Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 900 (KAR)

N Prasad v. G Bharathi

2023-07-19

ALOK ARADHE, ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - In this appeal the husband/appellant is challenging the judgment and decree dated 25.07.2017 passed in M.C. No.40/2013 on the file of the Family Court at Bengaluru. 2. In terms of the aforementioned judgment and decree, the Family Court dismissed the husband's petition seeking dissolution of marriage under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. 3. Certain facts necessary for the adjudication of the case can be summarized as under: 4. The parties were married on 29.4.1984. The husband has stated that there was no cordial relationship between the couple and the wife used to quarrel and irritate the petitioner stating he is not good looking and not a suitable match for her. It is further stated that the wife used to harass the petitioner on one pretext or the other and the petitioner being a humble person tolerated the ill-treatment. It is further stated in the petition that in the year 2000, the wife left the matrimonial home and her whereabouts were not known till November 2012. It is further stated that in the year 2012 all of a sudden she appeared and demanded share for herself and the son in the family properties. The petitioner states that he was not made known about the birth of the son, till then. It is further stated that the respondent confined the petitioner in a room for about 20 days and thereafter the petitioner somehow managed to get away from the said place and stayed in his sister's house for few days and later he filed a complaint against the wife in Sanjaynagar Police Station. It is further stated that during this illegal confinement, he was asked to surrender the cheque book and his signature was obtained on blank cheque leaves. 5. The petitioner has further stated that ever since his wife left him, he has been staying all alone without the help and assistance of his wife. It is further stated that in the month November, 2012, respondent/wife showed him the DNA test report and asserted that son Koushik is born to the petitioner from the wedlock with the respondent. The petitioner stated that he has been subjected to humiliation on account of the DNA test conducted to ascertain the paternity of his son Koushik. It is further stated that in the month November, 2012, respondent/wife showed him the DNA test report and asserted that son Koushik is born to the petitioner from the wedlock with the respondent. The petitioner stated that he has been subjected to humiliation on account of the DNA test conducted to ascertain the paternity of his son Koushik. Based on these facts, the petitioner has sought for dissolution of the marriage on the grounds of cruelty and desertion . 6. The wife filed statement of objection and contested the petition. 7. The relationship and marriage is admitted. It is her specific stand that son was born on 25.02.1989 from the wedlock. It is contended by the wife that the husband started disputing the paternity on the ill-advice of his family members. However, it is stated that despite such baseless allegation, the wife continued to live with him hoping that things would be normal. 8. It is alleged by the wife that in October 2000, the respondent and her son were driven out of the house. It is contended by the wife that consent decree for eviction was obtained in collusion against the husband with an intention to evict the wife and the son from the house. It is further stated that the wife and the son started residing in Sheshadripuram in Bangalore after the eviction and it is further stated that the husband refused to join the wife and the son. The wife has contended that husband has abandoned the wife and the son who was just aged 11 years. It is further stated the husband has not made any arrangement for the livelihood of the respondent and his son and all the expenses of the son were borne by the wife's parents. It is further stated that after completion of his education, the son approached the father and requested him to join and live with his mother. And it is further stated that the son offered himself for DNA test to establish the paternity of the husband. And the husband also offered himself for the test. After the test, the doctor issued a certificate on 25.07.2012 which confirmed that the son Koushik is born to the appellant/husband. 9. It is further stated that the husband joined the company of the respondent and their son and started living together since July 2012. And the husband also offered himself for the test. After the test, the doctor issued a certificate on 25.07.2012 which confirmed that the son Koushik is born to the appellant/husband. 9. It is further stated that the husband joined the company of the respondent and their son and started living together since July 2012. It is further stated that one Narasimhamurthy, G. K. Srinivasaiah, Suresh and Shantha with an intention to deprive the son of the respondent the share in the family properties, ill-advised the husband to transfer the rental income derived from the family properties. It is further stated that the respondent and her son insisted the above said persons to transfer the property in the name of the husband/appellant. 10. It is further alleged that when this demand is made, the persons close to the husband asked the husband to go into hiding and lodged a false complaint against the wife alleging that the wife and the son have kidnapped the appellant. It is stated by the wife that there is no desertion on her part and no ground is made out to grant a decree for dissolution of marriage either on the ground of cruelty or desertion. 11. The parties before the Family Court in support of their case have led evidence. 12. After hearing the parties, the Family Court on appreciation of evidence on record has concluded that no case is made out to grant a decree of dissolution of marriage and accordingly dismissed the petition. 13. Being aggrieved by the aforementioned judgment and decree, the husband is in appeal. 14. Heard the learned counsel appearing for the appellant/husband. 15. It is submitted by the learned counsel that the judgment and decree in appeal are not sustainable and the Family Court has not appreciated the oral and the documentary evidence in proper perspective. It is further submitted that from the year 2000, the wife has abandoned the husband and has not joined his Company and this fact has been admitted in evidence. Thus the Family Court ought to have granted the decree for dissolution of marriage. It is also submitted that the act the wife subjecting the husband to DNA test amounts to cruelty and it is also further stated that the husband was confined to a small room for 20 days. Thus the Family Court ought to have granted the decree for dissolution of marriage. It is also submitted that the act the wife subjecting the husband to DNA test amounts to cruelty and it is also further stated that the husband was confined to a small room for 20 days. It is further urged that the wife used to often tell the husband that he is not a suitable match for her. It is submitted that such remarks along with long separation being established and acts of cruelty on the part of the wife being established, the Family Court ought to have granted a decree for dissolution of marriage. 16. The learned counsel in support of his contention would also place reliance on the following two judgments of the Supreme Court: (i) Sujata Uday Patil v. Uday Madhukar Patil reported in 2007 AIR SCW 896 (ii) Satish Stiole v. Ganga (SMT) reported in (2008)7 SCC 734 17. We have considered the contentions raised at the bar, perused the judgment and decree and also materials placed on record. 18. In paragraph 7 of the petition, the husband has stated that the wife has left his company 12 years ago in the year 2000. The petition is filed in the year 2013. In the aforementioned paragraphs, the husband has contended that the wife returned after 12 years along with his son and he was not aware that the son was born to him. It is alleged that the fact of the birth of the son is not disclosed and the wife in her statement of objection has given the date of the birth of son as 25/02/1989. This fact is not disputed by the husband in his evidence. The records would also reveal that at the instance of the son the husband in the year 2012, has undergone DNA test. It is pertinent to note that the petition is filed on 2.1.2013. Ex.R.3 is the report submitted by the doctor and that report is dated 6.6.2013. Hence it is apparent that the husband has undergone DNA test during the pendency of the proceeding. The correctness of the report though disputed by the husband, the evidence would clearly reveal that the husband himself has agreed to the DNA test for his son as the paternity of the son Koushik was doubted. Hence it is apparent that the husband has undergone DNA test during the pendency of the proceeding. The correctness of the report though disputed by the husband, the evidence would clearly reveal that the husband himself has agreed to the DNA test for his son as the paternity of the son Koushik was doubted. Since, there is no dispute over the fact that the DNA test was conducted, this Court is of the view that the husband ought to have placed materials either through cross examination of the doctor or any other material to disbelieve the report at Ex.R.3. 19. It is also relevant to note that the husband has gone to the extent of saying that he does not identify his wife and a child in the photograph in which he is also featured. This being the position, the contention in paragraph No.7 of the petition that the wife left his company in the year 2000 and appeared only in the year 2012, for the first time the husband came to know about his son in 2012 is apparently a baseless contention. 20. The evidence on record would clearly reveal that the husband has doubted the paternity of his son and this allegation is a serious allegation. For this reason, the wife has left the company of the husband in the year 2000. The said act of the wife staying away from the company of the husband along with her son, at no stretch of imagination can be construed as an act of desertion considering the baseless allegations on the character of the wife. On the other hand the very conduct of the husband suspecting the paternity of his own son, is an act of cruelty by the husband on his wife. This being the position, the Family Court has declined to accept the contention that the husband has made out a case for dissolution of marriage on the ground of cruelty and desertion. 21. The evidence on record would clearly lead to the conclusion that on account of baseless allegations levelled by the husband, the wife is constrained to stay away from the company of the husband. The husband cannot be permitted to take advantage of his own fault where he has levelled false allegations against the character of his wife by suspecting the paternity of his son. The husband cannot be permitted to take advantage of his own fault where he has levelled false allegations against the character of his wife by suspecting the paternity of his son. Section 23 of the Act, 1955, bars grant of relief to the petitioner if it is found that the petitioner is taking advantage of his or her own wrong. Since, this Court has come to the conclusion that the petitioner has levelled baseless allegations against his wife and doubted the paternity of the child, and that allegation is not established. Thus, the petitioner is not entitled to seek relief of dissolution of marriage even if he has established that the wife lived separately for long period. Such separate living does not amount to desertion within the meaning of Section 13(1)(ib) of the Act, 1955. 22. As far as the contention relating to the cruelty is concerned, this Court is of the view that the pleading and evidence led before the Court is not sufficient to hold that the wife has treated the husband with cruelty. The husband has not led any evidence of independent witnesses to substantiate his contentions relating to some instances referred to in the petition. Since, those instances have been disputed by the wife, it was incumbent upon the husband to lead evidence to establish such instances narrated in the petition. On re-appreciation of the evidence placed on record, this Court is of the view that the case for dissolution of marriage on the grounds of cruelty and desertion is not made out. 23. As far as the contention of the learned counsel for the appellant with reference to the judgments of the Apex Court referred to supra are concerned, in para.10 of the judgment in the case of SUJATA UDAY PATIL, the Apex Court has observed that while deciding the matrimonial disputes, the Court has to adopt a pragmatic approach. In the aforementioned case, by taking into consideration that the respondent in that case has married again and has a child from the second wife, the Apex Court has proceeded to grant a decree for dissolution of marriage. It is nobody's case that the parties to this proceeding has contracted a second marriage. Hence, the ratio laid down in the aforementioned case is not applicable to this case. 24. It is nobody's case that the parties to this proceeding has contracted a second marriage. Hence, the ratio laid down in the aforementioned case is not applicable to this case. 24. In the case of SATISH SITOLE supra, the Hon'ble Apex Court has granted a decree for dissolution of marriage on the premise that there is irretrievable breakdown in the marriage. From para 14 of the said judgment, it is apparent that the Apex Court granted the decree for dissolution of marriage in exercise of power under Article 142 of the Constitution of India. This being the position the ratio laid down in the aforementioned case is not applicable to the case on hand. 25. For the reasons assigned above, this Court does not find any grounds to interfere in the impugned judgment and decree. 26. Accordingly, the judgment and decree dated 25.07.2017 on the file of Family Court, Bengaluru in M.C. No.40/2013 is confirmed. 27. Appeal is dismissed.