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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 25^TH DAY OF AUGUST, 2021

PRESENT

THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

AND

THE HON’BLE MRS. JUSTICE J.M.KHAZI

MISCELLANEOUS FIRST APPEAL No.201613/2016 (FC)

BETWEEN:

Ashik Kataria S/o Mahaveerchand Kataria

Age: 35 years, Occ: Business

R/o: H.No.154, First Floor,

Mahaveer Complex, Tarband X road

Secundrabad-AP-500003

... Appellant

(By Smt. Chandrakala, Advocate for

Sri Shivakumar Kalloor, Advocate)

AND:

Smt. Sushila @ Shushma W/o Ashik Kataria

Age: 34 years, Occ: Household

R/o: H.No.154, First Floor,

Mahaveer Complex, Tarband X road

Secundrabad-AP-500003

Now at H.No.11-3-21, Near Mahaveer Chowk

Raichur-584101

... Respondent

(By Sri Prakash R. Kulkarni, Advocate-Absent)

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This Miscellaneous First Appeal is filed under Section

19 (1) of the Hindu Marriage Act, praying to allow the

above Miscellaneous First Appeal and set aside the

Judgment and Decree dated:20.07.2016 passed by the

Family Court Raichur in M.C.No.31/2014 and dismiss the

petition in M.C.No.31/2014 filed by respondent.

This appeal coming on for final hearing this day,

K.S.Mudagal J., delivered the following:

JUDGMENT

None appears for the respondent. Heard the

appellant’s counsel.

Aggrieved by the judgment and decree dated

20.07.2016 in M.C.No.31/2014 allowing respondent’s

petition against him for divorce, the husband has preferred

the above appeal.

2. The marriage of the appellant and the respondent

was solemnized on 02.02.2006 at Raichur. Out of the said

wedlock a daughter by name Ritika was born on

13.07.2008. The respondent filed M.C.No.31/2014 against

the appellant seeking decree for divorce on the ground

that, after few days of the marriage appellant started

inflicting physical and mental cruelty on her and drove her

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out of the matrimonial home in April 2012. She further

alleged that though after the intervention of the elders she

joined the matrimonial home, the appellant continued his

ill-treatment.

3. Respondent alleged that the appellant twice tried

to commit suicide and she had to rescue him and he was

infected with deadly disease of HIV. She further alleged

that appellant and his parents snatched her jewelries from

her locker. She also claimed permanent alimony of

`1,00,00,000 (Rupees One Crore).

4. The appellant contested the petition denying the

allegations of cruelty. He admitted that he was infected

with HIV, but contended that he suffered that infection due

to medical negligence during his treatment for dengue

fever in the hospital.

5. The respondent was examined as PW-1 before

the trial court. The appellant cross-examined her only in

part. He did not lead any evidence.

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6. The trial court, on hearing the parties, by the

impugned judgment and decree, allowed the petition and

granted decree of divorce on the ground that though the

appellant suffering HIV disease may not amount to cruelty,

but the case of the respondent is covered under Section

13(1) (v) of the Hindu Marriage Act, 1955 (for short ‘the

Act’). The Trial Court further held that since HIV is a

venereal disease of communicable form, the respondent is

entitled to decree of divorce. The trial court negatived the

claim of the respondent for permanent alimony considering

the financial conditions of both the parties.

7. The appellant assails the impugned judgment and

decree on the ground that the trial court has failed to

appreciate the evidence and the position of law in proper

perspective. So far as the allegations of cruelty, PW-1

reiterated the grounds of the petition. She spoke to the

appellant ill-treating her and taking away her jewelries.

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8. As already point out, the appellant did not cross-

examine PW-1 on all material aspects. The cross-

examination of PW-1 was concentrated o