Partly allowed

K. Dhanalakshmi v. Ravi K R

Karnataka HC18 Jul 2024MFA/1620/2017

Case brief

AI extract

What is this about?

Wife appealed a Family Court divorce decree granted on grounds of cruelty and desertion. The High Court held the desertion decree untenable as the statutory two-year period was unmet, but confirmed the divorce on cruelty grounds. Maintenance was enhanced earlier to Rs.10,000 per month; liberty reserved for alimony enhancement.

What did the court decide?

Desertion-based decree set aside; cruelty-based divorce confirmed; maintenance of Rs.10,000/month continued; Rs.25,000 litigation expenses ordered; liberty to seek alimony enhancement under S.25.

K. Dhanalakshmi Vs Ravi K R — Maintenance and Alimony | Karnataka HC (2024)

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NC: 2024:KHC:27951-DB MFA No.1620/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JULY, 2024

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL No.1620/2017 (FC)

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BETWEEN:

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K.DHANALAKSHMI D/O KALASETTY AGED ABOUT 32 YEARS R/AT NEAR NAVAGRAHA TEMPLE 10^TH CROSS, SARASWATHIPURAM TUMKURU – 572 102 …APPELLANT

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(BY SRI B.V.GANGI REDDY, ADVOCATE)

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AND:

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Digitally signed by A K CHANDRIKA Location: High Court of Karnataka

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RAVI K.R. S/O RAMACHANDRAIAH AGED ABOUT 33 YEARS R/AT KOLALA VILLAGE KOLALA HOBLI TUMKUR - 572 140 …RESPONDENT

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(BY SRI M.N.MADHUSUDHAN, ADVOCATE A/W SRI PAVAN KUMAR S, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, 1984 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.01.2017 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU IN M.C.NO.190/14 ALLOWING THE PETITION FILED UNDER SECTION 13(1)(I-B) OF THE HINDU MARRIAGE ACT, 1955.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the judgment and decree of divorce passed against her, respondent in M.C.No.190/2014 on the file of the Principal Judge, Family Court, Tumkuru has preferred this appeal.

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The appellant was the respondent and the respondent was the petitioner in M.C.No.190/2014 before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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The parties are Hindus and are governed by the Hindu Marriage Act, 1955 (‘the Act’ for short). The marriage of the petitioner and the respondent was solemnized on 02.11.2011 at Tumkuru according to their customs. In their conjugal life, the couple were blessed with a daughter on 22.05.2013. At the time of the marriage, the petitioner was working as teacher in Government Primary School, Gangavathi. He used to reside with his parents at his home town, Kolala Village, Korategere Taluk, Tumkur District.

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On 05.05.2014, the petitioner got issued notice as per Ex.P5 to the respondent alleging that she subjected him and his parents to cruelty by abusing and humiliating him and

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his parents. It is further alleged that the respondent was humiliating the petitioner stating that he does not befit her level. She withdrew from conjugal life without any excuse. She did not even permit him to see their daughter and threatened him saying that she will harass him by filing false cases, etc. The petitioner in the notice called her to rejoin him within 15 days from the date of receipt of notice.

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The respondent got issued reply as per Ex.R1 denying the allegations of cruelty or withdrawal from the conjugal life. She alleged that the petitioner and his parents demanded and accepted 185 grams of gold jewelleries at the time of marriage and misused them. She further alleged that, the petitioner, his parents and his elder sister subjected her to cruelty demanding dowry and she is always ready to join him.

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After such exchange of notice, the petitioner filed M.C.No.190/2014 against the respondent under Section 13(1)(ib) of the Act seeking decree of divorce on the grounds of cruelty and desertion. The respondent contested the same denying allegations of cruelty and desertion and again making counter allegations of dowry harassment. She also

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MFA No.1620/2017

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stated that the petitioner has willfully neglected her and her daughter.

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In support of the case of the petitioner, PWs.1 to 3 were examined. Out of that, PW.2 after examination in part, was not tendered for further examination. Therefore his evidence was discarded. On behalf of the petitioner, Exs.P1 to P5 were marked. The respondent got herself examined as RW.1 and on her behalf, Exs.R1 to R4 were marked.

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The trial Court on hearing the parties by the impugned judgment and order held that the petitioner has proved the grounds of cruelty and desertion and allowed the petition for divorce. Further the trial Court awarded Rs.5000/per month as maintenance to the respondent considering the fact that the minor child is in her custody. Challenging the said judgment and award, the wife has preferred this appeal.

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Before this Court, the respondent/wife has filed I.A.No.1/2021 and I.A.No.2/2024 for adducing additional evidence. Under I.A.No.1/2021 the respondent/wife seeks to produce the following documents:

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(i) True copy of the salary certificate relating to respondent issued by Block Education Officer, North Zone-02, 18^th Cross, Malleshwaram,

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Bangalore- 560 012 along with covering letter addressed to appellant dated 04.12.2019.

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(ii) True copy of birth certificate relating to Harshit issued by Chief Registrar of Births and Deaths, BBMP, Bangalore.

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(iii) True copy of marriage registration certificate of respondent with Smt.Annapoorna.

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(iv) True copy of demand register extract for the year 2019-20 in respect of property bearing assessment No.744 issued by Panchayat Development Officer, Kolala.

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(v) True copy of demand register extract for year 2019-20 in respect of property bearing assessment No.741 issued by Panchayat Development Officer, Kolala.

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(vi) True copy of RTC extract in respect of land in Sy.No.30/7 of Belagumba, Kasaba East, Tumkur Taluk for the year 2019-20.

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(vii) True copy of RTC extract in respect of land in Sy.No.121 of Belagumba, Kasaba East, Tumkur Taluk for the year 2019-20.

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(viii) Four digital photographs of residential houses.

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Under I.A.No.2/2024 the respondent/wife seeks

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to produce the copy of the birth certificate of Sinchana K.R. issued by the competent authority.

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The petitioner/husband has filed counter only to I.A.No.1/2021 and no counter is filed to I.A.No.2/2024.

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Sri B.V.Gangi Reddy, learned Counsel for the appellant/wife reiterating the grounds of appeal submits that the petition for divorce on the ground of desertion was not at all maintainable as the petition was filed within 1½ years of alleged desertion. He further submits that the petition is not filed under Section 13(1)(ia) of the Act to grant decree of divorce on the grounds of cruelty. The alleged acts of cruelty were not proved by examining the parents of the petitioner. The trial Court was in error in relying on self serving statement of PW.1 regarding cruelty to his parents. PW.3 was not personally interested in PW.1. He submits that, even when the matter was pending before the trial Court, the petitioner has married a woman by name Annapoorna and begot son by name Harshith on 22.05.2015 and daughter by name Sinchana on 14.12.2018. That goes to show that the petitioner himself was unfair and such conduct of the petitioner/husband does not entitle him for decree of divorce. Hence, he submits that the applications be allowed and the impugned judgment and decree be set aside.

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Per contra, Sri M.N.Madhusudhan, learned Counsel for the petitioner/husband submits that though in caption of the petition, Section 13(1)(ia) of the Act was not mentioned, the petition averments show that the petitioner has sought decree of divorce on the ground of cruelty also. He further submits that the parties went for trial on the ground of cruelty and desertion both, therefore it cannot be said that the petition for divorce on the ground of cruelty is not sustainable. He further submits that the evidence of RW.1 herself shows that she wanted the petitioner to separate from his parents and she was not willing to live with him if he stays with his parents. The trial Court has rightly appreciated the same. He submits that the respondent did not care for the petitioner even when he was sick, therefore the trial Court was justified in granting decree of divorce on the ground of cruelty. So far as production of documents, it was contended that though the said documents were within the knowledge of the wife, she did not produce them before the trial Court. Therefore at this stage, such production cannot be allowed. Hence, he seeks dismissal of the appeal and the applications.

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On hearing the parties and on perusal of the materials on record, the points that arise for determination are:

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(i) Whether the trial Court was justified in granting decree of divorce on the ground of desertion?

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(ii) Whether the trial Court was justified in granting decree of divorce on the ground of cruelty?

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(iii) Whether permanent alimony given at the rate of Rs.5,000/- per month is sustainable?

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(iv) Whether I.A.No.1/2021 and I.A.No.2/2024 deserve to be allowed?

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Analysis

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Reg. Desertion:

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As already pointed out, there is no dispute that the marriage of the petitioner and the respondent was solemnized on 02.11.2011. On 22.05.2013 they begot a daughter. It is also not disputed that at the time of marriage, the petitioner was working in Gangavathi as Primary School Teacher. By the time he filed the petition he was transferred to Bangalore. The petition was filed on 17.11.2014 under Section 13(1)(ib) of the Act. In the petition in addition to the allegations of cruelty, it was also contended that the respondent has deserted him. He alleged that respondent

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refused to join him in his family house at Kolala and she was residing in her parents’ house since 1½ years prior to the petition.

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In para 9 of the petition, the petitioner himself claims that himself and the respondent were living separately since 1½ years prior to the petition and there is desertion for more than 1½ years. In para 11 he says that cause of action to the petition arose 1½ years back when the respondent left the matrimonial home.

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Section 13(1)(ib) of the Act is the enabling

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provision to seek decree of divorce on the ground of desertion. To invoke Section 13(1)(ib) of the Act there should be desertion for continuous period of not less than two years immediately preceding to the presentation of the petition. But as per the petition allegation itself, alleged desertion is 1½ years preceding to the petition. Therefore petition under Section 13(1)(ib) of the Act was patently untenable. Therefore decree on the ground of desertion is patently illegal and liable to be set aside.

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Reg. Cruelty:

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The petitioner though did not quote Section 13(1)(ia) of the Act in caption or title of the petition, in the

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body of the petition contended that the respondent subjected him to cruelty and sought decree on that ground. The following are the acts of cruelty alleged by him:

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(i) The respondent was abusing and teasing the petitioner and his parents. She was mocking his physical features, his salary, education level and status, comparing the same with her parents.

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(ii) She was threatening him of filing false dowry harassment case and sending him and his family members behind the bars.

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(iii) She was going to her parents house without informing, did not allow him to see the child and failed to perform her marital obligations.

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(iv) For his request to come and stay in the matrimonial home at Kolala Village, she insisted that she joins him only after both of his parents die and demanded that he should separate from his parents and make a seprate house in Tumkur.

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The respondent in her statement of objections denied all those allegations. She contended that the petitioner and his family members subjected her to cruelty in connection with demand for additional dowry. She alleged

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that at the time of marriage, he had taken gold jewellery weighing 185 grams. The parties also adduced evidence based on their allegations and counter allegations. Under the circumstances, merely because Section 13(1)(ia) of the Act was not quoted in the petition, it cannot be said that the petition was not maintainable on the ground of cruelty and divorce was not sought on the ground of cruelty.

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It is settled position of law that the Court should not go by the provisions quoted in the pleadings or in the applications. But, they should go by the substance of the petition or the application. Mere quoting of wrong provision is not fatal. Therefore the contention that in the petition, Section 13(1)(ia) of the Act was not quoted, hence the petition could not have been considered under Section 13(1)(ia) of the Act cannot be countenanced.

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Then the next question is whether the allegations of cruelty were established. It is no doubt true that to prove the respondent abused his parents, the petitioner has not examined his parents. But he reiterated his contention that the respondent did not join him demanding him to make a separate house in Tumkur. Though the respondent denied the said contention, it was not disputed that she lived

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MFA No.1620/2017

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separately from the petitioner in her parental house with her child atleast before notice Ex.P5 was issued. According to the petitioner, the respondent did not live with him since 1½ years prior to the petition which was filed on 17.11.2014.

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Though the respondent contended that the petitioner and his family members themselves drove her out after assaulting her and demanding additional dowry, which was denied, except her self serving testimony, there was no other evidence to substantiate the same. No complaint was filed alleging dowry harassment.

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RW.1 in para 7 of her cross-examination admits that she went to her father’s house when she was 5 months pregnant. To the suggestion that she did not receive his phone call and did not inform about the birth of the child, she says that the petitioner himself did not receive the call and he was engaged in election duty. In para 8 of the crossexamination, she states that when the child was 9 months old, she was taken to the house of the petitioner and she stayed in the house for one month. In para 9 of her crossexamination, to the suggestion that even after issuance of the notice she did not join the petitioner, she says that if he makes separate house, she agrees to join him. She further

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states that though she is ready to lead the life with the petitioner, she is not ready to go to his home town to live with his parents. That substantiated his contention that she wanted to separate the petitioner from his parents and his parental house. The Hon’ble Supreme Court in Narendra v. K. Meena¹ has clearly held that persistent effort of the wife to constrain the husband to separate from his family would be torturous for the husband and such demand of the respondent for separating from his parents amounts to cruelty.

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The petitioner also claims that even when he underwent surgery, the respondent did not bother for his well being. He had also contended that once when he was traveling with the respondent, the petitioner fainted and the respondent left to her parents house.

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In the cross-examination of RW.1, it was suggested that the petitioner underwent spinal surgery, though the respondent denied that she says that one surgery was conducted. Petitioner further contended that when another surgery was conducted, she did not go to see him.

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1 (2016) 9 SCC 455

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For that RW.1 claimed that the petitioner’s mother had told her not to go to the hospital. But said allegation of the petitioner’s mother preventing her from visiting the hospital was not established. Further she admitted that within four months of the marriage, the petitioner underwent surgery for ulcer, but denied that at that time she was called to Bangalore Hospital. In para 6 of cross-examination of RW.1, it was suggested that when herself and the petitioner were traveling from Gangavathi, he fainted in the bus stand due to the galata made by her. Though she denied the galata and claimed that the petitioner himself made galata with her, admitted that he fainted. According to her, he fainted because of sleepless traveling.

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The evidence on record further shows that after PW.3 was examined in support of the case of the petitioner, the respondent went to the work place of the wife of PW.3 and made galata there. In that regard, she was summoned to Tilak park police station. Though she denied that she had given an undertaking before the police, she admitted that she has signed on some document in the police station.

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The aforesaid facts and circumstances go to show that the allegations of the petitioner against the respondent of cruelty by insisting him for separation from his parents, harassing his witnesses and not taking care of him when he was ill are proved. Therefore the trial Court was justified in granting decree of divorce on those grounds. The judgment of the trial Court shows that though the trial Court did not formulate specific points regarding grounds of cruelty, reasoning of the trial Court shows that the decree of divorce is granted even on the ground of cruelty.

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Reg. Maintenance, I.A.No.1/2021 and I.A.No.2/2024:

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Under I.A.No.1/2021 and I.A.No.2/2024 the respondent is seeking permission to produce the documents to show that the petitioner/husband has married another woman even when the petition was pending. The other documents produced are all RTCs of the landed properties, salary certificate and demand register of the house properties. It is material to note that in this case, the wife has neither filed application under Section 25 of the Act nor filed affidavit of the assets and liabilities in terms of the judgment of the Hon’ble Supreme Court in Rajnesh vs Neha² .

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2 AIR 2021 SC 569

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Even the petitioner has not filed affidavit as per the said judgment.

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The petitioner opposes I.A.No.1/2021 on the ground that those documents were not produced at the earliest point of time though those documents were within the knowledge of the wife. However, he did not deny the marriage registration certificate or birth certificate produced by the wife. As per the said marriage certificate, he married one Annapoorna.A on 28.05.2017 and the marriage was registered on 06.07.2017. As per the date of birth certificate of one Harshith, the petitioner is the father and Annapoorna is the mother of the child. The child is born on 22.05.2015. Whereas the petition is filed on 17.11.2014 and allowed on 25.01.2017. As per the birth certificate of Sinchana the petitioner is the father and Annapoorna is the mother and the said child is born on 14.12.2018.

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The marriage certificate has presumptive value under Section 114 of the Indian Evidence Act, 1872. That goes to show that even before the decree of dissolution of marriage was passed, the petitioner has married another woman and he begot children, even when the petition was pending. At the most they may give cause of action to the

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respondent to sue him for bigamous marriage or any action available as per law. But as on the date of the petition, the petitioner had cause of action for decree of dissolution of marriage. Therefore the decree of divorce on the ground of cruelty still sustains. Therefore only those documents can be taken note of.

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So far as maintenance is concerned, the trial Court has granted permanent alimony of Rs.5,000/- per month to the wife and she should have taken that ground in the appeal memo that the same is on the lower side and that has to be enhanced. However, she filed I.A.No.3/2019 under Section 25(2) of the Act for modification of the order of the trial Court. Under the said application, she sought enhancement of the said maintenance to Rs.20,000/- per month and litigation expenses of Rs.25,000/-. This Court by order dated 05.04.2022 considering the said application has enhanced the maintenance from Rs.5,000/- to Rs.10,000/per month, but no order was passed about litigation expenses.

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The respondent wife has daughter aged 11 years who lives with her. It is submitted that she filed separate petition under Section 125 of Cr.P.C. in Crl.Mis.No.36/2023

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before the I Additional Principal Judge, Family Court, Tumkur seeking maintenance to the child and in that case also, interim maintenance of Rs.4,000/- per month is awarded. As already noted, for enhancement of permanent alimony or to grant any other reliefs in that regard, enquiry needs to be conducted. Both parties are required to file their affidavits of their assets and liabilities in view of the judgment of the Hon’ble Supreme Court in Rajnesh’s case referred to supra. But no such affidavits are filed before this Court.

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Under the aforesaid facts and circumstances it would be appropriate to dispose of I.A.No.1/2021 and I.A.No.2/2024 reserving liberty to the respondent wife to seek permanent alimony before the trial Court and by maintaining the order of this Court dated 05.04.2022, till the trial Court passes further orders after holding enquiry on the application, if any, to be filed by the respondent/wife.

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For the aforesaid reasons, the appeal deserves to be allowed in part. Hence the following:

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ORDER

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The appeal is partly allowed. The impugned judgment and decree of the Trial Court in M.C.No.190/2014 passed by the trial Court for dissolution of marriage on the ground of

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desertion under Section 13(1)(ib) of the Act is hereby set aside.

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The decree of divorce passed by the trial Court in M.C.No.190/2014 for dissolution of marriage on the ground of cruelty is hereby confirmed.

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Liberty is reserved to the respondent/wife to file petition under Section 25 of the Act before the trial Court seeking modification/enhancement of permanent alimony. Till she files such application and the order is passed on such application, the petitioner shall go on paying the maintenance of Rs.10,000/- per month. He shall pay litigation expenses of Rs.25,000/-. The same shall be deposited before the trial Court within four weeks from the date of receipt of copy of this order.

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If the petitioner fails to pay maintenance and litigation expenses as ordered by this Court, the respondent/wife is at liberty to execute the said order.

Sd/JUDGE

Sd/JUDGE

KSR

List No.: 1 Sl No.: 4

K. Dhanalakshmi v. Ravi K R

Case brief

What is this about?

What did the court decide?

K. Dhanalakshmi v. Ravi K R

Case brief

What is this about?

What did the court decide?

What the court decided

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