Karnataka High Court M S Thippeswamy vs Smt N R Latha on 21 February, 2014Author: K.L.Manjunath And Malimath
IN THE HIGH COURT OF KARNATAKA AT BANGALORE ON THE 21ST DAY OF FEBRUARY 2014 BEFORE
THE HON’BLE MR.JUSTICE K.L.MANJUNATH AND
THE HON’BLE MR.JUSTICE RAVI MALIMATH MISCELLANEOUS FIRST APPEAL NO.8063 OF 2013(MC) BETWEEN:
Aged about 39 years
R/o Ramagiri Village,
Holalkere Taluk – 577 526. …APPELLANT (By Sri Shashidhara R, Advocate) AND:
Aged about 34 years
R/o Nagenahalli Village,
Chikkamagalur District – 577 228. …RESPONDENT
This MFA is filed under Section 28 of Hindu Marriage Act, against the judgment and decree dated 05.7.2011 passed in M.C.No.7/2009 on the file of the Senior Civil Judge, Holalkere, dismissing the petition filed under Order 13(A)(i)(b) of Hindu Marriage Act for dissolution of marriage.
This MFA coming on for hearing this day, Ravi Malimath J., delivered the following:- JUDGMENT
The appellant and the respondent were married on 27.08.2004 as per their customs and rituals. Six months thereafter they lived happily. They have a male child from the marriage.
2. It is the case of the appellant husband that due to difference of opinion, the respondent-wife left him and insisted that he makes a separate house for her. That the respondent-wife has filed various cases against him under Sections-498A, 323, 506, 114 of the 3
Indian Penal Code and also for offences punishable under the provisions of Domestic Violence Act. That in the said cases, even the family members of the appellant-husband have been arrayed as accused. Therefore, the acts of the wife has resulted in mental cruelty and agony to him. Under these circumstance he filed the instant petition under Section-13A(1)(b) of the Hindu Marriage Act seeking dissolution of the marriage. Vide the impugned order the same has been rejected. Hence, the present appeal.
3. There is a delay of 716 days in filing the appeal. The reasons assigned in support of the application is that huge amounts were spent on litigation and he also lost his regular income. Therefore, he pleads that the delay be condoned. However, we are of the view that the reasons assigned in the Affidavit in support of the application does not constitute sufficient cause to condone the delay. There is a delay of almost 4
2 ½ years in filing the appeal. Even the reason assigned by the appellant that he fell sick for a period of six months cannot be accepted without any material. It does not constitute sufficient ground to condone the delay.
4. However, we have also heard the counsel on the merits of the appeal. Only because cases have been filed against the appellant-husband cannot constitute a ground for cruelty. Perse he has to show that such filing of cases has resulted in cruelty to him. He has failed to establish the same. Therefore, merely filing of cases by the wife, which she is entitled under Law, would not entitle the appellant to seek a divorce. Hence, we do not find any merit to allow the appeal.
5. It is to be further noted that the petition filed before the Family Court was under Section-13A(1)(b) of the Hindu Marriage Act. The said provisions of Law is 5
misplaced. However, we have considered the appeal as if the petition has been filed under Section-13(1)(1b) of the Act. Hence, on this ground also, we are of the view that the appeal being devoid of merits is liable to be rejected.
5. Accordingly, the appeal is dismissed on the ground of delay as well as on merits. Sd/-