Allowed

Gangadhargouda S/O Venkanagouda Patil v. Smt.Mahalaxmi W/O Gangadhargouda Patil

Karnataka HC6 Oct 2023MFA/103319/2019

Case brief

AI extract

What is this about?

The High Court allowed appeals by a husband against a Family Court decree. The court set aside a dismissal of a divorce petition and granted divorce on grounds of cruelty, disregarding a prior decree for restitution of conjugal rights obtained by the wife ex-parte.

What did the court decide?

Divorce granted on the ground of cruelty; restitution of conjugal rights decree set aside and dismissal of that petition; marriage dissolved.

Gangadhargouda S/O Venkanagouda Patil Vs… — Matrimonial and Divorce | Karnataka HC (2023)

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NC: 2023:KHC-D:11920-DB MFA No. 101476 of 2019 C/W MFA No. 103319 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 101476 OF 2019 (FC-)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 103319 OF 2019

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IN MFA NO. 101476/2019

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BETWEEN:

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SRI. GANGADHARGOUDA S/O. VENKANAGOUDA PATIL, AGED ABOUT 39 YEARS, OCC: SERVICE AT PRIVATE COMPANY R/O: SUDI VILLAGE, TQ: RON, DIST: GADAG, NOW RESIDING AT C-706, IVY BOTANICA WAGHOLI, PUNE, STATE: MAHARASTRA.

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SAMREEN AYUB DESHNUR

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Digitally signed by SAMREEN AYUB DESHNUR Date: 2023.10.18 11:10:30 +0530

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…APPELLANT

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(BY SRI CHETAN T. LIMBIKAI, ADVOCATE)

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AND:

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SMT. MAHALAXMI W/O. GANGADHARGOUDA PATIL, AGED ABOUT 31 YEARS, OCC: HOUSEHOLD WORK, R/O: D.M.PATIL, H.NO.108, BURABURE LAYOUT, PANCHAXARI NAGAR, GADAG.

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…RESPONDENT

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(NOTICE SERVED TO RESPONDENT)

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NC: 2023:KHC-D:11920-DB MFA No. 101476 of 2019 C/W MFA No. 103319 of 2019

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 19(1) OF FAMILY COURT ACT 1984, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 12.02.2019 PASSED BY THE ADDITIONAL PRINCIPAL FAMILY COURT, GADAG AT GADAG IN MC NO. 128/2018.

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IN MFA NO. 103319/2019

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BETWEEN:

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GANGADHARGOUDA S/O. VENKANAGOUDA PATIL, AGED: ABOUT 39 YEARS, OCC: SERVICE, R/O: SUDI, TQ: RON, GADAG, NOW R/O: C-706, IVY BOTANICA, WAGHOLI, PUNE-412207, MAHARASHTRA.

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…APPELLANT

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(BY SRI SHIVAKUMAR S. BADAWADAGI AND MISS VAISHALI KALADAGI, ADVOCATES)

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AND:

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SMT. MAHALAXMI W/O. GANGADHARGOUDA PATIL, AGED: ABOUT 31 YEARS, OCC: HOUSEHOLD, R/O: SUDI, TQ: RON, DIST: GADAG, NOW R/O: C/O. D.M. PATIL, H.NO.108, BURBURE LAYOUT, PANCHAXARI NAGAR, GADAG.

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…RESPONDENT

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(NOTICE SERVED TO RESPONDENT)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURT ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED:26.06.2019, PASSED IN MATRIMONIAL CASE NO.61/2017 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE FAMILY COURT, GADAG AND CONSEQUENTLY BE PLEASED TO ALLOW MC NO. 61/2017 AT ANNEXURE –A ON THE FILE OF I ADDITIONAL PRINCIPAL FAMILY COURT AT GADAG AND DISSOLVE THE MARRIAGE

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BETWEEN APPELLANT AND RESPONDENT PERFORMED ON 22/12/2008 IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, KRISHNA KUMAR, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Both these appeals are by the appellant-husband directed against the impugned judgment and decree dated 12.02.2019 passed in M.C.No.128/2018, whereby, the said petition filed by the respondent-wife against the appellanthusband seeking restitution of conjugal rights was decreed exparte and M.C.No.61/2017 filed by the appellanthusband seeking divorce against the respondent-wife on the ground of cruelty was dismissed by the Additional Principal Family Court, Gadag (hereinafter referred to as the ‘Family Court’).

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Heard learned counsel for the appellant and perused the material on record.

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The respondent-wife who has been served by notice on both the appeals has chosen to remain unrepresented.

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The material on record discloses that the

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appellant got married to the respondent on 22.12.2008 and from out of the wedlock a male child Praneeth was born on 29.09.2010. In the year 2018, respondent-wife filed the aforesaid petition in M.C.No.128/2018 under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights. Prior to the said petition, the appellant-husband had already instituted M.C.No.61/2017 seeking divorce inter alia contending that the respondent was treating him with cruelty and that she was incurably of unsound mind and had been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that she cannot be reasonably expected to live with the appellant. The respondent contested the said petition and during the course of trial, the appellant examined himself as PW1 and his two brothers as PWs2 and 3 as well as the Doctor who treated the respondent as PW4 and documentary evidence at Exs.P1 to P12 were marked. Respondent examined herself as RW1 and Exs.R1 to R24 were marked on her behalf.

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After hearing both the parties, the Family Court proceeded to pass the impugned judgment and decree dismissing the petition filed by the appellant. Prior to the said judgment and decree, the Family Court had already decreed the M.C.No.128/2018 filed by the respondent/wife for restitution of conjugal rights. In this context, it is contended by the appellant that he was unaware of the said proceedings and did not receive the notice of the same and became aware of the said proceedings and judgment and decree only when the same was produced by the respondent during her evidence as RW1 and Exs.R2 and R3. Aggrieved by the impugned judgments and decrees passed by the Family Court, the appellant is before this Court by way of the present appeal.

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As stated earlier, the respondent-wife has remained absent in both the appeals and has not chosen to contest the same.

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A perusal of the impugned judgment and decree passed in M.C.No.61/2017 will indicate that, in this

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NC: 2023:KHC-D:11920-DB MFA No. 101476 of 2019 C/W MFA No. 103319 of 2019

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context, the material on record clearly establishes that the respondent was guilty of treating the appellant with cruelty for the following reasons:

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(i) The medical certificate at Exs.P7 and P11 issued by PW4 will indicate not only the erratic behavior of the respondent but also that she was treating him with cruelty.

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(ii) Ex.P5 and P6, affidavits sworn to by the parents of the respondents which also indicate that the respondent was treating the appellant with cruelty.

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(iii) Ex.P9 which was the complaint given by respondent to the jurisdictional Police authority at Germany against the appellant which ultimately turned out to be false complaint and filing of a false complaint against the appellant tantamounts to cruelty.

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(iv) Exs.P7, P11 and P12 and the un-impeached, un-controverted and unchallenged evidence of PW2 and PW3, brothers of the appellant which also would corroborate the plea of cruelty put forth by the appellant.

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(v) The independent witness PW4-Dr.Vinod G.Kulkarni whose testimony has not been

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NC: 2023:KHC-D:11920-DB MFA No. 101476 of 2019 C/W MFA No. 103319 of 2019

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discredited in the cross-examination is also a pointer to the fact that the respondent had treated the appellant with cruelty.

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(vi) Undisputedly, the respondent had initiated the proceedings under the Protection of Women from Domestic Violence Act, 2008 in Criminal.Misc.No.233/2017 which is also a factor to indicate that she was harassing the appellant and treating him with cruelty.

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(vii) Exs.R6 to R24 are email correspondence which also substantiate the fact that the respondent was treating the appellant with cruelty.

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In our considered opinion, the Family Court has failed to consider and appreciate the aforesaid evidence in its proper perspective and has recorded an erroneous finding that the appellant has not been treated with cruelty by the respondent which is contrary to law and material on record warranting interference by this Court in the present appeal.

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Insofar as the ground for divorce under Section

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13(1)(iii) of the Hindu Marriage Act, 1955 is concerned,

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the standard/level of proof required being very high, the appellant has not placed any material to prove the said allegations made by him and the Family Court was justified in rejecting the plea for divorce on the said ground and the said finding does not warrant interference by this Court in the present appeal. However, notwithstanding the fact that the respondent cannot be said to be of unsound mind or suffering from mental disorder to such an extent that she cannot be reasonably expected to live with the appellant, the evidence of PW2 to PW4 especially the Doctor-PW4 is sufficient to come to the conclusion that even if she was not suffering from any mental disorder, her behavior was such that the same would amount to treating the appellant with cruelty and consequently, the appellant would be entitled for divorce on the ground of cruelty.

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Insofar as the reliance placed by the respondent

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on the judgment and decree passed in M.C.No.128/2018 for restitution of conjugal rights which is assailed in

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connected MFA.No.101476/2019 is concerned, it is relevant to state that instant M.C.No.61/2017 filed by the appellant seeking divorce was earlier to the said petition in M.C.No.128/2018 filed by the respondent. In fact in his statement of objections in M.C.No.128/2018, the appellant has brought to the notice of the Family Court that he has already instituted a petition for divorce despite which, the Family Court proceeded to pass two separate judgments and decrees in both the matters and consequently in the light of the present petition for divorce already having been instituted by the appellant prior to the petition for restitution of conjugal rights being instituted by the respondent, no reliance can be placed upon the said judgment and decree by the respondent for the purpose of opposing the claim for divorce. Under these circumstances, the findings recorded by the Family Court deserves to be set aside. In order words, prior to the appellant instituting M.C.No.61/2017 seeking divorce, the respondent has neither taken any legal steps to seek restitution of conjugal rights nor put forth a counter claim

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in the said petition or sought for restitution of conjugal rights. Under these circumstances, the said contention of the respondent cannot be accepted. The material on record also discloses that the parties have been residing separately from 2017 onwards and there is absolutely no possibility of reunion and the marital relationship between them has irretrievably broken down which is also yet another circumstance in favour of the appellant to seek divorce.

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In the result, we proceed to pass the following:

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ORDER

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(i) Both the appeals are hereby allowed .

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(ii) The impugned judgments and decrees dated 12.02.2019 and 26.06.2019 passed in M.C.No.128/2018 and M.C.No.61/2017 respectively, are set aside.

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(iii) M.C.No.128/2018 filed by the respondent is hereby dismissed.

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(iv) M.C.No.61/2017 filed by the appellant stands allowed on the ground of cruelty.

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(v) The marriage solemnized between the appellant and the respondent on 22.12.2008 stands dissolved by a decree for divorce.

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It is however made clear that all rival contentions between the parties as regards maintenance, alimony, custody of the child, etc., are kept open and no opinion is expressed on the same.

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Draw decree accordingly.

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Sd/JUDGE

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Sd/JUDGE

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RH LIST NO.: 1 SL NO.: 68

Gangadhargouda S/O Venkanagouda Patil v. Smt.Mahalaxmi W/O Gangadhargouda Patil

Case brief

What is this about?

What did the court decide?

Gangadhargouda S/O Venkanagouda Patil v. Smt.Mahalaxmi W/O Gangadhargouda Patil

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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