IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2017
PRESENT
THE HON’BLE MR. JUSTICE JAYANT PATEL
AND
THE HON’BLE MR. JUSTICE B.A.PATIL
MFA No.7803/2016 (FC)
BETWEEN:
Sri.U.Sethuraman
S/o Ulaganathan
Aged about 34 years
Resident of No.29, II Floor,
Rani Chennamma Road,
Rajiv Gandhi Nagar,
7th Sector, H.S.R. Layout,
Bengaluru – 560 068.
Presently
C/o Kumararaja,
No.18, Sri Venkateshwara PG
4th Main, Beside Aiyyappa Temple,
Madiwala Post,
Bengaluru-560 068.
…Appellant
(By Sri.Nehru P., Advocate)
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AND:
Smt.Kowsalya,
W/o U. Sethuraman,
D/o M.C.Pachaippar
Aged about 33 years,
Residing at No.29, II Floor,
Rani Chennamma Road,
Rajiv Gandhi Nagar,
7th Sector, H.S.R. Layout,
Bengaluru – 560 068.
…Respondent
This MFA is filed under Section 19(1) of Family
Courts Act, 1984, against the judgment and decree
dated 18.07.2016 passed in M.C.No.347 of 2014 on the
file of III Additional Principal Judge, Family Court,
Bengaluru, dismissing the petition filed under Section
10 of the Hindu Marriage Act, for judicial separation.
This MFA having been heard, reserved for orders
on 07.09.2017 and coming on for pronouncement of
Order this day, B.A.Patil J., delivered the following:-
ORDER
This appeal is filed by the appellant-husband
assailing the order dated 18.7.2016 passed by III
Additional Principal Judge, Family Court, Bengaluru, in
MC No.347/2014.
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2. The brief facts of the case are that; appellant-
husband and respondent-wife got married on
19.11.2010. As the appellant-husband was employed at
Toshiba, Bangalore, as a Senior Software Engineer and
was also looking after his aged father. They started
leading their matrimonial life at HSR Layout, whereas
his father was living alone in the village, when the
appellant-husband wanted to bring his father to live
along with them, respondent-wife snubbed him and told
him that if he brings his father, she will not take care.
In spite of that, he was cordial with respondent-wife.
But respondent did not co-operate with the family life
and behaved erratically and also used to abuse him.
Even the parents of the respondent informed him about
the nature and behavior and they told that she may
take some time to adjust in the matrimonial home. It is
further contended that he was confused as to whether
the respondent was having mental illness as she was
behaving strangely and some times suddenly she used
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to throw the cooking vessels and used to hit them and
not allow him to speak to his family members and
friends. One day, when he was proceedings to his office,
she insisted to talk to her sister’s husband. When he
told that it is already late, the respondent-wife scolded
him and also throw the household articles. Though her
father requested the appellant-husband to bear with
her, but she was not able to control her anger and
violent acts. It is further contended that she would be
taken to a psychiatrist at the time of her delivery. By
respecting the words of her father, he tolerated all the
tortures given by the respondent, though he lost
happiness in his life and was not in a position to
concentrate on his work. In that light, on 19.9.2011,
she was taken to her native place for delivery and when
the appellant-husband wanted to enquire about the safe
reaching of her over phone, she never used to respond
and he came to know that on 18.10.2011 she has
delivered a male baby. He immediately went along with
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his father to see the baby in the hospital. At that time,
the doctors and nurses who attended on her also
complained about the rude behavior of the respondent
and the doctor suggested to take her to a psychiatrist
for treatment. On 24.6.2012, himself along with his
sister went to respondent’s place to bring her back to
Bangalore along with child. At that time also, she
behaved erratically and started to beat them and at that
time the father of the respondent requested them to
hope that he will bring her to Bangalore.
3. It is further contended that, she was taken to
Doctor Bhaskar Rao, Neuro Surgeon during August
2012 by her parents in Salem. In spite of giving
treatment, there was no change in her behavior and her
attitude. Further, he contended that, when he contacted
the said Doctor, for the purpose of getting the details of
the investigation, the said doctor suggested that she is
suffering from illness, requires regular medication and
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get her treated at Nimhans Hospital at Bangalore.
Thereafter, she came to Bangalore during September
2012, but her behavior was not changed, as such she
was taken to Nimhans hospital, for which she became
furious and said that she is not mental and not required
any treatment and as such the treatment was not given
in the Nimhans Hospital. He further contended that she
ill-treat even newly born child and even at the first
Birthday, she created a big uproar and abused the
appellant-husband and also quarreled by shouting with
top voice. Because of the said cruelty, he took her to
Nimhans for consultation on 1.6.2013 and again on
15.6.2013. When the appellant requested the
counselors to convince her, she became arrogant and
scolded him and she did not take the proper treatment.
It is further contended that, she went to police station
and lodged a complaint and she also used to compare
the financial status of her husband with her uncle and
other relatives who are financially sound and also used
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to demand a new car and a flat. It is further contended
that Madiwala police registered a complaint against him
under Section 498A of IPC and she also filed a Crl.
Misc. Petition449/2013 seeking maintenance. She never
co-operated with the appellant. The said cruel attitude
continued and as such it became very difficult for the
appellant-husband to stay with her and she was
causing both mental and physical torture and agony
and as such he filed a petition before the Family Court
for judicial separation.
4. On service of notice, respondent-wife appeared
and the matter was referred to mediation and mediation
also failed. Thereafter, she did not appear in the Court
and has not filed any objection and contested the case.
5. In order to prove his case, the appellant-
husband got himself examined as PW1 and also got
marked Exs.P1 to P3. After hearing, the impugned order
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came to be passed. Being aggrieved by the said order,
the appellant-husband is before this Court.
6. The main contention of the learned counsel for
the appellant is that, the judgment and decree is
erroneous, arbitrary and against the principles of
natural justice. Though there is a material to show that
the appellant has been treated with cruelty by the
respondent-wife and even though the testimony of the
appellant has not been challenged, the trial Court
without considering the said aspect has wrongly
dismissed the petition. He further contended that there
is sufficient evidence to show that the respondent is
suffering from mental illness and all the documents
were in the custody of father of the respondent. The trial
Court by holding that no documents have been
produced has wrongly dismissed the petition. On these
grounds he prayed for allowing the appeal.
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7. The main contention of the learned counsel for
the appellant is that, though the testimony of the
appellant husband has not been challenged and the
documents were in the custody of father of the
respondent-wife, the trial Court erroneously dismissed
the petition.
8. On perusal of the record by us, though the
appellant-husband has made allegation against the
respondent-wife that she is suffering from mental illness
and having arrogant behavior and she has been taken
to Dr.Bhaskar, a Neuro Surgeon in Salem and also she
has been treated in the Nimhans hospital at Bangalore
with a Psychiatrist, he has not produced any piece of
evidence to substantiate his contentions. Even he has
not examined the parents of the respondent-wife nor
neighbours or any other witness. It is well established
principles of the law that though the testimony of the
appellant has not been challenged by the respondent,
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the appellant has to substantiate his case by producing
corroborative evidence, that too in a matrimonial case.
9. Merely because the evidence of the appellant
has not been challenged, without there being any proof
appeal cannot be allowed. When there is no evidence to
substantiate the case of the appellant, we are not
satisfied with the contentions raised by the learned
counsel for the appellant. Under such circumstances,
we are of the considered opinion that it is not a fit case
to interfere with the order of the lower Court.
Hence, appeal is dismissed being devoid of merits.
In view of dismissal of the appeal, IA No.1/2016
for condonation of delay does not survive for
consideration. Hence, the same stands disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
ap