Karnataka High Court
Mallikarjunappa K M vs Smt. C.S.Mala on 10 March, 2023
Author: Alok Aradhe
Bench: Alok Aradhe
-1-
MFA No.4876 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE ALOK ARADHE
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.4876 OF 2016 (FC)
BETWEEN:
MALLIKARJUNAPPA K M
S/O LATE MALLAPPA
AGED 56 YEARS
ASSISTANT DIRECTOR /
DEPUTY CHIEF,
UNIVERSITY EMPLOYMENT
INFORMATION & GUIDANCE BEREAU,
ASIATIC BUILDING, K G ROAD,
BANGALORE - 560009
...APPELLANT
(BY SRI DIVYATEJ H.V., ADV. FOR
SRI R. KOTHWAL & SRI S.MUBARAK BEGUM, ADV.)
AND:
SMT. C.S.MALA
W/O MALLIKARJUNAPPA K M
AGED 39 YEARS
RESIDING AT 234/A, 25TH MAIN,
NEAR POLICE BOOTH,
21ST CROSS, 'D' BLOCK, J P NAGAR,
MYSURU - 570023.
...RESPONDENT
(BY SRI IMRAN G., ADV. FOR
SRI S. ANIL KUMAR, ADV.)
THIS M.F.A IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, AGAINST THE JUDGMENT AND DECREE
-2-
MFA No.4876 of 2016
DATED 06.02.2016 PASSED IN M.C.NO.438/2011 ON THE FILE
OF THE JUDGE, ADDITIONAL FAMILY COURT, MYSURU,
REJECTING THE PETITION FILED U/S 13(1) (ia) AND (ib) OF
HINDU MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
07.03.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, VIJAYKUMAR A.PATIL J., DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 06.02.2016 passed in M.C.No.438/2011 by the Addl. Judge, Family Court, Mysore, by which the petition filed by the appellant seeking dissolution of marriage was dismissed.
2. Brief facts giving rise to filing of this appeal are that the appellant and respondent got married on 15.05.1998 as per the Hindu customs and rituals. Initially they have led a happy married life. The appellant took the respondent to her parental home and requested her to stay there as he is working in Mangalore. It is further averred that the respondent used to insult the appellant -3- MFA No.4876 of 2016 and always used to quarrel with him. It is further averred that she used to leave the matrimonial home without informing the appellant and used to threaten the appellant that she will commit suicide.
3. It is further averred that on 10.08.1999 she gave birth to the first child. It is averred that when the appellant went to see the child she behaved rudely, created scene and insulted the appellant. It is further averred that the appellant was transferred to Shivamogga on 20.08.2000 and thereafter the appellant took the respondent to Shivamogga. It is averred that the appellant has taken care of the respondent and child with love and affection, despite the same the respondent used to quarrel with the appellant on silly reasons.
4. It is averred that during 2003 respondent gave birth to the second child and during her second pregnancy doctor had advised her to take rest and not to travel ignoring such advise she went to her parental home. It is further averred that the appellant has provided treatment -4- MFA No.4876 of 2016 to the respondent in different hospitals and Dr.Anil Kumar has opined that the respondent is suffering from 'Ego Psychopathic'. It is further averred that on 4.3.2008 without informing the appellant the respondent left the matrimonial home. The appellant has further averred that the respondent has lodged complaint against him in Shivamogga Police Station and also filed petition under the provisions of Domestic Violence Act at Mysore and sought maintenance.
5. The respondent filed statement of objections before the Family Court admitting the factum of the marriage and also admitted the birth of two children out of the wedlock. The respondent has denied the averments of cruelty and pleaded that the appellant has refused to take her to Mangalore, hence she was required to stay at parental home. It is further averred that the respondent's father has provided money to the appellant for arranging the house and procurement of household articles. It is further averred that the appellant used to harass the respondent -5- MFA No.4876 of 2016 and forcibly sent her out of the matrimonial home without any reason.
6. The Family Court recorded the evidence of the parties. The appellant examined himself as PW.1 and got marked the documents as Ex.P1 and respondent examined herself as RW.1 and no documents were marked. The Family Court by judgment dated 6.2.2016 inter alia held that the appellant has failed to prove the ground of cruelty and desertion. Accordingly, the petition was dismissed. In the aforesaid factual matrix the present appeal has been filed.
7. We have heard the learned counsel for the appellant and the respondent.
8. Learned counsel for the appellant submitted that the relationship between the parties were cordial in the beginning. It is contended that out of the wedlock a son and a daughter have been born and they are with the respondent. It is contended that the respondent used to quarrel with the appellant for one or other reason. It is -6- MFA No.4876 of 2016 further contended that the appellant took the respondent to Shivamogga on his transfer and there also the respondent has not changed her attitude and she used to quarrel with the appellant and his family members without any reason. It is further contended that without informing the appellant the respondent used to go out from the home, which has caused mental cruelty to him. It is further contended that the respondent used to insult the appellant and his relatives. It is further contended that on 02.03.2008 the respondent has assaulted the appellant and caused injury and without any reason she has left the matrimonial home. The Family Court has erred in appreciating the evidence on record which has resulted in rejection of the petition filed by the appellant.
9. Per contra, learned counsel for the respondent supports the judgment and decree of the Family Court. It is submitted that the appellant has failed to prove the grounds of cruelty and desetion before the Family Court and the Family Court has rightly rejected the petition. It is submitted that the respondent admits the factum of -7- MFA No.4876 of 2016 marriage and birth of the children, however, she denies the allegation of cruelty and desertion.
10. We have considered the submissions made by learned counsel for the appellant and respondent and have perused the records.
11. The appellant has pleaded in his petition that the respondent used to quarrel with the appellant on silly reasons and she has threatened the appellant that she will commit suicide. It is further pleaded that the respondent used to insult the appellant and his family members. It is further pleaded that the respondent used to leave the matrimonial home without informing the appellant. The said averments are reiterated in the evidence of PW.1. On careful examination of the pleading and evidence of PW.1, it is evident that the appellant has narrated various instances of quarrels stating that the respondent used to quarrel with the appellant and his family members on many occasions. However, no specific instance of cruelty is pleaded nor adduced any evidence in support of such -8- MFA No.4876 of 2016 ground. The appellant has pleaded that the respondent has been treated by various Doctors and she is suffering from Ego psychopathic. However, no expert evidence is adduced nor any document is placed in support of the said plea. The appellant has further pleaded that on 2.3.2008, the respondent has assaulted him with vegetable cutter and abused him in filthy language. In support of the said plea the appellant has not placed an iota of evidence. The allegations are vague and specific instances of cruelty are neither pleaded nor proved. The allegations are nothing but usual wear and tear in the family.
12. It will be useful to refer the decision of the Hon'ble Supreme Court in N.G. DASTANE (Dr.) Vs. S. DASTANE AIR (1975) SC 1534 wherein it is held at paragraph 72 as follows:-
"72. It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival and in cases of cruelty, "very slight fresh evidence is needed to show a resumption of the cruelty, for cruelty of character is bound to -9- MFA No.4876 of 2016 show itself in conduct and behavior, day in and day out, night in and night out". But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. Condonation is conditional forgiveness but the grant of such forgiveness does not give to the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutely to submit to the cruelty of the other spouse without relief or remedy. The respondent ought not to have described the appellant's parents as "wicked"
but that perhaps is the only allegation in the letter Ex.318 to which exception may be taken. We find ourselves unable to rely on that solitary circumstance to allow the revival of condoned cruelty".
13. The Hon'ble Supreme Court has held that in a case for decree of divorce on the ground of cruelty, cruelty should be of such a character so as to cause in the mind of the appellant a reasonable apprehension that it will be harmful or injurious for the appellant to live with the
- 10 -
MFA No.4876 of 2016respondent. In the instant case, no such instances have been established by the appellant.
14. The Family Court has rightly disbelieved the plea of the appellant insofar as ground of cruelty is concerned. We do not find any infirmity in finding recorded by the Family Court.
15. The appellant has filed the petition seeking dissolution of marriage on the ground of cruelty and desertion. However, no specific pleading or evidence is placed before the Family Court to prove the ground of desertion. The appellant is required to plead specifically that the respondent has deserted the appellant for continuous period for not less than two years immediately preceding the presentation of petition. In the absence of any pleading and evidence to prove the ground of desertion, the appeal fails on this ground also.
16. The Family Court on meticulous appreciation of evidence on record, has recorded a finding that the appellant has failed to prove the grounds for dissolution of
- 11 -
MFA No.4876 of 2016marriage on the ground of cruelty and desertion. The said finding of the Family Court do not suffer from any infirmity warranting interference by this Court in this appeal.
17. For the aforementioned reasons we do not find any merit in this appeal, the same fails and is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE NG CT: DMN