Karnataka High Court
Dr. A.R. Aruna Kumar vs Smt. Nalini on 4 September, 2002
Equivalent citations: AIR2003KANT25, I(2003)DMC504, AIR 2003 KARNATAKA 25, 2002 AIR - KANT. H. C. R. 2683, (2003) 1 DMC 505, (2003) 1 HINDULR 247, (2003) 1 MARRILJ 502, (2003) 1 RECCIVR 588, (2003) 2 ICC 24
Author: Tirath S. Thakur
Bench: Tirath S. Thakur, D.V. Shylendra Kumar
JUDGMENT Tirath S. Thakur, J.
1. This Miscellaneous First Appeal arises out of a Judgment and Decree passed by the II Addl. Civil Judge, Mysore in MC No. 6/1990 whereby the petition filed by the appellant--husband for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 has been dismissed.
2. The parties were married according to the Hindu customary rights in January 1985 at Pertyapatna, Mysore District. They set up their marital home at Bannur, but later shifted to Mysore where they lived up to November 1986. M. C. No.6/1990 seeking dissolution of marriage was filed by the appellant before the Court below on the allegation that the respondent wife had treated the husband with cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955 which entitled him to a decree for dissolution of the marriage. The case set out in the petition was that the respondent-wife had the bad habit of stealing valuables found in any place without realising the consequences of such an act and unmindful of the fact that she was the wife of an Officer. The petition referred to an incident in this regard wherein the respondent is alleged to have committed theft of a gold chain weighing 30 gms. and belonging to the family of one Sri Siddegowda who was the owner of the house in which the petitioner and the respondent were living together as tenants. According to the petitioner, when he suddenly noticed the appearance of the gold chain in question, he inquired from the respondent as to how she had acquired the same. The respondent could not according to the husband give a proper reply. The petitioner it is alleged had to suffer humiliation and settle the matter with his landlord to save his respect in the society. This act according to the appellant -husband caused an awkward position for the petitioner and lowered his reputation for which he reprimanded the respondent who left the matrimonial home never to join him again. A legal notice sent to the respondent-wife having evoked no response from her, the petitioner-husband moved the Court for a decree of dissolution of the marriage.
3. In the written statement filed by the respondent wife, the allegation that the respondent was in the habit of stealing valuables found at any place was denied as being totally false. The incident referred to in the petition was also denied as false. It was also denied that the alleged incident had put the husband in an awkward position or adversely affected or lowered his reputation in the society. It was alleged that although the gold chain was found by her in the front courtyard of the house, she had promptly reported the same to the petitioner and handed over the chain to him. It was according to the respondent the petitioner who had made an attempt to sell the chain to a goldsmith and in the process got exposed. The chain was subsequently restored to the owner Sri Siddegowda. The allegation that the respondent had deserted the petitioner without any sufficient cause and thereby treated him with cruelty was denied. It was according to the wife, the appellant-husband who had deserted her for no fault of hers. The written statement went on to allege that the petitioner had developed an illicit intimacy with one Mrs. Synomy Menon whom the appellant used to meet frequently. It was alleged that the appellant used to go out of Bannur on false pretexts only with a View to pursue his illicit liaison with the said lady. This act according to the respondent caused Immense anguish and embarrassment to her. So much so the petitioner brought one of the children of the said Smt. Synomy Menon to Mysore to get him admitted to a convent and shifted the family from Bannur to Mysore only with a view to look after the child. It was further alleged that the petitioner husband had brought to his house at Mysore one Sri Ramegowda who had himself deserted his wife. The husband it was alleged had dropped the respondent wife at her parents house in November 1986 with the assurance to take her back within a fortnight. That promise was never made good. Sincere efforts made by the wife to join the company of the husband had also proved abortive. The respondent prayed for the dismissal of the petition.
4. After the filing of the written statement, the petitioner sought permission to amend the petition so as to add para 5-A to the same. That permission was granted by the Court. Para 5A of the amended petition alleged that the respondent had caused cruelty to the petitioner husband by alleging an illicit intimacy with Mrs. Synomy Menon and by calling him a drunkard and a drug addict.
5. On the basis of the above pleadings, the Trial Court framed two issues in the following words :
"1) Has the petitioner proved that after the solemnization of the marriage, the respondent has treated him with cruelty?
2) is the petitioner entitled for a decree for divorce?"
6. In support of his case, the petitioner did not lead any evidence except getting his own statement recorded. The respondent however did not adduce any evidence in defence. The Trial Court has upon appreciation of the material on record decided both the issues in favour of the respondent. It has held that the case set up by the petitioner had not been proved to justify the dissolution of marriage between the parties. The petition was accordingly dismissed. Hence, the present appeal.
7. Appearing for the appellant, Mr. Bhagavan argued that the Trial Court was in error in holding that the incident relating to the alleged theft of the gold chain did not make out a case for dissolution of the marriage on the ground of cruelty. Alternatively, he submitted that the allegations levelled by the respondent wife regarding the appellant being a drunkard and addicted to drugs and a man with a loose moral character having gone un-substantiated would by themselves, provide a reasonable ground for the appellant to seek dissolution of the marriage. He submitted on the authority of the decision of the Supreme Court in "V. Bhagat v. Mrs. D. Bhagat" that the allegations made in the objections filed by the wife could themselves constitute a ground for grant of divorce without any trial.
8. On behalf of the respondent-wife, it was submitted that the appellant had failed to make out a case for grant of a decree for dissolution of marriage on the basis of the case set up by him and that a single incident like the one alleged by the appellant-husband could in any case not provide a sound basis for the Court to dissolve the marriage. The decision of the Supreme Court relied upon by the appellant husband was according to Learned Counsel for the respondent delivered in the peculiar facts and circumstances of that case and could not be understood to be laying down a proposition of law that allegations and counter allegations made in the pleadings could without a full trial make out a case for grant of divorce.
9. Section 13 of the Hindu Marriage Act, 1955, envisages dissolution of the marriage in a petition filed either by the husband or the wife on any one or more grounds set out thereunder. Clause (ia) of Sub-section 1 to Section 13 of the Hindu Marriage Act, 1955, provides for dissolution of marriage by a decree for divorce on the ground that the other party has after the solemnization of the marriage treated the petitioner with cruelty. The expression "treated the petitioner with cruelty" clearly signifies that the opposite party must have been guilty of a conduct as could be said to be something more than ordinary wear and tear of married life. While it may not be necessary for the aggrieved spouse to prove that the opposite party was guilty of any act of omission or omission intended to hurt, annoy or torture the aggrieved party, yet the conduct of the opposite party ought to be shown to be such as would imply knowledge to the offending spouse about the effect which his or her conduct or treatment is having on the other party. Acts like unruly temper of a spouse, moody, whimsical or exacting behaviour of any one of the two parties, incompatibility of temperament, neglect and want of affection may not therefore by themselves constitute cruelty as a ground for grant of dissolution of the marriage. Suffice it to say that it is not only the nature of the act committed by the offending spouse, but also the persistence with which the same is committed that shall have to be taken into consideration while deciding whether his or her conduct tantamounts to a treatment that is cruel towards the other spouse. There is no gain-said that certain incidents may sometimes cause mental anguish to one of the spouses but unless it is shown that the incident involving the offending spouse was of such a grave character or that the same was repeated by him/her without any regard to the effect which the same was having on the aggrieved spouse, it will not provide a ground for dissolution. Marital life sometime becomes difficult for one of the spouses for reasons beyond the control of the other spouse. For instance, if one of the spouses suffers from a disease which does not in itself constitute a ground for dissolution of marriage, but which nevertheless makes cohabitation with the other spouse difficult. The inability of the spouse suffering such a disease to discharge his or her marital obligations cannot be said to tantamount "to treatment of the other spouse with cruelty". in Jia Lal v. Sarla Devi AIR 1978 J & K 69, the wife suffered disease in her nose which emitted awful smell and made cohabitation difficult. A Full Bench of the High Court of Jammu & Kshmir held that the wife could not help her condition and that there was no intention on her part to make life of the husband miserable so as to provide a basis for dissolution of the marriage. A Division Bench of this Court has however in Dr. Srikant Rangacharya Adya v. Smt. Anurdha held that the intention behind the conduct of the offending spouse is not material.
10. In Trimbak Narayan Bhagwat v. Smt. Kumudini Trimbak Bhagwat , the Bombay High Court has taken a similar view and held that the intention was not always necessary to prove that the offending spouse had treated the petitioner with cruelty. Suffice it to say that whether or not a given act of one of the spouses can tantamount to treating the other spouse with cruelty would depend upon the nature of the act and the facts and circumstances of each case. Even if the act complained of was not in itself intended to cause any mental cruelty to the other spouse the same must be shown to be sufficiently serious or else the repetition thereof proved to be so persistent as to imply knowledge to the offending spouse that the same is causing or is bound to cause cruelty to the aggrieved spouse.
11. In the instant case, the appellant had relied upon a solitary incident in support of his version that the respondent wife treated him with cruelty. That incident as seen earlier related to the alleged theft of a gold chain owned by Sri Siddegowda, owner of the house in which the parties were residing together. Sri Siddegowda was not examined to prove the allegation that the gold chain had in fact been stolen by the respondent wife and not found lying in the courtyard as alleged by her. There is no explanation forthcoming for the failure of the appellant to examine the owner of the gold chain. In the absence of the deposition of the owner. We have on the one hand the version of the appellant-husband that the chain was stolen and on the other the version of the wife that it was found by her lying in the courtyard. There being no corroboration for the version of the husband, it is difficult to accept his case that the respondent was guilty of theft. Suffice it to say that the incident relating to the chain cannot be itself constitute an act of such serious nature as to justify dissolution of a Hindu marriage. That the alleged theft was committed by the respondent with a view to cause cruelty to the appellant husband or to cause any embarrassment to him or to lower his own self respect is not the case of the appellant himself. Even if one were to assume for the sake of an argument that the respondent wife had actually committed a theft, the incident could not in our opinion form a safe basis for putting an end to the wedlock, especially when it is not the case of the appellant that the respondent wife had committed any other act of impropriety or theft to justify the inference that the wife was unmindful of the position of the husband or his respect in the society and deliberately indulging in such acts with a view to cause mental torture, humiliation or harassment to him. The Trial Court was in that view justified in holding that the alleged incident regarding theft of the gold chain was insufficient to justify a decree of divorce.
12. That brings us to the alternative submission by Mr. Bhagavan that the allegations of illicit liaison with Smt. Synomy Menon and that the appellant husband being a drunkard and drug addict would itself justify dissolution of marriage on the ground of cruelty. In "V. Bhagat v. Mrs. D. Bhagat" , the husband who was a practising advocate aged about 55 years had sought divorce from his wife who was herself working as Vice President in I.T.D.C., a Public Sector Corporation. The couple were married in the year 1966 and had two grow-up children a son and a daughter. While, the son was a doctor, the daughter was working in an American Company in California. In reply to the petition filed by the husband seeking divorce on the ground of cruelty, the wife had filed a written statement in which she had alleged that the petitioner-husband was a mental patient, that he was not a normal person, that he required psychological treatment to restore his mental health, that he was suffering from paranoid disorder and mental hallucinations and that he and all the members of his family were a bunch of lunatics. These allegations against the petitioner-husband were made even in his cross-examination. It was in that background that the Court held that allegations made by the wife went beyond the limits of a bona fide defence. The statements made by the wife were not found to be mere protestations of an injured wife, but positive assertions of mental imbalance and streak of insanity in the mental build-up of the husband. The Court felt that having made such serious allegations, it was difficult to accept the wife's stand that she still wanted to live with the petitioner. The conclusion drawn by the Court was that the wife had resolved to live in agony only to make life a miserable hell for the husband also. It was this kind of callous attitude in the context of the facts of that case that the Court held that the respondent-wife bent upon treating the petitioner-husband with cruelty. A decree for dissolution was accordingly passed by the Court in the following words :
"This type of callous attitude in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the peculiar features of this case, We are of the opinion that the marriage between the parties should be dissolved under Section 13(1)(ia) of Hindu Marriage Act and we do so accordingly."
13. What is important is that before parting with the case, the Court struck a note of caution and observed that merely because there are allegations and counter allegations, a decree of divorce cannot follow. There must according to the Court be some extraordinary features to warrant grant of divorce on the basis of the pleadings without a full trial. The Court observed :
"Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be restored to only to clear up an insoluble mess, when the Court finds it in the interest of both the parties."
14. It is therefore obvious that the Judgment in Bhagat's case was delivered in its peculiar facts and circumstances. The present is not a case where the Court can take the allegations made by the wife in her written statement to be providing a safe basis for holding that the wife was by reason only of those allegations treating the husband with cruelty. We say so because the allegations made in the written statement are not in the first place as serious as those made against the husband in Bhagat's case. It is true that the wife has alleged an illicit liaison between the husband and Mrs. Synomy Menon, but the circumstances giving rise to her plea that the said liaison exists has not been disputed by the husband. The fact that Mrs. Synomy Menon's husband was working outside the country as also the fact that the appellant husband had got Mrs. Synomy Menon's minor child admitted to a convent in Mysore have been admitted. The wife's allegation that there was illicit relationship between the appellant husband and Mrs. Synomy Menon could therefore have arisen from the above circumstances. It will be stretching the matter too far to say that the allegations of an illicit, relationship between the appellant and Mrs. Synomy Menon was made only with a view to cause mental cruelty to the husband. The allegations of this type may sometimes arise not ao much out of the facts that are known to other spouse but the suspicion that is created by the conspiracy of circumstances.
15. The second reason why the allegation cannot provide a ground for dissolution is that while false allegations of unchastity have been viewed seriously by the Courts when the same are made against the wife, such allegations made against the husband do not in terms of mental torture and agony necessarily have a similar impact. The reason why a false charge of unchastity against the wife is viewed seriously is because of the high moral ground on which the fidelity and commitment of Hindu wives is placed towards their husbands. To suggest that the wife has forsaken her commitment or deviated from what is morally correct in life when proved false can cause to the aggrieved wife the worst kind of mental torture. The same may not be true when allegations are made against the husband. It may not be possible to state as a general proposition that a false allegation of infidelity made against the husband can never cause mental torture to him, but what is important is that such torture must be proved as a fact. The social melieu in which the parties live, their value system and out-look also assume importance in such situations. The appellant in the instant case has made no allegation even in his own statement recorded by the Court below that the charge of unchastity has caused to him any cruelty or made him feel that it would be injurious for his health, life or limb to stay with the wife. It is therefore not possible to grant a decree to him on the ground that the allegation was false and had caused mental cruelty. That is true even about the allegation that the husband is a drunkard or a drug addict.
16. In the circumstances, therefore, We see no reason to interfere with the impugned Judgment, this appeal fails and is hereby dismissed leaving the parties to bear their own costs.