Allowed

D.D. Girish v. Sowmya N

Karnataka HC12 Jun 2023MFA/1454/2017

Case brief

AI extract

What is this about?

The High Court allowed the husband's appeal against the Family Court decree dissolving his marriage. The Court set aside the decree, finding the allegations of cruelty and desertion unproven and based on surmises, especially given the acquittal of the accused in the related criminal proceeding.

What did the court decide?

Impugned judgment and decree dated 11.11.2016 passed by the Family Court are set aside and the underlying marriage case is dismissed.

D.D. Girish Vs Sowmya N — Matrimonial and Divorce | Karnataka HC (2023)

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NC: 2023:KHC:19960-DB MFA No. 1454 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JUNE, 2023

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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 ANANT RAMANATH HEGDE MISCELLANEOUS FIRST APPEAL NO. 1454 OF 2017 (FC)

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BETWEEN:

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Digitally signed by BELUR RANGADHAMA NANDINI Location: HIGH COURT OF KARNATAKA

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D.D. GIRISH, SON OF SRI DASEGOWDA, C/O PRAKASH, HINDU, AGED ABOUT 42 YEARS, R/AT NO.42, 1^ST FLOOR, 1^ST MAIN, 6^TH CROSS, VENUGOPALANAGAR, NAGASANDRA POST, BENGALURU-560 073 AND OFFICE: C/O KITCHEN LOGIC, NO.80/18, INDUSTRIAL SUB RUB, YESHAVANTHPUR, BANGALORE - 560 022. …APPELLANT (BY SRI. SRIDHAR CHAKRAVARTHI M V, ADVOCATE)

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AND:

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SOWMYA N, WIFE OF SRI D. D. GIRISH, D/O SRI A P NARAYANA, HINDU, AGED ABOUT 33 YEARS, R/AT SRI VISHNU NILAYA, NO.863, 7^TH CROSS, 4^TH BLOCK, NAGASANDRA POST, HMT LAYOUT, BENGALURU-560 073. …RESPONDENT (BY SRI.B.C.MAHESHA, ADVOCATE - (ABSENT))

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THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 11.11.2016 PASSED ON MC NO.21/14 ON THE FILE OF THE 3^RD ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED U/S.13(1)(ia) OF THE HINDU MARRIAGE ACT.

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

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JUDGMENT

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This is an appeal under Section 19(1) of the Family Court Act, 1984 by the husband in M.C.No.21/2014 on the file of the III Additional Principal Judge, Family Court, Bangalore. The petition filed by the wife seeking dissolution of marriage on the ground of cruelty and desertion is allowed in terms of the impugned judgment and decree dated 11.11.2016.

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The parties to the proceeding are referred to as the

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husband and the wife.

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The facts narrated by the wife are summarized as under:

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The wife in her petition has stated that her marriage was solemnised on 10.08.2005 and for one month the couple stayed

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in the husband’s sister’s house, thereafter the couple moved to the house of the husband's parents and started living there. The husband's mother started abusing her with foul language and started harassing her and used to insist her to bring money and gold ornaments from her parents. The brothers of her husband namely Sandesh and Rangaswamy also used to harass her and pressured her to bring dowry. In November 2004, Sandesh being drunk, hit her on the head with a stone and she was injured. The husband who was not there at the time of the incident did not show any concern on learning about the incident.

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It is further alleged that the husband was unemployed and was not earning income and was forcing the wife to work and earn money for the family. The wife was not inclined to do so as she had married without her parent’s consent. The couple lived in the parent’s house of the husband for five months. On 3^rd January 2005, the couple shifted to a small house at Thannerahalla village at Hassan. The husband's mother also came to the same place and for no reason the husband's mother used to abuse the wife in foul language and insisted her to bring money. On 2^nd March 2005, the husband

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left the job and stopped bringing ration to the house. It is her case that on many occasions she slept without food.

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The wife further submits that on 12^th March 2005, her parents came from Bangalore and advised her to live a happy married life and gave Rs.5,000/- to the wife and purchased some groceries and got the wife checked by the Doctor and purchased medicines as prescribed by the Doctor. It is also her contention that the husband did not pay the house rent and he insisted the wife pay Rs.3,000/- towards the rent. It is further alleged that the mother of the husband took Rs.2,000/- and the couple had to live on the groceries purchased by the parents of the wife.

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It is further alleged that on 3^rd April 2005, the wife's father came to see her and they were shocked to see that the wife had become too weak. It is further stated that the wife's father took the couple to the hotel in Hassan and gave Rs.6,000/- and asked the husband to come to Bangalore and assured him that he would arrange for a job. On 8^th May 2005, the couple left Hassan and came to Bangalore. On 10^th May 2005, the wife's father arranged a house near HMT Layout in

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Bangalore and secured a job for the husband. On 7^th June 2005, the couple moved to a different house in Venugopal Nagar which was taken on lease and the lease amount was arranged by her father. On 10^th September 2005, a daughter 'Navyashree' was born to the couple. It is further stated that all the hospital expenses were taken care of by the wife's father. It is further alleged that the husband left the job and stopped earning. It is further stated that the wife's father took care of the expenses of the family upto November 2006. It is further stated that the wife's father arranged for one more job for the husband.

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It is further alleged that the husband's mother, elder brother, elder brother's wife and children had come to the wife's house and she treated all of them well and the husband's mother again insisted the wife to bring dowry and abused her with foul language. It is her case that the husband also supported his mother and brother.

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It is further stated that the wife joined as a teacher

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in a Nursery school and the child was under the care of the wife's mother. It is further alleged that in the year 2008, as

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insisted by the husband her father gave Rs.1,00,000/- to the husband to grow ginger in the husband's land. The husband did not return the money. It is further alleged that by utilizing the said amount the husband shifted to a new house in HMT Layout. It is further stated that despite the wife's mother taking care of the child the husband and his mother continued to harass the wife asking her to bring dowry. Despite the advice from the wife's father, there was no change in the attitude of the husband. It is further alleged that the husband again left the job and sat idle without earning any money.

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In February 2012, the husband allegedly took the wife to his native place to attend a festival. It is alleged husband along with his brothers and sister took away the money from the wife's purse and four gold bangles weighing 60 grams. It is also alleged that the wife's signature was taken on some blank paper under a life threat. It is further stated that the next day the couple returned to Bangalore.

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The wife stated that on 20^th March 2012, they shifted to a different house in HMT Layout and all the expenses of rent were borne by the wife's father and the husband did not

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contribute. It is further alleged that the husband asked the wife to get Rs.10 lakhs from her father on the pretext that it is needed to procure a big order in the business. The wife stated that Rs.2.50 lakhs was arranged by her father and the said amount is not yet returned. It is also alleged that the husband used to beat the daughter without there being any reason. The wife has further stated that in June 2012, the husband was removed from the partnership business and again he became idle.

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It is also alleged that one day the husband's mother tried to kill the wife by keeping the knob of the cooking gas cylinder open. Standing outside the house she insisted the wife prepare a cup of tea. It is her case that she smelt the gas and saved herself by not igniting the lighter. It is further alleged that she informed this incident to her husband over the phone. 30 minutes later the husband's mother entered the house without speaking anything and in the evening the husband returned home and she found the husband and his mother conversing something in a room. It is further alleged that the next day when the wife returned from the school the husband started abusing the wife in a foul language and physically

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assaulted her. It is further alleged that a chain weighing 180 grams worn by the wife was snatched by the husband and the wife further claims that being fed up with all these incidents she attempted suicide and was saved by the neighbour. It is also her case that the husband started claiming that he has already seen a girl with whom he would marry. It is further alleged that over a period, the husband started consuming more alcohol and the husband started moving with a lady by name Sowmya who was working in the office of the husband. It is further alleged whenever the wife asked about that lady the husband used to abuse and assault the wife. It is further alleged that the husband brought his sister's son to his house and asked the wife to pay for the expenses of his sister's son and started sleeping with him in the room asking the wife to sleep outside. It is further stated that the next day onwards the wife started residing in her mother's house as there was no proper place in the house to sleep. It is further stated that 3 to 4 days later the husband asked the wife to pay Rs.5,000/- to buy shoes and clothes for the sister's son and when the wife declined, she was abused and assaulted. She further alleged that when her parents and her brother came to enquire with her husband

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about the incident the husband pushed his mother-in-law and she fell. It is further stated that the husband pushed the wife and her parents outside the house and locked the house. It is further stated that since then that is from 1^st October 2012, the wife and her six-year-old daughter are staying with her parents. It is further alleged complaint is lodged in this regard

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CC No.2337/2013.

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In the backdrop of the facts narrated above, the wife has alleged that the husband has subjected her to cruelty and deserted her. And accordingly, she had prayed for the dissolution of the marriage.

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The husband has filed the statement of objections. The relationship is admitted. The fact that a daughter was born from the marriage is also admitted. The allegations leveled against the husband are denied. It is the specific case of the husband that in October 2012, he was suffering from an ailment to his right lower limb and as per the advice of the Doctor he was supposed to undergo surgery. He states that on learning about the ailment of the husband, the wife’s parents

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ill-advised the wife. It is also his contention that he suffered the loss in the business on account of the ailment and could not concentrate on the business and taking undue advantage of the situation, the parents of the wife to spoil the relationship started insulting the husband. It is also his case that the wife's parents were not happy with the marriage as it was an intercaste marriage. He further alleged that the wife and her parents insisted on divorce when they learnt about the ailment of the husband. It is also stated by the husband that the wife's parents had threatened that in case the husband does not agree to divorce, a criminal case would be filed against him. It is also his contention that the parents of the wife insisted he sign some blank papers and when he refused to sign the blank paper a false complaint was registered against him at Peenya Police Station. It is also alleged that on learning that the husband has been allotted a share in agricultural land in the family partition, the wife's parents insisted the husband to sell the property and assured him that they would buy a site in Bangalore from the money realized from the sale of the agricultural land. The husband stated that he sold a property on 21.11.2011 and paid Rs.6,23,000/- to the wife's father. He

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further alleges that the site was not purchased in the name of his wife as promised. It is also his contention that on 02.07.2017 he issued a notice seeking restitution of conjugal rights and there was no reply to the said notice. On the other hand, the wife filed a petition seeking the dissolution of the marriage and has prayed for the dismissal of the petition.

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Before the Family Court, the wife is examined as P.W.1. and eight documents produced on her behalf were, marked at Exs.P1 to P8. The husband examined himself as R.W. 1 and three documents are produced as Ex.R1 to R3.

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The Family Court on appreciation of evidence on record has granted a decree for dissolution of marriage accepting the plea of cruelty and desertion. Aggrieved by the judgment and decree, the husband is in appeal.

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The learned counsel appearing for the husband/appellant submitted that the plea of cruelty and desertion is not established and the allegation of illicit relationship alleged by the wife is also not established. The Family Court having given a finding that the plea of illicit

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relationship is not established has erred in granting a decree of dissolution of marriage.

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It is also his contention that the Family Court has given a finding that the husband is differently abled on account of his ailment. Thus, it is urged that the contention of the husband that the wife is insisting on the dissolution of marriage on account of his health condition is established and the marriage has taken place in the year 2004 and the physical disability is incurred in the year 2012 on account of ailment detected in the year 2012. Thus, the wife is not entitled to divorce on the ground of cruelty and desertion. It is also his contention that the reasons assigned by the Family Court in granting a decree for the dissolution of marriage are unsustainable. He would further submit that the Family Court has passed the judgment and decree for the dissolution of marriage on the ground of cruelty and desertion based on surmises and conjunctures. Referring to paragraph 27 of the judgment, it is urged that Family Court has erroneously presumed that there was an attempt by the mother-in-law of the wife to kill her. It is also his contention that the finding of the Family Court that the husband and his family members

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were brought to the police station on a complaint filed by the wife would lead to the inference that the husband and his family members treated the wife with cruelty is an erroneous finding.

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The learned counsel for the husband also urged that the criminal case filed against the husband and his family members in Criminal Misc. No.123/2015 ended in acquittal in terms of the judgment dated 19.02.2018 on the file of the Metropolitan Magistrate, Bengaluru.

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19. There was no representation for the wife.

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This Court has considered the contentions raised at the bar and perused the records.

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From the records, it is apparent that the husband is declared physically challenged. The evidence on record would disclose that he was hale and healthy till 2012 and he was diagnosed in the year 2012 with an ailment in his spinal cord. After that, he incurred physical disability. This fact is not in dispute. It is also required to be noticed in the impugned judgment; the Family Court has given a finding that the

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allegation of the illicit relationship of the husband is not proved. The Family Court has concluded that the alleged assault on the wife and demand for dowry is established in view of the charge sheet filed against the husband. However, it is required to be noticed that the husband and his family members are acquitted of the charges in terms of the judgment 19.02.2018 in Criminal Misc. No.143/2015. It is relevant to state that this appeal was heard in-part on 29.05.2023. The case was adjourned to 30.05.2023 for further hearing. On that day, submission was made relating to the judgment in Criminal Misc. No.143/2015 in favour of the husband. Since the Court asked the counsel to produce the copy of the judgment, same is produced today. Though this judgment was not produced along with an application for the production of an additional document, the same is produced pursuant to the direction issued by this Court and the same is accepted without there being a formal written application. There was no objection to refer the aforementioned judgment by the respondent/wife. Since the document referred to is the judgment rendered by the Court in Criminal Misc. No.143/2015 where the wife is one of the petitioners in the said proceeding this Court has considered the said judgment. The

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judgment would reveal that the complaint lodged by the wife is frivolous.

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Paragraph No.27 of the impugned judgment would reveal that the Family Court has proceeded on the premise that the matrimonial life of the couple is disrupted. Merely based on FIR and the charge sheet, the Family Court concluded that the husband and his family members demanded dowry and the mother-in-law tried to kill the wife. Though the Family Court has concluded that the alleged illicit relationship of the husband is not established, however, erroneously proceeded to hold that the relationship with one Sowmya probabalises the case of the wife. The Family Court has further concluded that an attempt on the part of the mother-in-law to kill the daughter-in-law by keeping open the cooking gas cylinder knob amounts to cruelty. However, the judgment produced before the Court in Criminal Misc. No.143/2015 referred to above would disclose that the complaint is not filed against the mother-in-law in respect of the alleged attempt to kill the wife. This fact is also admitted in the cross-examination by the wife.

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This Court has reappreciated the evidence on record. On close scrutiny of evidence on record it is seen that the wife has leveled the allegation of illicit relationship against the husband for the first time in this petition. It is also forthcoming from the records that the said allegation is not found in her petition in Criminal Misc. No. 143/2015. She has further admitted in the cross-examination that she has not raised this issue with the lady by the name Soumya with whom the husband is alleged to be having the relationship. It is also forthcoming that the wife has not brought this fact to the notice of her parents. The records would further reveal that the husband and the wife belong to different castes and the wife’s parents did not agree and consent for the marriage and also they did not attend the marriage. It is also forthcoming that the wife was not in talking terms with her parents for a considerable period. It is also forthcoming from the record that the wife lodged the complaint against the husband for the first time 8 years after the marriage. The overall appreciation of evidence on record would lead to the conclusion that the wife filed a petition seeking dissolution of marriage only after the husband suffered ailment and disability in the year 2012. And it

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can also be noticed that the wife has received the notice sent by the husband asking her to join his company. And only thereafter, the wife has filed a petition seeking dissolution of marriage alleging cruelty and desertion. The alleged incidents of cruelty are not proved. Independent witnesses are not examined. Her parents are not examined. The daughter is not examined.

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For the reasons referred to supra, this Court is of the view that the impugned judgment and decree passed by the Family Court are unsustainable and liable to be set aside.

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Hence the following:

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ORDER

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(i) The impugned judgment and decree dated 11.11.2016 passed in M.C.No.21/2014 on the file of III Additional Principal Judge, Family Court, Bengaluru are set aside. Consequently, the M.C. No.21/2014 on the file of III Additional Principal Judge, Family Court,

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Bengaluru is dismissed .

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(ii) Appeal is allowed.

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(iii) No order as to cost.

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Sd/JUDGE

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Sd/JUDGE

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GVP

D.D. Girish v. Sowmya N

Case brief

What is this about?

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D.D. Girish v. Sowmya N

Case brief

What is this about?

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