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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 20TH DAY OF APRIL 2018
BEFORE
THE HON’BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON’BLE MR. JUSTICE S.G.PANDIT
MISCELLANEOUS FIRST APPEAL NO.101234 OF 2018 (IDA)
BETWEEN:
SHILPA @ VINODITA
W/O MILANAKUMAR BALLARI
A/A 32 YEARS, TEACHER,
R/O NIRMALA KALPAL,
SHIVAJI NAGARA,
NEAR NEW BUS STAND,
RATTIHALLI,
TQ:HIREKERUR, DIST:HAVERI.
…APPELLANT
(BY SHRI A.P. HEGDE, ADVOCATE)
AND:
MILANKUMAR S/O RAMESH BALLARI
A/A 38 YEARS, ADVOCATE,
R/O UMASHANKAR NAGAR,
RANEBENNUR, DIST:HAVERI.
… RESPONDENT
THIS APPEAL IS FILED UNDER SECTION 55(1) OF
THE DIVOCE ACT, 1869, AND SECTION 19 OF THE FAMILY
COURT ACT 1984, AGAINST THE JUDGMENT AND DECREE
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DATED 21.02.2018, PASSED IN MATRIMONIAL CASE
NO.34 OF 2015 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, RANEBENNUR,
ALLOWING THE PETITION FILED UNDER SECTION 32 OF
THE INDAN DIVORCE ACT, 1869.
*****
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 10/04/2018 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is by the wife being aggrieved by the
judgment and decree dated 21.02.2018 passed by the III
Addl. Senior Civil Judge JMFC, Ranebennur (for short,
‘the trial Court’) in MC No.34 of 2015, by which the Trial
Court has allowed the petition filed by the husband under
Section 32 of the Indian Divorce Act, 1869 (for short, ‘the
Act’), directing the wife to join the company of the
husband.
2. Brief facts of the case are that, the
appellant/respondent and petitioner both professing
Christianity, got married on 14.10.2010 as per customs
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and rituals of the Christian community. It is averred in the
petition that they led a happy married life till 10.02.2014.
From the wedlock, the appellant gave birth to a male child
on 29.09.2012 named as Yesh Aaron; by the time she
gave birth to a male child, she had completed her B.Ed.
Degree. According to the husband herein, at the instance
of the brothers and mother of the wife, she left the
matrimonial home. It is further averred in the petition that
the wife lodged a false complaint under Section 498A of
IPC against the petitioner-husband and his parents which
is numbered as CC 525 of 2014 before the Court of 2nd
Addl. JMFC, Ranebennur. Further averments of the
petition is that the appellant is earning a sum of
Rs.7,500/- per month as a teacher. Due to her behaviour,
the husband is suffering from mental cruelty. He is ready
to look after the child; without there being any reasons,
she has withdrawn from the company of the husband.
Therefore, he filed MC No.34 of 2015 under Section 32 of
the Act seeking decree of restitution of conjugal rights.
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3. The wife appeared before the Trial Court and
filed her objection denying the petition averments. It is
the case of the wife that the parents of the petitioner
started ill-treating her. She gave birth to a male child. The
husband nor his parents have come to see the child.
According to her, the husband is a rich person and she has
filed a petition seeking maintenance against the husband,
which is pending for consideration. Based on the pleadings
of the parties, the trial Court framed the following two
points for consideration and answered the same in the
affirmative:
i) Whether the petitioner proves that the
respondent had left the matrimonial home
without reasonable excuse and withdrawn
from the society of petition and refused to
join him to lead married life as alleged?
ii) Whether the petitioner is entitled for
decree of divorce on the ground of
cruelty?
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4. During the course of trial, petitioner-husband
examined himself as PW1 and produced documents as per
Exs.P1 to P3. The appellant examined herself as RW1.
The Trial Court after considering the material on record
has allowed the petition filed by the husband under Section
32 of the Act, directing the wife to join the company of the
husband. Being aggrieved by the same, the wife is before
this Court in this appeal.
5. We have heard the learned counsel for the
appellant for admission and also examined the appeal
papers.
6. The learned counsel for the appellant
submitted that the Trial Court has not properly appreciated
the material evidence on record. Further, he submitted
that the wife had to leave her matrimonial home being
unable to tolerate the cruelty. The criminal case under
Section 498A of IPC is still pending. Further, it is
contended that the husband is not providing any sufficient
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means for livelihood and he has driven her out of the
house. Further, it is also the contention of the wife that
she apprehends danger to her life in her matrimonial
home. It is also contended that the trial Court has not
properly understood the provision of Section 32 of the Act
and has erroneously allowed the petition filed by the
respondent-husband.
7. On examination of the judgment and decree
passed by the Trial Court, it is clear that the Trial Court
after consideration of the material available on record has
rightly come to the conclusion that there is no ground for
the wife to stay away from the husband and there are no
grounds to constitute mental cruelty to the wife. It is seen
from the records that the marriage between the parties is
admitted and also child born from their wedlock. Further,
it is also to be noted that the marriage has taken place on
14.10.2010 and the wife gave birth to a male child on
29.09.2012 named as Yesh Aaron. During the said period,
the wife has completed her B.Ed. course and it is to be
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noted that without the co-operation of the husband and
parents-in-law, she could not have completed her B.Ed.
Course Further, the Trial Court has recorded that the
appellant-wife has admitted that she has studied B.Sc. and
B.Ed. and she has specifically admitted that she did her
B.Ed. only after her marriage while she was residing at the
matrimonial house. It is also an admitted fact that she
was the toper of the said B.Ed. batch. She also admits
that father-in-law is an Ex-serviceman and he is a
disciplined man; the house in which they were residing
was constructed by her father-in-law and also they have
separate room in the said house. Therefore, looking into
all these facts admitted by the appellant-wife in her cross-
examination, it could be safely presumed that the wife
without there being any reason has come out of the
matrimonial home. The fact that she studied B.Ed. after
her marriage and she was the topper in the said B.Ed.
proves that she was not ill-treated in the matrimonial
home. Therefore, the contention of the appellant-wife
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cannot be sustained. It is an admitted fact that the
appellant has filed complaint under Section 498A of IPC
against her husband and her parents-in-law which is
numbered as CC 525 of 2014. The Trial Court at paras-16
and 22 of its judgment has recorded that husband could
not meet wife and son because of pending criminal case.
With regard to desertion, the Trial Court based on evidence
has recorded the finding that the wife has withdrawn the
company of the husband without any reasonable ground
and wife has voluntarily left the matrimonial home. The
said finding is proper and correct in the facts and
circumstances of the case.
8. Further, the appellant-wife has taken a
contention that the trial Court has misread the provision of
Section 32 of the Act and has wrongly held that the
defence taken by the appellant herein is not permissible in
law. Section 32 of the Act reads as under:
“32. Petition for restitution of
conjugal rights.- When either the husband or
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the wife has, without reasonable excuse,
withdrawn from the society of the other, either
wife, or husband may apply, by petition to the
District Court for restitution of conjugal rights,
and the Court, on being satisfied of the truth of
the statements made in such petition, and that
there is no legal ground why the application
should not be granted, may decree restitution of
conjugal rights accordingly.”
9. A plain reading of Section 32 of the Act is
clear that nothing other than the ground for judicial
separation can be pleaded in defence to the petition for
restitution of conjugal rights. In the defence, as recorded
by the Trial Court, the respondent has taken a contention
that the parents of the petitioner have ill-treated her both
mentally and physically; the husband has not taken care of
the wife and the child by providing proper medicines to
her; the parents of the petitioner continued to subject her
mental cruelty after her return with child from her parents
house.
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10. At para-6 of the judgment of the trial Court,
the Trial Court records the defence taken by the appellant-
wife. If the allegations made by the appellant-wife are
seen, the same are more against the parents of the
husband and not against the husband. In that view of the
matter, the finding of the Trial Court is proper and
justified. The Trial Court after consideration of the
material on record has passed a well reasoned order.
Therefore, we are of the considered view that the reasons
assigned by the Trial Court is just and proper, which does
not call for interference by this Court.
11. The appeal is dismissed.
Pending IA stands rejected.
Sd/- Sd/-
JUDGE JUDGE
JTR