Lalita W/O. Adiveppa Mavinakatti Vs Adiveppa Ningappa Mavinakatti

THIS MFA IS FILED U/S.28 OF THE HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 25.10.2013, PASSED IN MATRIMONIAL CASE NO.5/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL, ALLOWING THE PETITION FILED U/SEC. 13(1a) & (1b) (iii) OF THE HINDU MARRIAGE ACT & ETC.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S G PANDIT AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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NC: 2025:KHC-D:6254-DB MFA No. 100267 of 2014

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C M POONACHA)

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The present appeal is filed under Section 28 of the Hindu Marriage Act, 1955¹ by the wife, calling in question the judgment and decree dated 25.10.2013 passed in MC No.5/2012 on the file of learned Senior Civil Judge, Bailhongal² .

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The parties would be referred to as per their status in their relationship, for the sake of convenience.

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Brief facts of the case are that, the marriage between the parties was solemnized on 2.5.2005, consequent to which, they lived together in the matrimonial home and a daughter was born to the parties on 17.3.2007. However, due to medical ailments, the child died. Thereafter, due to various reasons from 15.4.2008, the parties started living separately. The wife filed Crl.Misc.No.81/2010 before the learned JMFC, Saundatti under the provisions of Protection of Women from Domestic Violence Act, 2005³ . The husband filed petition under Section 13(1)(i-a)(i-b) & (iii) of the Act of 1955, which was registered as MC No.5/2012.

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1 Hereinafter referred to as ‘Act of 1955’

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2 Hereinafter referred to as ‘Trial Court’

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3 Hereinafter referred to as ‘DV Act’

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It is the case of the husband that the wife did not

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treat the parents of the husband with respect and was not cordial with them. It is further alleged that the wife went to her parents’ house on 15.4.2008 without intimating the husband or his parents and started to stay there. That despite repeated requests by the husband for the wife to return to matrimonial home, she refused. It is further alleged that a false complaint was filed under the provisions of DV Act in Crl.Misc.No.81/2010 that the conduct of the wife in filing the false complaint and giving mental torture to the husband, has constrained the husband to file petition under Section 13(1) (i-a)(i-b) & (iii) of the Act of 1955.

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The wife entered appearance before the trial Court and filed her statement of objections denying the allegations made in the petition. It was contended that when the daughter was born on 17.3.2007, the husband and his parents did not provide proper medical treatment to the child, resulting in death of the child. It is further alleged that the husband got married to another lady and from the said wedlock, he has a male child by name Prajwal. It is further alleged that the husband himself ill-treated the wife mentally and physically and

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hence, the wife filed the complaint before the Mahila Sahayavani, Saundatti. It is contended that the husband used to abuse the wife after death of the child and also made demand for dowry. It was further stated by the wife that she was ready to live along with the husband. Hence, the wife sought for dismissal of the petition.

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The husband examined himself as PW1 and one witness was examined as PW2. Ex.P1 and P2 were marked in evidence. The wife examined herself as RW1 and Ex.R1-Birth Certificate of Prajwal was marked in evidence. The trial Court by its judgment dated 25.10.2013 allowed the petition filed by the husband and dissolved the marriage between the parties, which was solemnized on 2.5.2005. Being aggrieved, the wife has preferred the present appeal.

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Learned counsel Sri. J.S.Shetty appearing for the appellant/wife contends that the trial Court has erred in allowing the petition filed by the husband without considering the fact that the parties had cordial matrimonial relationship upto the death of their child and that the husband has not proved the allegations made in the petition. It is further

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contended that without adequately appreciating the material on record, the trial Court has allowed the petition, which is erroneous and liable to be interfered with.

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Smt. Chitra Goundalkar, learned counsel appearing for the respondent/husband filed a memo of retirement placing on record a copy of the letter dated 28.3.2025, as also postal tracking sheet to demonstrate that the letter has been delivered to the respondent. However, since the memo of retirement has been filed at the stage of hearing, the same is rejected and the learned counsel was called upon to make submissions on the merits of the matter.

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It is contended by the learned counsel for the respondent/husband that the husband, apart from examining himself as PW1, has also examined one witness as PW2 in support of his case. It is further contended that the trial Court after appreciating the oral and documentary evidence on record and after noticing the fact that the wife has not examined any witnesses in support of the defence put-forth by her, was justified in allowing the petition filed by the husband. Hence, learned counsel prays for dismissal of the above appeal.

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Submissions of both the learned counsel have been considered and the material on record including the records of the trial Court have been perused.

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The question that arises for consideration is, whether the judgment and decree passed by the trial Court allowing the petition filed by the husband under Section 13(1) (i-a) & (i-b) of the Act of 1955, is erroneous and liable to be interfered with?

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From the pleadings of the parties, it is forthcoming that the matrimonial relationship between the parties is undisputed.

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The husband has filed petition for divorce under Section 13(1)(i-a) & (i-b) of the Act of 1955 i.e., on the ground of cruelty and desertion. The husband was required to demonstrate that the wife treated him with cruelty and that the wife deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the petition.

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The husband in the petition has averred that after the child between the parties was born on 17.3.2007 and the

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child having died, the wife has treated him and his parents with cruelty. It is thereafter contended that from 15.4.2008, the wife is staying along with her parents.

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To prove his case, the husband was examined as PW1 and he has reiterated the averments made in his petition.

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PW.2 has been examined by the husband, who has deposed that he is staying in the same vicinity as the parties and that the wife without any reason used to quarrel with the husband and his parents. He has further deposed that in the year 2008 the wife without any reason went to her paternal house and that PW.2 along with few other persons went and requested her to return to her matrimonial home, which she refused. In the cross-examination, PW.2 states that he does not know the date, month and year when the incident of wife quarrelling with the husband and his parents occurred. PW.2 further admits that he does not know the date, month and the year when he accompanied the husband to the paternal house of the wife to request her to come back to the matrimonial home. PW.2 admits that he has no personal knowledge regarding aspects of the relationship between the parties. The

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testimony of PW.2 will not aid the case of the husband, since PW.2 has not deposed as to any specific incident of cruelty attributable to the wife. PW.2 has merely deposed that the wife is staying in her paternal house since 2008. Further, PW.2 has also not stated the date, month and the year when the alleged incidents have occurred.

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The marriage certificate (Ex.P1) and the order sheet in Crl.Misc.No.81/2010 (Ex.P2) have been marked in evidence. The marriage between the parties being undisputed, Ex.P1 could not aid the case of the husband. The order sheet in Crl.Misc.No.81/2010 (Ex.P2) discloses that the proceedings under Sections 9 and 37 of the DV Act have been filed by the wife on 17.3.2010 before the JMFC Court, Saundatti.

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The wife examined herself as RW1. The birth certificate (Ex.R1) discloses that a male child was born on 1.1.2010 and name of the husband is shown as father of the child. The name of one Smt. Laxmi is shown as mother of the child.

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It is the case of the wife that the husband has a child by name Prajwal through his 2^nd wife. The wife has

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specifically averred in the statement of objections that the husband has married to another lady and she has given birth to a male child. The said assertion made in the statement of objections is reiterated in the testimony of RW1, in respect of which Ex.R1 has been produced.

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It is clear from the aforementioned that it cannot be said that the wife was staying in her paternal house without cause. On the other hand, the husband has not given any explanation in his evidence to the specific defence of the wife that he has married another lady and they have son by name Prajwal.

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Although the petition is filed alleging the various acts of cruelty and desertion, the husband in the petition has not enumerated any specific acts of cruelty. The pendency of Crl.Misc. No.81/2010 and the specific defence of the wife that the husband had married another lady, through whom a son by name Prajwal was born, clearly demonstrates that the wife was staying in paternal house due to some cause. Hence, it cannot be said that the wife had deserted the husband.

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The trial Court while appreciating the oral and documentary evidence, has recorded a finding that although the wife has produced birth certificate of Prajwal, mere production of birth certificate is not sufficient to come to a conclusion that the husband got 2^nd marriage to another lady. The trial Court has further recorded a finding that the wife has not placed any document to rebut the case of the husband.

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The finding of the trial Court is erroneous, inasmuch as the petition has been filed on the ground of cruelty and desertion. Without noticing the fact that the husband has not alleged any specific act/s and without noticing as to whether the wife stayed in her paternal house without any cause, the trial Court erred in allowing the petition. The finding of the trial Court is also erroneous, since it has not noticed the fact that in Ex.R1, the name of father of the child is that of the husband. The wife having produced birth certificate (Ex.R1) and the husband having not placed any material on record to rebut the evidence adduced by the wife, the trial Court ought not to have recorded a finding that the ingredients of Section 13(1)(i-a) (i-b) of the Act of 1955 have been proved. On the contrary, the material on record clearly demonstrates that the husband

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miserably failed in proving the ingredients of Section 13(1) (i-a)(i-b) of the Act of 1955. Hence, the question framed for consideration is answered in the affirmative.

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Hence, the following:

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ORDER

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a) The above appeal is allowed ;

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b) The judgment and decree dated 25.10.2013 passed in MC No.5/2012 on the file of learned Senior Civil Judge, Bailhongal, is hereby set-aside;

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c) The petition in MC No.5/2012 filed by the respondent/husband under Section 13(1) (i-a) (i-b) & (iii) of the Act of 1955, on the file of learned Senior Civil Judge, Bailhongal is dismissed; and

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d) The parties to bear their own costs.

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Sd/(S G PANDIT) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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JTR CT:VP LIST NO.: 1 SL NO.: 47

Lalita W/O. Adiveppa Mavinakatti v. Adiveppa Ningappa Mavinakatti

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Lalita W/O. Adiveppa Mavinakatti v. Adiveppa Ningappa Mavinakatti

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