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Smt. C.K. Rathna (Asha) vs Sri. C.G. Vinay on 20 December, 2018

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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.7461/2016(FC)

BETWEEN:

SMT.C.K.RATHNA (ASHA)
W/O C.G.VINAY
AGED ABOUT 26 YEARS
R/O CHIKKAKORATAGERE
GULUR HOBLI
TUMAKURU TALUK- 571 201 ..APPELLANT

(BY SRI S.N.BHAT, ADVOCATE)

AND:

SRI.C.G.VINAY
S/O GARUDARANGAIAH
AGED ABOUT 29 YEARS
R/O “SRINIKETHANA”
MARALUR DINNE MAIN ROAD
VISHWANNA LAYOUT
SHANTINAGARA
TUMAKURU- 571 201 ….RESPONDENT

(SRI.RAMESH K.R., ADVOCATE)

THIS APPEAL IS FILED UNDER SECTION 19
(1) OF FAMILY COURTS ACT, AGAINST THE
JUDGMENT AND DECREE DATED: 19.09.2016
PASSED IN M.C. NO. 59/2015 ON THE FILE OF
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THE PRINCIPAL JUDGE, FAMILY COURT,
TUMAKURU, ALLOWING THE PETITIONF FILED
UNDER SECTION 13 (i-a) (i-b) OF THE HINDU
MARRIAGE ACT, FOR DISSOLLUTION OF
MARRIAGE AND THE RESPONDENT THEREIN IS
NOT ENTITLED FOR MAINTENANCE OF
PERMANENT ALLMONY FROM THE PETITIONER.

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

The appellant/wife has filed this appeal

under Section 28(1) of the Hindu Marriage Act,

1955 (hereinafter referred to as ‘the Act” for short).

She is aggrieved by the judgment and decree dated

19.09.2016 passed by the Principal Judge, Family

Court at Tumakuru in M.C.No.59/2015 under

Section 13(1)(i-a) (i-b) of the Act filed by the

respondent/husband seeking divorce and to

dissolve marriage which took place on 03.03.2014.

2. Brief facts of the case are that the

appellant and respondent having solemnized their

marriage at Gayathri Kalyana Mantapa,
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Tumakuru on 03.03.2014 in terms of Hindu

customs. The alleged allegations are that

appellant resided with the respondent in his house

only for a period of 6 months. Appellant abruptly

left the respondent’s house in the 1st week of

September and settled in her parents house.

Repeated requests by the respondent, appellant

did not heed. In fact, in the 2nd week of October,

respondent approached appellant in her parental

house and requested her to join him for which she

refused to join him. So also parents of the

appellant also refused to send her saying that she

is suffering from breathing problem. When things

stood thus, panchayats were conveyed to settle the

score among the appellant and respondent which

went in vain. In this background, respondent

issued a legal notice to the appellant on

05.03.2015 asking her to join him. Appellant had

given reply alleging various allegations against

respondent and his parents like appellant did not

do her household work and she was adamant.
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Further, her demand was that the respondent has

to make necessary arrangement to stay at

Bengaluru etc.

3. After receipt of appellant’s reply to notice,

respondent presented petition before the Family

Court at Tumakuru seeking divorce and to

dissolve the marriage among the respondent and

appellant. Court below proceeded to pass

judgment and decree in favour of the respondent

while allowing his petition under Section 13(1)(i-a)

(i-b) of the Act while dissolving the marriage

solemnized on 03.03.2014 between respondent

and appellant. It was also ordered that appellant

is not entitled to maintenance or permanent

alimony from the respondent. Thus, feeling

aggrieved by the judgment and decree of the Court

below dated 19.09.2016, appellant has presented

this appeal.

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4. In support of appellant’s appeal, she has

contended that mere leaving the company of the

house does not amount to any cruelty. It may be

a ground for grant of divorce under the provisions

of desertion. Therefore, reasoning of the Court

below that appellant had left the company of the

respondent which amounts to cruelty is liable to

be set-aside. It was further contended that she

was compelled to leave the matrimonial home by

the act and conduct of the respondent. In the

absence of necessary material, Court below has

erred in concluding that the appellant had left the

matrimonial home on her own without

appreciating the reasons for living the matrimonial

home. It is also contended that marriage took

place on 03.03.2014 whereas the divorce petition

was presented on 25.03.2015 on the ground of

desertion having regard to the fact that it was just

one year and few days in presenting divorce

petition from the date of marriage. Therefore,

Court below should have rejected petition at
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threshold on the score that for the purpose of

entertaining divorce petition, there must be

desertion for continuous period of 2 years.

5. Learned counsel for the appellant further

contended that as regards issue no.5 for payment

of maintenance to the appellant, has not been

dealt by the Court below with reference to the

material available. Merely appellant is a graduate

and she can get any job to earn her livelihood and

intends to shift to Bengaluru to earn her

livelihood, would not suffice in refusing to grant

payment of maintenance or permanent alimony.

6. Per contra, learned counsel for the

respondent supported the judgment and decree of

the Court below and vehemently relied on Ex.P.4 –

reply to the notice wherein appellant has

admitted various issues like leaving matrimonial

home with a demand that respondent has to make

necessary arrangements to live separately from his
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parents and to settle at Bengaluru instead of

staying at Tumakuru, since both of them are

working at Bengaluru. It was also contended that

appellant admitted that even though both of them

are working at Bengaluru, while traveling from

Tumakuru to Bengaluru they were traveling

separately by bus and train. The attitude of the

appellant in not co-operating with the respondent

and his parents are evident from her own

admission in her reply to the notice read with her

evidence – RW1. Court below has taken various

issues relating to cruelty meted out to the

respondent at the hands of the appellant in not

co-operating in the day-to-day affairs as well as

in not discharging her duties as wife and

daughter-in-law of the matrimonial home. Hence,

no interference is called for.

7. None appears for the appellant. Heard

learned counsel for the respondent.
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8. Court below framed points for

consideration which reads as under:

1. Whether the petitioner has proved that the
respondent has cruelly ill-treated him?

2. Whether the petitioner has proved that the
respondent has deserted him?

3. Whether the petitioner is entitled for
dissolution of the marriage as sought?

4. Whether the respondent is entitled for
maintenance or alimony? If so, what is the
quantum?

5. What order?

9. Respondent in support of his divorce

petition examined himself as PW1 and produced

documents marked as Exs.P.1 to P.6. Similarly,

on behalf of appellant, she has examined on her

own and RW2 – Rangamma stated to be relative of

the appellant and relied on Exs.R.1 to R.7. For

the purpose of examining whether respondent had

faced cruelty at the hands of the appellant,

evidence of PW1 read with RW1 and notice and

reply to notice – Exs.P.3 and P.4 are suffice.
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Court below has rightly appreciated that

respondent has faced cruelty at the hands of the

appellant as appellant had admitted reasons for

leaving matrimonial home that respondent and

his parents were harassing appellant at her

matrimonial home whereas the appellant with

reference to her own version stated that she used

to leave Tumakuru in the morning and go back in

the late evening after completing her job at

Bengaluru. Therefore, question of any harassment

is not supported by any corroborative evidence.

That apart, appellant’s demand is to settle at

Bengaluru with the respondent which was one of

the demand while leaving the matrimonial home.

Further, it is evident that appellant was

economically independent as she was working at

Bengaluru and earning sufficient money which

has resulted in ignoring her husband – respondent

and her in-laws at matrimonial home. The

contention of the appellant that divorce petition

ought to have been rejected at the threshold as
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appellant has not deserted the respondent for

continuous period of 2 years so as to entertain

divorce petition, is not tenable in view of

principles laid down by the later decisions wherein

statutory period of 2 years continuously leaving

separately has been diluted. Having regard to the

evidence of appellant read with reply to the notice

suffice that respondent has faced cruelty as well

as desertion by the appellant. Therefore, no

interference is called for.

10. Learned counsel for the respondent

heavily relied on the decision of the Supreme

Court in NARENDRA vs K.MEENA decided in

C.A.No.3253/2008 dated 06.10.2016 wherein

Supreme Court was pleased to appraise relating to

cruelty at Matrimonial home. Para.11 of the said

judgment which is relevant reads as under:

“The Respondent wife wanted the
Appellant to get separated from his family.

The evidence shows that the family was
virtually maintained from the income of the
Appellant husband. It is not a common
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practice or desirable culture for a Hindu son
of India to get separated from the parents
upon getting married at the instance of the
wife, especially when the son is the only
earning member in the family. A son, brought
up and given education by his parents, has a
moral and legal obligation to take care and
maintain the parents, whey they become old
and when they have either no income or
have a meager income. In India, generally
people do not subscribe to the western
thought, where, upon getting married or
attaining majority, the son gets separated
from the family. In normal circumstances, a
wife is expected to be with the family of the
husband after the marriage. She becomes
integral to and forms part of the family of the
husband and normally without any
justifiable strong reason, she would never
insist that her husband should get separated
from the family and live only with her. In the
instant case, upon appreciation of the
evidence, the trial Court came to the
conclusion that merely for monetary
considerations, the Respondent wife wanted
to get her husband separated from his
family. The averment of the Respondent was
to the effect that the income of the Appellant
was also spent for maintaining his family.
The said grievance of the Respondent is
absolutely unjustified. A son maintaining his
parents is absolutely normal in Indian
culture and ethos. There is no other reason
for which the Respondent wanted the
Appellant to be separated from the family-
the sole reason was to enjoy the income of
the Appellant. Unfortunately, the High Court
considered this to be a justifiable reason. In
the opinion of the High Court, the wife had a
legitimate expectation to see that the income
of her husband is used for her and not for
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the family members of the Respondent
husband. We do not see any reason to justify
the said view of the High Court. As stated
hereinabove, in a Hindu society, it is a pious
obligation of the son to maintain the parents.
If a wife makes an attempt to deviate from
the normal practice and normal custom of the
society, she must have some justifiable
reason for that and in this case, we do not
find any justifiable reason, except monetary
consideration of the Respondent wife. In our
opinion, normally, no husband would tolerate
this and no son would like to be separated
from his old parents and other family
members, who are also dependent upon his
income. The persistent effort of the
Respondent wife to constrain the Appellant to
be separated from the family would be
torturous for the husband and in our opinion,
the trial Court was right when it came to the
conclusion that this constitutes an act of
‘cruelty’.

11. The above factual aspects read

with the case on hand are identical like marriage,

desertion, harassment in a hindu family. In the

present case also, respondent being the only son

to his parents, he cannot leave them at Tumkaru

and settle at Bengaluru as per the wishes of the

appellant. Settling at Bengaluru may be expensive

so also when respondent has residential

accommodation at Tumakuru where his parents
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are leaving. Therefore, respondent’s contention

that it is impracticable to settle at Bengaluru for

the sake of appellant’s wishes as he has to look

after his parents so also financially he would

burdened if he settles at Bengaluru while taking

rented house and other domestic issues, these

issues have been already appraised by the Court

below. Appellant’s contention that Court below

declined to extend maintenance or permanent

alimony to the appellant, Court below has rightly

noted down the qualification and earnings of the

appellant that too at Bengaluru. She was

traveling from Tumakuru to Bengaluru on daily

basis to earn sufficient money. So also

qualification of the appellant has been taken into

consideration for the purpose of determining

whether appellant is entitled for maintenance or

permanent alimony. That apart, conduct of the

appellant is required to be taken into

consideration for the purpose of extending

maintenance/permanent alimony. As is evident
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from the records, appellant has left her

matrimonial home on her own and she is well-to-

do and earning sufficiently. Therefore, rightly

Court below has held that appellant is not entitled

to maintenance/permanent alimony.

12. In view of these facts and circumstances

read with decision of the Supreme Court in

Narendra’s case supra, appellant has not made

out a case so as to interfere with the judgment

and decree of divorce.

Accordingly, appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

Brn

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