Dismissed

Sri Chikkegowda v. Smt Jagadamba

Karnataka HC24 Jun 2024MFA/2242/2017

Case brief

AI extract

What is this about?

Husband appealed dismissal of his divorce petition alleging wife's adultery with his brother, cruelty and desertion. The High Court found the adulterer was not impleaded, allegations lacked cogent evidence and were condoned, and rejected his additional evidence application, dismissing the appeal with costs.

What did the court decide?

Appeal and I.A.No.2/2017 dismissed with costs; divorce decree denied.

Sri Chikkegowda Vs Smt Jagadamba — Maintenance and Alimony | Karnataka HC (2024)

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NC: 2024:KHC:23242-DB MFA No.2242/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF JUNE, 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.2242/2017 (FC)

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BETWEEN:

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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SRI. CHIKKEGOWDA S/O B.C. BHEEMAIAH AGED 54 YEARS R/O BRAMHASANDRA VILLAGE KORA HOBLI, TUMAKURU TQ. TUMKURU DIST-572 101

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(BY SRI. MANOJ HIREMATH, ADV., FOR SRI. M.B. CHANDRACHOODA, ADV.,)

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…APPELLANT

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AND:

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SMT. JAGADAMBA D/O CHIKKEGOWDA AGED 44 YEARS R/O BRAMHASANDRA VILLAGE KORA HOBLI, TUMAKURU TQ. TUMKURU DIST-572101.

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…RESPONDENT

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(BY SRI. B. SHARATH KUMAR, ADV.,)

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THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 09.12.2015 PASSED IN M.C.NO.4 OF 2013 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, TUMKUR, DISMISSING THE PETITION FILED UNDER SECTION 13(1) OF THE HINDU MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:

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NC: 2024:KHC:23242-DB MFA No.2242/2017

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JUDGMENT

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Challenging the dismissal of his petition for divorce, the petitioner in M.C.No.4/2013 on the file of Principal Judge, Family Court, Tumakuru, has preferred this appeal.

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The appellant was the petitioner and the respondent in this appeal was the respondent in M.C.No.4/2013 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 marriage of the petitioner and the respondent

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was solemnized in the year 1991 as per Hindu rites and customs at Bramhasandra village of Tumakuru Taluk. They led married life for a period of 19 years and are blessed, with two children viz., son B.C.Keerthi and daughter Soundarya.

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The case of the petitioner is as follows:-

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It is alleged that since 1^1/2 years prior to the date of petition respondent developed illicit relationship with the brother of petitioner, she was in the habit of stealing valuable movables from the matrimonial home and used to sell the same for her personal hobbies and expenses. Petitioner tolerated the

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illegal and immoral acts of the respondent with the hope that she would improve, however, she could not lead the marital life with the petitioner and left the house of the petitioner without any justifiable reason and started living with petitioner's brother Hanumantharayappa. Several panchayats were held by the relatives and respected persons from the village, they advised the respondent to stop the immoral activity and be a dutiful wife, but she disregarded such advice and continued her relationship with the brother of the petitioner. On 02.07.2011, the respondent filed a false complaint to Kora police against the petitioner. The said police advised the respondent to stop her adulterous life. They advised the petitioner also to forgive the past deeds of the respondent and take her back to his fold. Though the respondent rejoined the petitioner after 3 days, again she left the matrimonial home and started residing with Hanumantharayappa. Petitioner apprehends that the respondent is likely to serve him poison laced food or beverages to eliminate him. Hence it is impossible for him to lead the life with the respondent. Respondent neglected and ill-treated him with ulterior motive to continue her illicit relationship with his brother. Thus he seeks decree of divorce.

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The respondent contested the petition denying the allegation of cruelty, desertion and adultery. Her defence in brief is as follows:-

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There was no dispute between the petitioner and respondent for a period of 19 years. But since last 2 years the petitioner started ill-treating her without any justifiable reason due to his addiction to vices like alcohol, gambling and illicit relationship with a woman by name Doddamma of the same village. Petitioner used to beat the respondent mercilessly everyday at the instigation of the said woman and also used to abuse her in filthy language by assassinating her character. Respondent sustained all such mental and physical violence, without filing any police complaint. Despite the elders, during the panchayat, advising the petitioner to mend his ways he could not change his attitude. Whenever the respondent questioned the same, he used to beat her and ultimately he threw her out from the matrimonial home threatening that, if she comes back to the matrimonial home he will kill her. Hence, having no alternative, she went to her parents house. Thereafter, she filed C.Mis.782/2011 for maintenance. She is

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ready and willing to lead marital life with the petitioner. Hence, she sought dismissal of the petition.

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The Trial Court recorded the evidence of the parties. The petitioner got examined himself as PW-1 and another witness as PW-2, no documents were marked on his behalf. The respondent got examined herself as RW-1 and on her behalf Exs.R-1 & R-2 were marked. The Trial Court, on appreciation of the evidence, came to the conclusion that the allegations made by the petitioner with regard to cruelty, adultery and desertion were not proved.

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Sri.Manoj Hiremath, learned counsel appearing for the advocate on record for the appellant, reiterating the grounds of appeal, submits that the petition filed by the respondent in C.Mis.782/2011 seeking maintenance was dismissed by relying on the evidence of DW-3 that the respondent is leading adulterous life, hence the petitioner need not prove the grounds of adultery which is clearly evident from the finding recorded by the trial Court in C.Mis.782/2011. The trial Court has failed to appreciate the evidence of PWs-1 & 2 in its proper perspective with regard to cruelty and adultery

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judiciously. Hence, he seeks reversal of impugned judgment and order.

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Per contra, Sri.B.Sharath Kumar, learned counsel for the respondent supports the impugned judgment and decree of the trial Court and submits that the allegations of adultery and cruelty have been clearly denied by the respondent and the petitioner failed to prove the same before the trial Court by cogent and acceptable evidence. Hence, he seeks to dismiss the appeal.

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On considering the submissions of both sides and examining the materials on record, the point that arises for determination is “ Whether the trial Court committed any

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illegality in rejecting the petition of the appellant for divorce”?

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ANALYSIS

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The parties to the proceedings do not dispute that their marriage was solemnised in the year 1991 and in their conjugal life two children viz., son B.C.Keerthi and daughter Soundarya, are born and they are major. The petition is filed citing Section 13(1) of the Hindu Marriage Act, 1955 at random. No specific ground of Section 13(1) of the Act for

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seeking dissolution of marriage is quoted. However, perusal of the petition averments indicates that the petition is filed on the grounds of adultery, cruelty and desertion. The allegations are that since about 1^1/2 year preceding the petition, respondent has been leading adulterous life with his brother, she was in the habit of stealing movables from the matrimonial home for the purpose of her hobbies and expenses and one year back she left the house and started residing with his brother Sri.Hanumantharayappa.

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The said allegations were reiterated in the examination-in-chief of PW-1 and in similar lines PW-2 has deposed. Admittedly, the alleged adulterer Hanumantharayappa has not been impleaded as party to the proceedings. According to the petitioner himself Hanumantharayappa is none other than his brother. The material available on record further indicates that the said Hanumantharayappa is married and having children. Ex.R-1, the deposition of Lakshmipathi in Crl.Mis.782/2011, clearly indicates that the petitioner drove out the respondent from the matrimonial home and it is her brother-in-law, his wife and their children, who gave her shelter in their house till the

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panchayat was convened and thereafter she was sent back to the matrimonial home. The petitioner himself admits that after the panchayat, the respondent rejoined the matrimonial home. Such act of the petitioner is nothing but condoning the earlier acts of the respondent with regard to cruelty and adultery, if any. Hence, the petitioner cannot be allowed to turn around and contend that the respondent was leading adulterous life with his brother Hanumantharayappa and it has caused mental cruelty to him.

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The petitioner has contended that the respondent used to steal the movables from the house. Similar statement is made by PW-2. However no corroborative evidence is placed before the trial Court to substantiate such allegation. PW-2 is a stranger to the matrimonial home and he has no personal knowledge with regard to the affairs of the matrimonial life of the parties. The trial Court rightly came to the conclusion that nothing has prevented the petitioner from lodging the complaint if the allegation of theft were true. In the absence of any cogent and acceptable evidence on record with regard to the allegation of theft committed by the respondent, the same cannot be accepted.

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NC: 2024:KHC:23242-DB MFA No.2242/2017

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Ex.R-2 is the deposition of one Smt.Bylamma, wife of Sri.Hanumantharayappa, in C.Mis.200/2013. She clearly stated that there is no illicit relationship between the respondent and her husband. Her evidence is required to be accepted, as it is a serious allegation made against her husband and she would not have come forward to depose in favour of the respondent, if the allegations were true. The trial Court has rightly given due weightage to the depositions produced at Exs.R-1 & 2 recorded in C.Mis.782/2011 & C.Mis.200/2013 and rejected the allegations of adultery. The petitioner has made very serious allegations of adultery without arraying the adulterer as a party to the proceedings. The allegations of adultery are required to be proved with cogent and acceptable evidence. There is no independent evidence on record to support the serious allegations of adultery.

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Sofar as the desertion, the petitioner vaguely stated that the respondent left the matrimonial home and started residing with Hanumantharayappa. Such allegation is not substantiated by cogent and acceptable evidence. Respondent stated that when his vices were questioned he assaulted and threw her out from his house. Therefore, she took shelter in her

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parental house. Even otherwise, the unfounded allegation of adultery against her after 19 years of conjugal life and in the presence of two children amount to cruelty to her. That would be a reasonable cause for her to stay separately. Hence, the petitioner has failed to prove the grounds of cruelty, adultery and desertion.

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The petitioner/appellant has filed application I.A.No.2/2017 under Order XLI Rule 27 of CPC seeking to produce additional documents i.e., deposition of DW-3 in Crl.Misc.200/2013 and certified copy of the order dated 19.04.2014 passed in Crl.Misc.200/2013. On perusal of the affidavit accompanying the said application, it indicates that the petitioner has requested his counsel to place these documents before the trial Court, however he could not produce the same. Other than the said explanation, no reasons are forthcoming. Admittedly, the aforesaid documents were available with the petitioner and the said proceedings were between the petitioner and the respondent. Hence, the explanation offered by the petitioner in support of his application is not acceptable. The aforesaid documents were applied only on 17.02.2017 and 21.02.2017, which is much after the disposal of

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M.C.No.4/2013. Hence, the petitioner has failed to satisfy the requirement of Order XLI Rule 27 of CPC. Further, respondent/RW-1 in her cross-examination has stated that she has challenged the order in Crl.Misc.No200/2013 before the High Court. Therefore, the documents produced do not help in adjudication of the matter. Hence, I.A.No.2/2017 is rejected.

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The trial Court recorded the detailed findings and came to the conclusion that the petitioner failed to prove the grounds urged in the petition and dismissed the petition. The said finding of the trial Court is neither perverse nor contrary to the evidence on record calling for interference in the present appeal. Hence, the following:

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ORDER

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The appeal and I.A.No.2/2017 are dismissed with costs.

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Sd/JUDGE

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Sd/JUDGE

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BSR/List No.: 1 Sl No.: 20

Sri Chikkegowda v. Smt Jagadamba

Case brief

What is this about?

What did the court decide?

Sri Chikkegowda v. Smt Jagadamba

Case brief

What is this about?

What did the court decide?

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