SNEHALATA @ LEENA vs JAFFERY S/O DANIEL KALBANDI,

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD

TH
DATED THIS THE 16 DAY OF OCTOBER, 2026


R

PRESENT

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

AND

THE HON'BLE MR. JUSTICE RAGHAVENDRA SEETHARAM SRIVATSA

MISCELLANEOUS FIRST APPEAL NO. 100761 OF 2017 (FC)

BETWEEN:

SNEHALATA @ LEENAW/O JAFFERY KALABANDI,
AGE: 41 YEARS,OCC. TYPIST,
R/O: S.J. ANDLI, JAYANAGAR,
BEHIND GURUDATTA BHAVAN,
VIDYA NAGAR,
HUBBALLI.
…APPELLANT
(BY SRI. P.S. TADAPATRI, ADVOCATE FOR
SRI. K.L. PATIL, SRI. S.B. NAIK AND SRI. B.C. INDI,ADVOCATES)

AND:







BHARATHI
H M
JAFFERY S/O DANIEL KALBANDI,
AGE: 41 YEARS,OCC: BUSINESS,
R/O: DEENABANDHU COLONY,
KARWAR ROAD,
HUBBALLI.

Digitally signed by
BHARATHI H M
Location: high court of
karnataka, dharwad
bench
Date: 2026.10.16
17:08:30 +0530
…RESPONDENT
(BY SRI. AAYUSH G. BHAT AND SRI. G.A.BHAT,ADVOCATES)

THIS MFA IS FILED UNDER SECTION 55(1) OF THE INDIAN
DIVORCE ACT 1869, AGAINST THE JUDGMENT AND DECREE DATED
25.01.2017, PASSED IN M.C NO.140/2012 ON THE FILE OF THE
PRINCIPAL JUDGE, FAMILY COURT, HUBBALLI AND ETC.

THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
22.09.2026 COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THISDAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE M.I.ARUN
AND
HON'BLE MR. JUSTICE RAGHAVENDRA SEETHARAM SRIVATSA


CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE RAGHAVENDRA SEETHARAM SRIVATSA)

This is an appeal by the wife who has suffered a decree of
divorce in a petition filed by her husband and labelled as
“ petition under Section 10-A of the Indian Divorce Act 1869 and
Amendment Act, 2001 ”. Section 10-A stipulates dissolution of
marriage by mutual consent. However, in the present case, the
respondent-husband made allegations of adultery, desertion
and cruelty against the appellant-wife. The Family Court has
held that the ground of adultery is not proved but the ground of
desertion and cruelty, have been held to be proved. It is
interesting to note that in the operative portion of the
judgment, the Family Court has recorded “The petition filed by
the petitioner u/s.10A of Indian Divorce Act 1869 and
Amendment Act of 2001 is allowed”.

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2. The parties herein are Christians and are governed
1
by the provisions of Indian Divorce Act, 1869 . The husband
was the petitioner before the Family Court and he is the
respondent herein. The wife was the respondent in the Family
Court and the appellant herein.

3. The parties are referred to by their respective ranks
in this appeal.


4. The facts, culminating in the present appeal are as
follows:


4.1 The marriage between the parties was solemnized
on 19.10.2008 at Maier Memorial Church, Karwar Road,
Hubballi, in accordance with the customs and rituals of the
Christian community. After the marriage, the parties resided
together at the matrimonial home in Hubballi.


4.2 A male child was born to the parties on 15.12.2011
and was named Christopher. It is the case of the wife that,

1
hereinafter also referred to as ‘IDA’

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after the birth of the child, she continued to be ready and
willing to join the husband and resume matrimonial life.


4.3 The respondent-husband instituted a petition before
the Principal Judge, Family Court, Hubballi, seeking
dissolution of the marriage under Section 10-A of the Indian
Divorce Act, 1869. In the said petition, the husband alleged,
inter alia , that after the marriage, the parties lived together
for about two years and thereafter matrimonial differences
arose between them.


4.4 The respondent-husband further alleged that the
wife, despite the cooperation extended by him and his family
members, frequently quarrelled with him and often left the
matrimonial home and went to her parental house.
According to him, despite intervention by the elders of the
Church and repeated efforts were made by him to bring her
back, the wife refused to resume cohabitation.


4.5 It was further alleged by the respondent that on
28.03.2011 the wife left the matrimonial home and went to

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her parental house at Vidyagiri, Hubballi, and thereafter
refused to return and join him. The husband also made
certain allegations regarding the wife's alleged previous
relationship and conduct prior to and during the subsistence
of the marriage.


4.6 The respondent issued a legal notice to the wife on
21.04.2011. The appellant-wife through her counsel issued a
reply to the notice on 29.04.2011. Thereafter, the
respondent instituted the aforesaid petition before the
Family Court seeking dissolution of the marriage.


4.7 Upon service of notice and appearance of the
appellant before the Family Court through her counsel, she
filed her objections denying the allegations made by the
respondent. While admitting the marriage and the
relationship between the parties, she denied the other
allegations made against her.


4.8 It is the specific case of the appellant that she had
been subjected to ill-treatment and harassment by the

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husband and his family members and that she was
repeatedly driven out of the matrimonial home. She further
contended that the disputes between the parties arose in
connection with her salary and that she was subjected to
abuse, assault and other forms of ill-treatment.


4.9 The appellant further contended that on
05.04.2011, after returning from her work, she found the
matrimonial home locked and, despite waiting until about
9.00 p.m., the respondent and his family members did not
return. She therefore called her parents, who came along
with elders. According to her, a quarrel thereafter took place
and she was compelled to return to her parental home along
with her parents.


4.10 It was further contended by the appellant that on
06.04.2011 she lodged a complaint before the Mahila Police
Station against the respondent, his father and mother.
During the enquiry, the respondent and his parents came to
know that the wife was pregnant. According to the appellant,
thereafter, on the advice of the Police at the Mahila Police

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Station, the husband agreed in writing that she could remain
in her parental home until the delivery of the child.


4.11 The appellant delivered a male child on 15.12.2011.
As pleaded in the Memorandum of Appeal, she informed the
respondent about the birth of the child by Telegram. She
alleged that the respondent neither visited the child nor
responded to the Telegram. She further contended that she
continued to remain ready and willing to join the husband
and resume matrimonial life.


5. The respondent examined himself as PW-1, and one
Gershem R., was examined as PW.2 and documents were
marked as Ex.P-1 to Ex.P-4. These documents are as follows:
Ex.P-1- Marriage Card.
Ex.P-2- Marriage Photo.
Ex.P-3-Marriage Certificate.
Ex.P-4- Legal Notice.

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6. The appellant was examined as RW.1 and she got
documents marked as Ex.R-1 to Ex.R-4. These documents are
as follows:
Ex.R-1- Receipt issued by the Mahila Police.
Ex.R-2- Complaint.
Ex.R-3- Pregnancy test report of the respondent.
Ex.R-4- Statement given by the petitioner before the Police.



7. The Family Court held that there was absolutely no
satisfactory evidence to prove that the appellant was leading an
adulterous life. It was held that the respondent-husband had
failed to prove the adulterous life of the wife. However, the
Family Court proceeded to grant a decree of divorce on grounds
of desertion and cruelty.


8. We have heard Smt. Padmaja S. Tadapatri, learned
counsel for the appellant. There is no representation on behalf
of the respondent.


9. Smt. Padmaja S. Tadapatri has contended that the
Family Court has erred in granting a decree of divorce on
grounds of desertion and cruelty. It is her submission that the

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mandatory period of desertion for dissolution of marriage is
atleast two years before the presentation of the divorce petition
is not made out in this case. On the ground of cruelty, she
submits that there are no specific instances of cruelty on the
part of the appellant. It is also her contention that the
evidence is completely wanting to bring home the ground of
cruelty under Section 10(1)(x) of the IDA. She therefore prays
that the appeal be allowed and the judgment and decree of
divorce granted by the Family Court be set aside.

The ground of desertion:

10. Adverting to the ground of desertion, we must say
that there has been total non-application of mind by the Family
Court. Section 10 (1) (ix) of the Indian Divorce Act, 1869
stipulates that one of the parties to the marriage can get the
marriage dissolved by proving that the other party has deserted
the petitioner for at least two years immediately preceding the
presentation of the petition . In the present case, the
respondent-husband has asserted in his petition that the
appellant-wife left the matrimonial home on 28.03.2011 and till

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the date of petition, she had not returned to her matrimonial
home.


11. The petition seeking divorce was filed on
18.09.2012. It is therefore apparent that the mandatory period
of two years of desertion is not made out as per the
respondent-husband’s own pleadings. In fact, the Family Court
has itself recorded the relevant dates in the course of its
judgment. Yet, the Court proceeded to hold that the ground of
desertion had been proved by the respondent-husband. The
decree for divorce has also been granted.


12. The approach adopted by the Family Court has been
that of missing the woods for the trees. When the statutorily
mandated period of desertion is not made out on the
petitioner’s own showing, it was impermissible for the Family
Court to have granted the decree of divorce on the ground of
desertion. We therefore set aside the finding of the Family
Court that the ground of desertion has been made out by the
respondent-husband.

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The ground of cruelty:

13. Turning our attention towards cruelty, we must say
that the cruelty as a ground of divorce under IDA has
undergone a paradigm shift in recent years. Before the Indian
Divorce (Amendment) Act, 2001 (51 of 2001)
(w.e.f.03.10.2001), a wife seeking divorce on ground of cruelty
had to prove adultery coupled with cruelty. A husband could not
seek divorce on the ground of cruelty. Grounds for divorce were
different for the wife and the husband. In other words, cruelty
was not recognised as an independent ground for divorce in
IDA till the amendment of 2001 was enforced. In the present
case, as noted above, the ground of adultery has been held to
be not proved and that finding has attained finality. Section
10(1) (x) of IDA provides for a divorce on the ground of cruelty
if it is proved that the other party has ‘ treated the petitioner
with such cruelty as to cause a reasonable apprehension in the
mind of the petitioner that it would be harmful or injurious for
the petitioner to live with the respondent’. It is therefore
required of the Court to examine if the petitioner has made out
a case of cruelty of that nature and degree.

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14. The Family Court has laid much emphasis on the
complaint filed by the appellant against the respondent before
the Mahila Police Station. The Court has picked holes in the
deposition of the appellant to conclude that the respondent
never deserted or meted out cruelty on her. In fact, the Family
Court has gone to the extent of holding that the appellant
heaped cruelty on the respondent by filing the police complaint
and voluntarily deserted him. However, the Court has not
noticed any particular act of cruelty on the part of the
appellant, far less cruelty of such nature as to cause reasonable
apprehension in the mind of the husband that it would be
harmful or injurious for him to live with her.


15. In the context of cruelty as a ground for divorce
under Sec.10(1)(x) of IDA, it is pertinent to cite the judgment
of the High Court of Kerala in the case of Libin Varghese Vs.
2
Rajani Anna Mathew ; at paragraphs 15 to 20, reads as
under:

2

2022 SCC ONLINE KER 4383

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“15. The appellant has to establish that since
the solemnisation of the marriage, the respondent
has treated him with such cruelty as to cause a
reasonable apprehension in his mind that it would be
harmful or injurious for him to live with the
respondent. Without establishing cruelty to such an
extent, no divorce can be granted under Section
10(1)(X) of the Divorce Act.
16. From time immemorial marriage was
considered as solemn, and sanctity attached to the
relationship of a man and wife united in marriage
was considered inseparable, and it was the very
foundation of a strong society. Marriage is a socially
or ritually recognized union, or legal contract
between spouses, that establishes rights and
obligations between them, between them and their
children, and between them and their in-laws. Family
is the basic unit of the society, from where we learn
virtues, values, skills and behaviour. Marriage is not
a mere ritual or an empty ceremony for licencing the
sexual urge of the parties.
“Marriage is the union of two different
surnames, in friendship and in love, in order to
continue the posterity of the former sages, and
to furnish those who shall preside at, the
sacrifices to, heaven and earth, at those in the
ancestral temple, and at those at the altars to
the spirits of the land and grain.”
-Confucius.
17. Kerala, known as God's own Country, was
once famous for its well knit family bondage. But the
present trend it seems to break the nuptial tie on
flimsy or selfish reasons, or for extra-marital
relationships, even unmindful of their children. The
wails and screams coming out of disturbed and
destroyed families are liable to shake the conscience
of the society as a whole. When warring couples,
deserted children and desperate divorcees occupy
the majority of our population, no doubt it will
adversely affect the tranquility of our social life, and

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our society will have a stunted growth. Now-a-days,
the younger generation think that marriage is an evil
that could be avoided to enjoy free life without any
liabilities or obligations. They would expand the word
‘WIFE’ as ‘Worry Invited For Ever’ substituting the old
concept of ‘Wise Investment For Ever’. The consumer
culture of ‘use and throw’ seems to have influenced
our matrimonial relationships also. Live-in-
relationships are on the rise, just to say good-bye
when they fell apart.
18. The law and religion consider marriage as
an institution by itself and parties to the marriage are
not permitted to walk away from that relationship
unilaterally, unless and until they satisfy the legal
requirements to dissolve their marriage through a
court of law or in accordance with the personal law
which govern them.
19. Mere quarrels, ordinary wear and tear of
matrimonial relationships or casual outburst of some
emotional feelings cannot be treated as cruelties
warranting a divorce. From the facts of the case on
hand, it is obvious that the unholy alliance of the
husband with some other lady has caused some
disturbances in the family life of the appellant and
respondent, which they were sailing smoothly with
their three girl children. Even according to the
mother and close-relatives of the appellant, such an
unholy relationship was started in the year 2017, and
in the year 2018 itself, the husband moved for
divorce. The parties are living separately from 2018
onwards. Even now, the respondent is ready for a
reunion as she wants her husband, and her children
their father. Learned counsel Sri. Mathew Kuriakose
for the appellant submitted that it is only a drama
played by the respondent as she is also aware of the
fact that their relationship is emotionally dead due to
long separation. The respondent was never
separated from the appellant because of any fault
from her part. Still she is living with the mother of
the appellant, whenever she comes down from Saudi
Arabia. It was the appellant who walked out of their

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marital relationship, and now he says that due to
long separation, their marriage has become defunct.
20. Since, no act of cruelties, able to cause a
reasonable apprehension in the mind of the appellant
that it would be harmful or injurious for him to live
with the respondent was proved by the appellant, he
is not entitled to get a decree of divorce on the
ground of matrimonial cruelties. RWs 2 to 7
categorically deposed before the Court that the
appellant and respondent were leading a happy
married life, and they still want to see them live
together along with their children. If the appellant is
ready to come back to his wife and children, they are
ready to accept him, and there is nothing to show
that the chances of an amicable reunion is foreclosed
forever. So the finding of the Family Court,
Alappuzha, that the appellant is not entitled for a
decree of divorce on the ground of matrimonial
cruelties is liable to be upheld.”


16. It is interesting to note that before the amendment
of Hindu Marriage Act, 1955 by the marriage laws
(Amendment) Act, 1976 the ground of cruelty for judicial
separation in respect of Hindu marriages was also qualified by
the requirement of reasonable apprehension as it is found in
Section 10(1)(x) of IDA at present. After the 1976 amendment,
cruelty is available as an unqualified ground for dissolution of
Hindu marriages. The Parsi Marriage and Divorce Act, 1936,
[Section 32(dd)] and the Special Marriage Act 1954, [Section
27(1)(d)] both use the simple “treated…with cruelty” formula

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without the “apprehension ” qualifier, aligning them with the
post-1976 Hindu Marriage Act rather than the Indian Divorce
Act.


17. Although there is a marked difference in the
language as to the ground of cruelty in the various statutes
applicable to the followers of various religions, there is a school
of thought that matrimonial cruelty must have a uniform
definition or conceptualization to justify the founding of a
decree for divorce. This view has been taken by a Division
Bench of the High Court of Kerala in the case of Mary Margret
3
Vs. Jos P. Tomas, which opinion has been cited with approval
by a Division Bench judgment of this Court in the case of P. G.
4
Raju Vs. Sallamma in the following words:
“10. It is trite law that unsubstantiated accusation,
unfounded allegations and character assassination by
one spouse as against the other spouse would amount
to mental cruelty. The Division Bench of Kerala High
Court in the case of Mary Margret (supra) which
arose from a petition filed under Section 10 of the

3
2022 SCC ONLINE KER 922
4
MFA No.2800/2017 Dt.19.01.2023

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Divorce Act alleging cruelty, at paragraph Nos.10 and
27 has observed as follows:-
"10. In matrimonial life, cruelty can be defined
in many ways. It has many perspectives which
depend upon the socio- economic status and
circumstances of parties to the marriage. It
varies from person to person. It also varies with
time, place, economic status and other
circumstances. Cruelty can be physical and
mental. Physical cruelty provides more of a
direct evidence, that it can be perceptible when
compared to mental cruelty. Mental cruelty can
be drawn from the facts and circumstances of
the case, whereas physical cruelty can be drawn
from the conduct of one spouse towards other
spouse which endangers the other spouse's
physical health. It is true that, mere trivial
irritations, quarrels, normal wear and tear of the
married life which happens in day-to-day life
would not be adequate for grant of divorce on
the ground of mental cruelty. The married life
should be reviewed as a whole, and an few
isolated instances over a period fo years will not
amount to cruelty."

"27. This Court, in A:husband vs. B:Wife
(2010) (4) KLT 434) held that the 'nature of
cruelty which would entitle a spouse in
matrimony for divorce must certainly be
identical in all religions. Law cannot recognise

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different varieties of cruelty as Hindu cruelty,
Muslim cruelty, Christian cruelty or secular
cruelty to justify a decree for divorce. The mere
fact that Hindu Marriage Act and the Special
Marriage Act refer to cruelty without any rider
or explanation or the fact that the Divorce Act
and the Dissolution of Muslim Marriage Act give
indication of the nature of matrimonial cruelty
that ought to be established, cannot justify the
conclusion that the nature matrimonial cruelty
which would entitle the spouses for divorce is
different under different personal laws. It would
be absolutely safe to draw inspiration from
Art.44 of the Constitution also to jump to the
conclusion that nature of cruelty justifying a
divorce cannot be different under different
personal laws. To our mind, it appears that
matrimonial cruelty must have a uniform
definition or conceptualisation to justify the
founding of a decree for divorce. Under
S.10(1)(x), the cruelty must be such as to
cause reasonable apprehension in the mind of
the petitioner, spouse that it would be harmful
or injurious for the petitioner to live with the
respondent. The expression harmful or injurious
cannot be limited to physical harm or injury.
Anything that would hinder the ability of the
spouse to blossom into his/her fullness and to
enjoy life in matrimony must be held to fall
within the sweep of S.10(1)(x) of the Divorce

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Act. Cruelty which is not defined in S.13(1)(1a)
of the Hindu Marriage Act and S.27(1) of the
Special Marriage Act and cruelty which is
explained in S.2(viii) of the Dissolution of
Muslim Marriage Act and S.10(1)(x) of the
Divorce Act must all take inspiration from such
understanding of matrimonial cruelty. We
discard the theory that the concept of
matrimonial cruelty to entitle a spouse for
divorce can be dissimilar and different for
persons belonging to different religious faiths
merely because different words are used in the
relevant personal law statutes'.”
(emphasis supplied)


18. It is evident that there is a thought that the ground
of cruelty under various personal laws has to take the same
flavour and intensity. Although this view has been voiced in the
opinion of the High Courts as noted above, the textual
difference still exists on the statute book. The case has to be
adjudicated bearing that in mind. Cruelty need not be physical,
mental cruelty is also sufficient to justify a decree of divorce.
However, the Court will have to weigh the evidence in its
entirety and take into account all relevant factors before
arriving at its conclusion. The express language of Section

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10(1)(x) which engrafts the “ reasonable apprehension” qualifier
is a pointer towards the nature and degree of cruelty that is
required to justify a decree of divorce. It is a useful aid in
applying the statutory position to the factual position that
emerges from the record. The Court has to be circumspect
while dealing with allegations of cruelty and findings of cruelty
cannot be returned on the mere ipse dixit of the petitioner.


19. In this context, it is necessary to note that mere
oral allegation of cruelty without any concrete proof or
corroboration would not establish cruelty so as to justify a
decree of divorce. There is a body of judicial opinion on this
aspect as well. It is pertinent to quote from the judgment of the
Division Bench of Jharkhand High Court in the case of Sudhira
5
Minj Vs. Amith Anuj Minj which felicitously captures the
legal position in these words:
“11. We have considered the submissions of the
learned counsel for the parties and perused the
impugned judgment and also taken note of the
relevant material exhibits and deposition relied upon
by the learned counsel for the parties in support of

5
2018 SCC ONLINE JHAR 558

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their own case. This matrimonial suit by the
petitioner/husband sought dissolution of marriage
between the parties on the sole ground of cruelty, as
provided under section 10 (x) of the Divorce Act,
1869. Evidence of the petitioner and his witnesses
though in support of the averments made in the
plaint, are only oral on the point of allegation of
cruelty. Cruelty in marriage is something beyond
normal wear and tear of daily life. It must be of such
a nature which creates reasonable apprehension in
the minds of the aggrieved spouse that it would be
harmful or injurious for him/her to live with his/her
spouse. There are no exceptional circumstances or
any other corroborative evidence which point out to
such acts of the Respondent which could have lead
to reasonable apprehension in the mind of the
petitioner that it was harmful or injurious for him to
live with her. Ext-2 heavily relied upon by the
petitioner and treated by the Learned Family Court
as corroborative evidence, in its content, completely
fails to establish any such allegations of cruelty as
conceived under section 10(x) of the Act. Mere going
to the police station by the Respondent with
allegations of physical and mental torture being
perpetrated by the husband, do not amount to such
cruelty which would entitle the petitioner to seek
divorce on that ground. Learned Family Court has
completely failed to take into consideration that
sanctimonious relationship of marriage as a
institution, should not have been dissolved on

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unsubstantiated allegation of such nature. Learned
Family Court has proceeded to arrive at such an
opinion in haste without any adequate material
evidence on record to establish the instances of
cruelty in marriage whether physical or mental. We
are, therefore, of the considered view that the
findings of the Learned Family Court are suffering
from errors both in law and on facts. They suffer
from lack of proper appreciation of evidence on
record.”
(emphasis supplied)


20. The allegations and evidence in the present case
have a resemblance to those in the Sudhira Minj ’s case cited
above. Apart from making general allegations against the
appellant, the respondent has not been able to prove any
particular instance of cruelty against her. Except for the self-
serving statements of the respondent-husband, there is no
corroboration of any of his allegations. It is forthcoming from
the records that the appellant, when she was pregnant, was
compelled to approach the Police. When the respondent
assured her, albeit before the Police, that she could stay in her
parental house till the delivery and that he would also look after
her, she did not pursue the complaint. Except this solitary

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incident of lodging the complaint with Mahila Police Station
which ended in a quick closure, there is no other incident of the
appellant causing any semblance of hurt, much less cruelty,
against the respondent. The Family Court has rushed to the
conclusion that there was cruelty on the part of the appellant.


21. There is yet another significant aspect which has
been ignored by the Family Court. This aspect has a direct
bearing on the ground of cruelty can assed by the respondent-
husband. In the course of the trial, the respondent denied that
the child born on 15.12.2011 to the appellant is not his child.
He has denied knowledge of the fact that the appellant gave
birth to a male child. He has also made sweeping allegations
about the appellant’s character in the course of his deposition.
In an attempt to cover up his follies, he has gone to the extent
of denying the very notice issued on his behalf by his advocate.
The respondent has adopted an approach of blanket denial
without any substantiation of his allegations. The most striking
feature of his deposition is that he stated that he was not

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prepared to undergo a DNA examination to ascertain the
paternity of the child.


22. The nature of reckless and unsubstantiated
allegations made by the respondent against the appellant would
surely amount to cruelty on his part towards the appellant.
Moreover, the child was born on 15.12.2011, i.e., during the
subsistence of a valid marriage between the appellant and the
respondent. The presumption under Section 112 of the Indian
Evidence Act is that such a child would be that of the
respondent-husband. In the face of such a statutory
presumption, the respondent-husband has proceeded to make
baseless allegations not only about the paternity of the child
but also about the character of the appellant. Such
irresponsible conduct of the respondent ought to have been
noticed by the Family Court while taking a final view on the
divorce petition filed by the husband. Far from taking note of
such deplorable conduct and irresponsible deposition of the
husband, the Family Court has not even adverted to this crucial
aspect. In our opinion, while taking a view on the aspect of
cruelty, this factor ought to have weighed with the Family

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Court. One must bear in mind that this case involves
allegations of mental cruelty: something very abstract and of
which there can be no direct evidence. Conclusions will have to
be drawn by the Court based on the facts and circumstances of
the case, in accordance with settled principles. The Court has a
duty to appreciate the evidence and circumstances holistically
to arrive at its conclusion. In our view, the Family Court has
erred in its approach towards the evidence in the case.

Conclusion:

23. The statutorily mandated period of two years of
desertion is not made out even as per the respondent-
husband’s own case. The finding of the Family Court on that
ground is plainly erroneous. The discussion on the ground of
cruelty by the Family Court is surely unsatisfactory. Moreover,
all relevant factors, including the irresponsible deposition of the
respondent including disowning the child and refusing to
undergo DNA examination ought to have featured in the
judgment of the Family Court. On an overall examination of the
material on record and the judgment of the Family Court, we

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are of the opinion that there has been non-application of mind
to the relevant factors by the Family Court. The judgment and
decree of the Family Court, therefore, deserve to be set aside.


24. In the light of the foregoing discussion, we make
the following order:

(i) The appeal is allowed.

(ii) The judgment and decree dated 25.01.2017
passed by the Prl. Judge, Family Court, Hubballi
in M.C.No.140/2012 is set aside.

(iii) No order as to costs.

Sd/-
(M.I.ARUN)
JUDGE



Sd/-
(RAGHAVENDRA SEETHARAM SRIVATSA)
JUDGE

PJ/NAA/ CT:SD