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2022 DIGILAW 824 (KAR)

Suma v. H. kumar

2022-07-01

ALOK ARADHE, J.M.KHAZI

body2022
JUDGMENT J.M.KHAZI J. - This appeal and petition are filed by the wife challenging the judgment and decree in M.C.No.2680/2008 granting restitution of conjugal rights, at the instance of her husband and dismissing Crl.Misc. No.368/2007 filed by her seeking maintenance at the rate of Rs.6,000.00 p.m. in favour of herself and her two daughters. 2. Since, both the appeal and petition arise out of a common judgment, they are clubbed together and are decided by this common order. 3. For the sake of convenience, the parties are referred to by their rank in M.C.No.2680/2008. 4. Brief facts leading to the filing of the petition seeking restitution of conjugal rights as well as initiation of proceedings under Sec. 125 of Cr.P.C . by the wife and daughters for maintenance are that the marriage of petitioner and respondent was solemnized on 5/5/1998 at Tumbadi of Koratagere Taluk, Tumkur District. Through the wedlock, two daughters are born who are aged 13 years and 8 years respectively at the time of filing the petition. 5. Petitioner sought restitution of conjugal rights contending that after leading a marital life of 5 years and after the birth of two daughters, without any justifiable cause, respondent has withdrawn from the company of the petitioner. On the other hand, respondent has alleged that after the marriage parties resided together at police quarters, Adugodi. After 5 years of marriage, petitioner, his mother, brother and sisters started ill treating and harassing the respondent demanding dowry. On 1/4/2007, at 4.45 p.m., the petitioner and his brother assaulted her causing bleeding injury. Therefore, she lodged a complaint namely Cr.No.81/2007. After issuing a legal notice, she filed petition under Sec. 125 of Cr.P.C., in Crl.Misc. No.368/2007 claiming maintenance. 6. Of course, petitioner and respondent have resisted the respective petitions filed by the other party. Thereafter, an order in W.P.No.40124/2011 (GM-FC), came to be passed with a direction to decide both matters together. A separate enquiry had commenced in both cases and as such recording of evidence continued separately. 7. In M.C.No.2680/2008, petitioner examined himself as PW-1 and relied upon Exs.P-1 to 12. In this case, respondent examined herself as RW-1 and two witnesses as RWs-2 and 3 and no documents are marked on her behalf. 8. However, in Crl.Misc. A separate enquiry had commenced in both cases and as such recording of evidence continued separately. 7. In M.C.No.2680/2008, petitioner examined himself as PW-1 and relied upon Exs.P-1 to 12. In this case, respondent examined herself as RW-1 and two witnesses as RWs-2 and 3 and no documents are marked on her behalf. 8. However, in Crl.Misc. No.368/2007, respondent, who is petitioner has examined herself and the same two witnesses as PWs-1 to 3 and she has relied upon Exs.P-1 to 10. On the other hand, petitioner has examined himself as RW-1 and he has relied upon Ex.R-1 to 28. 9. Vide the impugned judgment and decree, the Family Court allowed the petition filed by the petitioner-husband granting restitution of conjugal rights and rejected the petition filed by the respondent-wife and her two daughters for maintenance. 10. Being aggrieved by the aforesaid orders, the respondent-wife has come up with the appeal and petition. 11. The learned counsel representing the respondent argued that the Family Court has not appreciated the oral and documentary evidence placed on record in its proper perspective and consequently erred in allowing the petition filed by the petitioner and in dismissing the petition filed by the respondent for maintenance. The Family Court has erred in not noticing the fact that petitioner filed the petition seeking restitution of conjugal rights after the respondent and daughters had filed the petition seeking maintenance. The Family Court has erred in not noticing the fact that petitioner has not made any arrangements for maintenance of his daughters and erred in rejecting the petition filed by them. 12. The reasoning of the entire order is based on stray admissions of the respondent. The Family Court has erred in placing reliance on the fact that in the criminal complaint, the respondent had arrayed the mother of the petitioner who had died long back. However, it is urged that the Family Court has failed to appreciate the fact that the principle of Falsus in Uno, Falsus in Omnibus is not applicable in Indian Courts and in Indian Society. The Family Court has also not appreciated the fact that petitioner has not produced any independent witness and prays to allow the appeals. 13. We have heard arguments of the appellant and have perused the record. 14. The Family Court has also not appreciated the fact that petitioner has not produced any independent witness and prays to allow the appeals. 13. We have heard arguments of the appellant and have perused the record. 14. Undisputed facts are that the marriage between the parties took place on 5/5/1998 and they are blessed with two daughters aged 13 years and 8 years respectively. For a period of five years i.e., till the date of filing the complaint on 1/4/2007, the parties have led a happy married life and all of a sudden on 1/4/2007, the respondent filed a criminal complaint against the petitioner alleging that petitioner, his mother, brother and sisters have ill treated and harassed her by demanding dowry and that on 1/4/2007, petitioner and his brother assaulted the respondent causing bleeding injury. 15. It is pertinent to note that the petitioner, respondent and their children were staying in the quarters allotted to the petitioner situated at Adugodi, Bengaluru. The complaint filed by her came to be registered in Cr.No.81/2007. Thereafter, she has got issued a legal notice to the petitioner on 25/5/2007 and filed a Crl.Misc.368/2007 claiming maintenance at the rate of Rs.6,000.00p.m on behalf of herself and her two daughters alleging that petitioner/husband has refused and neglected to maintain them. In the petition, petitioner/husband has claimed that without any justifiable cause, respondent/wife has withdrawn from his company. 16. As rightly held by the Family Court, though the respondent has alleged that for a period of five years, petitioner took good care of the respondent and her children, since about 2 years prior to the filing of the petition, petitioner, his brother, sisters and mother started harassing and ill treating her for dowry and ultimately, after assaulting her they drove from the matrimonial home. However, during her cross-examination, respondent has admitted that till the filing of the complaint dtd. 1/4/2007, there were no instance of quarrel between her and the petitioner and she stayed in the police quarters till 2007. 17. Similarly, though in the complaint she has alleged that petitioner and his brother assaulted the respondent on 1/4/2007 and caused bleeding injury, she has not produced any wound certificate to prove the said injury or to prove that she has taken any medical treatment. 17. Similarly, though in the complaint she has alleged that petitioner and his brother assaulted the respondent on 1/4/2007 and caused bleeding injury, she has not produced any wound certificate to prove the said injury or to prove that she has taken any medical treatment. In fact, during her cross-examination, she has admitted that on 1/4/2007 after lodging the complaint she went back to the quarters and prior to the said incident, there were no instances of quarrel between her and the petitioner and therefore she has not lodged complaint earlier to it. 18. Though in her petition, respondent has claimed that the petitioner was addicted to alcohol and other vices, during her cross-examination, she has admitted that the petitioner was not consuming liquor when he was living with her in the quarters and he was also not having the habit of smoking beedi or cigarette. It is pertinent to note that the mother of the petitioner had died even before he married the respondent. However, in her complaint at Ex.P7, respondent has alleged that the mother of the petitioner also joined the petitioner, his brother and sisters in harassing and ill treating her and in fact a case was also registered against the mother of the petitioner. 19. It is relevant to note that respondent has lodged complaint dtd. 1/4/2007 alleging that on that day the petitioner and his brother assaulted her. However, with regard to the said aspect, in the cross-examination she has stated that on that day, petitioner had gone to his father's house i.e., to Gundumgere. This fact is also forthcoming in the enquiry report at Ex.R6. This itself goes to show that though petitioner was not present in the house on 1/4/2007, she has chosen to file a false complaint to the effect that she was assaulted by the petitioner / husband on 1/4/2007. 20. As already noted, though she claims that she sustained bleeding injury due to the assault, she has not taken any medical treatment for the same. A close scrutiny of her evidence indicates that she had made allegations regarding incidences which have not occurred. In fact, in respect of Cr.No.81/2007, a charge sheet came to be filed in C.C.No.29533/2007 on the file of VI Addl.CMM Court, Bengaluru and vide judgment dtd. A close scrutiny of her evidence indicates that she had made allegations regarding incidences which have not occurred. In fact, in respect of Cr.No.81/2007, a charge sheet came to be filed in C.C.No.29533/2007 on the file of VI Addl.CMM Court, Bengaluru and vide judgment dtd. 20/2/2016, petitioner and his siblings came to be acquitted (as per the copy of the judgment uploaded in the website of High Court). 21. Throughout her cross-examination, time and again, suggestions have been made to the respondent that the petitioner/husband is ready and willing to take her back. However, every suggestion has been rejected by her stating that she is not ready to go and live with the petitioner. On the other hand, her conduct indicates that, she is interested in merely getting maintenance. During the course of her evidence, she has made allegations that the petitioner has contracted a second marriage. However, she has not produced any material to establish the said fact. The Family Court has examined the entire case thread bare and come to a proper conclusion that respondent has left the matrimonial home without any justifiable cause and therefore, petitioner is entitled for restitution of conjugal rights, whereas respondent is not entitled for any maintenance. We find no reason to interfere with the well reasoned judgment of the Family Court. 22. In the result, both the appeal as well as the petition fail and accordingly, we proceed to pass the following: ORDER (i) MFA.No.3245/2013 and RPFC.No.48/2013 are hereby dismissed. (ii) The registry is directed to transmit the trial Court record along with copy of this order.