SUDHA W/O RAJSAKAR vs RAJSAKAR S/O BAKAPPA NELLI

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R




IN THE HIGH COURT OF KARNATAKA


AT KALABURAGI

TH
DATED THIS THE 28 DAY OF APRIL, 2026

PRESENT

THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

AND


THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

MISC. FIRST APPEAL NO. 200082 OF 2017 (FC)

BETWEEN:

SUDHA W/O RAJSAKAR,
AGE: 38 YEARS, OCC: SERVICE
(PRINCIPAL OF GYNAN
JYOTI EDUCATION SOCIETY)
BIDAR RAMPURI, BANK COLONY,
NEAR HANUMAN TEMPLE, BIDAR,
R/O: GUMMA COLONY,
SANGAMESHWAR NIVAS, BIDAR.
…APPELLANT
(BY SRI. HANAMANTHRAYA SINDOL, ADVOCATE)

AND:

RAJSAKAR S/O BAKKAPPA NELLI,
AGE: 39 YEARS, OCC: SERVICE,
R/O: BIDAR (DIST: STATISTICAL OFFICE)
…RESPONDENT
(BY SMT. NEEVA M.CHIMKOD, ADVOCATE - ABSENT)

THIS MFA IS FILED UNDER SECTION 28 OF HINDU MARRIAGE
ACT, 1955 PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE DATED 05.12.2016 PASSED IN
M.C.NO.10 OF 2009 BY THE LEARNED PRINCIPAL SENIOR CIVIL
JUDGE AND CJM, AT BIDAR AND ETC.

THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.04.2026, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:








Digitally signed by
VARSHA N
RASALKAR
Location: HIGH
COURT OF
KARNATAKA

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CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
and
HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)


1. The appellant/wife who was respondent in
M.C.No.10/2009 is before this Court seeking for the
following reliefs:
i. Call for the lower court records.
ii. Allow the appeal and set aside the
impugned judgment and decree dated:
05.12.2016 passed in M.C.No.10 of 2009 by
the learned Principal Senior Civil Judge and
CJM at Bidar.
iii. Cost of the proceedings may kindly be
decreed.
iv. Any other relief which is legally and
equitably entitled by the appellant may also
be awarded in favour of the appellant in the
interest of justice.


2. The respondent–husband instituted proceedings in
M.C. No.10/2009 seeking dissolution of marriage by
a decree of divorce.

3. The facts, in brief, are that the marriage between the
appellant–wife and the respondent–husband was
solemnised on 16.06.2002 at Talmadgi Village,

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Humnabad Taluk, in accordance with the customs
and rituals prevailing in their community. It is not in
dispute that the parties cohabited after marriage and
were blessed with two sons.

4. According to the husband, the marital relationship
was cordial for about three years, thereafter disputes
arose between the parties. It is his case that the wife
left the matrimonial home and started residing with
her parents, taking along the custody of the children.
Despite repeated requests made by him, she did not
resume cohabitation. The husband, who was in
service and posted at different places, contends that
the wife consistently refused to join him.

5. It is further stated that the husband had earlier filed
a petition under Section 9 of the Hindu Marriage Act,
1955, seeking restitution of conjugal rights, whereas
the wife had initiated proceedings under Section 125
of the Code of Criminal Procedure for maintenance.
The wife is stated to be employed as a Principal in a
school and residing at her parental home.

6. The husband further alleged that the wife made false
and defamatory accusations against him, including
allegations of an illicit relationship with another
woman and that he was suffering from HIV/AIDS. It

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is also alleged that the wife and her father abused
him and refused to send her back to the matrimonial
home. On these grounds, the husband sought
dissolution of marriage.

7. The appellant–wife entered appearance and filed her
statement of objections denying the allegations.
While admitting the marriage and birth of two
children, she contended that it was the husband who
subjected her to ill-treatment and developed an illicit
relationship with another woman, thereby compelling
her to leave the matrimonial home and reside with
her parents.

8. She further contended that the husband neither
cared for her nor for the children and failed to
maintain them, which necessitated initiation of
proceedings under Section 125 of Cr.P.C. The
petition filed by the husband for restitution of
conjugal rights in M.C. No.7/2007, it is stated, came
to be dismissed. The wife also alleged that the
husband had assaulted her, demanded money and a
motorcycle, and continued to harass her despite
intervention by her parents. It is further alleged that
the husband, while working as a Statistical Inspector
in the Tahsil Office at Bhalki, was residing with

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another woman and maintaining an illicit
relationship.

9. In support of his case, the husband examined himself
as PW.1 and did not produce any documentary
evidence. The wife examined herself as RW.1 and
similarly did not mark any exhibits.

10. The Family Court, on appreciation of the pleadings
and evidence on record, has held that the allegations
made by the wife imputing that the husband was
suffering from HIV/AIDS and the use of abusive and
vulgar language would constitute cruelty within the
meaning of Section 13(1)(ia) of the Hindu Marriage
Act, 1955.

11. The Family Court further observed that the wife had
failed to substantiate her allegations that she was
driven out of the matrimonial home on 18.02.2007 or
that the husband had demanded a motorcycle and a
sum of Rs.50,000/-. In the absence of any
supporting evidence, these allegations were
disbelieved.

12. The filing of a petition by the husband under Section
9 of the Hindu Marriage Act in M.C. No.7/2007
seeking restitution of conjugal rights was construed

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by the Family Court as indicative of his intention to
resume cohabitation.

13. Insofar as the allegation of the husband maintaining
an illicit relationship with another woman is
concerned, the Family Court found that no material
evidence had been placed on record to substantiate
the same.

14. The Family Court also took note of the fact that the
husband had been transferred to Bhalki and held that
the wife’s refusal to join him at the place of posting,
in the absence of justifiable cause, amounted to
desertion within the meaning of Section 13(1)(ib) of
the Act.

15. On the aforesaid reasoning, the Family Court allowed
the petition filed by the husband under Section
13(1)(ia) and (ib) of the Hindu Marriage Act and
dissolved the marriage solemnised between the
parties on 16.06.2002. Aggrieved by the same, the
wife is before this Court in the present appeal.

16. Sri Hanamanthraya Sindol, learned counsel
appearing for the appellant–wife, contends that

16.1. The Family Court has adopted a double
standard in appreciation of evidence. It is

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submitted that while the allegations made by
the husband have been accepted, those made
by the wife have been rejected on the ground
of absence of documentary evidence.

16.2. Both parties having admittedly not produced
any documentary evidence, it is contended that
the Family Court could not have accepted the
husband’s version in the absence of
independent or corroborative evidence.

16.3. It is further submitted that there is no third-
party evidence on record to substantiate the
allegations of cruelty attributed to the wife,
including the alleged use of abusive or vulgar
language. In such circumstances, the finding of
cruelty, according to the learned counsel, is
unsustainable.

16.4. Learned counsel further submits that the
husband was residing with another woman by
name Sridevi even prior to the institution of
M.C. No.10/2009. It is contended that this
material aspect has not been properly
appreciated by the Family Court.

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16.5. If the husband was indeed cohabiting with
another woman, the refusal of the wife to
reside with him cannot be construed as
desertion. On the contrary, such conduct on the
part of the husband would constitute a valid
and reasonable ground for the wife to live
separately.

16.6. It is further submitted that an application under
Section 151 of the Code of Civil Procedure has
been filed before this Court seeking permission
to produce additional documents. Along with
the said application, an admission abstract
pertaining to one Sai Prasad, shown as the son
of Rajashekar and Sridevi, with date of birth
recorded as 02.12.2008, has been placed on
record. In the supporting affidavit, it is further
asserted that there is another child by name
Sangamesh Prasad.

16.7. On the strength of the aforesaid material,
learned counsel contends that the husband and
the said Sridevi were residing together and
have entered into a marital relationship.
Reference is also made to photographs
produced along with the application,

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purportedly depicting the husband along with
the said children. It is therefore submitted that
if these aspects are taken into consideration,
the findings recorded by the Family Court on
cruelty and desertion cannot be sustained, and
the decree of divorce ought not to have been
granted.

17. Notice has been duly served on the respondent and
he is represented by counsel, none has appeared on
his behalf at the time of hearing on several dates.
Despite sufficient opportunity, the learned counsel
for the respondent has remained absent.
Accordingly, this Court has proceeded to hear and
dispose of the matter in her absence.

18. We have heard Sri Hanamanthraya Sindol, learned
counsel for the appellant-wife and perused the
papers.

19. The short but important questions that would arise
for our consideration are:
i. Whether an allegation made by the
husband of cruelty could have been
accepted by the Family Court without
any independent evidence being
adduced in that regard?

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ii. Whether the Family Court could have
come to a conclusion that the wife has
deserted the husband when the
husband was allegedly living with
another woman?
iii. Whether the decree of divorce passed
by the Family Court suffers from any
legal infirmity?
iv. What order?


20. We answer the above points as under:

21. Answer to Point No.1: Whether an allegation
made by the husband of cruelty could have
been accepted by the Family Court without any
independent evidence being adduced in that
regard?

21.1. The case of the husband is that the wife and
her parents subjected him to ill-treatment, used
abusive and vulgar language, and further
imputed that he was suffering from HIV/AIDS.
These allegations, if established, would
undoubtedly fall within the ambit of mental
cruelty as contemplated under Section
13(1)(ia) of the Hindu Marriage Act, 1955,
particularly having regard to the serious and
stigmatic nature of such imputations.

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21.2. However, the critical question is not the nature
of the allegation but whether such allegation
has been proved in accordance with law. In
support of his case, the husband has examined
himself as PW.1. No documentary evidence has
been produced. No independent witness has
been examined. There is no contemporaneous
material, such as complaints, correspondence,
or testimony of persons who may have
witnessed the alleged conduct, to lend
assurance to the version of the husband.

21.3. Thus, the finding of cruelty rests solely on the
uncorroborated and interested testimony of the
husband.

21.4. It is no doubt true that matrimonial proceedings
are civil in nature and the standard of proof is
that of preponderance of probabilities. It is
equally well settled that cruelty, particularly
mental cruelty, may in appropriate cases be
inferred from the conduct of the parties even in
the absence of direct evidence. However, such
inference must be drawn from proved facts and
surrounding circumstances and cannot rest on

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mere allegations or assertions which remain
unsubstantiated.

21.5. Where the allegation is of a serious nature,
such as imputing a grave illness or engaging in
abusive conduct, the Court must seek some
degree of corroboration or supporting
circumstances before recording a finding of
cruelty. Acceptance of such allegations in the
absence of any supporting material would
render the adjudicatory process vulnerable to
subjective satisfaction rather than objective
judicial determination.

21.6. In the present case, there is a complete
absence of any corroborative material. The
husband has not examined any person,
including neighbours, relatives, or colleagues,
who could have spoken to the alleged conduct
of the wife. No complaint, either
contemporaneous or subsequent, has been
placed on record. Even the pleadings do not
indicate any specific instances with sufficient
particularity so as to enable the Court to assess
the gravity and impact of the alleged conduct.

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21.7. In these circumstances, the Family Court, in
accepting the bare assertions of the husband,
has effectively shifted the evidentiary threshold
from proof to mere allegation, which is
impermissible.

21.8. Equally significant is the manner in which the
Family Court has dealt with the allegations
made by the wife. The wife has alleged that the
husband was living with another woman and
that she was driven out of the matrimonial
home. These allegations have been rejected on
the ground that no evidence has been adduced
in support thereof.

21.9. While such rejection, in isolation, may not call
for interference, the inconsistency arises in the
differential standard applied: the absence of
evidence is held fatal to the wife’s case, but is
overlooked in accepting the husband’s
allegations. The judicial process mandates
uniform application of evidentiary standards to
both parties. A finding cannot be sustained
where one party’s uncorroborated testimony is
accepted, while the other’s is rejected for want

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of corroboration, without any rational basis for
such distinction.

21.10. The burden of establishing cruelty squarely lay
upon the husband, who approached the Court
seeking dissolution of marriage. In the absence
of cogent, reliable, and at least minimally
corroborative material, the said burden cannot
be said to have been discharged. The Family
Court, in proceeding to record a finding of
cruelty on such slender material, has
committed an error in appreciation of evidence.

21.11. In view of the above, we are of the considered
opinion that the finding of the Family Court that
the wife subjected the husband to cruelty by
abusing him or making false allegations
regarding his health is unsustainable in law.

21.12. Accordingly, we answer Point No.1 by holding
that the finding of cruelty recorded by the
Family Court is not supported by the evidence
on record.

22. Answer to point No.2 : Whether the Family
Court could have come to a conclusion that the
wife has deserted the husband when the
husband was allegedly living with another
woman?

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22.1. The Family Court has recorded a finding of
desertion primarily on the premise that the wife
failed to join the husband at his place of posting
and continued to reside separately without
sufficient cause. The specific defence of the wife
that the husband was living with another
woman, by name Sridevi, has been rejected
solely on the ground that no evidence was
adduced in support thereof.

22.2. At the outset, it is necessary to reiterate that
desertion, within the meaning of Section
13(1)(ib) of the Hindu Marriage Act, 1955, is
not merely a matter of physical separation. It is
a composite concept comprising two essential
elements: (i) the factum of separation, and (ii)
the animus deserendi, namely, the intention to
permanently bring cohabitation to an end.
Equally, the law requires that such separation
must be without reasonable cause and without
the consent of the other spouse. Where a
spouse establishes that there existed a just and
reasonable cause for living separately, the
element of animus deserendi stands negated.

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22.3. In the present case, the wife has consistently
pleaded that her separate residence was not
voluntary but was compelled by the conduct of
the husband, including his alleged relationship
with another woman. If such a plea is
substantiated, the legal consequence is
significant: the separation would cease to be
desertion and would instead amount to justified
withdrawal from cohabitation. The law does not
require a spouse to remain in a matrimonial
relationship when the other spouse's conduct
renders cohabitation unreasonable, unsafe, or
undignified.

22.4. Thus, the determination of desertion in the
present case is intrinsically linked to the factual
question as to whether the husband was, in
fact, maintaining a relationship with another
woman during the subsistence of the marriage.

22.5. The Family Court has rejected this defence on
the ground of absence of evidence. However,
before this Court, an application has been filed
seeking to produce additional evidence,
including an admission abstract relating to one
Sai Prasad, described as the son of Rajashekar

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and Sridevi, with the date of birth recorded as
02.12.2008. The affidavit filed in support of the
application also refers to another child born
from the said relationship.

22.6. A prima facie consideration of this document
reveals that the date of birth of the child is
subsequent to the year 2007, which is the
period during which, according to the husband
himself, the wife had allegedly deserted him
and proceedings for restitution of conjugal
rights had been initiated. If the contents of the
document are established, it would indicate that
during the subsistence of the marriage and
contemporaneous with the alleged desertion,
the husband was cohabiting with another
woman and fathering children through such
relationship.

22.7. The evidentiary significance of such material
cannot be understated. Allegations of an extra-
marital relationship, if proved, have a direct
and substantial bearing on the issue of
desertion. A spouse cannot be compelled, either
in law or in equity, to cohabit with a partner
who is simultaneously maintaining a

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relationship with another person. In such
circumstances, the refusal of the wife to join
the husband would not only be justified but
would also negate any inference of animus
deserendi.

22.8. Conversely, a finding of desertion in favour of
such a spouse would result in placing a
premium on conduct which the law does not
countenance.

22.9. That said, it is equally necessary to bear in
mind that the aforesaid material has been
produced for the first time at the appellate
stage. The admissibility of such evidence is
governed by the parameters of Order XLI Rule
27 of the Code of Civil Procedure, 1908.
Additional evidence may be permitted where
the appellate Court requires such material to
enable it to pronounce judgment, or where the
party seeking to produce such evidence
establishes that, notwithstanding due diligence,
the evidence could not be produced at the
stage of trial.

22.10. In the present case, it is the specific assertion
of the wife that she came to know of the said

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facts only subsequently, and therefore could
not place the material before the Family Court.
Whether such explanation satisfies the
requirement of due diligence is a matter to be
considered; however, given the nature of the
document and its potential bearing on the core
issue of desertion, it would not be appropriate
to summarily discard the same without
affording an opportunity to the opposite party.

22.11. Further, the principles of natural justice require
that the husband be afforded an opportunity to
contest the said material, including by way of
cross-examination and by leading rebuttal
evidence. The photographs produced along with
the application, which are stated to depict the
husband with the said children, similarly require
formal proof in accordance with law. At this
stage, therefore, such material can only be
taken note of prima facie, without recording
any conclusive finding thereon.

22.12. Even otherwise, the timeline of events assumes
relevance. The marital tie between the parties
subsisted at least until the decree of divorce
was passed in the year 2016. If, during this

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subsistence, the husband had entered into or
continued a relationship with another woman, it
would have a direct bearing not only on the
issue of desertion but also on the equities of
the case. A spouse who is himself in breach of
matrimonial obligations cannot be permitted to
found a claim for divorce on the alleged
desertion of the other.

22.13. In light of the above discussion, we are of the
considered opinion that the finding of the
Family Court on desertion is vitiated by an
incomplete appreciation of the material issues
and requires reconsideration. The plea raised
by the wife, coupled with the additional
material sought to be produced, goes to the
root of the matter and cannot be brushed aside
without a proper evidentiary inquiry.

22.14. Accordingly, we answer Point No.2 by holding
that the finding of desertion recorded by the
Family Court cannot be sustained in its present
form and warrants reconsideration after
affording an opportunity to the parties to
adduce evidence, including with respect to the

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additional material sought to be placed on
record.

23. Answer to point No.3 : Whether the decree of
divorce passed by the Family Court suffers from
any legal infirmity?

23.1. In view of the findings recorded on Point Nos.1
and 2, it is evident that the judgment of the
Family Court is vitiated by errors in both
appreciation of evidence and application of legal
principles. The finding of cruelty has been
recorded in the absence of cogent and
corroborative material, resting solely on the
unsubstantiated testimony of the husband. As
held while answering Point No.1, such a finding
does not meet even the threshold of
preponderance of probabilities required in
matrimonial proceedings.

23.2. Insofar as the finding on desertion is concerned,
the Family Court has failed to properly consider
the defence of the wife that her separate
residence was justified on account of the
conduct of the husband. The issue of alleged
cohabitation of the husband with another
woman, which goes to the root of the question
of animus deserendi, has not been adequately

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examined. As observed while answering Point
No.2, this aspect requires a proper evidentiary
inquiry, particularly in light of the additional
material now sought to be placed on record.

23.3. The approach adopted by the Family Court also
reflects an inconsistency in the application of
evidentiary standards, inasmuch as the
husband’s uncorroborated allegations have
been accepted, while similar deficiencies in the
wife’s case have been held against her. Such an
approach renders the findings vulnerable to
appellate interference.

23.4. It is trite that an appellate Court would be slow
to interfere with findings of fact; however,
where such findings are based on no evidence,
or where relevant material has been ignored, or
where the conclusions are such that no
reasonable judicial mind could have arrived at,
interference is not only warranted but
necessary to prevent miscarriage of justice.

23.5. In the present case, the cumulative effect of the
aforesaid infirmities persuades this Court to
hold that the judgment and decree of the

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Family Court cannot be sustained and are liable
to be set aside.

24. Answer to Point No.4: What order?

24.1. In view of our answers to point Nos.1 to 3, the
judgment and decree passed by the Family
Court is not sustainable. The application in
I.A.No.1/2026 for additional documents is
required to be allowed, requiring the said
judgment and decree to be set aside and the
matter being remanded to the Family Court for
fresh consideration.

25. As such, we pass the following:
ORDER

i. The appeal is allowed.

ii. The judgment and decree dated
05.12.2016 passed by the Principal Senior
Civil Judge and CJM, Bidar, in
M.C.No.10/2009 is set aside.

iii. The matter is remitted to the Family Court
for fresh consideration in accordance with
law.

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iv. The application filed by the appellant–wife
under Section 151 of the Code of Civil
Procedure, 1908, for production of
additional evidence is allowed, subject to
proof and admissibility in accordance with
law.

v. The Family Court shall:

a. Afford adequate opportunity to both
parties to adduce further oral and
documentary evidence;

b. Permit cross-examination on the
additional material produced;

c. Reconsider the issues of cruelty and
desertion afresh, uninfluenced by any
observations made in the earlier
judgment; and

d. Pass a reasoned judgment in accordance
with law.

vi. The Family Court shall endeavour to
dispose of the matter expeditiously,
preferably within a period of six months
from the date of first appearance of the
parties.

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vii. All contentions of both parties are kept
open.

Sd/-
(SURAJ GOVINDARAJ)
JUDGE


Sd/-
(DR.CHILLAKUR SUMALATHA)
JUDGE
NB
List No.3 Sl.No.1
Ct: Vk