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Shivakumar v. Premavathi, (Karnataka)(DB) Law Finder Doc Id # 67404

2004 AIR Karnataka 146 : 2004(1) HLR 372 : 2004 Air Kar R 202 : 2004(18) AIC 264 : 2004 MatLR
318 : 2004(1) CurCC 377 : 2004(1) KantLJ 194 : 2004(2) KCCR 1122
KARNATAKA HIGH COURT
(DB)
Before:- S.R. Nayak and Ram Mohan Reddy, JJ.
Misc. First Appeal No. 2384 of 2003. D/d. 20.11.2003.
Shivakumar S/o Shivanna - Appellant
Versus
Premavathi W/o Shivakumar - Responent
For the Appellant :- B.K. Manjunath, S.C. Vijayakumar, N. Kumaraswamy, Harsha R. Londhe and S.N.
Sneha, Advocates.
For the Respondent :- M.S. Prakash, Advocate.
A. Hindu Marriage Act, 1955, Section 13(1)(i) - Divorce - Decree - Ground, adultery - Husband
filed a petition for divorce on the plea that his wife had illicit relations with other persons -
However, any person of the locality from whom he had heard of the said alleged connection of
his wife had not been examined by him in evidence - Circumstances under which wife was
required to live with persons with whom she was alleged to have adultery - Was explained by
her husband held not entitled for decree of divorce.
[Para 9]
B. Hindu Marriage Act, 1955, Section 13(1)(ib) - Divorce - Decree - Desertion - Wife was living
separately for more than 20 years - Husband filed petition for divorce on this ground of
desertion - Physical separation merely does not amount to desertion - "Animus deserendi"
should exist that is intention of parties to bring co-habitation permanently to end - It is
necessary for husband by establishing that he did not neglect his wife and he has to establish
prima facie that the separation of the wife did constitute desertion by establishing that he did
not neglect his wife - Allegation of desertion if not corroborated by independent witness - Then
husband is not entitled for divorce.
[Para 10]
C. Hindu Marriage Act, 1955, Section 13(1)(ia) - Decree - Divorce - Cruelty - Any imputation
without any foundation against the character of any spouse - Will amounts to mental cruelty
and constitute a sufficient justification and valid reason for the spouse to stay away from the
other - Husband made allegations of cruelty against wife - But these allegations were not
supported by evidence of independent witnesses - Husband is responsible for the break - down
of the marriage - Husband, held not entitled for divorce.

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[Para 12]
Case Referred :-
Vijaya Kumar Ramchandra Bhate v. Neela Vijaya Kumar Bhate, (2003) 2 LRI 890.
JUDGEMENT
Ram Mohan Reddy, J. :- The Appellant husband, unsuccessful in securing order for dissolution of
his marriage with the respondent has preferred this appeal under Section 28 of the Hindu
Marriage Act, 1955 (for short the Act) calling in question the order dated 28-2-2003 passed in M.C.
No. 1 of 1995 on the file of the Civil Judge (Sr. Dn.) J.M.F.C. , Bhadrvathi.
2. Shivkumar the Appellant and Premavathi the Respondent were married sometime in the year
1981 at Yarehalli village according to Hindu rites and customs. One son is born out of the wedlock.
The appellant alleged that the respondent had developed an illicit intimacy with one Thimme
Gowda, on the say of the persons in the locality. The appellant having curtailed the movements of
the respondent, she left the matrimonial home and lodged as false complaint with the Police, who
after investigation filed a 'B' report. The challenge to the 'B' report resulted in the Magistrate taking
cognizance of the case under Section 307, Indian Penal Code read with Section 4 of Dowry
Prohibition Act and on trial ended in an acquittal on 5-12-1988. The respondent filed an application
under Section 125, Cr. P.C., 1973 in which the Appellant gave his consent to pay a sum of Rs. 300/-
towards monthly maintenance of the appellant and Child Mallikarjuna. The appellant also alleged
that the respondent was living in the house of one G.N. Ganganna as his kept mistress. Since 1983
the respondent was not willing to lead a married life with the Appellant, the petitioner (in) MC 1 of
1993 under Section 13 of the Act for dissolution of marriage by a decree of divorce was sought for
by the appellant.
3. The respondent wife, though served with notice did not appear before Court or making
arrangements for being represented and therefore the Prl. Civil Judge and C.J.M. Shimoga placed
the respondent ex parte and allowed the petition granting the decree of divorce by Order dated 21-
2-1994 being aggrieved of the said order, the respondent filed MFA 2510 of 1994 before this Court
and a Coordinate Bench of this Court, allowed the appeal set aside the order dated 21-2-1994 by a
Judgment dated 2-12-1994, and remitted the matter to the Civil Judge, Bhadravathi for fresh disposal
is accordance with law.
4. The appellant after the completion of the period for filing of an Appeal got married for the
second time with one Neelamma and out of the said wedlock has two children. The respondent
entered appearance in the petition before the Court below and field her written statement denying
all the allegations set out in the petition for divorce while admitting the marriage with the
Appellant. This respondent denied any illicit relationship with either Thimme Gowda or with G.N.
Ganganna. The respondent denied having refused to live with the appellant on the contrary
contended that she was thrown out of the Matrimonial home while she was 1= months Pregnant
and thereafter the appellant deserted the respondent and also failed to maintain her. Left with no
other alternative the respondent petitioned the Court seeking maintenance.
5. In the premise of the pleading of the parties, the Court below framed the following issues :
1. Whether the petitioners proves that after solemnisation of marriage, the respondent treated
the petitioner with cruelty ?

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2. Does petitioner prove that respondent deserted the petitioner for a continuous period of 2
years ?
3. Whether petitioner is entitled for divorce ?
4. What decree or order ?
6. The appellant husband examined himself as P.W. 1 and exhibited one document marked as Ex. P1
while the respondent wife examined herself as R.W. 1 without marking any documents. The Court
below answered the issues in the negative and dismissed the petition. Being aggrieved by the said
dismissal the husband has preferred this appeal.
7. The learned Counsel for the appellant sought to contend that cruelty was established by the
criminal complaint for dowry harassment complaint filed by the respondent and the consequent
acquittal. He further contends that the illicit relationship between the respondent and one Thimme-
gowda as well as G.N. Ganganna were established by evidence in addition the learned Counsel
contends that the parties have been living separately for more than 20 years and therefore the
willingness of the respondent to return to the matrimonial home is a farce and not bona fide.
Therefore he contends that the Court below had rendered erroneous findings on the issues.
8. Having heard the learned Counsel for the appellant what falls for our decision making in this
appeal is whether the Court below was justified in dismissing the petition under Section 13 of the
Act, filed by the Appellant for dissolution of the marriage between the parties, in the facts and
circumstances of the case.
9. The grounds for divorce by the appellant is one of adultery by the respondent and lodging a false
complaint of dowry harassment causing cruelty to the appellant, in addition to desertion by the
respondent of the company of the appellant. The evidence of P. W. 1 the Appellant discloses that the
people in the locality had said that the Respondent had an illicit connection with Thimmegowda.
The Appellant, however, did not examine any person of the locality from whom he had heard of the
said alleged connection of his wife. The appellant sought to sustain the said allegation on the basis
of his sole self-interested testimony. The appellant admitted in his cross-examination that in the
Birth Certificate Ex. P1 the name of the father shown as Shiva Kumar is himself, which relates to
the birth of a child on 10-12-1984 and the name of the mother is that of the Respondent. The said
Thimme-gowda, it is elicited in evidence was a witness in the criminal complaint filed by the
Respondent except for the oral testimony of P. W. 1, there is no corroboration of any independent
witness to support the allegation of adultery committed by the respondent by living in the house of
the said G. N. Ganganna. The marriage between the parties was during the year 1981 and the son
was born to them during October, 1984, which is not seriously disputed by the appellant both in
pleadings or in evidence. The Respondent though admitted that she was residing in the house of G.
N. Ganganna explained the circumstances under which she was required to take shelter stating
that her father had refused to accommodate her and, therefore, the elderly person in the village
had agreed to her residing in a room in the house of G. N. Ganganna, where she also does coolie
work.
10. Mere physical separation would not amount to desertion. The "animus deserendi" on the
intention to bring cohabitation permanently to an end should exist. In fact neglect by husband of
his wife prima facie constitutes desertion. It is necessary for the husband to establish prima facie
that the separation of the wife did constitute desertion by establishing that he did not neglect his
wife. In the instant case the appellant has examined himself as P. W. 1 which is a self-interested

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testimony and in the absence of any corroboration has failed to establish by the desertion
complained of.
11. The Supreme Court in the case of Vijaya Kumar Ramchandra Bhate v. Neela Vijaya Kumar
Bhate (2003) 2 LRI Page 890 observes thus : (Para 7 of AIR)
"Levelling disgusting accusations of unchastity and indecent familiarity with a person outside
wedlock and allegations of extra-marital relationship is a grave assault on the character,
honour, reputation, status as well as the health of a wife. Such as persons of perfidiousness
attributed to the wife would amount to the worst form of insult and cruelty, sufficient by itself
to substantiate cruelty in law, warranting the claim of the wife for divorce being allowed."
12. It is well established general principle that if any imputation against the character of any
spouse is alleged without any foundation such reckless and baseless allegations of illicit relationship
amounts to mental cruelty and will constitute a valid and sufficient justification for the spouse to
stay away from the other. The Appellant by reasons of conduct on his part, made it unbearable for
the respondent-wife with reasonable self-respect to stay with him. So it is the Appellant who is
really responsible for the breakdown of the marriage. The Court below having arrived at a positive
conclusion that the Appellant had failed to establish the allegations of adultery by the wife, we do
not see any ground for interference in the said finding.
13. In view of the aforesaid findings all other contentions of the appellant have to necessarily fail
and are rejected.
14. The Appeal is devoid of merits and is dismissed at the stage of admission. The Respondent is
permitted to withdraw the costs of Rs. 5000/- in deposit in the appeal.
Appeal dismissed.

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