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Shilpa @ Vinodita W/O Milanakumar … vs Milankumar S/O Ramesh Ballari on 20 April, 2018

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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.

– 10 –

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

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