IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 PRESENT THE HON’BLE MR. L NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.9157 OF 2017 (FC) C/W M.F.A.NO.9158 OF 2017(FC) M.F.A. NO.9157 OF 2017 BETWEEN:
R.ANIL KUMAR, S/O.RANGASWAMY, AGED ABOUT 41 YEARS, R/AT NO.81, 9TH CROSS, KPA BLOCK, WARD NO.132, CHANDRA LAYOUT, BENGALURU – 560040. …APPELLANT (BY SRI.ANIL KUMAR R, PARTY-IN-PERSON) AND:
SMT.S.VEENA, W/O R.ANIL KUMAR, AGED ABOUT 31 YEARS, R/AT CHANDRASHEKARPURA, GUBBI TALUK, TUMKUR DISTRICT – 572216. ...RESPONDENT (BY SRI.S.R.MURALIDHAR AND SRI. H.G.SHIVACHARAN, ADVOCATES) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 22.11.2017 PASSED ON MC NO.3872/2013 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ia) OF THE HINDU MARRIAGE ACT.
M.F.A.NO.9158 OF 2017 BETWEEN:
R.ANIL KUMAR, S/O.RANGASWAMY, AGED ABOUT 41 YEARS, RESIDING AT NO.81, 9TH CROSS, KPA BLOCK, WARD NO.132, CHANDRA LAYOUT, BENGALURU – 560040. …APPELLANT (BY SRI.ANIL KUMAR R, PARTY-IN-PERSON) AND:
SMT.S.VEENA, W/O R.ANIL KUMAR, AGED ABOUT 31 YEARS, RESIDING AT CHANDRASHEKARPURA, GUBBI TALUK, TUMKUR DISTRICT – 572216. ...RESPONDENT (BY SRI.S.R.MURALIDHAR AND SRI. H.G.SHIVACHARAN, ADVOCATES) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 22.11.2017 PASSED ON MC NO.3872/2013 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ia) OF THE HINDU MARRIAGE ACT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY ASHOK G. NIJAGANNAVAR J., PRONOUNCED THE FOLLOWING:
JUDGMENT These two appeals have arisen out of the common judgment and decree dated 22.11.2017 passed in M.C. No.3872/2013 by the Principal Family Court, Bengaluru.
2. M.F.A. No.9157/2017 is preferred for setting aside the judgment and decree dated 22.11.2017 passed by allowing the petition under Section 13(1)(1A) of the Hindu Marriage Act.
3. M.F.A. No.9158/2017 is preferred for setting aside the judgment and decree dated 22.11.2017 by dismissing the counter claim of the appellant under Section 9 of the Hindu Marriage Act.
4. Since these two appeals are against one and the same order passed in M.C. No.3872/2013 they are clubbed and common order is passed.
5. The appellant is the husband and the respondent is the wife. Their marriage was solemnized on 7.5.2012 at Sri Balaji Samudaya Bhavana, Bengaluru. After the marriage the respondent came to the house of the appellant and stayed only for eight to ten days. Since the appellant was the only son to his aged parents they had never demanded dowry and have not received any gold or silver items. The parents and sister of the respondent started insisting the appellant to make a separate house by leaving his aged parents. They did not even perform the nuptial ceremony when the appellant had gone to the in-law’s house and they did not allow him to have sexual intercourse with the respondent. The respondent never attended her duties as a wife and she was totally indifferent. Therefore, the panchayath was held in presence of elders, but there was no settlement whatsoever. When the appellant did not heed to the demands of the respondent and her parents they insisted him to give divorce as the respondent is not interested in him and also insisted to give Rs.10,00,000/-. The respondent developed hostile attitude towards appellant and filed a false complaint against him to the police and got him arrested. Even the parents of the appellant were compelled to sit in the police station. Even though the appellant was ready and willing to take the respondent back by forgetting and forgiving all the ill treatment and unsavory behaviour, the respondent filed a petition seeking divorce on the ground of cruelty and other frivolous grounds.
6. The appellant appeared in the said petition and filed objections along with counter claim seeking restitution of conjugal rights.
7. On the basis of pleadings the Family Court has framed the following issues :
1. Whether the petitioner/wife proves that respondent/husband subjected her to cruelty after solemnization of the marriage?
2. Whether the respondent/husband proves that petitioner withdrawn from the society of respondent without any reasonable excuse or cause?
3. Whether the petitioner is entitle for the relief of divorce?
4. Whether the respondent is entitle for the relief of restitution of conjugal rights?
5. What order?”
8. On hearing the parties order dated 22.11.2017 was passed allowing the petition filed by the respondent under Section 13(1)(1a) of the Hindu Marriage Act and dismissing the counter claim of the appellant under Section 9 of the Hindu Marriage Act. The marriage performed on 07.05.2012 at Bengaluru was dissolved by a decree of divorce and the claim restitution for conjugal right was rejected. Being aggrieved by the said order the appellant is before this Court.
9. Both these appeals were preferred on 02.12.2017, but no interim orders were passed. On 21.02.2018 the learned counsel for the respondent wife had submitted before this court that after passing of divorce decree dated 22.11.2017 respondent Smt. Veena has remarried on 4.1.2018. Both the appellant/party- in-person and respondent were present before the Court. Learned counsel for the respondent submitted that he will explore the possibilities of withdrawing the allegations made, provided the appellant agrees for dissolution of marriage. On 13.06.2018 the order passed on I.A.2/2017 in MFA No.9157/2017, wherein it is stated that “ the learned counsel appearing for the respondent submits that the respondent has remarried on 4.1.2018. If that be so, the marriage shall be subject to the result of this appeal.”
10. On 15.12.2018, the appellant filed application under Order XXVI Rule 9 r/w section 151 of CPC to make a local investigation at Basaveshwaraswamy Temple, Honnashettyhalli, Channarayapatna, to ascertain the truthfulness of the alleged marriage of the respondent with one *P.Harish Upadhya. The respondent has not filed the statement of objections.
11. The appellant who is the party in person would strenuously contend that the respondent had stayed in his house for 8-10 days. During the said period she has not cohabited with the petitioner. The entire evidence placed by the respondent wife before the Family Court do not make out a case of cruelty. On the contrary, respondent wife has harassed the petitioner and his parents. But the Family Court failed to consider the oral and documentary evidence in proper *Corrected vide court order dated 13.09.2019 perspective. Thus it has resulted in miscarriage of justice.
12. This Court had no opportunity to hear the arguments of the counsel for the respondent. The counsel had only submitted that the respondent wife has filed an affidavit stating that the trial Court has rightly upheld and appreciated the evidence and has passed the decree for divorce. After waiting for 30 days period after the date of decree of divorce as contemplated under Section 19 of the Family Courts Act she has entered into second marriage on 4.1.2018 as per the wish and advise of her elders.
13. On the basis of the factual and rival legal contentions, the question that arises for consideration is whether “the impugned judgment is vitiated on account of the erroneous reasoning?”.
14. In the present case, the respondent wife had led evidence before the Family Court by filing an affidavit reiterating the contentions made in the petition regarding cruelty dowry harassment and she was cross- examined at length by the appellant herein. PW1 has stated that there was no compulsion from her family members to marry the respondent. But she has denied the suggestion that there were no demands for dowry and gold or silver articles; and the suggestion regarding the complaint filed against the appellant herein and his parents is admitted. The panchayath held for settlement talks is also admitted. The entire evidence of PW1 (wife) do not make out a specific case of cruelty by the husband. There are no other witnesses in support of the evidence of PW1 to prove the cruelty or harassment said to have been caused by the husband.
15. The appellant/husband has got examined himself before the Family Court as RW1 and has examined three other witnesses as RWs 2, 3 & 4. The documents are marked as Exhibit-R1 to R15. Exhibit- R3, R5 and R6 are the SMS extract and micro SD cards. Some of these documents are relied on for the purpose of proving the illicit intimacy of the respondent – wife with a person called *P.Harish Upadhya.
16. While answering point No.3 and 4, the Family Court has observed that the appellant has reopened the case for 2-3 times and produced documents viz., Videos and CDs, and contended that the respondent is having illicit intimacy with *P.Harish Upadhya and she is also working and earning income. His attitude goes to show his revengeful act against the respondent/wife and has further opined that when the husband has made an allegation of adultery against the wife, it is not possible for her to live with the husband and one cannot expect that husband will look after his wife. Such being the case, it is not possible for the *Corrected vide court order dated 13.09.2019 appellant to live with the respondent peacefully. With these reasonings, the Family Court has come to the conclusion that the respondent/wife in M.C. No.3872/2013 has proved that the appellant has subjected her to cruelty and the appellant/husband is not entitled to restitution of conjugal rights.
17. On careful scrutiny of the entire evidence placed on record, it is evident that both husband and wife have not stayed together for a long time. Immediately after the marriage, the husband had gone to the house of in-laws for first right, but the parents of the wife did not perform the said ceremony. In addition to that, the wife did not co-habit with the husband at any point of time.
18. It is pertinent to note that the judgment and decree was passed on 22.11.2017 in M.C. No.3872/2013 and the petitioner in the said M.C. petition, namely the wife has entered into second marriage with a person called *P.Harish Upadhya on 04.01.2018 i.e., on the 43rd day from the date of the judgment. The affidavit filed by the respondent – wife in this appeal confirms the same. Under these circumstances, it is crystal clear that all the evidence placed on record by the appellant herein before the Family Court regarding the illicit intimacy of the respondent – wife with *P.Harish Upadhya was truthful and correct. The conduct of the wife – respondent herein clearly indicate that only with an intention to get rid of her husband, namely the appellant, she had filed a petition on frivolous grounds of harassment, dowry, cruelty, etc. Though there was no convincing evidence about the cruelty or harassment caused for getting dowry, gold and silver articles, the Family Court erred in believing the sole testimony of the wife – PW1, who was not at all willing to lend marital life with her husband.
*Corrected vide court order dated 13.09.2019 19. In our considered view, the Family Court has ignored certain relevant facts and evidence on record while considering the case of the appellant. The approach of the Family Court is not proper and correct. Hence, the findings given by the Family Court are liable to be set aside.
20. Accordingly, both appeals are allowed. The judgment and decree dated 22.11.2017 in M.C.No.3872/2016 is set aside. Counter claim made by the appellant therein is allowed.
Sd/-
ACTING CHIEF JUSTICE Sd/- JUDGE ykl