Karnataka High Court
Smt Anitha Bai W/O N. Ganesh Rao vs N Ganesh Rao S/O Sri Narayana Rao on 28 October, 2010
Bench: K.L.Manjunath, B.Manohar
IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 28TH DAY or OCTOBER, 20V1'Q "seEe PRESENT THE HON'BLE MRJUSTICE K.L.MAN.JU§:\T;?aTl':¥::: A %f AND THE HON'BLE MR. ii MFA.NO.3818 o1=f4%A:2OAo8%w(MC'; a i 1 BETWEEN: A A A Smt.Anitha Bai, W/o.N.Ganesh Ra.0;"«.._A_'- _ Aged about 32 years,5;jVA:__--.'_ ~ __ V Presently residing _9No'.'*1 ".7, ' 2nd Floor, 6?}? A' «- s.V.G.Nagair, A Pattegora Palya; Bangalore-560*Q'/2,. ' E " ...APPELLAN'I' SInt_~. a Ariand.:._.f\Civocate) N.GarieshARaO; S,'o.Sri.N_ara_yana Rao, _ _ "~.._A4g'ed about 45 years. ' " ~ IVIah'a1akshm1' Layout, 2 'vvchgkkanayakana I-13111. A ._"Tu:1*1k1';1r.District-572 214. ...RESPONDEN'I' ~.(Respt;;r1dent served) éw MFA filed U/s. 19(1) of Family Courts Act, against the Judgment and decree dated: 17.01.2008 in MC.No.58O / 2005 on the file of Principal Judge, Bangalore, dismissing the petition filed U/it Hindu Marriage Act, for Divorce. This MFA having been heard andreserved on for pronouncement of Judgen1.g:'nt.,this dalyga J ., delivered the followi1'1g.'.« A 0 Appellant court below, being aggrieved by't1:--euj~ddgiiient~and decree dated 17~1~2008 made in M.C.No.580/02005 Family Court, Bangalore, preferred this it A facts of the case are as follows: Tiled Ijétiltiorrervdd filed a petition against the respondent ll1'id€1" "i4'.3(l)(i--a] 8: (H3) of the Hindu Marriage Act 4: for dissolution of the marriage which was solernnized The petitioner has contended that she is the AV 3 legally Wedded wife of the respondent and their marriage was solemnized on 3-5-1994 at Dharmasthala Temple. It was an arranged marriage, which has been conducted rituals and customs. After the marriage, both of Bangalore at Moodalapalya. Out of their ._wedlor:l_§,._s.he:l''gaVe 97 At birth to a male child on 3-9g,.1997,"w.,it._ is the,@:asell'of~.},hc, petitioner that right from the inoeption of"theier-dmarrilage, the respondent has been immense mental torture and cruelty, and not' c*a~re'l'1er. They have started their marital;1j,life ather"pare.ntal*house and thereafter, the respondents hislvresidence to Mallathahalli. The respondent a tailor in Chickpet earning about ?._2._500/-" the respondent was addicted to ._was 'spending money for drinking, gambling he was not paying any money l°'°"towards__maintenance of the house. In View of the financial loflthe petitioner she has to live under the mercy of father for financial assistance. In View of that, she has to 4 do the work in a Garment Factoly earning 160/» to €70/»~ per day for maintenance of her farnily. She has to worlkifrom 9.a.m. to 7.30 p.m. the respondent used to take her earnings and he was treating her as a b0nded--.1uétbcur: ancllhe. was misusing her earning. Since the f} earning "was w,_n_ct l sufficient to maintain their farnily, sheehas toe.Wcirk._Vcvelrtinief. Due to the 0ver~time work, tyfahoid and jaundice. Nobody was care and she was unable to work and earn money :t0"mair1tain_ Due to her ill--health, the tl1«eijy'petliticlner at her father's house carelclf her during the illness. Thereafter,l7she-- in a Beauty Parlor closed to her residence. Initiailyllshé: was getting a salary of €900/-- ytherleafter' she vyasmgetting a salary of €1,600/--p.m. and she has to repay the debt incurred by "the res'p.0n(jlent.:'.r* Kw 3. The petitioner further alleges that the father of the petitioner purchased an autorickshaw for the respondient to earn his livelihood and to make him self--sufficie.ri:t.."' A the respondent could not earn anything andxnionegr 'earned. in . _ the autorickshaw was spent for playing single digit lottery. Tl_1e'reafterv, V:i'or_disohargir1g his" debts, he sold the said autOI'pi_C3_l1:{S""I»1_£3;%'Kf%p' and"'lthere§after, the respondent approached her father demanding ?.30,0Qi)/__--' business of his own. Her for the said money. a tailoring shop did not leave his ..other hand, he has borrowed money and clri:'531._1;\torVto abuse and humiliates the petitioner' intlie shopvlprlemises when she was assisting the respondeiit:jinglthea.tgiloririg shop. In view of the heavy debts, used__to creditors, subsequently he closed down ishop. Due to the over debts, the respondent WelritgtoEdepression and started harassing the petitioner Aw making allegations that she has illicit relation with the landlord and some other person. which gave im1nen.se»~.rr1e_ntal torture and cruelty on the petitioner. In December 1996, he closed down the petitioner at her parental house and, he"desertlediherilatythat time she was carrying. His whelreabouts are not made known ' to the petitioner. The petitionery_gaye_birth ltg. child on 3-9--l997. Thereafter, her and the newly born child.' against the petitioner illiei_terelationship with her close relatviyels respondent tried to physically H From January 1998, he left the Bangalorelelland vse-ttledlddown at Chikkanayakanahalli in -native 'plac'e._and there is no communication between the petitioners' "respondent. Several attempts of conciliation e""'V'were rnadev_v~byvlA.i'.ithe elders, which ended in failure and the 'deserted the petitioner and his child. The has started a tailoring shop in the name and style /éw of Akash Tailors at her native place. The petitioner alleges that she got an information that the respondent got reim:a:_ried willfully deserting the petitioner from January no cohabitation from the year 199?',m _The' deliberately deserted the petitioner, without=_any cause. She further alleges the"~resporide'n;t"'-was not contributing any money her and--:he1j,:§chi1d. At present she was her old aged parents by hetfiown her son to the English medium' Since the respondent'"d'eseprtedA:'::the the year 1998, in spite of thebest no chance of conciliation. Hence, the petilt'ion:'erifi-ledaltpetition seeking for divorce. the notice issued by the Family Court, u,.,,_,.rthe entered appearance and denied the ...l.l"j'jvg}1egati0ns' tirade against him in the petition. However, he 1'gAha.s'radmltted his marriage with petitioner solemnized on A 3-5-1994 at Dharmasthala Temple as per Hindu customs and it was an arranged marriage. After the marriage, theystayed at Moodalapalya in Bangalore. Out of their wedlock' child by name Akash was born on 3-9-1997.-"i'Joyv.,is_aged= about 71/2 years. He denied the allega.tio.nsl'a.thalt~..Qsfi'tlt1...__giés:at difficulty she was majntajning.*he_rselfll contended that the petitioner is as «-a.f_:l3eai;1tician at Ashoka Hotel, Bangalore'r-_.lan'd'l--_ge:a1fni'r1g ihandsome money. Further, the brother of :.ti'1'e- .fpetiti'oriler_ also gainfully employed. Henceltherself. Further, the respondent.deniedlyhthat working as a tailor in Chickpet. hast at the time of marriage, he was running tailoring lshropiflcalled Ganesha Stitch Wear. He stayed a period of 11/2 years thereafter he was own residence. He alleges that the l petitioner is quaifr'elsome and used to go to her mother's place ...f.f'_j'freq1.1ently." .v'_'fShe was not treating his sister whenever she l'--l.l.lc0m'le.__s=tolA'l.--'Bangalore and she used to quarrel with her for AM trivial reason. Further he has denied that he was earning a sum of $2,500/-- pm. and refused to pay the expenditures, the petitioner was forced to deper1dfu..p.ori father for maintaining the house. He allegation that he was addicted l single digit lottery. Further=he__V has-..dVenied'jthat_H demanded €30,000/~ for setting t.a1loringl_ and also purchase of autorickshaW"«-for_the of respondent by the father of the petitione:";""»;1':l.'1'eV alleges that the petitioner andgheré him to see the child whenexfer. todlthefhouse of the petitioner, they neverlcpened and he used to wait at the door for h_ours""togetherl':and "return home with tears in his to the birthday of the child along the cake was thrown out by the petitioner he»..!neV.€rallowed to see the child. The respondent -«.f.f'_j'j1a1l_egeS thatldhe never deserted the petitioner. Due to the father, he had been to his native place and A» 10 looking after the properties and also denied that he has opened a taiioring shop at Chikkanayakanah;¢a1}i§"p:'dand emphatically denied that he has rnarried the second these grounds, the respondent has sought 'for: the 9 divorce petition. 5. On the basis of the pleadings of:the..partieVs'; the Family Court frained the following d d {i} Whether~ih'_e. that the respon£ie.riAt._...afterV--..___tf--ieV '~"so«Z,enjzn1'.:'ation of his marriage- iioith Vppptreaied her cruelly " granting the relief of divorce'? . ~.. (ii) petitioner has proved that the resipo-ndentéhasivdeserted her continuously for of two years preceding this petition 'ioarrants for granting of relief of divorce? 5» ii 6. The petitioner in order to substantiate her case examined herself as P.W.1 and also examined her brother as P.W.2 and got marked the documents as Ex.P.1W On the other hand, the respondent got examined R.W. 1 and got marked the documents 'as"Ex_.R. 1.; 7. The Family Court, afterl""t"é:§5'h.siderif1g'""etliedjperal and documentary evidence let'~~in parties held both the issues against the petitioner dismissed the divorce petition fiiedgby her as";pe'r:tliVe'j11.dgment and decree dated 17w1ee2lo0afi-Add 8. The petitiorlerrplaeirzglaggrieved by the judgment and ;dee.ree ti_eite;_c1.:1?§1w2VO08"1hade in M.C.No.580/2005, preferred f ll Smt.'Sx§?etha Anand, learned counsel appearing for the 1.]apl5d1lal71fl5COnt€I1d€d that the judgment and decree passed by AL 32 the court below is contrary to law and evidence on record. The appellant has contended that since the resporildent is addicted to alcohol, gambling and playing single he has spent his entire earnings for the .-.fi'.0"rna.intai11.. g her family, she has to work in a Garrnen-tnF:ac'tory to 7.80 p.m. sometime, the resVpVo'n_dent'~11'sed ; her earnings. She has to :over--tirne,_ which, she has suffered from typh-old, g The respondent instead of taking care__ of at her father's house V Itier.-it order to maintain herself, Parlor for a paltry sum. When she'*_v{2as' respondent deserted her from December1996andVliiswyvhereabouts are not known. In the petitioner gave birth to a male child on 399': ~.o'Ij,ce the respondent came and saw the Vll'A""V'vpetition,er newly born child. Thereafter, he left her. cohabitation from the year 1997 between the 'petitioner and respondent. /§~ 13. It is not in dispute that the petitioner and respo.n(l.ent are legally Wedded husband and wife their solemnized on 3--5--1994. They stayed»in_eMo'odaIapaljfa;'_}_Out' of their wedlock, a male child was lbornlon allegations of the petitioner the 'resporidentj was» addicted to alcohol, gamhling ai3.d--Vllie.spenthis-entlre money for the said purpose. He her. In View of that, she was forced; and earn money. Due :::'.Ei.l'1'E3 suffered typhoid and jaundice. Zfifhe llt.h_e"'petitioner in her parental house withloiitl The petitioner's father had purchased _ an'Laiitoriclishawdor the purpose of livelihood of _Duelt'o"'the bad habits of the respondent, he sold that also. Further, $30,000/-- was also paid of the petitioner for setting up a tailoring ...il'.j'jVbu__siin€SS arid' that was also closed due to his bad habits. He --iner,irred huge debts and the petitioner has to repay the A" i5 said debts. To maintain herself and her famiiy, she had to work in a Beauty Parlor and she was earning a . paltry sum. The respondent being the hp petitioner failed to maintain his 'petitienar Was pregnant', he left her in her whereabouts were not known more i'aiyear. January 1998, he came teusee ht}'1'e--..p'etitioneraand'-her newly born child. There is no cohabitation' year 1997 and he has deserted the petitioiner. ' 14. in the éthefpetitioner has deposed that she »has. Now she is working as a Beautician in Prior to the marriage, she factory. She also deposed that a.fter__th.e stayed in Moodalapaiya. Thereafter, resp--o_nde11t: up his own house. During her i1l--hea1th, " __left the petitioner in her parents' house. For four months "~,h°'Wh.erehabonts of the respondent was not known. During /05" 16 December 1997, when the petitioner was carrying he once again left her in her parental house and closed down the Tailoring shop and went away. Thereafter, only in of January 1998, he came to see his wife a child. Thereafter, his whereabouts~-V/'ere not The petitioner got the information Arespo'n.de,nt Bangalore and settled down at her crossexamination she also.__dep.o"s'ed'V,.:that~duetothge spending of money for gambling by has to work in the Garment fact,oryg,.ai1d Further, the father of purehased an autorickshaw for the purpose of however, he sold the said autorickshaw for his..bad'v.Vit3es. Further she has deposed that '€..3O,()H(i)O'/'JV father of the petitioner set up a Tailoring' the purpose of respondent, the said x""'V"tai1oring sh.ap,vl'was also subsequently closed and thereby he _, 'deserted the: petitioner by not maintaining her and her child, yvhieVh'»-arriounts to desertion. She has to take care of the educational expenditure of her son. Her case was also supported by P.W.2 who is the brother of the P.W. 1. 15. The respondent examined himself admitted that before marriage, the petitioner' ina Garment factory. After the marriage, 'then respolnddgentgggsitayedi" at Moodaiapalya, thereafter, he up"'hisv._in;:i%ependent house at Mallathahaili. that he was working as a tailor in Chick'pet"4 dieniled that he has refused to pay t.he~._'niainte'nance of the house. In his petitioner did not allow him to see «'son:.VvVVV'V:.lVr;j1V~.theDeross-exarnination, he admitted that in opened a Tailoring shop in the style"-of siaiiesh Stitch Wear, at Moodalapalya and also was staying at Moodalapalya at that A'-I-Ie v_aiao,i'.V'admitted that after opening his shop, the * --4--.l'.j'I'r;etitioner left her job in Mahalakshmi Garment Factory. admitted that he was working as an autorickshaw fir driver in the month of October 1995. He has denied the suggestion made by the petitioner that petitionerfsi»-_4:'fat_her spent "€10,000/-- for obtaining the shop $5,000/-- for furnishing the shop. adrnitte'd,"'ti¢a: family belonged to a Tailoring fainily. onwards, he was not attending the Tailoring the' result, he incurred heavy debt andfcouldg not 'pay the rent for his shop premises and the"'1"eésidenti,a:.1 at Moodalapalya. He also admitted th_at._his {athefi diledf-in year 1997 and he had been to care of his brothers and sistersi' lite}; allegation made by the petitioner thathelwas' to drinking and gambling. He has also denied the allegation regarding second marriage. '15.._V ' going the oral and documentary evidence 'led is very clear that from the inception of lathe' marriage: the respondent is not maintaining his wife For her survival, the petitioner had to Work in a Factory and also she had to Work in the night shift. /KM 19 Due to the over time work, she has suffered typhoid and jaundice. The respondent did not take care of her her illness. Thereafter, she started working in a earning ?.900/- p.rn. When the respondent rent of the house, the petitioner had house. The whereabouts of the-.respond"ent to the petitioner for more than four" 'order to help the son-1r1--law, the fat.h:6;rfin~l.av5} " purchased the autorickshaw for hisv_liveliheo:d.:'v an auto driver for few months. said autorickshaw to discharge"hislclebtsiifiiip respondent demanded ?.30,000/- ior setting up a tailoring businessp the respondent will work as also established by spending huge arn'o.unt..u'iFIf1e_'lrels~poj.ndent worked as tailor for a few months -- cllosedshop by incurring huge debts which the ""l.-:i,peti'tioner x to discharge. When the petitioner was Aprelgrivantgiduring December 1996, he left her in 'her parental fifi 20 house and his whereabouts were not known. The petitioner gave birth to a male child on 3-94997. Thereafter, £e'n1.y in the month of January 1998, he came and saw and his newly born child, thereafter, it lies Bangalore and settled down at Completely deserting his wife.*an_d child". V w_2TisuVl1io'*. correspondence between them. Cori-eiii-ation'byl_the elders was also failed. It is the duty maintain the Wife and children. However,:.ir1'the i1is't;antthe respondent failed to discharge ebiigat:eee'§ Reading of the evidence ledflbyei par'ti.es»ryrnakeslitivéclear that the petitioner has not made «out «grant of decree of divorce on cruelty. HoweV'€_f- "thei"'petitioner is entitled for decree of E3ectionVV"l'3(1](1b) of the Hindu Marriage Act i.e. de1seerti_on;' .. below without examining the matter on zvithis prespe_etiVe',dismissed the petition only on the ground .. , j the Petitioner has not taken any steps to cohabit with the and no petition has been filed under Section 9 of /«§« 2f the Hindu Marriage Act seeking for restitution of the conjugal rights, straight away filed a petition without issuingvnotice to the respondent. The reasoning of the court correct. The court below had discussed of the': parties with regard to the "cruelty. concentration has been given wii_th__regar.d to the of thef' petitioner in respect of des__ertion.____:i?1vorii_the'year 1§?i97, there is no cohabitation between"'t.he.pe_tiitionerfa'rid the respondent. After 1998, the whereabo'ut's' V. respondent were not known and the. perrrianendtly settled down at iii; i)(i--b) of the Hindu Marriage deserted his spouse for more than 2 preceding the presentation of ..petitioner is entitled for a decree of divorce. The petitioner falls under Section 13(1)[i--b) of the and"-4.she__v'is.Vuentitied for a decree of divorce. Hence, the .. passed" by the court beiow is contrary to law. we pass the following: Aw 22 ORDER
The appeal is allowed. The decT»1f:ee.. dated 17-1-2008 made in M.c.No.580/200i'--.pe.ssedeV'byeehi ex =1 court below is rget aside a1id.__ deelafed that v.._I_;1a:%riage » solemnized between he petitiofier and " respondent on 3-5-1994 is hereby e11sse1v-ed _:115;de;rv 'Se¢vti§jn._ 13[1)(i--b) of the Hindu Marriage Act. if V Parties to 341/ -
Jizdge Sd/-* Judge