Karnataka High Court
Aishwaraya vs Santoshkumar on 6 July, 2023
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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NC: 2023:KHC-K:5207-DB
MFA No. 200839 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISC. FIRST APPEAL NO. 200839 OF 2022 (FC)
BETWEEN:
1. MRS. AISHWARAYA W/O SANTOSHKUMAR
D/O BASAVARAJ PASARI,
AGE 31 YEARS OCC: PRIVATE JOB NOW NIL
R/O NAUBAD BIDAR,
NOW AT H.NO.2-2-152 SUBHASH GUNJ
ZAHEERABAD TOWN - 502220.
SANGAREDDY (TELANGANA)
...APPELLANT
(BY SRI. JAIRAJ K BUKKA., ADVOCATE)
Digitally signed by
SACHIN
AND:
Location: HIGH
COURT OF
KARNATAKA
1. MR. SANTOSHKUMAR S/O SIDRAMAPPA YERNALLY
AGE. 39 YEARS, OCC.MEDICAL PRACTITIONER
R/O H.NO.19-5-45, MADHAVNAGAR NAUBAD
BIDAR-585401.
...RESPONDENT
(BY SRI. RUDRESH H.B., ADVOCATE)
THIS MFA FILED U/S 19(1) OF FAMILY COURT ACT,
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE PASSED BY THE HON'BLE PRL FAMILY COURT AT
BIDAR IN MC NO.170/2020 DATED 27.01.2022 AND THEREBY
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NC: 2023:KHC-K:5207-DB
MFA No. 200839 of 2022
RESTORE THE MARRIAGE OF APPELLANT AND RESPONDENT
WHICH IS SOLEMNIZED ON DATED 11.04.2018, IN THE
INTEREST OF JUSTICE.
THIS MFA HAVING BEEN HEARD, RESERVED FOR
JUDGMENT, THIS DAY, RAMACHANDRA D. HUDDAR J.,
PRONOUNCED THE FOLLOWING JUDGMENT THROUGH VIDEO
CONFERENCE:
JUDGMENT
The appellant-wife has filed this appeal under Sec. 19(1) of Family Courts Act being aggrieved and dissatisfied by the judgment and decree passed in MC No. 170/2020 dated 27.01.2022 by the Prl. Family Judge, Bidar decreeing the petition filed by respondent-husband under Sec.13(1) (ia) of Hindu Marriage Act, 1955 dissolving their marriage solemnized on 11.04.2018 between petitioner and respondent.
2. Parties to this appeal are referred as per their rank before the Family Court.
3. The brief facts so stated by the petitioner in the petition are as under:
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 That petitioner and respondent are legally wedded husband and wife. Their marriage was performed on 11.04.2018 at Shetkar Function Hall, Zahirabad, Telangana State as per rites, rituals and customs prevailing in their community. It is alleged that, no children are born out of their wedlock. After marriage, both were residing at Bidar. The respondent stayed in the house of the petitioner for seven days to perform the marriage rituals. There was no co-habitation or performance of any conjugal rights during that period.
After seven days, she went back to her parental house. Thereafter, till 24.6.2018, she visited the house of the petitioner for 3 to 4 times and used to stay for one night only on each of her visit. It is alleged that, on 23.6.2018, being her fourth visit to the house of the petitioner, she demanded the petitioner to be separated from his parents and join at Bengaluru with her where he was working. Prior to that, she had promised the petitioner to give up her job at Hyderabad and join with him at Bengaluru. She exhibited herself as belonging to rich family and -4- NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 condemned the family status of the petitioner. She had concealed the fact of her short sightedness and unable to see even the objects kept at a distance of 4 to 5 ft. Ultimately she deserted the petitioner on 24.6.2018 and went away to her parents house. She used to insult him, behave rudely with him and also insulted his parents.
4. Though the meetings of reconciliation were conducted but, she was reluctant to join the petitioner to lead happy marital life. Even the petitioner came to know that the respondent was suffering from incurable disease by name `Nystagmus + /High Myopic'. To cure the said disease, she refused to undergo medical treatment though the petitioner had deposited the necessary fees for MRI scan etc.. She demanded Rs.30 lakhs from the petitioner in a counseling held at Town Police Station, Bidar and defamed him and canvassed through audio calls to her friends, officials of the petitioner, colleagues and relatives making false allegations against him alleging that petitioner is impotent. Though she knew that petitioner -5- NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 was a potent man, she intentionally made such allegations before her friends and relatives to defame his image. She also filed a false dowry case against the petitioner.
5. It is alleged that, he issued a notice dated 01.02.2019 to the respondent but, she has not responded for the same. She, as uncultured girl, used to dance in a pub/bar pretending that it is her lifestyle. She did not like cultured or orthodox family and threatened petitioner that she would commit suicide falsely implicating him giving reason for her death. There is no consummation of marriage. Thus, it is contended that, there is no possibility of leading marital life with respondent and thus petitioner- husband prayed to grant decree of divorce of their marriage.
6. Before the Family Court, pursuant to the notice, respondent has appeared and resisted the petition by filing detailed objections denying entire assertions made in the petition. According to her, petitioner is a habitual cheater of many women and girls. He is voiced to have illegal -6- NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 game and committed fraud on her with his criminal hands. He demanded lakhs of rupees from her parents for dowry and other valuables like furniture, electronic items, cloths, kitchen items. Even he demanded to bear the marriage and reception expenses. The respondent used to work at Hyderabad in a private sector and the petitioner had assured her that he would get transfer to Hyderabad. He demanded Rs.5 lakh and gold. He drove out the respondent from his house unnecessarily without any reason. It is further contended that, the petitioner has threatened her. He used to snatch her entire salary and threatened her parents for unlawful gain. Thus, it is alleged that while driving out from her house, he snatched 40 tolas of gold. Thus, it is contended, that the petitioner who has ill-treated the respondent. He used to become aggressive and used to use the violent words against her. He used to insult her and her parents. False allegations are made against her that he had suspicion on her character. Thus it is contended that petition so filed by him is not tenable and prayed to dismiss the same. -7-
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7. Before the Family Court, petitioner himself was examined as PW.1 and a witness by name Ganesh S/o. Siddramappa Yernalli was got examined as PW.2 and got marked Ex.P1 to P19 and closed petitioner's evidence. To rebut the evidence of the petitioner, respondent herself entered into the witness box and got marked Ex.R1 to R5 such as marriage card, charge sheet, copy of notice, copy of MC No.13/19 and CDs and closed her evidence. The learned Family Court, after closure of evidence of both the side having heard the arguments, allowed the petition and granted a decree of divorce of marriage of petitioner and respondent solemnized on 11.4.2018 with effect from 27.01.2022. This judgment and decree that has been challenged by respondent-wife being the appellant in this appeal.
8. It is argued by the counsel for the appellant-wife that grounds so urged in the appeal memo clinchingly establish that a false and frivolous petition was filed by the petitioner and illegally has obtained a decree of divorce. -8-
NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 Even till today the respondent is ready to join the petitioner to lead happy married life. But, the learned Family Court did not consider the true defense of the respondent and blindly believed the evidence of the petitioner. He further submits that, in view of the grounds so stated in the appeal memo and the conduct of the petitioner, this appeal deserves to be allowed and decree of divorce so granted has to be set aside.
9. As against this submission, the learned counsel for the respondent-husband submits that, on reading the findings of the Family Court, it does reveal that based upon both oral and documentary evidence, the learned Family Court has considered all the aspects of the case and has rightly decreed the petition which do not warrant any interference by this Court. He further submits that, though the appellant-wife says that she is ready to join the petitioner, but, it is just an eye-wash. It is submitted that in the hands of the respondent, the petitioner being the husband was harassed and there is no possibility of -9- NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 any re-union. The learned Family Court has rightly granted decree of divorce therefore, he prays to dismiss the appeal.
10. We have given our anxious consideration to the submission of both the side and meticulously perused the record. The points that arise for our consideration in this appeal are that;
(i) Whether the allegations made by the wife against her husband in the objection statement before the trial Court has resulted in mental cruelty as envisaged under Sec.13(1)(ia) of the Hindu Marriage Act, 1955"?
(ii) If so, whether the Family Court is justified in decreeing the petition and granting a decree to that effect?"
Re. Point Nos (i) and (ii):
Admitted facts
11. It is an admitted fact between both the side that their marriage was performed as per the rites, rituals
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 prevailing in their community on 11.4.2018 at Shetkar function hall, Zahirabad, Telangana. No children are born out of their wedlock. After marriage, she went to Bidar for 7 days and thereafter, from 23.6.2018, she is not residing with the petitioner. Petitioner is working in Bengaluru and respondent is working at Hyderabad in Private Sector. The petitioner filed the petition under Sec.13(1)(ia) of Hindu Marriage Act, 1955 seeking divorce. All the allegations so made have been denied by the respondent.
12. In the light of the submissions made by both the counsel, the pleadings and evidence with regard to allegations and counter allegations made against each other are required to be considered.
ANALYSIS
13. The specific ground made out by the petitioner in the petition is with regard to the cruelty attributed against him by respondent-wife. It is alleged by the petitioner that after marriage, when she came to his house to lead marital life, she stayed for only seven days and during that
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 period, her behavior was very rude. She used to insult him and was disrespectful towards him. She was high tempered, aggressive, violent, whimsical and quarrelsome. This attitude of the respondent was not only bad against him, but, also against the family members of the petitioner. Even she alleged that petitioner is unable to perform his marital obligations and specifically alleged that her husband is an impotent. She used to say the same publicly, defamed him. It is alleged that after she left the matrimonial home, petitioner and his family members and respondent and her family members had a meeting before the Guruji of Dattagiri Math at Navbag. Though it was decided to reconcile the dispute and respondent to join the company of the petitioner but, she went out and spoke to somebody on telephone and suddenly came and said to the petitioner that he is impotent and she is not interested to reside with him. Thus, she had expressed her feeling that she does not want to join the petitioner. She behaved harshly and compelled the petitioner to go for the test to prove his potency. Even he has obtained the report which
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 reported him to be potent. It is further alleged that respondent is also suffering from NYSTAGMUS+/HIGH MYOPIC. It is stated that the said disease is incurable. The said disease is because of nervous disorder. Doctor advised her to undergo MRI Scanning. Though the petitioner had deposited the amount towards the same but, the respondent has not undergone the MRI scanning.
14. She is also not having eye vision in the day and night hours and it is due to mental disorder. Suppressing the said fact by her family members performed the marriage of respondent with him. She also lodged a false complaint against her husband before the town police Station alleging dowry harassment demand of dowry to the extent of 30 lakhs. It is alleged that the respondent contacted all the possible friends of the petitioner and sent them the messages on whatsapp and facebook saying that the petitioner is impotent. She collected the office address of the petitioner and sent letters to the office management alleging impotency of the petitioner and have falsely
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 expressed that petitioner has spoiled her life. Even she has sent mail to the petitioner created audio calls and sent to the office address of the petitioner and even sent the same to his brother one Ganesha. By sending such false mails and messages and creating audio calls, the respondent has defamed the petitioner publicly. She is adamant and has dominating attitude. She is non- cooperative lady having suspicious attitude so also revengeful. Thus, he alleged that she refused to perform her matrimonial obligations. She also had the habit of always talking on phone/mobile. Thus, the conduct, behaviour and attitude of the respondent amounts to mental cruelty on the petitioner. On the other hand, respondent has denied all these assertions and allegations and specifically contends that she is ready to perform the marital obligations but, it is petitioner who has refused to co-habit with her. So far as sending of messages through mail, whatsapp, creating audio is concerned, she admits. But, according to her she is justified in sending the same.
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15. PW.1 being the petitioner, to substantiate his contention, has reiterated his plea in his examination-in- chief at para.4, 6 and 9 as under:
"4. I depose that I was working as a Medical Practitioner in a Private Sector at Bengaluru and after the marriage I was about to take her at Bengaluru but she was also working at Hyderabad and assured that within three months after the marriage she will resign her job and join me at Bengaluru. After the marriage myself and respondent came to Bidar in our house and stayed therein for seven days to perform the post marriage rituals. During these seven days also there was no any co-habitation in between me and the respondent. I tried to convince her but she flatly refused to perform conjugal rights by saying that she is having some health issues, she had affair with someone and on the request of her parents forcibly married me and therefore she is not prepared to have relation with me. The respondent further asked me to book one resort and make lavish arrangements and then only she will think over it.
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6. I further depose that after the marriage I came to know that she is having issue regarding the eye vision and she incapable to see anything which is at the distance of minimum 4 to 5 feet in day and night hours and her eye ball are continuously rotating. This fact was suppressed by the respondent and her family members and in this way they cheated me and my family members. After knowing this fact I was shocked but again accepted the same and asked her to take treatment and got provided treatment also from the concerned hospital at Hyderabad. But, the respondent never valued and cared me. While taking the treatment at Hyderabad I received the report of the respondent which reveals that she is suffering from NYSTAGMUS+/ HIGH MYOPIC and it is incurable and the same is due to the nervous disorder and Doctors suggested to go for MRI scan and I deposited the fee for such scanning but the respondent did not come and went to her parental house and since then she is in her parental house only. Thus since the date 24.06.2018 to till date she is residing in her parental house while deserting me.
9. I further depose that the respondent has caused great mental trauma and violence on me and my
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 family members but on the other hand she has given a false complaint U/Sec. 498-A IPC against me and my family members making the allegation of torture to her by demanding dowry by me and family members. In fact we never demanded any dowry to the respondent or her family members but by filing such a false complaint she has harassed me and my family members.
The respondent was having the revengeful attitude and threatened to commit suicide and always threatened to get my entire family implicated in false criminal case and in pursuance of the same she filed a false complaint also."
16. On the other hand, the respondent-wife in her objection statement in para.12 has stated hereunder:
"Neither this respondent suffers with such illness on eyes nor she went along with petitioner for eye check up to Hyderabad. When this respondent never told that the petitioner is impotent, then undergoing such test by the petitioner will be unwarranted. In fact the petitioner underwent for impotency test and when found that the petitioner is not impotent then he is bound to file impotency certificate. But without filing such medical/Impotency
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 certificate the petitioner alleges that he is potent having potentiality. So also without filing medical certificate the petitioner cannot say that this respondent is suffering from MYSTAGMUS PLUS HIGH MYOPIC and the said diseases is incurable and it is due to nervous disorder and doctor suggested to go for MRI scan and petitioner has deposited fee in that regard. All these baseless allegations have been made without supporting any valid medical document or records."
17. During the course of her evidence, she reiterated the contents of written objections. In para.4 of her examination-in-chief she states as under:
"I submit that after the marriage, I started residing with the petitioner - husband at his house for 7 days and during those period, there were no sexual contact and no co-habitation.
Though I was always keep ready for co-habitation but, the petitioner always refused for co-
habitation, since he has got no sexual feelings and always maintain distance with me and used to sleep separately from me. In fact, the petitioner is impotent
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 person, but, to suppress such real facts, he is making baseless allegations on me that I am always refused for co-habitation."
Thus, she reiterates that petitioner is impotent person.
18. PW.2 one Ganesha being the brother of the petitioner corroborates the evidence of PW.1 in material particulars. Though lengthy cross-examination is directed to him, nothing worth is elicited from his mouth so as to disbelieve the version given in the examination-in-chief. PW.1 being the petitioner has denied all the suggestions directed to him with regard to the allegations made by the respondent against him. Though searching cross- examination is directed to him, no favourable answers have been given by him so as to believe the contentions of respondent taken up in the objections as well as spoken to by her in her evidence.
19. As stated supra, Ex.P1 is the marriage invitation card, Ex.P2 reception card, Ex.P3 is the photograph. These
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 documents are not denied by both the side. With regard to the sending of whatsapp messages, the petitioner has produced bunch of such photocopies of said messages as per Ex.P4 which are marked without any objections from the respondent's side.
20. On scrupulous reading of bunch of Ex.P4 it does suggest that, though there was a request by the petitioner to the respondent to behave properly, undergo treatment, but, the way in which she has answered prima facie establishes that the attitude of the respondent towards the petitioner and her behaviour towards the husband was very rude. Even the petitioner has lodged a complaint before the New Town Police Station, Bidar stating that there are threat calls from unknown persons and they are visiting home giving threat to the petitioner. This is at the instance of his in-laws and the respondent. Contents of Ex.P5 being the complaint are not denied by the respondent. Ex.P6 is the copy of the notice dated 4.2.2019 issued by the Advocate of the petitioner to the respondent.
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 The second notice is at Ex.P6 and Ex.P7. These notices are not replied by the respondent. Ex.P8 is track consignment with regard to the article being sent. Ex.P9 again is the copy of the message sent to a friend of the petitioner alleging that after marriage, he started avoiding her and thereafter she came to know that he is an impotent guy and spoiled her life and career for him only she resigned her job. Thus these documents do demonstrate about the behaviour of respondent.
21. Because of such defamatory messages sent by the respondent, on 10.4.2019 the petitioner lodged a complaint before the Commissioner of Police, Dept. of Cyber Crime, Bangalore City requesting to help him against such defamatory statements and respondent harassing him through whatsapp, face book, messages and voice records etc. The said messages according to him are character assassination. Ex.P12 is the FIR to that effect. Ex.P13 is a complaint filed by the respondent against the petitioner and his family members alleging the
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 offences under Sec.498A, 420, 323, 504 of IPC. In this complaint, she has made so many allegations against the petitioner and his family members. Ex.P14 copy of charge sheet filed by the Police. Ex.P15 is a report of Yashoda Hospital showing the test being underwent by the petitioner which according to the trial Court is inconclusive. Ex.P17 is the acknowledgement. Ex. P18 is the CD containing messages being sent by the respondent. The contents of the aforesaid documents are not denied by the respondent. She justifies her action in sending those messages.
22. Though respondent reiterates the contents of her objection statement in her examination-in-chief but, in the cross examination she states that she resided with the petitioner for 7 days only and thereafter, she never resided with him. She denies her allegation that, she has falsely alleged petitioner as impotent for the first time. She admits production of Ex.P15 which shows about
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 attestation of potency. She admits contents of Ex.P4 having sent messages to the petitioner.
23. On scrupulous reading of entire evidence, it shows that the respondent's conduct towards the petitioner amounts to cruelty. Placing reliance on the contents of objection statement and the evidence of the respondent discussed supra, it is submitted by the counsel for the petitioner that act of the wife i.e. respondent amounts to cruelty to the husband.
24. So far as mental cruelty is concerned, the Hon'ble Apex Court in number of judgments have held with regard to the cruelty which includes both physical and mental cruelty enumerated under Sec.13(1)(ia) of the Act. This cruelty has to be assessed in the facts and circumstances of the case. The Apex Court in the case of Parveen Mehta vs. Inderjit Mehta1 at paragraph nos. 15, 19 and 21 held as under:
1
(2002)5 SCC (706)
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 "15. This Court in the case of N.G. Dastane vs. Dr. Dastane, examined the matrimonial ground of cruelty as it was stated in the old Section 10(1)(b) and observed that any inquiry covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live with the respondent. It was further observed that it was not necessary, as under the English law that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. In essence what must be taken as fairly settled position is that though the clause does not in terms say so, it is abundantly clear that the application of the rule must depend on the circumstances of each case; that "cruelty" contemplated is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The treatment accorded to the petitioner must be such as to cause an apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 be expected to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status, environments and social values, as also the customs and traditions governing them.
19. Clause (i.a) of sub section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla's Hindu Law, 17th Edn., Vol. II,p.91).
21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 mind of the latter that it is 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 behavior or behavioral 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 misbehavior in isolation and then pose the question whether such behavior 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."
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25. Further, it is relevant to refer a decision of Hon'ble Apex Court in Malathi Ravi, M.D. vs. B.V.Ravi 2 wherein, the Hon'ble Apex Court has categorically held in para 36 and 37 which reads as under:
"In the present case, the wife's allegations that the sister and brother-in- law of the husband used to interfere in the day-today affairs of the husband and that the sister and brother-in-law of the husband were pressurizing him not to allow the wife to prosecute higher studies and to keep her as an unpaid servant in the house were not proven. The allegation that the husband was instigated to keep her at home as an unpaid servant is quite a disturbing allegation when viewed from the spectrum of gender sensitivity and any sensitive person would be hurt when his behavior has remotely not reflected that attitude. As the evidence would show, the husband despite all his co-operation as a father, when had gone to the hospital to bring the wife and child to his house, she along with the child had gone to her parental house. This aspect of the evidence has gone totally unchallenged. Perceived from a social point of view, it reflects the egocentric attitude of the wife and her non-concern 2 (2014)7 SCC 640
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 how such an act is likely to hurt the father of the child. The next thing that has come in evidence is that the respondent was not invited at the time of naming ceremony of the child. A suggestion has been given that they did not attend the ceremony as in the invitation card the names of the parents of the husband had not been printed. It has been asserted by the husband that the said incident had caused him tremendous mental pain. Viewed from a different angle, it tantamounts to totally ignoring the family of the husband. Further, it appears that the wife went to Gulbarga to join her studies and the husband was not aware of it and only came to know when one professor told about it.
a. Thereafter he went to Gulbarga and stayed in a hotel and met the wife in the hostel on both the days. Despite his request to come to the house she showed disinclination. When he enquired about the child, he was told that the child was in her mother's house. These are the incidents which are antecedent to the filing of the petition.
b. Thus the husband has reasons to feel that he has been humiliated, for allegations have been made against him which are not correct; his relatives have been dragged into the matrimonial controversy, the assertions in the written
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 statement depict him as if he had tacitly conceded to have harbored notions of gender insensitivity or some kind of male chauvinism, his parents and he are ignored in the naming ceremony of the son, and he comes to learn from others that the wife had gone to Gulbarga to prosecute her studies. That apart, the communications, after the decree for restitution of conjugal rights, indicate the attitude of the wife as if she is playing a game of chess.
c. The launching of criminal prosecution can be perceived from the spectrum of conduct. The Magistrate has recorded the judgment of acquittal. The wife had preferred an appeal before the High Court after obtaining leave. After the State Government prefers an appeal in the Court of Session, she chooses to withdraw the appeal. But she intends, as the pleadings would show, that the case should reach the logical conclusion. This conduct manifestly shows the widening of the rift between the parties.
d. It has only increased the bitterness. In such a situation, the husband is likely to lament in every breath and the vibrancy of life melts to give way to sad story of life.
e. From this kind of attitude and treatment it can be inferred that the husband has been treated with mental
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 cruelty and definitely he has faced ignominy being an Associate Professor in a Government Medical College. When one enjoys social status working in a government hospital, this humiliation affects the reputation. That apart, it can be well imagined the slight he might be facing. In fact, the chain of events might have compelled him his self-respect and human sensibility. The sanguine concept of marriage presumably has become illusory and it would not be inapposite to say that the wife has shown anemic emotional disposition to the husband.
f. That apart, the High Court has returned a finding that the marriage has irretrievably been broken down. Of course, such an observation has been made on the ground of conduct. The Supreme Court in certain cases, has invoked the principle of irretrievably breaking down of marriage."
26. The principles and the findings of the Hon'ble Apex Court stated supra can very well be applied to the present facts of the case. Through out the objection statement and the evidence being spoken to by RW.1 indicate that it is her allegation that husband is impotent. In the cross-examination directed to her also reveal that
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 she has given instructions to her counsel to file objections. On reading the same, respondent-wife categorically stated that her husband-petitioner is incompetent to perform the matrimonial obligations and he is an impotent. Though impotency is not a ground set up by the respondent-wife, but, the petitioner has filed the petition show that the allegations so did by the respondent about his impotency amounts to cruelty.
27. Further, it can be stated that no prudent woman would think of making such allegations of such impotency in public of her husband so also in the presence of friends, relations and send messages to that effect to the superior officers of the petitioner, rather, she would take necessary steps to see that, the reputation of her husband is not affected and thrown out in public. When she complains of impotency of the petitioner to bear the children, without any proof definitely creates an intense mental agony and anguish of the husband.
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022
28. In this case also, allegations are made against the husband that he is not discharging his matrimonial obligations and he is impotent. This definitely has affected the reputation of the petitioner. When the respondent has failed to discharge the burden to prove her contents of incompetence of the petitioner in discharging the matrimonial obligations, therefore, the petitioner as per Ex.P15 has under went test. Having not proved the said allegation, this definitely amounts to mental cruelty.
29 The petition was filed under Sec.13 of Hindu Marriage Act, 1955 which does not consider the impotency as a ground for divorce. The false allegations of such impotency made by the wife as stated supra definitely cause mental agony disharmony and anguish in the mind of the husband. This would amount to mental cruelty as defined under Sec.13(1)(ia) of the Act and it enables the husband to seek divorce on the ground of cruelty.
30. As there is no evidence placed on record by respondent-wife, whatever allegations she did in her
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 evidence remained as objections without any proof. When the allegations are not proved in accordance with law which are detrimental to the dignity, self- esteem and reputation or well-being of the persons against whom they are made, the person who alleges must be careful in making such allegations. There must be sufficient evidence in making allegations if not, such allegations cannot be accepted by the Court. When such serious allegations are made, the petitioner is right in filing this petition. He has narrated all her attitude, behaviour in his petition and has reiterated the same which have not been rebutted by the respondent by adducing proper evidence.
31. So far as impotency is concerned, scientifically accepted term is `erectile disfunction' which means inability to get erection or inability to perform sexual intercourse. As impotency is a physical or mental condition, it can be proved by medical expert. But, respondent has not adduced any medical evidence. Thus, there is hostile attitude of respondent and because of the
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 same, the petitioner was subjected to serious frustrating experience and it can be safely be termed as `Cruelty' within the meaning of 13(1)(ia) of the Act.
32. Thus, contention of respondent-wife that she never refused to live with her husband cannot be accepted in view of the contentions taken up in the objections and spoken to her by in her evidence. Though it is submitted by the respondent's counsel that petitioner is unable to prove his case, but, in view of our discussion made above, it does demonstrate that it is the respondent who is responsible for mental cruelty against her husband and though the petitioner was ready to take her and lead happy marital life, but, she has straightaway refused. The learned trial Judge has considered oral and documentary evidence and has rightly come to the conclusion that, the petitioner has made out acceptable grounds to decree his petition as prayed for. Thus, we find no factual or legal error being committed by the trial Court in decreeing the
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NC: 2023:KHC-K:5207-DB MFA No. 200839 of 2022 petition filed by the petitioner and granting him a decree of divorce as prayed for.
33. In view of our above discussion, the aforesaid points are answered in favour of the petitioner. Consequently, the appeal filed by appellant-wife fails and is liable to be dismissed. Resultantly, we pass the following:
ORDER
(i) Appeal filed by the appellant under Sec.19(1) of Family Courts Act, 1984 is dismissed.
(ii) The judgment and decree granting decree of divorce passed in MC No.170/2020 dated 27.01.2022 by the Prl. Judge, Family Court, Bidar, is hereby confirmed.
(iii) Under the circumstances, there is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE SK/-