V. Govindaraju. Son of Late G. Venkatesh. Vs. Smt. Uma (Babitha). Do. Kumaraswamy. - Court Judgment

SooperKanoon Citationsooperkanoon.com/925417
SubjectFamily
CourtKarnataka High Court
Decided OnMar-14-2012
Case NumberMFA NO.8574 OF 2009 (FC) CW MFA.NO.8575 OF 2009 (FC)
JudgeK.L.MANJUNATH; K GOVINDARAJULU, JJ.
ActsHindu Marriage Act - Section 9
AppellantV. Govindaraju. Son of Late G. Venkatesh
RespondentSmt. Uma (Babitha). Do. Kumaraswamy.
Advocates:MS. SUDHARSHANA REDDY AND ASSOCIATES. ADVS
Excerpt:
[k.l.manjunath; k govindarajulu, jj.] hindu marriage act - section 9 - restitution of conjugal rights -- mfa filed u/s 19(1) of family courts act. against the judgment and award dated: 01.09.2009 passed in m.c.no. 155/2001 on the file of 2nd additional family judge. family court, bangalore. dismissing the petition filed under section 13(i)(a) of the hindu marriage act for divorce. - the respondent contested the case. ultimately the petition filed by the husband has been dismissed, petition filed by the respondent has been allowed directing the appellant to live with the respondent by granting a decree for restitution of conjugal rights. whether the petition filed by the appellant for grant of divorce on the ground of desertion is proved by him? the divorce petition was filed on 25.01.2001.k.l.manjunath; k govindarajulu, jj.1. the unsuccessful husband has filed an appeal in mfa no.8574/2009 challenging the legality and correctness of the order and decree passed in mc no. 155/2001 passed by the second additional family court judge, bangalore dated 1st september 2009. mfa no.8575/2009 is filed by the appellant challenging the decree passed by the same court in mc no.2345/2005 for restitution of conjugal rights.2. since these two appeals arise out of a common order passed in both the mc petitions they are taken up today.3. according to the appellant he married the respondent on 26.02.1999 at sharif b. basappa smt.gangamma kalyana mantapa, bangalore. it is his case that since inception of the marriage it was not a happy marriage on account of quarrelsome nature of the wife and her family member. it is his case that she used to pick up quarrel on flimsy grounds that she used to leave the matrimonial home and used stay in her parents’ house. out of the marriage they have a daughter who was born on 8lh january 2000. after delivery she did not return to her matrimonial home. therefore, the appellant filed a petition for dissolution of marriage on the ground of cruelty. during the pendency of the case he also got amended the petition to grant the decree of divorce on the ground of desertion contenting that since january 2000 the wife has deserted hint and she has been residing with her parents. therefore, tie is entitled for decree of divorce.4. the respondent contested the case. according to her she has been treated with utmost cruelty by the husband and his family members and she has suspected the character of the appellant alleging that the husband had illicit relationship with his sister-in-law. therefore, she requests the court to dismiss the petition. she also contended that the petition tiled for grant of divorce on the ground of desertion is not maintainable as she never deserted the husband. later she also filed a petition under section 9 of the hindu marriage act for restitution of conjugal rights. both the cases were clubbed together and common evidence was recorded.   in order to prove the respective contention, husband got himself examined as pw1. he relied upon exs.pl to p22. the wife was examined as rw1 and her father was examined as rw2. the court below has formulated the following points for its consideration.5. after considering the entire evidence point no. 1 is held in negative and point no.2 is held in affirmative. ultimately the petition filed by the husband has been dismissed, petition filed by the respondent has been allowed directing the appellant to live with the respondent by granting a decree for restitution of conjugal rights. these two orders are called in question in these two appeals.6. we have heard the counsel for the parties.7. main contention of the learned counsel for the appellant is that when respondent wife has alleged that the appellant is having illicit relationship with the sister - in - law in the statement of objections filed by her, it was for her to prove the case pleaded by her and when such serious allegations are made, when she has failed to discharge the burden cast on her. the trial court ought to have granted the decree of divorce on the ground of cruelty. he also submits that the trial court has committed an error in not considering the case of desertion pleaded by the appellant.8. per contra,   the learned  counsel  for the respondent contends that in the entire pleadings in the petition filed by the husband for grant of decree of divorce on the ground of cruelty, he has not made any allegations that the respondent - wife always teasing the appellant that he is having illicit relationship with his sister - in - law. according to her, the husband has not proved the allegations made by the respondent. on the contrary she contends though it is not pleaded by the appellant, the appellant's counsel in the cross examination has elicited through rw1 (wife) as if he had expressed on the first night that he did not get satisfaction from his wife as he used to get from his sister - in - law. relying upon the suggestions made to rw1 during her cross examination the counsel for the respondent contends that the suggestion is made by the counsel for the appellant, the question of proving such relationship between the husband and his sister - in -law by the wife does not arise for consideration. on the contrary the wife was always ready and willing to live with the husband but the husband was not willing to take care of his wife and child.   according to tier the marriage was solemnized on 26.03.1999. she has given birth to a child on 08.01.2000. during pregnancy the wife was sent to her parents house for delivery.   after delivery she was not taken back by her husband and his family members. an attempt was made by the wife and her father to pursuade the appellant to take her back to the matrimonial home has ended in may. therefore, the petitioner cannot contend that the wife has deserted the husband. even otherwise according to his own pleadings the wife is residing separately from 08.01.2000 and the petition was filed in 2001 and there is no desertion for a period of two years.   in the circumstances, no court can hold that if the wife is sent for delivery and if she is residing with her parents and such period has to be counted to consider the case of desertion. she alternatively contends that even if the said period is also taken into account prescribed period of two years to grant the decree of divorce on the ground of desertion is not there. therefore, the petition has to be dismissed.9. having heard the counsel for the parties we have to consider the following points in these appeals.i. whether the petition filed by the appellant for grant of divorce on the ground of desertion is proved by him?ii. whether the appellant has proved that he has been treated by the respondent either by mental cruvelty or by mental cruelty as alleged?iii. whether the respondent is entitled for decree of restitution of conjugal rights?10. solar   as   the   first   point   is   concerned admittedly the wife was sent for delivery and she has given birth to a child on 08.01.2000. the marriage was solemnized between the parties on 26.03.1999. the divorce petition was filed on 25.01.2001. in other words within two years from the date of marriage the divorce petition is filed. therefore, the ground of desertion is not available to the appellant - husband.11. so far as the second point is concerned in the entire pleadings the appellant has not stated the nature of cruelty meted out to him by the respondent except saying that right from the beginning the respondent used to pick up quarrel on the flimsy ground, that every time while leaving, she use to comment about morality of the appellant. his evidence namely the examination -in - chief is nothing but replica of the petition filed and no specific instances are quoted to show that the conduct of the respondent amounts to mental cruelty. even the allegation that the respondent used to say that the appellant is having illicit relationship with his sister - in - law is also not mentioned in the examination - in - chief but in the cross examination of the wife it is unfortunate that the appellant's counsel himself has suggested to rw1 as if the appellant told his wife on the first night that he did not get sexual enjoyment as he was getting it with the sister - in - law. in other words the case of the respondent was proved by the appellant counsel by putting such a question to the wife. in such circumstances no court can hold that the petitioner has been treated either with mental torture or physical torture to grant a decree of divorce on the ground of cruelty.12. the next question would be whether the respondent is entitled for restitution of conjugal rights.13. when she has given birth to a child in august 2000, when she has not been taken back to the matrimonial home, when the allegations made on her arc not proved, when he is having the daughter it is the duty of the husband to discharge his matrimonial obligation and in such circumstances, we do not find any reason to reverse the judgment of the trial court.14. in the result both the appeals are dismissed.
Judgment:

K.L.MANJUNATH; K GOVINDARAJULU, JJ.

1. The unsuccessful husband has filed an appeal in MFA No.8574/2009 challenging the legality and correctness of the order and decree passed in MC No. 155/2001 passed by the Second Additional Family Court Judge, Bangalore dated 1st September 2009. MFA No.8575/2009 is filed by the appellant challenging the decree passed by the same Court in MC No.2345/2005 for restitution of conjugal rights.

2. Since these two appeals arise out of a common order passed in both the MC petitions they are taken up today.

3. According to the appellant he married the respondent on 26.02.1999 at Sharif B. Basappa Smt.Gangamma Kalyana Mantapa, Bangalore. It is his case that since inception of the marriage it was not a happy marriage on account of quarrelsome nature of the wife and her family member. It is his case that she used to pick up quarrel on flimsy grounds that she used to leave the matrimonial home and used stay in her parents’ house. Out of the marriage they have a daughter who was born on 8lh January 2000. After delivery she did not return to her matrimonial home. Therefore, the appellant filed a petition for dissolution of marriage on the ground of cruelty. During the pendency of the case he also got amended the petition to grant the decree of divorce on the ground of desertion contenting that since January 2000 the wife has deserted hint and she has been residing with her parents. Therefore, tie is entitled for decree of divorce.

4. The respondent contested the case. According to her she has been treated with utmost cruelty by the husband and his family members and she has suspected the character of the appellant alleging that the husband had illicit relationship with his sister-in-law. Therefore, she requests the Court to dismiss the petition. She also contended that the petition tiled for grant of divorce on the ground of desertion is not maintainable as she never deserted the husband. Later she also filed a petition under Section 9 of The Hindu Marriage Act for restitution of conjugal rights. Both the cases were clubbed together and common evidence was recorded.   In order to prove the respective contention, husband got himself examined as PW1. He relied upon Exs.Pl to P22. The wife was examined as RW1 and her father was examined as RW2. The Court below has formulated the following points for its consideration.

5. After considering the entire evidence Point No. 1 is held in negative and Point No.2 is held in affirmative. Ultimately the petition filed by the husband has been dismissed, petition filed by the respondent has been allowed directing the appellant to live with the respondent by granting a decree for restitution of conjugal rights. These two orders are called in question in these two appeals.

6. We have heard the counsel for the parties.

7. Main contention of the learned counsel for the appellant is that when respondent wife has alleged that the appellant is having illicit relationship with the sister - in - law in the statement of objections filed by her, it was for her to prove the case pleaded by her and when such serious allegations are made, when she has failed to discharge the burden cast on her. The Trial Court ought to have granted the decree of divorce on the ground of cruelty. He also submits that the Trial Court has committed an error in not considering the case of desertion pleaded by the appellant.

8. Per contra,   the learned  counsel  for the respondent contends that in the entire pleadings in the petition filed by the husband for grant of decree of divorce on the ground of cruelty, he has not made any allegations that the respondent - wife always teasing the appellant that he is having illicit relationship with his sister - in - law. According to her, the husband has not proved the allegations made by the respondent. On the contrary she contends though it is not pleaded by the appellant, the appellant's counsel in the cross examination has elicited through RW1 (wife) as if he had expressed on the first night that he did not get satisfaction from his wife as he used to get from his sister - in - law. Relying upon the suggestions made to RW1 during her cross examination the counsel for the respondent contends that the suggestion is made by the counsel for the appellant, the question of proving such relationship between the husband and his sister - in -law by the wife does not arise for consideration. On the contrary the wife was always ready and willing to live with the husband but the husband was not willing to take care of his wife and child.   According to tier the marriage was solemnized on 26.03.1999. she has given birth to a child on 08.01.2000. During pregnancy the wife was sent to her parents house for delivery.   After delivery she was not taken back by her husband and his family members. An attempt was made by the wife and her father to pursuade the appellant to take her back to the matrimonial home has ended in May. Therefore, the petitioner cannot contend that the wife has deserted the husband. Even otherwise according to his own pleadings the wife is residing separately from 08.01.2000 and the petition was filed in 2001 and there is no desertion for a period of two years.   In the circumstances, no Court can hold that if the wife is sent for delivery and if she is residing with her parents and such period has to be counted to consider the case of desertion. She alternatively contends that even if the said period is also taken into account prescribed period of two years to grant the decree of divorce on the ground of desertion is not there. Therefore, the petition has to be dismissed.

9. Having heard the counsel for the parties we have to consider the following points in these appeals.

i. Whether the petition filed by the appellant for grant of divorce on the ground of desertion is proved by him?

ii. Whether the appellant has proved that he has been treated by the respondent either by mental cruvelty or by mental cruelty as alleged?

iii. Whether the respondent is entitled for decree of restitution of conjugal rights?

10. Solar   as   the   first   point   is   concerned admittedly the wife was sent for delivery and she has given birth to a child on 08.01.2000. The marriage was solemnized between the parties on 26.03.1999. The divorce petition was filed on 25.01.2001. In other words within two years from the date of marriage the divorce petition is filed. Therefore, the ground of desertion is not available to the appellant - husband.

11. So far as the second point is concerned in the entire pleadings the appellant has not stated the nature of cruelty meted out to him by the respondent except saying that right from the beginning the respondent used to pick up quarrel on the flimsy ground, that every time while leaving, she use to comment about morality of the appellant. His evidence namely the examination -in - chief is nothing but replica of the petition filed and no specific instances are quoted to show that the conduct of the respondent amounts to mental cruelty. Even the allegation that the respondent used to say that the appellant is having illicit relationship with his sister - in - law is also not mentioned in the examination - in - chief but in the cross examination of the wife it is unfortunate that the appellant's counsel himself has suggested to RW1 as if the appellant told his wife on the first night that he did not get sexual enjoyment as he was getting it with the sister - in - law. In other words the case of the respondent was proved by the appellant counsel by putting such a question to the wife. In such circumstances no Court can hold that the petitioner has been treated either with mental torture or physical torture to grant a decree of divorce on the ground of cruelty.

12. The next question would be whether the respondent is entitled for restitution of conjugal rights.

13. When she has given birth to a child in August 2000, when she has not been taken back to the matrimonial home, when the allegations made on her arc not proved, when he is having the daughter it is the duty of the husband to discharge his matrimonial obligation and in such circumstances, we do not find any reason to reverse the judgment of the Trial Court.

14. In the result both the appeals are dismissed.