Cruelty Allegations Uncontroverted: Karnataka HC Sets Aside Order Denying Divorce To Wife For Not Honouring Restitution Of Conjugal Rights Decree

The Karnataka High Court has allowed an appeal filed by a woman and set aside the order of the family court rejecting her plea for dissolving marriage, stating that despite the court allowing the application moved by the husband for restitution of conjugal rights, she had not returned to the matrimonial home.

A division bench of Justice S G Pandit and Justice Vijaykumar A Patil, said “The family Court has committed an error in recording the finding that despite the judgment in M.C.No.280/2019, the appellant has failed to join matrimonial home. The family Court has not considered the case of the appellant on its merits for dissolution of marriage on the ground of cruelty.”

The couple had married in the year 2017, the woman alleged that after a few months of marriage the respondent (husband) started quarrelling with her for dowry. It is further averred that the respondent used to put cloth in the mouth of the appellant, assaulted her, pulled her hair and forced the appellant for sexual intercourse.

Further, it is alleged that when she informed him about her pregnancy, he was not happy with the said news and he was more worried as to whether the appellant would give birth to a male or female child. After the delivery, the husband did not take any responsibility nor took care of her and the new born child, she alleged.

Before the family court the husband denied the allegations of cruelty and argued that the wife, for the reasons best known to her, went to her parents house without any reason; she is adamant in nature, used to quarrel for petty reasons and she was in the habit of insulting the respondent and his family members and there was no harassment from the respondent as alleged in the petition.

He further alleged that the wife left the matrimonial home by deserting the respondent and despite the application for restitution of conjugal rights being allowed by the court she did not join the matrimonial home.

Findings:

The bench noted the allegations of cruelty made by the woman in her petition and evidence and said during her cross-examination, nothing has been elicited by the respondent. It said the respondent (husband) filed his affidavit in lieu of examination-in-chief but he was not secured for cross-examination, hence, the family Court had to discard his evidence. Moreover, his counsel had also retired from the case and thereafter, the respondent did not defend his case before the family Court.

“On careful scrutiny of the pleadings and evidence on record, it is evident that the appellant wife has made specific assertion of cruelty referred supra. Those specific assertions of cruelty are adduced in the form of evidence before the family Court. Despite the cross-examination of PW-1, nothing was elicited by the respondent and the respondent has failed to adduce the evidence, which clearly establishes that the allegations are true and the same are not controverted by the respondent by adducing proper evidence before the family Court.”

Further it said “The family Court has committed an error in recording the finding that the appellant has approached this Court in MFA No.101311/2020 challenging the order passed in M.C.No.280/2019 (application for restitution of conjugal rights filed by husband), hence, considering the petition for dissolution of marriage does not arise and the petition is not maintainable under law. The aforesaid finding is erroneous for the reason that the respondent has filed petition under Section 9 of the Act for restitution of conjugal rights and the said petition was disposed of placing the appellant ex-parte.”

Following which it held “The allegations of cruelty referred to as supra are of serious in nature and consistent from the inception of marriage till the appellant started living with her parents. In our considered view, the appellant has proved the grounds of cruelty to dissolve the marriage.”

Accordingly it allowed the appeal.

Case Title: PRADNYA W/O. ABHIJIT WAINGANKAR And ABHIJIT S/O. MANOHAR WAINGANKAR

Case No: MISCELLANEOUS FIRST APPEAL NO.103166 OF 2022

Citation: 2023 LiveLaw (Kar) 254

Date of Order: 30-06-2023Appearance: Advocate Prruthvi K S for appellant.

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