Shivananda Moolya vs Prema

Rathnakala, J.—This appeal is filed assailing the judgment and decree dated 14.08.2013 passed in M.C. No. 27/2013 (Old No. 63/2011) on the file of the Principal Judge, Family Court, Chikmagalur, by the unsuccessful husband before the said Court.

The fact is:

That a petition under Section 12 of the Hindu Marriage Act, 1955 was filed by the husband seeking decree of divorce. The case made out in the petition was, the parties are married as per their customs on 23.04.1992 at Koppa and are blessed with two children. They are living together in the same house at Berugudige Village. From the date of the marriage, the wife was not in good terms with the husband. She showed disrespect to him; quarreled and scolded him in singular words; when questioned, she threatened to commit suicide; she is not preparing food and not looking after the children; she is harassing the son; she is suspecting his character; she used to go out of the house and never returned till late night; she scolds him in filthy language in front of the villagers; she instigated her brother Babu Moolya; when the husband requested her brother Babu Moolya to settle the matter, he threatened him of assault and to break his legs; the wife and her brother are lodging false complaints to the police. The notice issued by him was refused by the wife and her brother and it is impossible for him to lead life with her.

The wife contested the petition. Though admitted the relationship, she denied the allegations leveled against her in the petition. After recording the evidence and after giving audience to both parties, the learned trial Judge has dismissed the petition.

In the body of his judgment, the learned trial Judge takes note of the admissions emerging in the cross-examination evidence of PW. 1/husband and PW. 2/his son. The husband has admitted that a case for maintenance is filed by the wife and he had called upon the wife in his legal notice to join him. PW. 2/the son had admitted that his younger sister committed suicide and there was an allegation of the said murder against his father. His mother has filed complaint against him (witness) also. The learned Judge on appreciation of the evidence, observes that the provisions of Section 12 of the Hindu Marriage Act invoked by the husband does not deal with divorce on the ground of cruelty. Allegations made out against the wife is not supported by independent evidence. The criminal case is pending against the husband for the murder of the daughter. There is only oath against oath, the allegations made against the wife do not amount to cruelty for granting a decree of divorce.

However, the petition is rejected firstly, for invoking wrong provision of law and secondly, for insufficiency of evidence and thirdly, the allegations are unable to make out a case for cruelty. Invoking a wrong provision of law by itself is not a ground to reject relief to a party before the Court, if the petitioner has shown valid cause of action to seek a relief. The learned trial Judge on proper and judicious appreciation of evidence has not found merit in the case of petitioner. That prompts us to hold that the petitioner's appeal against the impugned judgment is not fit for admission and accordingly, the appeal is rejected.