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2022 DIGILAW 708 (KAR)

Jethendra Doddaborappa v. M Mamatha

2022-06-03

ALOK ARADHE, J.M.KHAZI

body2022
JUDGMENT J.M. Khazi, J. - This appeal is under Section 19(1) of the Family Court Act, 1984, has been filed by the husband challenging the impugned judgment and order, whereby his petition under Section 13(1)(i) & (i-b) of Hindu Marriage Act, 1955, seeking a decree of divorce on the ground of cruelty and desertion which came to be rejected by the Family Court. 2. For the sake of convenience, hereinafter the parties are referred to by their rank before the Family Court. 3. FACTS: Brief facts leading to the filing of the petition are that the marriage of petitioner and respondent was solemnized on 26.01.2004 at Sira as per the Hindu rituals. On 08.11.2005, they jointly purchased a house at Anubhavanagar, Bengaluru. While petitioner was the principal borrower, respondent was the co-obligant. A daughter was born to them on 19.10.2005. Petitioner alleges that respondent lived with him only for a period of eight months. Thereafter, she deserted him. After respondent's father re-married, respondent ousted the petitioner from the house which they had purchased jointly. Respondent took care of the daughter only for a period of one month. Therefore, to take care of the child, petitioner's parents started living with him at Bengaluru. Respondent sent an e-mail to the petitioner using filthy language and threatening that she would commit suicide and implicate him. The conduct of the respondent amounts to cruelty. Respondent is not ready and willing to join the petitioner. Inspite of owning a house, petitioner is forced to live in a rented house. Petitioner is taking care of their daughter as both father and mother. Respondent has withdrawn from the company of the petitioner, since more than three years immediately prior to the filing of the petition and has thereby deserted him. Therefore, on the ground of cruelty and desertion, he has sought for a decree of divorce. 4. Respondent appeared and filed written statement admitting the relationship between the parties and birth of the daughter on 19.10.2005. However, she has denied that she stayed in the house of the petitioner only for a period of eight months. On the other hand, it is her case that she stayed with the petitioner till January 2010 and alleges that during the month of January 2010, petitioner physically ousted her from the matrimonial home. The joint acquisition of the residential house by petitioner and respondent is admitted. On the other hand, it is her case that she stayed with the petitioner till January 2010 and alleges that during the month of January 2010, petitioner physically ousted her from the matrimonial home. The joint acquisition of the residential house by petitioner and respondent is admitted. She has alleged that since February 2008, petitioner has not bothered to pay 50% of his share of equated monthly instalments of the home loan and thereby the respondent was burdened to discharge the loan. Instead of bothering to pay the home loan instalment, petitioner purchased a brand new car. Respondent has further pleaded that when the petitioner failed to discharge his part of the responsibility, she felt cheated and thereby she was subjected to cruelty. Since the house which was jointly purchased by petitioner and respondent was not habitable, they had shifted to a rented accommodation in RPC Layout during 2009. Petitioner took care of her daughter till January 2010, when she was ousted from the matrimonial home by forcibly taking the child from her. Since then she was not allowed to meet the child. She alleges that petitioner is indulged in an illegal relationship with his sister's daughter and when this was objected to by her, she was driven out of the matrimonial home. So far as the allegation of sending threatening messages through e-mail, respondent has contended petitioner has misused her password and concocted the e-mail while she was living with him. It is also pleaded that Since she was drawing more salary than petitioner, he has developed inferiority complex and that she is ready to live with the petitioner and has sought for dismissal of the petition. 5. The conciliation efforts made during the pendency of the petition before the Family Court has failed. 6. Parties have led oral and documentary evidence on their behalf. 7. Petitioner is examined as PW-1 and he has relied upon documents namely Ex.P1 to 4. 8. On the other hand respondent examined herself as RW-1 and relied upon documents namely Ex.R1 to 43. 9. Vide impugned judgment and order, the Family Court has rejected the petition on both grounds. 10. We have heard arguments of the learned counsel for petitioner and respondent and perused the record. 11. Learned counsel representing the petitioner submitted that Family Court has failed to appreciate the oral and documentary evidence placed on record in its right perspective. 9. Vide impugned judgment and order, the Family Court has rejected the petition on both grounds. 10. We have heard arguments of the learned counsel for petitioner and respondent and perused the record. 11. Learned counsel representing the petitioner submitted that Family Court has failed to appreciate the oral and documentary evidence placed on record in its right perspective. It is submitted that the findings recorded by the Family Court erred in holding that from the photographs, it could be ascertained that petitioner and the respondent lived together for more than eight months. It is further submitted the Family Court has erroneously recorded a finding that petitioner and respondent have attended a wedding on 30.05.2008 together and as such there is no desertion. The said wedding was attended by them separately. Respondent has not disputed that she took care of the child only for a period of one month and thereafter petitioner has taken care of her. It is pointed out that this fact is not appreciated by the Family Court. It is contended that the Family Court has not appreciated the oral and documentary evidence placed on record and that it has erroneously rejected the admissibility of Ex.P2. 12. On the other hand learned counsel for respondent supported the impugned judgment and order and has sought for dismissal of the appeal. 13. The marriage of petitioner and respondent was solemnized on 26.01.2004. They were blessed with a daughter on 19.10.2005. They have jointly purchased a house at Bengaluru on 08.11.2005. During the course of his cross-examination the petitioner has admitted that he paid his share of monthly instalments only for one year and that he has not paid the monthly installments which was supposed to be equally divided between the petitioner and respondent. Though the petitioner has alleged that respondent and her parents ousted him from their own house where they were staying, the evidence led by respondent establish the fact that since the said house was not habitable, they had occupied a rented premises and petitioner and his family members removed all their belongings and kept them in their house, as a result of it she had to take care of the entire loan and stay with her parents. Only after getting the own house which was purchased jointly by the petitioner and respondent repaired, the respondent/wife shifted to the same for purpose of residing. 14. Only after getting the own house which was purchased jointly by the petitioner and respondent repaired, the respondent/wife shifted to the same for purpose of residing. 14. Even though the petitioner has pleaded and deposed that respondent took care of their child only for one month and that she stayed in the matrimonial home for a total period of 8 months only, the evidence placed on record by the respondent prove that she stayed with the petitioner till January 2010. It is pertinent to note that petitioner had gone to USA and returned to India in the month of May 2008. During his cross-examination petitioner has admitted that when he was in US, respondent and her parents used to visit his house for about one year and the petition seeking decree of divorce on the ground of desertion came to be filed in 2010. Therefore, the mandatory period viz., two years immediately prior to the filing of the petition seeking divorce on the ground of the desertion is not fulfilled and rightly the Family Court has rightly rejected the petition seeking decree of divorce on the ground of desertion. 15. The evidence placed on record by the respondent falsifies the claim that respondent took care of the child only for 40 days and for a total period of 8 months she had stayed in the matrimonial home. On the other hand, the evidence led by the respondent supports her contention that till January 2010, she stayed with the petitioner. It is pertinent to note that the petitioner has not disclosed his true address and in fact during his cross-examination he has admitted that he is not ready to disclose his address as well as the school where the child is studying. He is apprehensive of the fact that respondent may meet the child. Thereby, he is preventing respondent from having the visitation rights. Even though the petitioner has also sought a decree of divorce on the ground of cruelty, he has not pleaded the specific instances of cruelty which are of such nature that it would not be in the interest of the petitioner to live with the respondent. 16. Petitioner has produced an e-mail in which respondent has allegedly cursed the petitioner and his family members and wished that his parents should die and that somebody should throw acid on his sisters, daughters and they should not get married. 16. Petitioner has produced an e-mail in which respondent has allegedly cursed the petitioner and his family members and wished that his parents should die and that somebody should throw acid on his sisters, daughters and they should not get married. However, respondent has not admitted that this e-mail had been sent by her. In fact, she has alleged that while they were living together, misusing her password, the petitioner might have sent such e-mail as though it is sent by her. As rightly held by the Family Court, petitioner has not produced the certificate required under section 65B of the Evidence Act to prove the said e-mail. The Family court has rightly refused to accept the evidence led by the petitioner with regard to the ground of cruelty. During the course of evidence, petitioner has deposed that respondent used to invite her boy friends to the house and they used to consume alcohol. However, there are no pleadings to that effect. Consequently, the Family Court has rejected the said evidence as an after thought. The Family Court has also rejected the allegation made the petitioner that when his parents objected the visit of the boy friends of respondent to the house, she gave threat of spraying acid on them is not based on any evidence. 17. As held by the Family Court, the difference of opinion arose between the petitioner and respondent after he stopped paying his share of equated monthly installments. It appears petitioner was also not happy by the fact that the father of respondent remarried and her parents started living with them. All this has led to the discord between them. However, the petitioner has failed to establish that respondent has willfully deserted him two years immediately prior to the filing of the petition. At the same time he has also failed to prove that respondent treated him with cruelty of such nature that it would not be safe for him to live with her. 18. Taking into consideration the oral and documentary evidence led by both parties, the Family Court has come to a correct conclusion that it is not a case for grant of divorce on both grounds. We find no reason to interfere with the well reasoned judgment rendered by the Family Court and accordingly, we proceed to pass the following: ORDER (i) The appeal fails and hereby dismissed. We find no reason to interfere with the well reasoned judgment rendered by the Family Court and accordingly, we proceed to pass the following: ORDER (i) The appeal fails and hereby dismissed. (ii) The costs are made easy.