Dismissed

Sri.K.N.Vijendra v. Smt. Asha

Karnataka HC27 Mar 2023MFA/1722/2017

Case brief

AI extract

What is this about?

This miscellaneous first appeal challenged the Family Court's dismissal of a petition for dissolution of marriage on grounds of cruelty and desertion. The High Court held that the appellant failed to prove either ground due to lack of specific instances, corroborative evidence, or proof of intention to separate, and dismissed the appeal.

What did the court decide?

The appeal filed under Section 28 of the Hindu Marriage Act was dismissed as it failed to prove grounds of cruelty and desertion.

Sri.K.N.Vijendra Vs Smt. Asha — Matrimonial and Divorce | Karnataka HC (2023)

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MFA No.1722 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF MARCH 2023 PRESENT

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THE HON'BLE MR JUSTICE ALOK ARADHE AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.1722 OF 2017 (MC)

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BETWEEN:

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SRI K.N.VIJENDRA S/O LATE K.NAGAPPA, AGED ABOUT 43 YEARS, OCC. AGRICULTURIST, R/O. OPPORTUNITIES, SRIRAM COMPLEX, NEHRU ROAD, HOSANAGARA, SHIVAMOGGA-577 418.

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…APPELLANT

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(BY SRI GANAPATHI C.V., ADV.)

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AND:

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SMT. ASHA W/O K.N.VIJENDRA D/O LATE SARVOTTHAMA, AGED ABOUT 39 YEARS, R/O 'PUSHPA NILAYA' BIRANTHABAILU VILLAGE, KASARAGODU DIST., KERALA-671 121.

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…RESPONDENT

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(BY SRI SRINIVAS BHAT, ADV.)

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THIS M.F.A IS FILED UNDER SECTION 28 OF HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 17.12.2016 PASSED IN MC NO.22/2011 ON THE FILE OF THE

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MFA No.1722 of 2017

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ADDITIONAL SENIOR CIVIL JUDGE & JMFC, SAGAR, DISMISSING THE PETITION FILED U/SEC.13(1) (ia) AND (ib) OF THE HINDU MARRIAGE ACT.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 23.03.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 28 of the Hindu Marriage Act, 1955, has been filed against the judgment and decree dated 17.12.2016 passed in M.C.No.22/2011 by the Addl. Senior Civil Judge and JMFC, Sagar, by which the petition filed by the appellant seeking dissolution of marriage, was dismissed.

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Brief facts giving rise to filing of this appeal are that the marriage of the appellant and respondent was solemnized on 21.05.2009 at Balambat Hall, Mangalore, as per the customs and rituals. It is pleaded that the couple lived together for sometime. The respondent was quarrelsome and doubtful by nature and used to threaten the appellant which caused mental harassment. It is

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MFA No.1722 of 2017

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averred that respondent has assaulted the appellant's mother, made false allegations against his married sister. It is further averred that the respondent compelled the appellant to set up a separate house, despite appellant agreeing to the same she had not changed her attitude. She left the matrimonial home abruptly, deserting the appellant and started living with her parents, which caused mental shock to the appellant's father and he died on 24.05.2011. The respondent neither attended the funeral ceremony nor did she see the dead body. All the aforesaid acts of the respondent would amount to mental cruelty and desertion.

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The respondent has filed the statement of objection by admitting the relationship between the parties. However, she categorically denies the allegations of desertion and cruelty. It is averred that they led happy marital life for a period of six months in the joint family, gradually the family members of the appellant started ill treating the respondent by coercing her to bring money and gold as dowry, they have treated her as a maid

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MFA No.1722 of 2017

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servant, made her to do all household work and did not permit her to go out of the house. It is further averred that respondent's parents made efforts to reconcile the couple, which went in vain. It is pleaded that the appellant and his family members have caused mental cruelty by

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not providing groceries, left with no other alternative the respondent was compelled to file a criminal case against the appellant. The respondent never deserted the appellant.

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The Family Court has recorded the evidence. The appellant examined himself as PW.1 and marked Exs.P1 to P28. The respondent examined herself as RW.1. The Family Court based on the evidence inter alia held that the appellant has failed to prove the grounds of cruelty and desertion, hence dismissed the petition vide judgment dated 17.12.2016. In the aforesaid factual matrix the present appeal has been filed.

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Learned counsel for the appellant submits that there

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is no dispute with regard to the relationship between the

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MFA No.1722 of 2017

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parties. It is submitted that the Family Court has erred in coming to the conclusion that pages 1 and 2 of Ex.P3 is written by the respondent, however, the remaining pages i.e., 3 to 6 were not written by the respondent. It is further submitted that respondent has admitted in her evidence about Ex.P3. The Family Court ought not to have disbelieved the same. It is also submitted that Family Court has not appreciated the pleading and evidence on record in its proper perspective as the respondent has filed

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various criminal cases against the appellant, which amounts to cruelty.

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Per contra learned counsel for the respondent supports the judgment of the Family Court and contends that appellant has failed to prove the grounds of cruelty and desertion. It is submitted that appellant and his family members have caused cruelty against the respondent, thus she was forced to file said criminal complaints against

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the appellant. It is the appellant's acts which forced the respondent to leave the matrimonial home and reside with

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MFA No.1722 of 2017

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her parents, therefore, she prays for dismissal of the appeal.

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We have heard the learned counsel for the appellant and the respondent and perused the material on record. The appellant has made certain assertions in paragraphs 4 to 9 of the petition regarding cruelty and desertion. On careful perusal of the pleadings, it is evident that the appellant has asserted that the respondent was quarrelsome, doubted the appellant, and was negligent towards the appellant, which has caused cruelty. It is also stated that the respondent has physically assaulted appellant's mother and made false allegations against his married sister. Despite the appellant arranging a separate house at Hosanagara, she has not changed her behaviour and deliberately she left the house and started living separately with her parents, due to which the appellant's father underwent mental shock and passed away on 24.05.2011. The aforesaid assertions are reiterated in the evidence of PW.1 and he deposed that the respondent has filed criminal case against the appellant.

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MFA No.1722 of 2017

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On meticulous appreciation of pleading and evidence

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on record it is evident that the appellant has made only vague allegations, without pointing out any specific instances of cruelty. The person who comes to the Court making allegations of cruelty is required to discharge the

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burden by pleading and by producing cogent and corroborative evidence to the effect that he is unable to lead marital life with the respondent, due to such acts of cruelty.

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It would be useful to refer to the decision of

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N.G. DASTANE (DR) Vs. S. DASTANE, (1975) 2 SCC 326

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wherein para 32 reads as follows :-

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"The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse.”

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MFA No.1722 of 2017

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In the instant case, the appellant failed to discharge the said burden and failed to prove the grounds of cruelty. The appellant has produced exhibits to contend that respondent has filed false criminal cases against the appellant, however neither there is pleading in the petition to that effect nor there is any evidence to substantiate that initiation of criminal cases are false and malicious. Hence in the absence of any finding by the criminal court, mere initiation of proceedings ipso facto does not amount

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to mental cruelty, which requires legitimacy of conduct to be relied on.

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We have meticulously perused the contents and handwriting of Ex.P3, it is evident that the handwriting contained in pages 1 and 2 are different from that of remaining pages and there is contradictory versions in Ex.P3. Hence the Family Court has rightly disbelieved the aforesaid exhibit P3, therefore, we do not find any error in the said finding. The pleading and evidence adduced on behalf of the appellant is not sufficient to come to the conclusion that appellant has proved the ground of cruelty.

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MFA No.1722 of 2017

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Hence we do not find any error in the finding recorded by the Family Court.

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It would be useful to refer the decision of the Hon’ble Supreme Court in DEBANANDA TAMULI V. KAKUMONI KATAKY, (2022) 5 SCC 459, wherein at para 7 it has elaborated that the deserted spouse requires to prove that there was compelling motive, to come to a reasonable conclusion that the factum of separation was not consensual on lines of ending cohabitation.

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The petition is filed on the ground of desertion, however, the appellant has not pleaded on which date the respondent has left the matrimonial home and there is no pleading and evidence to the effect that the respondent has left the matrimonial home with an intention to end the cohabitation. In the absence of any proper pleading and evidence to prove the ground of desertion, to the effect that respondent left the matrimonial home two years immediately preceding the presentation of the petition, the marriage cannot be dissolved on the ground of desertion.

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10 -

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MFA No.1722 of 2017

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Hence the appellant has failed to prove the ground of desertion.

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The Family Court has recorded a finding that appellant has failed to prove the grounds for dissolution of marriage on the grounds of cruelty and desertion. The aforesaid finding do not suffer from any infirmity warranting interference by this Court in the present appeal.

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

Sd/JUDGE

Sd/JUDGE

CT: DMN

Sri.K.N.Vijendra v. Smt. Asha

Case brief

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Sri.K.N.Vijendra v. Smt. Asha

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