Karnataka High Court
Smt Radha vs S Gangaiah on 11 November, 2013
Bench: K.L.Manjunath, A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11th DAY OF NOVEMBER 2013
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
M.F.A. NO.3474/2012(MC)
BETWEEN :
Smt.Radha,
W/o.Gangaiah,
Aged about 47 years,
Residing at No.346,
Ring Road, IDMS Layout,
Sira Gate, Tumkur - 6. ...APPELLANT
(By Sri.K.Hanumantharayappa, Adv.)
AND :
S.Gangaiah,
S/o.Late Siddanarasaiah,
Aged 59 years,
Residing at No.530,
IC III and IVth Block,
Basaveshwaranagar,
Bangalore - 560 079. ...RESPONDENT
(By Sri.P.Manohar, Adv.)
. . . .
This M.F.A. is filed under Section 19(1) of the
Family Courts Act, against the Judgment and Decree
dated 07.04.2011 passed in M.C.No.2533/2008 on the
file of the 4th Additional Principal Judge, Family Court,
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Bangaloe allowing the petition filed under Section 13(i-
a) and (i-b) of Hindu Marriage Act, for divorce.
This M.F.A having been heard and reserved for
judgment, coming on for pronouncement of orders, this
day, A.V.Chandrashekara. J., delivered the following:
JUDGMENT
Being aggrieved by the order of dissolution of her marriage with the respondent herein, the respondent in M.C.No. 2533/2008, which was pending on the file of the IV Additional Family Court, Bangalore has approached this Court. Respondent Gangaiah was the petitioner in the said case M.C.No.2533/2008 seeking divorce on the ground of cruelty and desertion. The learned IV Additional Judge of the Family Court, Bangalore has allowed the petition on 07.04.2011 by dissolving the marriage of the parties herein, which had been solemnized on 12.09.1984. It is this final order passed under Section 13(1a) & (1b) of the Hindu Marriage Act, which is called in question on various facts set out in the appeal memo.
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2. Parties would be referred to as per their ranking in the Family Court. Sri.Gangaiah will be referred to as the petitioner and the appellant herein Smt.Radha will be referred to as the respondent.
3. The petitioner's marriage with the respondent was solemnized on 12.09.1984 according to the customs of the parties. On 01.05.1995, respondent gave birth to a female child and she is named as M.G.Deepa. After few years of the marriage, respondent - Radha started behaving abnormal and used to abuse him without any basis, as set out in the averment found in the petition filed before the Trial Court. According to the petitioner, respondent used to leave the matrimonial house without any valid reason and ultimately left the matrimonial house once for all on 15.10.2000. According to the petitioner, he was unnecessarily involved in a Criminal case on a complaint lodged against him. He was working as an official in Bangalore Development Authority and on some allegations, a criminal case was lodged and respondent was also -4- responsible for misguiding him, is the allegation. Two daughters of the sister of the petitioner were living with him and he assisted them in completing their education and at the same time, he was assisting his daughter Deepa also. His daughter M.G.Deepa was under the constant influence of the respondent and she used to take her minor daughter to Tumkur and Shimoga without informing him and according to him he allowed her brother to be in the company of M.G.Deepa and as a result of the same, her daughter M.G.Deepa became pregnant even before attaining majority and this was objected to by him. According to him, the marriage of M.G.Deepa was solemnized with her brother by the respondent and she never bothered to enquire about his health and walked out of his life moreso when he was under suspension on serious criminal charges. It is his allegation that the respondent and her father gave a representation on 19.08.2008 to Bangalore Development Authority requesting to revoke the order of suspension and this was done without his knowledge -5- and it is stated to have been done with an ulterior motive to harass the petitioner.
4. Respondent chose to appear before the Trial Court and filed detailed objections denying all the material allegations. The allegation that she used to leave the house of the petitioner without any reason and that she was ill-treating him and that she used to abuse him without any reason has been specifically denied. According to her, the petitioner was involved in a criminal case bearing Cr. No.418/1995 for creating certain documents of BDA. As a result of serious allegations, BDA did not take him back to duty and was not taken even after the completion of Departmental Enquiry. In order to set right the family, she thought of assisting him by making a representation and this has been misinterpreted by the petitioner. The allegation that she misguided her daughter M.G.Deepa and two daughters of his sister is also specifically denied. According to her, marriage of Deepa was solemnized by her in consultation with the petitioner and the allegation of allowing Deepa to become pregnant during -6- minority is specifically denied. On the other hand, she has alleged that the petitioner himself arranged for the marriage of the two minor children of his sister at Bhadrachal on 19.05.1993 moreso violating the provisions of the Marriage Restriction Act. Under these circumstances, a complaint had to be lodged against him in order to stop the ongoing marriage of the minors. According to her, her father took all steps to make the life of the two children of her sister happy and this was done on the strength of the Will executed by Smt.Sharadamma.
5. In view of the bad habits of the petitioner and his suspension on severe charges, she had to make suitable arrangement for upbringing her daughter M.G.Deepa. According to her, the petitioner himself sent her through his brother Devaraj and his relative Krishnappa to her father's house assuring that he would get them back when the financial position would improve. It is her case that she never quarreled with him at any point of time and she never deserted him. After sending her and her daughter, he fell into bad -7- habits and started living in the bad company of bad people and women and had even gone to the extent of threatening her that he would commit suicide, if she returned along with her daughter. Therefore, she thought of not giving any room to cause any injury to her husband's life and hence started living in her parents house at Tumkur. She was ready and willing to join and live with him and give him due protection and due care. In view of the bad habits of the petitioner and his inability to maintain them, she had to take shelter in her parents' home. She was talking to the petitioner whenever he used to attend functions in the house of their relatives. According to her, if the petitioner has undergone any hardship or difficulty, it is purely on account of his own conduct and she is not responsible in any way. According to her, the petitioner wants divorce with a bad intention and he is avoiding from taking her back. Hence, she has prayed for dismissal of the petition.
6. In support of his case, petitioner has been examined as P.W.1 and Devaraj has been examined as -8- P.W.2. Three exhibits have been marked on his behalf. Respondent Radha is examined as D.W.1 and three witnesses have been examined on her behalf. After hearing the arguments of the learned counsels appearing for the parties, the learned Judge has framed the following points in Kannada, which has been translated:
1. Whether the petitioner proves that he was treated with cruelty by the respondent?
2. Whether the petitioner proves that he and the respondent have been living separately from the past two years?
3. Whether the petitioner is entitled for the relief?
4. What order?
7. Many decisions have been citied before the learned Judge. Ultimately, the learned Judge has answered the points 1 to 3 in the affirmative and consequently allowed the petition by granting the relief of dissolution of marriage as sought for by a considered order dated 07.04.2011. While doing so, the learned -9- Judge has taken up points 1 and 2 together for common discussion. It is this final order, which is called in question on various grounds as set out in the appeal memo.
8. It is contended that the Trial Court has erred in holding that the appellant has deserted the respondent and has been living for more than two years without any valid reason. It is contended that she had to take shelter in the house of her parents because of the arrest of the petitioner by the police by his involving in fabrication of important documents in BDA and he was under suspension for more than nine years. The learned Judge is stated to have not given any cogent reasons for disbelieving the evidence of the respondent. The Trial Court is stated to have based its finding on the self- serving evidence of the petitioner, which is stated to be not supported by any acceptable evidence. It is further contended that granting of divorce either on the ground of cruelty or on the ground of desertion is an exception to the general rule and that in the present case, marriage has been dissolved on vague and general
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allegations. It is contended that no specific instances of cruelty as held in case of Dastane V/s. Dastane reported in AIR 1974 SC 1534 have been made out. According to the learned counsel appearing for the respondent - appellant, the evidence placed on record has not been critically examined in right perspective and as a result of the same, grave injustice has been caused to the respondent by granting the relief of dissolution of the marriage.
9. We have heard the learned counsel appearing for the parties at length and we have gone through the records. After going through the records, the following points would arise for our consideration:
(1) Whether the learned Judge of the Family Court is justified in taking points 1 and 2 together for common discussion relating to the aspect of cruelty and desertion?
(2) Whether acceptable evidence has been placed on record in proof of the alleged cruelty and desertion?
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(3) Whether acceptable evidence is adduced in regard to the allegation of desertion of the petitioner by the respondent - wife? (4) Whether interference is called for by this Court and if so for what extent?
Point No.1
10. Admittedly, petition came to be filed before the Trial Court seeking the relief of divorce based on the allegations of cruelty and desertion. The evidence required for seeking the relief of divorce on the basis of cruelty are different from the evidence required for seeking divorce on the basis of desertion. Such being the case, it was not right on the part of the learned Judge to club both these points and take up for common discussion. Points 1 and 2 so framed by the learned Judge are neither interlinked nor do overlap. No reasons are assigned as to how those two important and critical points can be clubbed together for common discussion. Normal rule is to have separate finding on the issues framed or points framed for consideration. Therefore, the Trial Court was not justified in taking up
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points 1 and 2 together for common discussion. Hence, we answer point No.1 in the negative.
Point No.2
11. The allegation of cruelty is to be strictly proved. What is alleged in the petition is that after few years of his marriage some how, she started harassing him by not adhering to his legitimate demands and used to scold him and thereby cause mental agony and physical strain. According to him, he adjusted with the respondent in the fond hope that she would rectify herself in future. In paragraph 6 of his petition, it is alleged that she used to behave in an abnormal way and many a times used to leave the matrimonial house along with the baby without informing him. According to him, she started harassing him on the ground that he was suspended from service. According to him, the conduct of the respondent was highly questionable when she allowed her brother to be with his daughter M.G.Deepa, who was a minor and thereby she became pregnant. This is also one of the strong grounds of allegation of
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cruelty. It is better to have a look into Section 13(1a) of the Hindu Marriage Act, and the same is as follows:
"13. Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a ) has, after the solemnization of the marriage, treated the petitioner with cruelty;
or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petitioner; or
(ii) ............
(iii) ............"
12. Divorce has always been an extremely rare proceeding in India. Though liberal provisions of modern legislation culminating in the Hindu Marriage Act of 1955 is performed, it is expected that a Hindu
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man and woman duly married by prescribed rites would remain united forever. It cannot be denied that Society is generally interested in maintaining the marriage bond and preserving the matrimonial state and this will be with a view to protect societal stability. Dissolution of marriage constitutes a departure from the primary principle and therefore Legislature is extremely circumspect in setting forth the grounds on which a marriage may be dissolved.
13. In the leading decision of Dr. N.G.Dastane V/s. Mrs. S.Dastane reported in AIR 1975 SC 1534, the Hon'ble Supreme Court has held as under, in paragraph 32 and the same is reproduced below:
"32...... The Court has to deal not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to got to a matrimonial Court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As
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said by Lord Reid in his speech in Gollins v. Gollins.
"In matrimonial cases, we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a prior assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.".
14. In the light of the principles enunciated by the Hon'ble Supreme Court in the light of the general principles and the matrimonial points in India, the entire evidence has to be reassessed.
15. In fact as pointed out by the Hon'ble Supreme Court in case of Shobha Rani V/s. Madhikar Reddi reported in AIR 1988 SC 121, the term cruelty has not been defined in the Hindu Marriage Act. The said word has been used in relation to or in respect of matrimonial duties or obligations. It is course of conduct of one
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spouse, which adversely affects the other spouse. It may be mental or physical, intentional or unintentional. If it is physical, it is question of degree and the same would be relevant. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other spouse. As held in Dastane's case, social status, background, custom, family tradition, caste, community upbringing, public information etc. are some of the factors to be taken into consideration while deciding as to whether the spouse was cruel to the other spouse and sufficient to grant a decree of divorce. In fact the question as to whether the respondent herein treated the petitioner with cruelty is a question only to be answered after all the facts have been taken into account.
16. Therefore, we will have to go through the impugned judgment as to whether the learned Judge has taken all the facts into consideration before coming to the conclusion that the respondent - wife treated her husband with cruelty. As already pointed out, the basis
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for seeking the relief of divorce on the ground of cruelty is found in paragraphs 5 and 6 of the main petition. For better appreciation of the facts of the case, the allegations found in paragraphs 5 and 6 are reproduced:
"5. The Petitioner submits that immediately after few years the Respondent started harassing the petitioner by not adhering to his daily necessary and legitimate demands and always used abusive words which caused great mental agony and physical strain. Considering the little child and his identity in the society, the Petitioner adjusted everything as the child was small and he did not wanted to complain against the Respondent to other relatives of the family and suffered silently.
6. The Respondent used to behave in an abnormal way and many a times used to leave the matrimonial home along with the little baby girl without informing the petitioner and stay in Shimoga and Tumkur which caused great mental agony and physical strain for the Petitioner even for his basic necessities."
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17. In the examination-in-chief, petitioner has virtually reiterated the same in paragraphs 4 and 5. Evidence includes cross-examination. Petitioner has been cross-examined at length by the learned counsel for the respondent in the Trial Court. M.G.Deepa was with the respondent through out. It was the respondent, who was taking care of her, ever since the petitioner was suspended from his service in BDA. He was not looking after the respondent. He has even gone to the extent of stating that the representation submitted by the respondent Smt.Radha to the Commissioner of BDA requesting to revoke the suspension of the petitioner is in the nature of cruelty. It is to be seen that the petitioner was suspended on grave charges of fabricating records. He was under
suspension for more than 13 years and was not reinstated even after the conclusion of Criminal case and Departmental enquiry. The respondent's father prepared a representation requesting the authorities at BDA to revoke the suspension and take the petitioner on duty. This fact is not disputed. We do not
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understand as to how this representation given by the respondent Smt.Radha could cause agony to him. On the other hand, it would disclose that the respondent wanted to continue the marital life and live with the petitioner. Sri.H.D. Rangappa, father of the respondent has also been examined and he has spoken to that effect and in fact petitioner also came to Aruna Nursing Home where his daughter Deepa gave birth to a child on 23.08.2009. On that day, the father of the respondent gave him a copy of the representation in order to handover the same to the BDA Authorities. Petitioner refused to receive the same and therefore, the same was submitted to BDA.
18. One more ground of cruelty imputed to the respondent is that she allowed her daughter to move about with her brother Raghupathy and as a result of the same, she became pregnant. No mother will allow her grown up daughter to become pregnant without marriage. Somehow, this unfortunate incident happened and as a mother she took all steps to perform her marriage with her brother in order to save the
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prestige of the family. She had even consulted the petitioner, but he did not evince any interest. On the other hand, petitioner's own brother, who is examined as P.W.2 has deposed that all steps were taken by him also to perform her marriage by reserving a Choultry at Chickpet in Tumkur.
19. As a dutiful father, it was his duty to have taken some steps when his own daughter's marriage had to be performed. Having not taken any steps, it is untenable to make allegations against his wife imputing that she had allowed her brother to move about with her and be a cause for pregnancy during minority. On the other hand, the evidence produced would disclose that the petitioner himself had made arrangements for the marriage of the two minor daughters of his sister Late Sharadamma. The father of the respondent took steps to avoid the same by filing complaint and consequently, the marriages were stopped. This would go to show that the very petitioner wanted to flout the mandatory provisions of law relating to the marriages of the minors. In fact he has admitted in his evidence as
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found in page 7 that the respondent's father had brought an injunction order relating to the marriage of two minor girls of his sister. If really the respondent wanted to treat him with cruelty, she would never had requested the BDA in writing to get his suspension revoked and for consequential resumption to duty. As discussed earlier, there is absolutely no evidence in regard to the ill-treatment meted out to him and abusive language used by the respondent. On the other hand, the evidence of P.W.2 would disclose that he had accompanied the respondent to her father's house on the request of his brother i.e., the petitioner.
20. Petitioner had a house in Shankarmutt area of Bangalore city and a garden land in Bellary village. She has admitted in her evidence that the petitioner does not have any house of his own for residing. So this would go to show that the petitioner has alienated all his property. Though he has deposed in his examination-in-chief that the respondent acted inimically towards him on the advice of certain people, he has feigned ignorance about the names of certain
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persons or their identity. This in fact discloses that the allegation that respondent was ill-treating him does not stand to reasoning.
21. Admittedly, parties have been living separately from 25.10.2000 but the petition has been filed in the year 2008 on 20.09.2008. This also speaks in volumes against the petitioner in regard to the allegation of cruelty. The allegation of cruelty does not stand to reasoning moreso when the petition for divorce came to be filed almost eight (8) years after the respondent - wife allegedly left the matrimonial house on 15.10.2000 once for all. In fact the entire evidence relating to cruelty should have been tested on this touchstone.
22. What is vehemently argued by the learned counsel for the respondent herein is that wife having made serious allegation of forgery and concoction of documents against her husband, it was incumbent upon her to prove such allegation failing which such unsubstantiated serious allegation itself will be a strong ground for granting divorce. In this regard, he has
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relied upon the decision reported in AIR 2007 SC 1426 (Maya Devi V/s. Jagadish. It is true that wife as R.W.1 has not spoken anything against her husband in her oral evidence in regard to the alleged forgery of documents of BDA and being in the company of some women.
23. While submitting the arguments, the learned counsel for the respondent herein has submitted a Xerox copy of the Judgment passed by the learned I Additional ACMM, Bangalore in C.C. No.2049/2000 relating to the launching of a criminal case for offences punishable under Sections 467, 468, 472, 475 and 420 of IPC read with Section 34 of IPC. Of course he has been acquitted in the said case on 21.05.2011. It is not an hounourable acquittal. He has been acquitted only on the ground of insufficiency of evidence and charges being not proved beyond reasonable doubt. When serious allegations were made against his and investigation was conducted culminating in filing a charge sheet, her apprehension of involvement of her husband in serious offence cannot be considered as ill
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founded. We cannot forget the way in which this appellant was treated by the rejspondent hereinin sending her and Deepa to Tumkur in the year 2000 escorted by his brother. Thereafter, he never took her back. He even sold all his properties and became shelterless and even tried to perform the marriage of two minor daughters of his deceased sister. Apart from this, he has utterly failed to prove the allegation of cruelty as spelt out in his main petition. A comparative and critical analysis of the evidence of both the parties would disclose that petitioner is in fact guilty of cruelty. Thus, the decision relied upon is clearly distinguishable on facts and hence, not applicable to the facts of this case.
24. The learned Judge has not considered this relevant and material aspect. The decree for divorce has been granted on the ground that the petitioner is not ready to take back the respondent to his matrimonial home. We are unable to understand as to how such a decree could be passed for granting the divorce either on the ground of cruelty or on the ground of divorce.
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Instead of critically examining and evaluating the evidence of the petitioner, who has approached the Court for the extraordinary relief of divorce, the learned Judge has blown out of proportion of some of the inconsistencies found in the evidence with regard to the respondent. Suffice to state that there is absolutely no acceptable evidence in regard to the cruelty stated to have been meted out to him and on this ground, cruelty is not susceptible or on facts.
Point No.3
25. Point No.3 relates to decree of divorce sought on the ground of desertion. The Hon'ble Supreme Court in case of Lachman Uttamchand Kirpalani V/s. Meena reported in AIR 1964 SC 40 while explaining the concept of `desertion', has held that the essence of desertion is the intentional permanent forsaking and abandonment of one spouse by the other without the consent of the other and without reasonable cause. In order to prove the allegation of desertion two essential conditions will have to be satisfied. They are (1) factum of separation and (2) the intention of bringing
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cohabitation permanently to an end. The Hon'ble Supreme Court in case of Bipinchandra Jaisinghbhai Shah V/s. Prabhavati reported in AIR 1957 SC 176 has held that if a spouse abandons the other in a state of anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. Mere living away from the spouse does not amount to desertion. Intention not to revert back to the matrimonial home is the gist of the concept of desertion. As held in L.U.Kirpalani's case desertion is not to be tested by merely ascertaining which spouse left the matrimonial home first. If one spouse is forced by the conduct of the other to leave the home, it may be that the other spouse, who is responsible for driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife and the case of a man, who compels his wife by his conduct to leave him. It is the same intention to leave him.
26. Insofar as the burden of proving the allegation of desertion is concerned, the Hon'ble Supreme Court in
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case of Lachman Uttamchand Kirpalani V/s. Meena reported in AIR 1964 SC 40 has held that the party setting up the plea of desertion has to establish the same, having been given reasonable time, to the satisfaction of the Court.
27. Therefore, in the present case, we will have to see as to whether the respondent is justified in living in her father's house from the year 2000. There is a just cause for her living in her father's house at Tumkur. The evidence of P.W.2 would disclose that the respondent was sent by the petitioner to Tumkur and P.W.2 had accompanied her and he had taken her articles also. The petitioner did not make any attempt to get her back even though she lived there. On the other hand, he got a notice issued on 29.08.2008 stating that he would file a petition for divorce on the ground of deserting him for eight years. The contents of Ex.P2, copies of the legal notices got issued by him shows that as a dutiful husband it was incumbent upon him to have taken all steps to get the respondent back to live with her. On the other hand, the circumstances
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would disclose that he had been suspended on serious allegations from the BDA and he was under suspension for 13 years. The house in which he was living was alienated and in the meanwhile, he did not take any interest in the marriage of his daughter because of the unfortunate incident. But however, he has gone to the extent of imputing serious allegations on his own wife, stating that she was responsible for the untimely pregnancy of his minor daughter. The Trial Court is more persuaded by the factum of respondent living separately from the petitioner for years. The evidence placed on record speaks in volumes that the petitioner is responsible for the respondent to live away from him. On the other hand, the respondent had never intended to break the matrimonial alliance. Whenever the petitioner used to attend for some functions in the house of relatives, she used to talk to him. In this regard, the evidence of the father of the respondent, who has been examined as R.W.4 is also relevant. This would go to show that the father of married daughter
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R.W.4 had made several efforts to reconcile them but all his efforts went futile.
28. Taking all these into consideration we are of the considered opinion that there is absolutely no evidence in regard to the aspect of desertion on which divorce is sought. The learned Judge has not at all analyzed the evidence placed on record in the light of the law laid down by the Supreme Court with regard to the concept of desertion and the burden to prove the same, by such person taking up such plea. Hence, point No.3 is negatived.
29. In view of our finding on points 1 to 3 absolute interference is called for and hence, the appeal is to be allowed and thereby decree granted for the relief of divorce both on the ground of cruelty and desertion is to be set-aside. Accordingly, point No.4 is answered in the affirmative. Taking into consideration, the facts and circumstances of case, we pass the following order:
Appeal is allowed.
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The order passed in M.C.No.2533/2008 on the file of IV Additional Family Court, Bangalore granting divorce is set-aside in its entirety. Consequently, M.C.No.2533/2008 stands dismissed.
In view of the relationship of the parties, we pass no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE SPS