Allowed

Smt Anupama @Anuroopa v. Hemaraju N

Karnataka HC21 Mar 2023MFA/338/2016

Case brief

AI extract

What is this about?

In this first appeal against a Family Court decree granting divorce, the High Court held that mere acquittal in a criminal case does not establish mental cruelty. Finding the husband failed to prove adultery or desertion with cogent evidence, the High Court set aside the impugned decree and dismissed the petition for dissolution.

What did the court decide?

Impugned judgment and decree dated 19.11.2015 setting aside; appeal allowed.

Smt Anupama @Anuroopa Vs Hemaraju N — Matrimonial and Divorce | Karnataka HC (2023)

¶1

¶2

MFA No.338 of 2016

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF MARCH 2023

¶4

PRESENT

¶5

THE HON'BLE MR JUSTICE ALOK ARADHE AND

¶6

THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.338 OF 2016 (FC)

¶7

BETWEEN:

¶8

SMT. ANUPAMA @ ANUROOPA, W/O SRI HEMARAJU, AGED ABOUT 27 YEARS, N.KATTETHIMMANNAHALLI, CHIKKAMAGALUR TALUK & DIST.-577101.

¶9

…APPELLANT

¶10

(BY SRI S.V.PRAKASH, ADV.)

¶11

AND:

¶12

HEMARAJU N. S/O SRI NIRVANEGOWDA, AGED ABOUT 32 YEARS, NARASIPURA VILLAGE, LEKKA HOBLI, CHIKKAMAGALURU TALUK-577101.

¶13

…RESPONDENT

¶14

(BY SRI K.S.GANESH, ADV.)

¶15

THIS M.F.A IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 19.11.2015 PASSED IN MC NO.205/2013 ON THE FILE OF THE PRL. JUDGE, FAMILY COURT AT CHIKKAMAGALURU, ALLOWING THE PETITION FILED U/S. 13(1) (i-a) (i-b) OF THE HINDU MARRIAGE ACT.

¶16

¶17

MFA No.338 of 2016

¶18

THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 15.03.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J ., DELIVERED THE FOLLOWING:

¶19

JUDGMENT

¶20

This appeal under Section 19(1) of the Family Courts Act, 1984 along with Section 28 of the Hindu Marriage Act, 1955, has been filed against the judgment and decree dated 19.11.2015 passed in M.C.No.205/2013 on the file of Principal Judge, Family Court at Chikkamagaluru, by which the petition filed by the respondent under Section 13(1)(ia)(ib) and (iii) of the Hindu Marriage Act, 1955 (for short 'the Act' ) seeking dissolution of marriage on the ground of cruelty, desertion and unsoundness of mind has been allowed.

¶21

Facts leading to filing of this appeal briefly stated are that the marriage of the appellant and respondent was solemnized on 13.03.2011 at Banashankari Kalyan Mantap, Belur Road, Halebeedu, as per the Hindu Rites and Customs. It is averred that the respondent is working in Indian Army and both the parties lived together for a

¶22

¶23

MFA No.338 of 2016

¶24

period of 45 days in the matrimonial home and thereafter,

¶25

the respondent rejoined the work and left the appellant in his parents house. It is further averred that appellant used to speak over the phone with strangers hours together and when the parents of the respondent enquired, she gave evasive replies. It is also averred that in June 2011 the appellant left the house of the respondent on the pretext of attending M.A. examination and without attending the examination she was with one Ashoka S/o. Siddegowda, her matrimonial uncle’s son. On enquiry the appellant has informed that she had an affair with the said Ashoka and intended to marry him, however, her parents have not agreed for the same. It is pleaded that on 06.09.2011 around 20 to 30 family members of the appellant came to the house of the respondent and caused nuisance. After knowing the real fact they left the respondent's house, hence the respondent has got issued legal notice to the appellant on 09.09.2011 calling upon her to give consent for divorce. It is further pleaded that vague reply has been sent and false criminal case was

¶26

¶27

MFA No.338 of 2016

¶28

filed for demand of dowry and that the attitude of the appellant was intolerable causing mental torture, harassment and cruelty to the respondent.

¶29

The appellant has filed statement of objections before the Family Court admitting the factum of marriage and also admitted that respondent is working in Indian Army. It is averred that respondent is making false and baseless allegations against the appellant. It is also averred that parents of the respondent insisted and arranged the marriage, as both the families knew each other. It is the father of the respondent, who was in the habit of suspecting and dictating terms to the appellant, which has caused physical and mental harassment to the appellant. It is pleaded that the appellant tried her best to lead happy married life. However, the respondent and his parents did not allow her to live happily, hence she was compelled to file criminal case. Respondent's parents

¶30

have insisted the respondent to file this petition with an intention to get the respondent married with another woman.

¶31

¶32

MFA No.338 of 2016

¶33

The Family Court has recorded the evidence. The respondent examined himself as PW.1 and got marked Exs.P1 to P7. The appellant examined herself as RW.1 and got marked Exs.R1 to R4. The Family Court based on the evidence adduced by the parties vide judgment dated 19.11.2015 allowed the petition filed by the respondent/husband. In the aforesaid factual background this appeal has been filed.

¶34

Learned counsel for the appellant submits that Family Court has allowed the petition without application of mind and is contrary to the material on record. It is submitted that Family Court has not considered the oral and documentary evidence in its proper perspective, which has resulted in miscarriage of justice. It is further submitted that Family Court has failed to appreciate that respondent has failed to prove the grounds for dissolution of marriage as required under Section 13 of the Act and without making paramour party to the proceedings.

¶35

¶36

MFA No.338 of 2016

¶37

The Family Court has accepted the allegation of

¶38

adultery, which has resulted in giving incorrect finding. It is also submitted that appellant lived with the respondent only for about 45 days and without examining the parents of the respondent, the Family Court has believed the oral statement of the respondent and erroneously come to the conclusion that appellant went to Bangalore along with one Ashoka on the pretext of writing M.A. Examination, the said finding is not supported by evidence, however the same has been relied by the Family Court and allowed the petition. It is submitted that Family Court was not justified in holding that since respondent has been acquitted in criminal case registered against him, itself cannot be construed as a ground of cruelty and desertion. Learned counsel placed reliance on the decision of Hon'ble Supreme Court in SMT. CHANDRA MOHINI SRIVASTAVA Vs. SHRI AVINASH PRASAD SRIVASTAVA AND ANOTHER, AIR 1967 SC 581 and the decision of this Court in HARSHITHA @

¶39

MANJULA Vs. HARISH LAWS(KAR)-2013-12-25.

¶40

¶41

MFA No.338 of 2016

¶42

Per contra, learned counsel for the respondent supports the impugned judgment and decree passed by the Family Court and submits that respondent has placed sufficient material before the Family Court and on appreciation of evidence on record the Family Court has rightly come to the conclusion that appellant has caused mental cruelty and deserted the respondent without any cause and thus seeks to dismiss the appeal.

¶43

We have heard the learned counsels for the parties and perused the materials on record. On meticulous scrutiny of the evidence on record there is no dispute with regard to the relationship between the parties and it is also not disputed that respondent has rejoined the Indian Army after 45 days of marriage. PW.1 in his oral testimony has deposed that appellant used to talk to one Ashoka, who is none other than her maternal uncle’s son and that she had an affair with him. It is further deposed that with the intervention of well wishers the things were set right, however, the appellant has not changed her attitude and subsequently she has filed false criminal case

¶44

¶45

MFA No.338 of 2016

¶46

against him and his parents, which has resulted in acquittal.

¶47

The testimony of PW.1 is nothing but reiteration of averments made in the petition, the respondent has not placed any independent witness to substantiate the allegation of appellant's affair with one Ashoka. Oral testimony of PW.1 is based on the inputs received from his parents, the respondent has neither examined his parents nor examined any independent witness, who have intervened and set right the things as claimed by the respondent. The respondent has not made aforesaid Sri Ashoka as party to the proceedings before the Family Court.

¶48

In the absence of any cogent and acceptable evidence of adulterous life of the appellant, it would be difficult to believe the oral testimony of the respondent. The Family Court has given the finding that appellant went to Bangalore on the pretext of attending M.A.

¶49

Examination, however, she went with one Ashoka, and she

¶50

¶51

MFA No.338 of 2016

¶52

has admitted that she has not attended the examination.

¶53

The said admission of RW.1 in her cross-examination is not sufficient to establish the factum of adulterous life. Even though appellant went to Bangalore and did not attend the examination, it cannot be construed that the appellant had an affair with aforesaid Ashoka, which caused mental cruelty to the respondent/husband. The Family Court has grossly erred in appreciating the evidence on record and consequently allowed the petition

¶54

filed by the husband.

¶55

The respondent has asserted that the criminal case filed against him has resulted in acquittal, clearly establishes that false criminal case has been filed and the same amounts to mental cruelty. It is well settled law that mere acquittal in criminal case ipso facto cannot be construed as mental cruelty, unless a clear finding is recorded by the criminal Court that initiation of proceedings is malicious or false. The standard of proof required in criminal case to prove the guilt of the accused should be beyond all reasonable doubt compared to the

¶56

10 -

¶57

MFA No.338 of 2016

¶58

standard of proof required in civil proceedings. Hence acquittal in criminal proceedings cannot be construed as mental cruelty.

¶59

For the aforementioned reasons it is evident that the respondent has failed to prove the grounds of cruelty and desertion to grant decree of dissolution of marriage. However, the Family Court has not appreciated the aforesaid aspects of the matter and has come to an incorrect conclusion.

¶60

For the aforesaid mentioned reasons the impugned judgment and decree dated 19.11.2015 passed in M.C.No.205/2013 is set aside.

¶61

In the result the appeal is allowed.

¶62

Sd/JUDGE

¶63

Sd/JUDGE

¶64

NG CT: DMN

Smt Anupama @Anuroopa v. Hemaraju N

Case brief

What is this about?

What did the court decide?

Smt Anupama @Anuroopa v. Hemaraju N

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri. Siddalingaswamy. T. M. Vs the State of Karnataka by

The Malleswaram Co-Operative Bank Vs Joint Registrar of Co-Operative

Ms Siri Srikanth Vs the Karnataka Examination Authority

Khazi Mohammed Khalid Vs State of Karnataka

Sri. Gadaiah B G @ Mallikarjuna Vs Smt. Anitha K

Bangalore Development Authority Vs State of Karnataka