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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2018
PRESENT
THE HON’BLE MR.JUSTICE A.S. BOPANNA
AND
THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL NO.4299 OF 2014 (FC)
BETWEEN:
Sri. Ganesha @ Nagaraja,
S/o. Krishnappa
Aged about 39 years,
Residing at No.415,
1st Cross, 2nd Main,
Gandhi Nagar,
Kolar-563101.
… Appellant
(By Sri. Hanumantharayappa, Advocate)
AND:
Smt. Rukminiyamma,
W/o. Ganesha @ Nagaraja,
Aged about 37 years,
Residing at No.415,
1st Cross, 2nd Main,
Gandhi Nagar,
Kolar-563101.
… Respondent
(Respondent – Served)
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This MFA is filed under Section 19(1) of Family Courts
Act, against the judgment and decree dated 20.03.2014
passed in M.C.No.113/2013 on the file of the Principal
Judge, Family Court, Kolar, dismissing the petition filed
under Section 13(1) (ia) (ib) of Hindu Marriage Act, for
dissolution of marriage.
This MFA coming on for admission, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
The appellant instituted a proceeding,
M.C.No.113/2013 before the Family Court, Kolar for
dissolution of his marriage with respondent on the grounds
of cruelty and desertion. The Family Court, by its
judgment dated 20.03.2014 dismissed the petition. Hence
this appeal.
2. The admitted facts are that the marriage between
the appellant and the respondent took place on 09.02.1996
and they begot two children. The allegations made by the
appellant i.e., the husband are that his wife, 5 years after
the marriage, developed illicit intimacy with one Shankar,
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and she did not discontinue her relationship with him
inspite of being advised, and instead she started ill-treating
him and threatened him that he should not interfere in her
personal affairs. She also made a complaint to police
against him and his mother; they faced trial in
C.C.No.45/2010, which ended in their acquittal.
Ultimately the respondent, left his company; the
panchayats held thereafter for their reunion did not
fructify. He stated that they had been living separately for
more than two years since prior to filing of divorce petition.
3. The respondent filed her statement of objections,
denied the allegations made against her and pleaded
specifically that ten years after the marriage, her husband
started ill-treating her by suspecting her fidelity; he
neglected her and children’s welfare. She alleged that her
husband developed illicit relationship with a woman by
name Tulasidevi and that he married her in the Office of
Sub-Registrar, Kolar on 26.11.2009. Therefore she filed a
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petition, Crl.Misc.312/2013 seeking maintenance. He did
not pay maintenance to her and therefore she started
working as a coolie to sustain herself. She also alleged that
her husband wanted to settle with his second wife and for
that reason, he resorted to seeking divorce by making false
allegations.
4. During trial, the appellant examined himself as
PW-1 and also examined his mother as PW-2 for
substantiating his case. He produced one document
marked Ex.P.1. The respondent did not adduce oral
evidence, but while PW-1 was being cross-examined, she
got confronted to him a document marked Ex.R.1.
5. The learned trial court judge disbelieved the
evidence of the appellant and dismissed his petition. The
learned judge has ascribed reasons that though the petition
for divorce is made in the background of cruelty and
desertion, the thrust is on adultery by the wife and this
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has not been proved. It is observed by the trial court that
there is no consistency in the evidence of PW1 and PW2 in
this regard; since doubting the fidelity of a woman touches
her honour and dignity, the appellant, having failed to
prove his case, has rendered himself guilty of cruelly
treating his wife.
6. Though the trial court has opined that the
respondent too has not been able to prove the allegations of
dowry harassment and that she wants to prove her
husband’s second marriage by producing a spurious
document, it finds probability in appellant’s having
relationship with Tulasidevi since he and his mother did
not deny that aspect when they tendered evidence and on
the assumption that respondent would not have made
unnecessary allegation against her husband.
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7. We have heard the counsel for appellant.
Respondent has remained un-represented even though
notice was served on her.
8. The learned counsel for appellant raised grounds
that the trial court should not have disbelieved the evidence
of PW-1 and PW-2. Close scrutiny of their evidence
discloses that the respondent had relationship with one
Shankar, and when this was objected to by the appellant,
she cruelly treated him and lodged complaint against him
and his mother by making false allegations that they
harassed her for dowry. This case ended in trial. Therefore
the trial court should have held that the appellant was
subjected to cruelty. Another point he argued was about
contradictory finding given by the trial court with regard to
specific stand of the respondent as regards appellants’ illicit
relationship with one Tulasidevi. He argued that although
it is held that respondent, having not adduced evidence
from her side, has failed to prove the specific defence taken
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by her that her husband has relationship with one
Tulasidevi, giving a contrary finding that appellant might
have had relationship with Tulasidevi as he and his mother
have not denied it, and that a complaint had also been
made against Tulasidevi by the respondent, would
probabalize the appellant’s extra marital relationship is
erroneous. Therefore he argued that the appellant has
made out a case for interference in this appeal.
9. We have perused the records and considered the
arguments of the learned counsel. We too find that the
appellant has founded the ground for dissolution of
marriage mainly on the premise of adultery by his wife
although he has taken the grounds of desertion and
cruelty. It is seldom possible to provide legal proof for
adultery though sometimes it is a fact. In this case, as has
been held by the trial court, evidence given by PW-1 and
PW-2 is not consistent. PW-2 has spoken about certain
aspects that PW-1 does not speak. Therefore it may not be
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possible to accept the case of the appellant that his wife
had developed intimacy with one Shankar and therefore his
further allegation that he was subjected to cruelty by the
respondent when he took objection for her conduct should
be held to be not proved.
10. So far as the ground of desertion is concerned,
the respondents seeks justification to live separately from
appellant giving the reason that her husband developed
relationship with Tulasidevi and that he married her later.
There is no dispute that they are living separately for more
than two years; if the respondent has a good cause for
parting with company of appellant, divorce on the ground of
desertion is not available. Here in this case, the
respondent has failed to adduce evidence from her side,
and all that she has done is confronting a document Ex.R.1
to PW-1 while he was under cross examination. The reason
given by the trial court for not believing the respondent’s
contention is not erroneous, but finding probability in the
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respondent’s defence ascribing a reason that PW-1 and PW-
2 have not denied the second marriage, does not stand to
reason. Such a finding contradicts the earlier finding and
hence it cannot be accepted. Therefore what is to be held is
that the respondent cannot seek justification to live away
from the appellant. Consequently it can be held that the
ground of desertion stands established, and to this extent
judgment of trial court needs to be interfered with.
11. From the above discussion, we arrive at a
conclusion that appeal needs to be allowed partly and
marriage dissolved on the ground of desertion. We also
find that liberty can be reserved for the respondent to claim
maintenance or alimony by instituting separate
proceedings. Hence the following order:
i. MFA.No. 4229/2014 is partly allowed. The
marriage between the appellant and the
10respondent is dissolved on the ground of
desertion.
ii. The judgment of the Family Court dismissing
the petition filed under the ground of cruelty
is affirmed.
iii. There is no order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
sd
