Karnataka High Court
P Madhavi Latha vs Paluru Suresh on 28 February, 2023
Author: Alok Aradhe
Bench: Alok Aradhe
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MFA No.5788 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A PATIL
MISCELLANEOUS FIRST APPEAL NO.5788 OF 2014 (FC)
BETWEEN:
1. P. MADHAVI LATHA
AGED ABOUT 30 YEARS
Digitally signed D/O B SUBBAIAH
by RUPA V W/O PALURU SURESH
Location: High R/AT NO.11-01-2012
Court of
Karnataka 1ST FLOOR, PORUMAMILLA ROAD
MAIN BAZAAR, OPPOSITE POLICE STATION
BADVEL TOWN 516227, KADAPA DISTRICT
ANDHRA PRADESH.
...APPELLANT
(BY SRI. ARAVIND REDDY H, ADV.,)
AND:
1. PALURU SURESH
AGED ABOUT 36 YEARS
S/O P. RAMACHANDRAIAH
R/AT FLAT NO.101, 1ST FLOOR, NO.4
SRI SAI KRISHNA VIHAR
2ND CROSS, AYYAPPA LAYOUT
BEHIND KMF DAIRY, MUNNEKOLALU
MARATHAHALLI, BANGALORE-560037.
...RESPONDENT
(BY SRI. M. NARAYANA REDDY, ADV.,)
THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED:29.9.2012
PASSED IN M.C.NO.2691/2011 ON THE FILE OF THE II
ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE,
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MFA No.5788 of 2014
ALLOWING THE PETITION FILED U/SEC 13(1)(ia) OF THE
HINDU MARRIAGE ACT AND REJECTING 13(1)(ib) OF THE
HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 19(1) of the Family Courts Act, 1984 has been filed by the wife against the judgment dated 29.09.2012 passed by the family court by which the petition filed by the respondent seeking dissolution of marriage on the ground of cruelty has been allowed.
2. Facts giving rise to filing of this appeal briefly stated are that the marriage between the parties was solemnized on 26.08.2004 in Andhra Pradesh. The parties joined the matrimonial home and lived together. Out of the wedlock, two children were born to the appellant on 03.05.2007 as well as 20.10.2008. -3- MFA No.5788 of 2014
3. The respondent filed a petition under Section 13 of the Hindu Marriage Act, 1944 (hereinafter referred to as 'the Act' for short) seeking dissolution of marriage on the ground of cruelty and desertion. It was averred in the petition that soon after the marriage, the respondent used to quarrel with the appellant and used to show disrespect to the appellant as well as her parents. It was further pleaded that the appellant failed to discharge her matrimonial duties and obligations and indulged in irresponsible behaviour. It was averred that the appellant neither took care of the respondent nor provided food to him. It was also averred that the appellant was in the habit of leaving the matrimonial home without any intimation to the respondent and used to stay in her parents home for months together.
4. It was pleaded in the petition that in the month of October, 2008, the appellant left the matrimonial home without informing the respondent. It -4- MFA No.5788 of 2014 was also pleaded that on 20.03.2010, the appellant consumed poison and attempted to commit suicide. Immediately thereafter, a panchayat was convened on 23.10.2010, in which the appellant stated that she is not interested in continuing the matrimonial relationship. Thereafter, the appellant on 26.05.2011, lodged a complaint against the respondent and members of his family for the offences punishable under Section 498A of Indian Penal Code, 1860 and Sections 3 and 4 of Dowry Prohibition Act , 1961. The appellant also lodged a complaint with the officer attached to District Women and Child Development Department of Kadapa District, State Andhra Pradesh. Accordingly, the respondent sought dissolution of marriage on the ground of cruelty and desertion.
5. The appellant was served with the summons of the proceedings. She entered appearance and -5- MFA No.5788 of 2014 engaged a counsel. However, the respondent did not file any statement of objections.
6. The respondent examined himself as PW1 and exhibited 19 documents viz., Ex.P1 to Ex.P19, whereas, the appellant neither examined herself nor produced any documents. The family court vide judgment dated 29.09.2012 inter alia held that as per the averments made in para 10 of the petition, the appellant has deserted the respondent on 23.03.2010, whereas, the petition has been filed on 04.08.2011. It was further held that since, the parties are not living separately for a period of two years immediately preceding the date of petition, the ground of desertion as pleaded by the respondent is not proved. However, the family court relied on the testimony of the respondent, which was not even challenged in the cross examination and held that the ground of dissolution of marriage is made out. Accordingly, the family court vide judgment dated -6- MFA No.5788 of 2014 29.09.2012 dissolved the marriage performed between the parties on the ground of cruelty. Hence, this appeal.
7. Learned counsel for the appellant submitted that the trial court was under an obligation to make an endeavour to bring the parties to reconciliation and the matrimonial matters are required to be dealt with human angle and sensitivity. It is also submitted that while deciding the petition, the family court has failed to take note of Section 23(2) of the Act. It is also urged that the findings recorded by the family court with regard to cruelty suffers from vice of non application of mind. In support of aforesaid submission, reliance has been placed on division bench decision of this court in PADMALATHA VS. M.SURESH BALLAL', ILR 2012 KAR 3928.
8. On the other hand, Learned counsel for the respondent supported the judgement and decree passed by the family court.
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9. We have considered the submissions made on both sides and have perused the record. It is trite law that if a testimony of witness is not challenged in the cross-examination, the same is taken to be accepted. [See: 'VIDHYADHAR VS. MANIKRAO AND ANOTHER', (1999) 3 SCC 573 and MUDDASANI VENKATA NARSAIAH (D) THROUGH LRS. VS. MUDDASANI SAROJANA', (2016) 12 SCC 288]. In the instant case, despite service of notice, the appellant neither filed written statement nor entered the witness box. It is pertinent to note that the appellant has not even chosen to cross examine the respondent.
10. The respondent in his evidence in para 6, has stated that the appellant used to harass and humiliate his old and infirmed parents. It has further been pleaded that in second week of November 2009, the appellant quarrelled with him and his parents and -8- MFA No.5788 of 2014 expressed her unwillingness to continue the matrimonial relationship. Thereafter again, in third week of March 2010, the appellant expressed her desire not to continue the marital relationship. The appellant also extended threat to the respondent that she would commit suicide and eventually on 20.03.2010, the appellant tried to commit suicide by consuming phenol. Thereupon, the respondent had rushed her to nearby hospital and her life was saved.
11. The appellant had also lodged a complaint on 26.05.2011 against the respondent and her family members for the offences punishable under Section 498A of Indian Penal Code, 1860 and Sections 3 and 4 of Dowry Prohibition Act , 1961. The respondent and his parents were detained in the police station and thereafter subsequently were released on bail. At the cost of repetition, it may be noted that the aforesaid testimony of the respondent has not been assailed by -9- MFA No.5788 of 2014 way of cross-examination. In our considered opinion and in the facts and circumstances of the case, the aforesaid averments clearly constitute a case of cruelty. Thus, the family court has rightly dissolved the marriage on the ground of cruelty and we do not find any ground to differ with the view taken by the family court.
12. During the pendency of the appeal, this court by an order dated 14.11.2022 had granted time to parties to enable them to file a joint memo. Thereafter the matter was adjourned. However, it has been stated by the learned counsel for the parties that they are unable to arrive at an amicable settlement. Therefore, the contention that the provisions of Section 23 of the Act have been violated is misconceived and does not deserve acceptance.
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MFA No.5788 of 2014For the aforementioned reasons, we do not find any merit in this appeal. The same fails and is hereby dismissed .
Sd/-
JUDGE Sd/-
JUDGE SS