JUDGMENT

Challenging the judgment and decree of divorce passed against her, the respondent in M.C.No.43/2011 on the file of Senior Civil Judge & JMFC, Holalkere, has preferred this appeal.

2. The appellant was the respondent and the respondent herein was the petitioner in M.C.No.43/2011 before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

3. The marriage of the petitioner and respondent was solemnized on 05.05.2009 at Sri.Nanjundeshwara Samudaya Bhavana, Santhebennur Village, Holalkere Taluk. The parties being Hindus are governed by the Hindu Marriage Act, 1955 (‘the Act’ for short).

4. The petitioner filed M.C.No.43/2011 against the respondent under Section 13(1)(ia)(ib) of the Act seeking decree of dissolution of marriage alleging that after three months of marriage, the respondent subjected him and his parents to mental cruelty. He alleged that the respondent was always speaking ill of him and insisting him to separate from his parents. He further alleged that during night time, the respondent used to get phone calls and she used to go outside and converse with the callers. Ultimately, the respondent deserted him and left the matrimonial home about two years and one month prior to the filing of the petition i.e., 19.10.2011. He alleged that since two years prior to the petition, respondent deprived him of his conjugal rights and pushed him to depression.

5. The respondent contested the petition denying the allegation of cruelty and desertion. She contended that the petitioner, his sisters and parents subjected her to physical and mental cruelty on the ground that she did not begot the child and forced her to leave the house. In that connection, panchayats were held. Being unable to withstand the ill- treatment, she filed the complaint in Chikkajajur police station, there also they were advised. She further alleged that to play fraud on her, petitioner, his sisters and parents have effected the partition in the family properties and have thrown her out.

She sought dismissal of the petition.

6. In support of his case, the petitioner got himself examined as PW.1 and one Sri.S.R.Rajashekharappa @ Rajappa as PW.2 and on his behalf wedding invitation card is marked as Ex.P1. The respondent was examined as RW.1 and on her behalf RWs.2 & 3 were examined.

7. The trial Court on hearing the parties, by the impugned judgment and decree, allowed the petition and granted decree of divorce. The trial Court held that the evidence of PWs-1 and 2 that due to the conduct of the respondent, petitioner had to separate from his parents was not controverted. The trial Court further held that on the complaint of the respondent, petitioner, his parents and his sisters are facing trial in C.C.No.442/2012 for the offence punishable under Section 498A of IPC and that amounts to cruelty. The trial Court further held that the evidence of RWs.1 to 3 did not prove the allegations of cruelty set up by the respondent, thus allowed the petition.

8. Sri.D.S.Shivanand, learned Counsel appearing for Sri.M.V.Hiremath, learned Counsel on record for the respondent-wife submits that the allegations of cruelty were bald and mere filing of criminal case does not amount to cruelty. He further submits that there were sufficient grounds for the wife to leave the matrimonial home and the trial Court has failed to appreciate the evidence in proper perspective.

Thus, he seeks for reversal of the order of the trial Court and dismissal of the petition.

9. Sri N.D.Onkarappa, learned Counsel for the petitioner-husband justifying the impugned judgment and order submits that the wife has admitted about she living separately and she failed to prove that there was reasonable excuse for her to stay separately. Her allegations of cruelty were not proved. He further submits that during the pendency of this appeal, petitioner-husband has contracted second marriage, got a child out of the said marriage a