Karnataka High Court
Roopa Kiran Kumar vs Dr T N Kiran Kumar on 19 October, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
M.F.A. NO.8114/2014 (MC)
C/W
M.F.A.NO.8115/2014 (MC)
IN M.F.A.NO.8114/2014:
BETWEEN:
ROOPA KIRAN KUMAR
W/O DR. T.N. KIRAN KUMAR
AGE 43 YEARS
# D.NO.13/1, 3RD CROSS
MAGADI ROAD
BANGALORE - 23. ...APPELLANT
(BY SMT. NANDITA HALDIPUR, ADV.)
AND:
DR. T.N. KIRAN KUMAR
S/O T.M. NANJAPPASHETTY
AGE 45 YEARS
# D.NO.1484, 1ST FLOOR
JANATHANAGAR
2ND STAGE, BEGADI
MYSORE - 9. ...RESPONDENT
(BY SRI RAVIKUMAR N.R.,ADV.)
THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, PRAYING TO JUDGMENT AND DECREE
DATED 10.11.2014 PASSED IN M.C. NO.3008/2010 ON THE
FILE OF THE III ADDITIONAL PRINCIPAL JUDGE, FAMILY
COURT, BANGALORE, ALLOWING THE PETITION JUDGE,
2
FAMILY COURT, BANGALORE, ALLOWING THE PETITION FILED
U/SEC 13(1)(IA) & (IB) OF THE HINDU MARRIAGE ACT.
IN M.F.A.NO.8115/2014:
BETWEEN:
ROOPA KIRAN KUMAR
W/O DR. T.N. KIRAN KUMAR
AGE 43 YEARS
# D.NO.13/1, 3RD CROSS
MAGADI ROAD
BANGALORE - 23. ...APPELLANT
(BY SMT. NANDITA HALDIPUR, ADV.)
AND:
DR. T.N. KIRAN KUMAR
S/O T.M. NANJAPPASHETTY
AGE 45 YEARS
# D.NO.1484, 1ST FLOOR
JANATHANAGAR
2ND STAGE, BEGADI
MYSORE - 9. ...RESPONDENT
(BY SRI RAVIKUMAR N.R., ADV.)
THIS M.F.A. IS FILED UNDER SECTION 19 OF THE
FAMILY COURTS ACT, PRAYING TO JUDGMENT AND DECREE
DATED 10.11.2014 PASSED IN M.C.NO.4246/2011 ON THE
FILE OF THE III ADDITIONAL PRINCIPAL JUDGE, FAMILY
COURT, BANGALORE, DISMISSING THE PETITION FILED
U/SEC 9 OF THE HINDU MARRIAGE ACT.
THESE APPEALS COMING ON FOR HEARING THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:
JUDGMENT
These two Miscellaneous First Appeals filed under Section 19(1) of the Family Court Act, 1984,arises out of a common judgment and decree dated 10.11.2014 3 passed by the III Additional Principal Judge, Family Court, Bengaluru in M.C.No.3008/2010 c/w M.C.No.4246/2011, and therefore, both these appeals are clubbed, heard together and disposed of by this common judgment.
2. Heard the learned counsel appearing for the parties and also perused the material on record.
3. Facts leading to the filing of these appeals briefly stated are, the marriage of the appellant with the respondent was solemnized on 02.12.2004 at Bengaluru as per Hindu rites and customs prevailing in their community. From the wedlock, the couple have a son by name Chetan who was born on 17.10.2005. The respondent-husband is a P.hd holder in Chemistry and he was working as a Associate Professor in Maharani's Science College for Women at Mysuru and his native place is Virajpet in Kodagu District. The appellant - wife who was pursuing her B.Ed course got married to the respondent and after marriage she has completed her B.Ed course. After marriage, the appellant had joined the company of the respondent in a rented house at Mysuru. 4 The appellant had gone to her parents house during prenatal and postnatal period and after the birth of the child she had joined her husband along with her child in their house at Mysuru. After a short period from the date of marriage, difference of opinion arose between the parties and it appears they quarreled on petty issues and finally on 20.12.2006, the appellant along with her child left the matrimonial house and started reside with her parents at Bengaluru. It appears that subsequently, she also went to Mysuru and brought back her belongings and jewelleries from their Bank locker. It is in this background, the respondent had filed M.C.No.185/2009 under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1995 (for short, 'the Act') on 24.06.2009 before the Family Court, Mysuru, and at the instance of the appellant, the said matter was transferred to the Family Court, Bengaluru, and re-numbered as M.C.No.3008/2010. Thereafter, the appellant had filed M.C.No.4246/2011 under Section 9 of the Act for restitution of conjugal rights. Both the cases were clubbed together for the purpose of recording common evidence and during the course of trial, the respondent 5 had examined himself as PW.1 and got marked 8 documents as Ex.P1 to P8, whereas the appellant had examined herself as R.W.1 and got marked 30 documents as Ex.R1 to R30.
4. The learned Judge of the Family Court vide the impugned judgment and decree passed a common judgment and decree allowing M.C.No.3008/2010 filed by the respondent under Section 13(1)(ia)&(ib) of the Act dissolving the marriage between the parties solemnized on 02.12.2004 by a decree of divorce and dismissed the petition filed by the appellant - wife under Section 9 of the Act in M.C.No.4246/2011. Being aggrieved by the same, the appellant - wife has preferred these two appeals.
5. Learned counsel for the appellant submits that the learned Judge of the Family Court erred in allowing the petition filed under Section 13(1)(ia)&(ib) of the Act and dismissing the petition filed under Section 9 of the Act. She submits that the respondent had not proved the ground of cruelty and desertion by placing cogent material on record, and therefore, the learned Judge of 6 the Family Court was not justified in allowing his petition. She submits that the material on record would go to show that the appellant had not deserted the respondent continuously for a period of two years prior to filing of the petition, and therefore, the petition under Section 13(1)(ia)&(ib) of the Act could not have been allowed. She also submits that the learned Judge of the Family Court has misread Ex.P4 and erroneously held that the same is a suicide note and thereby erred in granting a decree of divorce on the ground of cruelty. She submits that the appellant had valid reason to stay away from the respondent having regard to his vices and the cruelty meted upon her by him. She submits that even during conciliation efforts, the appellant always expressed her willingness to stay with the respondent but it is the respondent who had throughout refused to take her back. She therefore, prays to allow the appeals.
6. Per contra, the learned counsel appearing for the respondent submits that the respondent had proved the ground of desertion as well as cruelty against the appellant, and therefore, the learned Judge of the Family 7 Court has rightly allowed his petition and dismissed the petition filed by the appellant - wife. He submits that the appellant had voluntarily left the company of the respondent and she is now working as a Head Mistress in the school managed by her father. He submits that the appellant continuously demanded that the respondent should resign his job at Mysuru and start residing with her parents at Bengaluru and whenever her demands were not agreed by the respondent, she threatened to commit suicide and the same was established before the Family Court, which is evident from Ex.P4. He submits that the parties are staying separately for the last 15 years, and therefore, there is no point in asking them to stay together at this juncture of time. He submits that the appellant - wife had made serious allegations against the respondent in her petition filed under Section 9 of the Act, and therefore, it is very clear that he has got serious grievance against the respondent and she has no real intention to join the company of the respondent. 8
7. We have given our anxious consideration to the arguments addressed on behalf of the parties to these appeals.
8. The point that arises for consideration in these two appeals are :
Whether the learned Judge of the Family Court was justified in allowing the petition filed by the respondent under Section 13(1)(ia)&(ib) of the Hindu Marriage Act, 1995 and dismissing the petition filed by the appellant - wife under Section 9 of the Hindu Marriage Act, 1955 having regard to the material evidence available on record?
9. The respondent had approached the Family Court seeking divorce on the ground of cruelty as well as desertion by the appellant. Though he had contended that the appellant was a quarrelsome lady, used to pick up quarrel on petty issues, used to abuse him in filthy language and threatened to file false dowry case etc., he had failed to prove the same by producing necessary material before the Family Court. The respondent has not 9 examined any independent witness to prove his allegations against the appellant nor has he produced any documents in support of his allegations made by him.
10. The learned Judge of the Family Court has held that the respondent had proved that the appellant was threatening of committing suicide placing reliance on Ex.P.4 which is considered as a suicide note written by the appellant. Though the appellant has admitted that the writing and signature in Ex.P4 are hers, she has suggested to the respondent during the course of his cross-examination that Ex.P4, is a page torn from her diary which she had written when she was pregnant. It was also suggested by her that she had a apprehension that something may happen to her at the time of her delivery, and therefore she had written the said note in her diary. Undisputedly, the document at Ex.P4 is a page torn from the appellant's diary and the said document does not bear any date or time. Further, a reading of the same does not show that the appellant had expressed in the said note anything about her intention to commit 10 suicide. All that she had said in the note was she was tortured by her husband after marriage, and therefore, her child may be handed over to her parents and that was her last wish. In view of the specific suggestion made by the appellant to the respondent during his cross-examination to the aforesaid effect, the explanation offered by the respondent with regard to Ex.P4 cannot be totally discarded or disbelieved. Other than Ex.P4, the appellant has not produced any material before the Court to show that the appellant had a tendency of committing suicide or she had threatened at any point of time to commit suicide.
11. The learned Judge of the Family Court has also held that the appellant was insisting the respondent to resign his job at Mysuru and stay in her parents house at Bengaluru and also she threatened about filing false dowry case against him and his parents. The material on record would go to show that the appellant's father is running a school at Bengaluru and after returning from Mysuru, the appellant is working as Head Mistress in the said school. The material on record would also go to 11 show that the respondent was addicted to smoking and alcohol and he allegedly misbehaved and ill-treated the appellant. In this background, even if the appellant has requested the respondent to resign his job and come and stay in her parents house, that itself cannot be considered as a cruelty for the purpose of granting divorce under Section 13(1)(ia) of the Act. Undisputedly, the appellant has not filed any criminal case as against the respondent or her in-laws and there is absolutely no material on record to show that she had threatened the respondent at any point of time that she would be filing a false criminal case against him and send him behind the bars. The learned Judge of the Family Court has erred in appreciating the available evidence on record and has wrongly come to a conclusion that the respondent had proved that the appellant had treated him with cruelty after marriage.
12. In so far as the ground of desertion for granting the decree of divorce is concerned, the appellant has taken a contention that even often she left the matrimonial house in the month of December, 2006, she 12 had visited the respondent at Mysuru on number of occasions and also stayed in their house at Mysuru. The learned Judge of the Family Court has recorded a finding that the appellant and her son had stayed along with the respondent in his house at Mysuru in the month of February and April, 2009 and the family had visited KRS, Mysuru Zoo, Chamundi Hill and Nanjanagud, during such stay of the appellant with the respondent. The petition for divorce has been filed on 24.06.2009. Therefore, it cannot be said there was a continuous desertion on the part of the appellant for a period of two years immediately prior to filing of the petition. In our considered view, the learned Judge of the Family Court has erred in coming to a conclusion that such a stay by the appellant with the respondent was only for the purpose of obtaining a signature from him for filing of an application seeking passport of their son and during such stay of the appellant in the respondent's house at Mysuru, it is highly unbelievable that they had a physical relationship. Therefore, in our considered view, the respondent had failed to prove even the ground desertion pleaded by him before the Family Court and the learned 13 Judge of the Family Court on an erroneous appreciation of the available material on record has erred in allowing his petition seeking dissolution of marriage under Section 13(1)(ia)&(ib) of the Act.
13. The Hon'ble Supreme Court in the case of SMT. ROHINI KUMARI VS SURESH KUMAR1, has held that desertion within the meaning of Section 10(1)(i-a) of the Act read with the explanation does not imply only a separate residence and separate living. It is also necessary there must be a determination to put an end to marital relation and cohabitation. Without animus deserendi there can be no desertion within the meaning of Section 10(1)(i-a) of the Act. In the present case, the material on record would go to show that even after the appellant-wife left the matrimonial house, on number of occasions, she had gone to Mysuru and also stayed with her husband and child overnight. Therefore, it cannot be said that there was desertion for a period of more than two years continuously on the part of the appellant. 1 AIR 1972 SC 459 14
14. In the case of MANGAYAKARASI VS 2 M.YUVARAJ , the Hon'ble Supreme Court has held that in a matter where the differences between the parties are not of such magnitude and is in the nature of the usual wear and tear of marital life, the future of the child is required to kept in view and in such circumstances, the dissolution of marriage merely because the parties have been litigating and they have been residing separately for quite some time would not be justified. In the present case, the son born to the couple is aged 17 years and it is submitted that he is preparing for his NEET examinations, and therefore, his future should be the foremost interest of the couple who have already passed their prime age. Under the circumstances, having regard to the facts and circumstances of the case, we are of the considered view that the learned Judge of the Family Court was not justified in allowing the petition filed by the respondent-husband under Section 13(1)(i-a) & (i-b) of the Act.
2 AIR 2020 SC 1198 15
15. In so far as the petition filed by the appellant- wife under Section 9 of the Act is concerned, the restitution of conjugal rights is a relief or remedy available to either of the parties to the marriage who got abandoned by the other spouse without explaining or giving just reasons. For the purpose of granting a relief under Section 9 of the Act, the party approaching the Court has to prove that the other side has withdrawn from his/her society without sufficient cause. The word 'society' in Section 9 means cohabitation and companionship that a person expects in a marriage. The initial burden to prove that the other side has abandoned the party approaching the court or that the other side has withdrawn from the society of the party approaching the court, is on the party who approaches the court.
16. In the present case, the material on record would go to show that the appellant-wife herself had left the matrimonial house, and therefore, it cannot be said that the respondent was guilty of abandoning the appellant. The material on record would also go to show that the parties to these appeals have made allegations 16 and counter allegations against each other and they have been staying separately for a period of nearly 15 years, and therefore, we are of the considered view that it would be impossible for both the spouses to live together under one roof at this point of time.
17. Further, a reading of the averments in the petition filed by the appellant under Section 9 of the Act would go to show that she has made several allegations against him and she has also stated that having regard to the ill-treatment meted out on her and having regard to the vices of the respondent, it was not possible for her to stay along with him, and therefore, she had left his company. Under these circumstances, a serious doubt arises whether there is any truth in the statement made by the appellant that she intends to live with the respondent and whether she would be entitled for an order of restitution of conjugal rights compelling the respondent to perform his marital obligations.
18. The material on record would also go to show that the respondent had filed a petition seeking divorce in the month of June 2009, whereas the petition under 17 Section 9 of the Act seeking restitution of conjugal rights has been filed by the appellant in the month of November 2011. Therefore, there is a delay in initiating proceedings for restitution of conjugal rights. Hence, we are of the considered view that having regard to the averments made in the petition filed under Section 9 of the Act and in the objections filed by the appellant-wife to the petition filed by the respondent-husband under Section 13(1)(i-a) & (i-b) of the Act, there is no bona fides in the contentions urged and in the prayer made in the petition filed under Section 9 of the Act. Under the circumstances, we are of the considered view that the petition under Section 9 of the Act is misconceived. Accordingly, we answer the point for consideration partly in the affirmative.
19. In the result, M.F.A.No.8114/2014 is allowed. The judgment and decree passed by the III Addl. Principal Judge, Family Court, Bengaluru, allowing M.C.No.3008/2010 filed by the respondent under Section 13(1)(ia)&(ib) of the Act dissolving the marriage between 18 the parties, is set aside. M.F.A.No.8115/2014 is dismissed.
Sd/-
JUDGE Sd/-
JUDGE NMS