IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 18th DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO.6652 OF 2017 (FC) BETWEEN:
SRI. RAGHAVENDRA S. GOKAVI SON OF SURESH K. GOKAVI AGE: 33 YEARS OCCUPATION: POSTAL ASSISTANT RESIDING AT B-4/2, POSTAL QUARTERS KAVAL BYRASANDRA, R.T.NAGAR POST BENGALURU – 560 032.
... APPELLANT (BY SRI. P.A.KULKARNI, ADVOCATE) AND:
SMT. MANJULA VASAPPA NEELGUND @ MANJAKKA V. NEELGUND WIFE OF SRI. RAGHAVENDRA S. GOKAVI AGE: 35 YEARS RESIDING AT CARE OF VASAPPA CHANNAPPA NEELGUND KAJJARI VILLAGE, RANEBENNUR TALUK HAVERI DISTRICT – 581 115.
... RESPONDENT (BY SRI. LOKESH MALAVALLI,, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, 1984 AGAINST THE JUDGMENT AND DECREE DATED 10.07.2017 PASSED IN M.C.NO.130 OF 2015 ON THE FILE OF THE JUDGE, FAMILY COURT, AT DAVANAGERE, DISMISSING THE PETITION FILED UNDER SECTION 13(1)(ia)(ab) OF HINDU MARRIAGE ACT.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 31.01.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant, who is married to the respondent, has filed this appeal impugning the judgement and decree dated 10.7.2017 in MC No.130 of 2015 on the file of the Family Court, Davanagere (referred to as the learned ‘Learned Family Court Judge’, for short). The appellant’s petition for divorce under section 13(i)(i-a) and (i-b) of the Hindu Marriage Act, 1955 (referred to as the ‘Act’, for short) is dismissed by the impugned judgment and decree.
2. The appellant and the respondent were married on 12.5.2013 and their marriage was solemnized as decided by the elders from both families. The appellant and the respondent lived together for a short time thereafter, and undisputedly, they have been living separately since August 2013. On 6.6.2015, the appellant filed petition for divorce on the grounds of cruelty and desertion invoking the relevant provisions of the Act.
3. The appellant contended that he and his family members were informed by the respondent’s family members that the respondent was born on 4.5.1986 and they hailed from ‘Devanga’ Community. However, the appellant learnt that he and his family members were misinformed in this regard as the respondent was actually born on 8.9.1981 and hailed from Hindu Jedar community. The respondent was reluctant to share her date of birth or educational credentials despite the fact that she is a Law graduate. However, the appellant learnt about the misinformation as regards the respondent’s date of birth and community when the respondent returned to the matrimonial home after her customary stay with her parents during the first ‘Ashada’ after marriage. When confronted, the respondent argued that her true date of birth and community are as mentioned in the Bio-data that was exchanged at the time of finalization of the marriage talks and there were errors in her SSLC marks card. The appellant enquired with the respondent’s family members viz., the respondent’s father, her elder brother and her cousin, and they also called on the appellant and his parents in the appellant’s residence. They pleaded lack of knowledge about the details found in the SSLC marks sheet and they too asserted that the details mentioned in the Bio-data were correct. The appellant was frustrated by their attitude. However, the respondent intervened and walked out of the matrimonial home though the elders were in the midst of their talks declaring that she was not interested in marriage to the appellant.
4. Even otherwise, the appellant was harassed and subjected to humiliation by the respondent even during her short stay in the matrimonial home. She would refuse to do the household work asserting that she was a Law graduate and she had led a privileged life at her parents’ place. The respondent always insisted upon the appellant to set up a separate residence asserting that she was not interested in living with the appellant’s parents. A panchayath was convened at the appellant’s instance even after the respondent walked out of the matrimonial home, and this panchayat also failed because of the respondent’s recalcitrant conduct.
5. The respondent, upon service of notice, entered appearance and filed her objection statement. The respondent not only controverted the allegations against her but also responded by stating that the appellant was instigated by his family members to file a false petition because they were interested in a higher dowry. The appellant’s parents were instigating the appellant with false assurance of higher dowry and better matrimonial alliance. The respondent’s family members had informed the appellant and his family members about her age, community and qualification. The respondent hailed from ‘Devanga’ community and this was reflected even in the school records of her parents. However, in her school records, and her brother’s school records, by inadvertence, their community is shown as ‘Hindu Jedar’. This was also brought to the notice of the parents of the appellant. The respondent’s parents had extended themselves on an expansive wedding. However, the appellant and his family members were insisting for dowry of Rs.5,00,000/- and a vehicle. The appellant and his family members would complain that the appellant had made a mistake in marrying the respondent because she was a rustic and the appellant ought to have married somebody from urban background. The efforts by the respondent and her family members to counsel the appellant were futile. The respondent had restrained herself from lodging any complaint or initiating proceedings because she bona fide believed that there would be reconciliation with the appellant.
6. The appellant examined himself as PW.1 and Sri Basavarajappa, a common relative of both appellant and the respondent, as PW.2. The appellant marked Exhibits P.1 to P.8 which included the respondent’s Bio- data, Caste Certificate, SSLC Marks Card and his mother’s medical records. The respondent examined herself as RW.1 and her relatives, Sri Nagaraj and P.Manjunath as RW.2 and RW.3. The respondent marked three exhibits viz., Ex.R.1 to R.3 (a).
7. The Learned Family Court Judge formulated the following points for consideration; (i) Whether the appellant proves that the respondent had treated him with physical and mental cruelty as alleged? (ii) Whether the appellant further proves that respondent has deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition? (iii) Whether the appellant was entitled for the relief sought for? (iv) What order?.
8. The Learned Family Court Judge has refused to dissolve the marriage either on the grounds of desertion or cruelty; the dissolution of the marriage on the ground of desertion is disallowed in view of the fact that both appellant and respondent did not dispute that the break in matrimony was only for a period of 1 year 9 months and the mandatory 2 continuous years had not been completed as of the date of petition. The Counsel for the appellant does not press the appeal insofar as the refusal of dissolution of marriage on the ground of desertion because the appellant has been unequivocal in his case that the respondent had separated from him only for a period of 1 year 9 months as of the date of the petition.
9. The learned counsel for the appellant contended that the material on record indicated that the appellant had been misled into marrying the respondent. The evidence on record established that the respondent was born on 04.05.1986, but the appellant was led to believe that the respondent was born on 08.09.1981. The appellant, who is born on 12.05.1984, would not have married the respondent if he had known that the respondent was elder to him. The respondent, born on 08.09.1981, is elder to the appellant by about 2 years and 9 months. Further, the evidence indicated that the respondent and her family members also misled the appellant about their community. The appellant hails from Devanga Community, and the respondent from Hindu Jedar community, and the appellant would not have married the respondent if he had known that the respondent was from another community. The appellant is employed in postal Department and therefore, the respondent and her family members mislead the appellant with false information. This conduct would itself tantamount to cruelty. Even otherwise, the evidence on record established that the respondent insisted upon the appellant to setup separate a residence, refused to do house hold chores, and refused to be reasonable when panchayath was conveyed. This conduct constituted cruelty. The Learned Family Court Judge failed to consider these circumstances, as borne out by the material on record, and therefore, the impugned judgment is perverse and irregular.
10. On the other hand, the learned counsel for the respondent supported the impugned judgment by placing reliance upon the testimonies of the respondent and witness examined on her behalf. The learned counsel also emphasized that the material placed on record by the respondent established that the respondent was from the Devanga community and she was indeed aged 27 years as on the date of marriage and this was indubitably established by Ration Card issued in the year 2009 much before the date of marriage. The allegation that the respondent was refusing to take part in household works, that she insisted on setting up a separate residence and that she had refused a panchayath are not proved. The appellant is trying to take advantage of the fact that the respondent did not take any precipitous action despite the harassment and was bona fide awaiting re- conciliation.
11. In view of rival canvass, the question that arises for consideration is, whether the impugned judgment calls for any interference by this Court.
12. The undisputed facts are that the appellant and the respondent stayed together only for a short time after the marriage, that the appellant is employed in Postal Department as Postal Assistant, that the respondent has studied law and that their marriage finalized with the intervention of one Sri. Basavarajappa, who is examined as PW-2. This witness has stated in his cross examination that he is related to both the appellant and respondent. His nephew i.e., his brother’s son is married to respondent’s sister and his sister’s daughter is married to the elder brother of the appellant’s father. He has stated that he is into the business of sale of cloth, and is also engaged in bringing about matrimonial alliances. Further, that the witness has stated that he furnished the respective Bio-data to the family members of the appellant and respondent as the members of both the families requested for matrimonial alliance. The marriage talks were held in his business premises, and the marriage was solemnized 3 months after such marriage talks were held. After about 3 months of the marriage, the appellant’s parents called on him and informed him that the respondent and her family members had mislead the appellant and his family members about respondent’s age and community. When he enquired with the respondent’s family members, they contested the claim that they had misled the appellant and his family members about the respondent’s age and community in bio-data and requested him to use his good office with the appellant and advise him for reconciliation.
13. This witness’s nephew i.e., his brother’s son is married to respondent’s sister and his sister’s daughter is married to the elder brother of the appellant’s father. In view of these admitted relationships, it is highly improbable that the respondent’s family could have misled the appellant, his family members, either about the respondent’s age or her community. This witness’s evidence seems contrived and creates a strong doubt about the appellant’s entire case. Further, the respondent has produced her parents’ school records which mention their community as “Devanga”. Furthermore, the respondent has categorically stated that she was born in the year 1986 and she has denied the suggestion to contrary. While she has admitted that her SSLC marks card shows that she was born in 1981, she has also categorically stated that is an error. This assertion that her date of birth is wrongly mentioned in her SSLC Mark sheet is corroborated by the Ration Card issued in the year 2009, that is much prior to her marriage. The Ration Card states that the respondent was born in year 1986. This Ration Card is confronted to the appellant in his cross examination, and he has admitted that such Ration Card belongs to respondent’s family. There is nothing on record to doubt this document which is issued by the concerned authority in the year 2009, that is 4 years prior to wedding.
14. In the light of the aforesaid discussion, this Court is of the considered opinion that the Learned Family Court Judge has rightly concluded that the appellant has failed to prove that he is entitled for dissolution of his marriage to the respondent on the ground of cruelty and therefore, the impugned judgment does not suffer from any irregularity or perversity. The question formulated is answered accordingly, and the appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE nv