Allowed

Smt.T.N.Pushpalatha v. Mallikarjuna H Patil

Karnataka HC12 Jan 2023MFA/3149/2014

Case brief

AI extract

What is this about?

Appellant wife appealed against a Family Court decree granting divorce to respondent husband based on cruelty and desertion. High Court upheld finding of cruelty due to lodging false criminal cases ending in acquittal and finding of desertion. Court awarded permanent alimony including daughter's education expenses.

What did the court decide?

Appeal dismissed. Respondent directed to pay appellant Rs.12 lakhs as permanent alimony within three months, with interest at 6% p.a. thereafter.

Smt.T.N.Pushpalatha Vs Mallikarjuna H Patil — Maintenance and Alimony | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JANUARY 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 S.VISHWAJITH SHETTY

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M.F.A.No.3149/ 2014 (FC)

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BETWEEN:

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SMT. T.N. PUSHPALATHA W/O MALLIKARJUNA H. PATIL AGED ABOUT 31 YEARS C/O NAGENDRAPPA, D.NO.695/171, 4TH MAIN ROAD, 4TH CROSS, ANJANEYA BADAVANE DAVANAGERE - 577 601. ...APPELLANT

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(BY SRI GOPALA R, ADV.)

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AND:

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MALLIKARJUNA H PATIL S/O H.B. PATIL AGED ABOUT 36 YEARS, R/AT SRINIVAS NILAYA D.NO./ 677, 11 TH BLOCK 7TH MAIN, II STAGE NAGARBHAVI BANGALORE - 50 072. ...RESPONDENT

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(BY SRI SHIVAPRABHU S, ADV.,)

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THIS M.F.A. IS FILED UNDER SECTION 28 OF THE HINDU MARRIAGE ACT, PRAYING AGAINST THE JUDGMENT AND DECREE DATED 26.03.2014, PASSED ON M.C.NO.145/2013 ON THE FILE OF THE JUDGE, FAMILY COURT, DAVANGERE, ALLOWING THE PETITION U/S 13(1)(ia)(i-b) OF THE HINDU MARRIAGE ACT.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This miscellaneous first appeal under Section 28 of the Hindu Marriage Act, 1955 (for short, 'the Act') is filed assailing the judgment and decree dated 26.03.2014 passed by the Judge, Family Court, Davanagere, in M.C.No.145/2013, wherein the petition filed by the respondent-husband under Section 13(1)(ia) & (ib) of the Act for dissolution of marriage by a decree of divorce has been allowed.

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Heard the learned Counsel for the parties and also perused the material available on record.

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Brief facts of the case as revealed from the records that would be necessary for the purpose of disposal of this appeal are, the marriage of the appellant with the respondent was solemnized on 31.03.2008 as per the customs and traditions of Hindu Lingayath community at Smt. Gouramma Narahari Shet Sabhabhavan, Davangere. From the wedlock, the couple have a daughter by name Kum. Varsha @ Varnika, who

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is now aged about 13 years. The couple lived as husband and wife after the marriage for about two years, and thereafter, their relationship got strained and as a result, the appellant along with the child allegedly had left the company of the respondent and started residing with her parents. Thereafter, she had filed a petition under Section 13(1)(ia) of the Act in M.C.No.85/2010 against the respondent herein and in the said proceedings, the respondent had entered appearance and filed his detailed statement of objections, after which, the appellant had withdrawn the said proceedings on 24.02.2011. In the meanwhile, the appellant had filed a criminal complaint against the respondent and his relatives before the Jnanabharathi Police Station in Crime No.148/2010 and after withdrawal of M.C.No.85/2010, she had filed a complaint against the respondent and his family members at Davanagere in Crime No.104/2011. In the criminal case which was lodged by the appellant, the respondent and his family members were arrested and subsequently released on bail. The respondent, thereafter, had filed M.C.No.145/2013 before the Family Court, Davanagere, under Section 13(1)(ia) & (ib) of the

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Act with a prayer for dissolution of his marriage with the appellant that was solemnized on 31.03.2008.

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In the said proceedings, the appellant had entered appearance and filed her statement of objections. To substantiate his case, respondent got himself examined as PW-1 and 21 documents were got marked as Exs.P-1 to P-21, and the appellant had examined herself as RW-1, but no documents were marked in support of her case. The learned Judge of the Family Court vide the impugned judgment and decree allowed the petition filed by the respondent and consequently, dissolved the marriage between the parties that was solemnized on 31.03.2008 by a decree of divorce. Being aggrieved by the said judgment and decree, the appellant-wife is before this Court.

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Learned Counsel for the appellant submits that the respondent had not proved the ground of cruelty as well as the ground of desertion before the Family Court, and therefore, the Family Court was not justified in allowing the petition. He submits that mere filing of criminal cases against the respondent and the fact that

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the said cases have ended up in acquittal would not amount to cruelty for the purpose of Section 13(1)(ia) of the Act. He also submits that in the proceedings initiated under Section 125 of Cr.PC, the Family Court had earlier held that the appellant was not guilty of desertion, and therefore, the Family Court was not justified in allowing the petition even under Section 13(1)(ib) of the Act. He submits that the respondent had ill-treated the appellant which had forced her to leave his company and take shelter in her parents house along with her child. He also submits that the respondent has completely neglected the appellant and the minor daughter and has not been paying the maintenance amount regularly which was awarded by the Family Court.

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Per contra, learned Counsel for the respondent submits that the appellant had voluntarily left the company of the respondent along with the child and she had filed M.C.No.85/2010 under Section 13(1)(ia) of the Act, which was subsequently withdrawn by her. He submits that after filing of M.C.No.85/2010, she has lodged multiple complaints against the respondent and

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his family members and has harassed them. He submits that the criminal cases filed against the respondent and his family members have ended in acquittal which would go to show that false cases were lodged by the appellant and the said act of hers amounts to cruelty. He also submits that the appellant had deserted the respondent without there being any sufficient cause, and therefore, the Family Court was justified in allowing the petition. He submits that the parties are admittedly residing separately for the last 13 years, and therefore, no purpose would be served in asking them to join together and live under one roof. He submits that his party is ready and willing to pay a sum of Rs.5,00,000/- to the appellant and her minor daughter towards permanent alimony.

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The material on record would go to show that

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prior to the respondent filing the present proceedings under Section 13(1)(ia) & (ib) of the Act in M.C.No.145/2013, the appellant herself had filed a petition under Section 13(1)(ia) of the Act in M.C.No.85/2010 alleging that the respondent had ill-

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treated her and he used to torture her mentally and physically, and as a result, on 31.03.2010, she had left the matrimonial home along with the child and ever since then, she has been residing with her parents at Davanagere. In the said proceedings, the respondent had entered appearance and had filed a detailed statement of objections. The appellant was examined as PW-1 in the said proceedings, and she got marked certain documents in support of her case. At the stage of cross-examination of the appellant in M.C.No.85/2010, the matter was referred for conciliation and the same had failed. Thereafter, the respondent had filed a memo in M.C.No.85/2010 that he had no objection to grant the decree of divorce as prayed in the petition. It is at this stage, the appellant had withdrawn the petition. In the meanwhile, she had lodged a criminal complaint against the respondent and his family members before the Jnanabharathi Police Station in Crime No.148/2010 and in the said case, the respondent and his family members were arrested and subsequently released on bail. After withdrawing M.C.No.85/2010 on 24.02.2011, the appellant had filed yet another criminal complaint against

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the respondent and his family members on 11.09.2011 in respect of the incident that had allegedly taken place on 09.09.2011, wherein the respondent and his family members had come to her parents house at Davanagere, assaulted her and threatened her with dire consequences to her life.

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It is not in dispute that in the criminal cases which were registered by the appellant against the respondent and his family members, charge sheets were filed and the accused persons were tried for the alleged offences, and ultimately, they were acquitted for the offences for which they were charge sheeted and the judgment of acquittal passed in their favour has reached finality. Though filing of criminal cases against the husband and the fact that the said criminal cases have ended up in acquittal itself cannot be construed as cruelty, in the present case, the criminal complaint against the husband and his family members was filed by the appellant at Davanagere much after she got separated from the respondent. The said complaint was filed about seven months after she withdrew

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M.C.No.85/2010. The respondent and his family

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members are residents of Bengaluru, whereas the alleged incident is said to have taken place at Davanagere.

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It is trite law that if the material on record would go to show that the criminal prosecution was lodged against the other spouse with a vengeance and with an intention to harass, then it would definitely amount to cruelty. The respondent and his family members had to face the complications and difficulties of criminal cases and ultimately they have been acquitted in the said cases. The learned Judge of the Family Court has appreciated this aspect of the matter and has held that the appellant had not only made unfounded allegations against the respondent in her petition in M.C.No.85/2010, but she was also guilty of lodging false criminal complaints against the respondent and his family members, wherein allegations were made even against his sisters who were married.

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In the case of K.R.SRINIVAS VS DEEPA -

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(2013)5 SCC 226 , the Hon'ble Supreme Court has held that lodging of false criminal complaints by the other

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spouse would amount to cruelty so as to entitle the other spouse to claim divorce.

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The material on record would also go to show

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that the appellant had left the company of the respondent in the month of March 2010, and thereafter, had filed M.C.No.85/2010 which was subsequently withdrawn by her. She has also lodged two criminal complaints against the husband and his family members which have ended in acquittal. The appellant who has admitted that she had left the company of the respondent in the month of March 2010, has failed to give any proper explanation or reason for having left the company of the respondent. It is not in dispute that after she left the company of the respondent, she had not joined him. Under the circumstances, we are of the considered view that the learned Judge of the Family Court was fully justified in allowing the petition filed under Section 13(1)(ia) & (ib) of the Act as the respondent was able to prove before the Family Court that the appellant had not only treated him with cruelty after solemnization of his marriage with her, but was also

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guilty of having deserted him for a period of two years continuously immediately prior to filing of the petition. Under the circumstances, we do find any merit in the appeal filed by the appellant-wife.

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The appellant has also contended that the respondent has not provided any maintenance to her and her daughter and has completely neglected them. He has submitted that the minor daughter is studying in eighth standard, and therefore, the appellant would need substantial amount for her future maintenance and educational expenses. He has submitted that the appellant has no independent source of income and she has been completely depending upon her parents.

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Per contra, learned Counsel for the respondent has submitted that the respondent is earning Rs.24,000/per month from his employment and he has also admitted that the respondent owns 10 acres of land.

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The material on record would go to show that the respondent was directed to pay monthly maintenance of Rs.5,000/- to the appellant and her daughter in

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C.Misc.No.245/2010. It appears that the said amount was enhanced to Rs.6,000/- per month. The appellant has contended that the respondent is not regular in payment of maintenance and he is due to pay the arrears of maintenance for the last about eight months as on this date. Learned Counsel for the respondent has made a submission that the respondent is ready and willing to pay a sum of Rs.5,00,000/- as alimony for the purpose of maintenance of the appellant and the minor daughter.

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Taking into consideration the income, assets

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and liabilities of the respondent and also considering the fact that the appellant has no independent source of income and she may incur substantial amount of expenditure for the purpose of her daughter's education and also considering the rising cost of living, we are of the considered view that if the respondent is directed to pay permanent alimony of Rs.12 lakhs which would be inclusive of maintenance and educational expenses of the daughter, the same would serve the ends of justice. Accordingly, the following order:

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The appeal is disposed of. The respondent is directed to pay a sum of Rs.12 lakhs to the appellant towards permanent alimony, within a period of three months from the date of receipt of the copy of this judgment, failing which, the respondent shall pay interest at the rate of 6% per annum on the said amount till payment.

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Sd/JUDGE

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Sd/JUDGE

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Smt.T.N.Pushpalatha v. Mallikarjuna H Patil

Case brief

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Smt.T.N.Pushpalatha v. Mallikarjuna H Patil

Case brief

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