Karnataka High Court
Sri. Kiran C vs Smt. Latha T G on 7 April, 2016
Bench: N.K.Patil, Rathnakala
®
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF APRIL 2016
PRESENT
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
MISC. FIRST APPEAL NO.6507/2015 (FC)
BETWEEN:
SRI KIRAN C.
S/O R.CHANDRAKANTH
AGED ABOUT 42 YEARS
R/O NO.36, 11TH CROSS, A-1 BLOCK
III STAGE, VIJAYANAGAR,
MYSORE - 570 017. ...APPELLANT
(BY SRI M.S.BHAGWAT, ADV.)
AND:
SMT.LATHA T.G.,
W/O KIRAN C.,
AGED ABOUT 40 YEARS
R/AT C.S.P.T.COLONY JOG FALLS,
SAGAR TALUK, SHIMOGA.
OFFICE AT
JUNIOR SYSTEM ANALYST
MAHATMA GANDHI HYDRAL POWER PROJECT,
KPTCL, JOG, SAGAR TALUK
SHIMOGA DISTRICT - 577 201. ...RESPONDENT
(BY SRI M.RAVINDRANATH FOR
SRI DAYANAND S. PATIL, ADV.)
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THIS M.F.A. IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, AGAINST THE JUDGMENT AND DECREE AWARD
DATED 10.08.2015 PASSED IN MVC NO.297/2011 ON THE FILE
OF THE JUDGE, ADDITIONAL FAMILY COURT, MYSURU,
DISMISSING THE PETITION FILED U/S 12(1) (a) R/W 13(1) (i-a)
OF HINDU MARRIAGE ACT, FOR DIVORCE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30/03/2016 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, RATHNAKALA J.,
DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is by the husband, who is aggrieved by the judgment and decree dated 10th August 2015 passed in M.C.No.297/2011 by the Judge, Additional Family Court, Mysuru, whereby his petition for annulment of marriage/divorce is dismissed.
2. Briefly stated, the petitioner/husband filed a petition before the court below under Section 12(1)(a) read with Section 13(1)(ia) of the Hindu Marriage Act, 1955 ('the Act' for short). His case was, the parties were married on 28.6.2010 as per Hindu custom and rituals at Kukke Subramanya. He is working as Sub-Registrar in the office of the District Registrar, Mysuru and the 3 wife is working as Junior System Analyst at Mahatma Gandhi Hydral Power Project, KPTCL, Jog, Sagar Taluk, Shimoga. Prior to the marriage, the wife had assured to get transferred to Mysuru, where the husband is working or to quit the job and join him. On 28.6.2010, after the marriage ceremony at Kukke Subramanya, the newly wedded couple traveled to Mysuru and she stayed at Mysuru only for two days and returned to Sagara. In those two days also, she did not stay in the house of the husband, but stayed in her uncle's place and returned to Sagara. As per their custom, Nuptial ceremony for first night of the newly wedded was to be organized at bride's place, but they did not take any initiation and the marriage was not consummated. Two months after the marriage, the wife met him at Bangalore and informed him that she is not able to get transfer to Mysuru and not ready to quit the job. On 21.3.2011, the mother of the wife along with her cousin visited his work place, in the presence of his colleagues, quarreled 4 with him, abused him in filthy language, thereby put him to humiliation in front of others. On 23.3.2011, he wrote a letter to the wife asking her to join him but she did not reply. He filed a petition for restitution of conjugal rights at Mysuru, which was registered in M.C.No.187/2011. After few days, she along with her mother came to her uncle's house at Mysuru for discussion. She told the husband that she will make his life miserable by not consenting for divorce and not by joining him. Hence, he got the petition in M.C.No.187/2011 dismissed.
3. The wife contested the petition, denying the entire allegation leveled against her in the petition. Her case was, after marriage, though nuptial ceremony was arranged by her family members, he did not attend the same for his own reason. After receiving the notice in M.C.No.187/2011, she met the husband at Sagara Taluk. At that time, the husband demanded dowry and 5 threatened her with dire consequence. Hence, she filed a complaint to the Police in respect of the offence under Sections 498-A, 506 and 323 of IPC. It is he, who deserted and neglected her. Even now she is ready to join him in the matrimonial home. At the time of their engagement on 25.4.2010, he was unemployed and had agreed to live with her at her native place and had agreed to get transfer to Shimoga after getting the job. After the engagement he was appointed as Sub- Registrar and posted to Hunsur Registrar's office. Hence, he demanded Rs.3 lakhs, gold chain and costly suit for which her family had agreed. He teased her for not giving Rs.20 lakhs as demanded, for not knowing the status of his family and she is not suitable for him. She was made to sleep in a separate room on a mat and was sent to her native place. Thus, non-consummation of marriage is due to attitude of husband and his family members only.
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4. On the above pleadings, the Family Court framed the following issues:
"1) Whether the petitioner proves that the marriage has not been consummated owing to impotency of the respondent?
2) Whether the petitioner proves that after solemnization of the marriage, respondent has treated him with cruelty?
3) Whether the petitioner is entitled for the nullity of marriage performed on 28.06.2010 between him and the respondent?
4) Whether the petitioner is entitled for a decree of divorce?
5) What order?"
5. The parties examined themselves as PW-1 and RW-1 respectively. Documents Exs.P1 to P10 and Exs.R1 to R3 were marked. After giving audience to both parties, learned Family Court Judge has dismissed the petition.
6. Sri.M.S.Bhagwat, learned Counsel appearing for the appellant/husband submits that, it was a simple marriage in a pilgrimage centre. As per defence of wife, 7 as on the date of the engagement, the husband was unemployed, subsequently on getting married, he started demanding dowry of Rs.30 lakhs, etc. To counter the said allegation, the husband has produced Exs.P5 and P6, which would go to show that the list of Sub-Registrars was published by Karnataka Public Service Commission on 18.2.2010 much before their engagement dated 25.4.2010 and he was posted vide official memorandum dated 19.4.2010. That by itself falsifies the substratum of her contention that the husband had agreed to come and stay with her at Jog, Sagar taluk, Shimoga and on getting job as Sub- Registrar demanded for dowry. He had addressed a letter as per Ex.P3 dated 23.3.2011, which is served on her as per postal acknowledgement/Ex.P4, calling upon the wife to join him. Since she did not reply, he was compelled to file a petition for restitution of conjugal rights before the Family Court at Mysuru in M.C.No.187/2011 on 20.4.2011. When he met the wife 8 and came to know her intention of not joining him, he withdrew his petition and filed the present petition for divorce. Later he came to know that the wife after getting the notice of M.C.No.187/2011 lodged a complaint to the Police against him in respect of the offence under Sections 498A, 323 and 506 of IPC read with Sections 3 and 4 of the Dowry Prohibition Act. The Investigating Officer after investigation filed 'B' report to the Police. Despite notice of the 'B' report, she did not contest and the Court has accepted them 'B' report. A perusal of the complaint would impress that false, reckless and unbelievable allegations are made against the husband. Making unfounded allegations against the other spouse by itself is sufficient for dissolution of the marriage on the ground of cruelty as held by the Apex Court. The wife thereafter filed a petition for restitution of conjugal rights in M.C.No.44/2011 before the Civil Judge (Sr.Dn.) at Sagar and insisted the husband to join her at Jog. He is presently working at Hunsur, 9 cannot give up his employment and stay with her at her place, she is responsible for non-consummation of the marriage and denial of the matrimonial cohabitation to the other spouse is another form of cruelty. Hence, he is entitled for annulment of the marriage for non- consummation. In the alternative, dissolution of the marriage on the ground of cruelty.
7. In reply, Sri.M.Ravindranath for Sri.Dayanand S.Patil, learned Counsel for the respondent/wife submits that, for non-consummation of marriage, the husband himself is responsible by his illegal demands and untoward behaviour. He had called upon her on 7.5.2011 over phone to meet him with Rs.20 lakhs at Sagar. Accordingly, when she met him on 8.5.2011 on coming to know that she has come without money, he kicked her, when she started to weep, he pressed her mouth, he behaved rudely, that is why she was compelled to lodge complaint against him to the Police. 10 However, she did not pursue the said complaint, that is how the Police have filed 'B' report. With a fond hope of joining the husband, she has not challenged the 'B' report also. Even now she is ready to lead matrimonial life with him. There is no problem for him to take a transfer to Sagar and lead life with her.
8. In the light of the above rival submissions and on perusal of the impugned judgment and decree and also the evidence available on record, the only point that arises for our consideration is, Whether the appellant/husband has made out a case of cruelty as a ground for divorce?
9. Though the husband urged for relief under Section 12(1)(a) read with Section 13(1)(ia) of the Act, the learned Family Court Judge rightly denied to exercise the jurisdiction under Section 12(1)(a) of the Act, since it is not a case where the marriage could not 11 be consummated owing to impotency of the respondent/wife.
10. Now coming to the question of cruelty, it was an admitted case of non-consummation of marriage. It should be borne in mind that, both parties are well- educated, they were in their mid-thirties when they got married. It cannot be accepted that the husband since unemployed, during the marriage negotiation talks had agreed to come and stay with the wife at her place because the very selection process would have commenced much before the list of selected candidates was officially published. It has also come in the evidence that the wife was appointed on compassionate ground on the death of her father and she had a mother and brother in the family. Both are holding the other spouse for non-consummation of the marriage. 12
11. It was not a case of failure of consummation owing to any physical disability or psychological reasons. After the marriage, it is customary to arrange nuptial ceremony (first night) on an auspicious day for the couple to begin their marital life. Admittedly, after the marriage at Kukke Subramanya, Reception was held at the place of the husband at Mysuru and thereafter at the place of the wife at Sagar. On both dates, Nuptial ceremony was not arranged for which the parties are making allegation against each other. Their relationship did reach to personal and intimate level. On their own showing, there were negotiations, deliberations in this regard involving their extended family and friends. But neither of them opted to adduce corroborative evidence to establish their respective case. It has come in the evidence of the parties that, during the Reception at Mysuru, the wife stayed in the house of her husband for two days on 29th and 30th June 2010, but the husband did not stay in the house of the wife 13 after Reception at Sagar on 4.7.2010. Drawing inference on this factuality, learned Judge upholds the contention of the wife that though the wife stayed at Mysuru and was willing to stay in her husband's house, she was not allowed on the ground of 'Ashaadha Maasa' (inauspicious month).
12. In respect of allegation of demand of dowry of Rs.20 lakhs, since the husband was appointed as Sub- Registrar by the time of their marriage, learned Judge records that the husband and his family members did not allow the marriage to consummate. On the substratum of this finding, the learned Judge further upholds the contention of the wife that as on the date of proposal, petitioner was unemployed and the selection as Sub-Registrar was not within his knowledge; after being appointed as Sub-Registrar, he demanded dowry of Rs.3 lakhs on the date of engagement and enhanced the demand for Rs.20 lakhs on the date of the marriage, 14 otherwise he would have stayed in the house of his wife on 4.7.2010 when he attended the Reception at the bride's place on 4.7.2010. At this stage, learned Judge imputes her own perception of the circumstance that since the wife's father is dead, it will be humiliation for her to arrange for consummation of her own marriage or request the respondent to stay with her on the date of the Reception to consummate the marriage. But that was nobody's case.
13. The breach having become wide and deep between the parties, both of them averse to take transfer and join the other spouse in his/her respective place of work. Learned Family Court bails out the wife, for not joining her husband with her caring expression that 'if the wife quits such a good job and if anything were to go wrong, who will come to her rescue'. Unfortunately that was not the evidence of the wife either in her affidavit evidence or during her cross- 15 examination. It is a scaffold provided by the Court in support of wife's case. The learned Judge disbelieves the allegations of the husband that, the wife and her family members abused and insulted him at his work place and also at the house, for not lodging complaint to Police and not examining the witnesses. At the same time, she has lost sight of the fact that the wife has also not examined any of her relatives. It is not as if the wife was a lonely lady having no support and unable to arrange first night at her residence after the marriage, she has a mother and brother in the family and extended family of kith and kin.
14. After the husband filed a petition for restitution of conjugal rights at his place, on 20.4.2011, instead of contesting the petition, the wife lodges a complaint against him in respect of the offence under Sections 498-A, 506 and 323 of IPC, on 10.5.2011 in respect of incident of 8.5.2011. In the said complaint, 16 apart from allegation of harassment for dowry against the husband and his father, she alleged that, on 8.5.2011, the husband procured her to the private bus stand at Sagar, took her to Pavitravana, on Varadahalli road, harassed her for Rs.20 lakhs cash; when she pleaded inability, he assaulted her and put threat to her life. Her further statement was recorded on 13.5.2011 wherein she elaborated her allegation that at Pavitravana when she pleaded inability to pay the amount, he kicked her, when she started weeping, he pressed her mouth; while he had gone to pick a stick to beat her, she escaped. This part of the allegation for a peripheral view itself is unbelievable, unrealistic story which does not appeal to one's common sense.
15. She has shown the place of occurrence to the Investigating Officer during spot mahazar. Subsequently, on 10.5.2011 the statement of the Watchman and Forester is recorded wherein they denied 17 of any such incident having occurred at that spot on 8.5.2011. During the course of investigation, the Investigating Officer had recorded the statements of the neighbours of her in-laws, who had stated that they saw the wife only on the date of the marriage and not any more. Despite several intimation, she did not co- operate with the Investigating Officer for investigation even she did not respond when final notice of 'B' report was sent to her. On the Court summons being served, she did not appear; after adjourning the case twice for her objection statement, the Court has accepted the 'B' report, now she cannot deny the contents of the 'B' report that the allegation against the accused is not proved.
16. The learned Family Court Judge during the course of her discussion has not at all touched the impact of the complaint lodged by the wife against the husband and his father. That pales the judgment of the 18 trial court as perverse. The wife had every opportunity before the court below to substantiate her act of lodging the complaint against the husband, but she did not take care of this aspect of the matter. What amounts to mental cruelty which can form the ground for divorce is well elaborated by judicial pronouncements till now. The Apex Court in the matter of Naveen Kohli -vs- Neelu Kohli reported in (2006)4 SCC 558 recapitulated the principles of law so far crystallized by the series of judgments pronounced by it; at para-48 it was observed that, "the cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits."
17. Admittedly, the case filed by the wife under Section 9 of the Act calling upon the husband to join her at Sagar is still pending. In one breath she made 19 effort to implicate him and his father in a criminal case and in next breath she is seeking for restitution of her conjugal rights, thereby exposing her dual stands.
18. By a host of judicial pronouncements, it is now well settled that making unfounded allegations against the other spouse, lodging false complaint against the husband and his family members amounts to mental cruelty and can be a basis to seek decree of divorce. As observed above, both parties are in their mid-thirties, it is in the natural course of a husband confronted with police complaint to apprehend safety of himself in the company of his wife. In 2014(8) Supreme 36 in the matter of K.Srinivas -vs- K.Sunita, the Apex Court observed that either of the spouse filing false criminal case invariably and indubitably would constitute matrimonial cruelty entitling the other spouse to claim a divorce. The ground of cruelty urged by the husband against his wife has to be appreciated 20 in the backdrop of his age, education, social and cultural background. Dehors all other allegations made against the husband, the consequence of the wife filing a criminal complaint, which in all probability being false and concocted would definitely drive any normal person to uncompromising situation with his wife. Said act of the wife amounts to mental cruelty; there is no evidence to the effect that, the husband himself is guilty of any matrimonial offence, which necessitated the wife to lodge the complaint and subsequent to such lodging of complaint, there is no material from either side that said act of cruelty is condoned. In that view of the matter, the judgment of the Trial Court in rejecting the prayer of the husband is liable to be set aside and the appellant is entitled for dissolution of marriage with the wife.
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Accordingly, the appeal is allowed.
The judgment and decree dated 10th August 2015 passed in M.C.No.297/2011 by the Judge, Additional Family Court, Mysuru, is hereby set aside. No order as to costs.
The marriage between the appellant and respondent solemnized on 28.6.2010 at Kukke
Subramanya, is hereby dissolved by granting a decree of divorce.
In view of the disposal of the main petition, I.A.No.1/2015 does not survive for consideration and same stands disposed of.
Sd/-
JUDGE Sd/-
JUDGE KNM/-