Karnataka High Court
Sri Akshaykumar S/O Shasappa Rebinal vs Smt. Renuka @ Laxmi W/O Akshaykumar on 30 November, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
M.F.A. No.200381/2017(MC)
BETWEEN:
Sri Akshyakumar S/o Shasappa Rebinal,
Age: 31 years,
Occ: IRB Police Constable,
R/o Opp. Al-Ameen
Besides D.Ed. College,
Vijayapur,
Dist : Vijayapur - 586 101.
... Appellant
(By Sri Ajaykumar A.K., Advocate)
AND:
Smt. Renuka @ Laxmi
W/o Akshaykumar Rebinal,
Age: 32 years,
Occ: Woman Police Constable,
R/o Satihal,
Tq: Basavan-Bagewadi,
Dist: Vijayapur,
Now at APMC Police Station,
MFA No.200381/2017
2
Basavan Bagewadi Road,
Vijayapur - 586 101.
... Respondent
(By Smt. Ratna N. Shivayogimath, Advocate)
This Miscellaneous First Appeal is filed under
Section 19(1) of the Family Courts Act, 1984, seeking
to allow the appeal by setting aside the judgment and
decree dated 06.01.2017 passed in M.C.No.23/2015
by the learned Judge, Family Court, Vijayapur and
consequently allow the petition, in the interest of
justice and equity.
This appeal having been heard through Physical
Hearing/Video conference and reserved for Judgment
on 27.09.2022, coming on for pronouncement of
Judgment this day, Anil B. Katti, J., delivered the
following:
JUDGMENT
The appellant-petitioner, in the present appeal is challenging the judgment dated 06.01.2017 passed in MC No.23/2015 by Judge, Family Court, Vijayapura.
2. The parties to the appeal are referred with their ranks assigned in the trial Court for the sake of convenience.
3. The germane facts leading to the case of the petitioner can be stated in a nutshell to the effect MFA No.200381/2017 3 that respondent is legally wedded wife of the petitioner. Their marriage was solemnized on 05.12.2012 in Rajrajeshwari Mangal Karyalaya, KSRTC Depot No.2, Athani Road, Vijayapura in accordance with rituals and customs prevailing in their community. The respondent on 12.02.2012 had gone to her parental village at Sathiyal in Basavanabagewadi Taluk and returned to the conjugal home on 18.12.2012. The respondent even during this short period was insisting the petitioner for making separate residence and has also informed that her marriage with the petitioner was a forcible marriage.
4. The respondent left the matrimonial home on 07.01.2013 and had gone to her parental house for 'Aashada Masa'. In the meantime, the brother of petitioner has received anonymous letter complaining the character of respondent. The respondent has informed the petitioner that she has got right to have MFA No.200381/2017 4 physical relationship with anybody prior to her marriage. The petitioner filed M.C. No.22/2013 for seeking decree of divorce on the ground of respondent leading adulterous life, on the file of Judge, Family Court, Vijayapura. The said petition after contest came to be dismissed by judgment dated 20.10.2014.
5. The petitioner has requested the respondent on 01.01.2015 to join the company of petitioner to which she has refused. The respondent has willfully deserted the company of the petitioner without there being any lawful excuse from 07.01.2013. The respondent who was in the company of another person has undergone abortion in a private hospital before the marriage and she continued to have extra marital relationship with someone and completely deserted the company of petitioner. The respondent has failed to discharge her marital obligation. The conduct of the respondent and refusing to join the company of petitioner has caused MFA No.200381/2017 5 mental cruelty to the petitioner. Therefore, on these grounds prayed for allowing the petition and to grant decree of divorce.
6. In response to the notice the respondent has appeared through her counsel and filed objections contending that petition averments are false and frivolous and not maintainable in law. The respondent has specifically denied that during her short stay with the petitioner has insisted for separate house and informed the petitioner that her marriage with the petitioner was a forced marriage. The respondent has further denied that she refused to join the company of petitioner after completing 'Aashada Masa'. It is the case of respondent that on the basis of anonymous letter, the petitioner has made false and frivolous allegations against the respondent leading adulterous life. The petitioner on making such false allegation has filed M.C.No.22/2013 on the file of the Judge, Family Court, Vijayapura and after contest the said petition MFA No.200381/2017 6 came to be dismissed by order dated 20.10.2014. The petitioner by taking undue advantage of respondent staying away during the pendency of divorce petition has made false allegations that the respondent has deliberately deserted the company of petitioner. The respondent is always ready and willing to join the company of petitioner for leading marital life, but the petitioner himself is not allowing the respondent to join matrimonial home. The respondent has denied the allegation that on 01.01.2015 the petitioner has met the respondent and requested to join him with elders and she did not join the company of petitioner after dismissal of the divorce petition. Therefore on these grounds prayed for dismissal of the petition.
7. The petitioner in order to prove his case relied on the oral evidence of PW.1 and PW.2 and the documents as per Exs.P.1 to P.28. The respondent has relied on the evidence of RW.1 to RW.5 and the documents as per Exs.R.1 to R.11. The Trial Court MFA No.200381/2017 7 after having heard the arguments of both sides and on perusal of oral and documentary evidence rejected the divorce petition filed by the petitioner seeking divorce against the respondent.
8. The appellant/petitioner has challenged the correctness and legality of the judgment and decree in refusing to grant the decree of divorce in MC No.23/2015 contending that the Trial Court has not properly appreciated the oral and documentary evidence placed on record by the petitioner in a proper and perspective manner. The Trial Court was not justified in rejecting the medial documents as per Exs.P.9 to P.13 in proof of respondent having got aborted in Aditya Hospital. The case of appellant that even after marriage, the respondent continued her relationship with Chidanand Donur has not been properly appreciated with reference to the evidence on record. The approach and appreciation of oral and documentary evidence in refusing to grant decree of MFA No.200381/2017 8 divorce is contrary to law and evidence on record. Therefore, prayed for allowing the appeal.
9. In response to the notice of appeal, the respondent has appeared through counsel.
10. The trial Court records have been secured.
11. Heard the arguments of both sides.
12. On the basis of above narrated facts, the following points arise for consideration:-
i) Whether the judgment and decree of the Trial Court in refusing to grant the decree of divorce as prayed by the petitioner calls for any interference by this court?
ii) What order?
REASONS
13. Point No.1: The petitioner has sought for decree of divorce against respondent on the ground of cruelty in terms of Section 13(1), (ia) and also on the ground of desertion in terms of Section 13(1), (ib) of MFA No.200381/2017 9 Hindu Marriage Act, 1955. The trial Court after appreciating the oral and documentary evidence has dismissed the divorce petition of the petitioner on both counts. The correctness and legality of the said judgment and decree passed by the Trial Court has been challenged by the appellant in the present appeal.
14. The learned counsel for the appellant has argued that Trial Court was not justified in rejecting the oral evidence and the medical documents as per Ex.P.9 to Ex.P.13 in proof of allegation of respondent leading adulterous life and she was aborted. There is ample evidence on record that respondent after 07.01.2013 has never chosen to join the company of petitioner for leading marital life and the respondent has failed to discharge her marital obligation. There is enough material on record to prove the allegation of cruelty and desertion and the said evidence has not been properly appreciated by the Trial Court. MFA No.200381/2017 10
15. On the other hand the learned counsel for respondent has argued that the petitioner has made false and frivolous allegations against respondent of leading adulterous life with someone on the basis of anonymous letter. There is no concrete evidence placed on record by the petitioner to prove that respondent has deliberately deserted the company of petitioner and failed to discharge her marital obligations. The petitioner has also not placed any evidence to prove the allegation that respondent has extra marital affair even after the marriage. The above referred arguments of both sides will have to be appreciated with reference to the evidence on record.
16. The respondent is legally wedded wife of the petitioner and their marriage was solemnized on 05.12.2012 in Rajrajeshwari Mangal Karyalaya, KSRTC Depot No.2, Athani Road, Vijayapura. The petitioner on the allegation of respondent leading adulterous life has sought for decree of divorce in MC No.22/2013 on MFA No.200381/2017 11 the file of the Judge, Family Court, Vijayapura and after contest the same came to be rejected by judgment dated 20.10.2014. The petitioner has filed the present petition seeking decree of divorce under Sections 13(1), (ia) and 13(1), (ib) of the Hindu Marriage Act on 20.01.2015, exactly three months after dismissal of aforesaid divorce petition are the facts not in dispute and the same can also be borne out from the material evidence placed on record.
17. The petitioner has contended that he was subjected to mental cruelty on account of respondent leading adulterous life with someone before the marriage. The basis for such allegation is anonymous letter received by the brother of the petitioner as per Exs.P.5 to P.8. The said documents are sought to be supported by medical documents as per Exs.P.9 to P.13, P.23 and P.24. The respondent was alleged to have undergone MTP (Medical Termination of Pregnancy) on 11.05.2012. The certified copy of the MFA No.200381/2017 12 deposition of Dr. Rajeshwari Akki is produced at Ex.P.27. On the same allegations, the petitioner admittedly has already filed petition for divorce under MC No.22/2013 against the respondent and on entering appearance she has filed objections. The said petition after contest came to be dismissed by judgment and decree 20.10.2014. The relevant documents of the said proceedings are produced at Ex.P.1 to Ex.P.4. Looking to the above referred documents and evidence of PW.1 it would go to show that the alleged act of adultery of respondent is prior to the marriage with petitioner. The petitioner has lived with the respondent after marriage. The allegation of petitioner that respondent was living with stranger house at Venkateshnagar in front of School No.6 of Vijayapura, so also the respondent having disclosed that her marriage with petitioner was forcible marriage have been considered by the Trial Court in the earlier proceedings as per Exs.P.1 to P.4. The said divorce petition came to be dismissed by judgment MFA No.200381/2017 13 dated 20.10.2014 as per Ex.P.3 and the petitioner has not challenged the same in appeal. Therefore the judgment and decree in M.C No.22/2013 as per Exs.P.3 and P.4 has attained its finality. The petitioner cannot make the same allegations in the present petition that the conduct of respondent in leading alleged adulterous life has caused mental cruelty to the petitioner.
18. The petitioner has contended in the present petition that after the dismissal of petition under M.C.No.22/2013 as per Ex.P.3 met the respondent with elders on 01.01.2015 and requested the respondent to join the petitioner. The respondent is alleged to have refused the said offer of the petitioner and threatened to file complaint against the petitioner. The respondent has denied the said allegation. Other than the petitioner pleading to that effect in the petition has not produced any acceptable evidence on record to show that the respondent has not only MFA No.200381/2017 14 refused to join the company of petitioner and threatened to file the complaint against petitioner. The petitioner in order to substantiate the said allegation relied on the evidence of PW.2-Kadappa Nagappa Kadkol and he has deposed to the effect that on 01.01.2015 he accompanied the petitioner and his father to the house of respondent. When they requested the respondent to join the company of petitioner, she refused to join the company and threatened of filing complaint. PW.2 has admitted in his cross-examination that he do not know the cause for difference between petitioner and respondent. The evidence of PW.1 in examination-in-chief is silent about having gone to the house of respondent with elders. If for the sake of argument, even if it is to be accepted that respondent has refused to join the company of petitioner, then in our opinion that itself cannot be termed as cruelty in the light of allegations made against respondent of leading adulterous life. The allegation of threat said to have been caused by MFA No.200381/2017 15 the respondent of she filing complaint is not supported by any evidence on record. The petitioner has not made any serious efforts to get back the respondent to matrimonial home after the dismissal of MC No.22/2013 as per Ex.P3. The petitioner has not issued any notice nor filed any petition under Section 9 of Hindu Marriage Act seeking restitution of conjugal rights. On the other hand, the petitioner has opposed the petition filed by the respondent under Section 9 of Hindi Marriage Act seeking the relief of restitution of conjugal rights. The petitioner during the course of his cross-examination has categorically stated that he is not willing to lead marital life with the respondent, even if the respondent is willing to join the matrimonial home. Therefore, we find no substance in the contention of the petitioner that he was subjected to mental cruelty on account of the aforesaid alleged conduct of the respondent.
MFA No.200381/201716
19. The petitioner has contended that respondent after marriage had led marital life with petitioner only for twenty five days. The respondent had gone for parental house on 07.01.2013 for 'Aashada Masa' and thereafter she did not come back to the matrimonial home. The respondent has deliberately without there being any just and sufficient cause deserted the company of petitioner for more than two years. This contention of the petitioner has to be appreciated in the light of allegation made against the respondent and the material evidence on record.
20. The learned counsel for petitioner has argued that admittedly respondent did not come back to matrimonial home after she left to parental house for 'Aashada Masa'. The learned counsel for the petitioner has also invited our attention to the admission of RW.1 in her cross-examination that she has not gone to the matrimonial home for leading MFA No.200381/2017 17 martial life from 24.01.2013. In view of the said admission of respondent in her cross-examination, it is contended that the allegation of desertion is proved by the petitioner. This statement of respondent in her cross-examination has to be appreciated by reading the entire evidence of RW.1.
21. The term desertion in terms of Section 13(1)(ib) of Hindu Marriage Act means the desertion of petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of the party. The desertion means withdrawing from matrimonial obligation. It is a negation of living together which is essence of in his matrimonial relationship. It is total reputation of marital obligations. The following are essential requires for desertion:
1) Factum of separation of one spouse from other;
2) Animus deserendi with an intention to desert permanently;MFA No.200381/2017 18
3) The deserted spouse must not have agreed to the desertion;
4) The desertion must be without reasonable cause;
5) This status of affair must have continued for atleast two years.
22. In order to obtain divorce on this ground, it must be shown that the other party has deserted the petitioner for continuous period of not less than two years immediately preceding the presentation of petition, without reasonable excuse or against the wish of petitioner. However, before granting the decree of divorce on this ground, the Court must be fully satisfied that the respondent has animus deserendi i.e., intention to desert and for that purpose the circumstance and the purpose for which desertion has taken place shall be examined.
23. The Constitutional Bench of Hon'ble Supreme Court has interpreted the word 'desertion' in the decision reported in AIR 1964 Supreme Court Page No.40 - (Lachman Uttamchand Kripalani vs. MFA No.200381/2017 19 Meena alias Mota), wherein it has been observed and held that:
In its essence desertion meaning the intentional permanent forsaking and abandonment of one spouse by the other's consent, and without reasonable course. It is total repudiation of obligations of marriage.
If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disguised, without intending permanently to cease co- habitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation (2) the intention to bring co-habitation permanently to an end (deserendi). Similarly, two elements are essential so far as the deserved spouse is concerned. (1) the absence of contents, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Desertion is a matter MFA No.200381/2017 20 of inference to withdrawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference, i.e. to say, the facts have to be viewed as to the purpose which is revealed by those acts or any conduct and expression of intention, both anterior and subsequent to the factual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion comes when the fact of separation and the animus deserendi co- exists. But it is not necessary that they should commence at the same time. The de-facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi co-inside in point of time.
The Honb'le Supreme Court has further held that the burden of proving the factum as well as animus MFA No.200381/2017 21 deserendi is on the petitioner who seeks divorce on the ground of desertion.
24. The Division Bench of Hon'ble Andhra Pradesh High Court reported in AIR 2009 Andhra Pradesh Page No.54 - (Lakkaraju Pradma Priya vs. Lakkaraju Shyam Prasad) by relying on the aforesaid decision of the Hon'ble Supreme Court has held that the factum of separation and animus deserendi, the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period has to be proved by the spouse seeking divorce on the ground of desertion.
25. The allegation of desertion may be actual or constructive. The desertion is not withdrawal from a particular place, but it is withdrawal from a particular state of things i.e., cohabitation. If one spouse intentionally neglects another spouse, then it will be a case of constructive desertion, even though they are MFA No.200381/2017 22 living in same house where the husband creates a condition in which the wife is compelled to leave his company and live separately, the wife will not be held guilty of desertion, but the husband himself would be guilty of desertion.
26. In the present case, undisputedly, the petitioner had filed divorce petition under MC No.22/2013 on 24.01.2013. It means that the alleged desertion is claimed to be from the date of filing the divorce petition till giving evidence of respondent before the Court. The marriage between petitioner and respondent took place on 05.12.2012. The legal requirement in terms of Section 13(1)(ib) of Hindu Marriage Act is that desertion must be for a period of continuous period of not less than two years immediately preceding the presentation of petition. In the present case the first divorce petition was filed by petitioner under M.C.No.22/2013 is on 24.01.2013. The period of two years desertion as contemplated in MFA No.200381/2017 23 terms of Section 13(1)(ib) of Hindu Marriage Act was not completed. The second divorce petition is filed on 20.01.2015 and the same is filed within three months after the disposal of M.C.No.22/2013. If the period of two years is calculated from 24.01.2013 in view of the above admission of respondent in her cross- examination till the date of filing present petition on 20.01.2015 then also it will not complete desertion of a continuous period of two years as required in terms of Section 13(1)(ib) of the Hindu Marriage Act. The respondent was forced to live in her parental house on account of initiation of litigation by petitioner for seeking decree of divorce. The time spent during the course of litigation and in the process respondent living separately cannot be termed as willful and deliberate desertion within an intention to put the marital relationship end once for all. The petitioner right from the day of respondent having not returned to matrimonial home after Aashada Masa on 07.01.2013 till the date of filing petition as per Ex.P1 MFA No.200381/2017 24 on 24.01.2013 has not made any sincere effort to get back the respondent to matrimonial home for discharging marital obligation. On the other hand, based on alleged anonymous letters as per Exs.P.5 to P.8 has straight away proceeded to file divorce petition against respondent as per Ex.P1. Therefore from the evidence on record, it cannot be concluded that the respondent has deserted the petitioner for continues period of not less than two years immediately preceding the presentation of the petition. It may be true that the respondent during the pendency of litigation as aforesaid must have resided separately, but that does not mean that there is deliberate desertion to end the marital relationship once for all.
27. The trial Court has rightly appreciated the oral and documentary evidence placed on record and has arrived at just and proper conclusion in holding that the petitioner has failed to prove both the cruelty and desertion in terms of Section 13(1)(ia) and (ib) of MFA No.200381/2017 25 the Hindu Marriage Act. We find no valid grounds to interfere with the findings recorded by the Trial Court. Consequently, point No.1 for determination is answered in negative.
28. Point No. 2:- In view of the reasons recorded while dealing in point No.1, we proceed to pass the following:
ORDER The appeal filed by the appellant is hereby dismissed as devoid of merits.
The judgment and decree passed by the Court of the Judge, Family Court, Vijayapura in MC No.23/2015 dated 06.01.2017 is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE Sn/Sbs*