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Sri Ganesha @ Nagaraja vs Smt Rukminiyamma on 5 October, 2018

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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
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respondent 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

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