- 1 - HC-KAR NC: 2025:KHC:45460-DB MFA No. 3014 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF NOVEMBER, 2025 PRESENT THE HON'BLE MR. JUSTICE JAYANT BANERJI AND THE HON'BLE MR. JUSTICE K. V. ARAVIND MISCELLANEOUS FIRST APPEAL NO. 3014 OF 2019 (MC) BETWEEN: SMT. SHILPA AGED ABOUT 34 YEARS, W/O. H. RAVI D/O. MARINAIK R/A THIPPAPURA VILLAGE AND POST I.D. HALLI HOBLI, MADHUGIRI TQ., TUMKURU DISTRICT. …APPELLANT (BY SRI. NAGESH S., ADVOCATE) AND: SRI. H. RAVI AGED ABOUT 38 YEARS S/O. HEMLANAIK R/A KANASAWADI COLONY MADHURE HOBLI, DODDABALLAPURA TQ., BENGALORE RURAL DISTRICT. …RESPONDENT ( V/O DATED 08.11.2022 AND 17.01.2023 SERVICE OF NOTICE ON RESPONDENT IS HELD SUFFICIENT) THIS MFA IS FILED U/S 28(1) OF THE HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED.28.05.2018, PASSED IN MC NO.29/2015, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DODDABALLAPUR, ALLOWING THE PETITION FILED U/SEC.13(1)(i)(ia) AND (ib) OF HINDU MARRIAGE ACT, 1955. THIS APPEAL, COMING ON FOR 'DISMISSAL', THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by VALLI MARIMUTHU Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:45460-DB MFA No. 3014 of 2019 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. 2. Though service of notice on the respondent has been held to be sufficient, no one has appeared for the respondent nor any representation has been filed. The aforesaid appeal has been filed seeking to set aside the judgment and decree dated 28.05.2018 passed in M.C No.29/2015 on the file of the Senior Civil Judge and J.M.F.C., at Doddaballapur. By means of the impugned decree, the petition filed by the respondent herein was allowed and the marriage of the parties on 10.08.2008 was dissolved. 3. The contention of the learned counsel for the appellant is that the appellant had stopped pursuing the case on the assurance received from the respondent that he will withdraw the matrimonial case by which he had sought a decree of divorce. It is stated that despite that assurance, the petition was not withdrawn and the appellant had no knowledge - 3 - HC-KAR NC: 2025:KHC:45460-DB MFA No. 3014 of 2019 of the proceedings and therefore, the decree impugned deserves to be set aside. 4. We have perused the record and the judgment and decree impugned. It appears that the parties were married on 10.08.2008 at KGN Samudaya Bhavana at Madhugiri Town, as per Hindu Rights and Customs, in presence of their family members, relatives and friends. They resided together for about six years in the matrimonial house of the respondent and from their wedlock, they had one son named Abhishek and one daughter named Ramya, aged 3 years and 1½ years respectively. Due to the quarrelsome nature of the appellant, a panchayat was held, which did not result in any proper resolution. Therefore, the petitioner had no option but to file the petition for dissolution of marriage. 5. Notice was served on the appellant who appeared through her counsel and filed her objections to the main petition denying the allegations. It was contended that in fact it was the respondent who harassed her physically and mentally and used to demand dowry and when her parents were unable to pay dowry, the respondent drove her out from - 4 - HC-KAR NC: 2025:KHC:45460-DB MFA No. 3014 of 2019 matrimonial house. Therefore, she lodged a police complaint against her husband in the Nelamangala Police Station and despite holding several panchayath meetings, the respondent refused to have her company. It was stated that her husband had not made any provision for the maintenance of the appellant and her children. A case was filed for maintenance which is pending consideration. 6. The petitioner – respondent appeared as PW1 and testified in his examination-in-chief and got marked the documents Exhibits Ex.P1 to Ex.P9 and also examined two other witnesses PW.2 and PW.3 and closed his side of the evidence. The trial Court records that inspite of granting sufficient time, the appellant did not adduce her evidence and did not cross-examine PW.1 to PW3. Arguments on behalf of the petitioner were heard, but no arguments were advanced on behalf of the respondent. In the light of the above, the following points were framed for consideration of the Court. “1. Whether the petition filed by the petitioner under Section 13(1)(i)(i a) and (i b) of Hindu Marriage Act, 1955, for dissolution of marriage dated 10- 08-2008 deserves to be allowed? 2. What order?” - 5 - HC-KAR NC: 2025:KHC:45460-DB MFA No. 3014 of 2019 7. The Court's finding on the above points are as under: “Point No.1 : In the Affirmative. Point No.2 : As per final order.” 8. A perusal of the reasons recorded by the trial Court reflects that the examinations-in-chief of the PW1, PW2 and PW3 were recorded. The trial Court records the consideration of the evidence as follows: "10. The careful perusal of Ex.P1 i.e., wedding card of petitioner and respondent and marriage photos goes to reveal that already the petitioner and respondent got married as per Hindu customs and ceremonies on 10-08-2008 which is admitted fact of respondent in her objection to main petition. The careful perusal of the examination chief of PW1 coupled with the supporting evidence of his witnesses PW 2 and PW 3 goes to prove that the respondent harassed the petitioner and caused cruelty to him and not co-operated with him to lead happy married life and deserted the company of petitioner without having any reasonable grounds. In order to rebut such evidence the respondent has not cross-examined PW 1 to PW 3 and not adduced her defence evidence by entering into witness box and not challenged the case of the petitioner. Therefore, in absence of any rebuttal evidence on the part of the respondent the case of the petitioner requires to be accepted. The careful perusal of Ex. P6 office copy of legal notice issued by the petitioner's counsel which is duly served upon respondent as per Ex.P7 and Ex.P8 postal acknowledgement reveals that, the petitioner called upon the respondent to join his company within 15 days from date of receipt of notice to lead happy married life, but it appears - 6 - HC-KAR NC: 2025:KHC:45460-DB MFA No. 3014 of 2019 that, as per the reply given by the respondent through her counsel to the legal notice of petitioner, as per Ex. P9, reveals about denial of the petitioner's notice and not complied with the legal notice. Therefore, it appears that the respondent is not interested in leading matrimonial life with the petitioner. 11. When the respondent is not interested to join company of the petitioner, there is no meaning in continuing their marriage and in the interest of both parties to the petition to have peaceful life for them and to remarry any spouse of their own choice, it is better to allow the petition as prayed for. Hence, I answered point No.1 in the affirmative." 9. We have perused the record of the case. On consideration of the evidence, the trial Court has sought to return its findings both on the aspect of cruelty and desertion. We find that those findings do not stem from a proper appreciation of the evidence on record. Though admittedly, the appellant did not give her testimony and did not cross-examine any of the witnesses produced on behalf of her husband, the fact remains that the Court had to record a finding on the basis of proper appreciation of the evidence on record. 10. We find that in the plaint, there is no averment made as to the date on which the wife allegedly deserted her husband. It has only been said that there is no cohabitation - 7 - HC-KAR NC: 2025:KHC:45460-DB MFA No. 3014 of 2019 between them from 2014 itself. Moreover, a legal notice was issued to the appellant-wife on 22.05.2015. The legal notice is Exhibit P6. A perusal of the same reflects that the appellant- wife returned to her parents' house in the month of December 2014. The petition for divorce was filed on 16.07.2015. Thus the period of 2 years as provided in Section 13(1)(ib) of the Hindu Marriage Act had till then not gone by. As such, the allegation of desertion cannot be said to have been proved. As far as the allegation of cruelty is concerned, mental harassment and humiliation has been alleged by the husband against his wife and that she used to pick up quarrel with her husband for silly reason and scolded him in filthy language and harassed mentally. Vague allegations of refusing conjugal rights were also alleged. In the examination-in-chief of the PW1 also, the allegations made in the plaint are iterated. The PW2 and PW3 claim to be the neighbours of the PW1. In their evidence also, they have not given specific instances of any cruelty by the appellant-wife that could have led the trial Court to come to a conclusion as to cruelty. - 8 - HC-KAR NC: 2025:KHC:45460-DB MFA No. 3014 of 2019 11. Even where evidence is not led by respondent in trial, it is incumbent for the plaintiff to prove his case. The Court has to carefully analyze and appreciate the evidence of the plaintiff to record a finding that the ingredients of the claim of the plaintiff are made out. That is not the case in the present case. For the reasons aforesaid, the impugned decree cannot be allowed to stand. Therefore, the aforesaid judgment and decree dated 28.05.2018 passed in M.C No.29/2015 on the file of the Senior Civil Judge and J.M.F.C., at Doddaballapur, is set aside. 12. Accordingly, the appeal is allowed. The parties shall bear their own costs. Sd/- (JAYANT BANERJI) JUDGE Sd/- (K. V. ARAVIND) JUDGE KG,DDU List No.: 1 Sl No.: 17