KARABASAPPA MALLAPPA TIRLAPUR vs VIJAYALAXMI W/O. KARABASAPPA TIRLAPUR

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MFA No. 102914 of 2022


IN THE HIGH COURT OF KARNATAKA AT DHARWAD

TH
DATED THIS THE 6 DAY OF NOVEMBER, 2026


PRESENT

THE HON'BLE MR. JUSTICE M.I.ARUN

AND

THE HON'BLE MRS JUSTICE USHARANI

MISCELLANEOUS FIRST APPEAL NO. 102914 OF 2022

(FC)

BETWEEN:
KARABASAPPA MALLAPPA TIRLAPUR
AGE. 34 YEARS, OCC. AGRICULTURE
R/O. HOMBAL- 582103, TQ/DIST. GADAG.
…APPELLANT




(BY SRI. C.S. SHETTAR AND KAVYA C, ADVOCATE)

AND:
VIJAYLAXMI W/O. KARABASAPPA TIRLAPUR
AGE. 28 YEARS, OCC. AGRICULTURE,
R/O. HOMBAL-582103,TQ /DIST. GADAG,
NOW RESIDING AT C/O. MALLANAGOUDA PATIL
R/O. JANTLI SHIRUR-582113
TQ. MUNDARGI, DIST. GADAG
…RESPONDENT





YASHAVANT
NARAYANKAR
Digitally signed by
YASHAVANT
NARAYANKAR
Date: 2026.11.06
15:28:27 +0530
(NOTICE IS SERVED TO RESPONDENT)

THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURTS
ACT 1984, PRAYING TO ADMIT THE APPEAL AND CALL FOR
THE RECORDS OF THE TRIAL COURT AND ALLOW THE APPEAL
REVERSING THE JUDGMENT AND DECREE PASSED IN
M.C.NO.101/2018 DATED 21.06.2019 PASSED BY THE
LEARNED I ADDITIONAL PRINCIPAL JUDGE FAMILY COURT AT
GADAG AND THEREBY PASS THE DECREE DISSOLVING THE
MARRIAGE BETWEEN THE APPELLANT AND RESPONDENT
DATED 17.02.2012 AND GRANT SUCH OTHER RELIEFS AND
ORDER, DEEMED FIT AND PROPER IN THE CIRCUMSTANCES OF
THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.

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MFA No. 102914 of 2022


THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
29.10.2026 COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE M.I.ARUN
AND
HON'BLE MRS JUSTICE USHARANI

CAV JUDGMENT
(PER: HON'BLE MRS JUSTICE USHARANI)
Aggrieved by the judgment and decree in

M.C.No.101/2018 dated 21.06.2019 passed by I Additional
Principal Judge, Family Court, Gadag (hereinafter referred to as
‘Family Court’), the appellant-husband has preferred this
Appeal seeking to set aside the same.

2. The facts of the case, as averred in the petition, are
that the marriage of the appellant and the respondent was
performed on 17.02.2012 as per customs and traditions
prevailing under the Hindu law. Thereafter, they have started
leading their matrimonial life at the house of appellant at
Hombal village, Gadag Taluk. A few months after the marriage,
the respondent-wife started expressing her unwillingness to
continue residing in the joint family. She also frequently
criticized the appellant for his inability to secure a stable and
definite source of income and, in an insensitive manner, stated

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MFA No. 102914 of 2022


that she had married him only due to the pressure exerted by
her parents. The respondent’s reluctance to join appellant’s
company, her prolonged absence from the matrimonial home
and visits to Gadag, became a matter of concern to the
appellant. On 22.05.2018, after respondent was caught red-
handedly with one Musthakali at the house of Saddam
Mustafasaba Kalkeri, Musthakali snatched mangalsutra of the
respondent and escaped on a motorcycle. Thereafter, when
the respondent was handed over to Gadag Rural Police, she
disclosed that she was having illicit relationship with Musthakali
and out of the said relationship, she had conceived. Hence,
Crime No.181/2018 has been registered against Musthakali and
Saddam Mustafasaba Kalakeri. It is further averred that the
respondent was a quarrelsome lady and has failed to discharge
her marital obligations, thereby caused mental and physical
torture to the appellant. Hence, the appellant filed petition
seeking divorce under “ Section 13(1)(1)(a) of the Hindu
Marriage Act, 1955” (hereinafter referred to as ‘the Act’ for
short).

3. Though provision i.e., Section 13(1)(1)(a) of the
Act, has been wrongly referred in the petition, same is
reproduced as it is, wherever required.

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MFA No. 102914 of 2022



4. Respondent-wife has filed objection before the
Family Court admitting the relationship between the parties,
but has denied the allegations made against her and has
contended that it is the appellant and his family members who
have subjected her to cruelty and drew her out of the
matrimonial home. At the time of her ‘Simanta’, they have
demanded more gold and cash. Further, they have also forced
her to transfer a house allotted to her under the ‘Women
Scheme’ by executing Relinquishment Deed. When she has
refused for the same, they have filed this petition.

5. The Family Court, after considering evidence of
PWs.1 to 3 and documents Exs.P1 to P15 produced by the
appellant and also the evidence led by the respondent/RW1, by
relying upon judgments in the cases of Arunkumar Agarwal
1
Vs. Radha Arun and another and Chennigaiah Vs. Smt.
2
Lakkamma @ Laxmamma held that, since adulterer is not
arrayed as a party to the proceedings, petition is not
maintainable. Further, it held that the appellant has failed to
prove the allegations levelled against the respondent and
consequently dismissed the petition.

1

ILR 2004 KAR 808
2
MFA No.10187/2011

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MFA No. 102914 of 2022



6. In spite of service of notice to the respondent in
this appeal, she has remained absent.

7. Heard the learned counsel for the appellant-
husband and perused the materials on record.

8. The point that arises for consideration is as follows:
(i) Whether the impugned order in
M.C.101/2018 passed by Family Court,
Gadag warrants interference?

9. There is no dispute with regard to the marital
relationship existing between the appellant and respondent. It
is important to note here that M.C.No.101/2018 has been filed
under “ Section 13(1)(1)(a)” of the Act (as noted supra, the
appellant has wrongly mentioned the provision in the petition),
seeking dissolution of marriage on the ground of cruelty, but
pleadings attract the grounds of adultery as well as cruelty.
Therefore, the family court had raised following points for
consideration:
i. Whether the petitioner has made out grounds to
dissolve the marriage of the petitioner with the
respondent as prayed for?

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MFA No. 102914 of 2022


ii. What order?

10. In order to answer the above points, the Family
Court has discussed the allegations of adultery as well as
cruelty urged for dissolution of marriage by the appellant and
proceeded to pass the following:
“ORDER
The Petition filed by the petitioner U/s 13(1)(ia)
of the Hindu Marriage Act 1955 is hereby
dismissed with costs.
Draw decree accordingly.”

11. In view of the above, we deem it appropriate to
discuss both the grounds of adultery as well as cruelty. As
noted supra, Family Court has relied upon judgments in the
cases of Arunkumar Agarwal and Chennigaiah (referred
supra) and held that since adulterer is not arrayed as a party to
the proceedings, petition is not maintainable.

12. It is relevant to note here that in Arunkumar
Agarwal, the Hon’ble Division Bench held that, where Court
has to decide whether the respondent had voluntary sexual
intercourse with another, the Court would be in a better
position to effectively adjudicate the lis between the parties if

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MFA No. 102914 of 2022


adulterer is arrayed as a respondent. Further, the Court held
that adulterer will be a proper party to the proceedings under
Section 13(1)(i) of the Hindu Marriage Act and will not be a
necessary party. The principles enunciated in the above
judgment was reiterated by the Division bench of this Court in
3
the case of N. Vijaykumar Vs. Latha @ Sangeetha , wherein
it was held that alleged adulterer is a proper party for the
purpose of effective and complete adjudication of issues in
controversy between the parties.
After adverting to the principles enshrined above, we hold
in this case that when issue is with regard to adulterous
relationship alleged by one party against another, the Trial
Court erred in holding that the petition is not maintainable on
account of non-arraignment of adulterer as a party to the
proceedings.

13. With regard to the allegation that, on 22.05.2018,
the respondent was found to be in illicit relationship with one
Musthakali at the house of Mustafasaba Kalakeri, FIR 181/2018
has been registered in Gadag Rural Police Station against
adulterer and the owner of the house, alleging offences

3
MFA 200801/2021 (Kalburgi bench)

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MFA No. 102914 of 2022


punishable under Section 392, 497, 114 and 34 of Indian Penal
Code. It was alleged in the said complaint that when appellant’s
aunt and her son Mallappa Balanagouda Patil informed the
appellant that, they have red-handedly caught respondent and
Musthakali, he rushed to the spot and was devastated to find
them in partially dressed state. Musthakali extricated himself
and before speeding away on a motorcycle snatched mangalya
chain from the neck of the respondent. Pursuant to this,
respondent was produced before Gadag Rural Police where she
has admitted developing illicit relationship with Musthakali.

14. The above allegations in the complaint as well as
the evidence of the PW1 transpires that the appellant has not
witnessed the incident and based on the information given by
his aunt and her son, he became aware of the same. However,
on the contrary during his cross examination, the appellant
deposed that he found respondent and Musthakali in the
custody of his aunt and her son and they were naked. It is
necessary to note here that, before the Family Court, the
appellant (PW1) had deposed that he had lodged the complaint
immediately after the alleged incident, whereas PW2-aunt of
the appellant deposed that she had lodged the complaint. In
fact, the complaint was lodged by PW1, that too after expiry of

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MFA No. 102914 of 2022


six days. Pertinently, the above mentioned aunt of the
appellant and her son (PW2 and PW3) who were said to be the
eye witnesses to the alleged incident, are related to the
appellant. If at all respondent was caught red-handedly, non-
filing of complaint on the very same day makes the occurrence
of the alleged incident improbable and the same has been
rightly observed by the Family Court.

15. The contention of the appellant was that after the
alleged incident, the respondent was produced before Gadag
Rural Police Station and that the respondent has admitted her
guilt. Thereafter, she was sent to Betageri rehabilitation centre
for women, where she remained for three days. Thereafter,
fifteen elders of the village met her and spoke to her. But she
has denied admitting guilt and has admitted in her evidence
that she was at rehabilitation centre for three days. Further,
she has also stated that her mother took her to their village
from rehabilitation centre. From the above facts and admission
regarding remaining in rehabilitation centre, we opine that
there is dispute between appellant and respondent, which is at
best a natural wear and tear in their marital life but it does not
prove that respondent is in an adulterous relationship.

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MFA No. 102914 of 2022



16. Moreover, the appellant and his learned counsel has
not produced any details pertaining to the pendency or disposal
of the criminal proceedings in C.C.No.737/2018 arising out of
FIR No. 181/2018 of Gadag Rural Police Station. Upon verifying
the case status on e-courts, it is found that C.C.No.737/2018
on the file of II-Additional Civil Judge and JMFC-II, Gadag has
been disposed of, by acquitting Musthakali and Mustafasaba
Kalakeri.

17. Available materials show that, at the time of
registering afore-mentioned criminal case, the respondent was
pregnant. However, the appellant has denied organizing baby
shower for the respondent. According to the respondent, there
was a demand for gold and money from the family members of
the appellant on the day when baby shower was organized.
Further, it was alleged that they have also demanded transfer
of the house which stood in her name. But, the respondent has
not produced any evidence in support of her contention.

18. Further, appellant has contended that the
respondent has conceived from the illicit relationship. In this
regard, during the course of the cross examination, it was put
to RW1 that whether she is ready to have DNA test, for which

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MFA No. 102914 of 2022


she has answered that the child is born to the appellant and
she is not ready to undergo DNA test. Considering the above
facts, the Trial court has rightly relied upon the case of V.
4
and discussed
Anandappa Vs. V. Shivaraju and another
that there is presumption in favor of respondent regarding the
legitimacy of the child born during the continuation of valid
marriage. It is for the appellant to prove non-access to dispel
the presumption arising under Section 112 of Indian Evidence
Act, 1872.

19. As already discussed supra , appellant has also
alleged cruelty but has not produced supportive evidence.
Though respondent/RW1 was cross examined at length on this
point, nothing much was elicited in support of the case of the
appellant. In view of the above discussion, point for
consideration is answered in the negative. Hence, the following:
ORDER

(i) The appeal is dismissed .

(ii) Consequently, the judgment dated
21.06.2019 in M.C.No.101/2018 passed by

4
(2011) 4 Kant LJ 73; 2010 SCC Online Kar 5076.

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MFA No. 102914 of 2022


ˢᵗ
I Additional Principal Family Court, Gadag , is
confirmed.

(iii) No order as to costs.

(iv) Registry is directed to remit back the trial
court records forthwith.

Sd/-
(M.I.ARUN)
JUDGE


Sd/-
(USHARANI)
JUDGE



YAN
CT:CNB