Karnataka High Court
Smt.Girija W/O Subhas @ Ramesh ... vs Suhas @ Ramesh S/O Mallikarjunappa ... on 24 July, 2013
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD.
DATED THIS THE 07TH DAY OF JUNE, 2013
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE B.MANOHAR
M.F.A.NO.22844/2009 (MC)
BETWEEN:
SMT.GIRIJA
W/O.SUHAS @ RAMESH NAVALGUND
AGE MAJOR
OCC:HOUSEHOLD WORK,
R/O.ANNIGERI
NOW R/A.C/O.BASAVARAJ
SHIVAPPA BYADGI
R/O.HOLE-ALUR
TQ:RON, DIST:GADAG. ... APPELLANT
(By SRI B V SOMAPUR, ADV.)
AND:
SUHAS @ RAMESH
S/O.MALLIKARJUNAPPA NAVALGUND
AGE MAJOR, OCC:AGRICULTURE
R/O.ANNIGERI, TQ:NAVALGUND
DIST:DHARWAD. ... RESPONDENT
(BY *SMT.ARUNA R DESHPANDE, ADV.) *Corrected vide court
order dtd. 24.07.2013.
*Sri D.L.LADKHAN
2
THIS MFA IS FILED U/SEC.28 OF HINDU MARRIAGE
ACT, AGAINST THE JUDGMENT AND DECREE DTD:
25-5-2009 PASSED IN MC.No.23/1998 BY THE I
ADDITIONAL CIVIL JUDGE (Sr.Dn.) DHARWAD SITING AT
NAVALGUND SOFAR AS IT RELATES TO ISSUE Nos.2 AND 3.
THIS MFA HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGEMENT THIS DAY,
B.MANOHAR J., DELIVERED THE FOLLOWING:-
JUDGMENT
Appellant is the respondent in MC No.23/1998. Being aggrieved by the order dated 25.5.2009 passed by the I Additional Civil Judge (Sr.Dn.), Dharwad partly allowing the petition filed by the respondent herein under Section 13(1) (i-a) and 13(1)(i-b) of the Hindu Marriage Act, the appellant/wife has filed this appeal.
2. For the purpose of convenience and better understanding, the rank of the parties is referred to as in the petition before the trial Court.
3. Respondent herein is the petitioner in MC No.23/1998. He filed the said petition under Section 13(1) (i-a) and (i-b) of Hindu Marriage Act, 1955 seeking for a decree of divorce. In the petition, it was contended that the 3 respondent is the legally wedded wife of the petitioner. Their marriage was solemnized on 8.6.1995 as per the Hindu customs and rituals. After the marriage, respondent came to the house of the petitioner at Annigeri for leading marital life. It is the case of the petitioner that the respondent stayed in the marital house only for a period of one month. However, she has failed to fulfil the marital obligations and their marriage was not consummated. The respondent has not co- operated for consummation of marriage for one or the other reasons. Further it was alleged that the respondent threatened to commit suicide if the petitioner insists for consummation of the marriage. Further it was alleged that the respondent is not at all obedient and was never caring for the elders. Without taking permission of the elders, she left the marital house in the month of July, 1995. Efforts were made to bring back the respondent to the marital house, however, the respondent flatly refused to join the marital house. Thus the respondent herself deserted the petitioner without any cause for a period of more than 2 years from the date of filing of the petition. Further the respondent filed OS No.7/1998 seeking for injunction against the petitioner on 4 false grounds. The respondent was ill-treating the family members which amounts to cruelty and sought for a decree of divorce. The marriage of the petitioner with the respondent is not yet consummated and the respondent is not having any interest in the marital life. Accordingly, she deserted the petitioner and therefore the petitioner sought for a decree of divorce on cruelty as well as desertion.
4. Pursuant to the notice issued by the trial court, the respondent entered appearance and filed her objections to the MC petition denying the entire averments made in the petition. However, she admitted that the petitioner is her husband and their marriage was solemnized on 8.6.1995. After the marriage, she went to the marital house and stayed in the said house for a period of one month. She denied the allegation that though the petitioner is ready and willing to perform the marital obligation, the respondent is not ready for the same and not co-operated to perform the marital obligation. In fact, the respondent was always ready and eager to perform her marital obligation, however the petitioner was not willing. She admitted that the marriage was not 5 consummated. She also contended that she never threatened to commit suicide if the petitioner insists for the marital life. The petitioner and his family members had willfully sent her to her parental house. Further the petitioner tried to marry for the second time and in order to prevent the second marriage, she has filed OS No.7/1998 on the file of the Civil Judge (Jr.Dn.) Navalgund for permanent injunction. As a counter blast to the said case, the present divorce petition has been filed and there is no merit in any of the contentions of the petitioner. Hence, the petition filed by the petitioner is not maintainable under Section 23 of Hindu Marriage Act and sought for dismissal of the same.
5. On the basis of the pleadings of the parties, the trial court had raised the following points:
1. Whether the petitioner proves that the respondent has treated him cruelty.?
2. Whether the petitioner proves that the respondent has deserted him for a continuous period of not less than two years immediately preceding the presentation of this petition?6
3. Whether the respondent proves that this petition is not maintainable under section 23 of the Hindu Marriage Act, 1955?
4. What order or decree?
6. The petitioner in order to prove his case examined himself as PW1 and got marked the documents as Exs.P1 to P3. On behalf of the respondent, she examined herself as RW1 and examined one more witness as RW2. The trial court after considering the oral and documentary evidence let in by the parties, held point Nos.1 and 3 in the negative and point No.2 in the affirmative and consequently as per the order dated 25.5.2009 allowed the petition in part while dismissing the petition filed under Section 13(1)(i)(a) of the Act and allowed the petition under Section 13(1)(i)(b) of the Act and the marriage between the petitioner and the respondent dated 8.6.1995 is dissolved by a decree of divorce. Being aggrieved by the decree of divorce passed by the trial court, the respondent/wife filed this appeal.
7. Sri B V Somapur, learned counsel for the appellant/wife contended that the decree of divorce passed by 7 the trial court is wholly illegal, contrary to law and the same is not sustainable in law. The court below has not appreciated the oral and documentary evidence adduced by the appellant. The appellant was always ready and willing to perform her marital obligation, however, the respondent himself avoided the same for one or the other reason. Hence, the appellant cannot be blamed for that. The respondent and his family members had sent the appellant to the parental house after her one month stay in the marital house assuring that her husband would come to her parental house to bring her to the marital house. However, her husband did not come to take her. The appellant has not deserted her husband. On hearing the news of the second marriage of the respondent, the appellant herein filed the suit seeking for an order of injunction. Hence, there is no question of desertion of her husband and sought for setting aside the decree of divorce by allowing this appeal.
8. Sri Ladkhan, learned counsel for the respondent argued in support of the decree of divorce passed by the trial court contending that within one month after the marriage, 8 the appellant left the marital house without any cause and never returned to the marital house though the elders advised her to go back to the marital house. The respondent also made an effort to bring back his wife to the marital house to lead the matrimonial life, but in vain. Even after more than 3 years of their marriage, the marriage could not be consummated. Waiting for more than 3 years, the above petition has been filed seeking for divorce both on cruelty as well as desertion. There is no infirmity or irregularity in passing the decree of divorce under Section 13(1)(i-b) of the Act by the trial court. Hence, sought for dismissal of the appeal.
9. After hearing the Advocates appearing for the parties, the only point that arise for consideration in this appeal is:
Whether the appellant/wife has made out a case to interfere with the decree of divorce passed by the trial court?
10. The case of the respondent is that the marriage of the appellant with the respondent was solemnized on 9 8.6.1995. After the marriage, the appellant stayed along with her husband for a period one month. It is the specific allegation of the respondent that the wife has not co-operated for consummation of marriage. She has no respect for the elders in the house and without obtaining permission of the elders, she has left the marital house in the month of July, 1995 and never returned to the marital house inspite of repeated requests and advise of the elders. However, the case of the appellant is that she stayed in the marital house immediately after marriage. Though she co-operated for the consummation of marriage, the husband was not ready and willing to perform the marital obligation. She is a obedient wife of her husband showing respect to all the elders. Within one month of the marriage, she was sent back to her parental house with an assurance that within few days, she would be taken back to the marital house. Further, no effort has been made to bring her back to the marital house. On the other hand, an effort was being made to perform the second marriage of her husband and she never deserted her husband. The evidence on record clearly disclose that though the marriage of the appellant and respondent was solemnized 10 on 8.6.1995, their marriage was not consummated. In the statement of objections, the respondent has alleged that the appellant has not co-operated for fulfillment of marital obligation. However, in the evidence, the appellant has stated that their marriage has consummated and she had lead the marital life with the respondent for more than 2 years. The evidence of the appellant is contrary to the statement of objections filed by her. The fact remains that she has left the marital house in the month of July, 1995 itself, without there being consummation of their marriage, the evidence of appellant is not trustworthy. She has deserted the company of the respondent in the month of July, 1995 itself. Even after 13 years after the marriage, there is no consummation of their marriage and she lived in the matrimonial house only for a period of one month. The allegation of the appellant is that immediately after the marriage, the appellant entered the marital house and within few days, the father-in-law of the appellant died. It was a bad omen for the mother-in-law and that is the reason for her to ill-treat the appellant. The records disclose that the father-in-law of the appellant died on 21.8.1995, whereas the appellant had left the marital 11 house in the month of July, 1995 itself. The trial court taking into consideration the oral and documentary evidence held that the appellant has willfully deserted the respondent without any reasons. The marriage between the petitioner and the respondent has not been consummated even after 13 years of their marriage and hence the marriage between the appellant and the respondent is irretrievably broken down. Accordingly, the petition under Section 13(1)(i-b) of the Act is allowed while dismissing the petition filed under Section 13(1)(i-a) of the Act.
11. It is evident from the records that the appellant herself deserted the respondent for continuous period of not less than 2 years immediately proceeding the presentation of the petition for divorce. Though the respondent failed to prove his case under Section 13(1)(i-a) of the Act with regard to the cruelty, he has proved the case under Section 13(1)(i-b) of the Act. We find that there is no infirmity or irregularity in the order passed by the trial court decreeing the suit by granting decree of divorce on the ground of desertion. The 12 appellant has not made out a case to interfere with the said order. Accordingly, we dismiss the appeal as devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE bkm.
13
NKJ & HSKJ: MFA.No.22844 /2009
24.07.2013
ORDER ON I.A.No.I/2013
This application is filed for correction of the Advocate's name in the cause title of the judgment rendered on 07.06.2013. In the cause title Smt.Aruna R.Deshpane is shown as advocate for the respondent. She has not filed any vakalath. It is Sri.D.L.Ladkhan, who is the advocate for the respondent.
Office to carryout the necessary correction forthwith.
SD/-
JUDGE SD/-
JUDGE MBS/-