Karnataka High Court
Sri N Shivaprabhu S/O Sri Nagarajappa vs Smt Rashmi @ Siddalingamma on 6 December, 2013
Bench: K.L.Manjunath, A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF DECEMBER, 2013
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
M.F.A. NO.4603/2012 (FC)
BETWEEN:
Sri N.Shivaprabhu
Aged about 38 years
S/o Sri Nagarajappa
R/o No.79
Sri Lakshmivenkateshwara Nilaya
1st Main, Hebbal
Guddadahalli, R.T.Nagar
Bengaluru-32. . . . Appellant
(By Smt.Poornima M., Adv.)
AND:
Smt.Rashmi @ Siddalingamma
Aged about 31 years
D/o Sri Niranjan Murthy @ Madappa
R/o No.788/112, Model House,
12th Cross, Ramanuja Road,
Agrahara, K.R.Mohalla
Mysore-570 004. ... Respondent
(By Sri T.Rajaram, Adv.)
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This MFA is filed under Section 19(1) of Family
Court Act against the judgment and decree dated
24.02.2012 passed in M.C.No.404/2009 on the file of
the Judge, Family Court, Mysore, dismissing the
petition filed under Section 13(1)(ia)(ib) of the Hindu
Marriage Act.
This appeal having been heard and reserved for
orders coming on for pronouncement of judgment this
day, A.V.Chandrashekara, J., delivered the following:
JUDGMENT
This appeal is directed against the final order passed in a matrimonial case bearing M.C.No.404/2009 dated 24.02.2012. The learned Family Court Judge, at Mysore has dismissed the petition filed by this appellant seeking divorce on the grounds of cruelty and desertion under Sections 13(1)(ia) and (ib) of the Hindu Marriage Act. Respondent herein is his legally wedded wife. Parties will be referred to as petitioner and respondent as per their status in the Trial Court.
2. The marriage of the appellant had been solemnized with the respondent on 26.03.2006 in 3 accordance with the Hindu customs. According to him, a sum of Rs.1,00,000/-was paid by his father to the father of the respondent herein to meet the marriage expenses and apart from that, the petitioner himself had spent a sum of Rs.60,000/-. It is his case that he had been providing financial assistance to the father of the respondent on various occasions. According to him, he had developed fascination towards the respondent since from his childhood and therefore, she was virtually his dream girl.
3. It is alleged by him in the petition that soon after the marriage, nuptial ceremony was performed and the father of the respondent went on postponing the said event on one ground or the other stating that days were not auspicious and that she had taken up First Division Assistant examination and KAS examination conducted by the KPSC. Ultimately nuptial programme was held in the last week of November 2006. It is 4 further alleged she has refused to co-operate with him and co-habitat with him, stating that she was not in a mood. In spite of the hostile attitude of the respondent and her father, petitioner waited for her nod in order to co-habitat with her, but she never co-operated with him in regard to physical relationship. She had even gone to the extent of insisting him to undergo HIV test stating that unless she was convinced that he had not been infected with HIV virus, she would not allow him to co- habitat with her. In spite of HIV report, she was not satisfied and insisted him to undergo ELISA Test and other tests. He had to pay in all a sum of Rs.5,00,000/- to her father in order to get over his financial crisis. Later on, he had arranged for separate house at Hebbal in Bangalore and had taken her to his new house at Bangalore. She started living with him and she continued the earlier attitude subjecting him to various types of mental cruelty. On the night of 18.12.2006 the parents of the respondent along with the Uncle of her 5 father came to Bangalore and forcibly took her with them without assigning any reasons. Since then she has not returned inspite of his several requests. On 25.01.2007 he received a telephone call from the father of the respondent that respondent had been admitted to K.R.Hospital, Mysore since she had consumed poison. Then he immediately rushed to hospital at Mysore and came to know that there was no danger to her life.
4. As the matter was going out of control, the petitioner and his parents convened panchayat to sort out the differences and panchayat was held in his native place i.e., P.G.Palya and also at Bangalore. Respondent and her father were very adamant and never bothered to hear the advice of the elders. They had demanded him to pay huge money to resume their marital relationship or else to get a divorce.
5. The engagement ceremony of the younger brother of the petitioner was scheduled to be held at 6 K.R.S. on 26.07.2011. At the instance of the respondent and her father, some police constables came in civil dress and disrupted the engagement ceremony, but any how the engagement ceremony went on. She even tried to disrupt the marriage ceremony scheduled in the month of February 2008. According to him, the respondent went to the extent of even filing a false complaint of dowry harassment against him and his parents and even got them arrested and as a result of the same, they were remanded to judicial custody. According to him, false complaints were filed by her to wreak vengeance. As there was no chance for re- conciliation, he got issued a legal notice on 23.01.2008 and notice was returned unserved with an endorsement 'not claimed'.
6. The engagement ceremony of another brother of the petitioner was scheduled to be held on 08.10.2009 and that was also disrupted due to the highhandedness 7 of the respondent and her father on a complaint being lodged with the Mahila Police Station. It is his case that she left the house with unequivocal intention to severe the martial ties and that happened on 18.12.2006 and she treated him with all cruelty. With these allegations, the appellant had requested the Trial Court to dissolve the marriage by way of decree of divorce.
7. Per contra the respondent herein also appeared before the Trial Court and filed detailed objections admitting the relationship. The allegation that her marriage was purposely postponed by her father has been specifically denied. The allegations of harassment imputed to her have also been specifically denied. The nuptial ceremony had to be arranged as the petitioner himself was not free because of his prior engagement in film shooting. The averment that she had insisted him to undergo HIV test and ELISA test has also been specifically denied. He is stated to have distorted the 8 facts to his advantage and made false allegation. It is her case that during her short stay in his house at Bangalore he started behaving inhumanly and harassing her both physically and mentally. It is her case that he had assaulted her with a stick and had caused an injury on her head and left ear and below the knee also. He is stated to have made an attempt to take away her life. Having come to know of the injuries sustained by her, her parents and brothers came and took her to Mysore. Only personal belongings were taken by her and not other articles. It is her averment that he never bothered her back to matrimonial home. Inspite of several panchayats convened and advises being given he did not take her back and she became desperate and adamant to commit suicide by consuming poison on 25.01.2007 and that she was saved due to timely intervention of her parents. The allegation that she had demanded to pay a sum of Rs.5,00,000/- to her father is also specifically denied. 9
8. The petitioner had coerced her to give her consent for a mutual divorce and when she refused to give him divorce and when she expressed her willingness to join him he became angry and still continued harassment. With these averments she had requested the Court to dismiss the petition.
9. Ultimately the petitioner came to be examined as PW1 and the respondent and two witnesses have been examined on her behalf. Eight exhibits have been got marked on behalf of the petitioner and six exhibits have been got marked on behalf of the respondent.
10. After hearing the arguments, the learned Trial Judge has dismissed the petition by formulating the following three points:
(i) Whether the petitioner/husband proves that, the respondent/wife by her willful conduct of harassment, treated him with cruelty and hence, he is entitled for a 10 decree of divorce against her, on the ground of cruelty?
(ii) Whether the petitioner/husband further
proves that, the respondent/wife is
deliberately staying away from him, by withdrawing herself from his society and thereby committed the matrimonial offence of desertion and hence, he is entitled for a relief of divorce against her, even on the ground of desertion?
(iii) For what order?
11. It is this order of dismissal of the petition filed for divorce, the present appeal has been filed challenging the same on various grounds as set out in the appeal memo.
12. It is contended that the Trial Court has not properly analysed the oral and documentary evidence in right perspective and that it has adopted a wrong approach to the real state of affairs without looking into 11 the filing of false complaints by the respondent-wife and getting them arrested and being kept in judicial custody. It is further contended that vital admissions culled out from her mouth about not joining him in the matrimonial home have been ignored. Irretrievable break down of the marriage has been ignored by the Trial Court, more so, in the light of the respondent having stayed away from him from the month of December 2006. It is further contended that vital admissions of the respondent as found in Ex.P7 that is the deposition recorded in C.Misc.No.16/2010 has been ignored by the Trial Court. The order in question is stated to be opposed to law, facts and probabilities and hence, it is prayed to allow the appeal and thereby set aside the final order passed in M.C.No.404/2009 and thereby grant a decree of divorce.12
13. We have heard the learned counsel for the parties at length and we have heard the arguments.
The following points arise for our consideration:
1. Whether the petitioner-appellant has proved the allegation of cruelty imputed to the respondent-wife?
2. Whether any interference is called for by this Court, if so, to what extent?
14. The word 'cruelty' is not defined in Hindu Marriage Act. 'Cruelty' includes mental cruelty. Mental cruelty can particularly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party.13
15. In the case of V.Bhagat Vs. Mrs.D.Bhagat reported in AIR 1994 SC 710, Hon'ble Supreme Court has explained the concept of mental cruelty. It is further held that it is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other facts and circumstances which it is neither possible nor desirable to set out exhaustively. Therefore, in the light of the principles enunciated by the Hon'ble Supreme Court in Bhagat's case, we will have to re-assess the evidence.
16. Admittedly the marriage between the parties was solemnized on 26.03.2006. Prior to the marriage both the parties had loved each other and though they 14 had loved each other, it was virtually an arranged marriage. The grouse of the petitioner is that, the nuptial ceremony was postponed on one pretext or the other and it was ultimately held in the last week of November 2006. The main grievance of the petitioner is that the respondent did not co-habitate with him properly and she went on insisting him to undergo HIV test. In spite of HIV test she was not satisfied and insisted for ELISA test. But there is no acceptable evidence in regard to the same except his oral testimony. The allegation of insisting him to undergo HIV and Elisa Tests has been specifically denied. Even in regard to the allegation that her father was demanding him to pay money and he had paid a sum of Rs.5,00,000/- prior to marriage and also paid substantial amount after the marriage, is not proved.
The assertion has only remained as an assertion on oath. She lived in P.G.Palya after the marriage for a period of 15 days. Afterwards she came back to her 15 parents house since such suggestions have been emphatically denied. Later on, she went and started living with the petitioner in Bangalore and there she stayed for 15 days.
17. According to the respondent, petitioner assaulted her and caused severe injuries and therefore, her parents and relatives came and took her back to Mysore. Since then she has been residing with her parents. Records would go to show that on 25.01.2007, she had attempted to commit suicide by taking some poison. She was admitted to hospital at Mysore and petitioner had also gone there to see her. In view of some differences between the two, panchayat had been convened in P.G.Palya. RWs.2 and 3 have spoken to that effect. Of course, both RWs.2 and 3 are related to the parties and they have only spoken about the efforts made to resolve the dispute or bring about reconciliation.
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18. Later on, she initiated proceedings under the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as the 'D.V. Act' for brevity) making not only the petitioner as a party, but his parents and brothers and sisters also as parties. She has admitted in her evidence that she had prayed the Court in the said D.V. proceedings to direct her husband to arrange a separate house for her stay in Mysore and also to direct him to pay a sum of Rs.10,00,000/- and monthly maintenance of Rs.20,000/-. This admission would disclose that she had made a huge demand. If really she was interested in getting some relief of maintenance and lumpsum amount, the relief would have been only against her husband. Instead of that, she had initiated proceedings against her in-laws and the brothers and sisters of her husband.
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19. The D.V. case is filed in Mysore and it is numbered as C.Misc.16/2010. The certified copy of her deposition and deposition of her husband are made available. Ex.P7 is the certified copy of the deposition of Sri Shivaprabhu and Ex.P8 is the certified copy of the deposition of Smt.Rashmi recorded in C.Misc.No.16/2010. Suggestions put to him that he had tortured Rashmi and had not treated her well has been specifically denied. But he has admitted that Rashmi had lodged a complaint against him in Women Police Station at Mysore and that himself and his parents and brothers and sisters are accused and are attending Criminal Court in Mysore on all the dates of hearing. Admittedly his parents and one brother are in P.G. Palya village. They have also been arraigned as parties though the reliefs sought for is virtually against her husband.
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20. What is deposed by RW1 before the Trial Court is that she was forced to file a complaint against her husband on 08.10.2009 since he had approached her many a times and calling her over phone and threatening her and her parents regarding serious consequences of not giving consent for divorce. No such document is produced on behalf of the respondent.
21. It is true that on 23.01.2008, petitioner had got issued a legal notice through his advocate about the police coming to the engagement ceremonies of his brothers and taking them to the police station and the cruelty meted out to him and his family members in this regard. Therefore, he had called upon her to give consent for divorce within 15 days of the receipt of the notice, failing which, he would be constrained to initiate legal proceedings.
22. It is her case that she did not receive a copy of the same. Of course, Ex.P2 the copy of the legal notice 19 dated 23.01.2008 is produced and had been sent through Certificate of Posting also and Ex.P4 speaks to that effect. Ex.P3 is the unserved RPAD cover addressed to his wife Rashmi. What is mentioned on the backside of the cover is that addressee did not claim in spite of the postman having gone on 25th and 28th January 2008.
23. On 09.11.2009 present petition seeking divorce was filed by the petitioner and on 08.10.2009 she chose to file a complaint against him and family members on the basis of which Women Police Station, Mysore, chose to register a case against them and chargsheeted. It is admitted by the respondent-wife that her husband and all the family members have been attending the Criminal Court at Mysore in regard to the same. It is to be seen that she has further admitted that she has filed criminal case not only against her husband, her in-laws and all the brothers and sisters of 20 her husband. They are made parties even in D.V.Act case also filed before Mysore.
24. The case of the petitioner is that he was subjected to cruelty because of these harassment meted out to him as a result of filing criminal case under D.V.Act. There appears to be a strong force in such a submission and assertion.
25. We have gone through Ex.P7, certified copy of the deposition of the petitioner-Shivaprabhu recorded in D.V. case bearing C.Misc.No.16/2010, pending before the III Addl. JMFC, Mysore.
26. In fact, to a suggestion put to him that a criminal case has been registered against him and all his family members on the ground that they were harassing him, is correct. It does not mean that they were harassing her. The lodging of the complaint was on the said allegation. Lodging of a complaint is 21 different from the cause for lodging such a complaint. The fact of the matter is that all the family members of the petitioner, though they are not involved in any manner, are being roped in the said criminal case.
27. Ex.P8 is the certified copy of the deposition of Smt.Rashmi, the respondent recorded in C.Misc.16/2010. She has been examined as RW1. She has specifically admitted that she has not lodged any complaint to the police about alleged demand for Rs.1,50,000/- as dowry and the receipt of the same by the petitioner. In page-9 of her deposition found in Ex.P8, it is forthcoming that she had lodged a complaint on 27.12.2007 and 08.10.2009 and both the days were the engagement ceremonies of the younger brothers of the petitioner and a day prior to engagement i.e., on 27.12.2007 she chose to lodge a complaint and on the basis of which, a case came to be registered in Crime No.145/2009. Of course, all the accused therein had to 22 obtain anticipatory bail. On 08.10.2009, she chose to file another complaint, the day on which the engagement ceremony of another younger brother of the petitioner had been held. She has further admitted that on the said day, his family members were taken to police station from the engagement hall. The English translation of her deposition which is in the nature of an admission found in page-9 of Ex.P8 is reproduced:
"It is true that on 27.12.2007, the day on which I filed a complaint against the fourth respondent was the day prior to the engagement ceremony of the fourth respondent. It is true that all respondents have obtained anticipatory bail in Crime No.145/2009. It is true that on 08.10.2009 was the day on which engagement ceremony of fifth respondent had been held. It is true that all the respondents were taken away to the Police Station straight from the choultry by the police."23
28. It is to be seen that she was not at all residing with the petitioner from October 2006 and she was in the house of her parents. She chose to file police complaints on the dates of the engagement ceremonies of the brothers of the petitioner.
29. As already discussed, D.V.Act case has been filed by her seeking a lump sum of Rs.20,00,000/- and Rs.20,000/- as monthly maintenance and a separate house at Mysore. This appears to be a very unreasonable demand. These aspects have not been considered in the right perspective by the Trial Court while discussing the aspect of cruelty. These acts would clearly establish the mentality of the respondent. Though she has claimed that she did no wrong, these admissions would speak volumes against her.
30. What is deposed by the respondent is that she was physically assaulted on 06.12.2006 and therefore, she had to get admitted in the Hospital. She has 24 produced Ex.R3 OPD book in respect of her admission. It discloses that she went to the hospital with history of assault made on her on 09.12.2006. In fact she went to the hospital on 19.12.2006. What is observed by the Doctor is that multiple contusions were 10 days old. If really she had been assaulted in the manner deposed by her and if really she had received such injuries, in the normal circumstances, she would have gone to the Hospital at the earliest atleast for getting treatment.
31. Ex.R1 is an endorsement issued by the Women Police, Mysore, on a petition filed by her that she had alleged that her husband was ill-treating her. On the basis of the said petition, the statements of the respondent and her parents and the petitioner were recorded and ultimately police came to know that there was minor differences between them and they had agreed to sort out. Therefore, no case was registered. If 25 it was a cognizable offence, police would have definitely registered a case.
32. The making of unreasonable and unjustifiable demand for a separate house and a sum of Rs.20,00,000/- in lump sum and Rs.20,000/- as maintenance per month and lodging complaints after complaints on crucial dates and getting the petitioner and his family members arrested and taken to the Police Station straight from the choutries, these acts would definitely amount to mental cruelty and the learned Judge has not appreciated the evidence in right perspective. It is in this regard the decision reported in AIR 1994 SC 710 V. Bhagath Vs Mrs. Bhagath. D is relevant. With this kind of mentality of the respondent, we cannot expect the petitioner to live with her as a husband. Hence, we are of the opinion that the appellant has been able to prove the allegation of cruelty imputed to the respondent satisfactorily and by 26 discharging the initial burden. Hence, we answer point No.1 in the affirmative.
Re. Point No.2:
33. In the light of the affirmative findings on point No.1, interference is absolutely called for by this appellate Court. Accordingly, appeal will have to be allowed by setting aside the judgment of dismissal of the petition. The petition filed for divorce on the ground of cruelty will have to be allowed.
ORDER
34. Appeal filed under Section 19 of Family Court Act, is allowed. Consequently, the judgment passed in M.C.No.404/2009 dated 24.02.2012 is set aside. Petition filed for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 is allowed and consequently, the marriage solemnized between the parties to this appeal at Tripurasundari Kalyana Mantapa, Industrial 27 Suburb, Vishweshwara Nagar, Mysore, on 26.03.2006 is dissolved with immediate effect.
Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE JT/-