Karnataka High Court
Smt B L Geetha vs Sri D Shivakumar on 2 September, 2022
M.F.A.No.2388/2014
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE S.RACHAIAH
MISCELLANEOUS FIRST APPEAL No.2388/2014 (FC)
BETWEEN:
SMT.B.L.GEETHA
D/O LATE B.M.LAKSHMIKANTHAIAH
W/O D.SHIVAKUMAR
AGED ABOUT 42 YEARS
PRESENTLY R/AT SHANKARA NILAYA
NO.27, GOKULA ROAD, II CROSS
S.S.PURAM, TUMKUR
TUMKUR DISTRICT - 572 102 ...APPELLANT
(BY SRI K.N.NITISH FOR SRI K.V.NARASIMHAN, ADVOCATES)
AND:
SRI D.SHIVAKUMAR
S/O DODDAIAH
AGED ABOUT 47 YEARS
R/AT NO.225, 6TH CROSS
ASHOKNAGAR, TUMKUR
TUMKUR DISTRICT - 572 102 ...RESPONDENT
(SERVED AND UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF THE FAMILY COURTS ACT READ WITH SECTION
28 OF HINDU MARRIAGE ACT PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 28.02.2014 PASSED BY THE
PRINCIPAL JUDGE, FAMILY COURT, TUMKUR IN M.C.No.392/2013.
M.F.A.No.2388/2014
2
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED ON 17.08.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, K.S.MUDAGAL J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and decree of divorce granted against her, the respondent in M.C.No.392/2013 on the file of the Principal Judge, Family Court, Tumkur has preferred this appeal.
2. By the impugned judgment and decree, the trial Court has allowed the petition of the husband for decree of dissolution of marriage on the ground of cruelty and desertion.
3. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
4. The marriage of the petitioner and the respondent was solemnized on 02.07.1991 at B.C.Palya, Madhugiri Taluk. The parties belong to Hindu Religion and are governed by the Hindu Marriage Act, 1955. The couple have M.F.A.No.2388/2014 3 no biological issues. They fostered a girl by name Disha Bhargavi.
5. The petitioner was working as Station Master in Hirehalli Railway Station. In June 2009, he got issued notice as per Ex.D1 through his Counsel to the respondent alleging that the respondent has subjected him to cruelty by abusing him in foul language, posing threats of commission of suicide leaving suicide note and filing of false dowry cases. He further alleged in the notice that she has deserted him and despite intervention of the elders, she has not joined him. He claimed that there is no meaning in continuing the marital relationship and called upon her to join in filing the petition for dissolution of marriage by mutual consent.
6. Thereafter on the very same allegations of cruelty and desertion, the petitioner filed M.C.No.90/2009 which was renumbered as M.C.No.392/2013. He also alleged that the respondent was in the habit of going out of the house without taking permission, she used to behave rudely with family members and child and she harassed him making false complaint to the police. He claimed that she has withdrawn M.F.A.No.2388/2014 4 from his society for more than two years preceding the petition and therefore sought decree of divorce.
7. The respondent contested the petition denying the allegations made against her. She contended that the petitioner himself subjected her to cruelty and withdrew from her society. She further alleged that they led happy marital life for 17 years till the petitioner developing illicit relationship with one Nagalakshmi @ Lakshmi. At her instance, her brother-in-law Devaraj and her brothers advised to withdraw from that. He flatly refused and has filed the petition in question making false and disgraceful allegations. Ultimately, leaving her and fostered daughter in the matrimonial home, he is residing with that woman.
8. To substantiate his claim, the petitioner got examined himself as PW.1 and one D.S.Siddappa as PW.2. Exs.P1 to P6 were marked on his behalf. The respondent was examined as RW.1 and Exs.R1 to R12 were marked on her behalf.
M.F.A.No.2388/20145
9. The trial Court on hearing both side, by the impugned judgment and decree allowed the petition granting decree of divorce on the following grounds:
(i) The respondent has made unsubstantiated allegations of adultery against the petitioner which amounts to character assassination of the alleged adulterer and her family members. That amounts to mental cruelty to the petitioner;
(ii) The petitioner has proved that since 2009 the respondent has withdrawn from his society and the matrimonial home due to her illicit relationship with her brother-in-law. Therefore the ground of adultery is also proved;
(iii) Having regard to the income and the needs of the petitioner/husband, sum of Rs.8,000/- per month is reasonable amount as permanent alimony to the respondent till her life time.
10. The husband has not challenged the order of alimony. Thereby that part of the order has attained finality. Being aggrieved by said judgment and decree, the wife has M.F.A.No.2388/2014 6 preferred this appeal. Despite service of notice, the respondent/husband did not appear to contest the appeal.
11. Submissions of Sri K.N.Nitish, learned Counsel for the appellant:
(i) Neither in the notice Ex.D1 nor in the petition, the petitioner claimed that the respondent's allegation of adultery has caused him mental cruelty. The instance of cruelty alleged by him was her rude conduct, filing of false complaint and she leaving the matrimonial home. Only during the course of evidence, he introduced the theory of the respondent making allegation of adultery as cause of mental cruelty. Till he led evidence, he did not find such allegations to be mental cruelty, thereby he had waived/condoned the said ground.
(ii) During the course of evidence, the petitioner made unsubstantiated allegations of adultery between the respondent and her own brother-in-law. In the ordinary circumstance, such allegations would have ruined the marital life of the sister of the respondent, whereas the allegations made by the respondent had not reached the said adulterer M.F.A.No.2388/2014 7 Nagalakshmi or her family members. The trial Court's approach that the allegation of the respondent affects the life of the petitioner and the alleged adulterer and not perceiving the same with life of the sister and brother-in-law of the respondent is biased approach.
(iii) So far as the ground of threats and commission of suicide or filing of dowry harassment case, no evidence was adduced by the petitioner. The trial Court was not justified in accepting the ground of cruelty.
(iv) So far as desertion, the petitioner himself had left the matrimonial home and he did not return. Admittedly, the respondent and the fostered daughter stayed and continued to stay in the matrimonial home at Tumkur which is admitted by the petitioner. Therefore the findings of the trial Court that the respondent has deserted is contrary to the evidence on record. Even assuming that there was such desertion, having regard to the allegations of adultery made by the petitioner, she was justified in withdrawing from the society.M.F.A.No.2388/2014 8
12. In support of his submissions, he relied upon the following judgments:
(i) Darshan Gupta v. Radhika Gupta1
(ii) Ravi Kumar v. Julmidevi2
(iii) Anil Kumar Jain v. Maya Jain3
(iv) N.G.Dastane v. S.Dastane4
13. Considering the submissions of learned Counsel and the materials on record, the question that arises for consideration is "whether the trial Court was justified in granting decree of divorce on the ground of cruelty and desertion?"
Analysis
14. The husband sought decree of divorce on the ground of cruelty and desertion. The following are the acts of cruelty alleged in the petition:
(i) The respondent was short tempered, haughty, quarrelsome, suspicious woman and often used to abuse humiliate, insult and behave in cruel manner.1
(2013) 9 SCC 1 2 (2010) 4 SCC 476 3 (2009) 10 SCC 415 4 (1975) 2 SCC 326 M.F.A.No.2388/2014 9
(ii) After the petitioner left for the job and daughter left to school, respondent used to lock the door of the house and on their return they had to wait at the door of the house.
(iii) The respondent was not attending to the domestic work, she was not preparing food for him and daughter, always used to watch T.V and keep talking on the phone with friends, relatives and her brother-in-law.
(iv) The respondent used to threaten him of commission of suicide and filing of dowry harassment case.
She has deserted him since last two years. She subjected the petitioner to police harassment by filing oral complaint to NEPS police station.
15. In para 101 of the judgment in Samar Ghosh v. Jaya Ghosh5, the Hon'ble Supreme Court while considering which acts amount to mental cruelty laid down the following guidelines:
"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The 5 (2007) 4 SCC 511 M.F.A.No.2388/2014 10 instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.M.F.A.No.2388/2014 11
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being M.F.A.No.2388/2014 12 any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
In such like situations, it may lead to mental cruelty."
(Emphasis supplied)
16. In para 35 of the judgment in Darshan Gupta's case referred to supra the Hon'ble Supreme Court while considering what amounts to cruelty held as follows:
"35..................A perusal of the grounds on which divorce can be sought under Section 13(1) of the Hindu Marriage Act, 1955, would reveal, that the same are grounds based on the 'fault' of the party against whom dissolution of marriage is sought. In matrimonial jurisprudence, such provisions are founded on the 'matrimonial offence theory' or the 'fault theory'. Under this jurisprudential principle, it is only on the ground of an opponent's fault, that a party may approach a Court for seeking annulment of his/her matrimonial alliance. In M.F.A.No.2388/2014 13 other words, if either of the parties is guilty of committing a matrimonial offence, the aggrieved party alone is entitled to divorce. The party seeking divorce under the "matrimonial offence theory" / the "fault theory" must be innocent. A party suffering "guilt" or "fault" disentitles himself/herself from consideration. Illustratively, desertion for a specified continuous period, is one of the grounds for annulment of marriage. But the aforesaid ground for annulment is available only, if the desertion is on account of the fault of the opposite party, and not fault of the party which has approached the Court. Therefore, if a husband's act of cruelty, compels a wife to leave her matrimonial home, whereupon, she remains away from the husband for the stipulated duration, it would not be open to a husband to seek dissolution of marriage, on the ground of desertion".
(Emphasis supplied) The above judgment goes to show that spouse who himself is guilty of matrimonial offence cannot seek dissolution of marriage on the ground of cruelty or desertion.
17. This Court has to examine whether the allegations of cruelty and desertion were in terms of the aforesaid judgments of the Supreme Court in Samar Ghosh's case and Darshan Gupta's case referred to supra. The trial Court granted the decree of divorce on the ground that the M.F.A.No.2388/2014 14 wife made unsubstantiated allegations of the petitioner having illicit relationship with one Nagalakshmi @ Lakshmi. As rightly pointed out by the learned Counsel for the appellant, in the petition there was no allegations to that effect. It was only contended that the respondent is suspicious by nature.
18. The Hon'ble Supreme Court in Ravi Kumar's case referred to supra while considering what should be the pleading in the petition for dissolution of marriage on the ground of cruelty held that in such cases the particulars of cruelty shall be pleaded. It was further held that the petitioner has to plead and prove that other spouse was living separately, there was animus deserendi on the part of other spouse.
19. Ex.D.1 is admittedly the notice got issued by the petitioner to the respondent in June 2009. The petition was filed on 30.07.2009. In that notice there is no allegation of respondent subjecting him to cruelty alleging adultery with one Nagalakshmi.
M.F.A.No.2388/201415
20. It is material to note that before issuance of Ex.D1 the respondent had filed the complaint before the Superintendent of Police as per Ex.R.2 on 11.05.2009. In the said complaint she had alleged that about 1 ½ years prior to the said complaint the petitioner had developed illicit relationship with one Nagalakshmi @ Lakshmi and stays in her home intermittently. In the complaint she further alleged that despite his brothers advising him that petitioner is not changing his ways, therefore he should be called and advised.
21. Ex.R.3 is the notice issued by Sub-Inspector of NEPS police station, Tumkur seeking appearance of the petitioner and respondent. Ex.R.4 is the endorsement issued by the police inspector to respondent to the effect that the petitioner was enquired in the matter and he was advised to lead his family life properly. Those documents were not disputed by the petitioner. They falsified the allegations of the petitioner that without filing the complaint she instigated the Sub-inspector of NEPS police station and he harassed M.F.A.No.2388/2014 16 him. Exs.R2 to 4 show that the police only conducted the counseling.
22. In the complaint of the respondent she had made the allegations of the illicit relationship of the petitioner and Lakshmi even before the notice Ex.D.1 was issued. Still he did not whisper anything in the notice or in the petition about the said act amounting to cruelty to him. Under the circumstance, there is much force in the contention of the respondent that the petition was filed only as the counterblast to the complaint. So also there is force in the contention of counsel for the appellant that such act of the husband amounts to condonation of alleged cruelty.
23. The Supreme Court in N.G.Dastane's case in para No.55 held as follows:
"55. Before us, the question of condonation was argued by both the sides. It is urged on behalf of the appellant that there is no evidence of condonation while the argument of the respondent is that condonation is implicit in the act of co- habitation and is proved by the fact that on February 27, 1961 when the spouses parted, the M.F.A.No.2388/2014 17 respondent was about 3 months pregnant. Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of section 23(1) (b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if we are satisfied "but not otherwise", that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty".
(Emphasis supplied)
24. The petitioner had the burden to prove the allegations of cruelty made against him. Except his self- serving testimony, to prove the alleged cruelty, he neither examined his parents, brother nor any family members. The allegations made by him that respondent did not permit him to look after his parents, she did not attend to the domestic work, cook food, she locked the door etc., were denied in the statement of objections of the respondent, in the cross- examination of PW.1 and in her evidence. When the respondent claimed that the petitioner's brother advised him M.F.A.No.2388/2014 18 about his extramarital relationship etc., it was incumbent upon him to examine his parents, brother and relatives to substantiate his allegation of cruelty. He has no explanation for not examining them.
25. As against that the petitioner examined PW.2 who claimed in the chief-examination that he is the employee in the Karthik medical clinic run by Dr. Sathyanarayana the brother of the petitioner. He claimed that at the instance of the petitioner he used to attend plumbing works, electrical works and office works of the petitioner and dropping of his child to the school. But in the cross-examination he unequivocally admitted that he was not qualified to work in the medical store and he was working in Bilva medical store. Whereas in the chief-examination he states that he was working in medical shop besides Karthik clinic run by Dr. Sathyanarayana. That goes to show that since Dr. Sathyanarayana's clinic existed adjacent to the medical shop where he was working, he was acquainted with him.
26. PW.2 admitted that his second wife Shilpa was employed by Dr. Sathyanarayana in Manasa Lab run by him. M.F.A.No.2388/2014 19 He states he doesn't know if the petitioner is having illicit relationship with another lady. He unequivocally admits that whenever he was in need of money he used to borrow from the petitioner. That itself shows that the petitioner choosed to examine this witness in preference to his brothers and parents, because the said witness favours him due to such financial obligation.
27. Evidence of PWs.1 and 2 show that the petitioner and respondent lived together at various places after filing of Ex.R.2. It is also material to note that, though the couple were not blessed with biological child, suppressing the said fact, in the petition the petitioner claimed that they were blessed with a child. He suppressed fact that the said child was a fostered child. That goes to show that the petitioner is in the habit of suppressing material fact and misleading. The evidence of the witnesses further shows that till filing of the complaint Ex.R.2 couple were living together with the child and it was the petitioner himself who left the matrimonial home. Therefore, the question of respondent deserting him does not arise.
M.F.A.No.2388/201420
28. Moreover the petitioner himself makes the unsubstantiated allegations of the respondent leading adulteress life with her brother-in-law, therefore he himself is guilty of matrimonial offences. The petitioner/PW.1 in his cross-examination at page No.16 para No.2 admits that after the complaint Ex.R.2 the NEPS police conducted an enquiry and advised him to lead conjugal life with his wife. It is not his case that he filed any statement before police denying the allegations made against him. That leads inference that he accepted allegation made against him. It is hard to expect that the respondent should lead direct evidence of such adulterous relationship. Even otherwise when the petitioner himself was guilty of making unsubstantiated allegations of infidelity against his wife and her own bother-in-law, he is not entitled to encash his own matrimonial misconduct and seek a decree of divorce.
29. The trial Court without appreciating all the aforesaid aspects and the effect of Section 23(i)(b) of Hindu Marriage Act proceeded to grant decree of divorce on the sole ground that the wife made baseless allegations of infidelity M.F.A.No.2388/2014 21 against him. Such finding of the trial Court is contrary to the evidence on record and the judgments of the Supreme Court in Ravi Kumar's case, Darshan Gupta's case and N.G Dastane's case. Therefore the impugned judgment and decree of divorce is liable to be set aside. Hence the following:
ORDER The appeal is allowed.
The impugned judgment and decree of the trial Court is hereby set aside.
The petition in M.C. No.392/2013 on the file of the Principal Judge, Family Court, Tumkur is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE KSR/PKN