Dismissed

Jayalakshmamma v. T D Kumara

Karnataka HC16 Jan 2023MFA/6214/2015

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal challenges the dissolution of a marriage under Section 13 of the Hindu Marriage Act. The High Court held that the Family Court correctly appreciated evidence showing the respondent's cruelty, including marrying another woman, and the failure to prove children were born, dismissing the appeal.

What did the court decide?

The appeal filed under Section 19(1) of the Family Courts Act against the dissolution of marriage is dismissed.

Jayalakshmamma Vs T D Kumara — Matrimonial and Divorce | Karnataka HC (2023)

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MFA No. 6214 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^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 SHIVASHANKAR AMARANNAVAR MISCELLANEOUS FIRST APPEAL NO. 6214 OF 2015 (FC)

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BETWEEN:

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JAYALAKSHMAMMA W/O T.D. KUMARA D/O CHIKKAREVANNA AGED ABOUT 37 YEARS, OCC:NIL, R/O YALLAPURA, TUMKUR, DIST: TUMKUR.

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…APPELLANT

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Digitally signed by SANDHYA S Location: HIGH COURT OF KARNATAKA

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(BY SMT. SUMANGALA GACHCHINAMATH, FOR SRI GURUDEV I GACHCHINAMATH, ADVOCATE)

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AND:

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T D KUMARA S/O LATE DHARAMAIAH, AGED ABOUT 46 YEARS, R/O THIMMALAPURA, KASABA HOBLI, TUMKUR TALUKA, TUMKUR DISTRICT.

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…RESPONDENT

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(BY SRI. SIDDAPPA, ADVOCATE)

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THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED:24.07.2015 PASSED IN M.C NO.323/2013 ON THE FILE OF THE PRINCIPAL

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MFA No. 6214 of 2015

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JUDGE, FAMILY COURT, AT TUMKUR, ALLOWING PETITION FILED U/S 13(i-a)(i-b) OF THE HINDU MARRIAGE ACT.

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THIS APPEAL, COMING ON FOR HEARING THIS DAY, SHIVASHANKAR AMARANNAVAR J.,, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed under Section 19(1) of the Family

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Courts Act seeking setting aside the judgment and decree

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passed in M.C.No.323/2013 by the Principal Judge, Family Court, Tumakuru where under the petition of the respondent-husband filed under Section 13(i-a) (i-b) of the Hindu Marriage Act,1955 came to be allowed and the marriage between the appellant and respondent solemnized on 14.05.1999 came to be dissolved.

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The brief facts leading to filing of this appeal are that the appellant is the legally wedded wife of the respondent and their marriage was solemnized on 14.05.1999 at Siddaganga Mutt, Tumakuru and after their marriage they lived happily for the period of two years in the house of the respondent at Thimmalapura

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MFA No. 6214 of 2015

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village and no children were born to them during their wedlock. After two years of marriage, it is stated that the appellant started quarreling with the respondent demanding the respondent to come out of the joint family and to live separately. Respondent being the eldest son to his parents, among them the aged mother, unmarried brothers and so he refused to go out of the family. The appellant after quarreling with the respondent left the house and settled in her parents’ house. The respondent went to the house of the appellant and brought her back. The appellant is none other than the daughter of elder sister of the respondent. In the year 2002, the father of the appellant came to the house of respondent and took her to his house and since 2002, the appellant is residing in her parents’ house deserting the respondent. The father of the appellant got registered the criminal case against the respondent and his family members for the offences punishable under Section 498 A of IPC and

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MFA No. 6214 of 2015

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Section 3 and 4 of the Dowry Prohibition Act in C.C.No.2136/2005 and it is alleged that the father of appellant tried to assault the respondent and abused the respondent in filthy language. The respondent with an intention to lead happy marital life, filed petition in M.C.No.33/2003 for restitution of conjugal rights before the Prl.Senior Civil Judge, Tumakuru and the appellant appeared in the said case and filed objections alleging adultery against the respondent and refused to join the company of the respondent. The said petition was filed seeking restitution of conjugal rights came to be dismissed vide order dated 04.03.2010. Thereafter, the appellant filed a petition under Section 125 of Cr.P.C. in C.Mis.1628/2012 on the file of I Addl.JMFC, seeking maintenance stating that she is having a child. It is stated that since year 2002, the appellant resided in her parents’ house by deserting respondent by refusing conjugal rights. It is also stated that there is no

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MFA No. 6214 of 2015

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cohabitation between the appellant and the respondent since 2002 and they were living separately. The appellant appeared in the said petition and admitted the date of marriage and relationship and denied that they lived happily for a period of 2 years and no children were born to them. She has denied all the allegations made against her including lodging of complaint, registering of criminal case against respondent and his family members and filing the petition for restitution of conjugal rights by the respondent and filing of petition claiming maintenance by her.

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The respondent in order to prove his case is examined as PW.1 and got marked Ex.P1 to P7 and the appellant is examined as RW.1 and got marked Ex. R1 to R3.

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The Family Court after hearing the counsels on

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record formulated the points for consideration and answering the point No.1 in affirmative allowed the

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MFA No. 6214 of 2015

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petition and dissolved the marriage of the appellant and respondent solemnized on 14.05.1999.

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We have heard the learned counsel for the

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appellant.

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Learned counsel for the appellant would contend that the appellant is none other than the sister’s daughter of the respondent. The marriage of the appellant with the respondent is not disputed which took place on 14.05.1999. The respondent is married to one Manjula during the subsistence of first marriage and the respondent treated the appellant with cruelty. The respondent and his family members have harassed the appellant. The appellant who is a dutiful wife has tolerated the torchure of her husband. The respondent has married one Manjula during the subsistence of first marriage which caused conflict in the marital status. The respondent has not established the ground of cruelty and

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MFA No. 6214 of 2015

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desertion. The Family Court ought to have dismissed the

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petition of the respondent.

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None appears for the respondent.

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Having heard the learned counsel for appellant

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and on perusal of the records, the following point arises for our consideration.

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“Whether the Family Court is erred in allowing the petition of respondent and dissolving the marriage between the appellant and respondent without properly appreciating the evidence on record?”

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We answer the aforesaid point in negative for the following reasons:

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The respondent married the appellant on 14.05.1999. Ex.P1 is the marriage invitation card. It is the case of the respondent that after marriage, they lived happily in his house for a period of two years and no children were born to them during their wedlock.

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MFA No. 6214 of 2015

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The appellant contend that the daughter was

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born to her out of their marriage. The appellant has not stated when she became pregnant and when she gave birth to her daughter. The appellant ought to have produced the birth certificate of her daughter to disprove the contention of the respondent that no children were born to them.

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The appellant is none other than the sister’s daughter of the respondent. The appellant and respondent are close relative even prior to their marriage.

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The appellant resided in her parents’ house since 2002. The respondent has filed M.C.No.323/2013 petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights and the appellant contested the same which came to be dismissed by judgment dated 04.03.2010 (Ex. P5).

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The Family Court has observed that the appellant had filed objections to the petition in

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MFA No. 6214 of 2015

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M.C.No.33/2003 after more than 4 ½ years of its institution. Even though the appellant is residing in her parents’ house, she filed complaint against the respondent for the offences under Section 498A of IPC and Section 3 and 4 of Dowry Prohibition Act and the charge sheet came to be filed against the respondent (Ex. P7).

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The appellant in her statement of objections has

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not stated as to why she is living separately. In the cross examination of PW.1, it is suggested to him that he is living with one Manjula and it is denied by him. Ex.R2 is the certified copy of registered gift deed, which has been executed by the respondent gifting his property to Manjula wherein, she has been shown as his wife. Ex.R3 is the copy of the complaint filed by the appellant against the respondent for offences under Section 498A of IPC. The respondent has taken second wife as per evidence of appellant who is examined as RW.1. RW.1 has stated

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MFA No. 6214 of 2015

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that she lived happily for a period of five years but the petition in M.C.No.33/2003 (Ex.P3) reveals that it is filed during fourth year of marriage seeking restitution of conjugal rights. The complaint lodged by the appellant against the respondent is on 22.05.2005. As per her evidence and in the complaint to the police, she has stated that she is pregnant of 6 months and she has admitted that in the year 2003 itself, the respondent has issued notice calling upon her to lead marital life and filed petition for restitution of conjugal rights on 31.07.2003. The Family Court noted that RW.1 has not returned to matrimonial house even after issue of notice and filing of petition for restitution of conjugal rights and also the respondent taking second wife and having two issues through his second wife. The respondent has denied the very paternity of the daughter of the appellant.

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By considering all these aspects, the Family

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Court has rightly appreciated the evidence on record and

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MFA No. 6214 of 2015

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allowed the petition of the respondent and dissolved the marriage of the appellant with respondent solemnized on 14.05.1999. The appellant has not made out any ground for setting aside the said judgment and decree. Hence, the appeal is dismissed.

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Sd/JUDGE

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Sd/-

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SSD List No.: 1 Sl No.: 55

Jayalakshmamma v. T D Kumara

Case brief

What is this about?

What did the court decide?

Jayalakshmamma v. T D Kumara

Case brief

What is this about?

What did the court decide?

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