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2016 DIGILAW 92 (KAR)

N. Jayanna v. Vasantha

2016-01-27

N.K.PATIL, S.SUJATHA

body2016
JUDGMENT : N.K. Patil, J. 1. This appeal is by the appellant - husband, being aggrieved by the impugned judgment and decree dated 26.10.2011 passed in M.C. No. 23/2006 on the file of the Senior Civil Judge and JMFC at Gubbi, dismissing the petition filed by appellant under Section 13 of Hindu Marriages Act, for dissolution of marriage solemnized between him and the respondent - wife. 2. Facts in brief are, after marriage, both the appellant and the respondent were residing together at the residence of the appellant. The respondent without intimating the appellant left the matrimonial home about 7 years prior to filing of the petition before the trial Court and she was residing with her parents at Tumkur. The appellant has made several efforts to bring her back to the matrimonial home and also persuaded her through the Panchayats but she did not heed to it. Therefore, he was constrained to issue legal notice to respondent on 27.07.2006 calling her back to revive the marital obligations. But she did not come back. It is alleged that the respondent is moving with one Harish, auto driver and threatening the appellant with dire consequences at the instigation of her father who is a Police Constable. Therefore, the appellant was constrained to file a complaint against the respondent, her parents and brother before the Superintendent of Police on 04.08.2006. Further, he alleged that in spite of making all these efforts, she was not ready and willing to join the matrimonial home and she has mentally and physically tortured and ill-treated him and she do not like to live with the appellant. Taking these grounds, the appellant - husband filed the petition seeking divorce as stated supra. 3. Upon notice to the respondent - wife, she filed detailed objections accepting the relationship with the appellant but denying the entire averments of the petition. As a defence she has contended that she and the appellant led a happy married life and the appellant was doing agricultural work. Later, he got an appointment in the department of Sujala Jalanayana as a Jalanayana Assistant at Tippanahalli Branch and getting salary. After he started working as Assistant and getting salary, he started ill-treating the respondent - wife. As a defence she has contended that she and the appellant led a happy married life and the appellant was doing agricultural work. Later, he got an appointment in the department of Sujala Jalanayana as a Jalanayana Assistant at Tippanahalli Branch and getting salary. After he started working as Assistant and getting salary, he started ill-treating the respondent - wife. It is alleged that she tolerated all the ill-treatments and torture meted-out to her by the appellant and when the conduct of him went out of control, she came to know that he had illicit relationship with one Lakshmamma of Bovipalya. It is further alleged that when she and her parents questioned the appellant - husband, about the relationship, he was furious and taken the respondent - wife in a motor cycle and stated to have attempted to do away with her life and pushed her from the motor cycle to make it look like an accident. However, she somehow escaped. She also contended that he was also addicted to the alcohol. Further, she contended that she informed the illicit relationship of appellant and Lakshmamma before the Jurisdictional Police. The Jurisdictional Police have called upon both of them interrogated and negotiated. Then, the appellant has admitted the said fact and given a statement in writing to that effect. It is also contended that the appellant has filed a petition in M.C. No. 25/06 for the same relief and the contentions taken by him therein are quite contrary also. 4. To substantiate the contention of the appellant -husband he has examined himself as PW. 1 and got marked documents as Ex.P1 to Ex.P2(a) on his behalf and closed his evidence. On the other hand, the respondent - wife examined herself as RW. 1 and produced 25 documents as Exs.R1 to R25 and closed her side of evidence. 5. After hearing the counsel for the parties and on the basis of the pleadings of both the parties, the Trial Court framed the following issues: 1. Whether the petitioner is entitled for the relief claimed by him?! 2. What order? 6. 1 and produced 25 documents as Exs.R1 to R25 and closed her side of evidence. 5. After hearing the counsel for the parties and on the basis of the pleadings of both the parties, the Trial Court framed the following issues: 1. Whether the petitioner is entitled for the relief claimed by him?! 2. What order? 6. After careful evaluation of the oral and documentary evidence on record, taking into consideration the torture meted out by the appellant to the respondent physically and mentally and after taking due note of Exs.R1 to R25 produced by the respondent - wife and also holding point No. 1 in the negative and point No. 2 as per final order, dismissed the petition filed by the appellant - husband. 7. Being aggrieved by the impugned judgment and decree, the appellant herein felt necessitated to present this appeal. 8. The submission of Sri. Kaleemullah Sharieff, learned counsel appearing for the appellant - husband herein at the outset is that the impugned judgment and decree passed by the Court below is contrary to the oral and documentary evidence available on record. The reasoning given by the Court below to dismiss the petition filed by the appellant is unsustainable in law and also erred in holding that the appellant is taking contra stand and placing reliance of Ex.R1 - earlier statement given by the appellant before the Police regarding the illicit relationship of him with one Lakshmamma, Bovipalya and the same is not a ground and it has not been proved. Further, he specifically submitted that Court below has committed grave error in holding that the appellant has not made any attempt to bring the respondent - wife back to the matrimonial home. Inspite of making several attempts and efforts to bring respondent - wife back by convening Panchayat, she did not come back to the matrimonial home. Infact, the appellant's brother went to the respondent - wife's place and asked her to come to matrimonial home. He submits that the trial Court has not appreciated the oral and documentary evidence and dismissed the petition. Therefore, he prays to set aside the impugned judgment and decree passed by learned Senior Civil Judge and prayer sought in the above appeal may be considered by allowing the appeal. 9. He submits that the trial Court has not appreciated the oral and documentary evidence and dismissed the petition. Therefore, he prays to set aside the impugned judgment and decree passed by learned Senior Civil Judge and prayer sought in the above appeal may be considered by allowing the appeal. 9. As against this, Sri Patel D. Karegowda, learned counsel appearing for the respondent - wife inter alia contended that the impugned judgment and decree passed by the learned Senior Civil Judge is after proper appreciation of oral and documentary evidence available on record. The Court below has dismissed the said petition by taking note of Exs.R1 - Mahazar, Exs.R14 and R15 - medical prescription slips, Ex.R16 - Lab report, Exs.R17 and R18 - two receipts, Exs.R19 and R20 - Ultra Sound Scanning reports, Ex.R21 - another Ultra Sound Scanning Report and Exs.R24 and R25 - documents relating to pregnancy and also taken note that she under went abortion. Inspite of giving sufficient opportunity to the appellant to substantiate the prayer sought in the petition, he has failed utterly, whereas, the respondent has made out a case, contrary to the reality. Therefore, learned Judge has rightly assigned valid and cogent reasons and taking into consideration the conduct of the appellant herein has rightly dismissed the petition and interference by this Court is not called for. 10. After careful consideration of the arguments advanced by the learned counsel for the parties and perusal of the impugned judgment, it emerges that the marriage of the appellant and respondent was solemnized on 19.06.1998 as per the customs prevailing in their community. After marriage, both of them lived together happily and at that time, the appellant was doing agricultural and coolie work. Later, he got a job in Sujala Jalanayana as a Jalanayana Assistant. After getting salary he started misbehaving and ill-treating the respondent and he used to torture her physically and mentally by making unnecessary and uncharitable allegations that she did not co-operate in the marital obligations. The respondent left the matrimonial home without intimating the appellant or his parents and started living with her parents. The appellant made several attempts to bring her back to the matrimonial home to lead their life peacefully. The respondent left the matrimonial home without intimating the appellant or his parents and started living with her parents. The appellant made several attempts to bring her back to the matrimonial home to lead their life peacefully. In this regard, the respondent had filed a complaint before the Jurisdictional Police, before whom he had admitted the said fact and stated that he is ready and willing to take the respondent back to the matrimonial home. He also requested Panchas to persuade the respondent to join the appellant. Inspite of the best efforts by the appellant, the respondent did not join the matrimonial home. Hence, he filed the petition under Section 13 of the Hindu Marriage Act, for dissolution of marriage solemnized between the parties. To substantiate the same, he examined himself as PW. 1 and marked two documents. The respondent - wife has examined herself as RW.1 and marked Exs.R1 to R25. 11. Exs.R14 to R25 are medical documents showing that the respondent had undergone treatment and that she had also underwent abortion. The contention of the appellant that said documents are created one cannot be believed for the reasons that, in support of the said contention, he has not produced an iota of documents nor examined any independent witness to disbelieve the same. Therefore, the Court below dismissed the petition filed under Section 13 of Hindu Marriage Act, for dissolution of marriage holding that just because the parties are living separately it does not mean that the appellant is entitled for the relief claimed by him, especially as the grounds on which he has sought divorce are not proved, i.e., desertion and cruelty. On the other hand, it appears that it is the appellant who has deserted the respondent and ill-treated her. When admittedly the appellant had illegitimate relationship with another lady, the respondent could not have lived with him. 12. On the other hand, it appears that it is the appellant who has deserted the respondent and ill-treated her. When admittedly the appellant had illegitimate relationship with another lady, the respondent could not have lived with him. 12. After careful consideration of the submission of learned counsel appearing for the appellant, grounds urged in the memorandum of appeal and perusal of the impugned judgment passed by the Family Court, it is seen that the Family Court after due appreciation of the oral and documentary evidence available on file has given valid and cogent reasons for declining the prayer sought for by the appellant for a decree of divorce on the ground of desertion and cruelty and inspite of giving sufficient opportunity to the appellant, he has failed to make out a good ground to entertain the prayer sought for by him in the petition nor he has satisfied the basic ingredients of the relevant provisions for granting decree of divorce on the ground of desertion and cruelty which is mandatory. Further, the appellant has failed to produce any credible document or examined any independent witness to grant relief sought for by him in the petition. Therefore, the Family Court after due appreciation of the entire material available on its record is highly justified in recording a specific finding of fact after critical evaluation of oral and documentary evidence available on record and also taking into consideration the conduct of the appellant, and dismissing the petition filed by the appellant for dissolution of marriage on the ground of desertion and cruelty. The reasons assigned by the Court below are well founded and well reasoned. Therefore, we are of the view that interference in the impugned judgment is uncalled for nor the appellant has made out any good ground for such interference. Accordingly, the appeal filed by the appellant -husband is dismissed as devoid of merits. Registry is directed to pay a sum of Rs. 10,000/- which is deposited by the appellant pursuant to the order of this Court dated 22.08.2012 to the respondent - wife immediately, if not already paid.