SMT NETHRAVATHI vs SRI NAGARAJ - 2022 Supreme(Online)(Kar) 32223

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Online)(Kar) 32223

M.F.A.No.6941/2013

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12^TH DAY OF SEPTEMBER 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE S.RACHAIAH

MISCELLANEOUS FIRST APPEAL No.6941/2013 (FC)

BETWEEN:

SMT.NETHRAVATHI
D/O NANJAPPA
AGED ABOUT 38 YEARS
R/AT NO.296, K.MUNIYAPPA GARDEN
HORAMAVU MAIN ROAD
BANGALORE 3 560 043

...APPELLANT

(BY SMT.BINDU U, ADVOCATE FOR M/S PRAMILA ASSOCIATES)

AND:

SRI NAGARAJ
S/O NARAYANASWAMY
AGED ABOUT 45 YEARS
R/AT YELLAMMA TEMPLE STREET
MELINAPET, HOSAKOTE TALUK
BANGALORE RURAL DISTRICT
BANGALORE 3 562 114

&RESPONDENT

(BY SRI ARJUN BONSLE, ADVOCATE)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF THE FAMILY COURTS ACT, 1984 READ WITH
SECTION 96 OF THE CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 19.06.2013 PASSED BY THE II ADDITIONAL
PRINCIPAL
JUDGE,
FAMILY
COURT,
BANGALORE
IN
M.C.NO.2657/2010.

M.F.A.No.6941/2013

2

THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
FURTHER HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:

JUDGMENT AND ORDER ON I.A.NO.1/2020

Aggrieved by the decree of divorce granted against her,
the respondent in M.C.No.2657/2010 on the file of II Addl.
Principal Judge, Family Court, Bangalore, has preferred the
above
appeal.
She
has
filed
I.A.No.1/2020
claiming
permanent alimony of `5,00,00,000/- from the respondent.

2.
The marriage of the appellant and the respondent
was solemnized on 14.02.2003 as per Hindu Rites and
Customs in Hoskote, Bangalore Rural District. Out of the said
wedlock, the couple were blessed with two daughters Varsha
and Chayashree who are presently aged 18 and 16 years.

3.
The appellant filed G & W.C.No.231/2007 against
the respondent before the learned III Additional Principal
Judge, Family Court, Bengaluru to appoint her as guardian of
her minor daughters Varsha and Chayashree. In that
petition, she alleged that after the birth of second child, the

M.F.A.No.6941/2013

3

respondent started ill-treating her, thrown her out of the
matrimonial home with her second daughter, retaining first
daughter. Later when the first child was suffering from
ill-health, she took custody of the first child. Though the
respondent denied the allegations, the trial Court in G & W.C.
No.231/2007 accepting the contention of the appellant,
allowed the said petition on 28.03.2012. It was ordered that
the minor children Varsha and Chayashree shall continue in
the custody of the present appellant till they attain majority,
with visitation right to the respondent during holidays and
vacation. He challenged that judgment before this Court in
MFA.No.265/2014 (GW). This Court by judgment dated
11.09.2014 dismissed the said appeal and confirmed the
judgment of the trial Court in G & W.C.No.231/2007.
Admittedly, the daughters are still in the custody of the
appellant.

4.
The
appellant
and
her
children
filed
Crl.Misc.No.30/2008 against the respondent which came to
be allowed on 11.01.2012 awarding maintenance of `500/-
each to wife and both children. In the said petition, the trial

M.F.A.No.6941/2013

4

Court held that the respondent having sufficient means has
failed and neglected to maintain his wife and two children
(Ex.R1 3 copy of the order in Crl.Misc.No.30/2008).

5.
On
20.04.2009,
the
respondent
filed
M.C.No.1137/2009 before the Principal Judge, Family Court
against the appellant seeking decree for restitution of
conjugal rights. Ex.R4 is the copy of the said petition. On
11.08.2010, he withdrew the said petition. Ex.R3 is the copy
of
the

sheet

M.C.No.1137/2009.

M.C.No.1137/2009, it was alleged that the appellant deserted

him without any cause.

Such being the facts, the respondent filed

M.C.No.2657/2010 before the trial Court seeking decree of

dissolution of marriage on the ground of desertion. He

alleged that, after the delivery of the second child on

10.08.2007, the appellant and her people did not allow him

to see the child and she declined to join him in matrimonial

home.

The appellant contested the petition denying the

allegation of desertion. She claimed that the respondent

himself was suspicious in nature and harassed her imputing

unchastity. She alleged that the respondent was not

permitting her to go to her parental house posing threat of

suicide. It is further alleged that the respondent and his

family members were humiliating her amongst neighbours,

imputing black magic activities and he intended to remarry.

She further alleged that he was pressurizing her to sign blank

forms, humiliated her disputing paternity of the children. He

was threatening that he would leave her on streets taking

possession of the children and demanding her to give

divorce.

In support of their case, the parties adduced

evidence. The respondent was examined as PW.1 and his

brother-in-law was examined as PW.2. No documents were

produced on his behalf. The appellant was examined as

RW.1

behalf,

copy

order

Crl.Misc.No.30/2008, copy of the order in G & WC.No.231/

2007, copy of the order sheet in MC.No.1137/2009, copy of

the petition in MC.No.1137/2009 were marked as Ex.R1 to

Ex.R4.

The trial Court on hearing the parties, by the

impugned judgment and decree allowed the petition, holding

that the respondent9s claim of willful desertion is proved. The

trial Court holds that the appellant in her evidence stated that

she tolerated the acts of cruelty of the respondent, therefore

that amounts to condonation of the alleged acts of cruelty of

the respondent. The trial Court holds that when she has

condoned the cruelty, she living separately amounts to

desertion.

10.

permanent alimony of `5,00,00,000/-. The respondent

opposed the said application by filing statement of objections.

Both parties filed their affidavits regarding their assets and

liabililties in compliance of judgment in RAJNESH vs. NEHA¹.

11.

Learned counsel for the appellant reiterating the

grounds of appeal, submits that when the wife stated that

1 AIR 2021 SC 569

she is staying separately being unable to withstand the

cruelty of the respondent / husband, that does not amount to

condonation

cruelty.

very

same

court

Crl.Misc.No.30/2008 has awarded maintenance with the

finding that the respondent having sufficient means, has

failed and neglected to maintain his wife and children. The

allegation of the appellant that her husband being the

tormentor was accepted all along in Crl.Misc.No.30/2008 and

in G&WC.No.231/2007. That was upheld by this Court in

MFA.No.265/2014. In the light of such judicial findings, the

trial Court committed perversity in passing the decree of

dissolution of marriage on the ground of desertion.

12.

So far as permanent alimony, she submits that

as per the affidavit of the respondent, he needs `40,000/-

per month for his personal expenses. So wife and daughters

are also entitled to alimony befitting the status of the

respondent.

13.

Sri.Arjun Bonsle, learned counsel appearing on

behalf of Sri.Mahantesh S.Hosmath, learned counsel for

respondent justifies the impugned judgment and decree on

the ground that admittedly wife is living separately since

10.08.2007 without any justification. So far as permanent

alimony, he submits that he has dependant parents and he

owns only 8 guntas of land and he is ready to maintain his

wife and children. He submits that permanent alimony

sought is inflated one.

14.

On considering the material on record and

submissions of both side, the questions that arise for

consideration of this Court are:-

<(1) W

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