Dismissed

Sri Gnanesh v. Manjula. S

Karnataka HC10 Jul 2023MFA/1066/2018

Case brief

AI extract

What is this about?

Appeal filed challenging dismissal of dissolution petition under Hindu Marriage Act. High Court affirmed Trial Court's decision rejecting claims of cruelty and desertion due to lack of specific allegations, insufficient evidence, and the legal stance that filing a partition suit for child interests does not amount to desertion.

What did the court decide?

Appeal dismissed; impugned judgment and decree dated 23.11.2017 affirmed.

Sri Gnanesh Vs Manjula. S — Matrimonial and Divorce | Karnataka HC (2023)

¶1

NC: 2023:KHC:23686-DB MFA No. 1066 of 2018

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 10^TH DAY OF JULY, 2023

¶5

PRESENT

¶6

THE HON'BLE MR JUSTICE ALOK ARADHE

¶7

AND

¶8

THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE MISCELLANEOUS FIRST APPEAL NO. 1066 OF 2018 (MC) BETWEEN:

¶9

SRI GNANESH, S/O. SHAMARAJU, AGED ABOUT 33 YEARS, RESIDING AT MUDIGERE VILLAGE - 577132, KASABA HOBLI, SIRA TALUK, TUMKUR DISTRICT.

¶10

…APPELLANT

¶11

(BY SRI N SURESHA, ADVOCATE - (ABSENT))

¶12

AND:

¶13

Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

¶14

MANJULA S, W/O GNANESH, AGED ABOUT 30 YEARS, RESIDING AT MUDIGERE VILLAGE - 577132, KASABA HOBLI, SIRA TALUK, TUMKUR DISTRICT.

¶15

…RESPONDENT (BY SRI SUNIL K.N, ADVOCATE FOR SRI K.R.RAMESH, ADVOCATE) THIS MFA IS FILED UNDER SECTION 28(1) OF HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 23.11.2017 PASSED IN M.C.NO.61/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SIRA, TUMAKURU DISMISSING THE PETITION FILED UNDER SECTION 13(b) OF THE HINDU MARRIAGE ACT, 1957.

¶16

- 2 - NC: 2023:KHC:23686-DB MFA No. 1066 of 2018

¶17

THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

¶18

JUDGMENT

¶19

This appeal is filed under Section 28(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act, 1955’ for short) challenging the judgment and decree dated 23.11.2017 on the file of the Senior Civil Judge, Sira in M.C.No.61/2012. The petition filed by the husband seeking dissolution of marriage under Section 13(1)(ia) and (ib) of the Act, 1955 on the grounds of cruelty and desertion is dismissed by the Family Court. Aggrieved by the said judgment and decree, the husband is in appeal.

¶20

The parties to the proceeding are referred to as the

¶21

husband and the wife for the sake of convenience.

¶22

Brief facts necessary for adjudication of the case can be summarized as under:

¶23

-the husband in his petition has stated that the marriage was solemnised in the year 2005. It is further stated that a child was born in the year 2007 and till then there was cordial

¶24

¶25

NC: 2023:KHC:23686-DB MFA No. 1066 of 2018

¶26

relationship between the husband and wife and thereafter, in the year 2007, the rift started between the husband and wife. It is also stated that the wife used to quarrel with the husband for no reason and inspite of advise by the elders in the family, she continued with adamant, arrogant and rude behavior and thereafter, she left the company of the husband and started residing with her parents. It is further stated that she has filed O.S. No.137/2007 on the file of the Civil Judge, Sira seeking partition and separate possession in respect of the properties held by the husband and his family members. It is further stated that the wife has left the company of the husband and she has no intention to join the company of the husband. It is the contention of the husband that the wife has caused intolerable mental torture and she has separated from his company.

¶27

The petition was resisted by the wife. She has filed statement of objections. The relationship is admitted. It is also admitted that a son is born from the marriage. The wife filed a partition suit on behalf of the son as the husband and his family wanted to alienate the property to deprive the legitimate share of the son. It is also her contention that the marriage was an

¶28

4 - NC: 2023:KHC:23686-DB MFA No. 1066 of 2018

¶29

inter-caste one and it was registered before the office of the Sub-registrar on 06.10.2005. It is stated in her statement of objections that the husband was not properly taking care of the wife and the child. For this reason, she was constrained to file a suit for partition. It is further stated that she is ready and willing to join the company of the husband and lead normal matrimonial life and accordingly, has prayed for dismissal of the petition.

¶30

The husband has examined himself as PW1 and in addition he has examined two witnesses namely PW 2 and PW3 and produced two documents as Ex.P.1 and Ex.P.2. The wife has examined herself as RW1 and one more witness is examined as RW2. The wife has not produced any documentary evidence.

¶31

The Trial Court on appreciation of evidence has concluded that the plea of cruelty and desertion urged by the husband is not established and accordingly, dismissed the petition. Aggrieved by the aforementioned judgment and decree, the husband is in appeal.

¶32

5 - NC: 2023:KHC:23686-DB MFA No. 1066 of 2018

¶33

Heard learned counsel for respondent/wife. This

¶34

Court has perused the grounds raised in the appeal memo.

¶35

The husband has raised the contention that the judgment and decree passed by the Trial Court are not maintainable in law and on facts. The Trial Court erred in dismissing the petition and the evidence led by the parties are not appreciated in proper perspective. It is further argued that the husband has established the adamant and rude behavior of the wife and that the wife treated the husband cruelly. It is further urged that the wife has deserted the company of the husband and she was ill-treating the husband which amounted to cruelty and despite the fact that she is staying separately in the house of her parents, the Trial Court failed to take note of the fact that the wife has deserted the husband.

¶36

It is further urged that the husband has established before the Trial Court that the wife is not at all willing to continue the marital relationship with the husband and she has failed to take care of the husband. It is further stated that the wife is only interested in the property and as such, she has filed a suit claiming share in the property held by the husband. It is

¶37

6 - NC: 2023:KHC:23686-DB MFA No. 1066 of 2018

¶38

further stated that the husband looked after the wife with lots of love and affection and wife has not looked after the husband which compelled the husband to seek dissolution of marriage.

¶39

Learned counsel for the respondent/wife would submit that the plea of cruelty is not established. The wife had to file a suit for partition to secure the property of her minor child. It is further urged that the husband has not made any arrangement for the maintenance of the wife and the child. It is further urged that the wife is willing to join the company of the husband. The Trial Court has rightly dismissed for want of evidence relating to plea of cruelty and desertion.

¶40

This Court has considered the grounds urged in the appeal memo and the evidence led by the Court and also the contentions raised by the learned counsel.

¶41

It is well established principle of law that when a person files a petition for dissolution of marriage on the ground of cruelty he has to plead specific instances of cruelty and the same is required to be established in evidence. It is well settled principle of law that a minor and trivial difference of opinion

¶42

7 - NC: 2023:KHC:23686-DB MFA No. 1066 of 2018

¶43

between the husband and wife cannot be construed as cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act. And the person seeking dissolution of marriage on the ground of desertion has to specifically plead that the deserting spouse has deserted the company of the other spouse with an intention to put a permanent end to the relationship. It is also required to be pleaded that the spouse deserted the company for more than two years prior to the filing of the petition.

¶44

Keeping in mind the above said well established principles, this Court has considered the contentions raised and also the materials placed on record.

¶45

This Court has perused the petition averments. There is no specific plea relating to instances of cruelty in the petition. The particulars of incidents which led to cruelty are lacking in the petition. As far as plea relating to the desertion is concerned, the husband has not even pleaded that the wife has deserted his company with an intention to put a permanent end to the relationship.

¶46

- 8 - NC: 2023:KHC:23686-DB MFA No. 1066 of 2018

¶47

This Court has perused the evidence led by the husband. The husband has examined two witnesses. The two witnesses examined on behalf of the husband have not supported the case of the husband in the cross-examination. Though in the examination-in-chief, they have stated that they participated in the talks held between the husband and the wife to bring in conciliation, in the cross-examination, they have stated that they did not participate in the talks where the wife was allegedly advised to lead a normal marital relationship with the husband. Even the evidence of the husband is lacking in respect of the particulars relating to cruelty and the desertion as required under law. Under the circumstances, the Trial Court has concluded that the husband has not established his case relating to the cruelty and desertion as alleged.

¶48

From the cross-examination of the wife, it can be concluded that the wife has not left the company of the husband with an intention to put an end to the marital relationship. It is forthcoming from the evidence that she filed a suit for partition and separate possession to secure the property rights of the minor, child as there was a threat of alienation of the property. The act of filing the suit keeping in

¶49

9 - NC: 2023:KHC:23686-DB MFA No. 1066 of 2018

¶50

mind the interest of the minor child cannot be construed as an act of desertion. The evidence on record does not indicate that the husband has made arrangements of the maintenance of the wife and the child. This being the position, the Court cannot hold that the wife left the company of the husband with an intention to put an end to the marital relationship.

¶51

Having re-appreciated the evidence on record with reference to the pleadings, this Court is of the view that the Trial Court is justified in holding that the petition seeking dissolution of marriage on the ground of cruelty and desertion has to be dismissed and has rightly dismissed the petition.

¶52

No grounds are made out to interfere with the judgment and decree passed by the Trial Court.

¶53

19. Hence the following:

¶54

ORDER

¶55

(i) The impugned judgment and decree dated 23.11.2017 passed by the Senior Civil Judge & JMFC, Sira in M.C.No.61/2012 is affirmed.

¶56

10 - NC: 2023:KHC:23686-DB MFA No. 1066 of 2018

¶57

(ii) Accordingly, appeal is dismissed .

¶58

Sd/JUDGE

¶59

Sd/JUDGE

¶60

BRN

Sri Gnanesh v. Manjula. S

Case brief

What is this about?

What did the court decide?

Sri Gnanesh v. Manjula. S

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri v T Chinnappa Vs the State of Karnataka

H N Venu Vs Nagaraju N

M/S. Chandrika Theatres Vs Sri. B. G. Panduranga

Smt Yamuna Vs Sri Siddalingakumar D R

Dr. Sandesh C Patil Vs Medical Council of India

Smt Komala S P Vs Smt Asha L @ Asha Chetan Kumar