and neglected to maintain them is not disputed. It is also not disputed that the said finding has attained finality. That fact also goes to show that the petitioner himself is guilty of driving his wife and the child from his fold which amounts to cruelty to them.

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In the light of the above said discussions, the impugned judgment and decree is contrary to the evidence on record and the law on the point, therefore unsustainable. Hence the following:

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ORDER

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The appeal is allowed. The impugned judgment and decree dated 07.02.2014 in M.C.No.6/2013 passed by the

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M.F.A. NO.1712/2014

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learned Senior Civil Judge and JMFC, Challakere is hereby set aside.

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The petition in M.C.No.6/2013 filed under Section

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13(1)(ib) of Hindu Marriage Act, 1955 is hereby dismissed.

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No order as to costs.

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Sd/JUDGE

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Sd/JUDGE

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Bss/Un/KSR

Papamma @ Manjamma v. Papaiah

Case brief

What is this about?

What did the court decide?

Papamma @ Manjamma v. Papaiah

Case brief

What is this about?

What did the court decide?

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