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2023 DIGILAW 24 (KAR)

Nagendrappa M. v. Lakshmidevi

2023-01-03

ALOK ARADHE, S.VISHWAJITH SHETTY

body2023
JUDGMENT/ORDER ALOK ARADHE,J. - This appeal under Sec. 19(1) of the Family Courts Act, 1984 arises out of judgment dtd. 12/10/2012 by which petition filed by the appellant / husband seeking dissolution of marriage on the ground of cruelty and desertion has been dismissed. 2. Facts leading to filing of this appeal briefly stated are that the appellant and the respondent got married on 19/12/1992 as per Hindu Customs and Rites. There is no child born out of the wedlock. It is the case of the appellant that after leading a happy married life, in few years, the respondent exhibited real colours verbally and emotionally tortured the appellant in front of his family members and did not perform the duties as a wife. The appellant filed petition seeking dissolution of marriage on or before 10/11/2021 inter alia on the ground that in the month of April, 2008, the respondent voluntarily left the matrimonial home and despite efforts being made by the appellant has not joined the matrimonial home. It was pleaded that respondent used to emotionally torture the appellant in front of his family members and did not cook food. It was also pleaded that the appellant used to pick up the fights without any cause and ill treated the appellant. Accordingly, the appellant sought dissolution of marriage on the ground of desertion and cruelty. 3. respondent filed statement of objection, in which the relationship between the parties was admitted. However, the assertion made on behalf of the appellant that respondent used to abuse him in front of public in general and did not cook food was denied. It was further pleaded that after marriage, the respondent stayed with the appellant as a dutiful housewife. It was also pleaded that the appellant abused the respondent as she did not beget the child. It was also pleaded that since, the appellant intended to marry another lady, he used to harass the respondent. 4. family court on the basis of the pleadings of the parties, framed issues and recorded evidence. The appellant got examined himself as PW1 and got exhibited two documents. The respondent got herself examined as RW1 and exhibited three documents The family court vide judgment dtd. 12/10/2012 inter alia held that the appellant miserably failed to prove the allegation made by him against the respondent. The appellant got examined himself as PW1 and got exhibited two documents. The respondent got herself examined as RW1 and exhibited three documents The family court vide judgment dtd. 12/10/2012 inter alia held that the appellant miserably failed to prove the allegation made by him against the respondent. It was further held that the ground of desertion as pleaded in the petition has also not been proved. Accordingly, the petition was dismissed. In the aforesaid factual background, this appeal has been filed. 5. Learned counsel for the appellant submitted that the marriage between the parties has been irretrievably broken down and they are living separately since, 2008 and therefore, the decree of divorce in the facts and circumstances of the case ought to have been granted. In support of his submission, learned counsel for the appellant has placed reliance on division bench decision in 'SMT.R.REKHA @ PRANEETHA VS. SRI.K.G.RAVI', ILR 2022 KAR 1251. 6. On the other hand, learned counsel for the respondent has supported the judgment and decree passed by the family court. 7. We have considered the submissions made on both sides and have perused the record. From the evidence of the appellant, it is clear that the appellant has no way stated in his evidence that he has been subjected to any physical cruelty by the respondent. In his evidence, the appellant has stated that respondent treated him with cruelty as she asked the appellant to deposit the money in the bank in her name and she used to tell the appellant that she would go away to her parents house. The appellant has further stated that the respondent used to go away to her parents house several times and when he went to his in laws house, the respondent refused to accompany him and would go on another day. He has further stated that the respondent did not prepare food. The instance, which the appellant has mentioned in his evidence cannot be treated as a conduct which inflicts upon the appellant such a mental pain and suffering as would make impossible for the appellant to live with the respondent. 8. In KOLLAM PADMA LATHA VS. He has further stated that the respondent did not prepare food. The instance, which the appellant has mentioned in his evidence cannot be treated as a conduct which inflicts upon the appellant such a mental pain and suffering as would make impossible for the appellant to live with the respondent. 8. In KOLLAM PADMA LATHA VS. KOLLAM CHANDRA SEKHAR', (2007) 1 ALD 598 , it has been held that the marriage is highly revered in India and we are a nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine in equanimity. 9. The instances narrated by the appellant therefore, cannot be treated as inflicting cruelty on him. The appellant has failed to mentioned any grave circumstances constituting the mental cruelty. At the most, the same can be treated as the incidents during the course of ordinary wear and tear of marital life. The family court on the basis of evidence on record therefore, has rightly held that the appellant has not been able to prove the cruelty as pleaded by him in the petition. 10. It is pertinent to note that the appellant had married the younger sister of the respondent in the month of April 2008 and according to the case pleaded by the appellant himself, the respondent had left the matrimonial home. The appellant therefore, cannot be permitted to take advantage of his own wrong. Therefore, the ground of desertion as pleaded by the appellant has also not been proved. The judgment and decree passed by the family court is based on meticulous appreciation of evidence on record. 11. So far as the reliance placed by learned counsel for the appellant on the division bench decision of this court in SMT.R.REKHA @ PRANEETHA VS. SRI.K.G.RAVI is concerned, suffice it to say that the aforesaid decision has no application to the facts of the case as in the aforesaid decision, husband had established the ground of cruelty as pleaded in the petition. An irretrievable breakdown of marriage is not a ground under Sec. 13 of the Hindu Marriage Act, 1955. SRI.K.G.RAVI is concerned, suffice it to say that the aforesaid decision has no application to the facts of the case as in the aforesaid decision, husband had established the ground of cruelty as pleaded in the petition. An irretrievable breakdown of marriage is not a ground under Sec. 13 of the Hindu Marriage Act, 1955. In any case, this court cannot grant a decree on the ground that marriage has been irretrievably being broken down. Similarly, the marriage also cannot be dissolved on the ground that the parties have been living separately for a long time. It is noteworthy that the respondent is residing separately from the appellant on a justifiable ground as the appellant had married the younger sister of the respondent. For the aforementioned reasons, we do not find any merit in this appeal. The same fails and is hereby dismissed.