Karnataka High Court
T.J. Kavyashree vs D. Suresh on 3 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 3206
Bench: Ravi Malimath, B M Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 03RD DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
MISCELENEOUS FIRST APPEAL NO.7774 OF 2014 (FC)
BETWEEN:
T.J. KAVYASHREE
WIFE OF D.SURESH
DAUGHTER OF JAYARAJ
AGED 28 YEARS
"AKSHAYA", 9TH CROSS
SAMPIGE ROAD, ASHOKNAGARA
TUMKUR.
... APPELLANT
(BY SRI. SANDEEP PATIL, ADVOCATE)
AND
D. SURESH
SON OF DEVENDRAKUMAR
AGED 33 YEARS
NO.822/77/1, 3RD MAIN, 4TH BLOCK
RAJAJINAGAR,
BENGALURU - 560 010. ... RESPONDENT
(BY SRI. J. PRAKASH, ADVOCATE)
2
THIS MISCELENEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF FAMILY COURT ACT AGAINST THE
JUDGMENT AND DECREE DATED 30.07.2014 PASSED ON MC
NO.122 OF 2013 ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY COURT, TUMKUR, DISMISSING THE PETITION FILED
UNDER SECTION 13(1)(ia)(ib) OF HINDU MARRIAGE ACT.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED ON 21.02.2019 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.SHYAM
PRASAD J., DELIVERED THE FOLLOWING.
JUDGMENT
The wife's petition for dissolution of marriage on the grounds of cruelty and desertion in MC No.122 of 2013 on the file of the Principal Judge, Family Court at Tumkur (for short, 'the Family Court') is dismissed by the impugned judgement dated 30 July 2014 and therefore, the wife - the appellant has preferred this appeal under the provisions of Section 19(1) of the Family Courts Act read with Section 28 of the Hindu Marriage Act, 1955 (for short, 'the H.M .Act ').
2. The wife's case is that her marriage with the respondent was solemnised on 13.6.2004 at Sri Krishna 3 Kalyan Mantap, M. G. Road, Tumkur. Her parents spent about `5,00,000/- for the wedding, and they paid another sum of `2,00,000/- as dowry to the respondent. This was in addition to the jewellery and silverware that were given by her parents at the time of the wedding at the instance of the husband and his family members. They resided together in a separate premises in the first floor of the matrimonial home for a period of one year. The husband started picking up quarrels over petty issues. The environment at home became vitiated because of the husband's conduct. The husband was advised by her elders to mend his ways and to behave like a responsible husband. But such advice did not have any effect on him, and he continued to harass her for dowry.
3. The wife was continuously threatened by her husband stating that he would put an end to her life and remarry. The husband's family members would 4 instigate him to assault her, and in the morning hours of 4.7.2008, the husband assaulted her physically. The husband acting in a premeditated manner admitted her to M/s Spandana Nursing Home stating that she was mentally unstable. She was administered electricity shock at the Nursing Home. Her family members, on coming to know that the husband was subjecting her to these kinds of extreme cruel acts, secured her discharge from such nursing home, and she was hospitalised with K. C. General Hospital, Bengaluru for treatment. When reconciliation at the instance of the elders of both the families failed, she lodged a complaint with the Rajajinagar Police Station, Bengaluru on 20.7.2008. The Police conducted investigation and filed charge sheet against the husband and his family members.
4. The penal proceedings pending in C.C.No.16237/2008 in these regards are not yet concluded. She, ever since the month of July 2008, has been residing with 5 her father. She, and her family members, are convinced that the husband would not mend his ways and she would never be safe with the husband. The marriage is irretrievably broken down because of the husband's conduct. Therefore, the wife is entitled for dissolution of the marriage both under the grounds of Cruelty' and 'Desertion'.
5. The husband, on the other hand, resisted the petition contending that both the husband and the wife started residing in a separate premises in the first- floor of his parents' house. At the time of the wedding, he was working as a Marketing Executive and the wife was working in the Accounts and Administration Department of a private enterprise. They resided together for about 3 years in the aforesaid premises. The wife gradually started visiting her uncle's place in Bengaluru frequently, and her uncle encouraged her to insist upon him to set up a separate residence. He could 6 not agree to the same because his aged parents were dependent on him. In the year 2007, the wife walked out of the matrimonial home and started residing with her uncle at Bengaluru. The wife spurned all his efforts for reconciliation.
6. The wife's conduct agonized him and he started suffering from ill health. The wife was abusive when his elders tried to impress upon her that she should not disrupt the matrimonial life insisting upon a separate residence given their circumstances. The wife lodged a false information with the Rajajinagar police, and based on such wrong information, the Rajajinagar Police registered a FIR against him and his family members for the offences punishable with Section 498-A read with Sections 324, 506 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. He was in judicial custody for about 5 days. A charge sheet is filed against him and his family members, and they are standing trial. The false 7 information with the police is followed up with the present petition for dissolution of marriage. His mother died of heart attack during this time, and she was very disturbed by the turn of events. The husband contended that he was willing to resume marital life with the wife, and he must be granted the relief of restitution of conjugal rights with the appellant.
7. The wife, apart from seeking dissolution of marriage, has also sought for maintenance stating that the husband has neglected her. She has asserted that the husband is economically in a good position. He is engaged in private business and he has an income of over `5,00,000/- per year. On the other hand, the husband has contested the claim asserting that the wife was her parents' only daughter. Her father is a retired SBM official, and her two elder brothers are highly qualified; one of her brothers is a doctor and the other is an engineer employed abroad. The wife is employed 8 with a certain M/s Bluejay Enterprises Private Limited, Rajaji Nagar Bengaluru, and she earns about `25,000/- per month. Therefore, she is not entitled for permanent alimony.
8. The wife in support of her case has examined herself as PW1, and her father as PW-2. The wife has marked the wedding invitation card, a copy of the First Information Report in FIR No. 156/2008 and a copy of the charge sheet in CC No.16237/2008 as exhibits. The husband has examined himself as RW1 and has relied inter alia upon the wife's deposition before the learned Magistrate in CC No. 16237/2008, the Letter of Employment dated 8.12.2006 issued by M/s Entask Electrics Private Limited, a CT Scan Report, the Communication by the concerned for change of wife's address in the bank account and shifting of gas connection. The husband has also 9 relied upon the wife's medical records from M/s.Gunasheela IVF Centre.
9. The family Court framed the following points for its consideration:
(a) Whether the petitioner (the wife) proves that the respondent (the husband) treated her with cruelty,
(b) Whether the respondent (the husband) has deserted the petitioner (the wife) for a period of two years prior to the date of filing of the petition, and
(c) Whether the petitioner (the wife) is entitled for divorce.
10. The family Court has held against the wife both on the question of whether she is able to prove Cruelty and Desertion while observing that for Hindus marriage is a sacrament, and if the institution of marriage is allowed to deteriorate without permissible justification, there would be serious repercussions for 10 the society at large. The family Court has opined that an estranged couple make exaggerated allegations against each other, therefore, evidence will have to be examined to ascertain whether disruption of the matrimonial life would be justified. The Family Court has concluded that the wife is not able to establish by way of cogent and credible evidence either Cruelty or Desertion. Though the wife has contended that her husband had forcibly admitted her with M/s Spandana Nursing Home and was administered electric shock under the ruse that she was not mentally sound, she had not placed any evidence in this regard. Further, though the wife has contended that she and the husband lived together in Bangalore at Rajajinagar until 2008, the fact that she has got her bank account transferred to BSK 3rd Stage, Bengaluru in the year 2007 as per Exhibit R-6, and has got the Gas Connection shifted to the same address as per Exhibit R-8, establish that the 11 appellant was working and living separately even before the alleged incident. The medical record dated 26.5.2007 viz., Exhibit R-9 establish that the wife did not want to be in the family way. Yet the family Court is of the opinion that the differences between the couple are trivial, and therefore, there is no justification for dissolution of marriage either on the grounds of 'Cruelty' or 'Desertion'.
11. The points that arise for consideration in this appeal are:
a. Whether the family Court's conclusion that the appellant - the wife has filed the petition for divorce on the grounds of 'Cruelty' and 'Desertion' only because of trivial differences with the husband is based on proper appreciation of evidence on record.12
b. Whether from the evidence on record it is possible to reasonably conclude that the appellant-the wife has established 'Cruelty' and/or 'Desertion', and c. Whether any interference is called for with the impugned judgement of the family Court.
12. The wife's case for divorce is on the twin grounds of 'Desertion' and 'Cruelty', and the question whether the wife's case is premised in trivial differences with her husband or is premised in those ingredients that are necessary for grant of divorce on the grounds 'Desertion' and/ or 'Cruelty' will have to be examined in the light of the facts and circumstances of the case, some of which are admitted and some of which are disputed.
13. The admitted facts are that the marriage between the couple was solemnised on 13.6.2004. The 13 couple started their marital life in Bengaluru in a separate premises in the property owned by the husband's father. The couple do not have any children. They have been living separately for over 12-13 years. The husband, and his family members, stand trial in a criminal proceedings launched at the instance of the wife for offences punishable under Sections 324, 506, 498 (A) read with 34 of IPC in CC No. 16237/2008. The couple are educated, and hail from families that are educated and own immovable properties. The wife's father is a retired employee of M/s State Bank of Mysuru, and her brothers are professionals; one of whom is a doctor, and the other an engineer staying abroad. The husband is the only son, and he has always resided with his parents with the extended family living in the immediate vicinity. The husband and wife were in employment at the time of marriage though they contend that because of the 14 conduct of the other they were not in employment as of the date of the present petition.
14. The disputed facts are that while the wife asserts that they lived together in Rajajinagar at Bengaluru until 2008, the husband asserts that the wife walked out on him in the month of September, 2007. The wife asserts that the husband, and his family members, were insisting upon her to get financial assistance from her father, who had come into money post his superannuation from Bank, because the husband was keen on starting his own business. She was subjected to cruelty because she could not accommodate their demands. She was also ridiculed by the husband and his family members because she could not be in the family way. The husband and his family members also alleged that she suffers from epilepsy. 15
15. The husband, on the other hand, asserts that his wife's uncle encouraged his wife to insist with him to set up a separate residence. He could not concede to the same because his parents were aged and he had to stay with them. The wife, who was not happy with his decision not to set up a separate residence, walked out of the matrimonial home in the month of September, 2007. The husband contends that the wife, after walking out of the matrimonial home, was initially employed with M/s Entask Electrics Private Limited, and she later has started working with another private enterprise called, M/s Bluejay Enterprises Private Limited. The husband, further contends that the wife has embroiled him and his family members in a false criminal case alleging that on 4.7.2008, he, at the instance of his family members, assaulted the wife on her head. He and his family members got her admitted to a nursing home in the neighbourhood of the 16 residence, and in a premeditated manner lodged a complaint against the wife.
16. The husband alleges that his mother and his uncle passed away being disturbed and worried by the initiation of false cases, and the wife asserts that they passed away because of their advanced age and ailments, and she could not be held responsible for their demise.
17. The wife, while not disputing that she was employed with M/s Entask Electrics Private Limited, contends that she was assaulted and compelled to move out of the matrimonial home. The wife asserts that her complaint with the Rajajinagar police on 20.7.2008 is justified. Indeed, the husband and his family members acted in a premeditated manner in getting her admitted to the said Nursing home and getting a report from the doctors to establish that she suffered from epilepsy and 17 she was mentally disturbed. They had managed to get this report so that she could be admitted to NIMHANS, Bengaluru. Her parents had to get her discharged from the nursing home, and after she lodged a complaint with the Rajajinagar police, she was taken to KC General Hospital, Malleshwaram, Bengaluru.
18. The aforesaid allegations and counter allegations are serious in nature, and the very fact that the couple make these serious allegations against each other demonstrate that there are fissures in their relationship, and these fissures are deep. In the light of allegations against each other, and the pending criminal proceedings, it would indeed be difficult to imagine that the couple will ever be able to come back together to lead happy and harmonious life. The Family Court ought to have seen that even as of the date of its judgement, the husband and his family members were 18 standing trial in a criminal proceedings with the wife justifying the initiation of the criminal proceedings and the husband blaming the wife for the death of his mother alleging that his mother breathed her last being worried by the turn of events, including the initiation of criminal proceedings. In the considered opinion of this Court, the Family Court could not have dismissed these differences either as trivial differences or as normal wear and tear in a relationship. Therefore, the first question is answered holding that the differences between the wife and the husband are not trivial differences, and the Family Court has erred in dismissing the petition for divorce on such ground.
19. A spouse seeking dissolution of marriage on the ground of Desertion will have to establish that • the other spouse has deserted him/her for a continuous period of not less than two 19 years immediately preceding the date of petition for divorce, and • that such spouse has forsaken the company without reasonable cause and consent, or against the wish of the complaining spouse.
The first requirement flows from the provisions of Section 13(1)(ib) of the H. M. Act, 1955, and the second requirement flows from the Explanation appended at the end of Section 13(1) of the Hindu Marriage Act, 1955. Further, it has been settled by a catena of decisions, starting with the decision of the Hon'ble Supreme Court in Bipinchandra Jaisinghbhai Shah v. Prabhavathi1 and Lachman Utamchand Kirpalani vs. Meena2 that 'Desertion', for the purposes of seeking divorce under the provisions of the H M Act means the intentional permanent forsaking and abandonment of 1 AIR 1957 SC 176 2 AIR 1964 SC 40 20 one spouse by the other without the other's consent and without reasonable cause, and that Desertion need not be by a single act, but could be because of a continuous course of conduct established in the facts and circumstances of each case. The Desertion can also be brought about by the deserter spouse's words and conduct that would compel the other spouse to leave the matrimonial home, and such Desertion would be Constructive Desertion
20. The wife's case is that she was being harassed by the husband and his family members for dowry, and on 4.7.2008, the husband, at the instance of his family members, assaulted her and got her admitted to a neighbourhood nursing home. There she was administered electric shock, and a report was secured from the doctors to establish that she suffered from epilepsy and she was not in a sound state of mind. While she was in this nursing home, a police constable 21 informed her that a complaint was registered against her by her husband and therefore, she had to get herself discharged from the nursing home. She and her family members being convinced that there would be a threat to her life if she were to cohabit with the husband, and also because she was subjected to cruelty for dowry, she initiated criminal proceedings. As such, she was compelled to walk out of the matrimony. The husband has deserted her for over 2 years as on 11.3.2010 (the date of filing of the petition). Thus, the wife is essentially alleging Constructive Desertion.
21. It is based on these allegations as well, the criminal proceeding in CC No. 16237/2008 is pending adjudication. But for the purposes of this case, it would suffice to note that, as observed by the family Court, the wife, who relies upon the aforesaid circumstances to justify her case for grant of divorce on the ground of 22 Desertion, has not summoned the records from the nursing home or produced records that would vindicate her stand. She has also not examined any witness in support of this case, except her father. It was incumbent upon the wife to produce cogent and credible evidence in this regard because this facet is integral to her case for separation (and therefore, for Constructive Desertion) inasmuch as, if these circumstances are established, it would justify her case that she was driven out of the matrimonial home and her life would not be safe if she were to join her husband. On the other hand, the husband's testimony is that the wife walked out of the matrimonial home in the month of September, 2007 and she started residing with her uncle, and because she was residing with her uncle at BSK 3rd Stage, Bengaluru, she got the Bank Account and the Gas Connection, initially availed at the matrimonial address, transferred to that address. The 23 husband's testimony that the wife walked out in September 2007 and not in July 2008 is corroborated by Exhibits R-6 and R-8.
22. In the absence of any evidence by the wife to substantiate her case of assault, admission with the nursing home and administration of electric shock and generation of report to show she is mentally ill, and in the light of the material on record which established that the wife had got her bank account and gas connection transferred much prior to this alleged incident, it would not be possible to conclude, on the scale of preponderance of probabilities - the measure of evidence in civil cases - that the husband forced her out of the matrimonial home in the month of July 2008. Further, according to the wife, the husband compelled her to leave the matrimonial home on 04/05.07.2008, and because of her circumstances, she lodged a complaint with the Rajajinagar police on 20.7.2008. It is undisputed that the jurisdictional police took the 24 husband into custody, and he was behind bars for about 5 days. The jurisdictional Police have filed a charge-sheet against the husband and his family members. In these circumstances, the separation between the couple during the period between 20.7.2008 (the date of complaint with the jurisdictional police) and 11.3.2010 (the date of petition for divorce) cannot be reasonably construed as abandonment of the relationship by the husband, or that the wife has any reasonable cause to live separately. As such, the wife is not able to establish the necessary ingredients of abandonment by her husband for a period of over two years immediately preceding the date of filing the petition for divorce on the ground of Desertion. Therefore, no interference is called for with the impugned judgement as regards dismissal of the petition for divorce on the ground of 'Desertion'. 25
23. The Hon'ble Supreme Court in Samar Ghosh vs. Jaya Ghosh3, after discussion of the law in the United Kingdom as well as United States of America as regards the expressions 'cruelty'/'legal cruelty' has declared that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. The Hon'ble Supreme Court has further declared that no Court should even attempt to give a comprehensive definition of mental cruelty emphasizing that Human mind is extremely complex and human behaviour is equally complicated, and human ingenuity has no bound. Therefore, the concept of Cruelty differs from person to person depending upon his upbringing level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their 3 (2007) 4 SCC 511 26 value system. As such, the prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking the aforesaid factors into consideration. While indicating instances that could indicate cruelty, the Hon'ble Supreme Court has, amongst others, held that, ''Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration on one spouse caused by the conduct of other for a long time may lead to mental cruelty'. Further, the Hon'ble Supreme Court in Raj Talreja vs Kavita Talreja4 has held that 'Cruelty' in matrimonial cases would mean absence of mutual respect and understanding leading to embittered relationship and outburst of behaviour. 'Cruelty 'can take the form of physical violence and it can also take some other form. In some cases, it may be just attitude or approach.
4 (2017) 15 SCC 801 27
24. The family background of the couple has already been discussed. They are educated and they hail from well-to-do families. It is admitted that the couple started their matrimonial life staying in a separate accommodation. It is part of the evidence that in the initial years after marriage, the couple opened a joint locker facility which they operated together and the wife opened her savings account with the matrimonial address. The couple also availed gas connection at that address in the name of the wife. These circumstances show that the couple began their marital life on a good note. However, from certain circumstances, as established by evidence, it is obvious that the couple drifted away from each other ultimately landing themselves in a very embittered situation. It is undisputed that the wife, who was employed before the marriage, stopped working after marriage but resumed working after a break of almost two years. The wife has 28 gradually got her Bank Account and Gas connection transferred from the matrimonial address. Though the wife has stated that she was being ridiculed because she could not be in the family way, the Exhibit R-9 medical records from M/s Gunasheela Surgical and Maternity Hospital, Bengaluru in the early part of 2007, which are undisputed, demonstrate that she was not keen on conceiving and she wanted to avoid pregnancy for a further one year. Though the wife has contended that she was subjected to cruelty because there was a demand for dowry, and in fact, dowry was paid, insofar as this matrimonial case, there is no such evidence. The circumstances under which the couple parted are discussed supra. These circumstances speak of a relationship worsening gradually with the wife taking definite steps to set up a separate life.
25. As delineated above with reference to the decision of the Hon'ble Supreme Court, Mental Cruelty 29 could be a state of mind, and a state of mind brought about by deep anguish, disappointment and frustration. If the wife, given her circumstances, including the family background, has initiated steps to commence a separate life, and also lodge criminal prosecution (which of course will have to be decided by the competent court in the manner known to law) and seek dissolution of marriage, it can be reasonably inferred that she was impelled by reasons of anguish, disappointment and frustration. Though no specific instances of actual cruelty by the husband is established, it can also be reasonably inferred that the reason for the wife's anguish, disappointment and frustration must have been the husband's approach and attitude; otherwise it would be very difficult to conclude that she without any justification would have taken such extreme measures after having begun matrimonial life on a good note, especially when no motives are alleged against her. 30 These circumstances have not been examined by the family Court in the light of the law declared and settled. If the circumstances are thus considered, it will have to be concluded that the appellant has made out a case for dissolution of marriage on the ground of 'Cruelty'. The second question is answered accordingly. In the light of the evidence on record as regards the wife's family background, her education and the undisputed fact that she was working before marriage, and she has worked even after marriage, and in the absence of any specific evidence of the income of the husband, this Court is of the considered opinion that no orders are required for permanent alimony to the wife from the husband.
For the foregoing, the appeal is allowed in part, and the impugned judgement and decree dated 30.7.2014 in MC No. 122 of 2013 on the file of the Principal Judge, Family Court at Tumkur, is modified 31 allowing the petition for divorce under section 13(1)(ia) of the H. M. Act, dissolving the appellant's marriage with the respondent solemnized on 13.6.2004 on the grounds of cruelty. No order as to costs.
The office to draw decree accordingly.
Sd/- Sd/-
JUDGE JUDGE
nv*