married 2004, divorced @ Famlycourt 2010, SETASIDE in 2015. 11 years lost in litigation ! and still NO respite for the husband

It is very difficult for a honest husband to get divorce unless he fights civil cases diligently and for long. (this is different from woman seeking divorce !! It has been noticed that Women get their divorce quite fast) Men need time, they need legal knowledge, a good lawyer and probably the most important is to have company of other men who are fighting such cases. Still a victory is a gamble

Here is a male who has complained of cruelty and neglect by his wife, litigation after litigation by wife, TV mud slinging by wife, but wife gets the decree set aside some 11 years after marriage and 8 years after the rift !! In 2015, the Case is back to family court for a fresh start !!

How do men still marry In India ? what sort of legal ignorance is this ?

key excerpts
***********************************
* inter alia that his marriage was solemnized with the appellant (wife) on 28.3.2004.
* The couple were blessed with a male child who was named Malatheshwarachar.
* Appellant (wife) initiated one after the other proceeding against the respondent and his family members.
Initially, she claimed maintenance.
Thereafter, she lodged a complaint with Women’s Police Station alleging demand for dowry.
She had also approached a media Channel, TV-9 and complained against the respondent.
* The husband also claims that “..After child’s birth, attitude of appellant (wife) towards the respondent (husband) and his family changed. She started picking up quarrels on trivial issues and demanding for a separate house. She was compelling him not to support his parents. In furtherance of her changed behaviour, she started neglecting her conjugal duties. Though efforts were made to bring harmony among the couple, the same did not yield any results. Finally during November 2007 appellant voluntarily left the matrimonial home and started residing with her sister. Respondent’s efforts to bring her back to his house were in vain….”
* With these averments, respondent (husband) prayed for a decree of divorce at the family court
* The family court grants divorce to the husband by “…decree dated:13.08.2010 passed in M.C.no.5/2010 on the file of the Judge, Family court Davanagere, allowing the application filed u/s 13(1) (ia) & (ib) of Hindu Marriage Act, for divorce…”

* Wife goes on appeal. Appeal is decide five years after family court decree i.e in 2015
* Wife appears party in person before the High court !! Wife brings in some news of her efforts in a mediation process !! just one mediation in front of a mutt !
* So the honourable HC sets aside the divorce and sends the case back to family court
* Now what ? Now ablaa can happily sit drag the case and claim more moolah !!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
*******************************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Dated this the 30th day of September, 2015

PRESENT

THE HON’BLE MR. JUSTICE N.K. PATIL

AND

THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

MFA No.8348/2010 (FC)

BETWEEN:

Mrs. GEETHA @ RANJITHA
AGED ABOUT 29 YEARS
W/O Sri GIRISHACHAR
HOUSE WIFE
RESIDENT OF SHAMSHIPURA VILLAGE
HARIHAR TALUK
DAVANAGERE DIST …APPELLANT
(By Sri IMRAN PASHA, Adv.,)

AND:

Sri GIRISHACHAR
AGED ABOUT 35 YEARS
S/O SRI KYOTHACHAR
POLICE CONSTABLE
B NO.G 81 ( G-481 )
BASAVANAGARA POLICE STATION
DAVANAGERE …RESPONDNET
(By Sri M R HIREMATAD, Adv.,)

THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED:13.08.2010 PASSED IN M.C.NO.5/2010 ON THE FILE OF THE JUDGE, FAMILY COURT DAVANAGERE, ALLOWING THE APPLICATION FILED U/S 13(1) (ia) & (ib) OF HINDU
MARRIAGE ACT, FOR DIVORCE.

THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.09.2015 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S. DINESH KUMAR, J., DELIVERED THE FOLLOWING:-

JUDGMENT

Appellant – wife is aggrieved by the Judgment and Decree dated 13.8.2010 in M.C.No.5/2010 on the file of Family Court, Davanagere, allowing respondent’s petition under Section 13(1)(ia) & (ib) of Hindu Marriage Act, 1955 (‘Act’ for short) and dissolving her marriage.

2. Brief facts:

Respondent – husband presented the instant petition before the Family Court, contending inter alia that his marriage was solemnized with the appellant on 28.3.2004. The couple were blessed with a male child who was named Malatheshwarachar. After child’s birth, attitude of appellant towards the respondent and his family changed. She started picking up quarrels on trivial issues and demanding for a separate house. She was compelling him not to support his parents. In furtherance of her changed behaviour, she started neglecting her conjugal duties. Though efforts were made to bring harmony among the couple, the same did not yield any results. Finally during November 2007 appellant voluntarily left the matrimonial home and started residing with her sister. Respondent’s efforts to bring her back to his house were in vain.

3. Appellant initiated one after the other proceeding against the respondent and his family members. Initially, she claimed maintenance. Thereafter, she lodged a complaint with Women’s Police Station alleging demand for dowry. She had also approached a media Channel, TV-9 and complained against the respondent. With these averments, respondent prayed for a decree of divorce. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. Appellant contested the petition and contended in her pleadings that the respondent was insulting, assaulting and compelling her to bring money from her parents and finally drove her out of the matrimonial home. Having no other option, she was compelled to seek shelter under her sister.

5. In sum and substance, appellant pleaded before the Family Court that it was respondent who was inflicting cruelty upon the appellant and prayed for dismissal of the petition.

6. To prove his case, the respondent examined himself as PW.1 and produced two documents Exs.P1 and P2. Appellant was examined as RW.1 and two documents Exs.D1 and D2 were produced. On consideration of the material on record, learned Family Court by the impugned order granted the decree of divorce dissolving the marriage. Hence, this appeal.

7. Learned Counsel for the appellant was absent. Appellant – Smt Geeta @ Ranjitha was present. We have heard the appellant in person and Sri M.R. Hiremathad, learned Counsel for the respondent.

8. At the outset, appellant vehemently contended that the respondent has ill treated her and driven her out of the matrimonial home. She submits that several efforts to reconcile the differences between the parties did not yield any results. She placed for our perusal record of proceedings before “Saddharma Nyaya Peetha” run by an accredited Saint of Sree Taralabalu Jagadguru Brahanmath, Sirigere, in Case No.2221/2009. The said proceedings disclose that the parties were advised to live together by reconciling the differences. Appellant’s family members were advised to host a meal by inviting their son-in-law. But nothing fruitful emerged pursuant to Seer’s advice also.

9. Assailing the legality and correctness of the impugned order, appellant submits that the respondent has not brought any clinching evidence before the Court, which would merit consideration of his petition. The learned Family Court has granted the decree of divorce on the premise that no suggestion was given to the respondent – PW.1 in the cross – examination to dispel the allegation that she had failed in her conjugal obligations. In sum and substance, she contended that the petition filed by the respondent is wholly misconceived and filled with factually incorrect averments.

10. During the course of hearing, she has filed a memo along with photocopies of receipts cumulating to Rs.53,493/- towards the School fee, cost of books etc., incurred towards the education of her son and prays for a direction to the respondent to reimburse the said amount.

11. Per contra, learned Counsel appearing for the respondent supporting the impugned order contends that it does not suffer from any legal infirmity warranting interference by this Court. He submits that the learned Family Court has meticulously adverted to rival contentions and come to a correct conclusion that the appellant is a chronic litigant and failed in her conjugal obligation.

12. He further submits that the respondent had got the appellant treated for her mental illness from Dr. Ashok Pai in Manasa Hospital at Shivamogga and in NIMHANS at Bengaluru. She was quarrelling with him without any rhyme or reason and also ill treating their son. He submits that the respondent is a Police Constable and his life has become miserable at the instance of the appellant and accordingly prays for dismissal of this appeal.

13. We have given our anxious consideration to the submissions made by the appellant in person, learned Counsel for the respondent and perused the material papers.

14. Learned Family Court has framed following three points for it’s consideration:-

(i) Whether the petitioner – respondent proved the aspect of cruelty?

(ii) Whether the appellant had left the respondent’s Company without any valid reason?

(iii) Whether the respondent is entitled for a decree of divorce?

Both first and second points have been answered in the affirmative and respondent had been granted with the decree of divorce.

15. Admittedly, the petition is presented by the husband invoking the provisions of Section 13(1) (ia) & (ib) of the Act. In order to obtain a decree of divorce under these provisions, the petitioner will have to specifically aver and prove both elements of cruelty and desertion to the satisfaction of the Trial Court.

16. Insofar as the aspect of cruelty is concerned, the case of the respondent – husband is that the appellant was demanding for a separate house; she was going to the parents house without informing him; assaulting their child and showing dis-interest in physical relation. Learned Family Court has accepted the pleadings and evidence tendered by the respondent and held that the appellant did not fulfill her conjugal obligations and the same amounts to cruelty. Family Court has come to the conclusion on the premise that the appellant has not successfully dislodged the evidence of PW.1.

17. So far as the aspect of desertion is concerned, the learned Family Court has held that the appellant has left the matrimonial home in the year 2007 and not made any efforts on her part to reconcile the differences and to stay together with her husband. Learned Family Court has also considered the absence of issuance of any notice or a petition for restitution of conjugal rights by the appellant to come to the conclusion that she had deserted the respondent.

18. Parties have let-in oral testimony and produced copies of proceedings in Crl.Misc.No.48/2008, complaint filed under the Domestic Violence Act and police complaint in support of their respective cases. No independent witness is examined.

19. The proceedings before “Saddharma Nyaya Peetha” produced by the appellant discloses that she had made some attempts before a religious institution seeking justice. Respondent has presented the instant petition in the year 2010. A representation said to have been presented by the respondent before the said Math is also annexed to the proceeding sheet. The proceedings initiated by the appellant before the Math are not seriously contested by the respondent. However, in the absence of any specific challenge and evidence with respect to a document, no opinion can be expressed. But suffice to note that the parties had subjected themselves to some proceedings before the religious institution prior to presentation of the instant petition by the respondent.

20. In view of the fact that there were no independent witnesses and there is some material to suggest that the appellant had initiated some proceedings and sought help of a religious institution for resolution of matrimonial dispute leads us to infer that the finding recorded by the Family Court to the effect that no efforts were made by the appellant to reconcile the differences after her departure from the matrimonial home in the year 2007 appears incorrect. We hasten to add that the finding recorded by the learned Family Court is based on the evidence which was on record and our inference is based on the material produced by the party-in-person/wife before this Court, which is not disputed by the other side.

21. This appeal has emanated out of a family dispute. A decree of divorce has been granted to a husband accepting his pleadings and evidence on the ground of infliction of cruelty and desertion by the wife.

22. While allowing the petition, the learned Family Court has not made any provision for sustenance of wife by granting alimony. However, vide order dated 18.1.2013, this Court has directed payment of an interim monthly maintenance of Rs.6,000/- by way of salary deduction.

23. In the circumstances, we are of the considered view that the impugned order is unsustainable in law for two reasons. Firstly that, the evidence on record is not sufficient enough to hold that the respondent had proved to the satisfactions of the Family Court both aspects of cruelty and desertion. Secondly that, the learned Family Court has not made any provision for the maintenance of appellant after granting the decree of divorce. Therefore, in our view matter requires a fresh consideration of the entire case by the learned Family Court.

24. In the result, we pass the following:-

ORDER

(i) Appeal is allowed;

(ii) Judgment and Decree dated 13.8.2010 in M.C.No.5/2010 on the file of Family Court, Davanagere, is set aside and the matter is remitted back to the Family Court, Davanagere for fresh disposal in accordance with law;

(iii) The Family Court is directed to grant an opportunity to the parties to produce further documentary and oral evidence and thereafter to hear them and dispose of the petition as early as possible and at any rate within a period of six months from the date of appearance of parties;

(iv) All contentions of respective parties are left open;

(v) Parties are directed to appear before the Family Court, Davanagere on 13.10.2015 at 11.00 a.m without notice and collect further date of hearing;

(vi) It is made clear that pending disposal of the petition before the family Court, the order dated 18.1.2013 directing payment of interim maintenance of Rs.6,000/– per month payable by the respondent to the appellant through salary deduction shall remain in force;

(vii) Respondent is also directed to reimburse the sum of Rs.53,493/- spent by the appellant towards education expenses of their son and continue to bear all further expenses towards the education of their son – Master. Malatheshwarachar during pendency of proceedings before the Family Court.

Ordered accordingly.

No costs.

Sd/-

JUDGE Sd/-

JUDGE cp*

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s