Karnataka High Court
Manjula W/O S.Nagaraj And D/O Thippanna vs S.Nagaraj S/O N.Shivaraj on 13 October, 2022
1 MFA No.201531/2014
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
MISCELLANEOUS FIRST APPEAL No.201531/2014 (MC)
BETWEEN:
Manjula W/o S. Nagaraj
D/o Thippanna
Age: 39 Years
Occ: Physical Instructor in Deodurg School
(Now nil), R/o Askihal
Tq. & Dist. Raichur-584 101
... Appellant
(By Sri Basavaraj R. Math, Advocate)
AND:
S. Nagaraj S/o N. Shivaraj
Age: 41 Years, Occ: Physical Instructor
In Vidya Bharathi School, Raichur
R/o Rampur, Tq. & Dist. Raichur
... Respondent
(By Sri Naresh V. Kulkarni, Advocate)
2 MFA No.201531/2014
This Miscellaneous First Appeal is filed under Section
19(1) of Hindu Marriage Act, praying to call for records and
set aside the impugned judgment and award dated
12.08.2014 passed by the Prl. Judge, Family Court,
Raichur in M.C.No.64/2013 and dismiss the M.C. case filed
by the respondent, in the interest of justice and equity.
This appeal is coming on for Hearing, this day,
K.S.Mudagal J., delivered the following:
JUDGMENT
Whether the Trial Court was justified in granting decree of divorce against the appellant under Section 13(1)(ia)(ib) of Hindu Marriage Act, 1955 (for short, 'H.M.Act') is the question involved in this case.
2. The marriage of the appellant and the respondent was solemnized on 10.07.2011 at Raichur. The parties are Hindus and governed by the provisions of H.M. Act. The respondent filed M.C.No.36/2012 against the appellant under Section 9 of the H.M. Act seeking restitution of conjugal rights. Ex.R.1 is the copy of the petition in the said case whereunder he claimed that the 3 MFA No.201531/2014 appellant has willfully deserted him though he is ready to lead the marital life. In that case on 25.06.2012 he filed a memo as per Ex.R.2 seeking withdrawal of the petition as not pressed. Ex.R.3, the order sheet in M.C.No.36/2012 shows that, recording the said memo of respondent, M.C.No.36/2012 was dismissed as not pressed on 25.06.2012.
3. After dismissal of the petition in M.C.No.36/2012, on 07.10.2013 the respondent filed M.C.No.64/2013 before the very same court namely, Family Court, Raichur seeking decree for dissolution of marriage under Section 13(1)(ia)(ib) of H.M. Act. In the petition he alleged that the appellant refused to join him, the marriage was not consummated due to her fault and she has willfully deserted him. He further claimed that due to appellant's failure to join him he has been deprived of marital bliss that amounts to cruelty to him.
4. The appellant contested the said petition denying the allegations of desertion and cruelty and that 4 MFA No.201531/2014 the marriage was not consummated. She contended that suppressing the material facts the respondent has filed the said petition. She claimed that the respondent himself subjecting her to harassment deserted her even though she is ready and willing to join his company despite the difficulties faced by her due to his harassment.
5. In support of his case, the respondent got himself examined as P.W.1 and two other witnesses as P.Ws.2 and 3. He did not produce any documentary evidence. The appellant was examined as R.W.1 and on her behalf Exs.R.1 to 3, the copy of the petition in M.C.No.36/2012, the memo filed by him for dismissal of the said petition and the certified copy of the order sheet in the said case were marked.
6. The Trial Court, on hearing the parties, by the impugned judgment and order held the appellant guilty of desertion and cruelty. The Trial Court holds that on the ground of reluctance of the appellant, the marriage is irretrievably broken down. On that ground and on the 5 MFA No.201531/2014 ground of desertion and cruelty, granted decree of dissolution of marriage.
7. Heard both side.
8. Sri Basavaraj R. Math, learned counsel for the appellant submits that the impugned judgment and decree is contrary to the evidence on record and the law on the point. Therefore, the same is perverse.
9. Sri Naresh V. Kulkarni, learned counsel for the respondent, justifying the impugned judgment and decree submits that the appellant, even during the pendency of this proceeding, declined to join the respondent in conciliation proceedings. He further submits that the evidence on record clearly shows that the respondent was guilty of desertion. He further submits that the respondent has remarried and has two children out of the said marriage. The marriage between the appellant and respondent has been irretrievably broken down. Therefore, the impugned decree of dissolution of marriage 6 MFA No.201531/2014 sustains. In support of his submission, he relies on the judgment of the Hon'ble Supreme Court in the case of Sivasankaran vs. Santhimeenal 1.
10. The respondent sought the decree of dissolution of the marriage under Section 13(1) (i-a) and (i-b) i.e., on the ground of cruelty and desertion. The first ground of cruelty was that the appellant did not permit the consummation of the marriage. That was denied by her. According to the appellant, after the marriage nuptial ceremony was performed and the marriage was consummated. PW-3 the respondent's own evidence, in her cross-examination in unequivocal terms admitted as follows:
"It is true that soon after Ashada month in the house of respondent marriage between the petitioner and respondent was consummated."
The evidence of PW-3 shows that she was none else but the aunt of the respondent. Her knowledge with regard to such nuptial ceremony and consummation of the marriage 1 2021 SCC Online SC 702 7 MFA No.201531/2014 is natural and probable. The respondent did not even make any effort to explain that admission by re-examining PW-3. The Trial Court conveniently overlooked such unequivocal admission to hold that the marriage was not consummated.
11. Referring to cross-examination of RW-1, learned counsel for the respondent submits that the respondent has admitted that their marriage was not consummated. The reading of the said evidence shows that she agreed that during her stay in the house of respondent for five days after the marriage and thereafter when she joined him in his house after Ashada month, their marriage was not consummated. However, in her further cross-examination she states that the nuptial ceremony of the marriage was held in her parental house. She denies that at that time the marriage was not consummated. Therefore, it cannot be called as an unequivocal or clear or cogent admission. Moreover, the 8 MFA No.201531/2014 alleged act of the cruelty was condoned by filing the petition for restitution of conjugal rights.
12. Section 23 of the H.M. Act requires the Court to examine even in undefended cases whether the petition suffers any disabilities mentioned in Section 23(1) of the H.M. Act. For the purpose of this case, Section 23 (1) (b) is relevant, which reads as follows:
"(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty"
13. The reading of the above provision shows that if the petitioner/husband has in any manner condoned the acts of cruelty and desertion complained by him, he is not entitled to the decree of divorce. The respondent by filing M.C.No.36/2012 seeking restitution of conjugal rights condoned the alleged cruelty or desertion inflicted upon him up to 25.05.2012. It is also material to note that in 9 MFA No.201531/2014 Ex.R-1 there was no allegation that the marriage was not consummated. He only claimed that the appellant has deprived him since ten months from the matrimonial bliss.
14. By withdrawing M.C.No.36/2012 unconditionally, he abandoned the allegations of desertion made against her. Therefore, he can file petition for divorce only on the acts of cruelty and desertion subsequent to 25.05.2012. As already pointed out, he filed the second petition on 07.10.2013. In that petition for the reasons best known to him, he does not whisper anything about the earlier petition in M.C.No.36/2012 it can be inferred that, had he pleaded that, he had to explain the requirement of Section 23 (1) (b) of the H.M. Act.
15. As per Section 20 of the H.M. Act and Rule 4 of the Hindu Marriage Rules (for short 'H.M. Rules'), the petitioner is required to state particulars of the cruelty alleged by him. It is also incumbent upon the petitioner to disclose the particulars of the earlier proceedings. He has 10 MFA No.201531/2014 to state the date and circumstance under which the desertion began and the circumstances under which the alleged cruelty is committed. In the present case, the respondent has not pleaded what were the acts of cruelty subsequent to the filing or withdrawal of M.C.No.36/2012. Thus, it becomes clear that the petition was barred by Section 23 (1) (b) of the H.M. Act.
16. So far as the ground of desertion, the mere fact of couple living separately is not sufficient and there must be animus deserendi. The appellant claimed that she was ready to join the respondent. But the judgment of the Trial Court indicates that the respondent wanted appellant to quit her job and join him. First of all, she had the troubled marriage. Therefore, it is quite natural for her to seek economic security for her life. Secondly, even the wife has right of pursuing an occupation which is not illegal or immoral. In the facts and circumstances of the case, the contention that she should give up her job and join him does not amount to reasonable restriction. 11 MFA No.201531/2014
17. The Trial Court without considering the effect of Section 23 (1) (b), Section 20 of the H.M. Act and Rule 4 of the H.M. Rules, proceeded to grant the decree of divorce which is unsustainable in law. In the judgment in Sivasankaran's case relied on by the learned counsel for the respondent, the decree of dissolution of marriage on the ground of irretrievable break down was granted exercising the power under Article 142 of the Constitution of India. Such powers are exercisable only by the Supreme Court. Moreover, the larger bench of Hon'ble Supreme Court in the judgment in Mangayakarasi vs. M. Yuvaraj2 in para-15 of the judgment held that the Supreme Court can exercise such power under Article 142 of the Constitution of India in appropriate cases. Therefore, the Trail Court committed error in granting decree of divorce on the ground of irretrievable break down. Looked from any angle, the impugned judgment and decree suffers from perversity and illegality and unsustainable. Hence, the following:
2
(2020) 3 SCC 786 12 MFA No.201531/2014 ORDER The appeal is allowed with costs.
The impugned judgment and decree is hereby set aside.
The petition in M.C.No.64/2013 on the file of the Principal Judge, Family Court, Raichur is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE BL/swk