Karnataka High Court
Anirudha K vs Smita Kulkarnid/O Sri. K.Y. Kulkarni, on 22 September, 2017
Bench: L.Narayana Swamy, H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER 2017
PRESENT
THE HON'BLE Mr. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE DR. JUSTICE H.B. PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL No.103243 OF 2014 (FC)
C/W
MISCELLANEOUS FIRST APPEAL No.103244 OF 2014
BETWEEN:
Sri Anirudha K.
S/o Narasimha Rao
Age about 31 years
R/o 91/A, 22nd Cross
II-Block, Rajajinagar
Bangalore - 560 010
...Appellant
Common in both appeals
(by Ms. Deepa Udiyar for
Shri Arun Joshi and Deep S. Shetty, Advocates)
AND:
Smt. Smita Kulkarni
D/o Sri K.Y.Kulkarni
Aged about 25 years
R/o K.Y. Kulkarni
Near Asha Feeds, Thimmasagara Road
Nekar Nagar, Old Hubli
Hubli
...Respondent
Common in both appeals
2
(by Sri Mrutyunjaya S. Hallikeri, Advocate)
These Miscellaneous First Appeals are filed under Section 19
of Family Court Act, against the judgment and decree dated
28.08.2014 passed in MC No.99 of 2013; and MC No.212 of 2012
on the file of Principal Judge, Family Court, Hubli, dismissing the
petition filed under Section 13(1)(1a)(1b) of Hindu Marriage Act and
decreeing the petition for restitution of conjugal rights.
In these appeals, arguments being heard, judgment reserved
on 05th September 2017, coming on for pronouncement today,
NARAYANA SWAMY, J., delivered the following:
JUDGMENT
These Miscellaneous First Appeals are filed against the common judgment dated 28th August 2014 in MC No.99 of 2013 and MC No.212 of 2012 on the file of Principal Judge, Family Court, Hubli. MC No.99 of 2013 was filed by the husband under Section 13(1) (i-a) and (i-b) of Hindu Marriage Act, 1955 (for short hereinafter referred to as 'the Act') seeking a decree of divorce on the ground of cruelty and desertion. MC No.212 of 2012 was filed by respondent-wife under Section 9 of the Act for the relief of restitution of conjugal rights. Court below by the impugned judgment dismissed the petition for divorce and decreed the petition for restitution of conjugal rights.
2. The facts to be stated in brief for the purpose of disposal of these appeals, are as follows:
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The appellant-husband in sum and substance averred that several circumstances as stated in the petition constituted cruelty on the part of the respondent-wife. For instance, it is stated, from inception of marital life respondent was indifferent in her behaviour towards the appellant. During their honeymoon trip to Andaman island, respondent-wife made demands for financial help to her brother so as to acquire MBA degree by him and to bear the marriage expenses of her sister and on appellant-husband declining to meet the said demands, respondent extended non- cooperation and spoiled the honeymoon trip. The respondent-wife never adjusted with the appellant-husband and his family members. She did not show any interest in doing household works and aged mother of the appellant was doing all the household works and cooking and respondent-wife used to lie down the whole day with one or the other excuses. She used to be very adamant, stubborn and used to keep the appellant and his family members under constant tension. After sometime of their marriage respondent-wife tried to commit suicide by tying up her veil around her neck and also tried to commit suicide by putting her engagement ring in her mouth and chewing it. Appellant-husband 4 and his parents became panic and they rescued her and because of her attitude they have undergone tremendous mental suffering for breach of trust committed by the respondent-wife and they were afraid and upset by those incidents. On the next day of the said incident parents of the respondent-wife and her brother rushed to the house of the appellant-husband and started shouting and created a scene on the road. At the intervention of neighbours the respondent-wife and her parents apologized. This act of the respondent-wife and her parents caused torture to the appellant and his parents and lowered their dignity in the eyes of neighbours. The respondent-wife used to call the appellant- husband very often over phone when he is in office and he was not allowed to wear good clothes saying that just to attract girl friends he was wearing such dresses and the appellant was forced to change the dress. The respondent-wife used to close her bedroom door and kept everybody under tension. She was not heeding to the advise of anybody. Due to peculiar behaviour of the respondent-wife, the appellant-husband used to be under constant tension and was unable to concentrate on his job and as such he lost his job at TCS company.5
3. The respondent-wife became pregnant and went for delivery to her parental house at Hubli and underwent caesarian and gave birth to twin girl babies. The appellant-husband was very well present in the hospital and was looking after his wife and children. He borne all the medical and hospital expenses. In spite of it, respondent-wife's parents and brother made reckless allegations against the appellant-husband, thereby he was humiliated.
4. On 04th July 2011 he got information that one of the babies died and the appellant-husband came to Hubli along with his mother and consoled the respondent-wife. On the very next morning the appellant-husband had to take the respondent-wife to hospital for checkup, at that moment the respondent and her mother accused the appellant and his mother that they were responsible for the death of the baby without any rhyme or reason. The appellant and his mother were insulted and humiliated.
5. The respondent-wife contested the divorce petition denying all the above said allegations in total. The respondent has stated that there were no serious issues between them and marriage has not been irretrievably broken down and still she felt 6 that they could lead happy marital life by sorting out misunderstandings between them along with minor daughter.
6. In her petition for restitution of conjugal rights the respondent-wife has stated that after marriage both the parties started to lead their marital life. After a short period of marriage the appellant-husband started picking up quarrel with the her for small issues and used to abuse her in filthy language and started torturing her. She tolerated the same and lived with the appellant. She became pregnant. In such condition also, the appellant- husband was not taking care of the respondent and did not give her healthy food. After hearing about the ill-treatment, the parents of the respondent-wife rushed to Bangalore and took the respondent to the hospital and she was carrying twins. The parents of the respondent-wife brought her back to Hubli. Thereafter, till today the appellant has not come to see her and never cared to look after. Due to torture and ill-treatment of the appellant, the respondent got pain and gave premature delivery and the twin girl babies were not normal. One of the babies died on 27th June 2011. The respondent and her parents took every care of the baby and baby started recovering speedily. The parents 7 of the respondent-wife many a times requested the appellant- husband and his parents to take back her and lead happy marital life. All the requests made by the parents of the respondent-wife went in vain. The appellant-husband and his parents have not responded to the request of the respondent and her parents and brother. The parents of the respondent requested the appellant to take his wife and lead a marital life but the appellant-husband has not heeded to their request. Having no alternative remedy she filed petition for restitution of conjugal rights.
7. The appellant-husband filed objections to the petition for restitution of conjugal rights and reiterated the averments made in his petition filed seeking for divorce. Both the petitions filed by the appellant-husband and the respondent-wife were tried together at the instance of the respondent-wife, who filed petition before the High Court for trying the cases together, which came to be allowed.
8. The appellant-husband in order to prove his case examined himself as PW1 and three witnesses as PW2 to 4 and got marked exhibit P1 to P195. On the other hand respondent-wife examined herself as RW1 and got marked exhibit R1 to R3. 8
9. The court below, after hearing the arguments and appreciating the materials on record, has come to the conclusion that the instances alleged by the appellant do not constitute cruelty and desertion within the ambit of judicial pronouncements made by the Hon'ble Apex Court, to which a reference has been made; appellant-husband has failed to prove that he has withdrawn from the company of the respondent-wife with sufficient cause and thus decreed the petition for restitution of conjugal rights and dismissed the petition for divorce.
10. We have heard the learned counsel for the appellant- husband and the learned counsel for the respondent-wife and perused the impugned judgment. The learned counsel for the appellant-husband contended that the court below without any basis and with mere imagination decided that the respondent-wife could not have made demands as alleged by the appellant in their honeymoon trip. The appellant and his father have clearly stated about the demands made by the respondent-wife during their evidence. The incident of suicide attempt by the respondent-wife has not been considered seriously. The scene created by the respondent-wife's father is not at all considered and the 9 seriousness of attempt to commit suicide twice in a day for a silly reason within two three months after the marriage is taken lightly by the court below and further the court below observed that it not the case of the appellant-husband that the respondent-wife is having suicidal tendency and all such allegations of the appellant- husband are false. The court below failed to understand the mental cruelty caused to the appellant-husband and his aged parents by the respondent. The court below blindly believed the respondent- wife's version despite having observed that the respondent denied everything including established fact that the appellant-husband had incurred the entire hospital expenditure, delivery, further treatment of pre-mature babies, medicine etc. The evidence of PW4 is brushed aside by the Court as hearsay evidence. It is erroneous. The learned Judge of Family Court has failed to consider the fact that action of the respondent-wife and her parents led to mental agony of the appellant-husband and his parents. The Trial court has unnecessarily tried to cast aspersions and insinuations on the family of the appellant-husband by stating that the appellant's father had two wives and all is not well within the family of the appellant-husband. Without any evidence the 10 trial court made a passing remark that the respondent-wife has tolerated cruelty of the appellant-husband and his parents. The court below has erroneously observed that the appellant wanted to get rid of the respondent-wife which is nothing but a high imagination without an iota of evidence. Thus the learned counsel seeks to set aside the impugned judgment and to decree the petition for divorce dismissing the petition for restitution of conjugal rights.
11. On the other hand, the learned counsel for the respondent-wife supported the impugned judgment and sought for dismissal of both the appeals. The court below has properly considered each and every aspect of the matter and has reached to right conclusions. There is no error or illegality in the impugned judgment so as to call for interference.
12. The point that arises for consideration is, whether the trial court has committed any error or illegality in passing the impugned judgment so as to call for interference? Our finding is in the negative for the following reasons:
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It is the case of the appellant-husband that the respondent- wife did not co-operate when they were on honeymoon trip keeping some of her demands to be fulfilled. PW1 reiterated the petition averments in his affidavit filed in lieu of chief-examination. It is stated that she was not taking care of him and even not showing love and affection towards him when they were on honeymoon. He was totally disappointed and when he refused to fulfill her demands on the ground that he having no money, she even insisted him to demand for the monthly pension of his father. PW1 was cross examined. He denied that he himself made galata with the respondent and on account of his adamant nature whole honeymoon trip was spoiled, he was not at all speaking with the respondent in whole trip properly and he was always speaking with his parents on his mobile phone. He also denied that the respondent-wife never made any demands. He further deposed that he cannot remember that the respondent-wife's sister was studying in ninth standard at that time.
13. PW2 who is one of the friends of the appellant-husband, has supported the case of the appellant in his examination in- 12 chief, but he was not tendered for cross-examination. Therefore, evidence of PW2 is of no assistance to the appellant.
14. PW3 is father of the appellant. He has filed his affidavit evidence in support of oral evidence of the appellant. In the cross- examination he has stated he does not know the age of respondent's sister at the time of marriage. He does not know that her sister was studying in ninth standard at that time. He denied that he created a false story by colluding with his son. PW3 was not a party to the honeymoon trip. Therefore, his say is only a hearsay so far as the demands said to have been made by the respondent-wife and spoiling of honeymoon trip.
15. RW1, who is the respondent, has denied the allegations made by the appellant in his petition as well as in his evidence that from the beginning of their marital life she was indifferent in her behaviour. She denied the allegations that she made demands as stated by the appellant-husband. She has stated right from the beginning she loves the appellant and she co-operated and adjusted with the appellant in leading the marital life. In the cross-examination RW1 has denied that she never adjusted with the appellant-husband in their honeymoon trip and she always 13 picked-up quarrel with the appellant and she was forcing him to agree to fulfill her demands and due to her adamant nature their honeymoon trip was spoiled.
16. The marriage of the appellant and respondent was solemnized on 27th October 2010 at Hubli. Immediately after the marriage, they went to honeymoon to Andaman island. It is not the case of the appellant that the respondent is his distant relative, he knew her and her family very well from the beginning and there is close contact between them, as such the respondent could make all those demands. Therefore, the court below rightly concluded that it was improbable for the respondent to make such demands that too in the honeymoon trip.
17. It is the contention of the appellant that the respondent was not showing any interest in doing household work and she used to lie-down the whole day. PW1 has stated in his evidence that the respondent never adjusted with his family members. She always made galata with him and his family members and she never helped his mother in doing household work and preparing food. On one Friday evening when mother of the appellant- husband asked the respondent to put red bindi while doing pooja, 14 the respondent-wife made it very big issue with the appellant. It was suggested to PW1 that the respondent-wife tried to make new dish in the kitchen then his mother made it a big issue why she prepared food without her consent and went out of the house and appellant asked the respondent to go and bring back his mother; and his mother never allowed the respondent to make anything independently without her consent. It was also suggested, the appellant always harassed the respondent at the instigation of his mother. All these suggestions are denied by PW1 as false.
18. PW3 has also stated that respondent-wife was not assisting or co-operating with his wife in any of the household work and would lie-down for the whole day. After delivery, they tried to talk to her but she used to be very adamant and would end up in quarrel and because of her attitude, there was no free atmosphere in the house. In the cross-examination, he denied that they themselves harassed the respondent without any reason. The respondent even though tried to adjust with them she was never allowed to mingle with the appellant and they themselves picked up quarrel. PW3 has also stated that the respondent led happy life with them for six months and after she became 15 pregnant, they happily sent her to parental house for delivery. There is nothing in the evidence of PW3 that being a head of the family he made any attempt to take back the respondent-wife and child.
19. RW1 has stated in her evidence that after she became pregnant and after treatment, her husband sent her to her parental house for delivery and she gave birth to twin girl babies and her husband stayed with her only for two days in the hospital and thereafter he want to Bangalore and never returned to take her back. In the cross-examination, RW1 has denied that she never adjusted with the appellant and his family members and she was always making galata. Therefore, there is no material to prove the contention that the respondent never adjusted and she was always making galata and she never did any household work. There is also absolutely nothing on record to show that the respondent made the change of bindi, as stated by mother of the appellant, a very big issue with the appellant. Nowhere it is suggested to RW-1 that she made a big issue when her mother-in- law asked her to change red bindi at the time of pooja. 16
20. It is the next circumstance alleged by the appellant that after one or two months from the date of marriage, respondent tried to commit suicide thereby the appellant and her family members undergone tremendous mental suffering. According to the appellant, one day when the appellant was in deep sleep the respondent woke him up and the appellant was shocked to see that the respondent was trying to commit suicide by tying up her veil around her neck. On the same date, after two hours the respondent again woke him up and at that time she had put her engagement ring in her mouth and was chewing it. The appellant had rescued her. PW1 in his cross-examination has stated that the said incidents were taken place in the afternoon and therefore no neighbours came to his house. He has also stated that he has not lodged any complaint with the police. He has denied that the alleged incident did not take place and he is deposing falsely.
21. PW3 has also stated in his cross-examination that no complaint is lodged against the respondent before the police. PW4, tenant of the appellant, no doubt, has supported the oral evidence of the appellant, but he is only a hearsay witness and his evidence is of no much assistance to the appellant.
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22. The respondent in her evidence has denied all these allegations in total. It is not the case of the appellant that respondent attempted to commit suicide frequently. He has neither called the neighbour to advise the respondent or lodged any complaint before the police. Therefore, this allegation of attempt to commit suicide was rightly disbelieved by the court below.
23. It is the further contention of the appellant that parents of the respondent and brother rushed to the house of the appellant and started shouting and created a scene on the road. The evidence on this aspect by the appellant is not supported by the oral evidence of any independent witness except PW3-his father. The evidence of PW4 showed that he heard loud voice from the house of appellant. The court below took it that when the elders of both families exchanged their views, may be during the course of such talks, parties might have lost temper and used words which they should not have intention to use it. The respondent has denied all these allegations in total. If there is difference of opinion between elders of both families, it does not mean that appellant is entitled for decree of divorce against the respondent. 18
24. It is next contended by the appellant that respondent used to call the appellant very often over phone as and when he used to leave the office. The appellant was not allowed to wear good dresses saying that just to attract the girl friends he is wearing such dresses and appellant was forced to change the dress. Because of the tension meted out to the appellant he could not concentrate in his office work and standard of performance at the work place which has resulted in his losing the job at TCS company. The appellant has not produced any document to show that he lost his job in TCS Company. He has not produced any documentary evidence regarding the change of job assignment. In the absence of materials, the court below has rightly held that the respondent was not responsible for appellant to lose his job at TCS company.
25. The appellant has produced documentary evidence as to his spending towards medical expenses of the respondent. These documents produced by the appellant showed that he paid hospital and medical expenses. It is contended by the appellant that the respondent has denied the established fact of his spending for hospital and medical expenses and therefore, her case could 19 not have been believed. She was a respondent in the petition filed by the appellant seeking for divorce. It is the appellant, who has filed the petition, has to prove his case independently.
26. The appellant has also contended that when he got information of death of one baby he went to Hubli along with his mother. Then respondent and her parents abused the appellant and his mother that they are responsible for the death of baby. They were insulted and humiliated. The respondent has denied all these allegations. The respondent gave birth to a pre-mature twin girl babies and one baby died within a week. Naturally, respondent and her parents would have become upset by the act of the appellant that within two days of delivery he left Hubli. The respondent parents exchanged their views. May be during the course of such situation, they might have lost temper. The dispute between elders of both families cannot be a ground to grant divorce. The exchange of SMS between appellant and respondent showed that appellant had married the respondent at the compulsion of his parents and against his will and wish. The respondent married the appellant against the will and wish of her parents. Therefore, she cannot live in her parental house, and the 20 appellant is not ready to take her back. The condition of the respondent is held to be miserable one. It is the view of the court below, the appellant cannot punish his wife and minor daughter for no fault on their part. The appellant has led marital life with the respondent till May 2011. Therefore, he has condoned the alleged acts on the part of the respondent. Once he condoned her omission and continued marital life with her, he cannot make a U turn. It is to be mentioned here that trivial irritation quarrels, normal wear and tear of the marriage life which happen in day-to- day life would not be adequate for grant of divorce on the ground of mental cruelty. The matrimonial life should be reviewed as a whole and viewing isolated instances over a period of time will not amount to cruelty. It is well settled that standard of proof require in a case of cruelty need not be overemphasized though strict proof of beyond reasonable doubt as required in a criminal case is not necessary, the preponderance of probability at least should indicate that the respondent-wife treated the appellant-husband with cruelty and deserted him or that the matrimonial offence has been committed.
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27. In the instant case, except the self-serving testimony of PW1 and his father-PW3 that the respondent-wife behaved cruelly and she deserted the appellant, there is absolutely no other independent or cogent evidence adduced by the appellant to prove the case. As already stated evidence of PW2 is of no assistance to the appellant. Another independent witness PW4 is a tenant of the appellant and he is only hearsay witness and interested witness. From the evidence of PW3, it has come out that appellant was engaged with a girl of Belgaum and after six months appellant cancelled the said engagement. The evidence of PW3 also revealed that he had two wives and he had two children from first wife and they were living separately and there is no cordial relationship with his elder son and daughter with his second wife and younger son who is the appellant herein. The evidence of PW1 and PW3 showed that all is not well in the family of the appellant himself. It is the contention of the appellant that the court below made unnecessary aspersions and insinuation on the family of the appellant. To test trustworthiness of a witness, it is permissible to elicit from the mouth of a witness as to his social status and family relationship. 22 The court below has reason to hold that all is not well in the family of the appellant.
28. On careful reading of the evidence of the appellant it can be seen that he has reiterated all the allegations made in his petition. It is not the case of the appellant that the respondent used to do any overt act of cruelty against him. The allegations made by the appellant are the omissions on the part of the wife in taking care of him and nothing more. According to him, the parents of the respondent insulted and humiliated him and his parents. According to PW1 and PW3 the respondent's parents came to Bangalore and made galata in front of their house on the road, insulted them and created a big scene. But the evidence of PW4 shown that he heard loud voice from the appellant's house and he went to appellant's house and seen respondent's parents and others. Hence, the allegation of the appellant that respondent's parents came to Bangalore and made galata in front of the house of the appellant on the road is not proved by the appellant. It is pertinent to note that there might be galata between the family members of the appellant and the respondent, but it is not a ground to grant divorce as is rightly held by the court below. 23
29. The evidence of the appellant and respondent showed that the appellant used to come late in the night and playing Guitar at 12.00 in the night and he was always harassing the respondent at the instance of his mother. On careful reading of evidence of PW1 and PW4 court below also rightly came to the conclusion that the appellant has failed to establish that he was subjected to mental cruelty by the respondent-wife.
30. The appellant sent the respondent for delivery in the Month of May 2011 to her parental house. The respondent gave birth to a pre-mature twins on 21st June 201 and out of them one baby died within a week. Thereafter, in spite of repeated requests and demands made by the respondent and her parents, appellant did not make efforts to take her back and filed this divorce petition within a span of one year of his marriage. The cause of action shown in the petition is stated to have arisen from the date of inception of marriage.
31. Desertion of spouse for a period of more than two years has been made a ground for divorce under Section 13(1)(1b) of the Act. Desertion is the separation of one spouse from the other with an intention to bring cohabitation permanently to an end without 24 reasonable cause and without consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party. It is for the husband to prove that the wife kept away from his society without reasonable cause and without his consent or against his wish. Husband must also show that desertion is for a period of more than two years preceding presentation of the petition. The marriage of the petitioner and the respondent was solemnized on 27th October 2010. The petitioner sent the respondent for delivery in May of 2011. She gave birth to pre-mature twins on 21st June 2011. The appellant filed the present divorce petition on 21st November 2011 within a span of six months. Cause of action shown in the petition was from the date of marriage. Both, the pleading and evidence of the appellant, make it clear that there was no desertion by wife for a continuous period of not less than two years immediately preceding presentation of the petition and that too to put an end permanently to the matrimonial relationship. If that be an undisputed fact, the husband could not have sought divorce on the ground of desertion.
32. The oral and documentary evidence available on record showed that the appellant withdrawn from the society of the 25 respondent without any reasonable cause or excuse. The oral evidence of the respondent showed that she is always ready and willing to join the company of her husband. In spite of repeated requests and demands the appellant has not made any efforts to take her back. When she was yet to recover from the mental shock and tension, and thinking over health condition of her another baby, the appellant filed the petition for divorce and court issued notice to her. This caused great shock to her; therefore she was constrained to file petition for restitution of conjugal rights. Evidence of PW3 also disclosed that after the baby died till today they have not made any efforts to bring back the child and his daughter-in-law. Just because married spouse are living separately for a period of one year, i.e. from the date of delivery, it cannot be held that the marriage is irretrievably broken down and that is a ground for granting a decree of divorce. The appellant has failed to prove any of the ground of cruelty and desertion urged by him for dissolution of marriage by a decree of divorce.
33. Considering the entire evidence on record it is clear that respondent-wife has proved that the appellant-husband has withdrawn from her society without reasonable excuse. 26
34. In the circumstances, the court below is justified in rejecting the petition for divorce and decreeing the petition for restitution of conjugal rights. No error or illegality could be found in the judgment of the court below so as to call for interference by this Court. The court below has tested each allegation with available material and has reached to right conclusions. The point raised for consideration is accordingly answered in the negative.
35. In the result, these appeals fail and they are accordingly dismissed.
Sd/-
JUDGE Sd/-
JUDGE akd*