Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 494 (KAR)

T. Roopa @ Meenakshi v. Manjunatha A. B.

2023-03-23

ALOK ARADHE, VIJAYKUMAR A.PATIL

body2023
JUDGMENT/ORDER Vijaykumar A. Patil J. - This appeal under Section 19(1) of the Family Courts Act, 1984, has been filed against the judgment and decree dated 26.02.2016 passed in M.C.No.125/2015 by the Judge, Family Court, Davanagere, by which the petition filed by the appellant/wife seeking decree of divorce, was dismissed. 2. Brief facts giving rise to filing of this appeal are that the marriage of appellant and respondent was solemnized on 06.05.2012 as per the Hindu customs and traditions at Sri Taralabalu Brihanmath, Sirigere, Chitradurga. Out of the wedlock a female child was born. It is averred that the respondent has caused physical and mental harassment to the appellant. It is further averred that on 24.05.2015, the respondent had assaulted the appellant and caused physical and mental cruelty on the appellant. It is also averred that the respondent used to insist for transfer of family properties of the appellant in his name. It is pleaded that the respondent has not changed his attitude despite advise of the elders, the act of the respondent has caused cruelty and the respondent has deserted the appellant without any reason. 3. The respondent has entered appearance before the Family Court and filed the statement of objections. The respondent has admitted the relationship between the parties and the birth of the female child, however, he denies the allegation of physical, mental cruelty, desertion and sought to dismiss the petition. 4. The Family Court recorded the evidence. The appellant examined herself as PW.1 and another witness as PW.2 and marked Exs.P1 to P2. The respondent examined himself as RW.1 and another witness as RW.2. The Family Court based on the evidence adduced by the parties vide judgment dated 26.02.2016 inter alia held that the petitioner has failed to prove the ground of cruelty and desertion. Accordingly the petition was dismissed the petition In the aforesaid factual matrix the present appeal has been filed. 5. Learned counsel for the appellant submits that there is no dispute with regard to the relationship between the parties and the birth of the child. It is submitted that the parties are residing separately for more than eight years. It is further submitted that the respondent was in the habit of quarreling with the appellant and on 24.05.2015, the respondent assaulted the appellant and threatened her with dire consequences. It is submitted that the parties are residing separately for more than eight years. It is further submitted that the respondent was in the habit of quarreling with the appellant and on 24.05.2015, the respondent assaulted the appellant and threatened her with dire consequences. It is also submitted that due to the harassment, the father of the appellant has passed away as the conduct of the respondent was intolerable. It is submitted that the Family Court has not considered the evidence on record in its proper prospective and has given incorrect finding, which has resulted in dismissal of the petition. 6. Learned counsel for the appellant relies on the decision of the Hon'ble Supreme Court in JOYDEEP MAJUMDAR VS. BHARTI JAISWAL MAJUMDAR AIR 2021 SC 1165 and RANI NARASIMHA SASTRY VS. RANI SUNEELA RANI AIR ONLINE 2019 SC 2063. 7. Per contra learned counsel for the respondent supports the judgment of the Family Court and contends that it is the appellant who has voluntarily left the matrimonial home without any reason. It is submitted that the respondent has not caused any physical or mental cruelty as alleged by the appellant and sought dismissal of the appeal. 8. We have heard learned counsel for the appellant and the respondent and perused the material on record. The parties have not disputed the relationship and birth of the female child. The case of the appellant is that the respondent has caused physical and mental cruelty during her stay in the matrimonial home and on 24.05.2015 at about 8.00 p.m. the respondent has assaulted and threatened the appellant with dire consequences. The allegations made in the petition are vague. Except for a specific instance of 24.05.2015, no other instances are pleaded nor proved. Insofar as the alleged assault and threat on 24.05.2015 by the respondent it is only a self serving statement of the appellant. The appellant has neither adduced any independent witnesses, who have witnessed the said incident, nor has given any justification for not filing the police complaint against the respondent. The appellant has deposed that the respondent used to insist for transfer of family properties of wife to his name which was not acceded to, was the cause for cruelty. The appellant has neither adduced any independent witnesses, who have witnessed the said incident, nor has given any justification for not filing the police complaint against the respondent. The appellant has deposed that the respondent used to insist for transfer of family properties of wife to his name which was not acceded to, was the cause for cruelty. The respondent in his evidence has specifically denied the said allegation and in the absence of any evidence on record to substantiate the said assertion, we do not find any reason to disbelieve the finding recorded by the Family Court. The decisions in JOYDEEP MAJUMDAR and RANI NARASIMHA cited supra by the appellant has no application to facts and circumstances of the case, as the issue of cruelty is to be decided in the facts and circumstances of each case. In the absence of any cogent and acceptable evidence of cruelty on record, the decree of divorce on the ground of cruelty cannot be granted on vague averments. 9. The Family Court on meticulous appreciation of evidence on record has recorded a finding that the appellant has failed to prove the grounds for dissolution of marriage i.e., cruelty and desertion. The findings recorded by the Family Court do not suffer from any infirmity warranting interference by this Court in the present appeal. 10. For the aforementioned reasons, we do not find any merit in this appeal. The same fails and is hereby dismissed. No order as to costs.