- 1 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2025 PRESENT THE HON'BLE MR. JUSTICE B M SHYAM PRASAD AND THE HON'BLE MR. JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 6953 OF 2015 (MC) BETWEEN: SRI GANESH S KUNDAR AGED ABOUT 39 YEARS, S/O SADHU ANCHAN, R/AT POSANOTTU HOUSE, NAKRE, KUKKUNDOOR VILLAGE, KARKALA TALUK-576117. …APPELLANT (BY SRI. VIJAYA KRISHNA BHAT M.,ADVOCATE) AND: SMT SRILATHA AGED ABOUT 31 YEARS, W/O GANESH S KUNDAR, R/AT KELAGINA DHADDU MANE, SOODA VILLAGE, KARKALA TALUK-574104. …RESPONDENT (BY SRI. CHANDRANATH ARIGA., ADVOCATE) THIS MFA IS FILED U/S 28 (1) OF HINDU MARRIAGE ACT, AGAINST JUDGMENT Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 AND DECREE DATED 20.06.2015 PASSED IN M.C.NO.2/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL CJM, KARKALA, DISMISSING THE PETITION FILED U/S. 13(1)(ia) AND (ib) OF THE HINDU MARRIAGE ACT. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD) The appellant is unsuccessful in his petition under Section 13[1][ia] and 13[1][ib] of the Hindu Marriage Act, 1955 [for short, ‘the HM Act'] in MC No.2/2012 on the file of the Senior Civil Judge and Additional CJM, Karkala [for short, ‘the trial Court']. The trial Court by the impugned order and decree dated 20.06.2015 has dismissed the appellant's petition opining that it is not convinced, on appreciation of the entire oral and documentary - 3 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 evidence, to hold that the respondent is guilty of either cruelty or desertion. 2. The trial court's observation is that, because the appellant and his family members are acquitted in a criminal case, is no reason to hold that the respondent had filed a false case or that she had treated the appellant cruelly to justify a decree of divorce on such ground. The trial Court has also observed that the appellant is not entitled for a decree of divorce on the ground of desertion because the appellant has not stated when he last resided with the respondent. Apart from these observations, the trial Court has also opined that the appellant has not stated specific instances of cruelty by the respondent. The merits of the appellant's grievance with these findings are considered in the light of the following circumstances, which are undisputed, and the rival submissions that are recorded later. - 4 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 3. The appellant and the respondent were married on 26.02.2001. The respondent was in the appellant's house until the year 2003, and after the customary ceremonies when she was seven months into the family way, she was sent to her parental home for birth and confinement. The respondent gave birth to a girl child on 14.10.2003. In the year 2006, the respondent lodged the first information against the appellant and his family members for offences punishable under Sections 498A, 352, 504 and 506 read with Section 34 of IPC. 3.1 The appellant and his family members were acquitted by the concerned Court on 23.03.2010, and this judgment is not carried in appeal. In the meantime, the respondent filed proceedings under Section 125 of the CrPC for maintenance with her being granted Rs.600/- per month and the child being granted Rs.800/- per month as maintenance. The appellant is one of the - 5 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 five children, and he lives with his aged parents in Nakre, Kukkundoor Village, Karkala Taluk. The appellant's siblings are married, and they live separately. 3.2 The appellant contends that the respondent did not come back to the matrimonial home after the childbirth because she was insistent on the setting up of a separate residence in Soodu, and though he was initially reluctant; he has caused letters dated 15.08.2005 and 28.11.2005 [Exhibits P3 and P4] agreeing to set up such residence, but the respondent did not agree. The appellant also asserts that the respondent has filed a false case in the year 2006 against him and his family members after about ten people barged into his house and threatened him. The appellant's evidence is in line with these pleadings. 3.3 The respondent has filed objections denying the allegations but stating that the appellant - 6 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 and his parents were very abusive and they would ill- treat her because of her appearance; with the appellant even stating that he could always get married to a better-looking person. The respondent, without prejudice to her case as stated above, has also sought permanent alimony in a sum of Rs.15,00,000/- to her and maintenance at the rate of Rs.5,000/- per month for the child. 4. Sri Vijaya Krishna Bhat, the learned counsel for the appellant, submits: [a] that the records bear testimony to the appellant's case that he and his family members had to face prosecution on false charges, [b] that the respondent refused to join the appellant even when he offered to set up a separate residence, [c] that the respondent has always been insisting upon the appellant to quit on - 7 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 his aged parents and set up a separate residence for her. The learned counsel emphasizes that this Court must, in the light of the settled proposition that prosecution for a false case should prove cruelty, grant the divorce because the respondent has reiterated even in her cross-examination that she will not join the appellant at Nakre village [the matrimonial place] and join him only if he sets up a separate residence. The learned counsel contends that this Court must infer the respondent's intention to desert the appellant. 4.1 Sri Chandranath Ariga, the learned counsel for the respondent, submits that not in every case inference must be drawn that a spouse is put to cruelty only because the other spouse has failed in successfully prosecuting the criminal proceedings and that the respondent has a justifiable cause in staying away because of the ill treatment she was - 8 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 subjected to when she was staying with the appellant. The learned counsel submits that this Court must consider that the present proceedings are started almost two years after the acquittal in the criminal case, and that the acquittal in the criminal case is being relied upon only to make out a case for divorce. 4.2 Sri Chandranath Ariga also submits that in the event this Court is persuaded to opine that the appellant has made out a case for dissolution of marriage either on the ground of desertion or cruelty, this Court must consider the respondent's prayer for permanent alimony in a sum of Rs.15,00,000/ because the respondent is eking out a living for herself and her daughter, while staying with her mother and vending milk tending to milching cows. 4.3 In rejoinder, Sri Vijaya Krishna Bhat, relying upon Exhibits P7 and P8 [the - 9 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 photographs of the residence that is confronted to the respondent in her cross-examination], submits that the respondent is better placed than the appellant with her own accommodation and that the respondent stays at a place which has more opportunities to earn but the appellant works as a daily wager earning Rs.700/- per month with the responsibility of having to look after his parents. The learned counsel emphasizes that the only property that the appellant and his parents own is the residential house constructed in an area measuring 5 cents in Nakre village and that this is a land granted freely by the government because of the appellant's station in life. 5. The questions for consideration in the light of the rival submissions and the facts as seen from the evidence are: [a] Whether the trial Court has overlooked material facts in concluding that the appellant has - 10 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 failed to establish .that he is entitled for dissolution of his marriage to the respondent on the grounds of cruelty or desertion, and [b] If the answer to the afore is in the affirmative, the terms upon which there must be a decree for dissolution of the marriage 6. A spouse, to be entitled for grant of a decree of divorce on the ground of desertion, must establish staying apart for two years and more preceding the date of the petition and that the other spouse has stayed apart without a reasonable cause as is envisaged in Explanation appended to Section 13[1] of the HM Act intending to desert. Therefore, it will be necessary for the appellant to establish [i] that the respondent has stayed apart for 2 years preceding the date of the petition, [ii] that she had no reasonable cause and [iii] that she has stayed away intending to cause desertion. If the appellant fails to - 11 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 establish any of the aforementioned, he cannot succeed on the ground of desertion. 7. The respondent admits in her evidence that she did not return to her matrimonial home after the birth of the child in October 2003 until the year 2006, but asserting that she returned to matrimonial home in 2006 only to move out immediately because she was subjected to extreme behaviour by the appellant and his parents and that she was also therefore constrained to lodge a complaint. The appellant and his family members are acquitted in October 2010, and the present proceedings are begun in the year 2012. 8. This Court must find that neither the appellant nor the respondent is categorical about what transpired over 3 years between October 2003 and the date of complaint in the year 2006 and they are completely silent about what has transpired between the judgment in the criminal case acquitting - 12 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 the appellant and his family members and the date of petition. The fact that the appellant and respondent are separated is proved, and the reason for their separation is mired in allegations and counter allegations. Crucially, the appellant, who seeks a decree of dissolution of marriage on the ground of desertion, must establish that the respondent had the intention to desert and therefore did not join him immediately after the birth of the child or even after the proceedings in the criminal case. 9. The appellant relies upon Exhibits P3 and P4 [a couple of letters purportedly addressed by him to the respondent calling upon her to join him in a rented accommodation], but this Court must observe that it has no probative value because there is no proof of the letters having been sent to the respondent and the respondent is categorical in her cross- examination that she has not received the letters. This Court must, in the circumstances discussed, - 13 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 opine that the appellant has failed to establish the element animus deserendi to succeed on the ground of desertion. 10. This Court must now examine whether the appellant must succeed on the ground of cruelty in the light of allegations and counter allegations. The appellant's case on the ground of cruelty hinges on the following specific assertions: [i] the respondent has forsaken his company after the birth of the child; [ii] she was insisting upon him to set up a separate residence in Soodu giving up on his parents who even in the year 2013 were in their 70s; and [iii] she has filed a false case against the appellant, his parents and siblings, who are married and living separately. 11. If the appellant establishes any of the three circumstances, he will have shown that no reasonable person could be in a healthy relationship because of the disruptive duress. The respondent is - 14 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 categorical in her cross-examination that even as of the date of the marriage only the appellant and his parents were living together and his siblings were married and living separately; that she joined them and continued to be with them until customary baby showers were performed and then she moved to her maternal home. 12. However, in the present proceedings, she makes no allegations against any family member other than the appellant/his parents, and the allegations against them are that she was told that she did not look good and the appellant could marry another person. She has filed a complaint against not just the appellant and his parents but also his siblings. This Court cannot but opine, that notwithstanding the circumstances in which the concerned Court has granted acquittal, the respondent has tried to embroil all the family members in criminal proceedings. This must put the - 15 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 appellant in a situation of disruptive duress exposing him to ridicule even by his immediate family members. 13. Further, the respondent is categorical in her cross-examination, when suggested that she could join the appellant in her matrimonial home at Nakre, that she will not, but will join him if he sets up a house in Soodu [her parental home]. This is despite admitting that the appellant, even as of marriage, was living with his parents [septuagenarians] taking care of them. It would also be relevant to observe that the respondent has denied knowledge of the appellant's parents being octogenarians at the time of evidence. The respondent’s insistence could only have deleterious effect on the appellant. 14. This Court, on reading the respondent's conduct as discussed above, is of the opinion that the appellant is subjected to cruelty, and - 16 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 that the appellant and respondent’s marital life cannot be salvaged. The family Court has not considered the aforementioned circumstances as borne out by the evidence and this has resulted in an irregular conclusion on the appellant's claim for dissolution of marriage on the ground of cruelty. The last aspect for consideration is whether the respondent is entitled for any permanent alimony, and if so, what should be the decree in that regard. 15. This Court must observe that the appellant and the respondent do not even come from an average middle-class family. The appellant indeed must look after his parents, but cannot ignore his responsibilities towards the respondent who even according to him works as a coolie and must ensure that the daughter is duly provided for. The respondent could have her own residence, as seen from Exhibits P.7 and P.8, but that is more for a - 17 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 living as a coolie and not as an income-yielding property. 16. The appellant asserts that the respondent earns working as a labourer because there are granite mining places in the village, which extends better job opportunities in that context. The respondent contends that the appellant has a furniture refurbishing shop in Karkala. The respondent denies that she is working as a coolie but asserts that she makes a living vending milk and tending to the cows. The appellant denies owning any refurbishing business asserting that he is a daily wager who has to look after his aged parents - who are octogenarians - and incur substantial expenses for their care, but he has not let in evidence on his actual vocation except for stating that he works as a daily wager. - 18 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 17. The appellant’s daughter is over 21 years old. The Family Court, in the proceedings under Section 125 CrPC, has granted maintenance at the rate of Rs.600/- per month to the respondent and Rs.800/- per month to the daughter. The respondent seeks Rs.15,00,000/- as permanent alimony, and the tenability of this claim must be examined in the light of the circumstances discussed, and this Court must grant such alimony which is commensurate with the parties’ standard of living and because the respondent will also have to incur expenses for the daughter’s wedding. 18. The appellant contends that he earns daily wages, but with no further details, and he admittedly owns a house built on five cents of land. It would not be an exaggeration to infer that even in a place like Karkala, he would earn Rs.25,000/- to Rs.30,000/- per month and that he must pay Rs.10,000/- per month as alimony. The next aspect - 19 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 to be answered is whether the appellant must be called upon to pay this amount to the respondent from the date of the petition before the Family Court or any other date. 19. The respondent has not made an application setting forth specific circumstances to support the request for alimony, but her request is an alternative prayer in the pleadings. The respondent has pursued her claim for maintenance, and there are allegations about default. The appellant, as observed supra will have to take care of his aged parents with this income, and after this lapse of time, if any amount is awarded, it must not be a burden which cannot be discharged. This Court in these circumstances, and the admitted fact that the respondent has her own residence, is of the view that the appellant must be called upon to pay this amount effective from today. In the light of the afore, the following: - 20 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 ORDER [a] The appeal is allowed in part and the impugned order and decree dated 20.06.2015 in MC No.2/2012 on the file of the Senior Civil Judge and Additional CJM, Karkala is modified dismissing the appellant's petition for dissolution of marriage on the ground of desertion but allowing the petition under Section 13[1][ia] dissolving the marriage solemnized between the appellant and the respondent on 26.02.2001. [b] The appellant is called upon to pay to the respondent, effective from this date a sum of Rs.10,000/- per month, to the respondent for life or until she re-marries. - 21 - HC-KAR NC: 2025:KHC:25577-DB MFA No. 6953 of 2015 [c] The Office is directed to draw decree accordingly. SD/- (B M SHYAM PRASAD) JUDGE SD/- (G BASAVARAJA) JUDGE NV