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2023 DIGILAW 896 (KAR)

N. Manjunath v. Deepa

2023-07-18

ALOK ARADHE, ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr Anant Ramanath Hegde, J. - The petitioner/husband is challenging the judgment and decree dated 08.01.2018 passed in M.C.No.1940/2013 on the file of the III Additional Principal Judge, Family Court, Bengaluru. In terms of the said judgment and decree, the petition filed by the husband seeking dissolution of marriage on the ground of desertion is dismissed by the Family Court. 2. The parties to the proceedings are hereafter referred to as the husband and the wife. 3. Brief facts necessary for adjudication of the case can be summarized as under: The marriage between the parties was solemnised on 03.12.2007. A child was born to the couple on 06.09.2008. It is averred in the petition that the respondent/ wife was a divorcee before the marriage and she is a relative of the husband. After the divorce of the first marriage, marriage with the appellant was solemnised on 03.12.2007. It is further stated that the husband used to stay in the house of the father-in-law along with his wife. It is further alleged in the petition that on 12.08.2010 there was a quarrel between the husband and wife and the family members of the wife and the husband was driven out of the house and was asked not to return to the house. The husband has further stated that he has made several attempts and requested the wife to join the company of the husband, but the wife refused to join the company of the husband. Based on these facts, the husband filed a petition in the year 2013 seeking the dissolution of the marriage on the ground of desertion. 4. The petition is contested by the wife. Allegations levelled against her are denied. The wife has taken a stand that the husband left the company of the wife on 12.08.2010. She has denied the incident alleged to have taken place on 12.08.2010. The fact that she has a son born from the marriage is admitted and it is also admitted that the husband was residing with the wife and with her parents for some time. The wife has taken a stand that on 12.08.2010, the husband without there being any cause, left the house and started staying away from the wife and the minor child. It is also her contention that the husband has not taken care of the son and has prayed for the dismissal of the petition. The wife has taken a stand that on 12.08.2010, the husband without there being any cause, left the house and started staying away from the wife and the minor child. It is also her contention that the husband has not taken care of the son and has prayed for the dismissal of the petition. 5. Before the Family Court on 01.06.2015, the husband concluded his evidence and, on that day, there was no representation on behalf of the wife and the Court passed an order stating that there is no cross-examination of the husband. Thereafter, the case was posted for evidence of the wife. On 02.09.2015, the wife led her evidence and is cross-examined. Thereafter, the Family Court after hearing the parties has dismissed the petition on the premise that the desertion as alleged by the husband is not established. 6. Aggrieved by the said judgment and decree, the appellant/husband is in appeal. 7. Heard the learned counsel appearing for the appellant/husband. There is no representation on behalf of the respondent/wife. 8. Learned counsel for the appellant/husband submitted that there is no cross-examination of the evidence led by the husband and there is no specific denial to the averments in the petition relating to the desertion and these facts are overlooked by the Family Court and the Family Court has dismissed the petition on the premise that the husband has left the house on 12.08.2010 based on the statement given by the wife in her examination-in-chief. 9. It is further submitted that the cross-examination would establish the fact that there was a quarrel between the husband and the wife and her family members on 12.08.2010 and the evidence of the wife, in her cross-examination, if read in its entirety, would lead to the inevitable conclusion that the husband was driven out from the house of the wife on 12.08.2010 itself. Two years thereafter, a petition is filed seeking dissolution of the marriage on the ground of desertion. It is also his contention that the wife has not made any attempt to come back to the matrimonial home and the request made by the husband is out-rightly rejected by the wife and the conduct of the wife would clearly establish the fact that she has driven away the husband from the house to put a permanent end to the marital relationship. 10. 10. This Court has considered the contentions raised at the bar and perused the impugned judgment and decree and the evidence placed on record. 11. Since the petition is filed by the husband seeking dissolution of marriage on the ground of desertion, it is necessary to refer to the specific averments relating to the desertion in paragraphs No.7 and 9 of the petition, which reads as under: "7. On 12/08/2010 at about 7:30 p.m. the parents of the Respondent along with a neighbour, who is relative came to the house of the Petitioner started ill treating, using abusive language and started threatening with the life of the Petitioner. When the Petitioner resisted the parents of the Respondent and the said neighbour manhandled the Petitioner, took away all the belongings and threw the Petitioner out of the house. None of the documents and the photos that belonged to the marriage was given to the Petitioner. They took away all the money and sent the Petitioner out of the house bare handed. 9. When the Petitioner asked the Respondent to join the Petitioner to go elsewhere and make a living, the Respondent refused to join the Petitioner and told the Petitioner the respondent will be with her parents and not interested in joining with the petitioner. The Respondent and her parents refused to send the son with the petitioner. The respondent and her parents even now do not allow the petitioner to even see the child." 12. It is also necessary to refer to the statement of objections filed by the wife. As noticed from the statement of objections, there is hardly any specific denial relating to contentions raised in paragraphs No.7 and 9 of the petition seeking dissolution of the marriage. It is also forthcoming that the husband has reiterated the petition averments in his examination-in-chief and there is no cross-examination by the wife. No application is filed by the wife to recall the order recording that there is no cross-examination. This Court is of the view that the evidence led by the husband relating to desertion is unchallenged and the same must be accepted unless there is material to take a different view. This Court does not find any material on record to take a different view from what has been stated in paragraphs No.7 and 9 of the petition as well as from the examination in chief. 13. This Court does not find any material on record to take a different view from what has been stated in paragraphs No.7 and 9 of the petition as well as from the examination in chief. 13. In the cross-examination, the wife has fairly admitted that there was a quarrel between her and the husband and the family members. And the reading of the cross-examination of the wife would clearly indicate that the husband was driven out on 12.08.2010 itself. There is nothing on record to show that the wife has made an attempt to join the company of the husband and it is also forthcoming from the evidence that the husband has made an effort to bring back the wife and join his company and the wife has refused the request of the husband. Under these circumstances, this Court is of the view that the husband has established his plea of desertion and has made out in the petition. 14. The Family Court has given a finding that the husband left the company of the wife in the year 2010. This finding is without any basis having given an erroneous finding that the husband left the company of the wife in the year 2010, the Family Court has come to the conclusion that the mandatory period of two years mandated under section 13(1)(b) of the Hindu Marriage Act has not complied while filing the petition and accordingly rejected the petition. This Court is of the view that the finding that the husband left the company of the wife on 12.08.2010 is erroneous and is not supported by any materials. On the other hand, the materials placed on record would indicate that the husband was driven out in 2010. 15. For the aforementioned reasons, this Court is of the view that the judgment and decree passed by the Family Court are unsustainable and have to be set aside and accordingly set aside. 16. At this juncture, learned counsel for the appellant on instructions would submit that he has inherited agricultural land from his ancestors and the son is having half a share in the said property. He would further submit that the husband will not alienate the property and will ensure that the properties will go to the son. 17. Submission of the learned counsel is placed on record. 18. He would further submit that the husband will not alienate the property and will ensure that the properties will go to the son. 17. Submission of the learned counsel is placed on record. 18. It is made clear that the husband shall not alienate the property and shall ensure that the property would devolve upon the son namely Bharath. 19. Hence the following: ORDER (i) The impugned judgment and decree dated 08.01.2018 in M.C.No.1940/2013 on the file of the III Additional Principal Judge, Family Court, Bengaluru are set aside. (ii) The marriage between the parties solemnised on 03.12.2007 is dissolved by a decree of divorce. (iii) Accordingly, the appeal is allowed.