P. Jayananda vs Pushpavathi

N.K. Patil, J.—This appeal arises out of the impugned judgment and order dated 24.10.2009 passed by the Family Court, Davangere, in M.C. No. 27/2007 wherein the petition filed by the Appellant under Sections 13(1), (i-a) & (i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as ''the Act'') for grant of a decree of divorce against the Respondent/wife has been dismissed.

The brief facts of the case are:

The marriage between the Appellant and the Respondent was solemnised on 2.5.1994 as per the Hindu rites and customs and from the wedlock, they have a female child. They lived happily and peacefully for more than ten years. Unfortunately, due to misunderstanding between them, they started quarreling with each other. According to the Appellant, the Respondent/wife has tortured him mentally and physically without any fault on his part. It is stated that the Respondent without any intimation was going to her parents'' house. It is stated that at her request, he separated from his joint family at Davangere and shifted to Bangalore with the fond hope that they can lead an independent life. Even thereafter, she has not changed her attitude, her mind set up and continued to live with the Appellant peacefully and time and earlier, she was picking up fights with the husband uncalled for reasons and also with the neighbours and he could not tolerate it. He tried his best to reform her and continue their relationship but he could not succeed. When things stood thus, the Respondent lodged a complaint before KTJ police station, Davangere, against the Appellant for dowry harassment Both the parties were called for by the jurisdictional police and were advised to settle the matter amicably. In spite of that, she again started quarreling with the Appellant in front of their minor daughter. The Respondent deserted the Appellant in the year 2003 without any justification and has been living in her parents'' house since then and there is no communication or relationship between them thereafter. Hence, he was constrained to file a petition under Sections 13(1), (i-a) & (i-b) of the Act.

Upon notice to the Respondent, she appeared through her counsel and denied the allegations made in the petition. The Appellant to substantiate his case examined himself as P.W.1 and got marked the documents as Exs.P1 to P4. The Respondent examined herself as D.W. 1 and she has not produced any documents. On the basis of the pleadings of the parties, the court below has framed four points for its consideration at para 5 of the impugned judgment.

After consideration of the oral and documentary evidence on record and having regard to the age and relationship of the parties, the court below has answered all the points in the negative and consequently dismissed the petition holding that the Appellant has failed to establish the grounds envisaged under the provisions of the Act referred to above. Except making oral statement, he has neither examined any independent witnesses nor produced any authenticated document to prove his case. Being aggrieved by the impugned judgment and order passed by the court below, the Appellant herein felt necessitated to present this appeal.

Learned Counsel appearing for the Appellant submitted that the court below has committed an error in dismissing the petition filed by the Appellant in view of the fact that in spite of making sincere efforts, the Respondent had deserted him in the year 2003 and is living in her parents'' house and she was in the habit of using vulgar words against him in front of their minor daughter. She has also given a complaint to the police station against the Appellant for dowry harassment. Even though the police authorities advised the parties to settle the matter, she did not change her attitude. Considering these aspects, the court below ought to have allowed the petition filed by the Appellant for grant of a decree of divorce but has dismissed the petition. Hence, he submitted that the impugned judgment and order passed by the Court below is liable to be set aside.

Learned Counsel appearing for the Respondent/wife submitted that the court below on a detailed consideration of the oral and documentary evidence on record has rightly dismissed the petition filed by the Appellant and hence, the impugned judgment and order does not call for interference by this Court.

After hearing the learned Counsel appearing for the parties and after perusal of the impugned judgment and order passed by the court below, we do not find any error in dismissing the petition filed by the Appellant. The Appellant has not examined any independent witnesses to substantiate that he has suffered physical and mental torture from the Respondent. However, what emerges from the evidence is that in the cross-examination of the Respondent, she has stated that in the presence of general public, he has removed thali (mangal sutra) and this fact is not disputed by the Appellant. It is the specific case of the Respondent that whenever he was angry he used to beat her time and again but she has not taken any steps to lodge a complaint before the police authorities. She has admitted in her statement of objections that after lodging of a complaint before KTJ police station, matter was settled amicably. The Appellant instead of living with her peacefully has issued a legal notice through his counsel and thereafter he has filed the aforesaid petition. This aspect of the matter has been rightly looked into and appreciated by the court below. The court below, on consideration of the oral and documentary evidence on record, has recorded a finding of fact holding that the Appellant has failed to establish the ground of cruelty meted out to him by the Respondent. Therefore, we do not find any ground to interfere with the impugned judgment and order passed by the court below.

For the foregoing reasons, the instant appeal filed by the Appellant is devoid of merit and is accordingly dismissed. No costs.