IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Transcription

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 13 TH DAY OF JUNE, 2014 PRESENT THE HON BLE MR JUSTICE K L MANJUNATH AND THE HON BLE MR JUSTICE L NARAYANA SWAMY Miscellaneous First Appeal No of 2008 (FC-DB) C/w Miscellaneous First Appeal No of 2012 (FC-DB) IN MFA NO. 2138/2008 BETWEEN: SRI K R VENKATESH PRASAD S/O SRI K V RAMACHANDRA AGED ABOUT 36 YEARS R/AT NO. 19, VENKATESH KRUPA 2 ND MAIN ROAD, NGEF LAYOUT SANJAYNAGAR BANGALORE APPELLANT AND: [By Sri B G Sriram, Adv.] SMT SHEELA R W/O SRI K R VENKATESH PRASAD AGED ABOUT 31 YEARS D/O DR. RAJKUMAR V K R/AT J C EXTENSION VIJAYAPURA TOWN DEVANAHALLI TALUK BANGALORE RESPONDENT [By Smt Annapurna Bevinje, Adv.]

2 2 THIS APPEAL IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT AGAINST THE JUDGMENT AND DECREE DATED PASSED IN M.C. NO. 114/2004 ON THE FILE OF III ADDITIONAL JUDGE, FAMILY COURT, BANGALORE, DISMISSING THE PETITION FILED U/S 13(1)(ia) AND (ib) OF THE HINDU MARRIAGE ACT, FOR DIVORCE AND ETC., IN MFA NO. 5831/2012 BETWEEN: SMT SHEELA R W/O SRI K R VENKATESH PRASAD D/O DR. RAJKUMAR V K AGED ABOUT 34 YEARS PRESENTLY R/AT J C ROAD EXTENSION, VIJAYAPURA TOWN DEVANAHALLI TALUK BANGALORE APPELLANT AND: [By Smt Annapurna Bevinge, Adv.] SRI K R VENKATESH PRASAD S/O SRI K V RAMACHANDRA AGED ABOUT 38 YEARS R/AT NO. 19, VENKATESH KRUPA 2 ND MAIN ROAD, NGEF LAYOUT SANJAYNAGAR BANGALORE RESPONDENT [By Sri B G Sriram, Adv.] THIS APPEAL IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED PASSED IN M.C. NO. 1326/2010 ON THE FILE OF II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, ALLOWING THE PETITION FILED U/S 13(1)(ib) OF HINDU MARRIAGE ACT FOR DIVORCE AND ETC., THESE APPEALS COMING ON FOR HEARING, THIS DAY, MANJUNATH, J., DELIVERED THE FOLLOWING:

3 3 J U D G M E N T RE: MFA No 2138 of 2008: In this appeal, the appellant is questioning the legality and correctness of the order passed by the III Additional Judge, Family Court, Bangalore dated in MC No 114 of 2004, wherein the petition filed by the appellant for grant of a decree of divorce on the ground of cruelty and desertion is rejected by the family court. 2. The facts leading to filing of this appeal are that: The respondent is the wife of the appellant. Prior to their marriage also, they were relatives. Both of them had joined for pursuing engineering course in different colleges. While studying, they developed love and later parents of both parties decided to celebrate the marriage of the parties. Accordingly, the marriage was solemnized on at Vaikunta Kalyana Mantapa, M S Ramaiah Choultry, Gokula, Bangalore. The parties lived together in Bangalore and parents of both parties were also

4 4 comfortable and happy. Both of them used to visit the house of the other frequently. 3. In 2000, the respondent-wife was pregnant and her parents took her to their house for delivery. She gave birth to a premature male child on Thereafter, naming ceremony of the child was fixed for But, the parents of appellant-husband insisted for postponing of the naming ceremony on account of death of maternal grandmother of the appellant-husband. However, the naming ceremony was not postponed at the instance of the parents-in-law of the appellant. In the circumstances, either the parents of the appellant or the appellant or anybody from his family attended the naming ceremony. On , the respondent-wife came to the house of the appellant along with the child for the first time. On the next day, the child was taken by the parties herein to ISKCON temple, Bangalore for Sri Krishna Pooja. The parents of the respondent-wife had come to the temple on that day and the respondent went to the house of her

5 5 parents directly from the temple even without informing the appellant and his parents. Again, an attempt was made by the appellant-husband to take the respondent-wife back to the matrimonial home. However, she came and took her belongings and went to her parents house on Since then, she is living separately. 4. It is also contended by the appellant in his pleadings that the respondent was making false and reckless allegations and she had no intention to live with the appellant. She also made an accusation as if the appellant demanded dowry of Rs 5,00,000/- and a sum of Rs 2,00,000/- was paid and further alleged that the respondent was ill-treated by the appellant, which are all incorrect. 5. The respondent filed a petition under Section 125 CrPC in Crl Misc 122 of 2002 before the family court, Bangalore, seeking Rs 6,000/- per month towards maintenance for herself and the child, which came to be

6 6 allowed. Therefore the appellant filed the petition contending that filing of a petition seeking maintenance and making allegations against the appellant in regard to ill-treatment said to have been given by him, amounts to mental cruelty and that the respondent is living separately for more than two years and that he is entitled to a decree of divorce on the ground of desertion. 6. The case was contested by the respondent-wife, denying the allegations made in the petition. According to her, she never inflicted any cruelty to the appellant, on the contrary, it is the appellant who treated the respondent with cruelly. According to her, since she was ill-treated by the appellant-husband and his parents, she has been living separately and later for her maintenance she filed the petition under Section 125 CrPC, which came to be allowed. She also denied that she has been residing separately with an intention to put an end to the marital life between the parties. Therefore, she requested the court to dismiss the petition.

7 7 7. To prove their respective contentions, the husband was examined as PW1 and he relied upon ExP1 to 3. The respondent-wife got herself examined as RW1. The family court, considering the pleadings of the parties, formulated the following points: i) Whether the petitioner proves that after the solemnization of the marriage, the respondent has treated him with cruelty as alleged? ii) iii) iv) Whether the petitioner proves that the respondent has deserted him for a continuous period of not less than 2 years immediately preceding the presentation of this petition? Whether the petitioner is entitled for the relief sought in the petition? What orders? 8. After appreciating the evidence, the family court came to the conclusion that the appellant-husband has failed to make out a case for grant of a decree of divorce either on the ground of cruelty or on the ground desertion. Accordingly, the petition came to be dismissed. Challenging

8 8 the legality and correctness of the said order, the present appeal is filed. 9. We have heard the learned counsel for the appellant and the learned counsel for the respondent. 10. During the course of the arguments, learned counsel for the appellant fairly submits that the appellant has not made out any case for grant of a decree of divorce on the ground of cruelty, and submitted that the appellant restricts his prayer only to seek a decree of divorce on the ground of desertion. In view of this submission, what is to be considered by us in this appeal is whether the family court is justified in dismissing the petition of the appellanthusband for grant of a decree of divorce on the ground of desertion? 11. Sri B G Sriram, learned counsel for the appellant, submits that the family court did not consider the pleadings and the evidence of both parties. According to him, if the family court had appreciated the evidence of the

9 9 appellant-husband vis-à-vis the pleadings of the parties, the family court was required to grant a decree of divorce on the ground of desertion. According to him, the marriage is irretrievably broken, since the parties are living separately since He further submits that even though there is no direct evidence and pleadings to grant a decree of divorce on the ground of desertion, the circumstantial evidence should have been looked into, considering the fact that the respondent-wife has not made any attempts to join the appellant-husband and to live with him either by calling upon the appellant to take her back or by filing a petition under Section 9 of the Hindu Marriage Act, 1955 [for short, the Act]. 12. Per contra, Ms Annapurna Bevinje, learned counsel for the respondent-wife, submits that either in the pleading or in the evidence, nowhere it is contended by the appellant-husband that the respondent-wife is residing separately without any rhyme of reason with an intention to put an end to the marriage. According to her, the

10 10 respondent was forced to take shelter along with her child with her parents, since she was not able to tolerate the cruelty meted out to her by the appellant and his parents. She further contends that filing of the petition for grant of a decree of divorce, both on the ground of cruelty and desertion, is only to avoid payment of maintenance, since the appellant-husband suffered an order under Section 125 CrPC, wherein the learned magistrate in the year 2002 i.e. two years prior to filing of the present petition, had granted a sum of Rs 6,000/- per month as maintenance. The very fact that maintenance has been awarded on account of non-maintenance by the appellant-husband, since he has neglected to maintain the wife, it can be said that the respondent is living separately on account of ill-treatment meted out to her by the appellant and his parents, which amounts to desertion of the wife. In the circumstances, she requested the court to dismiss the appeal. 13. Having heard the learned counsel for the parties, we are of the view that the appellant, at the first instance, has

11 11 not made any foundation in his pleadings with regard to desertion. Any spouse can file a petition for grant of a decree of divorce on the ground of desertion, provided the other spouse has deserted him/her for a continuous period of not less than two years immediately preceding the date of presentation of the petition. The explanation to Section 13 of the Act, which reads as under: 13. Divorce :- xxx Explanation:- In this sub-section, the expression desertion 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, and its grammatical variations and cognate expressions shall be construed accordingly. 14. Now, in the instant case, it is not the case of the appellant that the wife is living separately by deserting him with an intention to put an end to the marriage, even though he has not neglected to maintain her. Similarly, no evidence is also let in to this effect. When there is no

12 12 proper pleadings or evidence to consider the case of the appellant-husband and based on the same if the family court has dismissed the petition, this court cannot reverse the findings of the court below without there being any material. As rightly pointed out by the learned counsel for the respondent, if the respondent is residing separately, it is on account of the ill-treatment meted out to her by the appellant. Even if the respondent is living separately for more than two years and she is getting maintenance from the appellant, such desertion cannot be construed as desertion contemplated under the Act to grant a decree of divorce. Viewed from any angle, we do not find any reason to interfere with the findings of the family court. Accordingly, MFA No 2138 of 2008 deserved to be dismissed. RE: MFA No 5831 of 2012: 15. The appellant in this appeal is questioning the legality and correctness of the order passed in MC No 1326 of 2010

13 13 dated passed by the Second Additional Principal Judge, Family Court, Bangalore. 16. The appellant is the wife of the respondent. The respondent had filed a petition under Section 13(1)(ib) of the Act to grant a decree of divorce to dissolve the marriage solemnized between the parties on , on the ground of desertion. The family court allowed the petition ex parte. In other words, though the appellant engaged the services of an advocate, she did not prosecute the petition. Accordingly, the petition came to be allowed based on the evidence of the respondent-husband. 17. We have heard the learned counsel for the parties. It is an admitted fact that prior to filing of MC No 1326 of 2010, the respondent-husband had filed MC No 114 of 2004 before the III Additional Judge, Family Court, Bangalore, for grant of a decree of divorce and to dissolve their marriage, on the grounds of cruelty and desertion. Before the institution of the present petition on the ground

14 14 of desertion, the petition filed earlier in MC No 114 of 2004 had been dismissed by the court below. After the dismissal of the petition, the appellant herein had filed an appeal in MFA No 2138 of 2008 before this court, challenging the order, which we have dealt with in the earlier part of this judgment, holding that it is liable to be dismissed by confirming the judgment and decree passed by the family court. After dismissal of the petition in MC No 114 of 2004, the present petition was filed again on the same ground. 18. It is not in dispute that the petition in MC No 114 of 2004 was dismissed and when the matter was carried to this court by way of an appeal, the respondent-husband should not have filed the other petition on the same ground, as it amounts to res judicata. Therefore, only on this short ground, this appeal, filed by the appellant-wife. has to be allowed and the judgment and decree passed in MC No 1326 of 2010 dated by the II Additional

15 15 Judge, Family Court, Bangalore, is required to be set aside, on the ground of res judicata. 19. In the result, MFA No 2138 of 2008 is dismissed and MFA No 5831 of 2012 is allowed accordingly. Sd/- JUDGE Sd/- JUDGE *pjk