Home > Divorce > HC: Wife cannot put a condition that husband has to come and stay with her…Dovorce confirmed

HC: Wife cannot put a condition that husband has to come and stay with her…Dovorce confirmed

 

IN THE HIGH COURT OF KARNATAKA, BANGALORE

DATED THIS THE 271 DAY OF OCTOBER, 2010

PRESENT

THE HON’BLE MR.JUSTICE K.L.MANJUNAFH

AND

THE HON’BLE MR. JUSTICE B.MANOHAR

MFA.NO.L 4266 OF 2010 (MC)

BETWEEN:
Smt. Shanthamma.
W/o.Dyavappa.
Aged about 43 years,
R/at Chikkamararnma Temple,
Kurubarapet.
Hoskote Town-562 1 14,
Bangalore Rural District. . . .APPELLANT
(By Sri.Chandan S.Rao for Rao & Rao, Advocate)

AND:

Sri. L. Dyavapa,
S/o.Laksh:nayya
Aged about 52 years.
R/a Flolerah alli,
Rjka1ha1li Post,
Vemga! Hobli,
Kolar Disirict-563 101. . . . RESPONDENT

 

MFA file U/s.28(4) of Hindu Marriage Act, against the Judgment and decree dated: 04.02.2009 passed in MC.No.40/2005 on the file of Principal Civil Judge(Sr.Dn) & CJM, Kolar, allowing the petition filed U/s. 13 ci Hindu Marriage Act for dissolution of Marriage.

This MFA having been heard and reserved and coming on for pronouncement of Judgement this day, B.MANOH.AR J., delivered the following:

JUDGME PJT Appellant is the respoiderit hefnre the court below, being aggrieved by the judgment and decree dated 4-2-2009 made in M.C.No.40/2005 passed by the Principal Civil Judge (Sr.Dn.) and CJM, Kolar preferred this appeal.2. The brief facts of the case are as follows:

The petitioner filed the petition under Section 13 of Hindu Marriage Act, i955 against the respondent-wife seeking for dissout ion of their marriage solemnized on 31-10-1996. The petitioner has contended that respondent is the legally wedded wife of the petitioner arid their marriage was solemnized according to the Hindu customs and rituals of their communities on 31-10-1996. After the marriage, the respondent stayed in the marital house for a few days and deserted the marital House without any valid reason and settled at her parental house. Due to the wedlock, a male child was born, but the respondent was not allowing him to look or speak with his child. In view of the compromise by the well-wishers and elders and on her request, the petitioner has set up a separate house for the respondent by taking a residential house on lease in the month of March 2001. However, the appellant lived only for 3 days and began to pick up quarrels and abused the petitioner in a filthy language and again left the petitioner arid went to her parental house. The respondent deserted the petitioner permanently and settled down at her parental house. In order to pacify the matter, the petitioner along with Subbareddy, Manja Naik and Lakshmaiah. went to the appellant’s house. In spite of their advice, the appellant did not join the petitioner. In view of the attitude of the appellant, the petitioner filed M.C.No. 19/2004 seeking for divorce. Even though the proceeding was pending, the petitioner went to the house of the respondent, however, he was assaulted brutally by the respondent and her family members. The petitioner has suffered loss of marital life. The appellant has deserted the petitioner for more than five years. Due to the conduct of the respondent the petitioner has suffered mental shock, pain and agony. The action of the respondent is nothing but mental and physical cruelty on the petitioner and deserted the petitioner fer more than 3 years. The M.C.No. 19/2004 was subsequently withdrawn by the petitioner. The marriage has irretrievably broke down between the parties. In view of that, the petitioner filed a petition under Section 13 (1)(la) and (ib) of Hindu Marriage Act seeking for dissolution of marriage.

3. In pursuance to the notice issued by the court below, the respondent entered appearance and filed objections, denying the averments made in the petition. However, she admitted that she is the legally wedded wife of the petitioner and out of their wedlock, a male child was born. In her objections, she has alleged that the petitioner without any cause left her and her child. He goes on changing the house frequently and she used to go along with him as per his wish. Since she was working as a Teacher, he was pressurizing the respondent to leave her job. Suddenly, when once she went to the parental house, without any justification, the petitioner filed M.C.No. 19/2004, seeking for divorce. On his direction. she has resigned for the post of Teacher on 12-6-2002. She has contended that tie separate house set up by the petitioner had flG necessary infrastructure to stay there. The petitioner was physically arid mentally harassing her. In view of that she has lcft the marital house. The allegations of the petitioner that the respondent stayed in the house set up by the petitioner only for 3 days is totally incorrect. She stayed theie for more than 3 months. Since there is no infrastructure to stay there, she has left that house. The petitioner was not taking care of the respondent and her child. Further, she had filed Mlsc.Case 37/2005 under Section 125 of Cr.P.C. seeking for maintenance. The court below has granted the maintenance of Rs.500/- to her child. Since the petitioner is not taking care ol the child, she had filed a suit for partition of the family properties of the petitioner. Hence, sought for dismissal of the petition.

4. On the basis of the pleadings of the parties, the court below framed the following

(1) Whether the petitioner proves that he is entitle for the relief as sought for in the petition?

(ii) What order?

5. The petitioner in order to substantiate his case has examined himself as P.W. 1 and got the document marked as Ex.P.l. The respondent examined herself as R.W.1 and examined her sister as R.W.2. She got marked the documents Ex.R. 1 to Ex.R6.

 

6. The court below after considering the oral and documentary evidence let in by the parties held the issue in favor of the petitioner consequently by its judgment and decree dated 4-2-2009, was pleased to allow the petition flied under Section 13 of the Hindu Marriage’ Act and marriage solemnized on 31-10-1996 has been dissolved by the court below on the ground that the respondent has deserted the petitioner and there was irretrievable break down of the marriage.

7. The appellant being aggrieved by the judgment and decree dated 4-2-2009 made in M.C.No.40/2005 preferred this appeal.

8. Sri.Chandan S.Rao, learned counsel appearing for the appellant contended that the judgment and decree passed by the court below is contrary to law and without appreciating the oral and documentary evidence, a decree of divorce has been passed which is contrary to law. The husband himself deserted the wife without taking care of her and her child. The respondent himself filed M.C.No. 19/2004 subsequently, he withdrew his petition and flied a fresh petition for the same cause of action. The appellant being a dutiful wife, on the direction of the respondent resigned her job for the post of Teacher. Since the respondent has failed to maintain her, she has to take protector of her parents. Hence, sought for setting aside the order passed by the court below by allowing the appeal.

9. We have carefully gone through the arguments addressed by the learned counsel for the parties and oral and documentary evidence let in by the parties.

10. It is not in dispute that the marriage between the appe1lan and respondent was solemnized on 31-10-1996 as per their customs and rituals. After the marriage, the appellant stayed in the marital house and out of their wedlock, a male child was born. The allegation of the respondent—husband is that the appellant is not allowing him to see and speak with his child and frequently she used to go to her parental house without his permission. She had put a condition to establish a separate residence for herself and she does not want to live with his family members. The respondent in his evidence has deposed that when he went to the house of the appellant for compromise talk, he was brutally assaulted and from 2001 she has deserted the respondent-husband. That apart a maintenance case has been filed and also a suit for partition has been filed.

11. The appellant In her evidence reiterated the averments made in he statement of objections and In her cross examination she has deposed that if the respondent comes and stay with her at her house, then only she is ready to stay with him otherwise she is not ready to lead a marital life with him. The sister of the appellant was examined herself as P.W.2. In her evidence she has deposed that if the husband of her sister comes and stay at Hosakote, then only they are ready to send her sister with her husband otherwise, the appellant would not live with the respondent. From the evidence of P.W. 1 and P.W.2 it is clear that unless the husband stay in Hosakote in their house, the appellant does not want to live with her husband. The respondent/husband is working as a Teacher in theGovernmentHigh School. The wife cannot put such a condition that he must come and stay with his wife in her house that apart, she had deserted the respondent for more than five years.

12. Under Section 13 of the Hindu Marriage Act, if the party has deserted the petitioner for a continuous a period of not less titan 2 years immediately preceding the presentation of petition, they ore entitled for a decree of divorce under Section 13(l)(lb) of the Hindu Marriage Act. The marriage has been irretrievably broke down and it cannot be repaired any more. The court below on the basis of the evidence led by the parties granted a decree of divorce. We find no infirmity or irregularity in the finding recorded by the court below. The appellant has not made out any case to interfere with the well-considered order passed by the courL below. Hence, We pass the following:

ORDER

Appeal filed by the appellant is dismissed confirming the judgment and decree passed by the court below.

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Judge

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Judge

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