Sri. R. Girish Aradhya vs Smt. Sureka Aradhya

Manjunath, J.—M.F.A. No. 144/2010 is filed by the husband challenging the legality and correctness of the order passed by the III Addl. Family Judge, Bangalore, dated 21st November 2009 in M.C. No. 110/2004 filed u/s 13(1) (ia) & (ib) of the Hindu Marriage Act. Similarly M.F.A. No. 145/2010 is filed by the very same Appellant being aggrieved by the dismissal of his application filed u/s 25 of the Guardian and Wards Act, in G & WC No. 76/2004 dated 21st November 2009, wherein he sought for custody of his minor son Chiranth from Respondent/wife. Since the parties in the appeals are one and the same, and as the subject matter of both the appeals are in respect of matrimonial dispute and custody of a child, these appeals are taken up together with the consent of learned Counsel for the parties.

It is the case of the Appellant/husband that he married the Respondent on 15.3.99 and that out of their wedlock, they have a child by name Chiranth and from the day one of the marriage, the Respondent/wife was not cooperating with him and she was threatening that she would to commit suicide when she was pregnant and as the conduct of the Respondent is not that of ordinary wife, as the Respondent is residing separately with her parents and inspite of an attempt made by him to get back her to the matrimonial home the Respondent has failed to join him, he filed the petition for grant of divorce on the ground of desertion. He has also filed the ease for divorce on the ground of cruelty contending that Respondent is a quarrelsome lady and she was not keeping the harmony of the family and she was not even preparing food for him. Similarly, he also filed a petition for custody of a minor child. The trial Court has rejected both the petitions filed by the husband.

The main contention of the learned Counsel for the Appellant before us is that the trial court without appreciating the evidence let in by the parties has wrongly dismissed the petitions. Accordingly, the trial Court has not even gone into the evidence of P. Ws 2 and 3 though they were examined as parties. On account of non-appreciation of evidence in full, great injustice is caused to the Appellant. In the circumstances, he requests the Court to allow the appeal and grant a decree of divorce. Similarly, he requests the Court to grant custody of the minor child.

Per contra, the learned Counsel for the Respondent contends that the trial Court is justified in dismissing both the appeals, since the Appellant has failed to prove the allegations made in the petitions. According to him, it is the Appellant who has discarded the Respondent even though she is ready and willing to join the Appellant. She has denied the allegations made against her. According to him, no evidence is let in by the Appellant to grant a decree of divorce as the grounds of desertion and cruelty have not been proved by him. According to him, till 2003, the Respondent was residing with the Appellant and the petition is filed in the year 2004. If the petition is filed for grant of a decree of divorce on the ground of desertion, without there being actual desertion of 2 years, the petition filed on the ground of desertion has to be rejected in limine. In the circumstances, he requests the Court to dismiss both the appeals.

Having heard the learned Counsel for the parties, we are of the view that grant of custody of a minor child would be depending upon the result of divorce. Therefore, we would like to consider whether the Appellant has made out a case to grant a decree of divorce. So far as this aspect is concerned, from looking into the order sheet of the Court below, the Appellant has examined himself as P.W.1 and he also relied upon the evidence of P. Ws.2 and 3 but unfortunately, the trial Court in the entire order did not refer to the evidence of P. Ws.2 and 3. Therefore, on account of non-consideration of evidence of P. Ws.2 and 3 this Court has to set-aside the order passed by the Court below and remand the matter for fresh consideration. In view of our finding on the divorce petition, we are of the view that the order passed in G & W.C. No. 76/2004 is also required to be set-aside and both the matters are required to be heard together in the best interest of the parties and it would be appropriate for the Family Court to pass a common order.

Accordingly, these two appeals are allowed. The orders passed in G & WC No. 76/2004 and M.C. No. 110/2004 dated 21st November 2009 by the III Addl. Family Judge, Bangalore, are hereby set-aside and the matters are remanded to the Family Court for providing an opportunity to both the parties to substantiate their case. Both the parties shall appear before the Family Court on 7th March 2011. The amount, if any, deposited by the Appellant towards interim maintenance shall be paid to the Respondent and she shall be permitted to withdraw the same.