Karnataka High Court
Chennayya Mallikarjunayya Hiremath vs Shailaja W/O Chennayya Hiremath on 18 July, 2012
Bench: N.Kumar, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 18 T H DAY OF JULY, 2012
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MR. JUSTICE H. S. KEMPANNA
M.F.A. NO.22025/2010 (MC)
BETWEEN:
Channayya
Mallikarjunayya Neeralagi
Hiremath,
Aged about 50 years
Occupation: Agriculture
Residing at Halagi
Taluk Haveri. ...Appellant
(By Sri.G.R.Andanimath, Adv.,)
AND:
Shailaja
W/o. Channayya Neeralagi Hiremath
Aged about 48 years
Occ: Tailoring teacher
Residing at Didapur, Taluk Haveri. ...Respondent
This MFA is filed under Section 28 of Hindu Marriage
Act, 1955, against the order and decree dated 23.2.2010
passed in MC No.07/2002 on the file of the Addl. Civil Judge
(Sr.Dn.) Haveri, dismissing the petition filed under Section
13(1)(i)(ia)(ib) of Hindu Marriage Act.
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This appeal coming on for orders this day,
N.Kumar J., delivered the following:
J U D G M E N T
This is husband's appeal against the order passed by the Additional Civil Judge (Sr.Dn.), Haveri District, dismissing his petition for divorce on the ground of adultery and desertion under the provisions of the Hindu Marriage Act, 1955.
2. Petitioner married the respondent on 20.12.1989 at Malatesh Temple, Adur, Hangal Taluk, as per the customs in the presence of the elders and the relatives. A female child by name Shruti and a male child by name Mithun were born. The case of the petitioner is that the respondent is leading adulteress life. According to the advice of the elders he tolerated her. Despite the same, she deserted him and living separately. In spite of issuance of legal notice she has not joined him. In fact he has given a paper publication in Samyukta Karnataka. In spite of the same, she did not return to his house. She was -3- suffering from incurable decease of TB. She has taken treatment at different hospitals at Hubli and other places without his knowledge. She filed a Criminal Miscellaneous No.10/1997 claiming maintenance. A compromise was entered into and land bearing No.67/1 measuring 3 acres 3 guntas situated at Mardur village was handed over to her and to her children in lieu of their mainte nance by way of compromise on 23.2.2001. Respondent is vicious lady and her conduct has affected the status and dignity of the petitioner and she has committed matrimonial offence and suffering from incurable decease. She deserted him in the year 1996 and there is no collusion between them. Therefore, he sought for divorce on the aforesaid grounds.
3. The respondent contested the claim. It is her specific case that he used to ill-treat her. He was giving mental and physical torture to her for silly reason. The allegations made in the petition are false. The criminal case was admitted. A compromise -4- entered into is, also admitted. It is contended that she is not having any independent income. She is suffering from TB, on account of the torture given by the petitioner. She was suffering at the hands of the petitioner. At the time of delivery, she became mentally weak. She has set out in detail why the petitioner could not get another girl for marriage, what was his reputation prior to his marriage and under what circumstances, she married him. She also contended that when she became pregnant he made an attempt to get the child aborted. He also demanded five tolas of gold and Rs.25,000/- towards expenditure. The demand was partially met. Information was given to the petitioner in respect of delivery, but he did not come to see the face of the child. At the instance of Gadugina Tontadarya Swamiji, he took her to his house and they were residing at Arisikere of Harappanahalli Taluk. There he was working as Doctor. At that time, he committed atrocity on a Lamani woman and in that connection -5- when villagers caught hold of him he admitted his guilt, paid fine and ultimately the woman expired. On 1.11.1996 he left her in her Aunt's house at Naregal and thereafter, gave paper publication on 5.12.1996 in local newspaper. Thus, he has given mental and physical torture to her. Therefore, no case for interference is made out.
4. On the basis of the above pleadings, the trial court framed the following issues
1. Whether petitioner proves that, respondent had voluntary sexual intercourse with one Heamayya Neeralagi Hiremath on the day of Shivaratri at 3.00 A.M. in the year 1990?
2. Whether the petitioner proves that, af ter the solemnisation of marriage respondent was ill-treated and caused cruelty to him?
3. Whether petitioner proves that, respondent has deserted him f or a continuous period not less than 2 years -6- immediately the preceding of the presentation of petition?
4. Whether petitioner has made out his case to grant a decree of divorce f or dissolution of marriage dated 20.12.1989?
5. To substantiate his case the petitioner examined himself as PW.1. He also examined two witnesses as PWs.2 and 3 and produced eight documents, which are marked as Exs.P.1 to P.8. On behalf of the respondent, she examined herself as RW.1 and she also examined three witnesses as RWs.2 to 4. She did not produce any documents.
6. The learned Judge on consideration of the oral and documentary evidence on record held that the case of adultery pleaded in the petition did not find place in Ex.P.1-legal notice issued prior to the institution of these proceedings and therefore, he was of the view that it is afterthought. Adulterer is not made a party to the proceedings. Insofar as plea of -7- desertion is concerned, he has recorded a finding that it is the petitioner, who forced to leave his company and therefore, though they are living separately, the cause of such separation is of the petitioner and not the respondent. Therefore, no case for desertion is made out.
Insofar as cruelty is concerned, the petitioner treated the respondent with cruelty and therefore, no substance in the case of cruelty as pleaded by the petitioner. Therefore, he dismissed the petition. Aggrieved by the said order, the husband has preferred this appeal.
7. Learned counsel for the appellant assailing the impugned order contended that the finding recorded by the trial Court is contrary to the legal evidence on record. The respondent without any justification left the company of the petitioner and admittedly, from 1996 onwards she is living separately, and therefore, a case for desertion is made out. The respondent and her family members -8- were picking up quarrels with the petitioner and were treating him with cruelty, which the evidence has not been properly appreciated by the learned Judge. Therefore, he submits a case for interference is made out.
8. We do not find any substance in the said contention. The marriage is not in dispute. The son and the daughter were born. Initially, they lived in harmony. The evidence on record discloses that the respondent is suffering from T.B. The petitioner has not taken any steps to get the respondent treated by him. On the contrary, the allegation is that she has taken treatment at different hospitals at Hubli and other places without his knowledge.
9. On the other hand, the case of the respondent is, because of the torture, tension and pain inflicted by him, she is suffering from TB. The petitioner did not go and look at the children after informing about their birth. He is a Doctor by -9- profession and wherever he goes he created problem. He left her in her Aunt's home and issued a paper publication alleging that she is missing. All these conduct of the petitioner clearly establishes that the petitioner has not treated the respondent in the manner as she is expected to treat her. He accuses of her having illicit connection with others. He has not mentioned the name of the adulterer and he is not made a party. Plea of adultery is not found in Ex.P.1-legal notice issued prior to the institution of these proceedings. Therefore, the trial Court disbelieved the said version. When once the husband accuses the wife of adultery, it amounts to cruelty being inflicted on her. Therefore, it is a case of the husband subjecting his wife to cruelty.
10. Insofar as the desertion is concerned, the evidence on record discloses that at the instance of Gadugina Tontadarya Swamiji he has taken the respondent to his house. But in 1996, again he left her in her Aunt's house. Therefore, he has never
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turned up to her. Therefore, assuming that they are separated from two years, it is not a case of desertion. He is not prepared to join her. In these circumstances, we do not see any substance in the case of cruelty and desertion, sought to be made out in support of his case. The trial Court on going through the entire evidence on record has rightly come to the conclusion that both the desertion and cruelty is not made out. The order is legal and just and does not suffer from any infirmity. Hence it is dismissed.
SD/-
JUDGE SD/-
JUDGE SA/-