Karnataka High Court
Mr Anand S Prabhu vs Smt Laxmi Prabhu on 15 March, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
-1-
NC: 2024:KHC:10801-DB
MFA No. 6224 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 6224 OF 2012 (FC)
BETWEEN:
MR. ANAND S. PRABHU
AGED ABOUT 37 YEARS,
S/O. LATE S.SHANKAR PRABHU,
R/AT RAMAKRISHNA,
BEHIND SHARADA NIVAS, KODIALBAIL,
MANGALORE-575003.
...APPELLANT
(BY CYRIL PRASAD PAIS, ADVOCATE)
AND:
SMT. LAXMI PRABHU W/O. ANAND PRABHU,
AGED ABOUT 40 YEARS,
R/AT: AMIN HOUSE,
KADRI KAMBLA ROAD,
MANGALORE-575002.
...RESPONDENT
Digitally (BY SRI. KETHAN KUMAR, ADVOCATE)
signed by
SHAKAMBARI
THIS MISCELLANEOUS FIRST APPEAL FILED BY THE
Location:
HIGH COURT APPELLANT UNDER SECTION 19(1) OF HINDU MARRIAGE ACT,
OF PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
KARNATAKA 29.03.2012 MADE IN M.C.NO.24/2011 (OLD NO.M.C.NO.115/2007)
BY THE COURT OF FAMILY JUDGE, D.K. MANGALORE AND ALLOW
THE APPEAL, IN THE INTEREST OF JUSTICE.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED ON 14.02.2024, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, RAMACHANDRA D. HUDDAR, J.,
DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC:10801-DB
MFA No. 6224 of 2012
JUDGMENT
The present Miscellaneous First Appeal is directed against the judgment and decree dated 29.03.2012 passed by the learned Judge, Family Court, Dakshin Kannada, Mangalore in M.C.No.24/2011 (Old M.C.No.115/2007), dismissing the appellant's/husband's matrimonial case for decree of divorce on the ground of cruelty and desertion.
2. The parties are referred to as per their rank before the Trial Court.
3. The brief relevant facts leading up to this appeal are summarized as under:
That the marriage of petitioner and respondent was solemnized on 24.07.2000 at Sanghanikethan, Mangalore, as per the rites and customs prevailing in GSB Community. It is stated by the petitioner that, prior to his marriage with respondent, he did not know anything about the family background of the respondent. As the petitioner -3- NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 attained the age of marriage, the respondent and her mother adopted blackmail tactics and made petitioner to marry respondent. It is alleged that, respondent is in no way fit as a life partner to him. It is further alleged that, she does not deserve to be his matrimonial partner and it was a great surprise for him that he married the respondent. According to him, the said marriage is like a midday dream to him. He further contends that, his parents, sisters, business partners, friends and well-
wishers were against his marriage. From the date the respondent entered into the matrimonial life, his matrimonial home started deteriorating from time to time.
His parents and sisters including him experienced a totally miserable life in the hands of the respondent. He was unhappy throughout his life with the respondent. But anyhow, he tolerated the nuisance, harassment, troubles and tortures given by the respondent with a hope that in the coming days, she would improve herself.-4-
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012
4. It is an admitted fact between both the parties that, from the wedlock between petitioner and respondent, a female baby was born. At the time of filing of this petition, she was aged two years. The said female baby is now in the custody of the respondent, but the respondent never permitted the petitioner to access his child. She kept the said child with her mother and not allowing him to see the said child. There was a serious misunderstanding between them and she never gave any respect to the petitioner. After marriage, she resided with the petitioner only for a few days and, from 21.12.2004, she herself deserted the petitioner against his will and wish and started residing with her mother.
5. It is further stated by the petitioner that, when respondent was with him, she used to come to house in the evening at about 7 to 8 p.m., and used to stay there till 10.00 to 10.30 p.m. Later, she used to go back to her parental house using a car of the petitioner. Some times during night hours it happened that police seized the car -5- NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 of the petitioner when the respondent used to travel in the night hours. It is further stated that, at Mangalore, the petitioner is running a Beedi business and manufacturing Beedi. After marriage, the respondent started visiting the office of the petitioner and tried to exercise her power and control over the employees. She also created serious misunderstanding between the petitioner and his business partners. It is further alleged that she used to abuse the employees of his industry. It is stated that the petitioner has given `14 Lakh to the brother of the respondent, which is not returned. He gave the said money only at the instance of the respondent. The respondent always misused the car belonging to the petitioner which was bought by him for his business purposes.
6. It is further alleged that on 03.05.2007, the respondent unnecessarily got admitted herself in hospital with a false story of consuming poison to blackmail him and thereafter she got discharged. It is told by her that she wanted to involve him in a criminal case. It is further -6- NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 stated by the petitioner that, he has got two lockers and keys of the said lockers are retained by the respondent. In the said lockers, valuable jewels belonging to his sister and mother were kept. Without any reason, respondent has taken the said keys and despite request made by him, she has not returned the same. He suspects the respondent might have removed the gold ornaments from the said lockers.
7. It is further stated by the petitioner that, the respondent filed a petition for divorce against him in M.C.No.2867/2008 on the file of Principal Judge, Family Court, Bengaluru. She also has filed a petition in G&W No. 264/2008 seeking an order to appoint her as a guardian for minor child. In the said case, the petitioner appeared and filed his objections. He denied all the assertions made by the respondent in the said matrimonial case as well as in guardian and wards case. It is submitted that because of the attitude of the respondent, the innocent child born to them has become victim. It is prayed by the petitioner -7- NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 that because of the attitude and misbehavior of the respondent with him, the petitioner was constrained to file petition seeking divorce on the aforesaid grounds.
8. Before the Family Court, pursuant to the notice, the respondent appeared and filed her detailed objections/counter. She admitted her relationship with the petitioner. She denied the other allegations with regard to mental cruelty alleged in the petition. It is contended that, the whole allegations made against her in the petition are false, frivolous and unsustainable. It was the petitioner, who forced the respondent to get him marry. She too contends that because of the behavior of petitioner, the child has become victim and in order to gain sympathy, the petitioner has pleaded so in the petition. She denied the suggestion that, because of her entry into the matrimonial house, the life of petitioner and his family members has become miserable. It is contended that, the petitioner is not acting on his own and is only acting upon the instigation and dictate of outside sources. The said -8- NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 outside sources, which are hell bent on wrecking the marriage of the petitioner and respondent. The petitioner has not at all given `14 Lakh in the manner stated by him in his petition. There is no reason whatsoever to seek dissolution of marriage. The respondent was always happy and supportive to the petitioner and wanted to lead very blissful marital life with him. Accordingly, she spent few months with him.
9. It is contended that, the entry of lady by name Sulatha Manelkar, who herself stayed away from her husband and teen-aged daughter and entered into the life of the petitioner. This conduct of the petitioner of having relationship with the said lady proved to be nightmare to the respondent. The petitioner entering into illicit relationship with said lady has been momentarily blinded and swayed away by the sweet talks and false show of love by the said lady and therefore, he is behaving irresponsible.
-9-
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012
10. It is contended that during college days of the respondent, the petitioner always followed her and forced her to marry him. The respondent was well aware that the petitioner hails from a rich family and she thought it would not be reasonable to get into any relationship with the petitioner, even though the petitioner compelled the respondent's parents to perform her marriage with him. The marriage has taken place at Mangalore and it was like a fairy tale wedding with over 2000 invitees. All the expenses were borne by the respondent's parents. The petitioner used to tell her that, her life would be like a dream after marriage, but her life has become a nightmare. The family members of the petitioner used to taunt and insult her about her simple background.
11. The petitioner started openly flaunting extra marital life with Mrs.Sulata Manelkar, who also has litigation with her husband and discarded her teen-aged daughter and openly involved in illicit relationship with the petitioner. Thus, it is under the influence of his paramour,
- 10 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 the petitioner threw the respondent out of matrimonial house and consequentially she started residing with her child in her parental house. The respondent has experienced miseries because of the attitude of the petitioner against her. Now she and her child have become destitutes. The petitioner is living in adultery. He has used his money power.
12. After amendment of the petition averments, additional counter was also filed denying all the assertions made in the amended petition and the contentions of permanent alimony and she requires that much of money. According to her, she never intended to put an end to her marriage but the petitioner is threatening to take back the child and pressurized her to concede to his illegal demands. Therefore, amongst other grounds by denying all the allegations with regard to cruelty and desertion, it is prayed by the respondent to dismiss the petition.
13. To substantiate the assertions made in the petition, the petitioner himself entered the witness box as
- 11 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 PW1, also examined one witness by name P.Raghuveer Nayak in the shape of PW2 and got marked documents as per Ex.P1 to Ex.P15 and closed his evidence. To rebut the evidence of the petitioner, the respondent herself entered the witness box as RW1. She also examined one witness by name H.Ramaraya Kini as RW2 and got marked documents as Ex.R1 to Ex.R41 and closed her evidence.
14. On hearing the arguments of both the sides, the Trial Court based upon the rival contentions of the parties, raised three points for consideration. They read as under:
POINTS
1) Whether the petitioner proves that the respondent has treated him with cruelty?
2) Whether the petitioner proves that respondent has deserted him for continuous period of not less than two years immediately preceding the presentation of petition?
3) Whether the petitioner is entitled for decree of divorce?
15. The Trial Court, upon hearing the arguments and perusal of the evidence placed on record, answered all
- 12 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 the points for consideration in negative and ultimately dismissed the petition. This is how the petitioner is now before this Court challenging the dismissal of his petition seeking divorce against the respondent.
16. The learned counsel for the appellant submits that, the Trial Court came to the conclusion that the petitioner has failed to prove the plea of cruelty as well as desertion so pleaded in the petition. So far as question of desertion is concerned, it is observed by the Trial Court that, the plea of desertion is also not proved in accordance with law. It is held that, it was the petitioner, who threw out the respondent from matrimonial home. As a result, the Trial Court disbelieved the evidence of the petitioner.
17. Learned counsel for the petitioner-husband submits that, the judgment under appeal is not in consonance with the evidence available on record. The allegation so leveled against the petitioner that, he was having illicit relationship with one Mrs.Sulatha Manelkar is misconstrued and is not true. It is further contended that,
- 13 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 it was the misbehavior of the respondent with the petitioner and his family members, which put the petitioner into mental torture and agony. It was the respondent-wife, who neglected the petitioner and deserted him. He contends that, the very attitude and behavior of the respondent amounts to cruelty, which is not appreciated by the Trial Court. He submits that he was subjected to mental cruelty by the respondent. He further submits that, the petitioner has taken care of the respondent and medical expenses of his daughter. He has paid amounts whenever there was demand by the respondent. In support of his arguments, he relied upon the following judgments:
i) Samar Ghosh v. Jaya Ghosh1
ii) Sh.Ashok Sharma v. Smt.Santosh Sharma2
iii) Amit Vinay Welangi v. Nupur Amit Welangi3
iv) K.Srinivas Rao v. D.A.Deepa4
v) Rupa Mahajan v. Satish Mahajan (MFA
No.10709/2011 (FC) D.D.17.02.2016) 1 (2007) 4 SCC 511 2 AIR 1987 Delhi 63 3 2018 SSC online Kar 3876 4 AIR 2013 SC 2176
- 14 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012
18. As against this submission, the counsel for the respondent submits that the judgment and decree under challenge does not require any interference by this Court. The allegation of cruelty i.e. misbehavior alleged against the respondent in attending the office of the petitioner and subjecting the employees of industry to torture never constitute cruelty. He further submits that whatever allegations so made by the petitioner against the respondent are far from truth. The respondent-wife never deserted the petitioner-husband and she is still ready to resume conjugal rights. It is further submitted that the mother of the petitioner used to ill-treat the respondent. Whatever the petition being filed by the respondent before the Family Court were withdrawn by her as she wanted to lead happy marital life with the petitioner, but, because of illicit relationship maintained by the petitioner with one Mrs.Sulatha Manelkar, she is residing in her parents' house. Wantonly she never deserted the petitioner. The allegation that there is breakdown of marriage between the petitioner and the respondent is not true.
- 15 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012
19. In support of their respective submissions, the learned counsel for both the sides relied upon various pleadings, both oral and documentary evidence and also the findings of the Trial Court.
20. Having heard the arguments advanced by the learned counsel for both the sides, the only point that would arise for our consideration is:
"Whether the appellant-husband has proved the cruelty and desertion in the manner alleged in the petition?"
21. Our answer to the above point is in the negative for the following:
REASONS
22. Here, it would be apt to appreciate the scope and intent of cruelty within the ambit of Hindu Marriage Act, 1955 (for short "the Act"). 'Cruelty' is not defined under the Act but, it is one of the grounds under Section 13 (1)(i-a) of the Act on the basis of which, the divorce can be granted. On perusal of the laws in various
- 16 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 judgments, it is stated with regard to cruelty as human conduct or behaviour in respect of matrimonial duties and obligations and such a conduct adversely affects the other. Cruelty can be of two kinds. One is physical and another one is mental. It is easy to prove physical cruelty with direct evidence. But, it is really difficult to prove the mental cruelty with direct evidence as mental cruelty impacts the mind of one side of the married couple by the other side, which is of such a nature that a reasonable conclusion can be reached by the affected side that, it is not possible or it is not safe to reside in the company of other side, who has inflicted cruelty.
23. So far as 'cruelty' under Section 13(1)(i-a) of the Act has been analysed in the case of Praveen Mehta vs. Indrajith Mehta5. Paragraph 21 of the judgment reads as under:
"21. Cruelty for the purpose of Section 13(1)(i-
a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is 5 (2002) 5 SCC 706
- 17 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
24. 'Mental Cruelty' has been elaborated by the Hon'ble Supreme Court in the case of V.Bhagath v. D.Bhagath6. Paragraph 16 of the judgment reads as follows:
6
1994(1) SCC 337
- 18 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 "16. Mental cruelty in Section 13(1)(i-a) can broadly 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. 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 relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
25. Similarly in the case of Savitri Pandey vs. Premachandra Pandey7, the Hon'ble Supreme Court held that `Cruelty' can be treated as mental cruelty when the husband or the wife, who has claimed dissolution of marriage on the ground of mental cruelty, has 7 (2002) 2 SCC 73
- 19 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 apprehension in his/her mind that it is harmful and injurious in the company of other side. However, it is well settled that, the cruelty largely depends on the living condition of the parties to which they are accustomed to or their economic or social conditions or their culture or human values to which they attach importance. Hence, each case has to be decided on its own merits. The daily wear and tear cannot be treated as mental cruelty.
26. The word `cruelty' has been analyzed by the Supreme Court in the case of A.Jaychandra v. Anil Kaur8. Paragraph 10 of the said judgment reads as follows:-
"10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, 8 (2005) 2 SCC 22
- 20 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes."
27. In the present case, the only allegation of cruelty is, as the petitioner had attained marriageable age, the respondent and her mother kept an evil eye and adopted black-magic. They were able to capture his mind
- 21 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 and made him to give his consent for the marriage with respondent; the respondent started calling him every now and then and started emotional blackmail on him saying that her father cannot afford her marriage expenses as they had financial problem. He himself did not know what made him to give his consent to marry the respondent. It is his allegation that, the entire family was against his marriage with the respondent. Even the date for marriage was also fixed against the will and wish of his relatives and friends. Before the marriage, his entire relatives brought pressure on him to drop the marriage. According to him, it was really a great surprise for him that he agreed to marry the respondent. It was nothing but a midday dream. She pressurized him to marry her and he only has to borne all the expenses of marriage towards purchase of gold, sarees, arrangement of wedding hall and catering expenses etc., without his parents' knowledge. It is his allegation that, realizing his mistake he refused to marry her but the respondent threatened that if he refuses to
- 22 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 marry her, she is going to commit suicide. He got scared of his family reputation and Society.
28. It is his allegation that, from the date the respondent entered his life, his situation started deteriorating from time to time. The life of petitioner and his parents was totally miserable being in the hands of the respondent. He himself and his parents, sisters started to pass their days with misery. Right from the date of marriage, he has passed his days with a story of disguise and humiliation. But what type of humiliation and what type of misery he passed, is not explained either in his petition or in the evidence. Simply it is alleged that he himself and his family members suffered humiliation in the hands of the respondent. His allegation is that under pressure, he married respondent and spent all the expenses pre-supposes that, he had a clear intention to marry respondent and even though his family members opposed the said marriage, he married the respondent. But it seems that to gain sympathy, he might have
- 23 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 pleaded so. This possibility cannot be ruled out. It is further stated by him that, he had hope that better sense will prevail upon the respondent. With that hope, he tolerated all the nuisance, harassment and tortures. He alleges that the situation did not improve. With regard to birth of female child he admits. According to him, the respondent made him to pay the hospital charges during delivery of child and other expenses. Even he has taken care of the first birthday expenses of his daughter. Respondent practiced emotional blackmail on the petitioner and caused him mental harassment. She started demanding money from him. According to him, he has paid `20 lakh to the brothers of the respondent by name Gurudatta Pai and Umesh Pai. Said amount is not returned.
29. He alleges that when the respondent was in the house of the petitioner, she used to come in the evening after 7.00 p.m., and leave to her parents' house at 10.00 p.m. Even in the night, she used to go back to her parents'
- 24 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 house and once police had caught hold of her when she was travelling so in the night in the car of the petitioner. Even beat-police informed him about the same. He is running one of the leading reputed beedi business industry in the district. He alleges that soon after the marriage, the respondent started attending his office forcibly. She started to exercise control over the employees and used to dictate them and interfered with their duties. She started creating misunderstanding between the business partners of the petitioner. It is alleged that because of this attitude of the respondent, misunderstanding has been developed between himself and the respondent. It is contended that the allegations so made amounts to cruelty.
30. This petitioner has been subjected to severe cross-examination by the respondent. Though it is alleged by the petitioner that, it was respondent and her mother had an evil eye on him, but in the cross-examination he categorically states in page No.9 that, his father was having tumor and therefore, in the year 1989, he had an
- 25 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 intention to perform the marriage of the petitioner early. Therefore, he agreed to marry the respondent as per the wish of his father. This admission given by the petitioner in his cross-examination falsifies that respondent herself compelled the petitioner to marry her. For the first time, he speaks before the Trial Court that when he agreed for marriage with respondent, he had an impression that she would be his obedient wife. He cannot say that he had love and affection towards his wife. He further states that when respondent was studying in P.U.C., as he knew her, he had been under impression that she would be a good and suitable wife to him, as she has come from a middle class family. Thus, this evidence spoken to by PW1 in the cross- examination completely vanishes the pleadings of the petitioner with regard to respondent compelling and pressurizing him to marry her. He speaks with regard giving presentations in the marriage. According to him, for 3-4 months of marriage, they led very peaceful and happy life. According to him, when she used to attend the office,
- 26 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 she used to quarrel with him with regard to salary being paid to the employees etc.,
31. He denies the suggestion that he knows one Mrs.Sulatha Manelkar. He deposed ignorance about her. Further he states that, on 21.04.2005, respondent gave birth to a female child. Till such time, the relation between himself and the respondent was good. He has paid money to her brothers etc., He deposed ignorance about his love and affection with respondent and her daughter.
32. On scrupulous reading of the admissions given by PW1, in the cross-examination, it would suggest that the said grounds so stated with regard to cruelty are not at all been stated by the petitioner in a legal manner. That means, there is no legal proof with regard to the cruelty spoken to by PW1.
33. PW2-Raghuveer Naik is none else than a close relative of the petitioner. He is a chartered-accountant in the industry of the petitioner. Though he speaks in his
- 27 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 examination-in-chief about the marriage and relationship between the petitioner and respondent, but in the cross- examination, he has given a clear go-bye. He admits that the petitioner married respondent after loving her. He deposed ignorance that prior to marriage whether there was love affair between the petitioner and respondent or not. At one breathe he states that it was a love marriage, but, at another breathe he deposed ignorance with regard to the cruelty attributed against the respondent. He has completely deposed ignorance. He being a relative must have given evidence in favour of the petitioner. He is a chartered accountant taking care of accounts of the industry of the petitioner. The possibility of PW2 being tutored by the petitioner cannot be ruled out, as rightly pointed out by the counsel for respondent.
34. RW1 came before the Trial Court and deposed in line with the contents of objection statement. She denied all the allegations made by the petitioner in his petition. According to her, she resided with the petitioner
- 28 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 for some months happily and thereafter she came to know about the behavior of the petitioner, when he came into contact of illicit relationship with one Mrs.Sulatha Manelkar. She denies all the suggestions directed to her. According to her, the petitioner is having illicit relationship with said lady and living in adultery. Under the impression of his paramount, the petitioner has totally forgotten his responsibility and obligations of husband and father of a minor child. He momentarily swayed away by outside influences and acting totally contrary to his nature and domain. According to her, the minor child born to them is suffering serious eye ailment. She has to consult a doctor. There is no treatment available at Mangalore. She is a law graduate. Due to child's sensitive eye condition, she requires round the clock supervision of her daughter. The petitioner intentionally refused and neglected the responsibility of maintaining the child. She never desired to give an end to matrimonial life with the petitioner. It was the petitioner, who deserted her and not herself.
- 29 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012
35. She has been thoroughly cross-examined by the counsel for the petitioner. Though lengthy cross- examination is directed to the respondent, but, she has withstood the test of cross-examination and nothing worth is elicited in the cross-examination so as to disbelieve her evidence given in her examination-in-chief. Even with regard to behavior of the petitioner, one H.Ramaraya Kini was examined, who is relative and family friend of the petitioner and respondent. He has no transaction or business with the petitioner. He too has stated that he has personally seen the petitioner with Mrs.Sulatha Manelkar at several places. These facts have been denied by the petitioner in toto.
36. So far as documentary evidence produced by the petitioner is concerned, he relies upon Ex.P1 to Ex.P14 i.e. the account statement of HDFC bank, receipts, bills etc., These documents are not denied by the respondent. It is her evidence that till 2008, the petitioner spent the hospital expenses of his daughter. Ex.P9 is the notice
- 30 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 issued by the petitioner dated 15.05.2007 through his counsel, in which it is instructed to give co-operation to get his marriage with respondent dissolved or in the alternative to move the Court to obtain a decree for divorce. That means, by virtue of the notice at Ex.P9, he called upon the respondent to give consent for dissolution of his marriage. Ex.P10 is certified copy of the order sheet maintained in M.C.No.2867/2008 before the Family Court filed by the petitioner seeking divorce. The order sheet shows that the respondent got it dismissed as per the order sheet dated 25.06.2010. Ex.P11 is certified copy of the petition filed by the petitioner before the Family Court, Bengaluru taking similar contentions that have been taken by her in the objections to this petition. She has stated that, the petitioner is having illicit relationship with the aforesaid lady. The respondent also filed petition under the Guardian and Wards Act in G&W Case No.264/2008 wherein she sought her appointment as a minor guardian of her daughter. The other documents are the court proceedings.
- 31 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012
37. Whereas, the respondent-wife has also produced various documents to show that the petitioner is having illicit relationship with the said lady. To prove the said fact, she has produced Ex.P6 certified copy of the sale deed in the name of said lady wherein the petitioner has signed as a witness. It is her contention that the said property was presented to the said lady by the petitioner himself and it was purchased by him only. So also certain RTC extracts are standing in the name of the petitioner and one Anitha S Prabhu, K.M.Shankarprabhy etc., They are at Ex.R2 to Ex.R4. To get the properties in the name of the petitioner and others, the present petitioner arranged to file P&SC 11/2001 claiming succession certificate so also other documents are produced. It is the contention of the petitioner himself that, he attended the first birthday of the child. To substantiate the same, respondent has produced photographs at Ex.R8 to Ex.R16 wherein petitioner, respondent as well as their daughter is being seen at the time of birthday celebration. To show that the said Mrs.Sulatha Manelkar owns a vehicle, a
- 32 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 register extract issued by RTO is produced at Ex.R18, so also other documents are produced by the respondent. There is a sale deed as per Ex.P19 wherein this petitioner has been shown as attesting witness. As per the case of the respondent, it was he who purchased the said property in the name of the said lady, but to prove the same, no such evidence is placed on record.
38. To show that the petitioner is having illicit relationship with the said lady, newspapers are produced at Ex.R31 to R.35. The relevant publication is marked at Ex.R31(a) to 35(a). On reading of these newspapers and the publication, it is seen that the said news was not only published in newspapers but also telecasted in TV. It is stated in these newspapers that, an industrialist at Mangalore by name Anand Prabhu had illicit relationship with Mrs.Sulatha Manelkar and on the premise of marrying her, he has cheated her and to that effect a complaint came to be lodged. While marking of these documents, no
- 33 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 little finger was raised by the petitioner. But PW1 deposed ignorance about knowing the said lady.
39. It has come in the evidence that though the complaint was filed by Mrs.Sulatha Manelkar, a 'B' report was filed at the instance of the petitioner. Though it is alleged by the petitioner that, the respondent used to take his car during night hours, except his self-serving testimony, there is no evidence placed on record by the petitioner. Though it is alleged by the petitioner that the respondent was admitted in hospital on the guise of consuming poison to teach a lesson to the petitioner and see that a criminal case has been foisted against him, except pleadings there is no evidence placed on record. The petitioner has made so many allegations against the respondent. The evidence of PW1 and PW2 never come to the rescue of the petitioner that there was really cruelty in the manner stated by the petitioner. The evidence so spoken to by PW1 is so vague and general allegations are made against the respondent, which would not come
- 34 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 under the definition of 'cruelty' as per the law laid down by the Hon'ble Apex Court in the aforesaid judgments.
40. It has come in the evidence that he signed the sale deed, which was in the name of Mrs.Sulatha Manelkar. On that basis, while reiterating the contentions taken up in the petition, it is argued by the learned counsel for the petitioner that the marriage of the respondent has been irretrievably broken down because of cruelty. The whole allegations, as rightly appreciated by the Trial Court, are vague and general allegations. They never constitute cruelty in the manner as alleged by the petitioner. Thus, it can be stated that the petitioner is unable to prove the ground of cruelty so alleged in the petition with legally acceptable evidence.
41. Further, in the case of Samar Ghosh (supra), the Hon'ble Supreme Court has catalogued certain instances of mental cruelty. Paragraph 101 of the said judgment reads as under:
- 35 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 "101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse.
- 36 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
- 37 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
42. On application of the aforesaid principles also the instances of mental cruelty narrated above, the case of the appellant does not come within any of the instances. Rather the conduct of the appellant-husband appears unreasonable that within few days of marriage, the relationship was strained etc., Even upto the birth of a child, according to him, the relationship between himself and respondent was cordial and they led happy marital life. The mother of the petitioner was in the house, his sister was in the house and according to him, because of
- 38 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 the presence of respondent in his house, his life and the life of his family members had become miserable. To accept the evidence of PW1, no such evidence has been placed on record. Not even a single incident of miserable life being led by the petitioner is duly proved in accordance with law. Certain documents are produced by the petitioner to show about the proceedings initiated by the respondent before the Family Court, Bengaluru. But, in the objection statement, she has categorically stated that she is ready to join the petitioner, but the petitioner has got illicit relationship with the said lady. Therefore, if all these factual aspects coupled with position of law are put together, as narrated above, they do suggest that the said grounds have been made out by the petitioner for the sake of grounds and said grounds never prove the cruelty as alleged by the petitioner. Thus, the petitioner has failed to prove the ground of cruelty. This fact has been properly appreciated by the Trial Court and it has rightly come to the conclusion that the grounds so urged with regard to cruelty are not proved in accordance with law. We do not
- 39 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 find any factual or legal error having committed by the Trial Court in arriving at such a conclusion.
43. Insofar as desertion is concerned, the `desertion' is also not defined under the Hindu Marriage Act. For constituting the concept of `desertion', two essential contentions must precede i.e. the factum of separation and intention to bring the cohabitation permanent to an end by either of the spouse, who is claiming to be deserted, must bring the absence of a consent and absence of reasonable cause for deserting the other side.
44. The Hon'ble Supreme Curt in the case of Savitri Pandey vs. Premachandra Pandey9 at paragraph 8 has held as under:
"8. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal 9 (2002) 2 SCC 73
- 40 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 from a place but from a state of things.
Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held : (AIR pp. 183-84, para 10) "For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the
- 41 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years' period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the
- 42 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court."
45. It is well settled principle that desertion cannot be equated with the separate living by a party to the marriage. However, desertion can be constructive one which can be inferred from the attending circumstances. Admittedly, the appellant-husband claims that from 21.12.2004 the respondent left the house and deserted the petitioner against his wish and will. Respondent did not seek any permission of the petitioner or his parents before leaving the matrimonial house. The respondent is now
- 43 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 staying in her parents' house and therefore, the petitioner is entitled for divorce on the said ground.
46. Whereas the respondent has denied the said allegation of desertion so pleaded by the petitioner. According to her, it was the petitioner, who threw away her out of matrimonial house and also the child by giving a threat. Because of that, she is staying in her parents' house and she has not deserted the petitioner wantonly as alleged by the petitioner.
47. Learned counsel for the appellant-husband has basically focused his arguments on the ground that the appellant-husband and the respondent-wife are residing separately since 2004 and hence, the marriage has irretrievably broken down and no useful purpose would be served to allow them to litigate.
48. Section 13 of the Act does not spell out irretrievably breaking down of marriage as the ground for desertion of marriage. However, in many cases, the
- 44 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 Hon'ble Supreme Court in exercise of jurisdiction of Article 142 of the Indian Constitution has dissolved the marriage on the ground of irretrievable breakdown of the same. The 71st Report of Law Commission of India briefly dealt with the concept of irretrievable breakdown of marriage, which was submitted to the Government on 7th April 1978. In this report, it was recommended that, in last few decades it is found that, matrimonial suits are being filed in many courts less on the principles and based on the fault of party's theory and more on the doctrine of irretrievable breakdown of marriage. Hence, the number of matrimonial proceedings based on theory or fault of the party has been outnumbered by the irretrievable breakdown of marriage theory. Hence, recommended for incorporation of doctrine of irretrievable breakdown of marriage as a ground under Section 13 of the Act for dissolution of marriage. However, it has not been incorporated till date.
49. Likewise, in several cases, the Hon'ble Supreme Court has exercised its power under Article 144 of the
- 45 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012 Indian Constitution. But in this case, the petitioner- husband has not proved the desertion in the manner stated by the petitioner in his petition. The plea of the respondent that the petitioner was in illicit relationship with a lady is a mere allegation based upon newspapers etc., it is so argued by the learned counsel for the petitioner. The law is that the pleading without evidence to prove the same has no meaning. Therefore, except making a ground of desertion, no other grounds have been made out by the petitioner. Therefore, if all these factual features are put together, the ultimate analysis based upon the aforesaid discussion in this case is that, although irretrievable breakdown of marriage is not one of the grounds indicated under section 13 or section 13(1)(i-b) of the Act for grant of divorce. The said doctrine can be applied to either of the said two provisions only where the proceedings are before the Supreme Court. Therefore, the plea of the petitioner cannot now be accepted.
- 46 -
NC: 2024:KHC:10801-DB MFA No. 6224 of 2012
50. In view of all these factual features, as rightly observed by the Trial Court, the petitioner has utterly failed to prove his case with legal evidence. In the present case, when the daughter of the petitioner and respondent must have become major now, therefore, we are of the view that no useful purpose would be served at this stage to allow the marriage to be dissolved. Both the appellant- husband and respondent-wife have still occasion to ponder over the whole issue and take positive steps. It appears that though certain mediations have been taken place in between them, but of no avail. Even then the time has not been lost. In the circumstances, we do not find any merit in the appeal and it is liable to be dismissed. With this view, we answer the point for consideration in the negative. Resultantly we pass the following:
ORDER
i) The appeal filed by the appellant-
husband under Section 19(1) of the Hindu Marriage Act, 1955 is hereby dismissed.
- 47 -
NC: 2024:KHC:10801-DB
MFA No. 6224 of 2012
ii) The judgment and decree dated
29.03.2012 M.C.No.24/2011 (old
M.C.No.115/2007) by the Principal Judge, Family Court, Dakshina Kannada, Mangalore is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE YAN/SK/-