IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE L. NARAYANA SWAMY AND THE HON’BLE MR.JUSTICE P.B. BAJANTHRI MISCELLANEOUS FIRST APPEAL NO.439/2012(FC) BETWEEN:
SRI.K.P.SURYAKANTHA S/O SRI.PANCHAKSHARAPPA AGED ABOUT 43 YEARS R/AT LALITHAMMA’S HOUSE S.C.M. BUS COMPOUND JYOTHI NAGAR BY PASS ROAD SHIMOGA- 577 202. ..APPELLANT (BY SRI M.RAVI PRAKASH, ADVOCATE) AND:
SMT.M.A.AMRUTHA BAI W/O K.P.SURYAKANTHA AGED ABOUT 38 YEARS WORKING AS WOMAN CONSTABLE VINOBA NAGAR POLICE STATION SHIMOGA- 577 202. .. RESPONDENT (BY SRI.B.S.PRASAD, ADVOCATE) THIS APPEAL IS FILED UNDER SECTION 28(1) OF THE HINDU MARRIAGE ACT, R/W SEC. 19 (1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED: 01.10.2011 PASSED IN M.C. NO. 166/2011 ON THE FILE OF THE JUDGE, FAMILY COURT, SHIVAMOGGA, DISMISSING THE PETITION FILED UNDER SECTION 13 (1) (ia) AND 13 (1) (ib) OF HINDU MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 10.12.2018 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, BAJANTHRI J., DELIVERED THE FOLLOWING:
JUDGMENT Appellant filed petition under Section 13(1)(i-a) and 13(1)(b) of Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for short) seeking dissolution of his marriage with the respondent solemnized on 19.10.2004 at Idagunji Ganapathi Temple near Honnavar registered on 09.11.2004. It was rejected by the Family Court at Shivamogga in M.C.No.166/11 on 01.10.2011. Hence, the present appeal.
2. Brief facts of the case are that appellant married the respondent on 19.10.2004 at Idagunji Ganapathi Temple near Honnavar and marriage was registered on 09.11.2004. Out of wedlock, a male child was born to them on 15.07.2005. Appellant’s version is that respondent was a constable and she was very rude and cruel to him. She had not returned from parental house after delivery of the child despite making every effort, personally and through well wishers. Through goonda elements, respondent used to threaten the appellant and filed false complaint against the petitioner. He has also made allegations that respondent is in the habit of consuming alcohol in the company of miscreants and she has filed a dowry harassment case against appellant as a result of which the appellant was in judicial custody for a week and she has deserted him since 15.07.2005. She has also neglected her child in not looking after him. She has also pressurized the owner of the appellant’s house to evict the petitioner and his parents from rental house which has led to filing of divorce petition.
3. On the other hand, respondent filed objection wherein she has admitted certain facts like marriage, giving birth to child. There was a strained relationship among the appellant and respondent relating to certain behavior of the appellant which is not beyond reconciliation. She has specifically denied other allegations. In fact, child has been given utmost care while sending him to school and making him comfortable within her economical capacity with the assistance of her parents. Further, she has also made certain allegations against the appellant relating to an act of kidnap by the appellant and his supporters on 15.10.2004 and was compelled to marry the appellant though she was not willing, in other words it was a forced marriage. In this regard, respondent’s parents lodged a missing complaint before the Rural Police Station. Appellant is in the habit of taking away valuable articles like mobile, earrings, necklace of the respondent in order to perform the marriage of his younger sister. So also, appellant and his parents have harassed her even to bring dowry as parents of the appellant were not happy having regard to the appellant and respondent’s belonging to a different caste. Appellant and his parents conspired to perform second marriage of the appellant with one VIjayakumari which was stalled at the behest of the respondent. Thus, allegations and counter allegations have been made by the appellant and respondent. Family Court examined PW1 and marked 13 documents as Ex.P.1 to P.13 so also examined the respondent as RW1 and Ex.R.1 was taken into consideration while framing points that arose for consideration which is extracted hereunder:
1. Whether the petitioner has proved that respondent has subjected him to physical and mental cruelty and thus he is entitled for a decree of divorce U/Sec.13(1)(ia) of Hindu Marriage Act, 1955?
2. Whether the petitioner has proved that the respondent has deserted him for a continuous period of 2 years immediately preceding the presentation of petition and thus, he is entitled for a decree of divorce U/Sec.13(1)(ib) of Hindu Marriage Act, 1955?
3. To what order?
4. Family Court has gone into the allegations and counter allegations in depth. Such allegations were not supported with any corroborative evidence. In other words, appellant’s intention was to get rid of the respondent. In this regard, it is evident that he had hatched a plan of spoiling the reputation of the respondent while publishing her personal issues in a news paper called ‘Vidhata’ where the appellant was a reporter. Certain personal issues of the respondent has been reported in the aforesaid news paper which has been produced as Ex.R.1 – extract of the news paper as the author of the report was the colleague of the appellant, which is evident that appellant has supplied information to the author of the report. Insofar as other allegations against the respondent are baseless in the absence of corroborative evidence which cannot be looked into.
5. In the present appeal, appellant has stated that Family Court has not appraised cruelty meted out to the appellant by the respondent while ignoring each of the contentions, allegations while accepting respondent’s version. Such contention of the appellant are very vague for the reason that respondent filing complaint under Section 498A, 506 amounts to mental cruelty. Mere filing of a complaint under Section 498A and 506 does not amount to cruelty. If the appellant succeeded in dowry harassment case to the extent that it was false, in such circumstances one can draw inference to some extent in order to malign the appellant’s reputation, a false dowry case has been registered. Therefore, it is premature to come to the conclusion that appellant has been mentally harassed on the score that respondent had filed a dowry harassment case.
Insofar as child was not taken care is concerned, no documentary evidence or any other evidence has been produced to establish that respondent is ignorant of taking care of child and his education etc. Such a bald allegation cannot be appreciated so also Family Court rejected the appellant’s contention. The contention of the appellant that marriage between him and respondent has failed beyond repair is not supported by sufficient material so as to attract ingredients of cruelty and desertion. The respondent in her objection specifically contended that she is willing to join the appellant and lead marital life; there is no serious allegations so that one can draw inference that marriage has broken down irretrievably. Such a contention of the respondent has been appreciated by the Family Court while rejecting the appellant’s petition. Allegations which are stated by both Appellant and Respondent are not supported by any evidence so also neither the parents nor any person supported the allegations of the appellant as well as the respondent so as to examine whether appellant was meted out cruelty at the hands of the respondent vis-versa. Appellant has not made out a case so as to interfere with the Family Court order dated 01.10.2011 passed in M.C.No.166/2011.
Appeal stands rejected.
Sd/- JUDGE Sd/- JUDGE brn