Karnataka High Court
Dr S Vijayakumar vs Smt S M Pramila on 3 February, 2023
Bench: Alok Aradhe, S Vishwajith Shetty
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MFA No. 2954 of 2015
C/W MFA No. 5584 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE ALOK ARADHE
AND
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
M.F.A. NO. 2954 OF 2015 (FC)
C/W
M.F.A. NO.5584 OF 2015 (FC)
IN M.F.A.NO.2954/2015:
BETWEEN:
SMT. S.M. PRAMILA
W/O DR. VIJAYA KUMAR
AGED ABOUT 50 YEARS
Digitally
CASHIER, STATE BANK OF MYSORE
signed by B A MARKET BRANCH, SAYAJI RAO ROAD
KRISHNA
KUMAR MYSURU - 1
Location: AND RESIDENT OF #1175
High Court of 5TH CROSS, 3RD MAIN
Karnataka
VIVEKANANDA NAGAR
MYSURU - 570 005.
...APPELLANT
(BY SRI SACHIN V.R., ADV.)
AND:
DR. S. VIJAYA KUMAR
SELECTION GRADE LECTURER
OMKARURAL SOMANI COLLEGE
OF EDUCATION, KUVEMPUNAGAR
MYSURU - 9
AND RESIDENT OF #1175
5TH CROSS, 3RD MAIN
VIVEKANANDA NAGAR
MYSURU - 570 005.
...RESPONDENT
(BY SRI ANANDA K ., ADV.)
THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT,
PRAYING AGAINST THE JUDGMENT AND DECREE DATED:2.3.2015
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MFA No. 2954 of 2015
C/W MFA No. 5584 of 2015
PASSED IN M.C NO.117/2011 ON THE FILE OF THE JUDGE,
ADDITIONAL FAMILY COURT, MYSURU, ALLOWING THE PETITION
FILED U/SEC 13(1)(i)(a) OF HINDU MARRIAGE ACT.
IN M.F.A.NO.5584/2015:
BETWEEN:
DR. S. VIJAYA KUMAR
SELECTION GRADE LECTURER
OMKARURAL SOMANI COLLEGE
OF EDUCATION, KUVEMPUNAGAR
MYSURU - 9
AND RESIDENT OF #1175
5TH CROSS, 3RD MAIN
VIVEKANANDA NAGAR
MYSURU - 570 005.
...APPELLANT
(BY SRI ANANDA K ., ADV.)
AND:
SMT. S.M. PRAMILA
W/O DR. VIJAYA KUMAR
AGED ABOUT 50 YEARS
CASHIER, STATE BANK OF MYSORE
MARKET BRANCH, SAYAJI RAO ROAD
MYSURU - 1
AND RESIDENT OF #1175
5TH CROSS, 3RD MAIN
VIVEKANANDA NAGAR
MYSURU - 570 005. ...RESPONDENT
(BY SRI SACHIN V.R., ADV.)
THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT,
PRAYING AGAINST THE JUDGMENT AND DECREE DATED:02.03.2015
PASSED IN M.C NO.117/2011 ON THE FILE OF THE JUDGE,
ADDITIONAL FAMILY COURT, MYSURU, ALLOWING THE PETITION
FILED U/SEC 13(1)(ia) OF HINDU MARRIAGE ACT.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:
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MFA No. 2954 of 2015
C/W MFA No. 5584 of 2015
JUDGMENT
These two Miscellaneous First Appeals filed under Section 19 of the Family Courts Act, 1984, arise out of the judgment and decree dated 02.03.2015 passed by the Judge, Additional Family Court at Mysuru, in M.C.No.117/2011. Therefore, both the appeals are clubbed, heard together and disposed of by this common judgment.
2. Heard the learned Counsel for the parties and also perused the material available on record.
3. Brief facts of the case as revealed from the records that may be necessary for the purpose of disposal of these appeals are, the marriage of the appellant-wife and the respondent-husband was solemnized on 14.05.2004 at Mysuru, as per the rites and customs prevailing in their community. Before the said marriage, the respondent had married one T.Mohana Kumari who died on 07.09.2021 after giving birth to a male child namely S.V.Vishal. Subsequent to the death of said T.Mohana Kumari, the respondent had married the appellant. Thereafter, the appellant and the respondent lived together as husband and wife. After some days, the appellant -4- MFA No. 2954 of 2015 C/W MFA No. 5584 of 2015 had started ill-treating and insulting the respondent in filthy language for no fault of him. On 15.03.2009, the appellant had created a scene and started making untenable allegations against him stating he had plotted to kill her. Subsequently, the respondent got issued a legal notice on 23.03.2009 to the appellant calling upon her to come and join him, to which the appellant had replied expressing her unwillingness to join him. Due to the mental agony and harassment meted out by the appellant-wife, the respondent-husband preferred M.C.No. 117/2011 under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short, 'the Act') for dissolution of their marriage that was solemnized on 14.05.2004.
4. In the said proceedings, the appellant had entered appearance and filed her statement of objections denying the averments made against her. In order to substantiate his case, the respondent examined himself as PW-1 and got marked 9 documents as Exs.P1 to P9, whereas the appellant examined herself as RW-1 and got marked 8 documents as Exs.R1 to R8. The Family Court vide the impugned judgment and decree allowed the petition and dissolved the marriage between the parties and further directed the respondent to pay permanent -5- MFA No. 2954 of 2015 C/W MFA No. 5584 of 2015 alimony of Rs.5 lakhs to the appellant within two months from the date of the judgment. It is under these circumstances, the appellant-wife has filed MFA No.2954/2015 challenging the dissolution of the marriage and the respondent-husband has filed MFA No.5584/2015 challenging the judgment and decree in so far as it relates to awarding permanent alimony to the wife.
5. Learned Counsel for the appellant submitted that the Family Court has erred in allowing the petition filed by the respondent-husband under Section 13(1)(ia) of the Act. He submits that the material on record do not establish that the appellant had treated the respondent with cruelty after solemnization of their marriage, and therefore, the Family Court was not justified in allowing the petition. He submits that the material on record would go to show that the parties are staying under the same roof even on this date, and therefore, the allegations made by the respondent were baseless and the same was not proved in accordance with law. He submits that the appellant is ready and willing to reside with the respondent even now and accordingly, prays to allow the appeal. -6- MFA No. 2954 of 2015 C/W MFA No. 5584 of 2015
6. Per contra, learned Counsel for the respondent- husband submits that the appellant had alleged that the respondent was impotent and the son born to him from his first marriage was a test tube baby. He submits that the appellant never intended to perform her marital obligations and throughout she had treated the husband with cruelty after solemnization of their marriage and though they were staying under the same roof, she never used to cook for the respondent and this conduct of hers would clearly amount to cruelty. He submits that the respondent had issued a legal notice prior to the filing of the petition and the respondent had replied to the said notice, wherein she has shown her unwillingness to join him and live a happy married life. He submits that the parties have separated from each other for the last more than ten years and they do not have respect or faith on each other, and therefore, there is no purpose in continuing the marriage. He submits that the respondent had forwarded a Demand Draft for a sum of Rs.5 lakhs to the appellant immediately after the impugned judgment and decree was passed, but the appellant had returned the said Demand Draft. He submits that the appellant is working in a Bank and she is -7- MFA No. 2954 of 2015 C/W MFA No. 5584 of 2015 gainfully employed, and therefore, the Family Court had erred in granting permanent alimony to her. Accordingly, he prays to dismiss the appeal filed by the appellant-wife and allow the appeal filed by the respondent against the order granting permanent alimony of Rs.5 lakhs to the appellant.
7. The respondent-husband had approached the Family Court with a prayer for dissolution of the marriage under Section 13(1)(ia) of the Act. In his petition, he has averred that the appellant was insulting him by stating that he was impotent and the son born to him from his first wife was a test tube baby. The appellant in her statement of objections has not denied this contention of the respondent and on the other hand, she has virtually admitted the same by stating that she had not conceived on account of biological factors attributable to the respondent-husband. She has also stated that as per her knowledge, the respondent's son was a test tube baby. The respondent has also stated that due to the ill-treatment meted out by the appellant and also having regard to her behaviour, his son had left the house and had taken shelter in his grandparents house. The appellant has not disputed in her -8- MFA No. 2954 of 2015 C/W MFA No. 5584 of 2015 statement of objections that the minor son had left their house and he was residing with his grandparents.
8. 'Cruelty' for the purpose of Section 13(1)(ia) of the Act could be either in the form of mental cruelty and or it can be physical cruelty. The allegation of impotency made by the appellant against the respondent would definitely amount to mental cruelty and in addition to such allegation made by her, the appellant had further stated that the child born to the respondent from his first marriage was a test tube baby. These allegations are made by the appellant without there being any basis. The material on record would also go to show that the minor child of the respondent who was staying with him as on the date of his marriage with the appellant, had thereafter left the house and he is presently residing with his grandparents. The fact that the son has left the house after the marriage of the appellant with the respondent and the appellant's assertion that the son was a test tube baby, etc., would go to show that the atmosphere in the house after the appellant's marriage with the respondent was not conducive for a peaceful living. The respondent during his deposition has reiterated his allegations against the appellant that she had failed to perform her marital -9- MFA No. 2954 of 2015 C/W MFA No. 5584 of 2015 obligations and she was always in the habit of pinpricking and insulting the respondent and nothing has been elicited from him during the course of his cross-examination to disbelieve his version. The material on record would also go to show that though the appellant has been staying in the matrimonial house, she has been cooking separately for herself, while the respondent has been taking care of himself.
9. The respondent had issued a legal notice dated 23.03.2009 calling upon her to join him, prior to he filing the petition against the appellant. In reply to the said notice, the appellant had virtually expressed her unwillingness to join him. This attitude of hers would raise a serious doubt about her contention that she was all along ready and willing to live with the husband, but it was the respondent who had neglected and deserted her. The material on record would also go to show that though the appellant was staying in the same house along with the respondent, she had filed various complaints against the respondent alleging ill-treatment and the respondent who is an educated and responsible member of the society working as a Lecturer in a College was made to unnecessarily suffer at the hands of the appellant.
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MFA No. 2954 of 2015C/W MFA No. 5584 of 2015
10. The respondent has narrated several instances of cruelty meted out on him by the appellant after solemnization of their marriage. On one such instance that had taken place on 15.03.2009, the appellant had created a scene by making false and untenable allegations against the respondent and his brother stating that they had attempted to kill her, and thereafter, it was found that the allegations made by the appellant were baseless. Because of the indifferent behaviour of the appellant, the respondent is deprived of the love and company of his son who was constrained to take shelter with his grandparents. All these aspects have been taken note of by the learned Judge of the Family Court and having appreciated the oral and documentary evidence available on record and also in the background of the law laid down by the Hon'ble Supreme Court in the case of RAVI KUMAR VS JULMI DEVI - (2010) DMC 411 (SC) and SAMAR GHOSH VS JAYA GHOSH - (2007) DMC 597 (SC), the Family Court has rightly arrived at a conclusion that the appellant had treated the respondent with cruelty after the solemnization of their marriage. The Family Court has also taken into consideration that the relationship between the parties was completely broken and there was no chance of re-
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MFA No. 2954 of 2015C/W MFA No. 5584 of 2015 union and the appellant was in the habit of making false complaint against the respondent on petty issues. It is under these circumstances, the Family Court has arrived at a conclusion that there is no point in asking the parties to stay together and live a married life, and therefore, the petition filed under Section 13(1)(ia) of the Act was allowed by the Family Court and the marriage between the parties that was solemnized on 14.05.2004 was dissolved. We find no good reason to differ with the view taken by the Family Court and the learned Counsel appearing for the appellant has failed to point out any illegality or irregularity in the judgment which has been impugned herein.
11. The Family Court taking into consideration that the marital status of the parties would be disrupted in view of the decree of divorce, has further proceeded to award Rs.5 lakhs as permanent alimony to the respondent. The respondent- husband who has challenged the impugned judgment and decree in so far as it relates to awarding permanent alimony to the appellant, had in fact forwarded a Demand Draft for the aforesaid amount of Rs.5 lakhs to the appellant immediately after passing of the impugned judgment. However, the
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MFA No. 2954 of 2015C/W MFA No. 5584 of 2015 appellant has refused to receive the same and it is stated that the Demand Draft has been returned to the respondent by the appellant. It is only after receiving back the Demand Draft from the appellant, the respondent-husband has thought it fit to challenge the impugned judgment in so far as it relates to awarding Rs.5 lakhs as permanent alimony to the appellant. Since the respondent has shown his readiness and willingness to pay the amount of Rs.5 lakhs awarded by the Family Court as permanent alimony to the appellant, even though the appellant is also employed and earning good income, we are not inclined to entertain the appeal filed by the respondent challenging the impugned judgment in so far as it relates to awarding permanent alimony of Rs.5 lakhs to the appellant. Under the circumstances, we proceed to pass the following order:
Both the appeals are dismissed.
Sd/-
JUDGE Sd/-
JUDGE KK