Karnataka High CourtSmt P Mamatha vs Sri H N Nagaraja on 7 July, 2017Bench:Jayant Patel,S.SujathaIN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 7TH DAY OF JULY 2017

                       PRESENT

        THE HON'BLE MR.JUSTICE JAYANT PATEL

                          AND

         THE HON'BLE MRS.JUSTICE S.SUJATHA

               M.F.A.No.4890/2017 (FC)

BETWEEN :

SMT.P.MAMATHA
W/O H.N.NAGARAJA
D/O C.N.PUTTASWAMY
AGED ABOUT 33 YEARS
R/AT, D.NO.G-1
NEW ARANYABHAVAN
MYSORE-34.                                     ...APPELLANT

               (BY SRI.PRATHEEP.K.C., ADV.)

AND :
SRI.H.N.NAGARAJA
S/O NARASIMHEGOWDA @ BILLYEGOWDA
AGED ABOUT 45 YEARS
R/AT, HUNGANAHALLI VILLAGE
SARGUR HOBLI, H.D.KOTE TALUK
MYSORE DISTRICT-78.                           ...RESPONDENT


      THIS M.F.A. IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT AGAINST THE JUDGMENT AND DECREE DATED
06.01.2017 PASSED IN M.C.NO.323/2013 ON THE FILE OF THE
JUDGE, PRINCIPAL I ADDITIONAL FAMILY COURT, MYSURU,
ALLOWING THE PETITION FILED UNDER SECTION 13(1) (ia) OF
THE HINDU MARRIAGE ACT FOR DIVORCE.
                               2




      THIS APPEAL HAVING BEEN RESERVED FOR ORDERS ON
03.07.2017,  COMING    ON  FOR   PRONOUNCEMENT    OF
JUDGMENT, THIS DAY, S. SUJATHA, J., PASSED THE
FOLLOWING:

                       ORDERThis appeal is directed against the Judgment and

decree passed by the Prl. Judge, Family Court, Mysuru

('Family Court' for short ) in M.C.No.323/2013.2.   The respondent/husband filed a petition for

dissolution   of   marriage       solemnized   between   the

respondent and the appellant by invoking Section

13(1)(ia) and (ib) ofHindu Marriage Act, 1955('Act' for

short). The respondent contested the same. The Family

Court allowed the petition only in respect ofSection

13(1)(ia)of the Act dissolving the marriage between the

appellant and respondent solemnized on 16.11.2003 by

a decree of divorce.      The respondent-husband is

directed to pay permanent alimony of Rs.4,75,000/- to

the appellant-wife within two months from the date of

the order. Aggrieved by the same, the wife is in appeal.33.     Learned       counsel       Sri.Pratheep.K.C.,

appearing    for the appellant-wife contended that the

trial Court committed a serious error in holding that

there has been separation between the parties for a

period of more than 12½ years and matrimonial

relationship has been disrupted beyond repair.           The

reason for separation was that the respondent-husband

has married one Smt.Kavitha (2nd marriage) during the

subsistence of the first marriage with the appellant

herein and begotten a daughter from his second wife.

This vital aspect was lost sight of by the Family Court.

It was further submitted that indisputably there were

multiple    cases   pending   between   the   parties,   the

appellant has exercised her right before the Court below

for the law to set into motion.          Hence filing of

proceedings to maintain herself claiming maintenance

and other related matters would not itself sufficient to

hold that there was cruelty at the hands of the4appellant.       On the other hand, the appellant was

subjected to intensified dowry demand at the hands of

the respondent and his family members which was well

established by the appellant.       In the absence of any

material evidence placed on record by the respondent to

prove the factum of cruelty by the wife to which the

husband was subjected to, granting of divorce is bad in

law.    The most important aspect of maintaining the

minor son born during the wedlock of the appellant and

the respondent was not properly appreciated and

addressed by the Court below. Maintenance amount of

Rs.4,75,000/- awarded by the Court below towards the

permanent       alimony   is   meager,   which   cannot   be

substantial to maintain her minor son forgetting

herself/wife.4.    Learned counsel further contended that the

Court below committed an error placing reliance on the

agreement dated 10.8.2009 entered into between the5parties, which, in fact, was not given effect to.     The

respondent-husband being well placed drawing good

salary, obligated to maintain the wife and the child, is

required to pay adequate sum towards the permanent

alimony. The quantification of maintenance amount at

Rs.4,75,000/-      being     inadequate,     sought    for

enhancement of the same in the alternative.5.      We   have     heard   the   learned   counsel

appearing for the appellant and perused the material

on record.6.      There is no dispute between the parties as

regards the marriage solemnized between them and a

son born in the wedlock. The appellant and the

respondent were in the habit of making allegations and

counter allegations against each other. Multiple number

of litigations subsisted between the parties.         The

respondent filed a petitionu/s 13(1)(ia)and (ib) of the

Act which was resisted by the wife. The respondent had6examined himself as PW-1 and one Madappa as PW-2,

got marked Ex.P1 to Ex.P27. Appellant examined herself

as RW-1 and got marked Exs.R1 to R23.          RW-2, the

Principal of Hari Vidyalaya, Mysore got summoned and

examined by respondent and further got marked

Ex.R24, 24(a), 25, 25(a), 26 to 29, Exs. R30 and 31, the

certified copies of the Judgment in C.C.966/2011 and

Criminal Appeal 91/2016 produced by the respondent

were marked by consent on 16.12.2016.       Based on the

pleadings, the Family Court framed the following points

for consideration and answered the same as under:1. "Whether the petitioner proves that the
           respondent has treated him with cruelty
           after solemnization of marriage?2. Whether the petitioner proves that the
           respondent has deserted him for a
           continuous period of not less than two
           years     immediately       before  the
           presentation of the petition?3. Whether the petitioner is entitled for the
           relief sought?4. What order or decree?7Point No.1 :     In the Affirmative
     Point No.2 :     In the Negative
     Point No.3 :     In the Affirmative
     Point No.4 :     As per final order"7.   The testimony of the PW-1 reveals that the

appellant was quarrelling with him over trivial issues

and used to leave the matrimonial house very often and

was living with her parents.    On one such occasion

when he went to bring her back from her parents house

on 6.6.2005, she along with her family members abused

and manhandled him.      On the notice issued by the

respondent-husband, the appellant initiated criminal

case for an offence punishableu/s 498-AIPC         etc, in

C.C.No.1127/2005.    Further,    the    respondent     filed

proceedings andSection 12of Domestic Violence Act

besides filing suit for partition on behalf of the minor

child in O.S.53/2010 and another criminal case in

966/2011 for the offences punishable underSections

341,323,504and506IPC. The evidence of PW-2 is of8no assistance to the respondent-husband to establish

the ground of cruelty and desertion, more particularly a

third person's evidence is not satisfactory as regards

personal and family matters, unless it is witnessed by

him. PW-2, a permanent resident of Dasanapura in

H.D.Kote   was    indeed      oblivious   of   the    differences

between the couple. The evidence of the appellant-wife

suggests that with an intention to join the husband

pursuance to the notice issued by him, she went to the

rented premises at Sharadadevi Nagar, but by that time

the   husband had vacated the premises and his

whereabouts      were   not    known      to   her.    In   such

circumstances, she was forced to initiate proceedings

underSection 125of Cr.P.C. in C.Misc.282/2005. It is

in order to avoid payment of maintenance the husband

filed petition underSection 9of the Act.            In such a

condition, the provisions of Protection of women from

Domestic violence Act were initiated by her. It is in the

interest of minor son, partition suit was filed for a share9in the joint family properties.   It was her further case

that during the subsistence of the 1st marriage the

respondent got second marriage and begotten a child

from the said marriage.     As could be seen from the

records, the husband and his family members were

convicted and sentenced to undergo imprisonment for

the offence underSection 498-Aof IPC.8.   The evidence on record clearly discloses that

the appellant-wife has subjected the husband to cruelty

by making unfounded allegations of second marriage,

etc., touching his character filing complaints but failed

to discharge her responsibilities of a wife on the ground

of second marriage. It was an unsuccessful attempt

made by the wife to prove the second marriage of the

husband and the daughter born from the second wife

albeit examining RW 2, Principal of the school where

Manvitha, said to be daughter of the respondent is

studying. Continuous separation for more than 12½10years   between   the     parties   would   indicate   the

irretrievable break down of the marriage beyond repair,

which cannot be saved in the interest of both the

parties. As aforesaid, the marriage has become a fiction,

a deadwood. In this context, it is axiomatic to refer to

the judgment of Samar Ghosh -v- Jaya Ghosh reported

in (2007) 4 SCC 511 wherein, it is held that in the

circumstances where there is continuous period of long

separation and the matrimonial bond is beyond repair,

the marriage becomes a fiction though supported by a

legal tie by refusing to severe the tie, the law in such

cases, does not serve the sanctity of marriage; on the

contrary it shows scant regard for the feelings and

emotions of the party. In such like situations, it may

lead to mental cruelty.    The aforesaid is coupled with

the aspect that husband and his family members were

imprisoned upon the criminal case filed by Appellant-wife.119. As regards the quantification of the permanent

alimony, it is an admitted fact that the appellant-wife is

working     in     the   judicial    department,     i.e.   as   a

Stenographer in the Court of Civil Judge and JMFC,

Channarayapatna, Hassan since 2014. Though it was

contended by the wife that the husband owns two

houses, 16 acres of land at Hunaganahalli and a site at

Mysuru, besides having income working as a Civil

Engineer and a senior building advisor of Kaveri

Grameena         Bank,    but       no   concrete,   convincing

documentary evidence was placed on record to establish

the same.        It is further to be noted that no material

evidence is available on record to show that the

husband's monthly income is more than the appellant's

income. On the other hand, the appellant has admitted

that she has received gold and silver articles from her

husband and had agreed to receive permanent alimony

of Rs.4,75,000/- as early as on 10.8.2009, entering into

an agreement with the respondent. In the present12proceedings, she claimed permanent alimony of Rs.25

lakhs from the respondent. It is on the appreciation of

evidence, the Court below has arrived at a finding that

the husband has no financial capacity to pay Rs.25

lakhs. Considering the factum of employment of the

appellant-wife    and   her   income,   as   a   government

employee, vis-à-vis the income of the husband as

narrated in para 8 of the memorandum of appeal as

Rs.7,000/- p.m, we are of the opinion that permanent

alimony of Rs.4,75,000/- awarded by the Family Court

is justifiable.10. As aforesaid, there is no merit in the appeal

and resultantly the appeal has to be dismissed. In the

circumstances, we are inclined to condone the delay of

31 days in filing the appeal as the same would not

prejudice the rights of the respondent. Accordingly, we

condone the delay of 31 days in filing the appeal. IA-

2/2017 is allowed.1311. No valid ground made out by the appellant to

interfere with the well reasoned Judgment and decree.Accordingly the appeal stands dismissed.Sd/-JUDGE



                                      Sd/-JUDGE




NC/ln.