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2014 DIGILAW 993 (KAR)

Nanda v. Shri Ram @ Parashuram Khatwate

2014-11-17

K.N.PHANEENDRA, MOHAN M.SHANTANAGOUDAR

body2014
Judgment : 1. The judgment and order of rejection of the application filed under Section 13 of Hindu Marriage Act for dissolution of the marriage is questioned by the wife/applicant before the Court below, in this appeal. 2. The appellant herein is the wife of the respondent. Their marriage was performed on 10.03.2002 as per the customs and usage prevailing in their community. After the marriage, they lived together for about two years, during which time a child is born by name Sumit. The said child is with the appellant herein. 3. The original petitioner/appellant herein is working as Computer Operator in the office of the General Manager, Rehabilitation and Resettlement, Upper Krishna Project, Bagalkot, on contract basis. She is allotted quarters by the Department at Navanagar, Bagalkot wherein she is residing along with the child. The respondent/husband is a Goldsmith by profession at Gadag. 4. According to the petitioner/appellant herein, after birth of the child Sumit, the respondent neglected to show love and affection towards his wife and the child, he was addicted to bad vices of consuming alcohol, the appellant was being harassed without any valid reason, the respondent sold his residential house and utilized the amount of sale consideration to satisfy his bad vices, he started threatening the lady of dire consequences of taking away of her life in case she cannot part with the salary. The sum and substance of the case of the appellant is that she is being harassed by inflicting both mental and physical cruelty. 5. Per contra, it is the contention of the respondent-husband that it is the petitioner who deserted him, the petitioner is having adamant nature and is very much proud of her job and salary, she has no regards for the respondent. Further case of the respondent is that the petitioner has got superiority complex since she is a salaried lady; the efforts of the respondent and his family members to get back the petitioner to the matrimonial house to lead marital life went in vain, the petitioner insulted the respondent many times. On these amongst other grounds, he has prayed for dismissal of the petition for dissolution of marriage. 6. In order to prove their respective cases, parties have adduced their evidence. On behalf of the petitioner she was examined as PW1 and examined her father as PW2. On behalf of the husband he examined himself as RW1. On these amongst other grounds, he has prayed for dismissal of the petition for dissolution of marriage. 6. In order to prove their respective cases, parties have adduced their evidence. On behalf of the petitioner she was examined as PW1 and examined her father as PW2. On behalf of the husband he examined himself as RW1. 7. Petitioner has admitted in the evidence that, at the time of marriage itself she was working and after the marriage the present petition is filed. Her father-P.W.2 has deposed that the petitioner is working in Rehabilitation and Resettlement, Upper Krishna Project and that she is residing alone. P.W.2 was not present when the petitioner was being harassed by the respondent. Per contra, R.W.1 deposed that they lived happily for about two years and thereafter the petitioner started quarrelling with him. He has further deposed that he filed petition seeking restitution of conjugal rights in M.C. No. 15/2009. 8. Before proceeding further, it is relevant to note, the husband/ respondent herein filed M.C. No. 15/2009 for restitution of conjugal rights and the same is allowed after contest. The said order has attained finality. Therefore, it is clear that the petitioner has accepted the order of restitution of conjugal rights. Hence it is not open for the petitioner to press for her divorce, in this appeal. 9. As aforementioned, there is no dispute with regard to the marriage between the parties. So also, there is no dispute that a child is born during the wedlock. Curiously, none of the parties have uttered a single word in respect of the child. It is also not explained by the petitioner as to who will be taking care and custody of the child in case the divorce takes place. Moreover, the material on record is not sufficient to conclude that it is a fit case for grant of divorce. Decree for divorce should not be granted by the Courts merely on asking by one of the parties. To pass an order breaking institution of marriage, substantial reliable material is to be placed on record. 10. Even on reconsideration of the material on record, we find that the same are not sufficient to grant a decree for divorce. There is no adequate material to show the desertion or cruelty on the part of the respondent. To pass an order breaking institution of marriage, substantial reliable material is to be placed on record. 10. Even on reconsideration of the material on record, we find that the same are not sufficient to grant a decree for divorce. There is no adequate material to show the desertion or cruelty on the part of the respondent. Per contra the material on record prima facie reveals that the petitioner herself is residing separately at Bagalkot and she is getting salary. The child is also living with her, whereas the respondent is staying at Gadag doing his family business of Goldsmithy. 11. In the cross-examination of P.W.1 it is suggested to her that despite the panchayath being convened and the respondent has made all the efforts to call back the appellant herein, the appellant has refused to lead marital life with him. The trial Court on facts has also concluded that it is the petitioner who neglected to live with the respondent and that she has failed to substantiate her contention regarding the cruelty and desertion. 12. Though there is allegation that the respondent has threatened the petitioner with dire consequences of taking away her life by showing knife, etc. nothing is brought on record in the evidence of P.W.1 and 2 to support the said allegation. It is also relevant to note that the petition filed by the wife against the husband seeking maintenance is also rejected in view of the fact that the wife has got sufficient income to maintain herself and the child. 13. Be that as it may, since the material on record is not sufficient to prove the allegation of cruelty and desertion on the part of the respondent, the trial Court is justified in dismissing the petition/ application filed by the wife/ appellant herein for dissolution of marriage. Hence, no interference is called for. Appeal fails and is hereby dismissed.