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2019 DIGILAW 2081 (KAR)

K. Ajith Kumar v. Padmaja

2019-10-15

ALOK ARADHE, P.G.M.PATIL

body2019
JUDGMENT : 1. This appeal is filed under Section 19(1) of the Family Courts Act, 1984 challenging the judgment dated 07.11.2013 passed by the Principal Judge, Family Court, Bellary, by which the petition filed by the appellant herein under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, (hereinafter referred to as "Act" for short) seeking dissolution of marriage by a decree of divorce, has been dismissed. 2. The facts necessary for deciding this appeal briefly stated are that admittedly, the marriage between the parties was performed on 13.02.2005 at Bellary. After the marriage, the appellant and the respondent lived together in Bangalore. After few days, the parents of the respondent took her to their house at Bellary with the assurance that they would send her back within 10 days. However, the respondent stayed with her parents for a period of four weeks and thereafter returned to the house of the appellant. It is the case of the appellant that the respondent left the matrimonial home on 04.02.2007 with all her belongings and started living with her parents. The appellant, in the meanwhile, approached the respondent on 23.06.2007 and requested her to join the matrimonial home. However, she refused to join the matrimonial home. It is also the case of the appellant that on 03.11.2007, once again the appellant approached the respondent at Kampli and requested her to join matrimonial home. However the respondent did not join the appellant. 3. The appellant thereafter sent a legal notice on 11.01.2008, which was served on the respondent. Thereafter, the appellant filed a petition seeking restitution of conjugal rights under Section 9 of the Act. In the aforesaid proceeding, the respondent, as per the admission of the appellant, entered appearance. However, the appellant withdrew the said proceeding on 30.01.2010 and instituted proceeding under Section 13 (1) (ia) and (ib) of the Act on the grounds of desertion and cruelty. It was pleaded that the respondent has deserted the appellant as she has left the matrimonial home on her own volition on 04.02.2007 and despite several attempts made by the appellant, she did not join the matrimonial home. It was also pleaded that the respondent harassed the appellant herein and his family members, which amounts to cruelty. Accordingly, a decree for dissolution of marriage was sought. 4. The respondent entered appearance and filed objections. It was also pleaded that the respondent harassed the appellant herein and his family members, which amounts to cruelty. Accordingly, a decree for dissolution of marriage was sought. 4. The respondent entered appearance and filed objections. It was inter alia contended that the appellant was going abroad and therefore, he requested the respondent to go to her parents' house till he returns to India. It was further pleaded that on the request of the appellant, the respondent came over to Bellary, when the appellant went abroad. It was also averred that a suitable reply to the notice was given. However, the appellant filed a petition under Section 9 of the Act, in which respondent appeared and expressed her willingness to join the matrimonial home. However the appellant did not take any steps to ensure that the respondent joins matrimonial home. Thereafter, petition under Section 13 (ia) and (ib) of the Act was filed. It was also averred that the respondent never deserted the appellant and never treated either the appellant or his family members with cruelty. 5. The appellant in order to prove his case examined himself as P.W.1 and marked documents as Ex.P.1 to Ex.P.7, whereas the respondent examined herself as R.W.1 but did not adduce any documentary evidence. Thereafter, the Family Court vide impugned judgment has dismissed the appeal preferred by the appellant. In the aforesaid factual background, this appeal has been filed. 6. Learned counsel for the appellant submits that, in this appeal, he has confined his challenge to the impugned judgment insofar as it contains the finding on the ground of desertion. Learned counsel for the appellant has invited attention of this Court to evidence of the appellant as well as the evidence of the respondent and has submitted that from the material on record, the ground of desertion is made out. It is further submitted by the appellant that the parties are residing separately since 2007 i.e. for past more than 12 years and the respondent has not made any attempt to join the matrimonial home. None has appeared on behalf of the respondent despite of service of notice. 7. We have considered the submissions made by the learned counsel for the appellant and have perused the records. None has appeared on behalf of the respondent despite of service of notice. 7. We have considered the submissions made by the learned counsel for the appellant and have perused the records. From the perusal of paragraph 5 of the evidence of P.W.1/appellant herein, it is evident that he has stated that the respondent on 04.02.2007 took away her belongings without informing the appellant. It is further stated that, thereafter the appellant tried to contact the respondent over phone. However, no proper response was given to the appellant. It has further been stated that the appellant had approached the parents of the respondent, who had promised that they will bring their daughter after proper advice. However, till 26.09.2009, the respondent did not return to Bangalore. In paragraph 6, it has further been stated by the appellant that on 23.06.2007 he met the respondent at Bellary and she promised that she would join the matrimonial home by first week of July 2007. However, the respondent did not join the matrimonial home. Again, the appellant met the respondent at Kampli and requested her to return to matrimonial home. However, the appellant was informed by the parents of the respondent that she would be sent after "Uttran Dwadashi" but till 10th of January 2008, the respondent did not join the matrimonial home. In paragraph 8 of his evidence, the appellant has further stated that the respondent has no intention to join the matrimonial home and has deserted him on 04.02.2007 on her own volition. 8. We have carefully gone through the cross-examination of P.W.1. It is pertinent to note that no challenge has been made to the averments made by the appellant in paragraph 5, 6 and 8 of his examination-in-chief in the cross-examination. It is well settled in law that if testimony of a witness on a particular point is not challenged in the cross-examination, the same is taken to be accepted (See: Muddasani Venkata Narsaiah vs. Muddasani Sarojana, (2016) 12 SCC 288 ). 9. In view of the aforesaid enunciation of law, since no challenge has been made in the cross-examination with regard to the averments of the desertion made by the appellant, in explicit terms, we inclined to hold that the same are taken to be accepted by the respondent. 10. 9. In view of the aforesaid enunciation of law, since no challenge has been made in the cross-examination with regard to the averments of the desertion made by the appellant, in explicit terms, we inclined to hold that the same are taken to be accepted by the respondent. 10. However, the Family Court has failed to appreciate the aforesaid aspect of the matter and has held that the respondent had sent reply to the notice which was sent by the appellant and the respondent had appeared in the proceeding under Section 9 of the Act, in which she had expressed her willingness to join the matrimonial home. It has been further held by the Trial Court that the appellant had travelled abroad and had asked the respondent to stay with her parents. Therefore, no ground of desertion is made out. 11. It is pertinent to mention here that no such suggestion has been made to the appellant in the cross-examination that since he was traveling abroad, he had asked the respondent to stay with her parents. A mere statement in her reply to the notice that the respondent prepared to join the matrimonial home is of no consequence in the evidence on record as well as conduct of the respondent, specially in view of the efforts made by the appellant to ensure that the respondent joins the matrimonial home. Even the aforesaid efforts which are made by the appellant to ensure that the respondent joins the matrimonial home have not been challenged by way of cross-examination by the respondent. In our considered opinion, for the reasons assigned supra, the ground for desertion was clearly made out. Therefore, we set aside the finding recorded by the Family Court with regard to the ground under Section 13(1) (ib) of the Act and held that the appellant has been able to establish the ground of desertion as enumerated under Section 13(1) (ib) of the Act. Even otherwise, admittedly, the parties are living separately for past more than 12 years. Accordingly, the impugned judgment and decree, insofar as it pertains to the ground of desertion under Section 13(1) (ib) of the Act is set aside and the petition filed by the appellant under Section 13(1) (ib) of the Act is partly decreed and the marriage between the parties is dissolved by a decree of divorce. 12. Accordingly, appeal is partly allowed. 12. Accordingly, appeal is partly allowed. There shall no order as to costs.