- 1 - MFA No. 6529 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2023 PRESENT THE HON'BLE MR JUSTICE ALOK ARADHE AND THE HON'BLE MR JUSTICE VIJAYKUMAR A PATIL MISCELLANEOUS FIRST APPEAL NO.6529 OF 2014 BETWEEN: K.T. VINESH, S/O LATE K.THAMANNA SETTY, AGED ABOUT 42 YEARS R/A NO.239, IV BLOCK, WEST OF CHORD ROAD III STAGE, BASAVESHWARANAGAR BANGALORE-560 079. …APPELLANT (BY SRI. SHUBHAM L.B, ADVOCATE FOR SRI. SIDDHARTH B MUCHANDI, ADVOCATE) AND: VASUDHA W/O K T VINESH D/O T RAJANNA AGED ABOUT 34 YEARS R/A HONNAGANGADHARESHWARA NILAYA NEAR VENKATESHWARA TEMPLE SHANTHINAGARA TUMKUR. …RESPONDENT (BY SRI. A.D.RAMANANDA, ADVOCATE-ABSENT) Digitally signed by GAYATHRI N Location: High Court of Karnataka - 2 - MFA No. 6529 of 2014 THIS MFA IS FILED U/SEC 28(1) OF THE HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 3.8.2013 PASSED IN M.C NO.2107/2010 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, DISMISSING THE PETITION FILED U/SEC 13 (1) (ia) OF THE HINDU MARRIAGE ACT. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, VIJAYKUMAR A PATIL J., DELIVERED THE FOLLOWING: JUDGMENT This appeal under Section 28(1) of the Hindu Marriage Act, 1955 (for short 'the Act') has been filed by the appellant/husband against the judgment and decree dated 03.08.2013 passed in M.C.No.2107/2010 by the II Additional Principal Judge, Family Court, Bangalore, by which the petition filed seeking dissolution of marriage on the grounds enumerated under Section 13 of the Act, has been dismissed. 2. Facts leading to filing of this appeal briefly stated are that the marriage between appellant and respondent/wife was solemnized on 26.08.2007 at Tumkur. The couple - 3 - MFA No. 6529 of 2014 stayed at Bangalore for some time and thereafter the wife demanded to arrange for separate residence, knowing fully that husband's sister and mother are staying with him. As per the request of the wife, a separate residence was set up by the husband. Despite the same, on flimsy grounds the wife used to quarrel with the husband and inflicted physical and mental cruelty and filed criminal case against him. Hence, husband sought for dissolution of marriage under Section 13 of the Act before the Family Court. 3. The husband has averred that wife was not cooking food and he used to order the food from outside and she used to throw away the food. It was further averred that wife left the matrimonial home without any valid reason and lodged false police complaint alleging the offences punishable under Sections 498A, 506B of IPC r/w Section 3 and 4 of Dowry Prohibition Act, 1961. The jurisdictional police has filed charge sheet and the case is pending. - 4 - MFA No. 6529 of 2014 4. The wife filed statement of objections, in which she has admitted the factum of marriage and has specifically denied the averments made in the petition. She averred that mother and sister of the husband did not allow her to cook food and they used to abuse her. It is further averred that due to harassment by the husband and his family members, she was forced to lodge a police complaint. Without any reason, the husband has deserted her. It was further averred that she is willing to join the husband, but the husband is not ready to take her back and the allegations of cruelty are denied. 5. The Family Court recorded the evidence of the parties. The appellant/husband examined himself as PW.1 and got marked Exs.P1 to P8. The respondent/wife examined herself as RW.1 and got marked Exs.R1 to R5. The Family Court by impugned judgment dated 03.08.2013 has inter alia held that husband has failed to prove the ground of cruelty. The Family Court has recorded that on 15.07.2013, learned Advocate for the - 5 - MFA No. 6529 of 2014 husband filed a memo stating that grounds under Section 13(1)(ib) of the Act is not pressed. Accordingly, the petition was dismissed. Hence, this appeal. 6. Learned counsel for the husband submits that the marriage between the parties was solemnized on 26.08.2007 at Tumkur and immediately after the marriage they started residing at Bangalore. It is further submitted that wife demanded the husband to set up a separate residence, despite knowing that his sister and mother are staying with him, and his mother was suffering from ailments. In order to maintain marital relationship, he had set up a separate residence and started residing there. It was also submitted that despite setting up a separate residence, wife did not change her attitude, she used to quarrel with the husband on flimsy grounds and never used to cook food and she left the matrimonial home without any valid reason and has lodged false criminal case against him. The Family Court has erred in not - 6 - MFA No. 6529 of 2014 appreciating the evidence on record in its correct perspective and dismissed the petition. 7. Learned counsel for the wife reiterates the averments made in the statement of objections and denies the allegation of cruelty and sought dismissal of this appeal. 8. We have considered the submission of both the parties and perused the material on record. The Family Court has recorded the memo dated 15.07.2013 filed by the learned counsel for the husband stating that husband is not pressing the ground of desertion and the petition is contested only on the ground of cruelty. 9. The husband in his examination-in-chief has reiterated the averments made in the petition. The relationship between the parties is not disputed. He has deposed that he arranged for separate residence, despite the same, there was no cordial relationship between them and the wife used to harass him for silly reasons. On careful examination of the evidence of PW.1, it is evident - 7 - MFA No. 6529 of 2014 that there is no specific instance of cruelty narrated by him. The evidence establishes that it is usual wear and tear in the family and that itself cannot be construed as a mental cruelty. The evidence of PW.1 discloses that there was assault by the wife and he was admitted to Panacea Hospital on 25.01.2008, however, no medical records were placed before the Court. In addition to that in cross- examination, husband has admitted that he has not lodged any police complaint against the wife, therefore, the allegation of assault has been rightly disbelieved by the Family Court and we are not concerned with the said finding. The husband in his examination-in-chief, has stated that the wife was always quarrelling with him, therefore, he was unable to concentrate on his work. The said statement is self serving statement, nothing is placed on record to show that such act has affected him adversely. Mere quarrel between the couple is nothing but usual wear and tear in the family. Such evidence cannot be considered as mental cruelty. It would be useful to take note of the evidence of the wife, who in her cross- - 8 - MFA No. 6529 of 2014 examination in Criminal Misc.No.68/2012, has stated that she would join the husband, and it is the husband who has stated that he is not prepared to take her back. The conduct of husband establishes the fact that he is not ready to take back the wife to the matrimonial home; hence it would be difficult to believe the version of husband. 10. The husband in his evidence has deposed that a false criminal case has been filed against him and his family members for demand of dowry and cruelty. The filing of false case amounts to cruelty. On careful scrutiny of evidence on record and on applying the well settled principle of law, mere filing of a criminal case cannot be construed as a cruelty against the husband. The Investigating Officer has filed the charge sheet before the jurisdictional Court, which prima facie establishes the fact that the alleged offences are made out. The said criminal case is still pending before the trial Court for adjudication. Hence, it cannot be said that it amounts to cruelty. - 9 - MFA No. 6529 of 2014 11. It will be useful to refer to the decision of Hon'ble Supreme Court in the case of RANI NARASIMHA SASTRY Vs. RANI SUNEELA RANI (2020) 18 SCC 247, wherein at paragraph 13 it is held as follows:- "13. In the present case the prosecution is launched by the respondent against the appellant under Section 498-A of IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A of IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. With regard to proceeding initiated by respondent under Section 498-A of IPC, the High Court made following observation in paragraph 15: "15.....Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A of IPC, they cannot be said to be valid grounds for holding that such a recourse - 10 - MFA No. 6529 of 2014 adopted by the respondent amounts to cruelty." The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005, they lived together only 18 months and thereafter they are separately living for more than a decade now." (Underlined portion : Emphasis applied) 12. The wife in her examination in chief reiterates the averments made in the statement of objections and stated that she was thrown out from the matrimonial home forcefully and she was not treated well by husband and her family members. Therefore, she lodged a police complaint. It was further stated that she was not allowed - 11 - MFA No. 6529 of 2014 to cook the food and she was not provided timely food and husband used to quarrel with her on flimsy grounds. The evidence of wife establishes that she was forced to leave the matrimonial home. On careful examination of the evidence of Smt. Gowramma - RW.2, mother of the wife, she has stated about the solemnization of the marriage, marriage expenses and payment of dowry etc. It was also stated that husband used to quarrel with the wife on flimsy grounds. 13. On careful examination of pleading and evidence on record, the petitioner has failed to establish the factum of cruelty before the Family Court. The pleading and evidence are very vague. In the absence of specific instances of cruelty, the Family Court has rightly disbelieved the evidence adduced by the husband and has rejected the petition. The husband has failed to prove the ground of cruelty. We do not find any error in the finding recorded by the Family Court calling for interference in the present appeal. - 12 - MFA No. 6529 of 2014 14. For the aforesaid reasons, we do not find any merit in the appeal, the same fails and is hereby dismissed. Sd/- JUDGE Sd/- JUDGE NG CT:SV List No.: 1 Sl No.: 37