Karnataka High Court
Lalita Bai W/Oveershetty Dhanashetty vs Veershetty S/O Shankreppa Dhanashetty on 24 January, 2013
Bench: N.Kumar, H.G.Ramesh
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
DATED THIS THE 24TH DAY OF JANUARY 2013
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.G. RAMESH
MISCELLANEOUS FIRST APPEAL No. 30270/2012 (MC)
BETWEEN:
Lalita Bai W/o Veershetty Dhanashetty
C/o Chandrashekar Tambake,
Age: 33 years, Occ: Nil,
R/o. Talmadagi, Tq: Humnabad,
Dist. Bidar-585326.
... APPELLANT
(BY SRI. SACHIN. M. MAHAJAN, ADV.)
AND:
Veershetty S/o Shankreppa Dhanashetty
Age: 40 years, Occ: Service of Village Kanaji,
Service in office of Asst. Executive
Engineer of GESCOM,
(KPTCL) O and M. Sub Division at Aurad (B),
Tq: Aurad. Dist: Bidar-585427.
...RESPONDENT
(BY SRI. RAVINDRA REDDY, ADV.)
This MFA is filed u/s 28(1) of Hindu Marriage Act against
the Judgment and award dated: 14.12.2011 passed in
M.C.No.1/2011 on the file of the Senior Civil Judge Humnabad,
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wherein allowing the petition filed u/s 13 of Hindu Marriage
Act.
This MFA coming on for hearing this day, N.KUMAR, J.
delivered the following:
JUDGMENT
This appeal is preferred against the order passed by the Senior Civil Judge, Humnabad, granting a decree of divorce and dissolving the marriage dated 3.6.1996 between the parties.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original proceedings.
3. The petitioner - Veershetty married the respondent - Lalita Bai on 3.6.1996 at Yenkamma Temple in Hudgi Village as per the customs and rites prevailing in the community. They led a happy married life for about 4 years. During the said period, the respondent gave birth to a son and daughter by name Chanbasava and Soumya. The case of the petitioner is that, the father of the respondent was often visiting their house and demanding money on the ground that he being an agriculturist there is no sufficient rainfall for which he is in need of money. Petitioner gave some money to his father-in-law 3 till son and daughter were born to him. Thereafter, it became very difficult to give him money. Therefore, the father-in-law took the respondent under his control and changed her mind. After the birth of the children her behaviour with the petitioner changed. She started to treat the petitioner and her mother-in- law in an abnormal manner. She started giving ill treatment to the petitioner and her mother-in-law by using abusive and filthy language on several occasions. She forced the petitioner to give some money to her father and when he was unable to do so she left the house of the petitioner and started residing in her parental house. The respondent at the instigation of her parents was not ready to comply the marital obligations with the petitioner. The petitioner with the help of elderly persons requested the respondent to join his company but the respondent did not heed to the request of elderly persons. On the contrary, at the instigation of her parents she filed false civil and criminal complaints against the petitioner and her mother- in-law. Petitioner filed CC No. 179/2004 on the file of the Addl. JMFC, Humnabad, wherein a conviction order was passed against the petitioner on 10.11.2004. He preferred an appeal challenging the conviction order. Thereafter, the petitioner also 4 filed O.S. No. 185/2001 before the Prl. Civil Judge (JD), Humnabad, seeking the relief of permanent injunction against the respondent restraining him from marrying second wife, even though the petitioner had not made any of his mind to have a second wife at that time. Respondent also filed O.S. No. 36/2001 before the Civil Judge (SD) Court, B.Kalyan Camp at Humnabad along with son and daughter seeking the relief of maintenance. She has also filed Criminal Miscellaneous No. 16/2003 before the Addl. JMFC, Humnabad, under Section 125 of Cr.P.C claiming maintenance amount against the petitioner. In that petition Addl. JMFC Court, Humnabad, passed an order on 17.3.2005 awarding the maintenance amount at the rate of Rs.500/- per month to the respondent till her death and at the rate of Rs.250/- per month to the son and daughter from the date of petition till attaining the age of majority by the son and till the marriage of the daughter. Further, the respondent also filed Crl. Misc. No. 41/2005 before the JMFC Court, Humnabad and got recovered a sum of Rs.33,250/- towards the arrears of maintenance from the petitioner. In order to give mental harassment to the petitioner the respondent by taking undue advantage of the decree passed in O.S. No. 185/2001 by the Prl. 5 Civil Judge (JD), Humnabad, filed a false petition before the PSI Chintaki Police Station, Aurad-B and has made the petitioner to give an undertaking before the said PSI that he will not take any second marriage. Thus, she has given mental harassment by filing false litigations. The marriage between them is broken down and the respondent has willfully deserted the petitioner without there being any justifiable grounds. Therefore, he filed the petition for divorce.
4. After service, respondent entered appearance. She filed the statement of objections. She admitted the marriage and birth of children. However, she has denied allegations of cruelty alleged against her. It is her specific case that, after the birth of the son and the daughter, the petitioner and her mother-in-law started causing cruelty with an intention to take second wife, since the petitioner is sadist. She tolerated the ill treatment caused by the petitioner with a hope that the petitioner will improve and stop causing cruelty to her. Without any fault of herself the petitioner started beating the respondent after the birth of the second child. He started mental and physical harassment to her. He drove the respondent out of the 6 house. It is the petitioner who deserted the respondent without any lawful cause. The filing of the criminal cases and suit are all admitted. The petitioner caused continuous cruelty to her and drove her from his house by threatening to take away her life. So, the petitioner himself deserted the respondent. Therefore, she sought for dismissal of the petition.
5. The trial Court on consideration of the aforesaid rival contentions formulated the following points for consideration:-
(i) Whether the petition filed by the petitioner under Section 13 of the Hindu Marriage Act deserves to be allowed?
(ii) What order?
6. In order to establish his claim, the petitioner examined himself as PW1. He produced 2 documents-Exs.P1 and P2. On behalf of the respondent she examined herself as RW1. No documents were produced.
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7. The learned trial Judge on consideration of the aforesaid material on record held that the litigations started by the respondent are ended in her favour. Petitioner was convicted. Suit for maintenance decreed. Application for interim maintenance under Section 125 Cr.P.C was granted. When the said amount was not paid she executed the said order and recovered the said money. All this clearly shows that the respondent is not interested in living with the petitioner and these acts of initiation of legal proceedings amounts to cruelty. The respondent has not made any effort to join with the husband. It shows non-intention of joining him and therefore, the case of divorce is proved. Further, it held that the parties are litigating for 10 years and living separately. Marriage is irretrievably broken and therefore, the relationship is strained and no useful purpose would be served if they are put to live together. Therefore, he proceeded to grant a decree of divorce. Aggrieved by the said judgment and decree, the wife has preferred this appeal.
8. Learned counsel for the appellant submitted the wife was constrained to initiate legal proceedings to protect herself. 8 She had filed a suit for maintenance when the husband deserted her and her children. When an attempt was made to marry second time, she was constrained to file a suit to prevent him from marrying and because of the cruelty inflicted on her she was constrained to file criminal complaint. This cannot be construed as an act of cruelty. All that she was doing was to assert her rights and seek the remedies which are available under law. Therefore, he submits the case of cruelty said to have been made out as recorded by the trial Judge is erroneous. In so far as desertion is concerned, the cause for desertion is the petitioner's violent act and therefore if she is not able to join her back that cannot be held against her. On the contrary the petitioner has not produced any material on record to show that she deserted him voluntarily without any intention of leaving him and therefore he submits the order passed by the trial Judge is erroneous and requires to be set aside.
9. Per contra, the learned counsel for the respondent submitted that, the material on record discloses that wife filed a criminal case and an order of conviction was passed, filed suit and obtained injunction. She filed execution petition and 9 recovered the money through execution. This is not what is expected of a wife. It only shows wife has no respect for the husband. Respondent is bent upon filing litigation after litigation. This, as rightly held by the trial Judge constitutes cruelty. She is admittedly living separately for 10 years. She has made no effort to join the husband. Therefore, the trial Judge rightly held that desertion is proved and as the relationship between the parties is strained, no case for interference is made out.
10. In the light of what is stated above, the points that arise for consideration in this case are as under :-
1. Whether the petitioner has made out a case of cruelty to enable him to get a decree for divorce?
2. Whether a case of desertion is made out as held by the trial Court?
11. POINT No. (1):- From the material on record it is clear that the petitioner married the respondent according to 10 the Hindu rites on 3.6.1996. She lived happily for a period of 4 years during which time she gave birth to a son and a daughter. It is thereafter trouble appears to have started. According to the petitioner, it is the respondent's father, who was demanding the money and when he refused to give the money, she refused to stay with the petitioner. The said allegation is not supported by any evidence on record. On the contrary it is the case of the wife that he started ill-treating her as he wanted to marry another lady for which she objected. His mother also joined him in ill-treating her. Initially she tolerated the ill-treatment in order to preserve the relationship. When it became impossible, she was constrained to lodge a complaint which resulted in a charge sheet being filed and after trial he was convicted. In spite of the same, when attempt was made to marry second time, she filed a suit for permanent injunction restraining him from marrying second time. An order of temporary injunction was also granted. In spite of the said order, she lodged a police complaint where he gave an undertaking that he would not marry again. Because of the litigation, he forced her out of the house. He failed and neglected to maintain her and two children. Therefore, she was constrained to file the suit for 11 maintenance. She also filed a petition under Section 125 Cr.PC claiming interim maintenance. The Court granted the decree for maintenance. When the said amount was not paid, she was constrained to file execution proceedings. All this is done because of the attitude of the petitioner in neglecting and maintaining her. In the light of these undisputed facts, the question that arises for consideration is, whether the act of lodging a complaint with the police, act of filing a suit for injunction preventing the husband to marry second time or a suit under Section 125 Cr.P.C to recover money constitutes an act of cruelty?
12. The Parliament with the avowed object of protecting the women, in particular the wife has enacted several welfare legislations and provided for maintenance to her and to her children. Section 125 Cr.P.C is one such proceedings which prevents destitution on the part of a married women. When a husband is legally bound to take care of his wife, fails and neglects to take care of the wife, a right is accrued to her to approach the Court and seek maintenance. The cause for such proceedings is the failure on the part of the husband to 12 discharge his marital obligation. When the law gives a remedy and women asserts her right, approaches the forum and establish her right and gets relief, she cannot be accused of causing cruelty to her husband. Similarly, the suit filed for recovery of maintenance for herself and her children is permissible in law and if such a suit is filed, decree is passed and if money is not paid and execution proceedings are taken, it cannot be said that such acts constitute `cruelty'. Similarly, when a wife is at fault and she seeks protection from the police and lodges a complaint and the police prosecutes the husband and the Court after enquiry convicts him, that would not constitute cruelty. These are the legal rights conferred on a Hindu wife under several legislations and if the wife asserts such rights, approaches a Court of law, it only shows her law abiding nature. Merely because a wife asserts her rights, enforces the remedy provided to her in law and if she is successful in those litigations, that cannot be held against her so as to constitute cruelty and a ground for divorce under the Hindu Marriage Act. Unfortunately, the learned Judge dealing with this matrimonial matter has lost sight of this legal aspect. He is insensitive of the suffering of the married women. He 13 seems to think that a wife should not go against husband in a Court of law. Mere going to Court constitutes `cruelty' according to him. It only shows his lack of understanding of the law, the intention behind these legislations and the need for protection of women, in particular to married women and the efforts made by progressive legislation to protect the interest of women. Therefore, the learned Judge committed a serious error in holding that these acts of approaching the Courts and getting remedy in the forum prescribed under law constitutes an act of cruelty. Therefore, the said finding recorded by the trial Judge is erroneous, unsustainable, perverse and requires to be set aside.
13. Point No. (2):- Explanation to Section 13 of the Hindu Marriage Act defines "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations shall be construed accordingly. Therefore, it is clear mere separation would not constitute desertion. Deserting 14 party should have a reasonable cause. If there is a reasonable cause to separate apart, the deserting party cannot be found fault with. It is the person who is the cause for desertion who is to be found with. At any rate the person who is the cause for desertion cannot maintain a petition for divorce when he is at fault. The evidence on record shows that the petitioner and her mother-in-law ill treated her, violence was used against her, they made her life miserable and he wanted to marry another lady. Now, the evidence on record shows that he married one Rajeshwari D/o Mallanna and has got 3 children. That explains the cruelty inflicted against her. In spite of her filing a suit to restrain him from marrying second time and an order of injunction passed, he has married the second time and has got 3 children. He is working as an Assistant Executive Engineer in KEB. The law prohibits second marriage and second marriage is no marriage in the eye of law. It only shows however high a person holds the post, his basic character does not change. He has not treated his wife properly, he has no respect for the order of the Court, he marries for the second time and has 3 children, he refuses to pay maintenance to his children and in the end of the day he wants to get rid of his wife. Hindu 15 Marriage Act is not meant for such persons. Section 13 does not come to the aid of such person who has no respect for law and who are law breakers. Unfortunately, the learned trial Judge has not properly appreciated the facts of the case in a proper perspective, has not understood the sensitivity of the matter, has not kept in mind the suffering of the women, legislations brought by the Parliament in protecting the interest of the married lady and also has not followed the law declared by the Apex Court as well as this Court and committed a serious error in passing a decree for divorce on grounds which do not constitute a valid ground for decree of divorce. Under these circumstances, the ground of desertion which is held to be made out is unsustainable and requires to be set aside.
14. For the aforesaid reasons, we pass the following order:-
(i) Appeal is allowed.
(ii) The impugned order passed by the learned
Judge dissolving the marriage is hereby set
aside.
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(iii) Petition for divorce is dismissed.
Parties to bear their own costs.
Sd/-
JUDGE
Sd/-
JUDGE
ckl