Husband's appeal against rejection of his divorce petition on grounds of cruelty and desertion. Court found cruelty allegations vague and unsupported by independent evidence, and desertion unproven for want of animus deserendi; trial court's dismissal upheld.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.7711/2017 (MC)
BETWEEN:
SRI. P. PRAKASH S/O P. CHANNANGOUDA AGED ABOUT 32 YEARS OCC: UN-EMPLOYEE R/O. N. CHEERANAHALLI VILLAGE HARAPANAHALLI TALUK DAVANAGERE DIST.
…APPELLANT
(BY SRI. JAGADEESH GOUD PATIL, ADV.,)
Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA
AND:
SMT. K. ASHWINI W/O P. PRAKASH AGED ABOUT 30 YEARS OCC: STAFF NURSE R/O. N. CHEERANAHALLI VILLAGE HARAPANAHALLI TALUK DAVANAGERE DIST 583212.
…RESPONDENT
(BY SRI. S.G. RAJENDRA REDDY, ADV.,)
THIS MFA IS FILED U/S.28(1) OF THE HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED:27.07.2017 PASSED IN MC NO.18/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, HARAPANAHALLI, DISMISSING THE PETITION FILED U/S.13(1)(1A) OF HINDU MARRIAGE ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the judgment and decree of rejection of the petition filed by the appellant for dissolution of marriage in M.C.No.18/2015 dated 27.07.2017 on the file of Sr. Civil Judge and JMFC, Harapanahalli, the present appeal is preferred.
and her parents threatened the petitioner to take share of the property from his father. However, there was already a partition between the father of the petitioner and his brothers as per the judgment and decree in O.S.No.91/2008. Knowing fully well about the partition, the respondent and her parents insisted the petitioner for fresh partition of the joint family property. Due to the same, the relationship between the petitioner and the respondent became strained.
proceedings for recovery of the maintenance amount and the petitioner paid the maintenance amount regularly.
neighbours. It is also pleaded that the respondent used to hurl the utensils on the petitioner and threaten him with dire consequences and caused cruelty. After the filing of M.C.No.15/2009 as a counter blast, the respondent filed a false criminal case against him. The petitioner and the respondent are living separately for the last more than 7 years and thereafter, without conjugal relationship. Hence, seeks to grant a decree of divorce.
on her body. It is also averred that the petitioner and his family members intimidated her of her life and forced her to give suo-motto divorce. It is pleaded that the petitioner and his family members used to torture her everyday and ultimately drove her out of the matrimonial home with a direction to bring Rs.2,00,000/- dowry otherwise they would not allow her to continue the married life. It is further pleaded that the respondent is ready to lead married life with the petitioner by discharging her marital obligation. However, the petitioner, at the instigation of his family members, unsuccessfully filed M.C.No.15/2009 and after dismissal of the same on 11.08.2010 on merits, on the same grounds the present petition is filed. Hence, she sought dismissal of the petition.
Challenging the said judgment and decree, the above appeal is filed by the petitioner-husband.
ANALYSIS
Reg. cruelty:
respondent and he has been living separately from the respondent from the date of marriage. However, quite contrary to the said stand, he has pleaded in the present petition that the respondent caused cruelty and she stayed in the matrimonial home only for a period of two months. Hence, he is seeking the decree of divorce which clearly goes to show that the petitioner has not approached the Court with clean hands.
nothing but reiteration of the averments made in the petition. On perusal of the petition averments and the affidavit of PW-1, it is evident that the respondent led married life for a period of two months and thereafter, started residing separately. The allegation that the respondent and her family members used to insist him for partition of the property is not supported by any cogent and acceptable evidence. The respondent, in her statement of objections, specifically denied the assertion of the petitioner. With regard to the allegations of respondent quarreling with the petitioner and his family members and using filthy language against them are nothing but self-serving statements of the petitioner. The petitioner has not examined any independent witness to substantiate the allegation of
cruelty. It is alleged that the respondent and her brother on two occasions assaulted the petitioner and therefore, he has filed police complaint against the respondent which has resulted in compromise. Admittedly, the petitioner has not produced the copies of the complaints nor examined any panchas who have compromised the dispute between the parties and in the absence of any such evidence, the assertion of assault by the respondent and her brother cannot be accepted. The allegations of cruelty are very vague, stray instances of cruelty are pleaded and reiterated in the evidence by the petitioner. Those allegations cannot be termed as cruelty of such degree of enormity making it perilous to the petitioner to lead the married life with the respondent. The Trial Court, considering the evidence available on record, has come to the conclusion that the petitioner failed to prove the grounds of cruelty. The said finding is neither perverse nor contrary to the evidence on record calling for interference in the present appeal.
Reg. desertion:
20.04.2008 and from that date, he is living alone. The said pleading has been reiterated in the evidence of PW-1 with regard to desertion. Section 13(1)(i-b) of the Hindu Marriage Act, 1955 mandates that one party should desert the another party for a continuous period of not less than two years immediately preceding the presentation of the petition. The word 'desertion' has been explained in Section 13(1) Explanation which means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage. In the instant case, there is no material whatsoever on record to come to the conclusion that the respondent has deserted the petitioner voluntarily and without any justifiable cause. The respondent, in her statement of objection as well as in evidence has clearly stated that the petitioner was not willing to continue the married life with the respondent and they had started torturing the respondent which had resulted in respondent residing at her parent's house. Petitioner himself says that in D.V. Act proceedings Court has awarded maintenance. That goes to show that he
was held guilty of abuse. The desertion in the context of matrimonial dispute should be gathered based on the pleading and evidence available on record. If a party claims that another party has deserted, the same is required to be proved by proper pleading supported with cogent and acceptable evidence. The petitioner is required to prove the factum of separation by proving the intention of another party to bring the cohabitation permanently to an end, ' animus deserendi' . In the instant case, the petitioner has failed to prove the desertion as a ground to dissolve the marriage. Hence, on this ground also appeal fails.
ORDER
The appeal is devoid of merits and is dismissed .
Sd/JUDGE
Sd/JUDGE
RV
List No.: 1 Sl No.: 45
2 issues framed by the court
Whether the petitioner-husband proved cruelty by the respondent warranting a divorce decree?
Whether the petitioner proved desertion under Section 13(1)(i-b) of the Hindu Marriage Act?
3 provisions across 1 enactments
Sri P. Prakash
Smt K. Ashwini
K.S. Mudagal
Vijaykumar A. Patil
As recorded by the court registry
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