Extracted from the PDF above. The PDF is authoritative.
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NC: 2025:KHC-D:6499-DB MFA No. 103621 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE S G PANDIT AND THE HON'BLE MR. JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 103621 OF 2024 (FC) BETWEEN:
SMT. VIJAYALAXMI W/O KIRAN KUMAR DODDAMANI AGE. 44 YEARS, OCC. HOUSEHOLD WORK, R/O H.NO.36, AKSHAY COLONY, 1ST PHASE, VIDYANAGAR, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD 580 021. …APPELLANT (BY SRI. GANAPATI M. BHAT, ADVOCATE)
AND:
KIRAN KUMAR S/O HANUMANTAPPA DODDAMANI AGE. 48 YEARS, OCC. REAL ESTATE BUSINESS, R/O PLOT NO.2, SHIVA KRUPA BUILDING, SHAKTI NAGAR, GOKUL ROAD, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD 580 030. …RESPONDENT (BY SRI. SANTOSH BIRANAGI, ADVOCATE)
THIS MFA IS FILED U/S. 19(1) OF THE FAMILY COURT ACT 1984, PRAYING TO, SET ASIDE JUDGMENT AND DECREE DATED 03.08.2024 IN MATRIMONIAL CASE NO.260/2017 PASSED BY THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT, HUBBALLI AND ALLOW M.C.NO.260/2017 ON THE FILE OF COURT OF THE PRINCIPAL JUDGE, FAMILY COURT, HUBBALLI AS PRAYED BY APPELLANT IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:
THE HON'BLE MR. JUSTICE S G PANDIT AND THE HON'BLE MR. JUSTICE C.M. POONACHA
MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH
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ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The above appeal is filed under Section 19(1) of the Family Courts Act, 19841 by the wife challenging the
judgment and decree dated 03.08.2024, passed in M.C.No.260/2017 by the Principal Judge, Family Court, Hubballi2, whereunder the petition filed by the wife under Section 13(1)(i-a) of the Hindu Marriage Act, 19553 seeking for divorce has been dismissed. 2. The parties would be referred to as per their status in the relationship, for the sake of convenience. 3. The factual matrix in a nutshell leading to the present appeal is that, the marriage between the parties was solemnized on 17.02.2002 as per the Hindu customs and rituals. Consequent to the marriage, parties lived together in the matrimonial home and they have no issues from their wedlock. Due to various reasons, the wife left
1 Hereinafter referred to as ‘1984 Act’ 2 Hereinafter referred to as ‘Family Court’ 3 Hereinafter referred to as ‘1995 Act’
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the matrimonial home and started living with her mother since 28.06.2014. The wife as well as her husband initiated various legal proceedings against one another. Subsequently, the wife filed a petition under Section 13(1) (i-a) of 1955 Act against the husband for grant of a decree of divorce on the ground of cruelty. 4. It is the case of the wife that the marriage between the parties being an inter-caste marriage, the parents of the husband ill-treated her. Further, it is contended that although the parents of the husband ill- treated her, the husband did not come to her rescue and support her. That the husband is a suspicious natured person and used to suspect the conduct of the wife. That the mother of the husband demanded gift items as dowry which was partly acceded to by the parents of the wife. That the husband took all the jewelleries of the wife and although the wife was running her own beauty parlour, all the financial transactions were managed by the husband. That the husband was only interested in financial aspects
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and since the relationship between the parties deteriorated, the wife left the matrimonial home and started living with her mother from 28.06.2014 onwards. 5. The husband entered appearance before the Family Court and filed his statement of objections denying the assertions made by the wife in the petition.
It is contended in the statement of objections that the parties lived together happily in the matrimonial home after their marriage and from the year 2014, the husband started funding the sister’s husband of the wife and has made huge investments. The husband has further alleged that the wife was having the adulterous relationship with one Santhosh Shetty which he learnt of. Various financial transactions between husband and the husband of the wife’s sister have been averred in the statement of objections. It is contended by the husband that the petition for divorce has been filed by the wife only to escape the liabilities regarding the investments made by
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the husband. Hence, the husband sought for dismissal of the petition. 6. The wife was examined as PW1 and Ex.P1 to Ex.P4 have been marked in evidence. The husband was examined as RW1 and Ex.R1 to Ex.R112 have been marked in evidence. The Family Court by judgment and decree dated 03.08.2024, dismissed the petition. Being aggrieved, the wife has preferred the present appeal. 7. Although the above appeal was listed for admission, with the consent of the parties and having regard to the specific submission made by learned counsel for the appellant that the parties have been residing separately from 2014, the above appeal has been heard finally on merits. 8.
Learned counsel for the appellant contends that despite the wife averring and proving the various acts of cruelty, the Family Court has erroneously not appreciated the material on record. It is further contended that the
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husband has specifically admitted in the cross-examination that he is not ready to live with the wife. That the husband having alleged adultery on the part of the wife and not having proved the said allegation, on the said ground itself the Family Court ought to have allowed the petition as non-proving of the allegation of adultery would itself tantamount to cruelty. Hence, learned counsel seeks for allowing the above appeal. 9. Per contra, learned counsel for the respondent has vehemently contended that the husband has placed abundant material on record to demonstrate the financial transactions he has had with the husband of the wife’s sister. It is further contended that the husband has produced telephonic conversations which were recorded on a Compact Disk4 as well as photographs to prove the allegation of adultery. It is further contended that the Family Court has rightly appreciated the material on record and was justified in dismissing the petition filed by
4 Hereinafter referred to as ‘CD’
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the wife. Hence, learned counsel seeks for dismissal of the above appeal. 10. Submissions of both the learned counsel have been considered and the material on record including the records of the Family Court have been perused. 11. The questions that arise for consideration are, (i) Whether the order passed by the Family Court is erroneous and liable to be interfered with? (ii) Whether the relief sought for in the present appeal is liable to be granted? Regarding Question Nos.1 and 2:
12. The relationship between the parties is undisputed as also fact that the parties have been residing separately since the year 2014. 13. The wife has filed petition under Section 13(1)(i-a) of the 1955 Act. Section 13(1)(i-a) of the 1955 Act stipulates that the marriage could be dissolved by a
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decree of divorce if the applicant has been treated with cruelty. 14. The wife has made various averments in the petition to demonstrate that the husband has treated her with cruelty.
The husband in his statement of objections to the main petition, apart from in detail denying the various allegations of cruelty, has made a specific allegation that the wife has an illegal relationship with one Santosh Shetty and that the wife has abruptly, on her own, left the matrimonial home on 30.10.2014 in the absence of the husband, against his wish by taking away all the valuables, clothing and other articles. 15. Apart from various averments made by the wife alleging that the husband has treated her with cruelty, the husband having made a specific allegation regarding the wife having an adulterous relationship, the husband was required to prove the same by adducing adequate evidence. - 9 -
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16. The Hon’ble Apex Court in the case of VIJAYKUMAR RAMCHANDRA BHATE VS. NEELA VIJAYKUMAR BHATE5 has held as follows:
“7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court.
On going through the
5 (2003) 6 SCC 334
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relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.”
(Emphasis supplied)
17. In order to prove the contention that the wife was having an illegal relationship as contended in the statement of objections, the husband, apart from examining himself as RW1 has not examined any other witness. In the affidavit by way of examination-in-chief, the husband has deposed that when he had gone outstation on work for two days and after coming back on 13.10.2015 when he was copying the call records from the wife’s phone memory card, he found conversations of his wife with Santosh Shetty, consequent to which, he has
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started his own investigation with regard to the acts of the wife. Hence, the husband has specifically deposed that he learnt about the alleged illegal relationship with Santosh Shetty on 13.10.2015. Although, he is stated to have started his own investigation, the nature of investigation mentioned and the material produced therefrom have not been produced. The husband has produced a CD in which it is contended that the voice recording of the wife with Santosh Shetty is available. However, it is forthcoming from the cross-examination of PW1 that she has denied that the voice recording in the CD belongs to her. 18. It is also forthcoming from the record, that the husband had instituted criminal proceedings against the wife in which FIR was lodged.
However, the said criminal proceedings have not been culminated in any report that has been filed by the police authorities, as no material in that regard has been produced by the husband. 19. Notwithstanding the grounds on which the wife has sought divorce by alleging various acts of cruelty, the
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fact that the husband has made an allegation of the wife having an adulterous relationship with Santosh Shetty, in the event the husband fails to prove the same, the wife would be entitled for grant of divorce on the ground of cruelty. 20. In the present case, apart from producing the CD containing voice recordings, the husband has not produced any other material in support of the allegation that his wife is having adulteress relationship with Santosh Shetty. The husband has not adduced any other evidence apart from examining himself to prove the allegations made by him. Although the wife has denied that her voice is recorded in the CD, the husband has not taken any steps to prove the voice recording in the CD which has been marked as Ex.P39 to Ex.P41. In the absence of husband proving the allegation of adultery made by him in the statement of objections, the petition filed by the wife under Section 13(1)(i-a) of 1955 Act is required to be allowed on the said score alone. - 13 -
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21. The Family court although noticed that the wife has denied the voice recording at Ex.P39 to Ex.P41 and further having played the CD before the Court in In- Camera proceedings, has failed to notice the settled position of law that in the absence of husband proving the allegation of adultery, the wife is entitled to grant of divorce on the ground of cruelty. 22.
The fact that the husband made an allegation of adultery and failed to prove the same, the application filed by the wife under Section 13(1)(i-a) of 1955 Act is liable to be allowed on the said ground alone. 23. In view of the discussions made above, the question Nos.1 and 2 framed for consideration are answered in the affirmative. 24. Hence, the following:
ORDER a) The above appeal is allowed;
b) The judgment and decree dated 03.08.2024 passed in M.C.No.260/2017 on the file of the
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learned Principal Judge, Family Court, Hubballi is set aside;
c) The petition filed by the appellant/wife in M.C.No.260/2017 under Section 13(1)(i-a) of 1955 Act, on the file of the learned Principal Judge, Family Court, Hubballi is allowed; and
d) The marriage between the parties which was solemnized on 17.02.2002 is hereby dissolved by a decree of divorce; and
e) The parties to bear their respective costs.
f) Decree to be drawn accordingly.
Sd/- (S G PANDIT) JUDGE
Sd/- (C.M. POONACHA) JUDGE
NC LIST NO.: 1 SL NO.: 21