Karnataka High Court
Smt. G Vasudha vs Sri R N Nagaraja on 29 March, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
M.F.A.No.4766/2014
C/W
M.F.A.No.7485/2014
IN M.F.A.NO.4766/2014
BETWEEN:
SMT. G. VASUDHA
W/O R.N.NAGARAJA,
AGED ABOUT 42 YEARS,
R/AT NO.1885, 41 "A" CROSS,
18TH MAIN, 4TH 'T' BLOCK,
JAYANAGAR,
BANGALORE-560 041.
PRESENTLY RESIDING AT:
C/O SRI PANDURANGA
NO.63, 2ND MAIN, 4TH CROSS,
SARVABOUMANAGAR,
CHIKKALSANDRA,
BANGALORE-560061. ... APPELLANT
(By Sri H.N.Venkatesh, Adv.)
AND:
SRI R. N. NAGARAJA
S/O LATE R.NARAYANA,
AGED 45 YEARS,
NO.201, 5TH MAIN ,
5TH CROSS, TANK BUND ROAD,
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MARENAHALLI,
JAYANAGAR,
BANGALORE-560041. ... RESPONDENT
(By Smt. Sona Vakkund, Adv.)
IN M.F.A.NO.7485/2014
BETWEEN:
SRI R. N. NAGARAJA
S/O LATE R. NARAYANA ,
AGED ABOUT 45 YEARS,
R/AT NO.615, MOSQUE ROAD,
3RD CROSS, PHEER KHAN STREET,
NAZARBAD,
MYSORE-570010. ... APPELLANT
(By Smt. Sona Vakkund, Adv.)
AND:
SMT. G. VASUDHA
W/O R. N. NAGARAJA,
AGED ABOUT 43 YEARS,
C/O SRI PANDURANGA,
NO. 63, 2ND MAIN,
4TH CROSS,
SARVABOUMANAGAR,
CHIKKALSANDRA
BANGALORE-560061. ... RESPONDENT
(By Sri H.N.Venkatesh, Adv.)
Miscellaneous First Appeal No.4766/2014 is filed under
Section 19(1) of Family Courts Act, against the judgment and
decree dated 30.04.2014 passed in M.C.No.2748/2007 on the
file of the VI Additional Principal Judge, Family Court,
Bangalore, rejecting the petition filed u/Sec. 12(1)(a) of
Hindu Marriage Act, allowing the petition u/Sec.13(1)(i-a) of
the Hindu Marriage Act.
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Miscellaneous First Appeal No.7485/2014 is filed under
Section 19(1) of Family Courts Act, against the judgment and
decree dated 30.04.2014 passed in M.C.No.2748/2007 on the
file of the VI Additional Principal Judge, Family Court,
Bangalore, rejecting the petition filed u/Sec. 12(1)(a) of
Hindu Marriage Act.
These appeals coming on for Final Hearing, this day,
Vishwajith Shetty J., delivered the following:
JUDGMENT
1. These appeals filed under Section 19(1) of the Family Courts Act, 1984, arise out of the judgment and decree dated 30.04.2014 passed by the VI Addl. Principal Judge of the Family Court, Bengaluru, in M.C.No.2748/2007.
2. The parties are referred to by the rank assigned to them before the Family Court.
3. Brief facts of the case relevant for the purpose of disposal of these appeals are, the petitioner/husband had filed a petition under Section 12(1)(a) read with Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short, 'the Act'), with a prayer to dissolve his marriage with the respondent solemnized on 07.06.2004 at Deepashree Party Hall, BDA Complex, Banashankari 2nd Stage, Bengaluru. 4
4. It is the case of the petitioner that his marriage with the respondent was solemnized as per the Hindu customs and rites and immediately after the marriage, nuptial ceremony was also arranged, but the respondent-wife did not co- operate with the petitioner for cohabitation and this attitude of hers continued even thereafter. It is his specific case that his marriage with the respondent is not consummated and the respondent is an impotent. He has stated that after coming to know that the respondent had certain problems, he took her to various hospitals for treatment of her impotency, but all efforts made by him were in vain. He has stated that he has spent a sum of Rs.2 lakhs for the purpose of treatment of the respondent and the doctors in various hospitals after diagnosing the respondent, had confirmed that she was impotent. He has stated that he has been denied the pleasure of sex by his wife and his wife is not matured physically as well as mentally and she has failed to perform her obligations as a wife. He has stated that she was ill- treating him and humiliating him in all possible ways and also made efforts to assault and murder him with the assistance of anti-social elements. She used to threaten him and his family 5 members stating that she will commit suicide by pouring kerosene on herself and setting fire or by bursting gas cylinder. In this background, he has also lodged a police complaint and sought for protection. He has also stated that the respondent was a money minded lady and for the purpose of money, she was ill-treating him. He has stated that he had purchased gold jewellery as per her demand and she was also demanding to transfer a site in her name which stood in his name. He has stated that along with her friends and family members, he was once brutally assaulted and even his private organs were injured in the said incident. Accordingly, he prayed to allow his petition.
5. The respondent had entered appearance in the said proceedings and filed her statement of objections. She has denied the averments made by the petitioner in his petition and stated that the petitioner was more money minded than her. She also stated that the petitioner had demanded Rs.6 lakhs as dowry at the time of marriage and a sum of Rs.2.5 lakhs was paid to him. Even after the marriage, he was harassing her for dowry, and therefore, she was constrained to seek employment in a private establishment and the entire 6 salary earned by her was taken by the petitioner. She has stated that the petitioner was a person of suspicious nature and used to quarrel with her on petty issues. She has also stated that the petitioner intended to marry her sister, but her sister had refused the proposal and she married some other person. Even in this regard, the petitioner had harassed the respondent and asked her to bring 50% out of Rs.5 lakhs which was kept in her sister's name for the purpose of her marriage. She has stated that the petitioner was in the habit of making false complaints against her and she has also stated that she has filed a case against the petitioner and his relatives for the offences punishable under Sections 498A IPC and Sections 3 & 4 of the Dowry Prohibition Act. She has stated that the petitioner was due to pay her a sum of Rs.6,30,000/- and accordingly had prayed to dismiss the petition and sought for a direction to refund the sum of Rs.6,30,000/- and also prayed to grant a sum of Rs.10 lakhs for life time.
6. In order to substantiate his case, the petitioner had got examined himself as PW-1 and examined another witness as PW-2 and got marked 21 documents as Exs.P-1 to P-21. On 7 behalf of the respondent, she got herself examined as RW-1 and two documents were marked as Exs.R-1 & R-2. The learned Judge of the Family Court, thereafter heard the arguments and vide the impugned judgment and decree dismissed the petition filed by the husband under Section 12(1)(a) of the Act and allowed his petition under Section 13(1)(ia) of the Act. Being aggrieved by the same, the respondent/wife has preferred M.F.A.No.4766/2014 against the judgment and decree allowing the petition of the husband under Section 13(1)(ia) of the Act, and the petitioner/husband has preferred M.F.A.No.7485/2014 against the judgment and decree dismissing his petition under Section 12(1)(a) of the Act.
7. Learned Counsel for the petitioner has contended that the respondent has not attained puberty, and therefore, the marriage between the parties was not consummated. She submits that the learned Judge of the Family Court has failed to appreciate the medical documents available on record which would clearly establish this aspect. She also submits that the respondent has not denied in her statement of objection the specific averment made by the petitioner that 8 she was an impotent and their marriage was not consummated. She, therefore, submits that the Family Court had erred in dismissing the petition under Section 12(1)(a) of the Act.
8. Per contra, learned Counsel appearing for the respondent submits that the petitioner had not proved before the Family Court that the marriage has not been consummated owing to the impotency of the respondent. He submits that the medical records only go to show that the respondent was treated for her infertility and on the basis of the same, it cannot be said that she was impotent. He submits that the doctor who has treated the respondent was not examined before the Family Court, and therefore, the petition under Section 12(1)(a) of the Act was rightly dismissed. He submits that the petitioner has failed to plead and prove the cruelty for the purpose of Section 13(1)(ia) of the Act. The only allegation against the respondent is that she was money minded lady and that itself cannot be considered as cruelty for dissolution of the marriage. He submits that the Family Court was not justified in allowing the petition under 9 Section 13(1)(ia) of the Act, having regard to the material evidence available on record.
9. In reply, the learned Counsel for the petitioner has submitted that the petitioner was denied sexual pleasure by the respondent and the same would amount to cruelty. She submits that there are material on record to show that the respondent had treated the petitioner with cruelty and she and her relatives had assaulted him, and therefore, the Family Court was justified in allowing the petition under Section 13(1)(ia) of the Act.
10. We have carefully considered the arguments addressed on both sides and also perused the material available on record.
11. The petitioner has approached the Family Court seeking reliefs under Section 12(1)(a) and Section 13(1)(ia) of the Act. For the purpose of getting the relief under Section 12(1)(a) of the Act, the petitioner is required to prove that his marriage with the respondent has not been consummated owing to the impotence of the respondent and for the purpose of Section 13(1)(ia) of the Act, the petitioner is 10 required to prove that after solemnization of the marriage, the respondent had treated the petitioner with cruelty.
12. The petitioner has examined himself as PW-1 to prove that the respondent was impotent. He has marked Exs.P-1 to P-4, P-9 & P-12 which are the medical records to show that the respondent was treated in various hospitals. A perusal of the said documents would go to show that the respondent was treated in various hospitals for infertility, and therefore, on the basis of the said documents, it cannot be said that the respondent was impotent. The learned Judge of the Family Court having considered these documents, has rightly held that in the absence of the doctor's evidence who has treated the respondent and who has issued the said documents, no finding can be recorded with regard to the impotency of the respondent. The burden of proving that the respondent was impotent and thereby the marriage was not consummated, is on the petitioner, and therefore, merely for the reason that the respondent has not denied that she is not impotent in her statement of objection, the relief under Section 12(1)(a) of the Act cannot be granted to the petitioner. Therefore, no fault can be found in the judgment and decree passed by the 11 Family Court rejecting the petition of the husband under Section 12(1)(a) of the Act, wherein he had sought the relief of annulling of his marriage by a decree of nullity on the ground that his marriage had not been consummated owing to the impotency of the respondent.
13. In so far as the relief sought for by the petitioner under Section 13(1)(ia) of the Act is concerned, the Family Court having considered the objections filed by the respondent, wherein she has stated that if the amount claimed by her is paid to her, she is ready to give divorce and also considering the other material available on record which would go to show that the respondent had not only assaulted the petitioner, but also treated her mother-in-law with cruelty, has arrived at the conclusion that the petitioner has proved that the respondent had treated him with cruelty after solemnization of his marriage with her.
14. The material on record also go to show that the petitioner has specifically averred in his petition and also deposed during the course of his evidence that the respondent has denied the pleasure of sex to him and she 12 had not co-operated for cohabitation. As rightly contended by the learned Counsel for the petitioner, the respondent has not denied the same in her statement of objection nor she has said that she was ready and willing to cohabitate with the petitioner. Denial of sexual pleasure to a spouse would definitely amount to cruelty. The husband cannot be made to suffer for no fault of his and deprive of his natural urge to enjoy sexual happiness. The married couple are duty bound to discharge certain marital obligations and non-performance of the same would definitely be considered as cruelty to the other spouse. The appreciation of oral and documentary evidence available on record would go to show that the parties do not have faith, respect or love for each other and they have been living separately ever since the year 2007. In our considered view, the Family Court having appreciated all these aspects of the matter, has rightly held that no purpose would be served in asking the couple to stay together and accordingly, has allowed the petition under Section 13(1)(ia) of the Act.
15. The efforts made before the Family Court as well as before this Court for conciliation between the parties have 13 failed. We are of the opinion that the judgment and decree passed by the Family Court allowing the petition under Section 13(1)(ia) of the Act does not suffer from any illegality or irregularity which calls for interference by this Court. Accordingly, the following the order:
Both the appeals are dismissed. The judgment and decree dated 30.04.2014 passed by the VI Addl. Principal Judge of the Family Court, Bengaluru, in M.C.No.2748/2007, is confirmed.
Sd/-
JUDGE Sd/-
JUDGE KK