Sri U Sethuraman vs Smt Kowsalya on 15 September, 2017

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 15TH DAY OF SEPTEMBER, 2017

PRESENT

THE HON’BLE MR. JUSTICE JAYANT PATEL

AND

THE HON’BLE MR. JUSTICE B.A.PATIL

MFA No.7803/2016 (FC)

BETWEEN:

Sri.U.Sethuraman
S/o Ulaganathan
Aged about 34 years
Resident of No.29, II Floor,
Rani Chennamma Road,
Rajiv Gandhi Nagar,
7th Sector, H.S.R. Layout,
Bengaluru – 560 068.

Presently
C/o Kumararaja,
No.18, Sri Venkateshwara PG
4th Main, Beside Aiyyappa Temple,
Madiwala Post,
Bengaluru-560 068.
…Appellant
(By Sri.Nehru P., Advocate)
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AND:

Smt.Kowsalya,
W/o U. Sethuraman,
D/o M.C.Pachaippar
Aged about 33 years,
Residing at No.29, II Floor,
Rani Chennamma Road,
Rajiv Gandhi Nagar,
7th Sector, H.S.R. Layout,
Bengaluru – 560 068.
…Respondent

This MFA is filed under Section 19(1) of Family
Courts Act, 1984, against the judgment and decree
dated 18.07.2016 passed in M.C.No.347 of 2014 on the
file of III Additional Principal Judge, Family Court,
Bengaluru, dismissing the petition filed under Section
10 of the Hindu Marriage Act, for judicial separation.

This MFA having been heard, reserved for orders
on 07.09.2017 and coming on for pronouncement of
Order this day, B.A.Patil J., delivered the following:-

ORDER

This appeal is filed by the appellant-husband

assailing the order dated 18.7.2016 passed by III

Additional Principal Judge, Family Court, Bengaluru, in

MC No.347/2014.

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2. The brief facts of the case are that; appellant-

husband and respondent-wife got married on

19.11.2010. As the appellant-husband was employed at

Toshiba, Bangalore, as a Senior Software Engineer and

was also looking after his aged father. They started

leading their matrimonial life at HSR Layout, whereas

his father was living alone in the village, when the

appellant-husband wanted to bring his father to live

along with them, respondent-wife snubbed him and told

him that if he brings his father, she will not take care.

In spite of that, he was cordial with respondent-wife.

But respondent did not co-operate with the family life

and behaved erratically and also used to abuse him.

Even the parents of the respondent informed him about

the nature and behavior and they told that she may

take some time to adjust in the matrimonial home. It is

further contended that he was confused as to whether

the respondent was having mental illness as she was

behaving strangely and some times suddenly she used
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to throw the cooking vessels and used to hit them and

not allow him to speak to his family members and

friends. One day, when he was proceedings to his office,

she insisted to talk to her sister’s husband. When he

told that it is already late, the respondent-wife scolded

him and also throw the household articles. Though her

father requested the appellant-husband to bear with

her, but she was not able to control her anger and

violent acts. It is further contended that she would be

taken to a psychiatrist at the time of her delivery. By

respecting the words of her father, he tolerated all the

tortures given by the respondent, though he lost

happiness in his life and was not in a position to

concentrate on his work. In that light, on 19.9.2011,

she was taken to her native place for delivery and when

the appellant-husband wanted to enquire about the safe

reaching of her over phone, she never used to respond

and he came to know that on 18.10.2011 she has

delivered a male baby. He immediately went along with
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his father to see the baby in the hospital. At that time,

the doctors and nurses who attended on her also

complained about the rude behavior of the respondent

and the doctor suggested to take her to a psychiatrist

for treatment. On 24.6.2012, himself along with his

sister went to respondent’s place to bring her back to

Bangalore along with child. At that time also, she

behaved erratically and started to beat them and at that

time the father of the respondent requested them to

hope that he will bring her to Bangalore.

3. It is further contended that, she was taken to

Doctor Bhaskar Rao, Neuro Surgeon during August

2012 by her parents in Salem. In spite of giving

treatment, there was no change in her behavior and her

attitude. Further, he contended that, when he contacted

the said Doctor, for the purpose of getting the details of

the investigation, the said doctor suggested that she is

suffering from illness, requires regular medication and
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get her treated at Nimhans Hospital at Bangalore.

Thereafter, she came to Bangalore during September

2012, but her behavior was not changed, as such she

was taken to Nimhans hospital, for which she became

furious and said that she is not mental and not required

any treatment and as such the treatment was not given

in the Nimhans Hospital. He further contended that she

ill-treat even newly born child and even at the first

Birthday, she created a big uproar and abused the

appellant-husband and also quarreled by shouting with

top voice. Because of the said cruelty, he took her to

Nimhans for consultation on 1.6.2013 and again on

15.6.2013. When the appellant requested the

counselors to convince her, she became arrogant and

scolded him and she did not take the proper treatment.

It is further contended that, she went to police station

and lodged a complaint and she also used to compare

the financial status of her husband with her uncle and

other relatives who are financially sound and also used
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to demand a new car and a flat. It is further contended

that Madiwala police registered a complaint against him

under Section 498A of IPC and she also filed a Crl.

Misc. Petition449/2013 seeking maintenance. She never

co-operated with the appellant. The said cruel attitude

continued and as such it became very difficult for the

appellant-husband to stay with her and she was

causing both mental and physical torture and agony

and as such he filed a petition before the Family Court

for judicial separation.

4. On service of notice, respondent-wife appeared

and the matter was referred to mediation and mediation

also failed. Thereafter, she did not appear in the Court

and has not filed any objection and contested the case.

5. In order to prove his case, the appellant-

husband got himself examined as PW1 and also got

marked Exs.P1 to P3. After hearing, the impugned order
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came to be passed. Being aggrieved by the said order,

the appellant-husband is before this Court.

6. The main contention of the learned counsel for

the appellant is that, the judgment and decree is

erroneous, arbitrary and against the principles of

natural justice. Though there is a material to show that

the appellant has been treated with cruelty by the

respondent-wife and even though the testimony of the

appellant has not been challenged, the trial Court

without considering the said aspect has wrongly

dismissed the petition. He further contended that there

is sufficient evidence to show that the respondent is

suffering from mental illness and all the documents

were in the custody of father of the respondent. The trial

Court by holding that no documents have been

produced has wrongly dismissed the petition. On these

grounds he prayed for allowing the appeal.
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7. The main contention of the learned counsel for

the appellant is that, though the testimony of the

appellant husband has not been challenged and the

documents were in the custody of father of the

respondent-wife, the trial Court erroneously dismissed

the petition.

8. On perusal of the record by us, though the

appellant-husband has made allegation against the

respondent-wife that she is suffering from mental illness

and having arrogant behavior and she has been taken

to Dr.Bhaskar, a Neuro Surgeon in Salem and also she

has been treated in the Nimhans hospital at Bangalore

with a Psychiatrist, he has not produced any piece of

evidence to substantiate his contentions. Even he has

not examined the parents of the respondent-wife nor

neighbours or any other witness. It is well established

principles of the law that though the testimony of the

appellant has not been challenged by the respondent,
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the appellant has to substantiate his case by producing

corroborative evidence, that too in a matrimonial case.

9. Merely because the evidence of the appellant

has not been challenged, without there being any proof

appeal cannot be allowed. When there is no evidence to

substantiate the case of the appellant, we are not

satisfied with the contentions raised by the learned

counsel for the appellant. Under such circumstances,

we are of the considered opinion that it is not a fit case

to interfere with the order of the lower Court.

Hence, appeal is dismissed being devoid of merits.

In view of dismissal of the appeal, IA No.1/2016

for condonation of delay does not survive for

consideration. Hence, the same stands disposed of.

Sd/-

JUDGE

Sd/-

JUDGE
ap

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