Karnataka High Court
Sri M H Devaraja vs Smt M B Sheela on 13 June, 2024
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NC: 2024:KHC:21104-DB
MFA No.7572/2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.7572 OF 2013 (MC)
BETWEEN:
SRI. M.H. DEVARAJA
S/O M. HANUMANTHAPPA
R/O MALLIGENAHALLI VILLAGE
BELAGUTHI POST, HONNALI TALUK
DAVANAGERE DISTRICT-577217.
...APPELLANT
Digitally
signed by A K (BY SRI. VINAYAKA B, ADV., FOR
CHANDRIKA SRI. ABHIJIT HARANAHALLI, ADV.,)
Location:
High Court of AND:
Karnataka
SMT. M.B. SHEELA
W/O M.H. DEVARAJA
D/O M. BASAVANYAPPA
R/O OPP. MOTHER MEMORIAL SCHOOL
BASAVESHWARA ROAD
4TH CROSS, DEVIKOPPA
SURAHONNE, HONNALLI TALUK
DAVANAGERE DISTRICT-577217.
...RESPONDENT
(BY SRI. S. RAJENDRA, ADV., FOR
SRI. S.V. PRAKASH, ADV.,)
THIS MFA IS FILED U/S 28(1) OF THE HINDU MARRIAGE ACT,
AGAINST THE JUDGMENT AND DECREE DATED:25.06.2013 PASSED
IN M.C.NO.9/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MEMBER, ADDITIONAL MACT, HARIHAR, DISMISSING THE PETITION
FILED U/S 13(1)(ia) OF HINDU MARRIAGE ACT, FOR DIVORCE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
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MFA No.7572/2013
JUDGMENT
Heard.
2. Challenging the dismissal of his petition for divorce, the petitioner in M.C.No.9/2010 on the file of Senior Civil Judge, Harihar, has preferred this appeal.
3. The appellant and respondent are Hindus and are governed by Hindu Marriage Act, 1955 ('the Act' for short). Their marriage was solemnized on 23.04.2006 at Honnali. At the time of marriage, the appellant was working as Teacher in Government School, Sokke village of Jagaluru Taluk. He is the resident of Malligenahalli village of Honnali Taluk of Davanagere District.
4. After the marriage, the appellant did not set up a house at Sokke village. The respondent was staying with the parents of appellant in Malligenahalli village. He used to visit Malligenahalli village in the weekends and during holidays. On 08.06.2010, the appellant issued notice to the respondent as per Ex.P-2 alleging that she was abusive and she did not cooperate for sexual cohabitation thereby she subjected him to mental cruelty. It was also alleged that she had some health -3- NC: 2024:KHC:21104-DB MFA No.7572/2013 issue disabling her to conceive the child and before marriage that was suppressed. He called up on her to give consent for divorce by mutual consent. Respondent issued reply at Ex.P-4 to the notice at Ex.P-2 denying the allegations of cruelty, abuse, medical condition etc. and she rejected his claim for divorce.
5. The appellant ultimately filed M.C.No.9/2010 before the Senior Civil Judge, Harihar against the respondent under Section 13(1)(ia) of the Act, making the same allegations of incapacity of the respondent to bear the child and she being abusive towards him and his parents. The respondent contested the petition. In her statement of objections, she denied the allegations of cruelty and any suppression of material fact or her incapacity to bear the child. She claimed that despite her request, the appellant did not set-up the matrimonial home at his work place Sokke village and therefore she was forced to live in her in-laws house at Malligenahalli village. She further claimed that during the visits of the appellant to his parents house, they led conjugal life and she denied the allegations of she being non-cooperative in sexual cohabitation. She contended that the appellant himself demanded Rs.2,00,000/- -4-
NC: 2024:KHC:21104-DB MFA No.7572/2013 to set up a house at Sokke Village. She claimed that the father of the appellant also married second wife on the ground that first wife did not get the child and ultimately both wives of her father-in-law got children and in the same fashion, the appellant was interested in marrying another lady. Therefore, he has filed frivolous petition for divorce. Thus, sought dismissal of the petition.
6. In support of the case of the appellant, he got examined himself as PW-1, the doctor who treated the respondent as PW-2, his neighbour as PW-3 and his father as PW-4. On his behalf Exs.P-1 to 9 were marked. The respondent got examined herself as RW-1 and no documents were marked on her behalf.
7. The trial Court, on hearing the parties, by the impugned judgment and order dismissed the petition holding that the grounds of cruelty and incapacity of the respondent to bear the children were not proved. It was further held that anyway such incapacity is not a ground to grant decree of divorce.
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8. Sri.Vinayaka B., learned counsel for the appellant reiterating the grounds of appeal submits that the acts of cruelty were proved by the evidence of PWs-1, 3 & 4 and the medical condition of the respondent was proved by the evidence of PW-2 & the documents produced by the appellant. He further submits that trial Court has failed to appreciate the evidence judiciously while dismissing the petition. He further submits that the parties are living separately since 2010, i.e., last 14 years, the marriage is irretrievably broken down, therefore on that ground the appellant is entitled for decree of divorce.
9. In support of his submissions, he relies on the judgments of the Hon'ble Supreme Court in the cases of Naveen Kohli vs. Neelu Kohli reported in (2006) 4 SCC 558 and K.Dhinesh Kumar vs. J.G.Aruna in Civil Appeal No(s).500/2023 dated 24.01.2023.
10. Per contra, Sri.S.Rajendra, learned counsel appearing for Sri.S.V.Prakash, learned counsel on record for the respondent-wife justifying the impugned judgment and order submits that wife's incapacity to bear the child is not prescribed as one of the grounds for dissolution of marriage -6- NC: 2024:KHC:21104-DB MFA No.7572/2013 under the provisions of the Act. Moreover, the evidence of PW-2, appellant's own witness, belies his case that respondent is incapable of bearing the child. So far as cruelty, the evidence on record shows that the appellant himself did not set up the matrimonial home, where he was working, therefore, the respondent was staying with his parents in his native village. The evidence on record shows that whenever PW-1 was visiting his parental house, the appellant and respondent used to have sexual cohabitation. The evidence of PWs-3 & 4 was not credible to accept the allegations of cruelty. The mother of the appellant was not examined to prove the alleged harassment by the respondent to the parents of the appellant. The trial Court, on judicious appreciation of the evidence, has dismissed the petition and the same does not warrant interference of this Court. He submits that irretrievable break down is not the ground for granting decree of divorce. Therefore, the judgments relied on by the learned counsel for the appellant are not applicable.
11. On considering the submissions of both side and on examining the records, the point that arises for consideration is -7- NC: 2024:KHC:21104-DB MFA No.7572/2013 "Whether the trial Court committed any illegality in rejecting the petition of appellant for divorce?"
Analysis
12. There is no dispute that the appellant and respondent were married on 23.04.2006. At the time of marriage, the appellant was working as Teacher in Sokke village of Jagalur Taluk and he had not set up a house there. It is also not disputed that the respondent lived in the house of the parents of the appellant in Malligenahalli village and appellant himself was visiting his parents during weekends and holidays.
13. The appellant sought the decree of divorce on the following three grounds:
1) That respondent had attained delayed puberty and irregular menstruation cycles and that was suppressed before the marriage and she was incapable to bear the child.
2) Due to her medical condition, the respondent
was behaving abnormally, she had
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depression and she did not cooperate for
sexual cohabitation.
3) She was quarreling with the appellant and
his family members and harassing them.
14. As rightly pointed out by the trial Court, firstly the incapacity of the spouse to bear the child is not a ground under the Act to grant decree for dissolution of marriage. Secondly, the evidence on record, more particularly, the admissions of his father PW-4 shows that both of them were teachers and the father of the respondent was Lecturer. Their evidence further shows that the family members of the appellant and respondent were not strangers. The sister of the appellant was given in marriage to the cousin of the respondent and their marriages were solemnized in the same community hall on the same day.
15. For four years after the marriage, the appellant did not raise, at any time, any issue saying that the respondent had suppressed the fact of she attaining puberty belatedly. Moreover, attaining puberty at the age of 19 is not a ground to seek decree of divorce. Further, PW-2, the Doctor, who treated the respondent at the instance of appellant himself, -9- NC: 2024:KHC:21104-DB MFA No.7572/2013 unequivocally deposed that no abnormality was found in the scanning and on proper treatment, the respondent can bear the child. PW-2 in the cross-examination by the respondent's counsel, stated that except the fact of respondent having small uterus and irregular menses, she was normal. She also states that the respondent herself was anxious to have child and she states that she advised to the appellant also to go for investigation. Nothing is placed on record to show that the appellant underwent any investigation and his medical condition was absolutely fine to bear a child. Under the aforesaid circumstances, the trial Court was fully justified in rejecting the contention that suppressing her medical condition the respondent married him and she was incapable of bearing a child.
16. So far as the allegations of cruelty, according to the appellant, respondent was nagging with her parents-in-law due to her depression on account of her irregular menstruation or her incapacity to bear the child. In other words, he is imputing some mental health condition to the respondent. That is a serious matter and he had to prove the same by concrete or acceptable evidence. PW-2 doctor whom he examined did not
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NC: 2024:KHC:21104-DB MFA No.7572/2013 whisper anything about mental health condition of the respondent or she having any depression or mood swings.
17. So far as the respondent quarreling with his parents, the appellant examined PW-3, the neighbour, and PW- 4, his father. PW-3 is not a family member, he claims to be neighbour and frequent visitor to the house of appellant. His evidence shows that he was working in the agricultural establishment of the appellant and he was vending milk to the appellant's family. In his cross-examination, PW-3 states that in between his house and house of the appellant there are three more houses. PWs-1 & 4 themselves did not say that they had reposed confidence in PW-3, therefore, they were divulging to him the family matters. If he is working in agricultural establishment and was visiting the house only to vend milk, there was no chance for him to observe the affairs of the family which takes place within the four walls of the house. Moreover, PW-3 in his chief examination filed by way of affidavit itself states that the father and mother of the appellant revealed to him about the ill-treatment by the respondent. Therefore, that was only hearsay evidence.
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18. PW-4 in his chief examination itself states that he was working as Teacher. Therefore, apparently, he could stay in his house only after his working hours. Therefore, the best witness would be his wife i.e., mother of the appellant, who stayed in the house along with the respondent. But for the best reasons known to the appellant, she was not examined. Even PW-4 in his cross-examination states that he cannot say the dates when the respondent quarreled with them. Therefore, the trial Court, on due appreciation of evidence of PWs-1 to 4, rightly arrived at the conclusion that the allegations of the respondent being abusive towards the appellant and his parents was not proved.
19. The third contention was that the respondent was not cooperating with the appellant for sexual cohabitation. The respondent has disputed such allegations, she claims that whenever the appellant was visiting his parental house, they used to sexually cohabit with each other. The appellant/PW-1 in his cross-examination admits that for one month after their marriage, himself and respondent lived in the parental house of respondent, thereafter, they started living in his parental house in Malligenahalli village. He further admits that himself and his
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NC: 2024:KHC:21104-DB MFA No.7572/2013 wife did not live in Sokke Village where he was working and after the marriage, for 3 and 1/2 years the respondent lived in his parental house, he used to visit the said house on weekends and whenever he had holidays. In paragraph No.4 of his cross- examination, he admits that after the marriage during his wife's stay in his parental house, there was sexual cohabitation between them. Such admission itself belied the allegation that respondent was not cooperating for conjugal cohabitation. Therefore, the trial Court was justified in rejecting the allegation of cruelty on that count also.
20. So far as submission of learned counsel for the appellant that the marriage is irretrievably broken down therefore the decree for divorce can be granted, admittedly, the Act has not provided for granting decree of dissolution of marriage on the ground of irretrievable break down of marriage.
21. In Naveen Kohli's case and K.Dhinesh Kumar's case referred to supra, the Hon'ble Supreme Court has granted decree for dissolution of marriage on the ground of irretrievable break down of marriage exercising extraordinary power under Article 142 of the Constitution of India, which is not available to
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NC: 2024:KHC:21104-DB MFA No.7572/2013 any other Courts in the hierarchy. Secondly, in Naveen Kohli's judgment referred to supra, the Hon'ble Supreme Court as long back as in the year 2006, recommended to the parliament to bring amendment to the Hindu Marriage Act, 1955 to incorporate irretrievable break down of marriage as a ground to grant divorce. But so far no such amendment is brought. That goes to show that so far no public consensus is rendered to make such law. Therefore this Court cannot accede to the said prayer.
22. In the light of the aforesaid discussions, no grounds are found to interfere with the trial Court's judgment. Hence, the following:
ORDER Appeal is dismissed.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE BSR/List No.: 1 Sl No.: 11