Karnataka High Court
Sri Ajay Marar vs Smt Bivra on 16 March, 2023
Author: Alok Aradhe
Bench: Alok Aradhe
-1-
MFA No.6956 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH 2023
PRESENT
THE HON'BLE MR JUSTICE ALOK ARADHE
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.6956 OF 2016 (FC)
BETWEEN:
SRI AJAY MARAR
S/O GOPALAKRISHNA MARAR,
AGED ABOUT 34 YEARS,
R/AT "JAYA" P.O.,
PODUVACHERI, VIA KADACHIRA,
KANNUR,
KERALA-670621.
PRESENTLY R/AT: AJAY MARAR
UNIVERSITY HOSTEL
UNIVERSITY OF WASHINGTON
SEATTLE, WA-98195
...APPELLANT
(BY MISS SIMRAN SINGH, ADV. FOR
SRI SIJI MALAYIL, ADV.)
AND:
SMT. BIVRA
AGED ABOUT 33 YEARS,
W/O AJAY MARAR
R/AT NO.31, XAVIER LAYOUT,
Y.G.PALYA, 2ND CROSS,
BEHIND LIFE STYLE
BENGALURU-560047.
...RESPONDENT
(BY SRI MAHABALESHWAR CHITRIGEMATH, ADV.)
-2-
MFA No.6956 of 2016
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED
16.06.2016, PASSED IN MC NO.2918/2010 ON THE FILE OF
THE V ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU, DISMISSING THE PETITION FILED U/S 13(1) (ia)
(iii) OF HINDU MARRIAGE ACT FOR DISSOLUTION OF
MARRIAGE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
13.03.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal under Section 19(1) of the Family Courts Act, 1984, has been filed against the judgment and decree dated 16.06.2016 passed in M.C.No.2918/2010 by which the petition filed by the appellant seeking dissolution of marriage on the ground of cruelty and unsoundness of mind has been dismissed.
2. Facts leading to filing of this appeal briefly stated are that marriage of the appellant and respondent was solemnized on 20.08.2005 at Sri Krishna Temple Kadalayi Kannur, Kerala and the same was registered in the Office -3- MFA No.6956 of 2016 of the Registrar of Marriages, Chairakkal, Kerala. It is averred that the couple started living in Bangalore, and a child is born out of the wedlock on 28.03.2010. It is further averred that appellant is working in Indian Army was posted at Jammu and Kashmir, Democratic Republic of Congo and Bhuj from August 2005 till July 2009. It is pleaded that appellant used to visit respondent during the said period, the appellant has noticed that respondent's behavior was abnormal and sensed that she is suffering from mental disorder. It is also pleaded that appellant was posted to Bangalore and thereafter, they have shifted to the Official Quarters.
3. It is averred that respondent's behavior was abnormal and it was aggravated, she used to quarrel with the appellant and beat him mercilessly with the available objects and injured him. It is also averred that respondent was not eating food properly, never used to sleep properly and the entire household chores was on the shoulders of the appellant. It is pleaded that appellant has contacted the Doctor, explained him the conduct of the -4- MFA No.6956 of 2016 respondent and the Doctor opined that respondent is suffering from mental disorder, which includes schizophrenia and split personality. It is further pleaded that respondent was staying with her parents during the post natal care and on 02.08.2010, the respondent abruptly entered the appellant's house and started quarrelling by abusing in filthy language, threatening to kill him and the child, and also to commit suicide. Immediately he called the respondent's mother and sister and requested them to take the respondent back. It is also pleaded that the behavior of the respondent was to threaten the appellant and cause mental cruelty by disrespecting him in front of his family members and relatives.
4. The respondent has filed statement of objections denying the averments made in the petition except the factum of marriage and birth of the child. It is averred that appellant was on United Nations Congo Mission and hardly stayed with the respondent. Hence the allegation that the appellant had noticed mental disorders etc., are -5- MFA No.6956 of 2016 false and concocted. It is further averred that appellant and respondent have jointly purchased immovable property at Bangalore. It is the appellant, who used to beat the respondent mercilessly at the insistence of his parents. It is also averred that respondent is ever ready to undergo medical test for alleged mental illness. It is pleaded that her In-laws have threatened the respondent to sell the immovable property which was refused by the respondent. It is the root cause for making reckless allegation against the respondent. It is further pleaded that act of the appellant and his family members amounts to mental cruelty on the respondent. It is also pleaded that respondent was sent back to her parental house on 27.04.2010 with the child without any reason.
5. The Family Court has recorded evidence of the parties. The appellant examined himself as PW.1 and produced Exs.P1 to P50. The respondent examined herself as RW.1 and produced documents as Exs.R.1 to R15. The Family Court by judgment dated 16.06.2016 inter alia held that appellant has failed to prove the ground of cruelty -6- MFA No.6956 of 2016 and unsoundness of mind. Accordingly, the petition filed by the appellant was dismissed. In the aforesaid factual matrix the present appeal is filed.
6. Learned counsel for the appellant submits that there is no dispute with regard to marriage and birth of the child. It is further submitted that respondent has caused mental cruelty on the appellant by abusing him in filthy language, respondent has beaten the appellant and caused injury and she used to quarrel with the appellant, never respected the appellant and his family members as she was suffering from psychopathic disorder and schizophrenia. Despite insistence for treatment, she refused to undergo any medical test and on 02.08.2010 the respondent came abruptly to the appellant's house during the post natal nursing care and started quarrelling with the appellant by abusing him in filthy language, threatening to kill him and the child and thereafter, to commit suicide.
-7-MFA No.6956 of 2016
7. It is submitted that appellant had called the mother and sister of the respondent and requested them to take the respondent to parental house. It is further submitted that he consulted the Doctor and came to know that the respondent is suffering from mental disorder. It is also submitted that Family Court has not considered the pleading and evidence in its proper perspective and dismissed the petition.
8. Per contra, learned counsel for the respondent supports the judgment and decree of the Family Court and submits that it is the appellant, who has caused mental cruelty on the respondent and seeks to dismiss the appeal.
9. We have considered the rival submissions and have perused the record. The marriage between the parties and the birth of the child is not in dispute. It is also not disputed that the appellant was working in Indian Army was posted in different places, and during the said posting he used to visit the respondent. Later he has been posted to Bangalore and thereafter they started living in Official -8- MFA No.6956 of 2016 Quarters. The appellant has made allegation of cruelty by the respondent in his pleading and the same is reiterated in his evidence. On meticulous examination of oral as well as documentary evidence, it is evident that appellant has pointed out some of the instances of cruelty, however, those instances took place during the stay of the respondent in the matrimonial home and such instances are not supported by cogent and acceptable evidence of cruelty. The appellant has pointed out that respondent used to abuse him, assault him, threatened to kill him and his new born child and also threatened to commit suicide. In support of such serious allegations, the appellant has not placed any acceptable evidence. The appellant has neither examined any independent witnesses nor produced any documentary evidence with regard to filing of criminal cases alleging attempt to commit suicide. The Family Court has rightly disbelieved the oral testimony of PW.1 in holding that appellant has failed to prove the ground of cruelty. The plea of cruelty is very vague and without -9- MFA No.6956 of 2016 substantive evidence. Hence, we do not find any error in the finding recorded by the Family Court.
10. The petition was filed on another ground i.e. unsoundness of mind of the respondent and in support of the said ground, has made averment in his pleading that respondent/wife's behaviour was abnormal and he noticed aggressiveness, therefore, he had consulted the Doctor and the Doctor has explained to the appellant that the respondent is suffering from mental disorder, which includes schizophrenia and having split personality, which made the life of the appellant miserable. On meticulous scrutiny of evidence of PW.1, RW.1 and exhibits, the appellant has made serious allegation of mental unsoundness of mind of the respondent/wife in support of the ground raised in the petition. The appellant is required to prove that the mental disorder, is incurable or of such kind to an extent that the appellant cannot reasonably be expected to live with the respondent. Keeping this legal principle in mind it is evident that appellant has made only bald statements about
- 10 -
MFA No.6956 of 2016unsoundness of mind in his pleading and evidence. The appellant has not examined the expert Doctor nor produced any documentary evidence to come to the conclusion that respondent is suffering from unsoundness of mind, to such an extent that appellant is unable to live with the respondent. The respondent in her evidence has stated that she is ready for any medical test, but the appellant has not made any attempt to get her examined by the expert Doctor, hence a clear inference can be drawn that allegation of unsoundness of mind by the appellant are unfounded vague and without any basis. The Family Court has rightly disbelieved the evidence of appellant insofar as unsoundness of mind is concerned. We do not find any error in the finding recorded by the Family Court. The Family Court has recorded a finding that appellant has produced CD and its transcript messages, however, the same is not supported by the certificate as required under Section 65B of the Indian Evidence Act, 1872. We do not find any error in the said finding.
- 11 -
MFA No.6956 of 2016
11. The appellant has failed to prove the ground of cruelty and unsoundness of mind to dissolve the marriage between the parties. Therefore, the Family Court is justified in rejecting the petition.
12. The Family Court has recorded a finding that appellant has failed to prove the grounds for dissolution of marriage on the ground of cruelty and unsoundness of mind. The aforesaid finding of the Family Court does not suffer from any infirmity warranting interference by this Court in the present appeal.
13. For the aforesaid reasons we do not find any merit in this appeal, the same fails and is hereby dismissed.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE NG CT: DMN