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2020 DIGILAW 2134 (KAR)

Jyothi, Wife of Dr. a. Shanthamurthy v. A. Shanthamurthy, Son of Late Gurulingappa

2020-10-23

B.V.NAGARATHNA, N.S.SANJAY GOWDA

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JUDGMENT : SANJAY GOWDA, J. The appellant/wife filed a suit seeking for a decree of permanent injunction to restrain her husband from contracting a second marriage during the subsistence of his marriage with her. 2. It was the case of the wife that she had married the respondent on 23.04.2008 and out of the said marriage she had borne him a daughter by name Spoorthy in the year 2009. It was her case that when she was pregnant with the first child her husband had insisted that she undergo an abortion and because she had refused to accede to this demand, he was annoyed and he thereafter started ill-treating her. It was her case that after the child was born, he had even refused to meet her and her child and despite several attempts for reconciliation, her husband did not join her and on the other hand, he had initiated proceedings for divorce in M.C.No.105/2010. It was her case that the petition filed by her husband seeking for divorce was dismissed and an appeal in MFA.No.371/2012 filed against the petition was also dismissed. 3. It was her case that during one of the hearings in the Court cases, her husband had proclaimed that he was going to marry for the second time and he informed them that they may take any steps that they wanted in this regard. It was her case that she made enquiries and was informed that he was making a hasty attempts to marry for the second time and hence she was constrained to file the suit seeking for an injunction. 4. The respondent/husband entered appearance and contested the matter. The husband basically denied the entire averments made with regard to the allegation that he was attempting to marry for the second time. He categorically denied the specific assertion of the wife that on 26.11.2012 i.e. on the date of hearing in Crl.Misc.No.104/2012, he had made a proclamation that he was going in for a second marriage and he requested the Court to dismiss the suit. 5. In support of her case, the plaintiff examined herself and another witness called Pujar Channabasappa and exhibited three documents. The husband examined himself and did not produce any documents. 6. 5. In support of her case, the plaintiff examined herself and another witness called Pujar Channabasappa and exhibited three documents. The husband examined himself and did not produce any documents. 6. The Trial Court on consideration of the oral and documentary evidence came to the conclusion that the husband had specifically denied the assertion that a proclamation had been made by him in the Court premises on 26.11.2012 regarding his intent to marry for the second time. He, in fact, produced a certificate issued by the District Ayush Hospital Authourity, Davanagere which was to the effect that on 26.11.2012, he was on duty in the Ayurvedhic Hospital at Naraganahalli Village. 7. The Family Court found that the plaintiff had failed to establish the presence of the respondent in the Court on 26.11.2012 since the certified copy of order sheet in Crl.Misc.No.104/2012 and M.C.No.68/2012 were not produced to show that a hearing had indeed taken place on 26.11.2012. 8. The Trial Court refused to accept the evidence of Pujar Channabasappa (PW-2) regarding the alleged proclamation made by the defendant on the ground that he was not a eye witness and was merely a hearsay witness. The Family Court, thus, came to the conclusion that there was no acceptable proof produced to show that the husband was making an attempt to contract a second marriage. 9. In our view the Trial Court was completely justified in coming to the conclusion that there was no acceptable proof produced before it which could remotely establish that the plaintiff had made a proclamation that he would be contracting a second marriage. 10. The Trial Court noticed that the husband was actually working on 26.11.2012 as per the certificate issued by the District Ayush Hospital Authority, which was in fact produced during the course of arguments and which established that the entire case pleaded by the plaintiff could not be accepted as being true. We therefore, find no reason to disapprove the finding recorded by the Family Court. 11. It is also to be stated here that in the absence of a specific allegation regarding an attempt by the respondent/husband to marry for the second time with a specified lady, an injunction restraining him from contracting a second marriage, cannot be granted since it would be more of a relief being sought on the basis of speculation rather than a real threat. It is settled law that a prayer in a suit must be based on real and acceptable facts and evidence and not on mere conjecture, assumption and presumption. 12. We therefore find no reason to interfere with the judgment rendered by the Trial court. In the result, the appeal fails and is dismissed. Parties to bear their respective costs.