Shrishaila vs Sangamitra

Budihal R.B., J.—This Miscellaneous First Appeal is preferred by the appellant-husband being aggrieved by the order and also challenging the legality and correctness of the order of the Family Court, Bijapur on the grounds urged in the appeal memorandum.

The brief facts of the case are that, appellant herein is the native of Dhomanala village, Bijapur taluk. He was appointed as a Primary School Teacher and joined service of HPS, Honna Nayakanahally, Chennapatna Taluk. He used to visit his village and Bijapur. He married the respondent as per the Hindu customs on 27.05.1992 at Bijapur. It is an arranged marriage. He was transferred to Lalaghata village in the same taluk. The respondent spent nine months with him at Lalaghata. She harassed him and not cooperated with him, without any reason. She left him on 17.03.1993, when she was seven months pregnant and started living with her parents. All his efforts to bring her back went in vain. She gave birth to a male child in the month of April 1993. He went to visit the child, but in vain. He was abused. A panchayat was also convened in December, 1993 to bring her back to lead matrimonial life with the petitioner, but in vain. In 2001, appellant was transferred to HPS Dhomanal, Bijapur district and he joined there in August 2001. He tried to convince her, but in vain. He suffered mental torture, loss of love and affection. Since 17.02.1993, the present appellant and the respondent lived apart, without co-habilitation and matrimonial life. Hence the appellant approached the Family Court at Bijapur by filing a petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage with the respondent.

The respondent appeared in the matter and filed her objection statement and she denied the case of the appellant. She also denied that there was a torture to him and she did not cooperate the appellant. But it was contended by the respondent-wife that after the appellant''s transfer to Dhomanal village, he demanded her to get Rs. 1,00,000/- from her father, alleging that he spent Rs. 1,00,000/- for his transfer. Her father was unwell. Her brother Kashinath agreed to pay the said amount. Yet she was driven out of the house and she was forced to live in her native. Her father died on 07.03.2004. Even then, the respondent tried to join the appellant, but it was in vain. He demanded her to join him along with Rs. 1,00,000/-. She also contended that she is ready to live with him.

After completion of the pleadings, oral evidence of the parties was recorded before the Family Court and the Family Court after considering the oral and documentary evidence placed in the matter, ultimately dismissed the petition holding that the petitioner-husband has failed to make out a case that he has pleaded in his petition.

Being aggrieved by the same, the appellant-husband has preferred the present appeal.

Heard the arguments of the learned counsel appearing for appellant-husband and also the learned counsel appearing for the respondent-wife.

Learned counsel for the appellant submitted that the respondent lead her marital life with the appellant only for a period of 9 months and there afterwards she went back to her native place and she did not turn up to lead the matrimonial life with the appellant. He made all his efforts, even panchayat was also held. But inspite of that, the respondent-wife did not join the company with the appellant. Hence, he submitted that though the appellant himself examined and he has also examined independent witnesses before the Family Court, the oral as well as the documentary evidence were not properly appreciated by the Family Court, Bijapur and wrongly rejected the petition. Hence, he made the submission that appeal be allowed and the order of the Family Court be set aside by allowing the petition to dissolve the marriage of the appellant with the respondent.

Per contra, learned counsel appearing for the respondent-wife submitted that the respondent-wife never refused to lead the marital life with the appellant. But on the contrary it is the appellant who started to give ill-treatment and harassment to the wife at the instigation of his sister Indiramma. Hence, learned counsel made the submission that when he was transferred from Lalaghata to Dhomanal, it is the appellant who demanded Rs. 1,00,000/- from the wife and he started to give ill-treatment to her because of these things. The father of respondent also expired. Even then, brother of the respondent gave the assurance that he will pay Rs. 1,00,000/-. Hence, learned counsel made the submission that looking to the materials placed on record the respondent was able to establish that the appellant was giving ill-treatment and harassment at the instigation of his sister Indiramma. Hence, submitted to dismiss the appeal.

We have perused the pleadings of the parties, oral and documentary evidence filed before the Family Court at Bijapur and also the order passed by the Family Court which is challenged in this appeal. The appellant relied upon one document Ex. P-1 which is said to be the letter addressed by respondent-wife to the appellant. But perusing the oral evidence of the parties and considering the cross-examination of the parties, it was transpired and considered by the Family Court that the contents of the letter are in one ink and the date put on the said exhibit is in another ink and the respondent also deposed before the Family Court that she has not addressed that letter and she simply put her signature on the said letter. So ultimately, after perusing the evidence on record, the Family Court has come to the conclusion that the appellant has not established the fact that the said letter was addressed by the respondent-wife.

So far as the contention of the respondent-wife that the appellant-husband gave ill-treatment to her at the instigation of his sister Indiramma, we have perused the oral evidence of the parties on the side of the appellant as well as the respondent-wife. Looking to the oral evidence of the parties, the respondent was able to establish that this Indiramma sister of the appellant was staying with the appellant when he was at Lalaghata. It is no doubt true that the appellant has examined two witnesses but perusing their evidence i.e. PWs-2 and 3 they have clearly admitted that they have no personal knowledge about the marital life between the appellant and respondent but they have stated what is told by the appellant-husband accordingly they are deposing before the Court. This goes to show that they have no personal knowledge about the manner in which the couples were leading their life and whether there was ill-treatment or not. They are only the hearsay witnesses. This aspect has been rightly appreciated by the Family Court, Bijapur. Looking to these materials on record and when the wife is able to establish that Indiramma was staying with the appellant, the Family Court has rightly come to the conclusion that at the instigation of Indiramma the appellant was giving ill-treatment and harassment to the respondent. Therefore, even if for some period the respondent-wife came to her parental place, it was for the delivery of the child and only on the basis of that, it cannot be inferred that she deserted the company of the appellant. Looking to the evidence of the appellant himself, when it was suggested during the course of the cross-examination that if the wife is prepared to come, whether he is ready to lead the marital life, for that the appellant said No. This is on page No. 8 of the order of the Family Court. It was suggested specifically that, even then also the wife was ready to lead the marital life with him, but he said that he is not willing to take her back. Even when the matter was pending before this Court, it was referred to mediation center for reconciliation. Those efforts were in vain. This itself is sufficient which goes to show that the appellant was not ready and willing to lead the marital life with the respondent. All these aspects were properly considered by the Family Court, Bijapur. We do not find any illegality in the order of the Family Court nor there is any perverse or capricious view taken by the Family Court, so as to interfere in this appeal to reverse the finding of the Family Court. There is no merit in the appeal. Accordingly, the same is hereby dismissed.