Karnataka High Court
Sunil Abraham vs Reeth Abraham on 5 June, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5th DAY OF JUNE, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A NO.1850 OF 2020 (SMA)
BETWEEN:
SUNIL ABRAHAM
S/O T A ABRAHAM
AGED ABOUT 62 YEARS
R/AT NO.609, 6TH BLOCK
80FT ROAD, KORAMANGALA
BANGALORE-560 095 ... APPELLANT
(BY SMT. PRATHIMA S.K., ADVOCATE)
AND:
REETH ABRAHAM
W/O SUNIL ABRAHAM
AGED ABOUT 58 YEARS
R/AT NO.609, 6TH BLOCK
80FT ROAD, KORAMANGALA
BANGALORE-560 095 ... RESPONDENT
(BY SHRI. SURESH S. LOKRE, SENIOR ADVOCATE FOR
SHRI. SHRAVAN S. LOKRE, ADVOCATE)
THIS MFA IS FILED U/S 39 OF THE SPECIAL MARRIAGE
ACT, 1954, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 16.12.2019, PASSED IN MC. NO.4325/2015, ON THE FILE
OF THE I-ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU, THE PETITION FILED BY PETITIONER U/SEC.27(1)
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(d) OF THE SPECIAL MARRIAGE ACT R/W. SEC.31 OF THE
SPECIAL MARRIAGE ACT, 1954 IS HEREBY DECREED.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.04.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the respondent/husband in M.C.No.4325/2015 against the judgment of the I Additional Principal Judge, Family Court, Bengaluru, dated 16.12.2019. Parties were married on 05.05.1982 at Bengaluru under the provisions of the Special Marriage Act, 1954 (hereinafter referred to as 'the Act' for short)
2. The petitioner/wife had approached I Additional Principal Judge, Family Court, Bengaluru seeking divorce and registered M.C.No.4325/2020. The respondent/husband had filed counter claim under Section 35 r/w. Section 22 of the Act praying for Restitution of Conjugal Rights. It was stated in the M.C. petition filed by the wife that the marriage between the parties was a love marriage. Later both petitioner and respondent got into individual jobs. The parties were individually great achievers in the field of
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3 sports. They both even started a club called 'SURE Athletic Movement' and trained Athletic in Kanteerava Stadium. The parties had lived together and two children were born in the year 1987 and 1992. The petitioner/wife had preferred the Matrimonial Case seeking Dissolution of Marriage under Section 27 (1) (d) r/w. Section 31 of the Act alleging cruelty against the respondent. The petitioner/wife further alleged that the respondent was not in good terms with the children. Further it is submitted that the respondent had sent Ex.P15, email to the petitioner and her family members which contained abusive statements against the petitioner. The petitioner further alleged that respondent had admittedly had an extra marital affair with one young girl whom he was coaching and she further narrated several incidents of cruelty and harassment. In one such incident the petitioner had invited common friends for a get together which was not known to respondent, the respondent after knowing about the same broke the bathroom door in which petitioner was present choked her and broke the mirror, the petitioner had to call the police for help.
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3. The respondent in his contention admitted about the marriage and the birth of the children. The respondent stated that he encouraged the petitioner and trained her to excel in the field. He states that during the stay of the petitioner at the National Camp, he received a letter that the petitioner was regularly seen with a Volley Ball player. He further states that he had to take care of the children single handedly when the petitioner went to for All India Bank events. The respondent contends that, he being a responsible father and thinking of the future of the children filed a counter claim for Restitution of Conjugal Rights. He however, denied the allegations of cruelty and characterized the problems between the spouses as normal wear and tear of matrimonial life.
4. The respondent/wife was examined as PW-1 and the documents Exs.P1 to 22 were marked. The appellant/husband was examined as RW-1 and the documents Exs. R1 to 28 were marked.
5. The Family Court after looking into rival contentions raised by both the parties has come to the
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5 conclusion that cruelty was exercised by the respondent over the petitioner. The act of the respondent admitting the extra marital affair and claiming it to be a normal wear and tear of family life was specifically taken note of. The respondent making false and baseless allegation as to the petitioner having an affair and not able to prove the same was also adverted to. The act of respondent admitting that he had sent the abusive email about the petitioner to the petitioner and their family and the admission of the fact that once he had broken the mirror was taken to, disclose how short tempered he was and the way he treated the petitioner. It is also noted that the parties used to live in the same building but different bedrooms and were not in talking terms since 2009 after the incident, when petitioner had called police due to the act of respondent breaking the bathroom glass. The Family Court also observed that the relationship between the parties was so strained that there was no chance of reconciliation and that the marriage had broken down irretrievably. Therefore, a decree was passed
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6 granting divorce and dismissing the petition for Restitution of Conjugal Rights.
6. Being aggrieved by the judgment of the Family Court in M.C.No.4325/2015 the husband has filed an appeal before this Hon'ble Court. The appeal was admitted and was pending with an order of stay of the decree.
7. We have considered the contentions advanced on either side. The following issues arise for consideration in the appeal:-
1. Whether the Family Court jurisdiction for having granted divorce to the respondent/wife on the ground of cruelty?
2. Whether the respondent/wife succeeded in proving cruelty as required under Section 27 of the Special Marriage Act, 1954 before the Trial Court?
3. Whether the grant of divorce by the Family Court is justified?
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8. Heard learned counsel appearing for the appellant and learned senior counsel appearing for the respondent.
9. Having considered the contentions and the material on record, we answer all the issues in the affirmative for the following reasons.
10. The appellant/husband in his appeal has admitted about their marriage, their excellence in sports being athletes and having been represented the State of Karnataka and India at various National and International Levels. He states he used to train his wife for athletics and was very supportive regarding her attending various camps. He alleges that the respondent-wife used to defame his name, fame and career creating obstacles. It was further contended that the respondent-wife used to travel frequently and going out with different persons without any care or concern for the appellant and the children, when appellant tries to enquire she used to insult him in social circles. The appellant-husband further alleges that the M.C.No.4325/2015 was filed by respondent-wife on false allegations. The appellant-husband states that after filing
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8 divorce the respondent-wife forced the appellant to move out of the house, which made him file O.S.No.137/2017 seeking partition of property which is pending adjudication before the I Additional Family Judge, Bangalore.
11. The respondent/wife herein has filed an affidavit as a counter to Appeal Memo as well as I.A.No.1/2020. She alleges that the appellant-husband has filed this appeal suppressing the real facts and with the ulterior motive only with a view to squat on the suit schedule property. It is further contended that the parties were not on speaking terms since their relationship soured when the respondent/wife came to know that the appellant/husband had an extra marital affair which has been admitted by the appellant/husband in his cross-examination as well a letter Ex.P11 written. She further states that she was subjected to matrimonial cruelty and harassment on a day to day basis which made it impossible for her to continue the matrimonial relationship. She contends that the marriage has broken down completely and all that survives between the parties in only a property dispute.
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12. It was further stated appellant has suppressed the material facts that prior to filing the present Divorce Petition as M.C.No.4325/2015, both the parties had approached the Principal Judge, Family Court and filed a Mutual Divorce Petition in M.C.No.188/2014 under Section 28 of the Act, which was referred to Mediation, which failed due to difference in the opinion, which lead to withdrawing the petition. It is further stated that the respondent/wife has filed O.S.No.220/2022 seeking mandatory injunction and recovery of possession of the property which is pending. Many other facts are suppressed by the appellant, there was also a direction by this Court in W.P.No.6192/2018 directing to dispose of O.S.No.137/2017 within one year but it was not implemented by the Family Court. The respondent/wife had preferred a W.P.No.2482/2022, which is pending adjudication. The respondent further submits that the marriage is irretrievably broken down and there is no question of further reconciliation at this stage.
13. Section 27 of the Special Marriage Act, 1954 provides for divorce. The Section reads as follows:-
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"27. Divorce.― [(1)] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent― [(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860);
[***]
(d) has since the solemnization of the marriage treated the petitioner with cruelty;
or [(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
(f) has been suffering from venereal disease in a communicable form]; or
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(g) [***]
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; [***] [(1A) A wife may also present a petition for divorce to the district court on the ground,―
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.] [(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment)
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12 Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground―
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]"
It is pertinent to note that the petition before the Family Court was filed by the wife under Section 27(1)(d) read with Section 31 of the Act.
14. The learned counsel appearing for the appellant contends that the instances relied on by the Family Court to hold that the respondent/wife was subjected to matrimonial cruelty were only emotional outbursts as a result of disagreements between the parties and the conclusion drawn by the Family Court was therefore perverse. It is contended that the pleadings and evidence let in would
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13 disclose that the respondent/wife was equally responsible for the break down of the relationship and the grant of divorce to her on the ground of matrimonial cruelty was not warranted in case of this nature.
15. The learned senior counsel for the respondent on the other hand contended that on a cumulative appreciation of the evidence let in, it is clear that the appellant had become abusive and habitually cruel and inconsiderate in his dealings with the family and was attempting to delay the legal termination of the relationship only to prolong his stay in the house.
16. Having considered the contentions advanced and having perused the pleadings and the materials on record, we are of the opinion that the contention raised by the learned counsel for the appellant that there was no material before the Family Court to conclude that matrimonial cruelty had been brought to bear on the respondent/wife cannot be accepted. The admitted facts of the case would disclose that the appellant had clearly admitted to an extra marital affair apart from alleging infidelity on the part of the wife. His
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14 allegations have not been substantiated. Several instances of physical abuse have come out in evidence which could not be discredited by the appellant. Moreover the admitted e-mail and other written communications to the family of the wife and mutual friends using abusive language also stands admitted.
17. In the facts and circumstances of the instant case and in view of the averments made by the parties and the evidence adduced, we are of the opinion that the findings of the Family Court that the respondent/wife was subjected to matrimonial cruelty at the hands of husband deserves to be upheld. Hence, we answer all the three issues raised in this appeal in "Affirmative".
18. In the above factual situation, we pass the following:
ORDER
(i) The appeal is dismissed.
(ii) The judgment and decree dated 16.12.2019 passed in M.C.No.4325/2015 by the I Additional Principal Judge, Family Court, Bengaluru, stands affirmed.
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In view of dismissal of the main appeal, pending I.A.No.1/2020 and I.A.No.1/2024, do not survive for consideration and the same are hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE cp*