Karnataka High Court
Kalyankumar S/O Babasaheb Patil vs Smt. Geeta W/O Kalyankumar Patil on 11 June, 2020
Bench: S.Sujatha, Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11 T H DAY OF JUNE, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
MFA NO.101149 OF 2018(FC)
C/W
MFA NO.100784 OF 2018
IN MFA NO.101149 OF 2018
BETWEEN
SMT. GEETA W/O KALYANKUMAR PATIL
AGE: 37 YEARS, OCC: PRIVATE WORK
R/O: C/O. V.M. DESAI (ADV.),
SINDHU NIVAS, 3RD MAIN
SHIVAJI NAGAR, BELAGAVI-590001.
... APPELLANT
(BY SRI.S M KALWAD, ADVOCATE)
AND
SHRI. KALYANKUMAR S/O BABASAHEB PATIL
AGE: 44 YEARS, OCC: GOVT. WORK,
R/O: NEHRU CHOWK, GANDHINGLAJ,
TQ: CHANDGAD, DIST: KOLHAPUR,
PIN CODE: 416221.
... RESPONDENT
(BY SRI.P.S.JADHAV, ADV FOR SMT. PRAFULLA NAIK)
THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURT ACT,
AGAINST THE JUDGEMENT AND DECREE DATED:02.01.2018, PASSED
IN MATRIMONIAL CASE NO.152/2016 ON THE FILE OF THE JUDGE,
FAMILY COURT, BELAGAVI, ALLOWING THE PETITION FILED U/S.
13(1)(i-a)(i-b) OF THE HINDU MARRIAGE ACT.
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IN MFA NO.100784 OF 2018
BETWEEN
KALYANKUMAR S/O BABASAHEB PATIL
AGE 44 YEARS, OCC: VILLAGE ACCOUNTANT,
R/O: NEHRU CHOWK, GADHINGLAJ DISTRICT,
NOW SERVING AT JANGAMATTI,
TQ: CHANDGAD, DIST: KOLHAPUR.-416509
... APPELLANT
(BY SRI.P.S.JADHAV, ADV. FOR SMT.PRAFULLA S NAIK, ADV.)
AND
SMT. GEETA W/O KALYANKUMAR PATIL
AGE: 37 YEARS, OCC: HOUSEMAKER,
R/O S/O. SHRI.V.M.DESAI,
SINDHU NIVAS, 3RD MAIN,
SHIVAJI NAGAR, BELAGAVI.-590016
... RESPONDENT
(BY SRI.S.M. KALWAD, ADVOCATE)
THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURT ACT,
1984, AGAINST THE JUDGEMENT AND DECREE DATED:02.01.2018,
PASSED IN MATRIMONIAL CASE NO.152/2016 ON THE FILE OF THE
JUDGE, FAMILY COURT, BELAGAVI, ALLOWING THE PETITION FILED
U/SEC. 13(1)(i-a)(i-b) OF THE HINDU MARRIAGE ACT.
THESE APPEALS COMING ON FOR ADMISSION THI S
DAY, SHIVASHANKAR AMARANNAVAR J., DELIVERED THE
FOLLOWING:
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JUDGMENT
The Family Court Belagavi in MC No.152/2016 passed the judgment dated 02.01.2018 on the petition filed by the petitioner-husband against the respondent-wife under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act and the order reads as under:
Petition is allowed.
The marriage solemnized between the petitioner and respondent on 10.08.2009 at Mallikarjun temple Akkiwat, Hukkeri taluk, Belagavi district is dissolved forthwith.
The petitioner is directed to pay a sum of Rs.9,60,000/-(Rupees Nine lakh Sixty thousand only) to the respondent as permanent alimony within two months from the date of this order. If the said amount is not paid within two months, it will carry interest at the rate of 9% p.a.
2. For the purpose of convenience parties will be referred to henceforth with their ranks before the Trial Court.
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3. The respondent-wife has challenged the dissolution of marriage in MFA No.101149/2018.
4. The petitioner-husband has challenged the grant of permanent alimony in MFA No.100784/2018.
5. The case of the petitioner before the Court below is that the marriage between the petitioner and respondent was solemnized on 10.08.2009 and the respondent stayed in the matrimonial home only for a period of 3½ months and she left the matrimonial home on her own on 22.11.2009 and she was in the habit of going to her parents' house and she was always picking up quarrels with the petitioner and his family members. She was arrogant and used to blame the petitioner in front of the relatives and teasing the petitioner and not preparing food and serving the petitioner and his parents.
6. In the objections before the trial Court, the respondent-wife admitted the solemnization of marriage and denied that she was in the company of petitioner only 5 for a period of 3½ months and she voluntarily left the matrimonial home on 22.11.2009. She also denied that she was in the habit of going to her parents' house; she was arrogant; she was teasing the petitioner and his family members and she was disrespecting the petitioner in front of the relatives; she was not preparing the food; she was not serving food and also denied that she was always quarreling with the petitioner and his family members.
7. She has further contended that on 11.04.2010, the petitioner and his family members physically attacked the respondent and driven her out from the matrimonial home. She went to Sankeshwar to her sister's house and took treatment. Thereafter, she lived at Belagavi in the house of her brother. She has filed petition for maintenance in Crl.Misc.NO.292/2011 wherein she has been granted maintenance of Rs.5,000/- per month. The grant of maintenance has been challenged by her husband before the Hon'ble High Court and also before Hon'ble Supreme Court and they came to be dismissed. She further 6 contended that the petitioner filed HMP No.106/2014 before the Senior Civil Judge, Gadhinglaj for restitution of conjugal rights and she has appeared and filed her written version and therefore, the petitioner has withdrawn the same.
8. The petitioner led evidence and he has examined himself as PW.1 and his brother is examined as P.W.2 and got marked Ex.P1 to P3 and respondent is examined as R.W.1.
9. After hearing both the parties, the trial Court has framed the points for consideration and answering the points in the affirmative has passed the impugned judgment.
10. We have heard the arguments of the learned counsel appearing for the parties.
11. The learned counsel appearing for respondent- wife has argued that the grant of divorce decree relying upon the conciliation report is bad in law and the Court cannot take into consideration the conciliation report as 7 evidence. He further contended that the trial Court has failed to appreciate that no single incident is narrated in the petition to the effect that the attitude of the respondent- wife is resulted in the cruelty. He further submitted that the Trial Court was pleased to grant divorce decree relying upon the stray admissions of respondent/RW-1 during the cross examination that the marriage was not at all consummated. He further submitted that the petitioner- husband has not raised the ground of non-consummation of marriage in the petition. The said evidence is without pleading.
12. The learned counsel appearing for the petitioner- husband has argued that the method adopted by the Family Court in determination of the permanent alimony is erroneous since the Judgment of the Hon'ble Apex Court in the case of SARLA VERMA (SMT) AND OTHERS V/S DELHI TRANSPORT CORPORATION AND ANOTHER, (2009) 6 SCC 11 is applicable only for accidental claims 8 and the same cannot be made applicable for awarding permanent alimony.
13. On the basis of the above grounds urged and arguments advanced, the following points arise for our consideration:
1) Whether the trial Court has erred in taking into consideration of the conciliation report as evidence?
2) Whether the trial Court has erred in taking into consideration the evidence which is without pleading?
3) Whether the trial Court has erred in not properly fixing the permanent alimony?
14. Our answers to the above points are in the affirmative for the following reasons:
The petitioner-husband has filed petition seeking divorce from the respondent-wife under Section 13(1) (i-a)(i-b) of Hindu Marriage Act. After service of notice, the respondent-wife appeared through her counsel. The trial Court referred both the parties for conciliation. Both the 9 parties appeared before the conciliators. The conciliation failed. Conciliators filed report which reads as under:
CONCILIATION REPORT "Both the parties are present. Respondent is stating that she is ready to join him if he stays in separate house, where he is working. But, petitioner is not ready for this. Petitioner is ready to take her back if she is ready to reside with his mother. Both are living separately from last 5 years. Hence, conciliation failed."
15. The trial Court has relied upon the above said conciliation report and came to the conclusion that respondent-wife was not interested to stay along with the mother of the petitioner-husband. The admissions made by the parties in the course of conciliation proceedings shall not be introduced as evidence, as enumerated under Section 81 of the Arbitration and Conciliation Act, 1996 which reads as under:
81. Admissibility of evidence in other proceedings.--
The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings,--
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(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;
(b) admissions made by the other party in the course of the conciliation proceedings;
(c) proposals made by the conciliator;
(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.
16. As per the above said provision, the admissions made by the parties during the course of conciliation proceedings cannot be introduced as evidence in the dispute i.e. subject of the conciliation proceedings. The trial Court has relied on the conciliation report and came to the conclusion that the respondent-wife is not interested to stay along with the mother of the petitioner-husband. Therefore, the said finding of the Trial Court is erroneous.
17. The petitioner-husband has not taken up the contention in his pleading that there is no consummation of the marriage. The petitioner- 11 husband has not stated anything regarding non- consummation of marriage in his evidence. In the cross-examination of RW-1, it is elicited that there was no physical contact between the petitioner- husband and respondent-wife and there are no issues. Based on the said evidence, the Trial Court came to the conclusion that the marriage of petitioner and respondent is not consummated even though there is no pleading of petitioner to that effect.
18. Trait proposition of law that any amount of evidence without pleading should be eschewed. Therefore, any evidence without pleading with regard to non-consummation of marriage cannot be looked into. Any evidence without pleading is inadmissible. Therefore, the said finding of the Trial Court regarding non-consummation of marriage between the petitioner and the respondent is erroneous.
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19. The Trial Court has taken into consideration the amount fixed in some other proceedings under Section 125 of Cr.P.C. and calculated the permanent alimony taking into consideration the multiplier on the basis of the law laid down by the Hon'ble Apex Court in SARLA VERMA's Case supra, and came to conclusion that the respondent-wife is entitled for permanent alimony of Rs.9,60,000/-.
20. The respondent is working as Village Accountant and is getting salary of Rs.24,000/- per month as elicited in the cross examination of PW-1. The respondent is having dependants like mother, sisters and her daughter. Trial Court has not taken into consideration of these aspects and calculated the permanent alimony on the basis of maintenance awarded in Section 125 of Cr.P.C. proceedings, based on the multiplier as held in SARLA VERMA's 13 case. The said SARLA VERMA's case has been decided under Motor Vehicles Act for calculating the compensation and the same cannot be applied in matrimonial cases to calculate the permanent alimony. Therefore, the trial Court has committed an error in placing reliance on SARLA VERMA's case, supra, in calculating the permanent alimony. Therefore, the Trial Court has to re-consider the evidence on record to ascertain whether the petitioner has made out grounds for granting decree of divorce by giving full opportunity to both the parties. For the said purpose, the matters require to be remanded back to the Family Court, Belagavi to re-consider and take a decision afresh in accordance with law in an expeditious manner keeping open all rights and contentions of the parties. Hence, we answer the points accordingly and pass the following:
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ORDER For the reasons aforesaid, both the appeals stands disposed of. The matter is remanded back to Family Court, Belagavi to re-consider and take decision in accordance with law in an expeditious manner.
All the rights and contentions of the parties are left open.
Sd/-
JUDGE Sd/-
JUDGE HMB