SRI. NAGABUSHAN M.S. v. SMT. SHYLAJA

CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE JAYANT BANERJI) Heard learned counsel for the appellant.

2. This appeal is filed challenging the judgment and decree dated 11.02.2019 passed by the Additional Senior Civil Judge and JMFC, Gubbi, in M.C.No.70/2017, whereby the petition filed by the appellant herein under Section 13 1(ia) and (ib) of the Hindu Marriage Act, 19551, for dissolution of marriage by grant of a decree of divorce, has been dismissed. 1 H.M. Act - 3 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR

3. It appears record aforementioned petition for divorce was filed on 30.10.2017. The parties appeared before the Court and conciliation proceedings were held. The matter was referred to the Mediation Centre thereafter. Since the parties failed to enter into any settlement, the case was listed for evidence.

4. The appellant filed his affidavit lieu of examination-in-chief as PW.1 on 16.08.2018 and got marked Exs.P.1 to P.3. Thereafter, PW.1 was cross-examined. Thereafter, PW.2, who is the father of the appellant, was examined and cross-examined. The respondent was then examined after she filed her affidavit by way of chief examination. Thereafter, cross-examination of RW.1 took place. RW.2, who is the father of the respondent, was then examined and cross examined.

5. After hearing the learned counsel for the parties, the judgment was pronounced on 11.02.2019, which is under challenge in the instant appeal. - 4 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR

6. We have perused the record and examined the matter de novo.

7. In the application filed by the appellant under Sections 13 1(ia) and (ib) of the H.M. Act, it is stated that their marriage was solemnized on 14.03.2014 at Heruru Kalyana Mantapa, Gubbi Road, Gubbi Taluk, as per the customs of the appellant and respondent and as per rites and customs prevailing in the Hindu society. After the marriage, the respondent lived with the appellant only for period of six months in Mattighatta Village. During that period, the respondent became pregnant and went for preponed delivery to her parents' house at N. Nandihally, where she gave birth to a male child on 28.01.2015, by the name Lochan. After the birth of the baby, she started to live with her parents at their house in N. Nandihally. After six months of the marriage, the respondent started to pick up quarrels with the appellant for every small thing and without any reason. Her language was vulgar and her behaviour was arrogant. She did not prepare food in the house of the appellant, where she stayed for a period of six months after - 5 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR marriage and she did not do any household work. She used to scold the parents of the appellant in foul and filthy language without caring for them.

8. It is stated that when the appellant's parents went to the house of the respondent's parents, then, in the presence of the appellant, the respondent and her parents scolded and teased them. They also demanded that the appellant live separately from his parents. She demanded handing over of the entire documents of agricultural land standing in the name of his father and all his belongings, failing which she would commit suicide.

9. Several panchayats were held, but all efforts of the appellant went in vain. After six months of the marriage, there was no physical relationship between the appellant and the respondent and therefore, the appellant decided to dissolve the marriage between them held on 14.03.2014.

10. In the written statement, the marriage was admitted. It was denied that she stayed with the appellant in Mathigatta Village only for six months. Birth of the baby boy - 6 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR and his name was admitted. Fights with the appellant for trivial reasons was denied and the allegation of her scolding or abusing the appellant was denied. She denied that she used to scold the parents of the appellant or abused them. It was denied that she insulted the appellant's parents when they visited the house of the respondent's parents. The allegation of her giving threat to the appellant that she would commit suicide was denied as false. All other allegations were denied. She denied having deserted the appellant. It was stated that the respondent led a peaceful life with the appellant for three months. Thereafter, the appellant and his parent's started fighting with her for trivial matters, and scolded and abused her. After coming to know that the respondent had got pregnant, after four months, the appellant used to reach home late every day and used to scold the respondent and threaten her. She was thrown out of her matrimonial home for not fulfilling dowry demands. It was she who tolerated every thing in the appellant's house. She stated that she is bound to lead marital life with the appellant; that it is very difficult for the respondent and her - 7 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR son to lead a life, as they do not have any income. The appellant and his family possess enough agricultural land, wherein they have grown areca nut, coconut and banana crops, and Diary farming is also being done. Dismissal of the petition was sought.

11. In the evidence of the appellant filed by way of an affidavit as PW.1, the contents of the petition were reiterated. In the cross-examination of PW.1, the appellant denied the suggestions that he, along with his parents, used to fight with the respondent and used to abuse her. It was also denied that he had threatened to kill her if she informed her parents about him pressuring her to get an abortion. It was also denied that he had not allowed the respondent to speak to her parents on phone. His suggested income of Rs.20,000/- as salary and annual income of Rs.10,00,000/- from agriculture were denied. When a categorical question was put to the appellant during cross-examination that the respondent is ready to go with the appellant even at that point of time, PW.1/appellant stated that he is not ready to take her. To the suggestion that the respondent did not - 8 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR voluntarily leave the house and instead the appellant and his parents had thrown her out of the house by torturing her, he denied the same. He also denied that the respondent was properly managing the family life as a housewife with him. He denied lying that the respondent's parents were forcing him to have a separate house and that the respondent had threatened suicide. He also denied the suggestion that the respondent and her child were dependent on his income.

12. PW.2, the father of PW.1, was examined and he toed the line of submissions made by his son in his deposition.

13. The respondent appeared as RW.1 and submitted her affidavit by way of examination-in-chief. She stated that the appellant and his father and mother had, after a period of three months of the marriage, started fighting with her on trivial matters and abusing her every day. After learning that she had got pregnant after four months, the appellant used to come home late every day and used to scold, abuse her and beat her. He had threatened to kill her if she told about - 9 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR it to her parents. She stated that she had been thrown out of a matrimonial house by demanding from her to bring Rs.2,00,000/- as dowry from her parental house. She stated that she could not tolerate the torture given to her by them and shared all those matters with her parents through phone. Attempts for compromise were made in the presence of panchayats, but to no avail. She categorically stated that even at that moment, she was ready to lead a life with the appellant and she wanted to be with him. The minor child required the love and affection of both parents. She requested restoration of her conjugal rights. In her cross- examination, she categorically stated that she will not give divorce at any cost. She denied that she had not correctly handled her duties as a housewife.

14. The father of the RW.1/respondent was examined as RW.2. RW.2 stated that his daughter had come to his house in November 2014 and since then, there was no marital life between the appellant and the respondent. - 10 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR

15. A perusal of the aforesaid testimony does not reflect any such incident that could be said to have proved the aspect of cruelty being inflicted by the respondent on the appellant. Various suggestions were put by the learned counsel for the respondent to the appellant during cross- examination to dispute the case of the appellant, which were, denied. There is no clinching evidence that could lead to the conclusion of cruelty being inflicted by the respondent on the appellant. As far as the aspect of desertion is concerned, the evidence on record establishes that the respondent had left the house of the appellant as her delivery was preponed, to go to the house of her parents. The evidence reflects that the respondent had reasonable cause for leaving her matrimonial home. It is the categorical case of the respondent that she was subjected to harassment and abuse during her stay at the matrimonial home.

16. It is pertinent to mention here, as referred to above and as correctly narrated by the Family Court, that when a categorical query was put to the appellant that - 11 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR whether he would be ready and willing to accept the respondent in her matrimonial home, he denied the same. It is evident that it is the appellant who does not want the presence of the respondent in his house.

17. Learned counsel for the appellant has referred to a memo with documents dated 11.01.2026 that was filed on

17.01.2026. The learned counsel has enclosed photocopies of the following documents: (i) A plaint in O.S.No.110/2019 Lochan Vs. M.B. Sadakshari and others, seeking partition of the suit schedule properties and allotting the plaintiff 1/6th share from amongst the members of the undivided Hindu joint family. Mesne profits are also claimed. It is pertinent to mention that the aforesaid Lochan is the minor son of the appellant. (ii) A photocopy of an order dated

07.03.2022 passed by the Additional Civil Judge and JMFC, Gubbi in Crl.Misc.No.218/2018, Shailaja and another Vs. Nagabhushan and others, passed in proceedings under Section 125 of the Cr.P.C, - 12 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR seeking maintenance, whereby the respondent has been found entitled to maintenance of Rs.4,000/- per month during her lifetime and the son of the parties being entitled to Rs.2,500/- per month as maintenance till he attains majority. (iii) A copy of a complaint dated 16.05.2022 made by the respondent to the Sub-Inspector of Police, Gubbi Police Station, seeking legal action against her husband and parents/sister-in-law. A copy of the First Information Report dated

16.05.2022 bearing Crime No.0094/2022, Police Station Gubbi, is also on record.

18. It is noted that the aforesaid documents filed by means of the memo are photocopies of documents and a translated copy of the FIR, but certified copies of the documents filed. Moreover, aforementioned documents sought to be filed by means of the aforesaid memo, that is to say, the plaint O.S.No.110/2019, the order of the Additional Civil Judge and - 13 - NC: 2026:KHC:2718-DB MFA No. 1935 of 2019 HC-KAR JMFC in Crl.Misc. No.218/2018 and the FIR, are all of the year 2019 and thereafter. The proceedings matrimonial case all took place in the year 2018, and the arguments were concluded on 08.01.2019, whereafter the impugned judgment and decree were pronounced and drawn. As such, the aforesaid documents are to be rejected.

19. We find that the appellant has not been able to prove either cruelty or desertion on the part of the respondent in terms of the provisions of Section 13 (1)(ia) and (ib) of the H.M. Act.

20. For the reasons aforesaid, we find no merit in the appeal and it is accordingly dismissed. Sd/- (JAYANT BANERJI) JUDGE Sd/- (T.M.NADAF) JUDGE TMP/List No.: 1 Sl No.: 11 ct-vn