1. With the consent of learned counsel for both the parties these appeals are heard together, as they arise out of common Judgment and Decree dated 26.03.2015 passed by Family Court.

2. These appeals under Section 19(1) of the Family Courts Act 1984, (for short 'the Act') have been filed by the appellant/husband against the common judgment and decree dated 26.03.2015 passed in M.C.No.9/2013 (Old No.37/2010) and M.C.No.17/2013 (Old No.105/2010) by the Principal Judge, Family Court, Chikkamagaluru.

3. The appellant/husband filed M.C.No.9/2013 under Section 13(1)(i)(ia)(ib) of the Act seeking decree of divorce, which was dismissed whereas M.C.No.17/2013 filed by first respondent/wife under Section 9 of the Act seeking restitution of conjugal rights, was allowed.

4. Facts leading to filing of these appeals briefly stated are that marriage between the appellant/husband and first respondent/wife was solemnized on 02.12.1999 in Chikkamagaluru. It is averred that after marriage the couple started living happily for almost one year in the Estate of the appellant/husband in Kabbinahalli Village, Chkkamagaluru Taluk. It is further averred that first respondent/wife was not happy and she started showing her colours by quarrelling with the appellant/husband on religious rituals, despite consoling her she has not changed herself. It is pleaded that first respondent/wife used to abuse the petitioner in filthy language and used unparliamentary words. It is further pleaded that appellant/husband's parents are old and are dependant on the appellant/husband, but the first respondent/wife used to quarrel with them and used to abuse them in filthy language and despite request and warning, the first respondent/wife has not changed herself. It is averred that appellant/husband gave all the comforts to first respondent/wife, however, she used to keep herself away and aloof and she pressurized the appellant/husband to make a separate residence at Chikkamagaluru, and insisted that appellant should pay the amount of maintenance. It is further averred that as per the demand of the first respondent/wife, a separate residence was provided at Chikkamagaluru and the appellant/husband used to visit once in a month and provide financial support and comforts to her. It is further averred that first respondent/wife used to humiliate the appellant/husband all the time in social gatherings. The first respondent/wife has caused mental cruelty to the appellant/husband without any valid reason.

5. It is also averred that appellant/husband and first respondent/wife have a son by name Skanda. It is averred that first respondent/wife has not taken care of the minor son also and she used to tell that she had married the appellant/husband only because of coercion exercised by her parents. It is pleaded that first respondent/wife never used to work in the matrimonial home, and the appellant/husband's parents used to prepare the food and serve her. It is pleaded that even though appellant/husband and first respondent/wife lived together separately for more than 8 years, there is no cohabitation between them and without any reason she left the matrimonial home by deserting the appellant/husband and started living separately since April 2002.

6. It is averred that first respondent/wife was treated for temperamental issues prior to the marriage and several panchayats were held between the parties, yet, there were no positive results. The appellant/husband set up a separate house in August 2006 as per demand of respondent/wife in the fond hope that she would improve.

7. Despite request by the appellant/husband to the first respondent/wife to join matrimonial home for last three years, she has not heeded to his request. It is further averred that initially first respondent/wife agreed for consent divorce, and thereby both the appellant/husband and first respondent/wife approached late D.L. Krishnaswamy, Advocate, Chikkamagaluru, and got a joint petition drafted, but subsequently she backed out.

8. The respondents No.1 and 2 have entered appearance before the Family Court and filed objections, denying the averments made in the petition. The provisions of Section 9 of the Act, the averments in the petition and the statement of objections to the divorce petition are one and the same. The first respondent/wife admitted her relationship with appellant/husband. She has specifically denied each and every allegation made against her with regard to cruelty, desertion and adultery. It is averred that she was happily residing in the matrimonial home with the appellant/husband in Kabbinahalli Estate till September 2006, later the appellant/husband and first respondent/wife along with child moved to Chikkamagaluru and started residing there in the flat for the purpose of child's education. It is further averred that appellant/husband's parents used to physically and mentally harass the first respondent/wife, they used to show hostile attitude towards her. It is pleaded that their child was admitted to Smiley Kids (Kindergarten School) at Chikkamagaluru. On 01.11.2007 she sustained several grievous injuries in a road accident and she was admitted in the Hospital for several weeks and was shifted to her parental house as she could not walk for several days and she was also advised to take bed rest for six months. During aforesaid period neither the appellant/husband nor his parents visited the first respondent/wife and did not pay any medical expenses. It is further pleaded that appellant/husband filed petition for dissolution of marriage on false grounds and denied that she has not deserted the appellant/husband and she has denied the relationship with the second respondent.

9. The second respondent in his objection averred that he is not aware about the marriage between the appellant/husband and the first respondent/wife, and he has denied the alleged affair with the first respondent/wife. It is further averred that he belongs to respectable family and is married, and having a daughter aged about 9 years and that his daughter and the daughter of the first respondent/wife are class mates. He has specifically denied that he used to visit the first respondent/wife in the flat everyday.

10. The Family Court recorded evidence. The appellant/husband examined himself as PW.1 and examined another witness as PW.2 and got marked the documents Exs.P1 to P31. The first respondent/wife examined herself as RW.1 and got marked the documents Exs.R.1 to R11. The Family Court by common judgment dated 26.03.2015 inter alia held that the appellant/husband failed to prove the grounds of cruelty, desertion and adultery and dismissed the petition by allowing the petition filed by first respondent/wife for restitution of conjugal rights. In the aforesaid factual matrix these appeals have been filed by the husband.

11. Learned counsel for the appellant/husband submits that after marriage parties started living in matrimonial house. It is submitted that respondent/wife used to quarrel with the appellant/husband and his parents, despite consoling her she has not changed herself. It is submitted that first respondent/wife used to abuse the appellant/husband and his parents with filthy language and used to abuse them by using unparliamentary words. It is argued that first respondent/wife used to humiliate the appellant/husband all the times in front of friends and parents in social gatherings, therefore, first respondent/wife caused mental cruelty to the appellant/husband without any valid reason.

12. It is submitted that first respondent/wife has not taken care of their son Skanda, and she used to tell that she married the appellant/husband only due to coercion exercised by her parents.. It is submitted that first respondent/wife never used to work in the matrimonial home, and the appellant/husband's parents used to prepare food and serve her. It is submitted that appellant/husband and first respondent/wife lived separately for more than 8 years, there was no cohabitation between them and without any reason she left the matrimonial home by deserting the appellant/husband and started living separately from April 2002.

13. Learned counsel for the first respondent/wife submits that she was happily residing at the matrimonial home with the appellant/husband in the Estate till September 2006, later the appellant/husband and first respondent/wife along with child moved to Chikkamagaluru and started residing there in the flat for the purpose of child's education. It is further submitted that appellant/husband and his parents used to physically and mentally harass the first respondent/wife and on 01.11.2007 she had sustained several grievous injuries in a road accident and she was admitted in the Hospital for several weeks. Hence she was shifted to her parental house as she was advised to take bed rest for six months and during this period neither the appellant/husband nor his parents visited the first respondent/wife.

14. It is further submitted that thereafter, she joined the appellant/husband and not deserted the appellant/husband and she has denied the relationship with the second respondent and sought for dismissal of the appeal.

15. The appellant/husband has filed I.A.No.I/2017 under Order 41 Rule 27 of the CPC r/w Section 14 of the Family Courts Act 1984 for production of additional documents in the present appeal. We have considered the said application and a careful perusal of Rule 27 of order 41 of CPC makes it clear that parties to the appeal shall not be entitled to produce additional evidence, however, if the three circumstances referred under the Rules exists, then it can be allowed. In our view, none of the three contingencies referred under Rule 27 are available to the appellant/husband and for yet another reason the same cannot be allowed as the appellant/husband has not made any attempt to amend the memorandum of appeal by raising additional grounds based on the documents, which has produced as additional evidence along with the application. Therefore we do not find any merit, hence the application is dismissed.

16. We have considered the submissions made by learned counsels for the appellant/husband, respondent/wife and perused the record.

17. The Hon'ble Supreme Court in the case of NEELAM KUMAR V. DAYARANI, (2010) 13 SCC 298 [LQ/SC/2010/625] has held at para 9 as follows :-

“The High Court then took up the other allegation that the respondent/wife did not come to attend and take care of the appellant/husband when he was undergoing medical treatment in a hospital for the injuries caused in an accident. The High Court found that this allegation was not part of the appellant/husband's pleadings and the matter was introduced in course of evidence. The court observed that not being stated in the pleadings, the allegation could not be taken into consideration. Even otherwise, apart from the oral statement made before the trial court, there was no material to support the allegation. The appellant/husband did not examine any doctor or produce the medical records in connection with his treatment. In any event, one single instance, in isolation, was hardly sufficient for the dissolution of marriage on the ground that the respondent/wife treated the appellant/husband with cruelty.”

18. The Family Court has appreciated the evidence on record and given a finding that appellant/husband has failed to prove the grounds of cruelty, desertion and adultery for grant of decree of divorce. The appellant/husband has not specifically pleaded nor adduced any cogent evidence of specific instances of cruelty by the first respondent/wife. A close scrutiny of evidence on record, discloses that the first respondent/wife used to quarrel with the appellant/husband and his parents, such acts can be termed as usual wear and tear in the marital life which cannot be termed as cruelty. Hence the Family Court has rightly come to the conclusion that the appellant/husband has failed to prove the ground of cruelty. The appellant/husband has deposed that Sri Krishnaswamy, Advocate has prepared the petition for dissolution of marriage by consent. However, the appellant/husband has failed to produce any document to show such attempt was made and in the absence of any cogent evidence mere self serving statement cannot be termed as a mental cruelty to the appellant/husband.

19. It will be useful to refer to the decision of the Hon'ble Supreme Court in the case of DEBANANDA TAMULI V. KAKUMONI KATAKY, (2022) 5 SCC 459 [LQ/SC/2022/202 ;] has held at para 7 as follows :-

“We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant/husband relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.”

20. Insofar as the grounds of desertion is concerned, the appellant/husband has not specifically pleaded nor adduced any evidence in support of the said ground. The appellant/husband's statement that the respondent/wife has started residing in a flat at Chikkamagalur and thereafter, she has vacated the said flat in the year 2010 or 2011 and he used to maintain them, this fact clearly establishes that respondent/wife was not living separately from the appellant/husband, prior to the filing of the petition i.e., 24.03.2010. Even on the date of filing of the petition the respondent/wife was residing with the appellant/husband. Hence the Family Court has rightly disbelieved the evidence of the appellant/husband and came to the conclusion that appellant/husband has failed to prove the ground of desertion to grant a decree of divorce.

21. Insofar as the ground of adultery is concerned the appellant/husband has made only bald averments in the petition and not adduced any acceptable evidence to come to the conclusion that the first respondent/wife has led adulterous life. The Family Court has rightly given the finding that it is the wife of the 2nd respondent, who informed the appellant/husband that the first and second respondents are having, affair and to prove the same the appellant/husband has not summoned the watchman or the owner of the apartment in which the first respondent/wife was residing, to substantiate the said ground the self serving statement of the appellant/husband is not sufficient to prove the ground of adultery; hence on this count also the appellant/husband has failed before the Family Court.

22. The Family Court on meticulous appreciation of evidence on record has recorded a finding that the appellant/husband has failed to prove the grounds for dissolution of marriage on the ground of cruelty, desertion and adultery. The findings recorded by the Family Court do not suffer from any infirmity warranting interference in these appeals.

23. For the aforementioned reasons we do not find any merit, in these appeals. Accordingly both the appeals stand dismissed.

24. No order as to costs.