Karnataka High Court
Smt. N Pushpanjali vs Sri. L Ramakrishna on 29 March, 2016
Bench: N.K.Patil, Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH 2016
PRESENT
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
MISC. FIRST APPEAL NO.4214/2012 (FC)
BETWEEN:
SMT.N.PUSHPANJALI
W/O L.RAMAKRISHNA
AGED ABOUT 31 YEARS
R/AT NO.1/70,
MUGULUR VILLAGE AND POST
HOSUR TALUK
KRISHNAGIRIDISTRICT
TAMIL NADU. ...APPELLANT
(BY SRI S.K.ACHARYA FOR
M/S DHARMASHREE ASSOCIATES)
AND:
SRI L.RAMAKRISHNA
S/O LATE L.ADINARAYANA
AGED ABOUT 36 YEARS
R/AT NO.222, 4TH CROSS,
CELEBRITY LAYOUT,
DODDATOGURU VILLAGE,
ELECTRONIC CITY POST,
BANGALORE - 560 100. ...RESPONDENT
(BY SRI Y.R.SADASIVA REDDY, SENIOR COUNSEL FOR M/S
Y.R.SADASIVA REDDY AND ASSOCIATES)
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THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE
DATED 09.03.2012 PASSED IN M.C. NO.1802/2009 ON THE FILE
OF THE IV ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BANGALORE, ALLOWING THE PETITION FILED U/S 13(1)(i-a) OF
HINDU MARRIAGE ACT, FOR DIVORCE..
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 17/03/2016 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, RATHNAKALA J.,
DELIVERED THE FOLLOWING:-
JUDGMENT
The appellant is the wife whose marriage with the respondent is dissolved by a Decree of Divorce by the 4th Addl. Prl. Judge, Family Court, Bangalore, in a petition filed by respondent/husband, under Section 13(1) (i-a) of the Hindu Marriage Act (for short, 'Act').
2. Briefly stated, the husband filed a petition for divorce on the allegation that the parties were married on 14.09.2005 at Thirumala Tirupati, as per Hindu rites and customs. The wife joined the husband in the matrimonial house at Bangalore, while the husband is engaged in a vegetable business at KR Market, Bangalore, the wife is a B.Com graduate. At the 3 time of marriage, the father of the husband was hospitalized and died immediately after 3 days of marriage. The wife exhibited hostile attitude towards husband and mother-in-law. She was irresponsible and go away from the matrimonial home on her own, against the wishes of the husband. She used to stay away for 3-4 months and was a spendthrift; she used to mingle with unwanted and doubtful persons. She showed scant respect to the mother-in-law and was quarreling for flimsy reasons and was not attending household chores, thus, caused cruelty to the husband. She threatened to kill the husband and abandoned the matrimonial house by collecting all her belongings and jewels and lodged a complaint against the husband and family members in respect of the offence under Section 498A of IPC and Section 4 of the DP Act. The husband was detained in judicial custody for 12 days. She also opposed the bail application, when it came for consideration before the Court.
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3. The wife contested the petition while denying the allegation leveled against her, she set-up defense of husband and his members demanding dowry. Her counter allegation was, her parents borrowed a loan and paid a sum of Rs.7 lakhs to the husband and family members to meet the demand of dowry and marriage expenses. Still, the husband demanded additional dowry of Rs.5 lakhs. Since, her parents could not meet the demand, she was subjected to mental cruelty. Hence, she lodged a complaint. He has married another woman by name Darshini, she is ready to stay with him, if he undertakes not to make further demand for dowry and also undertakes to leave the company of Darshini.
During the trial, the parties examined themselves as PW1 and RW1 respectively. The documents at Exs.R1 to R9 were marked for the respondent. The learned Family Court Judge, after giving audience to 5 both the parties, allowed the petition on the ground of cruelty.
4. Sri. S.K. Acharya, learned counsel for the appellant submits that the Court below has allowed the petition only on the ground that the criminal case initiated against the husband on the complaint of wife before Denkanakottai Court, ended in acquittal, which meant that the wife lodged a false complaint and sent her husband behind the bar. But, the Court below ignored the dowry harassment inflicted on the wife and bigamy committed by the husband, though sufficient documentary evidence was available on record. The authorities relied on by the wife are not at all considered. It is not the instance of breakdown of the marriage. If the husband had any genuine intention to join his wife, he would have filed a petition under Section 9 of the Act. The husband has not made any averment to the effect that on account of criminal case 6 and his detention in custody, he has undergone cruelty. The entire approach of the Court below is erroneous and the finding is perverse and the petition is liable to be dismissed.
Sri. S.K.Acharya, learned counsel continues his submission, though sufficient evidence was placed by way of documentary evidence to establish the sound financial condition of the husband, the Court below granted paltry sum of Rs.3,000/- per month towards interim maintenance of herself and the girl child born from the marriage. To deprive her of her legitimate right, he has executed a Release Deeds in respect of the family property in favour of his elder sister and brother- in-law, she intends to place on record the certified copy of said Release Deeds. She has filed an application under Section 24 of the Act before this Court seeking interim maintenance of Rs.30,000/- per month and litigation expenses at Rs.50,000/- along with the 7 necessary documents and same may be considered. Hence, the judgment of the Court below may be set- aside.
5. In reply, Sri. Y.R. Sadashiva Reddy, learned Senior Counsel for the respondent submits, the wife gave birth to a female child on 11.01.2008 in a private hospital at Bangalore and after delivery, she did not choose to return to the matrimonial home. After 1½ years of return to her parents house, she lodged a complaint on 31.05.2009 before the Denkanakottai Police Station against the husband and mother-in-law in which case he was remanded to judicial custody for 12 days. She even opposed the bail application filed by the husband. Unable to bear with her harassment, he was compelled to file a petition for divorce on 29.06.2009. Subsequently, the criminal case ended in acquittal vide judgment dated 4.11.2011. The Criminal Revision Petition filed by her before Sessions Court, 8 Krishnagiri, is also dismissed. The judgments of the Criminal Court are placed on record by the husband with an application under Order 41 Rule 27 read with Section 151 of CPC. The application may be allowed and additional documents may be accepted as additional evidence in support of the case of the husband. The wife voluntarily deserted the matrimonial house. The very conduct of the wife in filing the complaint making unfounded and false allegation against the husband and mother-in-law and thereafter filing the criminal revision petition challenging the judgment of the acquittal categorically discloses her intention and indicates that somehow she wanted to put the husband and mother-in-law in jail and had no intention to lead married life. No ground is made out by her to set-aside the decree of divorce. She is not in need of any interim maintenance, in fact she is the only daughter to her parents and had not chosen to recover the interim amount ordered by the Court below. Before 9 this Court, the husband voluntarily paid accrued amount of Rs.1,92,000/- vide memo dated 18.03.2016 . Hence, the appeal and application filed by her under Section 24 of the Act is liable to be rejected and judgment of the Court below may be confirmed.
6. In the light of the above rival submissions and having perused the impugned judgment along with the lower court records, the points that arises for our consideration:
Whether the impugned judgment and decree warrants interference?
7. The facts admitted between the parties that they were married as per Hindu rites and customs on 14.09.2005; a female child born on 11.01.2008 from the said wedlock is in the custody of the wife. The wife lodged a complaint against the husband and his mother in respect of the offence under Section 498-A of IPC and Section 4 of the DP Act. After a full pledged trial, case 10 ended in acquittal. The learned Family Court Judge, in the back drop of the above facts, has observed that the wife has not placed any reliable evidence in support of her allegation that she was subjected to mental cruelty from her husband and in-laws. The court suspects the financial capacity of her father to pay huge dowry of Rs.12 Lakhs as alleged by wife since he is said to be an agriculturist. Under the circumstances, the learned Family Court records its finding that the wife has voluntarily deserted her husband immediately after giving birth to a female child on 11.01.2008. The petition was filed before the completion of statutory waiting period of two years from the date of desertion which is a mandatory requirement of Section 13(1) (1-b) of the Act. Hence, relief was rejected on the ground of desertion and the case of the husband for divorce on the ground of cruelty is accepted.
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8. The standard of proof in a matrimonial case is on the scale of preponderance of probabilities unlike proof beyond reasonable doubt in a criminal case. What amounts to cruelty in a matrimonial case is now well settled by plethora of judicial pronouncements. The complaint in Crime No.5/2009 before the Court at Denkanakottai is filed by the wife, one and a half year after the birth of female child on 11.01.2008. The Criminal Court has disbelieved the case of the prosecution. The attempt of the wife to challenge the order of acquittal by filing a revision petition could not be achieved since the same was filed beyond limitation period and delay was not condoned. Thus, the finding of the Criminal Court at Denkanakottai has become final.
9. Filing complaint against other spouse is an incident of mental cruelty as held by the Apex Court in K. Srinivas Rao Vs. D.A. Deepa, reported in AIR 2013 12 SC 2176. In the said case, the effort made by the wife in filing appeals and revisions against the acquittal order of the husband and family members left the Apex Court in no doubt that the said conduct caused mental cruelty to the husband.
10. In Smt. Vijayalakshmi G.U. Vs. Siddesh S. Hombaradi, reported in 2014 (2) AKR 408, the co- ordinate Bench of this Court observed that the false and scandalous allegations made against the husband and his father was nothing but to harass them amounting to cruelty.
11. It is in the natural course of human conduct that a husband made to face a criminal charge and harassed with judicial custody is sure to apprehend safety of his self to continue his relationship any more with his wife. The classic example of the definition of cruelty is given in the well known decision of the Apex Court in Narayan Ganesh Dastane Vs. Sucheta 13 Narayan Dastane reported in (1975) 2 SCC 326, wherein it is observed that "The enquiry has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner as reasonable apprehension that it would be harmful or injurious for him to live with the respondent." The present case is one of such kind. The husband is not shown to be a criminal having the past experience of facing criminal charges. The matrix on hand does not leave room for an inference that the husband himself being offender is taking benefit of his own wrong. Under the circumstance, we hold that Family Court was well within its propriety in dissolving the marriage of the parties on the ground of cruelty. The acts alleged more particularly lodging the criminal case by the wife which is now shown to be a false complaint, does not call for any more corroborative evidence. The learned Family Court Judge has rightly placed his reliance on the observations of the Apex Court in V. Bhagat Vs. D. 14 Bhagath, AIR 1994 SC 710. In that view of the matter, we are prompted to hold that the judgment of the court below does not warrant interference.
However, we have noticed that only interim maintenance was awarded and no permanent alimony was provided at the time of dissolving the marriage. Before this court the parties could not arrive at consensus about the future maintenance of the wife and minor child born out of their wedlock. Probably, after being alerted by the criminal case initiated, the husband has released his rights from his parental property in favour of his sister and brother-in-law. It is upto the wife to work out for maintenance of herself and her child either in the same petition under Section 25 of the Act or by way of separate suit/petition as permissible under law, if so advised. The application filed by her under Section 24 of the Act for interim maintenance, stands disposed off, since, the appeal is 15 disposed. She is entitled for litigation expenses of Rs.10,000/- from the husband.
For the discussion supra, the appeal is rejected. The judgment of the court below is confirmed. Liberty is reserved to the appellant/wife to workout for permanent alimony for herself and child by filing necessary application under Section 25 of the Act or by any other mode in accordance with law, if she is so advised. All the contentions in this regard kept open.
The Respondent/husband is directed to pay a sum of Rs.10,000/-(Rupees Ten Thousand Only) towards litigation expenses within a period of one week from the date of receipt of copy of this judgment. In the event the deposit is not made, liberty is reserved to the appellant/wife to recover the same.
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In view of disposal of the main appeal, IA No.2 of 2016 does not survive for consideration, hence, stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE JTR