Karnataka High Court
Praveen Etta vs Savithir Etta on 31 March, 2017
Bench: Vineet Kothari, H.B.Prabhakara Sastry
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Date of Judgment 31.03.2017 MFA. No.100450/2016
Praveen Etta S/o Chandrashekar Etta
Vs. Savithri Etta W/o Praveen Etta
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31st DAY OF MARCH, 2017
PRESENT
THE HON'BLE Dr. JUSTICE VINEET KOTHARI
AND
THE HON'BLE Dr. JUSTICE H. B. PRABHAKARA SASTRY
MFA No.100450/2016(FC)
BETWEEN:
SHRI PRAVEEN ETTA
S/O CHANDRASHEKAR ETTA
AGED ABOUT 37 YEARS
OCC:SOFTWARE ENGINEER IN
AT & T CO., MATHRUCHAYA NIVAS
HOUSE NO.12-10-350
SEETHAPHALMANDI
SECUNRABAD -31
...APPELLANT
(BY SRI:R M KULKARNI, ADV)
AND:
SMT.SAVITHRI ETTA
W/O PRAVEEN ETTA
D/O LATE KUMKUMA CHINNA NARASIMHULU
AGED ABOUT 33 YEARS
OCC:HOUSEWIFE, R/O HOUSE NO.477/3, WARD NO.17
G T COMPOUND, BESIDE MMTC OFFICE
S N PET, BALLARI
...RESPONDENT
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Date of Judgment 31.03.2017 MFA. No.100450/2016
Praveen Etta S/o Chandrashekar Etta
Vs. Savithri Etta W/o Praveen Etta
(BY SRI:S C HIREMATH, ADV FOR C/R1)
THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY
COURTS ACT, AGAISNT THE JUDGMENT AND DECREE DATED
15.12.2015 PASSED IN MATRIMONIAL CASE NO.68/2015 ON
THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, AT
BALLARI, ALLOWING THE PETITION FILED UNDER SECTION 9 OF
HINDU MARRIAGE ACT.
THIS MFA COMING ON FOR ORDERS THIS DAY, Dr. H B
PRABHAKARA SASTRY, J., DELIVERED THE FOLLOWING:
JUDGMENT
Mr.R M Kulkarni, Adv for appellant.
Mr. S C Hiremath, Adv for C/R1
1. The appellant has filed this appeal under Section 19(1) of The Family Courts Act, 1984, challenging the judgment and decree passed by the Principal Judge, Family Court at Ballari dated 15.12.2015 in Matrimonial Case No.68/2015 decreeing the suit and ordering for restitution of conjugal rights in favour of the respondent herein.
2. In his memorandum of appeal, the appellant has taken the contention that the judgment and decree under appeal is opposed to law and facts and evidence on record and the 3 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta learned Judge has passed the judgment without application of judicious mind and in the process, he has failed to note the scope of Section 9 of Hindu Marriage Act, 1955 (for brevity henceforth called as 'the Act'). Since the respondent is working as a Teacher in a Government School at Bidar District and the appellant is staying at Secundarabad, it requires 5 to 6 hours to reach Secundarabad from Bidar. Though she had promised that she would resign from the job, but she did not keep up her promise. It is the respondent who has withdrawn from the company. The respondent could have joined some job at Secundarabad, which she did not do. If she continues to stay at Bidar District, she cannot lead meaningful life with him, hence, he has prayed to set aside the judgment and decree under appeal.
3. In response to the notice, the respondent is being represented by her Counsel. Lower court records were called for and the same was placed before us.
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Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta
4. Heard arguments from both the sides. Perused the material placed before us including memorandum of appeal, the impugned order and the lower court records in detail.
5. In light of the above, the following points arise for our consideration:
"1. Whether the petitioner before the Court below had made out grounds for a decree in her favour?
2. Whether the judgment and decree under appeal warrants any interference at the hands of this Court?
3. What Order?"
6. My findings to the above points are as follows:
1) Negative
2) Negative
3) As per the final order for the following reasons:
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Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta REASONS:
Point Nos.1 and 2: In order to avoid the repetition of analysis of facts and for simplicity, both these points are taken up together for reasoning.
7. The respondent herein was the petitioner in the Court below and the present appellant was the sole respondent there at. For convenience, the parties would be referred with the rankings they were holding in the Court below respectively.
8. The petitioner-wife filed a petition under Section 9 of the Act in the Court below seeking the relief of restitution of conjugal rights against her husband - the respondent. The summary of the petition averments was that she is the legally wedded wife of respondent since from the date of their marriage, which was held on 14.06.2012 at Secundarabad. For about 3 months after their marriage, they lived happily. Thereafter, the respondent and his family members started ill-treating her. She continued to tolerate all the ill-treatment. The respondent also started demanding dowry from her and threatened her stating 6 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta that he would undergo second marriage with some other girl. She was working as a teacher in the Government High School at Bunguru Village, Bidar District, Karnataka. The respondent and his parents started insisting her to resign the said job as they did not want her to work. At the instigation of respondent, she gave resignation letter on 08.08.2012, but the school authorities did not accept the same. Her husband has got good source of income with a salary of Rs.70,000/- per month. On 06.04.2013, the respondent intentionally and deliberately put her in one of the houses of his sister at Secundarabad. Thereafter, he stopped all sorts of communication with her and also forced her to stop all communication with her parents and her relatives. He was also pressurizing her to write suicide note. He further made her to live separately showing unreasonable excuses. Several of her requests to take her back to matrimonial home went in vain. She filed a complaint before the Women's Police Station at Begumpet, Secunderabad on 05.06.2013. At the conciliation efforts of the police, the respondent took her to his house, due to which, she lived with him till 13.08.2013. Without her 7 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta knowledge, he had filed a petition in FCOP No.441/2013 seeking judicial separation. He started exhibiting his cruel attitude towards her and also started assaulting her continuously. On 13.08.2013, respondent and his family members ultimately threw her out of the house, as such, she came back to Ballari and started residing in the house of her parents. The respondent did not make attempt to take her back once again, as such, he deserted her without any valid reasons. She is ready to join him and to lead happy married life.
9. The respondent-husband filed his statement of objections in the Court below. He denied all the allegations made against him, except admitting his marital relationship with the petitioner. He took a defence that during the marriage communication, it was made known to the petitioner that he wanted to marry a girl from poor family as such he has agreed to marry her. The petitioner had agreed to quit the job at Bidar and take up a job at Secundarabad, where he was working. From the day of their honeymoon, she was taunting, abusing and pressurizing him to leave his joint family and arrange for a 8 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta separate residence, for which he did not agree. She gave torture to his father, due to which, his father suffered with brain haemmorrage and died after 9 months while in coma. His mother is also suffering with health problem due to the acts of the petitioner. She has never shown minimum courtesy towards his sick parents, she was always interested in financial status and thinking of high profile life. She did not accede to his insistence and to settle at Secundarabad. After working for a short duration at Secundarabad in a Junior College and Airtel Office, she was terminated from her services in both the places. She was threatening him by saying that she would commit suicide. She filed a false complaint against him and his parents on 05.06.2013 and on 13.08.2013, created a scene by threatening to commit suicide and left the matrimonial home. Hence, he was constrained to file petition in FCOP No.441/2013 for judicial separation. However, subsequently, he withdrew the said petition, but he filed another petition for divorce in OP No.345/2015, which is pending before the Family Court at Secundarabad. Further, stating that it was the petitioner who 9 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta harassed causing much cruelty and humiliation and voluntarily deserted his house, he prayed for dismissal of the suit.
10. Both the sides led evidence and produced documents. After hearing both the sides, the Court below by its judgment and decree dated 15.12.2015 decreed the suit directing the respondent-husband to take back the petitioner- wife to his house within 60 days from the date of judgment. It is this judgment and decree, the respondent-husband as an appellant, has challenged in this appeal.
11. The petition in the Court below was filed under Section 9 of Hindu Marriage Act, 1955. The said Section reads as below:
"9. Restitution of conjugal rights - When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the 10 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta application should not be granted, may decree restitution of conjugal rights accordingly."
12. A person seeking restitution of conjugal rights in order to get a decree has to prove two things:
(i) that the respondent has withdrawn from the society of the petitioner; and
(ii) that the said withdrawal has been without reasonable excuse.
13. The word 'excuse' appears to have been advisedly used. It is something within the justification and something morethan a mere whim of the respondent. It is a fact, which has to be determined with reference to the respondent's state of mind in the particular circumstances of each case. It is now settled that the foundation of the right to bring a suit for restitution of conjugal rights is one of the primary rights of matrimonial law that, one spouse is entitled to the society and comfort of the other spouse and where either of the spouse has abandoned or withdrawn from the society of the other without 11 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta reasonable excuse or just cause, there should be a decree for restitution of conjugal rights. The burden of proof of withdrawal from the spouse in the society is on that spouse who withdraw from the society and refused to discharge his/her marital obligation.
14. In the instant case, it is not in dispute that the petitioner and respondent are the husband and wife whose marriage was performed on 14.06.2012 at Secundarabad. It is also not in dispute that after living together for a short period, they are now living separately. According to the petitioner, it was only upto 13.08.2013 they lived together and on that day, the respondent and his family members ultimately threw her out of her house, as such, she came back to Ballari and started residing in the house of her parents. On the other hand, the respondent-husband has contended that on the said date i.e. on 13.08.2013, the petitioner-wife created a scene and threatening to commit suicide left the matrimonial home. By this, it is established that from 13.08.2013, till date, they are residing separately. According to the respondent, the petitioner since is 12 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta serving in the District of Bidar as a Teacher in a Government School, she cannot even come and stay with him.
15. Though it is not in dispute that she is serving as a Teacher in Bidar District, but her constraint to stay away from her husband for the time being, without much discussion on the point can be said that, would fall within the ambit of "reasonable excuse" under Section 9 of the Act. But it does not mean that merely her job requirement since prevents her form joining her husband every day that culminates in forfeiting her right to claim restitution of conjugal rights.
16. The petitioner-wife got herself examined as PW1 in the Court below, wherein in her examination-in-chief, she has re-iterated the contention taken up by her in her petition. She has stated that on 06.04.2013, the respondent-husband intentionally and deliberately put her at his sister's house at Secundarabad only for the reason that she was still continuing to be working and did not resign. According to PW1, he did not bother to take her back despite her request, which made her to 13 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta approach the police and lodge a complaint in the Women's Police Station at Begumpet, Secundarabad. The police held counseling for both the husband and wife, due to which, the respondent- husband took her back to his house, where she lived upto 13.08.2013. It was on the said day, the respondent joined by his mother and sister threw the petitioner away from their house once for all. Thus, she was compelled to join her parents and stay with them at Ballari. She has further stated that in the meantime, he had also filed a petition in FCOP No.441/2013 in the Family Court at Secundarabad under Section 10 of the Act for judicial separation. However, the said petition came to be withdrawn on 23.04.2015. She has also got produced the certified copy of the said order, which is marked at Ex.P4.
17. In the meantime, as could be seen from Ex.P5, the petitioner had approached the Hon'ble Supreme Court in Transfer Petition (Civil) No.598/2014, wherein the Hon'ble Apex Court by its order dated 10.10.2014 had passed an interim order of staying the further proceedings in FCOP No.441/2013. In the cross examination of PW1, her evidence to the effect that she 14 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta was left in one of the sister's house of respondent at Secundarabad and the statement by PW1 that she lodged a police complaint on 05.06.2013 and that they held conciliation by virtue of which they continued to live together for a very short further period, has not been denied. The said police complaint has been marked as Ex.R5. In the cross examination of PW1, it was suggested that the petitioner had agreed to resign from her Government job, but she did not keep her promise, which suggestion was not accepted as true by PW1.
18. The respondent-husband has been examined as RW1 and in his examination-in-chief also, he has re-iterated the contents of his statement of objections to the petition. In his examination-in-chief and further examination, he re-iterated and alleged that the petitioner had promised that she would resign from her job immediately after her marriage, but she did not resign the job. In his cross examination, he has made it very clear that due to the conduct of petitioner, it has become impossible for him to stay with her and he has also filed a petition seeking dissolution of marriage.
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19. From this evidence of the parties, it can be inferred that the respondent-husband and his family members never wanted the petitioner to continue to work in Government service at a different place. When they could not ensure that she would resign and join the petitioner, the respondent decided to live separately from her, as such, he proceeded in filing a petition for the relief of judicial separation in FCOP No.441/2013. Had really, the petitioner wanted not to stay with her husband and to be away from her matrimonial house, she would not have lodged the complaint with Women Police Station at Begumpet, Secundarabad on 05.06.2013.
20. It is not in dispute that by virtue of the conciliation held by police, she was taken back to her matrimonial house. This clearly goes to show that the petitioner-wife is interested and putting her effort to join her husband and to lead a happy marital life. Thus, the act of keeping the petitioner-wife at a separate place in one of the houses of his sister at Secundarabad and further filing a petition seeking the relief of judicial separation clearly goes to establish that respondent-husband's 16 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta withdrawal from the society of his wife was without any reasonable excuse.
21. The statement of objection by the respondent and his examination-in-chief as RW1 further goes to show that he attributed the death of his father and alleged ill-health of his mother to the behaviour of the petitioner. However, in the cross examination of RW1, it was elicited that his father died at the age of 70 years and that he died due to high blood pressure. Before his death, he had slipped and fallen in the bathroom. The witness voluntarily added stating that due to high blood pressure, his father had fallen in the bathroom. Similarly, in the cross examination of RW2, the mother of respondent also it was elicited that at the time of death of her husband, he was aged 72 years and that he had fallen in bathroom. The doctor told that due to brain haemmorrage, he had fallen in the bathroom. From this it becomes clear that the cause for the death of his father was something different and it may be probably due to his high blood pressure, but not as alleged by the respondent stating the ill-treatment or neglect by the petitioner. 17
Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta
22. So far as the alleged ill-health of the mother of respondent is concerned, the said mother as RW2 in her cross examination has stated that since 10 years, she has been suffering from high blood pressure and diabetes. The said cross examination had taken place on 04.12.2015. Thus, according to RW2 herself from the year 2005, she has been suffering with those ailments, whereas the marriage of petitioner with the respondent was solemnized on 14.06.2012 i.e., 7 years after the alleged ill-health of the mother of respondent. From this, it is clear that the alleged misconduct of the petitioner is not a reason for ill-health of the mother of the respondent. On the contrary, it can be inferred that the respondent is trying to find some fault with the petitioner by making various allegations of misconduct against her.
23. In addition to the above, another reason which the respondent-husband assigned for living separately from his wife is her alleged writing of a suicide note. Incidentally, the said note has been produced and marked by the respondent-husband 18 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta himself at Ex.R3. The said document is extracted in its entirety as below:
"Thanks geeta akka nee purse your gift box return teskonedante. Thank you thanks a lot.
Thanks attamma mee bag return teskonendaneku. Thank you."
24. A reading of the said document at no stretch of imagination goes to show that it is a suicide note. On the other hand, the evidence of PW1 in her cross examination that the said writing is with respect to her sister-in-law and mother-in-law to take back the gifts given by them appears to be quite convincing. All these aspects clearly go to show that the respondent-husband somehow wanted to get rid of his wife and as such, kept her separate and did not allow her to join him back. Thus, without any reasonable excuse, he has withdrawn from the society of his wife.
25. Learned Counsel for the respondent in his arguments relied upon the decision in the case of Gowrishankara Vs K 19 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta Gayathridevi reported in 1984 1 KLJ 443, wherein this Court at paragraph 15 was pleased to observe that - had the husband and wife really were living in cordial terms then the husband who was the petitioner before it could not have issued legal notice calling upon his wife to join him. Making further observation, this Court was pleased to reject the appeal of the husband who wanted a decree of dissolution of marriage. In the case on hand also, admittedly from 13.08.2013, the petitioner and the respondent are not living together. Further more, in the meantime, the husband had also filed a petition for the relief of judicial separation which ultimately was withdrawn by him. Even according to the respondent-husband, he has filed a petition seeking dissolution of marriage in OP No.345/2015, which is still pending. All these aspects make it abundantly clear that respondent-husband without any reasonable excuse has withdrawn from the society of the petitioner-wife. Thus, the petitioner in the court below has established the essential ingredients of Section 9 of the Act and the Court below has properly appreciated and analyzed the material placed before it 20 Date of Judgment 31.03.2017 MFA. No.100450/2016 Praveen Etta S/o Chandrashekar Etta Vs. Savithri Etta W/o Praveen Etta including the evidence and has come to a correct finding to allow the petition by passing the decree of restitution of conjugal rights. As such, we do not find any grounds to interfere in the said order.
26. Accordingly, we answer both these points in the Negative.
27. Point No.3 : In view of our findings to point Nos.1 and 2 and for the reasons given thereunder, we proceed to pass the following:
ORDER This Miscellaneous First Appeal of Appellant-Husband Praveen Etta is dismissed. There is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE *bgn/-