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2019 Supreme(Kar) 1351
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
P.B. BAJANTHRI, NATARAJ RANGASWAMY, JJ.
Smt. Renuka W/O. Sangappa Hunchikatti – Appellant
Versus
Sri. Sangappa S/O. Somappa Hunchikatti – Respondent
MFA NO.100233 of 2014 (MC)
Decided On : 11-12-2019
For the Appellant :Sri. S.S.Yaligar, Adv., for Sri. Mrutyunjay Tata Bangi, Advocate
For the Respondent:Sri. B.M.Angadi, Advocate
Headnote:
Criminal Procedure Code,1973 - Hindu Marriage Act - Section 13 - Dissolution Of His Marriage - Divorce - Whether petitioner proves that respondent has meted out cruelty - Whether petitioner proves that respondent has deserted him for more than two years immediately preceding to filing of petition - What order –Held, Case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose question whether such behaviour is sufficient by itself to cause mental cruelty approach should be to take cumulative effect of facts and circumstances emerging from evidence on record and then draw a fair inference whether petitioner in divorce petition has been subjected to mental cruelty due to conduct of other - petition or where offence appears as a cross-charge of answer- Desertion as a ground of divorce differ from statutory grounds of adultery and cruelty in that offence founding cause of action of desertion is not complete but is inchoate until suit is constituted- Desertion is a continuing offence case be capable of leading to same inference that is to say have to be viewed as to purpose which is revealed by those acts or by conduct and expression of intention both anterior and subsequent to actual acts of separation- If in fact there has been a separation essential question always is whether act could be attributable to an animus offence of desertion commences when of separation and animus co-exist- But it is not necessary that they should commence at same time- de facto separation may have commenced without necessary animus or it may be that separation and animus coincide in point of time; for example when separating spouse abandons marital home with intention express or implied of bringing cohabitation permanently to a close she has not shown any interest to join her husband conduct of appellant-wife is crystal clear that she has no desire to live with respondent husband till of filing of petition which is a period more than statutory period of two years also she has not shown any interest spouse does not care about deserted one and ceases to live together renouncing his/her marital obligation and duties - Appeal dismissed
JUDGMENT :
The appellant-wife has assailed the order dated 30.11.2013 passed in M.C.No.4/2010 on the file of the Senior Civil Judge, Bilagi by which respondent-husband’s petition under Section 13 of Hindu Marriage Act for dissolution of his marriage which was solemnized with the appellant in the month of December, 2009 allowed in-part.
2. The appellant-respondent stated to have got married about 27 years back at Rabakavi village in terms of Hindu customs and they have lead a happy married life for about six years. They have begotten a male child by name Vithal. The allegation of the respondent is that, the appellant is from rich family and she wanted to lead her life according to her wish. She was in the habit of visiting her parental house oftenly and some times without informing the respondent. On all these issues, the appellant was advised through the elders, however there is no reform in her attitude. Without rhyme and reasons, the appellant settled in her parental house and refused to lead marital life with the respondent which compelled him to file petition under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights. During pendency of such petition, Appellant had promised to join the respondent. On such assurance, the respondent withdrew the petition filed under Section 9 of the Hindu Marriage Act. Thereafter, the appellant did not rectify herself and also not re-joined the respondent, and continued to stay in her parental house due to which marital relationship among the parties had come to halt. The appellant filed a Criminal Miscellaneous No.95/2007 before the JMFC Court, Bilagi for award of maintenance and it was allowed. Further she has filed O.S.No.73/2005 before the Senior Civil Judge, Bilagi for partition and the suit was decreed. In this backdrop, the respondent filed a petition under Section 13 of the Hindu Marriage Act, for dissolution of his marriage, which was solemnized in the month of December, 2009. The Trial Court framed the following points for consideration:
i). Whether the petitioner proves that respondent has meted out cruelty?
(ii). Whether the petitioner proves that the respondent has deserted him for more than two years immediately preceding to the filing of the petition?
(iii). What order?
3. The respondent examined himself and two other witnesses as PWs-1 to 3, whereas, the appellant examined herself as RW-1. The respondent produced certified copy of the preliminary decree passed in O.S.No.73/2005 as Ex.P1. On the other hand, the appellant furnished Exs.R1 to R8 i.e. Certified copy of Judgment & Decree in O.S.No.73/2005, House assessment extract of property bearing No.45/A, House assessment extract of property bearing No.45/B, House assessment extract of property bearing No.45/C, Certified copy of record of rights of R.S.No.32/1, Certified copy of record of rights of R.S.No.73/2A and Certified copy of record of rights of R.S.No.10/1A, respectively.
4. The Trial Court proceeded to allow the petition in-part, while holding that, the marriage of the respondent which was solemnized with the appellant 18 years back at Rabakavi village is dissolved by a decree of divorce. Feeling aggrieved and dissatisfied with the Trial Court Judgment & Decree dated 30.11.2013, passed in M.C.No.4/2010, the appellant has presented this appeal.
5. The learned counsel for the appellant vehemently contended that, the Trial Court has committed an error in not appreciating the conduct of the respondent, whereas the respondent’s case is that he was meted out the cruelty at the hands of the appellant and he has not pleaded desertion. In this regard, sufficient material has not been taken note of so as to come to the conclusion that there is a cruelty and desertion at the behest of the appellant. Cruelty contention is urged by the respondent only with reference to various litigation filed by the appellant against the respondent. Further, the respondent had suffered the Orders. The appellant was ever ready and will
