No Rebuttal To Desertion Allegations Despite Entering Appearance: Karnataka High Court Dismisses Wife's Appeal Against Divorce Decree

The Karnataka High Court has dismissed an appeal filed by a woman challenging an order of the family court granting divorce on the grounds of desertion as the wife failed to counter the averments made by the husband in the petition.

A division bench of Justice Alok Aradhe and Justice Vijaykumar A Patil said “It is trite law that if a witness is not subjected to cross-examination by the other side, his testimony is deemed to have been accepted.”

The woman had approached the court questioning the judgment and decree dated 18.09.2016 passed by the Family Court by which petition filed by the respondent / husband under Section 13(1)(ib) of the Hindu Marriage Act, 1955 was allowed and the marriage between the parties was dissolved.

The husband had sought divorce by filing a petition on 29.10.2014 inter alia on the ground that after five months of marriage in 2010, the appellant/wife left the matrimonial home. Since then the parties are living separately for a continuous period of three years immediately preceding the date of presentation of the petition. A notice dated 02.09.2014 was sent to the woman asking her to give consent for divorce. However, the appellant /wife did not respond to the aforesaid notice. Accordingly, a decree of dissolution was sought on the ground of desertion.

The woman was served with notice of the proceedings and engaged a counsel. However, neither any statement of objection was filed on behalf of the appellant / wife nor any evidence was adduced. Following which the trial court passed the impugned order.

In appeal the woman claimed she was thrown out of the matrimonial home on 25.07.2014. Thus it was prayed for the matter be remitted to the family court and the appellant / wife be granted opportunity to adduce evidence.

Findings:

On going through the records the bench noted that admittedly, the appellant/wife was served with notice of the proceedings and had engaged counsel. The counsel participated in the proceedings before the family court. However, neither any statement of objections was filed nor any evidence was tendered on behalf of the appellant / wife.

Then it said “In the absence of any rebuttal of averments made in the petition under Section 13 of the act as well as the fact that the respondent/husband was not subjected to cross-examination, the family court has rightly concluded that the appellant/wife has deserted the respondent/husband for a continuous period of two years immediately preceding the two years of presentation of the petition.”

It held “The ground for desertion therefore, has duly been proved. The finding recorded by the family court does not suffer from any infirmity warranting interference of this court in this appeal.”

Case Title: ABC And XYZ

Case No: MISCELLANEOUS FIRST APPEAL NO.4290 OF 2016

Citation: 2023 LiveLaw (Kar) 148

Date of Order: 29-03-2023

Appearance: Advocate S G Lokesh for appellant.

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