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Mrs Sony vs Mr Praveen S on 20 December, 2018

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 20TH DAY OF DECEMBER, 2018

PRESENT

THE HON’BLE MR.JUSTICE L. NARAYANA SWAMY

AND

THE HON’BLE MR.JUSTICE P.B. BAJANTHRI

MISCELLANEOUS FIRST APPEAL NO. 8008/2012(FC)

BETWEEN:

MRS.SONY
AGED 26 YEARS
D/O CHANDRAHASA
R/AT THOTA HOUSE
RATHABEEDHI ROAD
OPP. BOYS HOSTEL KUDUPU
MANGALORE TALUK- 575 001 ..APPELLANT

(BY SRI.CYRIL PRASAD PAIR, ADVOCATE)

AND:

MR.PRAVEEN.S.
AGED 36 YEARS
S/O SOMAPPA POOJARY
R/AT BAGAMBILA SITE
NITHYANANDA NAGAR POST
DERALAKATTE VILLAGE
MANGALORE – 575 001 .. RESPONDENT

(RESPONDENT SERVED AND UNREPRESENTED)

THIS APPEAL IS FILED UNDER SECTION 19 (1) OF
THE FAMILY COURT ACT, AGAINST THE JUDGMENT
AND DECREE DATED: 20.04.2012 PASSED IN M.C.
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NO. 35/2011 (OLD NO. 53/2008) ON THE FILE OF THE
JUDGE, FAMILY COURT, D.K., MANGALORE, PARTLY
ALLOWING THE PETITION FILED UNDER SECTION 13
(1) (ia) (iii) OF HINDU MARRIAGE ACT, FOR DIVORCE.

THIS APPEAL HAVING BEEN HEARD AND
RESERVED ON 10.12.2018 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
BAJANTHRI J., DELIVERED THE FOLLOWING:

JUDGMENT

Appellant/wife of husband – Respondent has

questioned the validity of the judgment passed in

M.C.No.35/2011 (Old No. M.C.No.43/2008) on the file of the

Family Judge, D.K., Mangalore by which respondent’s

petition under Section 13(1)(i-a) and (iii) of the Hindu

Marriage, Act, 1955 (hereinafter referred to as the ”Act’ for

short) is allowed in part and marriage dated 02.02.2006 has

been dissolved by decree of divorce with effect from the date

of decree. Further, application under Section 26 of the Act is

allowed in part, child shall continue to be in the custody of

appellant/mother. Respondent/father has got visitation

rights once in a month to visit the child in the house of the

appellant by giving prior notice to the appellant.
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2. Brief facts of the case are that marriage between

appellant and respondent took place on 02.02.2006 at

Milagres Church Hall, Falnir, Mangalore as per customs

prevailing in Hindu community. Both of them resided

together as husband and wife for about 7 months. Out of

their wedlock, a female child was born on 19.02.2017. The

respondent alleged allegations against the appellant that she

is behaving abnormally, it seems mentally she was facing

certain distress as is evident from her behaviour as she was

abusing respondent in a filthy language. She was

screaming, shouting so also physically attacking the

respondent. From the date of marriage, appellant’s

behaviour was not proper as a wife towards her husband.

Respondent informed the appellant’s mother about her

behaviour for which she has stated that even prior to

marriage, she was suffering from certain mental depression

for which she was taking psychiatric treatment in KMC

Hospital, Attawar, which has compelled Respondent to file

divorce petition and it was allowed.

3. The respondent was working at Chitradurga. He

had taken appellant and his child to Chitradurga. Even at
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Chitradurga she was behaving abnormally which was

irritating to the respondent in front of his friends. She was

not cooking food and un-necessarily she was harassing the

respondent. Thus, respondent has suffered humiliation as

well as undergone mental agony, depression due to the

respondent’s attitude and behaviour. Taking these issues,

respondent issued a legal notice on 10.12.2007 for which

appellant had replied on 28.12.2007. Appellant denied the

allegations stated in the notice. On the other hand, she had

made allegations against the respondent that he is in the

habit of taking alcohol and bringing his friends to his house

during night for dinner. She has also alleged that she do not

intend to continue to stay with her husband unless and until

he changes his attitude like not bringing his friends to his

house for dinner, not consuming alcohol outside and coming

in the midnight and so also if he shifts his house from

Chitradurga to Mangalore. In that event, appellant is

prepared and willing to join the matrimonial home. She has

also sought for maintenance for her as well as to her child a

sum of Rs.5000/- per month since the petitioner is having

business and earns Rs.30,000/- per month.
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4. Respondent got examined himself as PW1 and also

got examined Dr.V K Bhat as PW2 and got marked 13

documents – Ex.P.1 to P.13. Similarly, appellant got

examined herself as RW1 and got marked 8 documents –

Exs.R.1 to R.8.

5. Arising out of the above facts and circumstances,

the Family Court framed the following points for

consideration:

1. Whether the petitioner proves that the
respondent has treated the petitioner with
cruelty?

2. Whether the petitioner proves that the
respondent has been suffering continuously
from mental disorder of such a kind and to such
an extent petitioner cannot reasonably be
expected to live with respondent?

3. Whether the petitioner is entitled for the
custody of children or visitation rights?

4. What Order?

6. The Family Court after due examination of the

records and statement of PW1, PW2 – Dr. V K Bhat and RW1

– appellant and documents produced by both the parties,

passed an order allowing the petition in part under Section

13(1)(i-a) and (iii) of the Act, consequently, order has been
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passed dissolving the marriage by decree of divorce with

effect from the date of the decree and further, custodian of

the child and visitation rights etc.

7. Feeling aggrieved by the judgment and decree of

the Family Court, D.K.,Mangalore dated 20.04.2012 in

M.C.No.35/2011, the appellant presented this appeal on the

ground that Family Court has failed to appraise the evidence

which were adduced. Family Court has come to the

conclusion that appellant was suffering from mental

disorder. Such a conclusion is without any basis.

Therefore, question of cruelty meted out to the respondent is

only with reference to hear say evidence. Frequently,

appellant was admitted to hospital to get psychiatric

treatment has been denied. The respondent’s allegations are

not supported by any admissible evidence. Thus, Family

Court has erred in allowing the petition of the respondent.

8. Per contra, learned counsel for the respondent

submitted that Family Court has taken evidence of the

Doctor – PW2 – Dr.V.K.Bhat who has clearly disclosed that

he for medical treatment to the appellant on number of
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occasions. It was also contended that appellant’s reply to

the notice wherein she has specifically stated that

respondent’s behaviour was indifferent like bringing friends

for dinner and taking alcohol and troubling appellant in the

midnight. Further, if the respondent shifts the house from

Chitradurga to Mangalore, in that event, appellant would be

joining the respondent. It was contended that for the last 13

years, respondent is in Chitradurga and he is into transport

business; he cannot live such business on the wishes of the

appellant and settle at Mangalore. The doctor’s evidence is

crystal clear that appellant is suffering from certain mental

disorder before marriage so also after marriage having regard

to her behavior. The Family Court has appraised all these

issues read with Doctor’s evidence while granting relief to the

respondent under Section 13(i-a) of the Act. Consequently

the order has been passed. No interference is called for as

each and every issue has been dealt by the Family Court in

depth.

9. Heard learned counsel for the appellant.
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10. The appellant’s contention is that respondent was

harassing her and she was not suffering from mental stress,

as contended by the Respondent Doctor. On the other

hand, behaviour of the respondent in taking alcohol and

harassing her for which she had requested the respondent

to settle at Mangalore instead of Chitradurga, these

statements do not constitute cruelty. Therefore, Family

Court has failed to appraise the contention of the appellant.

It is only a one sided version to the extent that respondent’s

version has been taken into consideration for the purpose of

granting relief to him.

11. The respondent’s allegation relating to mental

stress of the appellant is evidence from PW2 – Dr.V K Bhat

who had given treatment to her prior to marriage and

thereafter, supported by evidence of PW2 -doctor. On the

date of examination of Dr.V.K.Bhat, appellant was not

present. In fact, PW2 – Dr.V.K.Bhat has categorically stated

that he could have identified the appellant if she had

appeared on the date of doctor’s examination. The said

statement of the doctor is recorded in evidence that he had

given certain treatment to the appellant in respect of
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psychiatric issue. NO-doubt the doctor has opined that it

was a curable disease. The appellant has taken treatment

relating to psychiatric issue prior to marriage and so also

after marriage. Even then there is no change in behavior of

the appellant as is evident from the allegations made by the

respondent like when they went to honeymoon to Ooty and

after giving birth to female child and when they were at

Chitradurga for some time her behavior was abnormal.

These issues would constitute ‘cruelty’ as held by the Family

Court.

12. That apart, appellant in her reply to the notice has

admitted certain issues relating to psychiatric problems as

well as if the respondent changes his behaviour like bringing

his friends to his house, giving up taking alcohol and shifting

his house from Chitradurga to Mangalore, she will join her

husband. Family Court has taken note of the issue that

there were no corroborative evidence relating to behavior of

the respondent in harassing Appellant. Insofar as shifting of

respondent’s house from Chitradurga to Mangalore is

concerned, it was noted by the Family Court that

respondent was settled at Chitradurga for more than a
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decade. To meet appellant’s wishes, he cannot shift from

Chitradurga to Mangalore as he was into certain business.

Therefore, no interference is called for in respect of

Judgment and decree of the Family Court, D.K., Mangalore

dated 20.04.2012 in M.C.No.35/2011.

13. The appellant is entitled to maintenance or

permanent alimony. Respondent is hereby directed to pay

certain maintenance or permanent alimony by settling

dispute with Appellant. If the issue relating to maintenance

or permanent alimony is not settled, in that event, either of

the party is at liberty to make necessary application/petition

before appropriate forum.

Accordingly, appeal stands rejected.

Sd/-

JUDGE

Sd/-

JUDGE

brn

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