Dismissed

Smt Yamuna v. Sri Siddalingakumar D R

Karnataka HC10 Jul 2023MFA/455/2018

Case brief

AI extract

What is this about?

This is a Miscellaneous First Appeal challenging a Family Court decree that declared a marriage null and void under the Hindu Marriage Act due to the wife's alleged physical deformity preventing consummation. The High Court upheld the Family Court's rejection of the wife's medical evidence and dismissal of the appeal.

What did the court decide?

The appeal was dismissed and the judgment and decree dated 4.11.2017 passing the marriage off as null and void were confirmed.

Smt Yamuna Vs Sri Siddalingakumar D R — Matrimonial and Divorce | Karnataka HC (2023)

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NC: 2023:KHC:23685-DB MFA No. 455 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JULY, 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. 455 OF 2018 (FC)

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BETWEEN:

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SMT YAMUNA, W/O SIDDALINGAKUMAR D R, D/O RENUKAPPA, AGED ABOUT 31 YEARS, R/AT OPPOSITE TO WATER TANK, SARASWTHIPUAM, TUMKURU, TUMKURU DISTRICT - 572105.

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…APPELLANT

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(BY SMT/MISS AISHWARYA HEGDE M.V, ADVOCATE FOR SRI. SANTOSH R NELKUDURI, ADVOCATE)

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AND:

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

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SRI SIDDALINGAKUMAR D R, S/O REVANNASIDDAPPA, AGED ABOUT 40 YEARS, R/AT 3^RD CROSS, SRINAGAR EXTENSION, 2^ND MAIN, KYATHASANDRA, TUMAKURU DISTRICT 578101.

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…RESPONDENT

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(BY SRI. ARUN K R, ADVOCATE)

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THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 04.11.2017 PASSED IN M.C.NO.324/2013 (MC.NO.93/2011) ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU, ALLOWING THE PETITION FILED U/S 12 OF 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 appeal is filed under Section 19(1) of the Family Courts Act, 1984 (hereinafter referred to as the ‘Act’ for short) challenging the judgment and decree dated 04.11.2017 passed by the Family Court, Tumakuru in M.C.No.324/2013. In terms of the impugned judgment and decree, the petition filed by the husband seeking a decree of nullity of marriage under Section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act, 1955’ for short) is allowed and the Court has held that the marriage solemnised between the husband and wife on 13.03.2011 is null and void.

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Aggrieved by the judgment and decree, the wife is in appeal.

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The parties to the proceeding are referred to as the husband and wife for the sake of convenience.

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The husband has filed the petition on the premise that

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the marriage solemnised on 13.03.2011 is null and void as the wife is suffering from physical deformity and she is incapable of having a relationship where the marriage would consummate.

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3 - NC: 2023:KHC:23685-DB MFA No. 455 of 2018

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It is also his contention that the wife has treated the husband with cruelty and has referred to a few instances of alleged cruelty.

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The wife has contested the petition and she has denied the allegations as regards physical deformity and has taken a stand that the marriage is consummated. The wife has also made counter-allegations against the husband that the husband has ill-treated her.

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The Family Court has framed issues based on the pleadings presented before it.

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The husband to substantiate his contentions relating to the incapacity of the wife as stated above has examined the doctors as PWs 2 and 3 apart from examining himself as PW1 and has produced 47 documents marked as Ex.P.1 to Ex.P.47. The wife has examined herself as RW1 and she has not produced any document.

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The Family Court after considering the materials on

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record has concluded that the marriage is not consummated and accordingly, allowed the petition under Section 12 of the

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Act, 1955 holding that the marriage between the husband and wife is null and void. Aggrieved by the judgment and decree, the wife is in appeal.

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Heard the learned counsel appearing for the wife as

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well as the learned counsel appearing for the husband.

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Learned counsel appearing for the wife submitted that the PW2 is a competent doctor and he has examined the wife and according to the evidence of PW2, the wife is capable of discharging marital obligation and there is no physical deformity as alleged. Learned counsel appearing for the wife also contended that evidence of PW2 has been wrongly rejected by the Family Court. By referring to the evidence of PW-2, it is urged that evidence demonstrate that the wife is capable of leading normal marital life and the marriage is consummated and there is no physical deformity as held by the Family Court. It is also her contention that evidence of PW3- another doctor who is examined to substantiate the contention of the husband, is proved to be wrong by the evidence led by PW2.

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Learned counsel appearing for the husband would contend that evidence of PW2 is not worthy of acceptance as

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he has been cross-examined to demonstrate that he has led evidence without examining the wife.

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The Family Court has analysed the evidence on record and has concluded that the evidence given by PW2 - the doctor who is stated to have examined the wife is not worthy of acceptance and it has noticed several discrepancies in the medical records produced by him. The Family Court has also taken note of the fact that the signature of the wife is not forthcoming from the medical records and it is also forthcoming that the signature of the attendant who is said to be present while the wife was examined is also not forthcoming in the records. On the other hand, the Family court has placed reliance on the evidence of PW3 - the doctor who examined the wife and the examination of the wife by the said doctor is not in dispute. Based on the evidence of PW3 - the Doctor, the Family Court has held that the marriage between the husband and wife is not consummated.

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This Court has considered the contentions raised at

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the bar and the impugned judgment and decree.

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In the light of the contentions raised this Court has re-examined the evidence on record. The family court has considered the evidence of Dr.Mahalakshmamma, the doctor from Tumkur hospital who admittedly examined the wife based on the complaint of the husband. The examination has taken place as per the requisition made by the police. Though the doctor has not given any opinion on the gender, has opined that she did not have a physical relationship. Thus the evidence reveals that the marriage is not consummated.

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The Family Court has also recorded the reasons as to why the evidence of PW2 - the doctor who is said to have physically examined the wife is disbelieved and accepted the evidence of PW3. PW2 is Dr. Ashok Kumar. However, it is not the case of the wife that Dr. Ashok Kumar examined her. It is her case that Dr.Asha examined her. However, there is no report submitted by Dr.Asha. The Family Court has noticed the infirmities in the medical records with reference to the dates mentioned therein and also the alleged date of examination of the wife by the doctor. The husband has produced the records issued by the hospital where it is not forthcoming that the wife is examined in Vani Vilas Hospital at any point in time. The PW2

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is cross-examined by the husband has admitted that the feature noticed by the doctor in Tumkaur which is recorded in Ex-P10 does not enable the consummation of marriage.

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This Court having gone through the reasonings given by the Family Court is of the view that the Family Court has rightly rejected the evidence of PW2 that she can consummate the marriage. So far as the evidence given by PW3 the doctor who has examined the wife is concerned, this Court does not find any reason to disbelieve the evidence of PW3. More so in a situation when the wife has not disputed the fact that she is examined by PW3. However, the examination by PW2 is seriously disputed and the doubt raised about the credibility of the report of PW3 appears just in the backdrop of evidence placed before the Court.

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The Family Court has rightly accepted the evidence of PW3 and has given a finding on account of the wife’s disability, the marriage is not consummated.

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Section 12 of the Act, 1955 provides that in case the marriage is not consummated owing to the deformity on behalf of the spouse, then such marriage can be declared null and

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void under Section 12(1)(a) of the Act, 1955. This Court is of the view that the husband can establish that wife is incapable of discharging all her conjugal obligation on account of physical disability and for that reason, the marriage is not consummated.

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Learned counsel for the wife at this stage submitted that appropriate order be passed relating to the permanent alimony for the wife.

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This Court has perused the materials on record. Before the Family Court, evidence is not led relating to the income, assets or liability of the respective parties to the proceeding. Under the circumstances, this Court is of the view that this Court at this stage is not in a position to pass any orders on the permanent alimony.

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It is also stated that the petition is pending before the Family Court where the wife is claiming maintenance under Section 125 of the Criminal Procedure Code. Under the circumstances, appropriate order will have to be passed in the said proceedings. However, it is made clear that any observations made in this appeal will not come in the way of

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NC: 2023:KHC:23685-DB MFA No. 455 of 2018

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the Family Court passing appropriate orders in a petition seeking maintenance, as this court has not rejected the claim for maintenance on merits.

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For the reasons assigned above, this Court finds no

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reasons to interfere with the impugned judgment and decree. Hence, the following:

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ORDER

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(i) The judgment and decree dated 4.11.2017 passed by the Family Court, Tumakuru in M.C.324/2013 is confirmed.

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(ii) Appeal is dismissed .

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Sd/JUDGE

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Sd/JUDGE

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BRN

Smt Yamuna v. Sri Siddalingakumar D R

Case brief

What is this about?

What did the court decide?

Smt Yamuna v. Sri Siddalingakumar D R

Case brief

What is this about?

What did the court decide?

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