The court upheld that without substantial evidence, allegations of cruelty and desertion do not warrant a divorce, affirming the legitimacy of a child through DNA evidence while protecting rights to privacy and dignity.

JUDGMENT :

JAYANT BANERJI, J.

Heard the learned counsel for the appellant.

2. This appeal has been filed seeking to challenge the judgment and order dated 23.09.2016, the decree of which was signed on 07.10.2016. By means of the impugned decree, the petition filed by the appellant under Section 13 (1)(ia)(ib) of the Hindu Marriage Act was dismissed.

3. The case of the petitioner was that he got married to the respondent on 15.06.1997 as per Hindu rites and customs and the marriage was consummated. They led a happy married life for one year. Thereafter the respondent ill-treated the petitioner. Reconciliation efforts were made, but to no avail. It is stated that on 15.06.1998, without informing the petitioner and his mother, the respondent left the matrimonial home and stayed at Obichoodahalli at her relatives house. On enquiries being made, it came to knowledge of the appellant that the respondent stayed at Obichoodahalli till 16.01.2008 and thereafter went to stay with her parents without any valid reason. Accordingly, desertion was alleged. Despite efforts, there was no cohabitation with the petitioner and she refused to join the matrimonial home. It is alleged that a son was born to the respondent who is not the son of the petitioner. During subsistence of the marriage, the respondent willfully deserted the petitioner and had extra marital relationship. She was living in adultery and continued as such and therefore the petition was filed.

4. Objections were filed by the respondent. The marriage was admitted. It is stated that after stay of 15 days in her matrimonial home, she went to her parental home for observing Ashadamasa and thereafter, she returned back to her matrimonial home. At the time of Ganesha festival, the villagers demolished the house, which was being constructed by the petitioner. The petitioner started ill-treating the respondent that the house was demolished by her father. She was not allowed into the kitchen and was treated as a servant. He used to abuse and assault her and on 01.06.1998, the petitioner forced an abortion on her. At that time, the petitioner suffered ill health. It is stated that she tolerated the ill-treatment and continued to stay with the petitioner for two to three years and then she went to her parental home for delivery of her child. Thereafter, the petitioner never visited the child. She returned to the matrimonial home along with the child when the child was 5 months baby. But neither the petitioner nor his mother allowed her to enter the house. A panchayat was convened during which he declared that the child does not belong to him. Thereafter, the respondent was forced to take shelter in the house of her parents. It was contended by the respondent that in order to contract a second marriage, the petitioner had secured a girl related to him and he is keeping her in his house since the past three years. The respondent stated that she was even then ready to join the petitioner with the child. Four issues were framed by the Family Court which are as under:

(1) Whether the petitioner proves that he was subjected to cruelty in the hands of the respondent and he cannot be expected to lead life with the respondent?

(2) Whether the petitioner further proves that the respondent has voluntarily deserted him two years prior to presentation of the petition without justifiable reason?

(3) Whether the petitioner is entitled for the relief as sought in the petition?

(4) What Order?

5. Point Nos. 1, 2 and 3 were decided in the negative. The petitioner got himself examined as PW-1 and got marked the documents Exs-P1 to P4 and closed his side. The responde