Karnataka High Court
Smt G K Bhavani vs Sri G C Naveen Kumar on 15 December, 2023
MFA No.1965/2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S. MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No.1965/2012(FC)
BETWEEN:
SMT. G.K. BHAVANI,
W/O G.C. NAVEEN KUMAR,
D/O N. KRISHNAPPA,
AGED ABOUT 36 YEARS,
R/ AT 'SAMRUDDI',
BEML LAYOUT,
KOLAR-BANGARPET ROAD,
KOLAR.
PRESENT ADDRESS:
R/AT 'MATHRUSRI NILAYA',
1ST MAIN, C. BYRAGOWDA NAGAR,
KOLAR, KOLAR DISTRICT.
...APPELLANT
(BY SRI B.V. ANANDA, ADVOCATE)
AND:
SRI G.C. NAVEEN KUMAR,
S/O G.S. CHANDRAPPA,
AGED ABOUT 40 YEARS,
RESIDING AT No.515,
14TH MAIN, BSK II STAGE,
BANGALORE-560070.
...RESPONDENT
(BY SRI LAKSHMISH G., ADVOCATE)
MFA No.1965/2012
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF THE FAMILY COURTS ACT READ WITH
SECTION 20 OF THE HINDU MARRIAGE ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 28.10.2011
PASSED BY THE COURT OF THE I ADDITIONAL PRINCIPAL
JUDGE, FAMILY COURT, AT BANGALORE IN M.C.No.1511/2003
BY ALLOWING THE ABOVE APPEAL WITH COST IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 08.11.2023, THIS
DAY K.V. ARAVIND J., PRONOUNCED THE FOLLOWING:
JUDGMENT
The present appeal is preferred challenging the judgment and decree dated 28.10.2011 in M.C.No.1511/2003 passed by the I Additional Principal Judge, Family Court at Bengaluru.
2. Respondent was petitioner and appellant was respondent in M.C.No.1511/2003 before the Trial Court. The ranks of the parties in M.C.No.1511/2003 before the Family Court are referred to henceforth for convenience.
3. The brief facts leading to the case are as under:-
The petitioner/husband filed petition in M.C.No.1511/2003 under Section 13(1)(i)(ia) of the Hindu MFA No.1965/2012 3 Marriage Act, 1955, seeking dissolution of his marriage with the respondent/wife solemnized on 12.05.1999.
4. It is the case of petitioner that his marriage with respondent was solemnized on 12.05.1999 at Sri Shanthi Kalyana Mantap, Kondarajanahalli, Bangalore Road, Kolar. The respondent gave an impression that she was not interested in marrying the petitioner and due to compulsion she is living with the petitioner. The respondent quarreled frequently on trivial matters and used to leave the matrimonial home very often and stay with her parents atleast for 15 days in a month. After a month of marriage, a boy came to the house of the petitioner at Bengaluru and placed an envelop addressed to the petitioner. As the petitioner was in a hurry to move out of the house, he placed the said envelop at the hands of the respondent. The respondent avoided any discussion on that issue. In the month of June 1999, when the petitioner returned home for lunch, he saw an unknown person coming out of the bed room in an unusual manner. MFA No.1965/2012 4
5. It is further alleged that the petitioner consumed some food and his health was upset, hence he suspected administration of drug. The respondent was cutting his hair at the middle of the scalp for the purpose of black magic. The petitioner was avoiding cohabitation during certain period in order to prevent early pregnancy of the respondent. Still she became pregnant though the petitioner had no physical relationship, therefore she underwent abortion. In the month of October 1999, when the petitioner had been to Tirupathi, respondent again administered some drug which resulted in vomiting and loose motion. From November 1999, petitioner started living in his village and respondent used to stay in her parents' house for 15 days in a month without the consent of the petitioner.
6. It is further alleged that when petitioner returned home earlier to the scheduled time, he found that the door of the house was closed from inside and when opened, a stranger came out of the house and respondent being MFA No.1965/2012 5 questioned, no explanation was offered. The respondent was not respecting petitioner's parents. Despite the family planning measures taken by the petitioner, respondent became pregnant. The petitioner suspected the paternity of the child.
7. The respondent has filed a complaint before the Karnataka State Women's Commission, Bengaluru and also filed a complaint before the Police Station at Malur for the offences punishable under Sections 498A, 506 read with 34 of IPC and under Sections 3 and 4 of the Dowry Prohibition Act, 1961. The complaint was registered and after the trial, petitioner has been acquitted by judgment dated 30.12.2010 in C.C.No.269/2004 by the Principal Judge (Jr.Dn.,) & JMFC at Malur.
8. The respondent filed statement of objections admitting the relationship and denying the allegations leveled against her. The petitioner is guilty of cruelty and demand for dowry. The petitioner is a suspicious person. At the time of marriage, dowry was given in the form of MFA No.1965/2012 6 cash and after two years of marriage, again the petitioner demanded dowry of Rs.5,00,000/- for construction of a building which could not be fulfilled by the respondent's parents and hence, the petitioner indulged in character assassination. Therefore, she sought for dismissal of the petition.
9. The petitioner got examined himself as PW.1 and his father Sri G.S.Chandrappa was examined as PW.2. Petitioner got marked Exs.P.1 to P.15. The respondent subjected herself for examination as RW.1 and got marked Ex.R.1.
10. The Family Court on recording the evidence and on hearing the parties, formulated the following points for determination:-
"i) Whether the petitioner has established that subsequent to his marriage with the respondent, the respondent had voluntary sexual intercourse with another person other than him?MFA No.1965/2012
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ii) Whether the petitioner has established that subsequent to the marriage with the respondent he was subjected to cruelty by the respondent?
iii) What order?"
11. Insofar as the first point relating to adultery, the Family Court answered the same in 'Negative'. However, the issue regarding cruelty has been answered in the 'Affirmative'.
12. The Family Court, after examining the evidence on record, recorded findings rejecting the contention of the petitioner on the following allegations;
a) envelop being handed over by a person;
b) boy present in the bed room;
c) when petitioner was adopting family planning,
respondent became pregnant;
d) DNA Test conforms with the paternity of the
child; and
e) The ground of adultery.
MFA No.1965/2012
8
However, the Family Court proceeded to grant decree of divorce on the ground of cruelty. To arrive at the conclusion on cruelty, the Family Court has considered that the respondent was staying in her parents' house for 15 days in a month. The respondent cutting his hair and indulging in black magic has been accepted. In view of the brother of the respondent being a Pharmacist, the administration of drug is inferred. Insofar as payment of dowry in a sum of Rs.2,00,000/-, the Family Court has recorded a finding that the father of the respondent being a Government servant had no financial capacity to pay such amount. For the above reasons, the Family Court arrived at a conclusion that the petitioner was subjected to cruelty by the respondent.
13. Sri B.V. Ananda, learned counsel for the appellant/respondent submits that the allegation of administration of drug has been accepted by the Family Court without any blood test report or forensic evidence. He would submit that no evidence has been adduced to MFA No.1965/2012 9 prove regarding black magic by the wife. He further submits that cruelty needs to be proved by the petitioner and in support of the contention of the husband, no evidence has been placed on record. Hence, the finding recorded by the Family Court is without any basis.
14. Sri Lakshmish G, learned counsel for the respondent/petitioner submits that the husband and wife are living separately since 2003 and no purpose would serve, if marriage is not dissolved. He submits that the petitioner and respondent have a son aged 21 years. In view of the petitioner and respondent living separately since 2003, the marriage has irretrievably broken down. Hence, prays for dismissal of the appeal.
15. We have heard learned counsels for the petitioner and the respondent. Perused the pleadings, impugned judgment and decree and re-examined the oral and documentary evidence on record.
MFA No.1965/201210 Point for consideration:
16. On re-examination, the following point would arise for consideration in the present case;
(i) Whether the Family Court was justified in holding that petitioner was subjected to cruelty by the respondent?
17. The respondent in her objection statement has denied that she used to stay for 15 days in a month in her parents' house. In her cross-examination, nothing has been elicited to support the case of the petitioner. The respondent in her cross-examination has admitted that she used to visit her parents' house once in three months. It is natural that a married woman visiting her parents' house once in three months to inquire the well being of her parents, siblings and other family members. This is normal practice in all families. Also in view of the demands made by the petitioner for dowry, visit of the respondent to her parents' house once in three months cannot be faulted. The Family Court, without considering MFA No.1965/2012 11 the above aspect, without any evidence and basis has incorrectly arrived at a conclusion that respondent stays for 15 days in a month in her parents' house and the same would be inflicting of cruelty.
18. The Family Court merely on acceptance of the fact that the elder brother of the respondent is a Druggist at Kolar has arrived at a conclusion that the petitioner was administered drugs, impaired the normal physical condition of the petitioner, which would amount to inflicting mental cruelty. Burden to prove administration of drug is on the petitioner. Exs.P.2 to P.11, bills, prescription slips and Lab reports would not indicate or refer to administration of drug. The finding of Family Court is without any basis.
19. The burden of proving the allegation that respondent subjected him to black magic was on him. Except making oral allegation regarding black magic, neither the evidence of PW.1 nor PW.2 proves black magic being indulged by the respondent. Though DW.1 has been subjected to cross-examination, nothing was elicited to prove the MFA No.1965/2012 12 allegation of black magic. The Family Court without any material evidence, merely on the allegation that the respondent was indulged in black magic by cutting his hair, arrived at a conclusion that the respondent indulged in black magic. Hence, the Family Court erred in arriving at a conclusion against the respondent.
20. The Hon'ble Supreme Court in the case Samar Ghosh vs. Jaya Ghosh1, has held that the Court while considering the case of mental cruelty has to consider acute mental pain, agony and suffering of the parties to live with each other. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for long time may lead to mental cruelty affecting physical and mental health of other spouse resulting in grave and substantial danger or apprehension.
21. The Hon'ble Supreme Court in the case of Suman Singh vs. Sanjay Singh 2 while examining dissolution of marriage on the ground of cruelty has held that petition 1 (2007) 4 SCC 511 2 (2017) 4 SCC 85 MFA No.1965/2012 13 seeking divorce on some isolated instances alleged to have occurred few years prior to filing of the petition cannot be considered unless the instances alleged should be of recurring nature or continuing one and there should be near proximity with the filing of petition.
22. Applying the principle of law laid down by the Hon'ble Supreme Court in the above referred judgments, unsubstantiated allegations of mental cruelty that respondent used to stay with her parents for 15 days in the month, adopted black magic by cutting the hair of the petitioner, administered drugs, alleging adultery and doubting her paternity would not satisfy the parameters laid down by the Hon'ble Supreme Court in the judgments referred to supra.
23. The unsubstantiated allegations of the husband relating to adultery of wife, suspicion on the character of wife, doubting the paternity of the child compelling the wife and son to undergo DNA test amount to the petitioner self-inflicting mental cruelty to wife. Therefore, even if MFA No.1965/2012 14 stayed in her parental house such conduct/cruelty of petitioner constitutes sufficient cause for her to withdraw from his society. He cannot be permitted to reap the benefit of his own wrong. On overall examination of the case, we are of the view that it is a case of mere accusations. The conduct charged as cruelty by the petitioner would not cause reasonable apprehension that it will be harmful or injurious for him to live with the respondent. Unless the partner alleging cruelty establishes the same, irretrievable breakdown of marriage is not a ground for granting divorce. On overall appreciation of the evidence on record, we are of the view that it is the petitioner who caused mental cruelty to his wife and by abusing the process of law filed the petition seeking divorce alleging cruelty. Therefore his conduct warrants imposition of heavy costs.
24. In view of the above discussion, the Family Court was not justified in granting decree of divorce, Hence, the following:
MFA No.1965/201215
Order
i) The appeal is allowed with costs.
ii) The judgment and decree in M.C.No.1511/2003, dated 28.10.2011 passed by the I Additional Principal Judge, Family Court at Bengaluru, is hereby set aside.
iii) The petition in M.C.No.1511/2003 is hereby dismissed with cost of Rs.10,000/- payable by petitioner to respondent forthwith.
Sd/-
JUDGE Sd/-
JUDGE mv