- 1 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2025 PRESENT THE HON'BLE MR. JUSTICE JAYANT BANERJI AND THE HON'BLE MR. JUSTICE K. V. ARAVIND MISCELLANEOUS FIRST APPEAL NO. 2708 OF 2018 (FC) BETWEEN: SMT. YASHASWINI @ PAVITHRA B SRI YUVARAJ @ SUNIL KUMAR P L AGED ABOUT 34 YEARS R/O HOSAPALYA ARASAPURA VILALGE KORATAGERE TALUK - 572 129 DAVANAGERE DISTRICT …APPELLANT (BY SRI. V B SIDDARAMAIAH, ADVOCATE) AND: SRI. YUVARAJ @ SUNIL KUMAR P L S/O S LINGANNA AGED ABOUT 38 YEARS R/O SOMESHWARA NILAYA 11TH CROSS, ASHOKA NAGARA TUMAKURU - 572 103 …RESPONDENT (BY SRI. PARASHURAM R HATTARAKIHAL, ADV.) THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS ACT AGAINST THE JUDGMENT DATED 22.03.2018 PASSED IN Digitally signed by K G RENUKAMBA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 M.C.NO.111/2015 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, TUMAKURU, ALLOWING THE PETITION FILED U/S 13(1)(i-a)(i-b) OF THE HINDU MARRIAGE ACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI and HON'BLE MR. JUSTICE K. V. ARAVIND ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE JAYANT BANERJI) Heard the learned counsel for the appellant and learned counsel for the respondent. 2. This appeal has been filed seeking to set aside the judgment and decree dated 22.03.2018 in Matrimonial Case No.111/2015 passed by the Principal Judge, Family Court at Tumkuru1. 3. The parties are being referred to by their description appearing in the matrimonial case for the sake of convenience. 1 Family Court - 3 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 4. On 05.06.2015, the petition under Section 13-B of the Hindu Marriage Act, 19552 was filed by the parties in the Family Court. During the proceedings, an application was filed by the respondent stating that she never intended to file any petition under Section 13-B of the HM Act. The respondent stated that she wanted to oppose the aforesaid petition. The petitioner filed a response to that stating that he had no objection to the transposition of the respondent from being a co-petitioner to respondent. Accordingly, the application filed by the respondent was allowed and she was arrayed as respondent in matrimonial case which was amended to be one under Section 13(1)(ia) and (ib) of the HM Act. 6. In the petition, it was stated that the marriage of the parties was solemnised on 19.05.2010 at Shri Siddeshwara Conventional Hall, SIT Main Road, Tumkuru as per the prevalent rites and customs in their community. The marriage was an arranged one in the presence of the parents, relatives, friends and well wishers. No dowry was received by the petitioner and both parties incurred their respective marriage expenses. It was stated that the respondent had accompanied 2 HM Act - 4 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 the petitioner to the matrimonial house with mangalya, earrings and other jewellery as per family customs. They lived together for more than five years as husband and wife, and are blessed with two children namely, Tejas Krishna and Aishwarya. 7. It was further submitted that the petitioner is working as Bank employee in Karnataka Bank Limited and is very feeble natured person. The respondent, since the beginning, was not doing any household work properly and not looking after her parents-in-law with love and affection. The respondent quarrelled with the petitioner and created inhuman humiliation, mental torture and worries to him. She used to abuse and defame the petitioner in front of relatives along with support of her mother and brothers. The respondent used to abuse the petitioner and his parents in filthy language. This caused humiliation, torture and mental agony to the petitioner. The respondent used to threaten the petitioner and his parents that she is going to file criminal case against them and destroy their family dignity. The respondent several times proclaimed that she is not willing to lead life with the petitioner and she is interested to dissolve the marriage. - 5 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 8. It was stated in the petition that "in true sense, since one year, the couple have resided separately". After the amendment whereby the petition was made one under Section 13(1)(ia) of HM Act the period "one year" was amended to read "one and a half year". It was further stated that the petitioner and the respondent have not lived together as husband and wife and due to their irreconcilable difference they can no longer stay together as husband and wife. 9. It is pertinent to mention here that in the amended petition that was filed, which bears date 03.04.2017, the period of residing separately of the petitioner and respondent is stated to be one year. 10. The objections were filed by the respondent. In the objections, the respondent denied the allegations against her as being uncharitable, unfounded, frivolous and false. It was stated that such allegations are baseless and made just to have an early divorce. Ill behaviour of the petitioner and his parents was alleged. The respondent sought dismissal of the petition for divorce reserving all legal rights of her and her children - 6 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 regarding maintenance, partition etc., and to enforce the same against the petitioner. 11. The petitioner appeared as the PW.1 and submitted his examination-in-chief by way of an affidavit. In that affidavit, the contents of the petition were iterated. Additionally, it was alleged that the petitioner was threatened by the parents and brothers of the respondent with dire consequences. It is further alleged that the respondent made attempts to commit suicide three or four times while she was residing with him. It was further alleged that worrying (as a result of the situation), led his mother to commit suicide. It was stated that since three years, the parties had resided separately and not lived together as husband and wife. It was further stated that during pendency of the case, considering the submission of the respondent, the Court had directed the petitioner to handover the mangalasutra/thali to the respondent. In response to which, he had returned the mangalasutra/thali to the respondent before the Court. It was stated that the respondent is a Post Graduate and has completed her M.Sc. in Library Science and worked as a Librarian at TVV First Grade College, - 7 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 Gowribidanur Road, Madhugiri, and was drawing salary of Rs.8,000/- per month excluding deductions. It was testified that the respondent is conducting tuition classes for other school students at her home. The family of the respondent has sufficient landed property at Madhugiri and Koratagere. The petitioner was looking after his aged father who is suffering from heart disease and undergone open heart surgery and was a diabetic patient. It is further stated that he has not deviated from his responsibilities as a father. He had got admitted his children at Shri Raghavendra International School at Madhugiri and every month, a sum of Rs.2,000/- is being deposited in a Recurring Deposit in the name of his children to secure their welfare. 12. It is pertinent to mention here that on 07.08.2015, the petitioner lodged a complaint with the police, New Extension Police Station, Tumkur that the respondent came to the petitioner's house and threatened to commit suicide. However, evidently no FIR was lodged and the matter was apparently closed. - 8 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 13. The petitioner had filed documentary proof regarding the fees deposited in the school where his children were studying. Documents relating to his father's ailments were also filed by the petitioner. 14. The contention of the learned counsel for the respondent is that the respondent was not accorded appropriate and due opportunity to present her case before the Family Court and to lead evidence as well as to cross-examine PW.1. It is urged that the matter be remanded. 15. It is further stated that the allegations made against the respondent are completely false and there was no material before the Family Court to grant the decree of divorce on the basis of cruelty or desertion given the facts and circumstances of the case. 16. Learned counsel for the respondent on the other hand strongly opposes the petition. He has referred to the aforesaid police complaint lodged by the petitioner on 07.08.2015 and has referred to the fact that the mangalsutra was taken by the respondent which proves that she was not - 9 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 interested to carry on with the matrimonial relationship. It has further been stated that since the testimony of PW.1 as recorded was not controverted, the Court accepted the version of PW.1 and granted the decree of divorce. It is therefore stated that there is no error in the judgment and the consequential decree. He has prayed for dismissal of the appeal. 17. The Court recorded the following points for consideration: 1. Whether the petitioner has proved the cruelty by the respondent? 2. Whether the petitioner has proved the desertion by the respondent for a continuous period of not less than 2 years? 3. Whether the petitioner is entitled for dissolution of the marriage? 4. What order? “The findings were as follows: Point No.1 : In the affirmative Point No.2 : In the affirmative Point No.3 : In the affirmative Point No.4 : As per the final order for the following:” 18. We have perused the record as well as the judgment. - 10 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 19. As far as the contention of the learned counsel for the petitioner is concerned that the respondent took away the mangalasutra in the presence of the Court on 17.03.2016, we find, that cannot be a ground for the Court to come to the conclusion of cruelty. The mangalasutra was admittedly of the respondent and if she had asked for it, it is but her matrimonial entitlement for the same. 20. As far as the allegation of a police complaint being lodged by the petitioner against the respondent on 07.08.2015 is concerned, it is noted that this police complaint was filed after a period of more than two months from the date of filing of the petition for divorce. Though the allegation made in the complaint is that the respondent had threatened to commit suicide, however, no further action was taken by the police in this regard and nothing contrary has been demonstrated on behalf of the petitioner. As such, these two submissions are to be rejected. 21. Now coming to the findings recorded by the Family Court, the Family Court appears to have been swayed by the fact that the respondent had not examined PW.1 and had not - 11 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 stepped into the witness box to substantiate her defence. The observation of the Court is that the very act of the respondent in not contesting the matter discloses that she is not interested to lead marital life with the petitioner. Further, it is observed that after being transposed as respondent, the respondent failed to appear before the Court and contest the matter. The aforesaid police complaint (Ex.P6) has also been adverted to by the Family Court. 22. A perusal of the allegations made in the petition and the examination-in-chief of the PW.1 by way of an affidavit reflects that no specific instances have been cited. Only general allegations like misbehaviour, filthy abuses, of harassment by parents and brothers of the respondent are reflected. It appears that the aforesaid police complaint at Ex.P6 of 07.08.2015 was lodged after two months of filing of the petition for divorce only to create some evidence in support of the contentions. There has to be evidence of material instances of cruelty, which have to be duly proved by the person seeking divorce. General and vague allegations cannot support a petition for divorce on the ground of cruelty. - 12 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 23. As far as point No.2 is concerned, that whether the petitioner had been deserted by the respondent for a continuous period of not less than two years, we note, not without being surprised, that the finding written is that the petitioner and the respondent are living separately since more than two years and as such the petitioner had proved desertion by respondent for continuous period of not less than two years. The aforesaid finding is based on the fact that the second respondent had been transposed as respondent on 04.08.2016 and the petition for divorce was filed on 08.06.2015. This finding, in our opinion, is contrary to the facts on record and to the provision of Section 13(1)(i)(b) of the HM Act. 24. For desertion to be proved, the petitioner has to plead and demonstrate that for a continuous period of not less than two years immediately preceding presentation of the petition, the petitioner was deserted by his wife. As noted aforesaid, even in the amended copy of the petition, desertion for a period of one and a half years was alleged, whereas, in the original petition as well as in the amended copy of the petition one year of desertion is alleged. - 13 - HC-KAR NC: 2025:KHC:42506-DB MFA No. 2708 of 2018 25. Be that as it may, the fact remains that two years of desertion by the wife/respondent, immediately preceding the presentation of the petition is neither pleaded nor proved. 26. For the reasons aforesaid, we find that the impugned decree cannot be sustained. The decree is based on a judgment in which the allegations of cruelty and desertion were wrongly found to be proved. Therefore, appeal is allowed and the impugned judgment dated 22.03.2018 and the consequent decree are set aside. 27. Registry is required to return the trial Court records to the Court concerned. In view of the disposal of the appeal, pending I.As. if any, shall stand disposed of. Sd/- (JAYANT BANERJI) JUDGE Sd/- (K. V. ARAVIND) JUDGE DDU,BVK List No.: 1 Sl No.: 13