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Karnataka High Court

Shri. K.V. Jayaraj vs Smt. H.C. Ashwini on 24 March, 2023

Author: Alok Aradhe

Bench: Alok Aradhe

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                                     MFA No.4520 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 24TH 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.4520 OF 2016 (FC)

BETWEEN:

SHRI. K.V.JAYARAJ
S/O K.VISHWANATHAPPA
AGE 41 YEARS,
OCC. SERVING IN NPCIL
R/O NO.D-91, MALLAPURA TOWNSHIP,
MALLAPUR,
KARWAR-581400.
                                            ...APPELLANT
(BY SRI AJITH SASNUR, ADV.)

AND:

SMT. H.C.ASHWINI
W/O SHRI H.C.CHANNABASAPPA,
AGE 33 YEARS,
OCC. SERVING AS COLLEGE LECTURER,
R/O. NO.2808, 3RD MAIN, 4TH CROSS,
M.C.COLONY, B BLOCK, DAVANGERE,
DAVANGERE DIST.
                                         ...RESPONDENT
(BY SRI R.GOPAL, ADV.)

       THIS M.F.A IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE
DATED 27.04.2016 PASSED IN MC NO.229/2014 ON THE FILE
OF THE JUDGE, FAMILY COURT AT DAVANGERE, DISMISSING
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                                             MFA No.4520 of 2016




THE PETITION FILED U/SEC.13 OF THE HINDU MARRIAGE ACT,
1955.


        THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
21.03.2023,      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 27.04.2016 passed in M.C.No.229/2014 by the Family Court, Davanagere, by which the petition filed by the appellant/husband seeking dissolution of marriage, was dismissed.

2. Brief facts giving rise to filing of this appeal are that the appellant and respondent got married on 08.05.2006 as per the Hindu customs and rituals at Shri Shivayogi Bakkeshwara Mahaswamy Kalyana Mantapa, Davangere, and out of the wedlock a female child was born on 28.09.2007. It is averred that respondent was working as a Lecturer at Davanagere and after marriage she quit her job and joined the appellant, who was working at -3- MFA No.4520 of 2016 Kaiga Township, Mallapura, Karwar. It is further averred that the respondent was unhappy by quitting the job and was not happy to stay with the appellant amidst the dense forest of Western Ghats as she was interested to lead comfortable city life. It is also averred that the respondent was not happy with the mother of the appellant and she used to always chat with her friends over the mobile phone. Despite many advices, she did not change her conduct.

3. It is pleaded that in the second week of October 2007, the respondent went to her parental house for delivery and gave birth to a female child viz., Dhruthi. It is further pleaded that the respondent used to abuse and insult the appellant and his family members and in the month of February 2008 during the cradle ceremony she has picked up quarrel and created a scene in the presence of relatives and friends. It is also pleaded that the respondent was negligent, which has caused injury to the child. It is averred that when the couple was on tour to Gauhati and Shillong she had given sleeping pill to the -4- MFA No.4520 of 2016 child, on a tour to Dargiling, Gangtok and Kolkatta, she had picked a quarrel with the appellant and brutally manhandled him and after returning from tour, she went to her parents house and only after conciliation she rejoined him.

4. It is pleaded that during April 2009 the respondent left the matrimonial home by quarrelling with the appellant and started staying with her parents at Davangere and with the intervention of the respondent's parents, she was brought back to the matrimonial home, yet again on 09.09.2009 she picked up quarrel with the mother-in-law and she threatened to commit suicide along with the kid by leaving a suicide note. On one occasion she had attempted to commit suicide by jumping into Kali River along with the child, the appellant and his friends rescued her. On 12.09.2009 she attempted to commit suicide by locking the door of the room and the appellant had broke open the door and rescued her and on 13.09.2009 she went to her parents house expressing her unwillingness to lead married life. It is further pleaded that on 03.07.2010 -5- MFA No.4520 of 2016 in the presence of panchas she had promised to live with the appellant as dutiful wife and even gave a written undertaking to that effect. It is also pleaded that the respondent had started living separately in the same house by cooking separately, and on 05.04.2013, she left the matrimonial home with bag and baggage. Despite the appellant requesting her to join the matrimonial home, she failed to come back and she has sent reply notice to the appellant making reckless allegations, the aforesaid acts of the respondent has caused mental cruelty to the appellant.

5. The respondent has entered appearance before the Family Court and filed statement of objections. The respondent has admitted the relationship between the parties and birth of the female child. However, she denies the allegations of cruelty and desertion. It is averred that the appellant did not show any interest and concern towards the respondent and her child and started neglecting, which has forced the respondent to take shelter in her parents house. It is further averred that the appellant has ill treated and harassed the respondent and -6- MFA No.4520 of 2016 was in the habit of always picking up quarrel with the respondent and never allowed to contact her parents.

6. The Family Court has recorded the evidence. The appellant examined himself as PW.1 and other two witnesses as PWs.2 and 3 and marked Exs.P1 to P.28. The respondent examined herself as RW.1 and marked Exs.R1 to R8. The Family Court based on the evidence adduced by the parties vide judgment dated 27.04.2016 inter alia held that the appellant has failed to prove the grounds of cruelty and desertion. Accordingly the petition was dismissed. In the aforesaid factual matrix, the appeal has been filed.

7. Learned counsel for the appellant submits that there is no dispute with regard to the relationship between the parties and the birth of the child. It is submitted that the Family Court has not considered the evidence on record in its proper perspective. It is further submitted that the appellant has produced as many as 28 documents and examined three witnesses to prove the case, the same has -7- MFA No.4520 of 2016 not been properly appreciated by the Family Court. It is also submitted that the Family Court has failed to appreciate the conduct of the respondent that she attempted to commit suicide, she was quarrelsome and used to insult the appellant and his family members and during the panchayat held 03.07.2010 she had given written undertaking about her guilt and commission of cruelty, which is produced as Ex.P11. However, the Family Court has erred in not believing the oral testimony and documentary evidence on record and has given incorrect finding, resulting in dismissal of the petition.

8. Per contra learned counsel for the respondent supports the judgment of the Family Court and contends that appellant has failed to prove the ground of cruelty and desertion by adducing proper evidence. It is submitted that the allegations made in the petition are usual wear and tear between the couple and on such grounds marriage cannot be dissolved. It is further submitted that insofar as the oral testimony of PW.1 and Ex.P11 the respondent has not signed the said -8- MFA No.4520 of 2016 undertaking on her own volition but has written and signed the undertaking at the instance of panchas and the appellant with an intention to rejoin the matrimonial home. It is also submitted that the other allegations of cruelty like attempt to commit suicide, the adamant nature, causing humiliation to the appellant and his family members and coming to the house, late night on 05.08.2013 are not proved before the Family Court by producing the cogent evidence. Hence sought for dismissal of the appeal.

9. We have heard learned counsel for the appellant and the respondent and perused the material on record.

10. The admitted facts are that, the parties do not dispute their relationship and birth of the child. It is not in dispute that the respondent resigned the job after marriage and joined the matrimonial home at Kaiga Township of Karwar District and lived together till 05.04.2013. Now coming to the allegations of cruelty made in the petition and evidence on record, the appellant -9- MFA No.4520 of 2016 has asserted that the respondent was adamant and rude in nature, the respondent and her family members have suppressed the material facts, she used to humiliate the appellant and his family members, she had suicidal tendency and she has admitted the guilt of cruelty in her undertaking executed on 03.07.2010 in the presence of panchayath and despite such undertaking she has not changed herself, she came late night with some other person and also made false allegations in her reply notice sent to the appellant.

11. Now we deal with each of the allegations of cruelty with reference to the evidence on record. The allegation of suppression of fact that the respondent was not willing to resign her job and she was unhappy to join the matrimonial home, is a vague assertion in the pleading without any corroborative evidence. It is an admitted fact that the respondent has resigned her job and started living with the appellant in the matrimonial home till 05.04.2013, therefore the appellant has failed to prove the aforesaid ground. The allegations of wife being of

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adamant nature and causing humiliation to the appellant and her parents, as well as her misbehavior during the cradle ceremony and tarnishing the image in front of the guests and, her negligence has caused the child to suffer injury, have been pleaded and the same are reiterated in the evidence of PW.1. The allegations are self serving statements of the appellant. He has examined PW.2 his mother and another witness, and they have not stated anything about the specific instances as pleaded in the petition. The alleged instances of cruelty are usual wear and tear between the husband and wife. It is pleaded that during the tour to Gauhati in the year 2008 and to Darjiling and Gangtok in 2009, the respondent has quarreled with the appellant refusing to feed the child and had given sleeping pill, are only the assertions of the appellant.

12. The appellant has failed to examine any independent witness to substantiate such allegations. On careful examination of evidence of RW.1 and her cross- examination, she has specifically denied the allegations,

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hence it would be difficult to believe the version of the appellant. The allegations of attempt to commit suicide has been elaborately pleaded in the petition by contending that on 09.09.2009 the respondent had quarreled with the appellant, threatened to commit suicide along with the child and on 12.09.2009 she had locked herself in the bedroom and it is the appellant who broke opened the door and saved the appellant and again she has attempted to commit suicide by jumping into Kali River. The various instances of attempt to suicide have been pleaded and the same has been reiterated in the evidence of PW.1. However, the mother of the appellant has been examined as PW.2 and she has not specifically deposed about the aforesaid allegation.

13. The appellant has not examined any independent witness who were present at the time of alleged incident and nothing is on record to show that the appellant has filed any police complaint against the respondent for the aforesaid incidents. In the absence of any cogent and acceptable evidence, the vague averments of tendency to

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commit suicide of one party cannot be accepted on its face value without any corroborative evidence. In the instant case, other than the assertion of the appellant and alleged admission of the respondent in Ex.P11, no iota of evidence is placed before the Court, to accept the allegations of tendency of the wife to commit suicide and for grant of decree of divorce.

14. The allegations that the respondent has not changed her conduct despite her undertaking before the panchayat held on 03.07.2010, that she came late night with some other person and that false allegations have been made in her reply notice, are the allegations which are vague and not substantiated by corroborative evidence. Thus, it is evident that the appellant has failed to prove the aforesaid instances.

15. On careful examination of oral testimony and careful reading of Ex.P11, it is evident that the wife has given written undertaking during the panchayat held on 03.07.2010 narrating various instances. RW1 has

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categorically stated that the undertaking at Ex.P11 at the instance of panchas is only with an intention to rejoin the matrimonial home and it is not on her own volition. PW3 who is a signatory on Ex.P11 has been examined to substantiate the allegation. The contents of the Ex.P11 reveals that the respondent has given an undertaking that she would improve her conduct and she expressed her regret for the instances in the matrimonial home. The Ex.P11 contains only the alleged wrongs of the respondent and it does not say anything about the conduct of the appellant, hence this Court can draw a clear inference that the written undertaking of the respondent is not on her own volition and it is on the insistence of panchas with an objective to reunite the couple. The contents of the Ex.P11 cannot be held against the respondent in the absence of examination of any of the panchas who were present on that day.

16. The Family Court has rightly disbelieved the oral testimony of PW1, PW3 and Ex.P11 and we do not find any error in such finding. The Appellant has accepted the

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aforesaid undertaking of the respondent as recorded in Ex.P11 and thereafter they lived together from 03.07.2010 till 05.04.2013. The appellant and respondent had lived together approximately for a period of three years from the date of Ex.P11 till the respondent left the matrimonial home i.e., 05.04.2013. The act of the appellant amounts to condoning the cruelty alleged to have been committed by the respondent.

17. The appellant has pleaded only two instances of cruelty after 03.07.2010 and those instances are not that grave and weighty to come to a conclusion that the appellant is unable to lead marital life with the respondent. Hence the appellant has failed to prove the grounds of cruelty.

18. It will be useful to refer to the decision of Hon'ble Supreme Court in DR.N.G. DASTANE Vs. MRS.S. DASTANE (1975) 2 SCC 326 wherein at paras 51 to 54 it is held as follows :-

"51. The conduct of the respondent clearly amounts to cruelty within the meaning of Section

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10(1)(b) of the Act. Under that provision, the relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent. The threat that she will put an end to her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the appellant and his parents are all of so grave an order as to imperil the appellant's sense of personal safety, mental happiness, job satisfaction and reputation. Her once-too-frequent apologies do not reflect genuine contrition but were merely impromptu devices to tide over a crisis temporarily.

52. The next question for consideration is whether the appellant had at any time condoned the respondent's cruelty. Under Section 23(1)(b) of the Act, in any proceeding under the Act whether defended or not, the relief prayed for can be decreed only and only if "where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty".

53. The respondent did not take up the plea in her written statement that the appellant had condoned her cruelty. Probably influenced by that omission, the trial court did not frame any issue on condonation. While granting a decree of judicial

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separation on the ground of cruelty, the learned Joint Civil Judge, Junior Division, Poona, did not address himself to the question of condonation. In appeal, the learned Extra Assistant Judge, Poona, having found that the conduct of the respondent did not amount to cruelty, the question of condonation did not arise. The High Court in second appeal confirmed the finding of the first appellate court on the issue of cruelty and it further held that in any case the alleged cruelty was condoned by the appellant. The condonation, according to the High Court, consisted in the circumstance that the spouses cohabited till February 27, 1961 and a child was born to them in August 1961.

54. Before us, the question of condonation was argued by both the sides. It is urged on behalf of the appellant that there is no evidence of condonation while the argument of the respondent is that condonation is implicit in the act of cohabitation and is proved by the fact that on February 27, 1961 when the spouses parted, the respondent was about 3 months pregnant. Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of Section 23(1)(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be

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decreed only if we are satisfied "but not otherwise", that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty."

19. In the light of the above settled proposition of law, in the instant case it is axiomatic that the appellant has condoned the alleged act of cruelty of the respondent and continued the marital life. Hence the alleged instances of cruelty prior to 03.07.2010 cannot be taken into consideration.

20. The Family Court has recorded a finding that it has made effort for reconciliation on several occasions; however it failed despite the respondent's willingness to join the appellant.

21. The appellant has also failed to prove the ground of desertion as the petition is filed on 19.10.2013 making averment that the respondent left the matrimonial home on 05.04.2013 which is approximately about 6 months before filing the petition.

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22. The Family Court on meticulous appreciation of evidence on record has recorded a finding that the appellant has failed to prove the grounds for dissolution of marriage on the ground of cruelty and desertion. The aforesaid findings do not suffer from any infirmity warranting interference on this court in this appeal.

23. For the aforementioned reasons, we do not find any merit in this appeal. The same fails and is hereby dismissed.

Sd/-

JUDGE Sd/-

JUDGE NG CT: DMN