Karnataka High Court
Smt Vijayalakshmi G U vs Siddesh S Hombaradi on 29 November, 2013
Bench: K.L.Manjunath, A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF NOVEMBER, 2013
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
M.F.A. NO.8811/2009 (MC)
BETWEEN:
SMT. VIJAYALAKSHMI.G.U.,
W/O. SIDDESH HOMBARADI
AGE:30 YEARS
R/O. B. KALPANAHALLI
DAVANAGERE TALUK AND DISTRICT
. . . Appellant
(By Sri B.M.Hala Swamy, Adv.)
AND:
SIDDESH S. HOMBARADI
S/O. S.M.HOMBARADI
AGE:33 YEARS
OCC: ASSISTANT BRANCH MANAGER
HDFC SLIC
R/O. NO. 987, FIRST FLOOR
2ND MAIN 3RD CROSS,
VINOBHA NAGAR
DAVANAGERE.
. . . Respondent
(By Sri B.N.Vinod Kumar, adv.)
MFA FILED U/S 91(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DEGREE DATED
07.11.2009 PASSED IN MC NO.51/2007 ON THE FILE OF
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JUDGE, FAMILY COURT, DAVANAGERE, DECREEING THE
PETITION FILED U/S 13(1)(ia) OF THE HINDU MARRIAGE
ACT FOR DISSOLUTION OF MARRIAGE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR ORDERS COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, A.V.CHANDRASHEKARA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant was the legally wedded wife of the respondent herein. Their marriage was solemnized on 24.04.2004 as per the Hindu rites. On a petition filed under Section 13(1)(ia) of Hindu Marriage Act, 1956, by the respondent herein for dissolving the marriage on the ground of cruelty has been allowed vide considered order dated 07.11.2009 in M.C.No.51/2007 by the learned Judge of the Family Court at Davanagere. It is this order which is called in question on various grounds as set out in the appeal memo.
2. The appellant was the respondent in the Trial Court and the respondent was petitioner in the Trial Court. Parties 3 will be referred to as petitioner and respondent as per their status in the causetitle of the Trial Court.
3. The petitioner is the only son to his parents and respondent is a Law Graduate. After the solemnization of their marriage on 24.04.2004, respondent started living with the petitioner and did not take any interest in the family affairs. She was picking up unnecessary quarrels with the petitioner for silly reasons and was in the habit of going to her parents house frequently and stay for long time. Her behaviour was adamant and at times assaulted the petitioner. She had insisted him to make a separate house so that she alone could live with him. The mother of the petitioner did not have good health and she was very much worried about her son's plight and lost her breath on 19.01.2007. Her attitude caused mental agony and severe cruelty to the petitioner and as such, he chose to file a petition seeking divorce on the ground of cruelty.
4. The respondent appeared through her Counsel and filed detailed objections denying all the material averments in regard to cruelty. According to her, petitioner himself 4 used to abuse her by using vulgar language and used to come home late in the night having consumed liquor and used to pick up quarrels with her. It is her case that he had married a woman by name Mamata of Bangalore, who was his colleague in his branch office. It is her allegation that he harassed her to bring additional dowry from her parents house and therefore, she had lodged a complaint to the police. In order to avoid arrest at the hands of the police, the petitioner chose to file a petition seeking divorce. Hence, she has requested the Court to dismiss the petition.
5. Petitioner has been examined as PW1 and his father has been examined as PW2. In all 16 documents have been got marked. The respondent has been examined as RW1 and no documents have been got marked on her behalf.
6. After hearing the Counsel appearing for the parties, the learned Judge has chosen to allow the petition and thereby grant the decree of divorce by framing the following three points for consideration:
1. Whether the petitioner proves that the respondent treated him with cruelty?5
2. Whether the petitioner is entitled for decree of divorce?
3. What order?
7. The learned Judge has answered point Nos.1 and 2 in the affirmative and consequently petition is allowed.
8. It is contended before this Court that the learned Judge has not properly analysed oral and documentary evidence in right perspective and that a wrong approach has been adopted to the real state of affairs. It is further contended that the aspect of cruelty alleged by the petitioner has not been effectively proved and that the petitioner himself was guilty of cruelty. It is further contended that the decisions referred to by the learned Judge are not applicable to the facts of the case and that the judgment and decree of the Trial Court is opposed to law, facts and probabilities. It is further contended that the final order is passed on surmises and conjectures and that the oral evidence and documentary evidence have not been properly evaluated. 6 Hence, it is prayed to allow the appeal and set aside the order of granting divorce in M.C.No.51/2007.
9. Having heard the learned Counsels and having perused the records, following points arise for our consideration:
1. Whether the learned Judge of the Family Court at Davanagere, is justified in giving a finding that the appellant herein had meted out cruelty to the respondent herein?
2. Whether any interference is called for by this Court and if so, to what extent?
10. Section 13(1)(ia) contemplates about the decree of divorce on the ground of cruelty. Of course, the word 'cruelty' has not been defined in Hindu Marriage Act, 1955. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. A too technical and hyper sensitive approach to be counter productive to the institution of marriage and therefore, the Courts do not have to deal with the ideal 7 husbands and ideal wives. This is what is specifically observed by the Hon'ble Supreme Court in the case of Naveen Kohli Vs. Neelu Kohli, reported in AIR 2006 SC 1675. It is also expected that both the spouses must behave in a respectful and cordial manner with parents of each other.
11. In the case of Jayachandra Vs. Aneel Kaur reported in AIR 2005 SCC 534, the Hon'ble Supreme Court has held that expression 'cruelty' has been used in relation to human conduct or human behaviour. According to the Hon'ble Supreme Court, to constitute cruelty, conduct complained of should be grave and weighty for arriving at a conclusion that petitioner spouse cannot be reasonably expected to live with the other spouse.
12. In fact, in the case of Savitri Balchandani Vs. Mulchand Balchandani, reported in AIR 1987 Delhi 52, it is reiterated that false, scandalous, malicious, baseless and unproved allegations in the written statement is nothing but cruelty to the other party and as such the opposite party 8 would be entitled to get a decree of divorce on the ground of cruelty.
13. If false criminal proceedings are initiated by the wife against the husband and as a result of the same, husband and his family members suffer traumatic experience because of arrest and confinement in prison, it would amount to cruelty and thereby the husband will be entitled to a decree of divorce.
14. The matrimonial proceedings are in the nature of civil dispute and the party approaching the Court for the relief of divorce on the ground of cruelty need not prove the allegation beyond reasonable doubt as is required in a criminal case. It is sufficient if the appreciating evidence is based on the preponderance of probabilities. To constitute cruelty as contemplated under Section 13(1)(ia) of Hindu Marriage Act, it is not necessary that there must be a reasonable apprehension which would be harmful or injurious for a spouse to live with another. Even mental cruelty will also be sufficient to grant the relief of divorce on the ground of cruelty.
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15. Keeping all these principles in mind enunciated and reiterated by the Hon'ble Supreme Court and various High Courts, an attempt will have to be made to reassess the evidence placed on record in order to know as to whether the Trial Court is justified in coming to final conclusion of granting divorce.
16. The petitioner has been examined as PW1 his father has been examined as PW2. Their marriage was solemnized on 24.04.2004. On 25.06.2007, respondent chose to file a complaint before the Sub-Inspector of Police Women Police Station, Davanagere on the ground that her husband and father-in-law had demanded her to bring dowry and had treated her with cruelty. It is a two page first information lodged to the police on the basis of which a case came to be registered in Cr.No.25/2007 for offences punishable under Sections 498(A) and 506 IPC read with Section 34 IPC. Exs.P1 and P2 are the first information and first information report respectively. Ex.P3 is the certified copy of the order sheet of Crime No.25/2007 and it discloses 10 that on 25.06.2007 both father and son were produced by the police before the jurisdictional magistrate who chose to remand both of them till 26.06.2007. This is evident from the certified copy of the remand report submitted by the police to the Magistrate at the time of producing them before the learned Magistrate. The bail application was filed on their behalf and objections to the same were filed by the Addl. Public Prosecutor on 26.06.2007 and the copy of the same is marked as Ex.P6.
17. The gist of the final report submitted against them in the form of charge sheet would disclose that she had made serious allegation against them of treating her with cruelty and forcing her to bring additional dowry. The statements of her parents would also disclose that they had alleged that the petitioner had illegal contact with a lady by name Mamatha and had kept her in his house. It is also forthcoming that he had even gone to the extent of killing her if she were to not allow him to live with the said lady. Ex.P8 is the copy of the chargesheet and Exs.P9 and P10 are the 11 statements recorded under Section 161 Cr.P.C. by the police in respect of her parents.
18. What is asserted by PW1 in his evidence is that the respondent was in the habit of lodging complaints after complaints without any basis and in this regard, himself and his father were called to the police station unnecessarily. Ex.P11 is the copy of one of such complaint lodged against him before the Women Police Station, Davanagere, on 07.04.2006. Ex.P12 is her statement recorded by the police. Ex.P13 is the statement of her father. On the basis of their statement, police did not come to know of any cognizable offence and therefore, the petitioner and his father were allowed to go.
19. PW1 herself has admitted that she had given a complaint to the Women Police Station, Davanagere, on 07.04.2006 and on the basis of her complaint, the petitioner and his father had been called to the Police Station and they were asked to go back only after recording her and her father's statement, which are marked as Exs.P12 and P13. 12 Within a year, she chose to file another case for the offences punishable under Sections 498(A) and 506 of IPC read with Section 34 of IPC and a case came to be registered in Crime No.25/2007 and a chargesheet was filed. Consequent upon the registration of the case, the petitioner and his father were arrested and produced before the Magistrate and they were in judicial custody for nine days till they were released on bail.
20. It is very relevant to know that the mother of the petitioner did not have good health even before his marriage and she was paralytic and died few months after his marriage. The appellant who has been examined as RW1 has categorically admitted in her evidence that she had made an allegation in the letter written to her father that the petitioner had taken a second wife. She has admitted that she did not know anything about the death of her mother-in- law and did not attend the ceremonies held in connection with her death. Her conduct would show that she was not at all bothered about the affairs of her matrimonial home and did not have the courtesy of looking after her mother-in-law 13 or atleast seeing her when she was in the death bed. It is surprising to note that she goes to the extent of stating that she did not know when her mother-in-law died and obsequies were performed.
21. She has specifically admitted in her cross- examination that she had written four letters to her father in 2007 and in all those four letters, she had made an allegation about petitioner having taken second wife. But she has not placed even an iota of evidence in regard to such a serious allegation. This allegation has remained unsubstantiated and therefore, the learned Judge has rightly come to the conclusion that such complaints had been lodged with an oblique motive. We do not find any reason to interfere with such a reasonable inference based on factual assessment of the evidence.
22. In her own evidence, as found in page No.6 of her deposition, RW1 has admitted that when she lodged complaint on 25.06.2007 before the Women Police Station her husband and her father-in-law were only two persons 14 who were living in a house at P.G.Extension, Davanagere and prior to that her father-in-law had made a separate residence for her and her husband. She has admitted that her husband and father-in-law were in judicial custody for nine days. She has further admitted about the allegation made against him about the illegal contact with a lady. It has been culled out from her mouth that such an allegation had been made by her mother also when her statement was recorded by the police. Her explanation is that she came to know of his illegal intimacy with one lady by name Mamata only when her husband disclosed to him. Such an explanation is highly unbelievable. She has specifically admitted that as a result of the criminal cases being lodged against them and remanding them to judicial custody and the publication made in the newspapers about the criminal cases, had caused mental agony to the petitioner and his father.
23. In fact the petitioner had called her back to his house even after lodging a complaint against him on 07.04.2006. It is her case that they withstood all the 15 unnecessary allegations made against them and allowed her to live with them. She has admitted that her father-in-law is a large hearted man and allowed her to live with his son by forgetting all the past events. It is in her own evidence that her husband is a sensitive man and that her father-in-law had earned lot of respect while he was in service so also after retirement. To a specific question put to her about the lodging of the police complaint and remanding them to judicial custody had caused lot of mental agony to her husband and her father-in-law, she has admitted the suggestion as true. These important admissions have been taken into consideration while evaluating the evidence.
24. As already pointed out by the learned Trial Judge baseless allegations imputing the chastity of the petitioner were made by the respondent and in fact she has admitted about the mental agony caused to her husband as well as her father-in-law.
25. PW2 the father-in-law had even gone to the extent of providing a separate house to his son and daughter-in-law 16 so that they could live in peace. PW2 had done his best to save the marriage and to undergo all the ignominy caused to him and his son. It is to be seen that her father-in-law was not living with her when she lodged complaint in 2007.
26. It is to be seen that the appellant is a law Graduate and a lady who has all the wordly knowledge. For a successful marriage to be continued, tolerance is required by both spouses. She did not have the required tolerance to sustain the marriage. On the other hand, she went to the extent of lodging false complaint and getting them arrested and making baseless allegations on the ground that he had taken a second wife.
27. In the light of the principles enunciated by the Hon'ble Supreme Court and reiterated in the decisions of the various High Courts cited above and on analyzing the oral and documentary evidence, the learned Judge has come to a right conclusion that the appellant herein who was the respondent in the Trial Court had meted out cruelty to the petitioner and the said cruelty has been effectively 17 established. The learned Judge has properly analysed the evidence on the basis of preponderance of probabilities. The learned Judge has observed that the father of the appellant had also made unnecessary complaints against the petitioner and his father. The false and scandalous allegations made against the petitioner and his father were nothing but to harass them and therefore it amounts to cruelty on the part of the appellant-wife.
28. Taking into consideration the over all circumstances of the case, we are of the considered opinion that the learned Judge has properly evaluated the evidence and has rightly come to the conclusion that the marriage needs to be dissolved by a decree of divorce.
29. Hence we answer point No.1 in the affirmative. Re.Point No.2:
30. In view of the affirmative finding on point No.1, the appeal will have to be dismissed by confirming the judgment passed in M.C.No.51/2007 which was pending on the file of 18 the Family Court at Davanagere. Accordingly, no interference is required by this Court.
In view of the facts and circumstances of the case, we pass as to no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE JT/-