Dismissed

Jayanthi v. a M Lakshminarayana

Karnataka HC22 Mar 2022MFA/5758/2012

Case brief

AI extract

What is this about?

The High Court dismissed this first appeal filed against a divorce decree. The trial court granted divorce to the respondent on grounds of cruelty and desertion, primarily due to the appellant's failed to offer credible rebuttal evidence to the respondent's allegations. The appeal was rejected, with liberty granted to the appellant to approach the executing court regarding maintenance arrears.

What did the court decide?

The appeal was dismissed with liberty to the appellant to establish the maintenance claim before the executing court.

Jayanthi Vs a M Lakshminarayana — 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 22^ND 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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MFA NO. 5758 OF 2012(MC)

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BETWEEN:

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JAYANTHI W/O. A.N. LAKSHMINARAYANA AGE 42 YEARS OCC: HOUSE MAKER R/O. NEECHADI VILLAGE POST THYAGARTHI SAGAR TALUK-577 401 SHIMOGA DISTRICT. … APPELLANT

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(BY SRI. UMESH MOOLIMANE, ADV FOR SRI. S.V. PRAKASH)

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AND:

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A.M. LAKSHMINARAYANA S/O. MAHABALAIAH AGE 52 YEARS R/O. AMADE, POST BARUVE SAGAR TALUK-577 401. SHIMOGA DISTRICT. ...RESPONDENT (BY SRI. NARAYAN MAYYAR, ADV FOR SRI. S.R. HEGDE HUDLAMANE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 28 OF HINDU MARRIAGE ACT, 1955 AGAINST THE JUDGMENT AND DECREE DATED 28.03.2012 PASSED IN M.C.NO.26/2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE & J.M.F.C., SAGAR, ALLOWING THE PETITION

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FILED UNDER SECTION 13(1)(ia) AND (ib) OF HINDU MARRIAGE ACT FOR DIVORCE.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING THIS DAY, ALOK ARADHE J. DELIVERED THE FOLLOWING:-

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JUDGMENT

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This appeal is filed under Section 28 of the Hindu Marriage Act, 1955 against the judgment dated 28.03.2012 passed by the Addl. Senior Civil Judge and JMFC, Sagar in M.C.No.26/2007 by which the petition filed by the respondent/husband seeking dissolution of marriage has been allowed and decree of divorce has been granted on the ground of cruelty.

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Facts giving rise to the filing of this appeal briefly stated are that the marriage between the appellant and the respondent was performed on 05.06.1995 at Amade Village, Sagara Taluk. It is the case of the respondent that on 13.09.1995 the appellant left the matrimonial home and a panchayat was held on 26.11.1995, however, the appellant refused to join the matrimonial home and stayed with her parents. The appellant also filed a criminal case against the respondent including his parents. In the aforesaid criminal

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case, the respondent was acquitted on 01.12.2006. The appellant thereafter filed Criminal Petition No.55/2007 which was dismissed on 03.08.2007. The appellant thereafter filed O.S.181/1997 on the ground that the respondent is trying to contract a second marriage. The aforesaid Civil Suit was also dismissed. The respondent thereafter filed a petition seeking dissolution of marriage on the ground of desertion and cruelty.

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Appellant filed objection to the petition. The appellant in the objection denied that on 13.09.1995 she left the matrimonial home. It was further stated in the objection that the respondent harassed her during her stay in the matrimonial home and threatened to take away her life. It was pleaded that since there was threat to the life of the appellant, she left the matrimonial home on 12.08.1996. The factum of filing criminal case against the respondent was admitted. It was denied that the appellant has voluntarily left the matrimonial home.

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The Trial Court on the basis of the pleadings of the parties framed the issues and recorded the evidence. The

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respondent got himself examined as PW1 and exhibited two documents marked as Ex.P.1 and P.2. The appellant did not tender any rebuttal evidence. The Trial Court vide judgment dated 28.03.2012 interalia held that the appellant has made false allegations against the respondent and has initiated false prosecution against the respondent. It was further held that the allegation of cruelty in the facts of the case are established. It was further held that the appellant has deserted the respondent. Accordingly, the marriage was dissolved by a decree of divorce on the ground of cruelty and desertion.

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Learned counsel for the appellant submitted that the respondent did not tender any credible evidence in support of the averments made in the petition and the Trial Court has failed to appreciate the evidence on record in its correct perspective which has recorded erroneous findings and the consequent decree. On the other hand learned counsel for the respondent has supported the conclusions recorded by the Trial Court.

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We have considered the submissions made on both

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sides and have perused the record.

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Admittedly the marriage between the parties was performed on 05.06.1995. It is not in dispute that the parties are residing separately since 2007 i.e. for past about 15 years. From the perusal of the record of the Trial Court it is evident that even though the respondent has led evidence, the appellant has not led any evidence, neither cross examined the respondent nor has led any rebutable evidence. In such a case, the burden on the one side is very slight and the same shifts on the other side.

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The respondent in his evidence stated that the appellant has made false allegation against the respondent that he has performed the second marriage with one Shashikala. The appellant had initiated criminal case against the respondent and his parents and respondent as well as his parents were acquitted in the aforesaid criminal case on 01.12.2006. Thereafter, the appellant had filed a Criminal Petition viz., Crl.P.55/2007 which was dismissed on 03.08.2007. The respondent has also stated in his evidence

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that the appellant has left the matrimonial home. In the absence of any rebutable evidence by the appellant, the Trial Court has held that the averments with regard to cruelty and desertion have been fulfilled.

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The aforesaid findings are based on evidence tendered by the respondent and cannot be said to be either erroneous or perverse. Even otherwise, the parties are residing separately since the year 2007. For the aforementioned reasons, in our considered opinion, no grounds to interfere with the judgment and decree passed by the Trial Court is made out.

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At this stage, learned counsel for the appellant submits that the respondent is in arrears of maintenance for the period from 01.10.2016 till 31.03.2022.

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On the other hand, learned counsel for the respondent has asserted that he is in arrears for the period 01.01.2018 to 31.03.2022. It is further submitted by the respondent that a Demand Draft for an amount of

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Rs.72,500/- and Rs.4,000/- in cash shall be handed over to learned counsel for the appellant during the course of the day.

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In view of the aforesaid submissions, the appellant is granted liberty to establish her case with regard to remaining amount of maintenance before the Executing Court.

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Learned counsel for the respondent undertakes to pay the interim maintenance @ Rs.5,000/- per month to the appellant during her lifetime or till she is remarried.

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For the aforementioned reasons, we do not find any merit in this appeal. The same fails and is hereby dismissed.

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Sd/JUDGE

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Sd/JUDGE

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brn

Jayanthi v. a M Lakshminarayana

Case brief

What is this about?

What did the court decide?

Jayanthi v. a M Lakshminarayana

Case brief

What is this about?

What did the court decide?

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