Karnataka High Court
Pradeep Borkar vs Smt Savithri Rao on 26 May, 2022
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.4742 OF 2017 (FC)
BETWEEN:
PRADEEP BORKAR
S/O DEVAPPA NAIK,
AGED 54 YEARS,
R/O 1-657, BORKAR COTTAGE,
NEAR MAHAVEER MEDILCAL CENTRE
PUTTUR - 574 201
... APPELLANT
(BY SMT. GEETHA G.MENON, ADVOCATE)
AND:
1. SMT SAVITHRI RAO
W/O PRADEEP BORKAR
AGED ABOUT 45 YEARS,
R/O 1202, A LINDEN
GODREJ WOODMAN ESTATE
HEBAL, BANGALORE - 560 024
2. SMT.SUCHETA BANDARY
W/O SRI HARISH BHANDARY
AGED ABOUT 41 YEARS,
R/O C/O JAGGANATH RAI G
ADVOCATE & NOTARY
PUTTUR CENTRE
NEAR SBI MARKET ROAD,
PUTTUR-574201
...RESPONDENTS
2
(BY SMT/MISS. UDITA RAMESH, ADVOCATE FOR C/R;
VIDE ORDER DATED 10.08.2018 & 15.09.2018,
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 19 (1) OF FAMILY
COURT ACT PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 13.04.2017 PASSED IN MC 3732/2012 ON THE
FILE OF THE PRINCIPAL FAMILY JUDGE AT BENGALURU IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY,
J.M.KHAZI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 19(1) of the Family Courts Act, 1984 has been filed by the husband against the impugned judgment and order dated 13.04.2017 passed by the Family Court, at the instance of the wife, in her petition filed under Section 13(1) (i) & (i-a) of Hindu Marriage Act, 1955, by which the marriage of petitioner and respondent No.1- husband has been dissolved on the grounds of adultery and cruelty.
2. For the sake of convenience, hereinafter the parties are referred to by their rank before the Family Court.
3. FACTS: Brief facts leading to the filing of the petition are that the marriage of petitioner and respondent No.1 was 3 solemnized on 24.04.1994 at Bengaluru as per the Hindu customs and ceremonies. It was an arranged marriage. A son was born through the wedlock. After the marriage, petitioner and respondent No.1 lived in the parental home of petitioner as respondent No.1 demanded that petitioner's parents should provide him accommodation. Respondent No.1 used to insult the petitioner in the presence of maids, family members and relatives. He was berating her for her dark complexion and saying that she was not good looking. He forced her to abort her pregnancy on the ground that her parents did not give him a house. Only after her parents set up a full fledged home and gifted a car, they started living separately.
4. It is the further case of the petitioner that respondent No.1 was addicted to bad vices such as drinking. He used to come late under the influence of alcohol, bring his friends and force her to cook for them during odd night hours. She gave him her gold ornaments weighing 160 gms to buy equipments for his specialty Orthopedics. She even melted her gold bangles weighing 48 gms to gift bangles to his mother. He never took care of their son. It was also pleaded that he forced 4 the petitioner's parents to get him membership in a prestigious club. He traumatized her by burning her prayer books, Sai Baba figurines and throwing away items of sentimental value. It is the case of the petitioner that once the respondent No.1 started physically assaulting her, she left the matrimonial home and started working at Bengaluru. He used to send messages during odd hours making remarks about the petitioners character. During her absence, he was bringing women to their matrimonial home and used to indulge in sexual activities. It is also alleged that the aforesaid fact came to the knowledge of the petitioner through the secret camera that she had installed in their bedroom. It is further alleged that the respondent No.1 has an illicit relationship with respondent No.2 who has left her husband and children and is presently the living with respondent No.1. Though without condoning the acts of respondent No.1, the petitioner offered to get their marriage dissolved by mutual consent, he did not agree for the same. consequently, she has filed the petition seeking dissolution of marriage on the grounds of adultery and cruelty.
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5. Though duly served respondent No.2 remained Ex-parte.
6. The Respondent No.1 appeared and filed objections admitting his relationship with the petitioner and the fact that the petitioner and respondent No.1 have a son through their wedlock. However, other averments in the petition were denied.
7. Inter-alia respondent No.1 has contended that it is petitioner who is living in adultery with one Suresh Settipalli since 5 years and he came to know about it during 2011. It was further contended that while he was working at Mudabidri, petitioner refused to join him on the ground that he is working in the rural area. It is also contended that after the death of their son, it is the petitioner who underwent abortion 5 times against his wishes. It is pleaded that the petitioner was negligent with the child and used to leave it with the servants and that the petitioner used to visit her parents every alternative day without his consent. It is alleged that though he had set up a separate residence at Casa Grands Apartments in Mangaluru during the year 2002, the petitioner's brother joined them at their residence 6 against his wishers and that they used to indulge in immoral and illegal activities.
8. It is further case of respondent No.1, that under the pretext of work, the petitioner shifted to Bengaluru. Though initially she was staying with one Reshma Bange, the petitioner later set up a separate residence and was living with one Suresh Settipalli. It is also alleged that the petitioner shifted the child to a Boarding school to prevent him from knowing her adulteress life. It was contended that there was no physical relationship between the petitioner and respondent No.1 since May 2010. Though he issued legal notice dated 18.04.2011, calling upon petitioner to return to their matrimonial home or to agree to dissolve their marriage by mutual consent, suppressing true facts petitioner has filed this petition making false allegations.
9. In support of her case, petitioner examined herself as PW-1 and relied upon Ex.P1 to 15.
10. Respondent No.1 examined himself as RW-1 and got exibited documents namely Ex.R1 to 16 in support of his case. 7
11. Vide impugned judgment and award, the Family Court allowed the petition granting a decree of divorce on both the grounds.
12. Being aggrieved by the impugned judgment and order, respondent No.1 has come up with this appeal.
13. We have heard arguments of the learned counsel for petitioner and respondent No.1 and have perused the record.
14. During the course of arguments, the learned counsel for respondent No.1 submitted that the Family Court has erred in holding that though the contents of CD at Ex.P13 are not proved as per Section 65-B, the petitioner has proved the charges of adultery against respondent No.1. It is further submitted that the Family Court has also erred in holding that the allegations regarding cruelty to be proved by the petitioner against respondent No.1. It is also submitted that the Family Court has also erred in not accepting the evidence adduced by respondent No.1 and in holding that it is the petitioner to have committed adultery.
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15. In order to prove the ground of adultery, except the interested testimony of petitioner, no other witnesses are examined. To support her contention, petitioner has relied upon the contents of CD at Ex.P13 which are extracted from the hard disc at Ex.P15. As admitted by the petitioner, during her cross- examination, she has not chosen to examine the person who installed and maintained the secret camera in the bed room of the residence of petitioner and respondent No.1. The Family Court has rightly held that the contents of Ex.P13 and 15 are not proved as required under Section 65-B of the Evidence Act. Though the Family Court has rightly observed that from the perusal of Ex.P13, it evident that the content therein is not continuous but it is edited and Ex.P13 and 15 are not proved in accordance with Section 65-B of the Evidence Act and thereby rejected the said evidence, it has erred in holding that the petitioner has proved the ground of adultery only on the basis of non-denial of the electronic evidence by respondent No.1 that the person found in Ex.P13 is not him. It is pertinent to mention here that during the course of objection statement, his examination-in-chief as well as during the cross-examination of PW-1, the respondent No.1 has disputed the allegations that he 9 is living in adultery. Having regard to the fact that the allegation of adultery is a grave charge, the interested testimony of petitioner and the contents of Ex.P13 which is not proved in accordance with law, the non-denial of the same by respondent No.1 is not sufficient to prove the said averment. Consequently, we hold that petitioner has failed to prove the ground of adultery for the purpose of dissolution of marriage between the petitioner and respondent No.1 and to that extent the impugned judgment is liable to be set aside.
16. Now we may deal with the ground with regard to cruelty. It is the definite case of the petitioner that soon after the marriage it was realised that respondent No.1 was addicted to drinking and under the influence of alcohol and that he used to abuse her, berate her family members and when he failed to take care of her needs, she had to work and for this purpose she shifted to Bengaluru. It is her further case that the Respondent No.1 started making false allegations against her of living in adultery with one Suresh Settipalli and that he used to send messages making such allegations as well as used abusive and foul words. To this effect, she has produced the said messages 10 at Ex.P4. Learned counsel for appellant has fairly submitted the contents of Ex.P4, i.e, the messages sent by appellant to respondent on 19.5.2012, 21.3.2012, 25.3.2012, 26.3.2012, 23.4.2012, 5.5.2012 & 26.7.2012, therefore it is not necessary for us to reproduce the same.
17. Admittedly, petitioner and respondent No.1 are not living together since 2010. Respondent No.1 has alleged that the petitioner has deserted him and that she is living in adultery with one Suresh Settipalli and thereby inflicted cruelty on him, admittedly he has not made any attempts to either seek the restitution of conjugal rights or divorce on these grounds. As rightly held by the Family Court, he has also failed to establish the allegations of adultery against the petitioner. On the other hand, the evidence led by the petitioner clearly prove that the respondent No.1 has treated her cruelly. The mere perusal of these messages makes evident that the same were sent with an intention to inflict mental cruelty on the petitioner. Though the impugned judgment and order in so far as the allegations of adultery is concerned is not sustainable, having regard to the fact that petitioner has succeeded in establishing the ground of 11 cruelty for the purpose of dissolution of the marriage between the petitioner and respondent No.1, the impugned judgment and order is confirmed to that extent.
18. In the result, we proceed to pass the following:
ORDER
(i) Appeal is allowed in part.
(ii) The impugned judgment and order granting decree of divorce under Section 13(1) (i) of the Hindu Marriage Act, 1955, is set aside.
(iii) The impugned judgment and order granting decree of divorce under Section 13(1) (i-a) of the Hindu Marriage Act, 1955, is confirmed.
(iv) The registry is directed to transmit the record to the Family Court along with copy of this Judgment.
Sd/-
JUDGE Sd/-
JUDGE RR