Karnataka High Court
Smt Suhasini vs Basavantappa on 13 January, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.201142/2017 (MC)
BETWEEN:
Smt. Suhasini W/o Basavantappa Patil,
Age: 27 years, Occ: Household work,
R/o. C/o Sharanappa Siddappa Myaleshi,
Akkamahadevi Colony, Afzalpur,
Tq: Afzalpur, Dist: Kalaburagi.
... Appellant
(By Sri. D.P. Ambekar, Advocate)
AND:
Basavantappa S/o Shantaram Patil,
Age: 30 years, Occ: Private Service,
R/o: Badalad, Tq: Afzalpur,
Dist: Kalaburagi-585 301.
... Respondent
(By Sri. Mahantesh H. Desai, Advocate)
2
This Miscellaneous First Appeal is filed under Section
28 of the Hindu Marriage Act, 1955 R/w Order 41 Rule 1 of
CPC, praying to allow the appeal; set aside the judgment
and decree dated 03.06.2017 passed by the Senior Civil
Judge & JMFC, Afzalpur, allowing M.C.No.08/2015;
consequently, dismiss the said M.C.No.08/2015 with costs
throughout.
This appeal coming on for Final Hearing this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
The appellant-wife has preferred this appeal, assailing the judgment and decree dated 03.06.2017 passed in M.C.No.08/2015 by the Senior Civil Judge & JMFC, Afzalpur, allowing the petition filed by the respondent-husband U/s 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short), seeking divorce.
2. For the sake of convenience, the appellant would be referred to as 'wife' and the respondent would be referred to as 'husband'.
3. The husband filed a petition, seeking divorce invoking the provisions of Section 13(1)(ia)(ib) of the Act, 3 contending that their marriage was solemnized on 12.04.2012 and the parties lead their married life at Pune and in the wedlock, a son was born on 10.10.2013. It is further contended that from the beginning itself the wife was not co-operating in discharging her marital obligations. It is further contended that after the delivery of the child, the wife refused to join the husband and even on the advice of the elders and also her father, the wife has not made any effort to lead the marital life. It is further contended that as there was no chances of reconciliation, a petition with mutual consent for divorce was filed in M.C.No.10/2014. It is further contended that due to some reasons the said petition was withdrawn. It is the specific contention of the husband that the wife had illicit relationship with one Manjunath and she went to the extent of running away from her parental house after the birth of the child. It is also contended that the cradle ceremony of the child was also postponed due to the wife leaving the parental house with one Manjunath. It is further contended that the relationship of the husband and 4 wife is not cordial in view of the desertion and cruelty made by the wife against the husband. Thus, having no other remedy, the husband has filed a petition M.C.No.8/2015, seeking divorce on the ground of cruelty and desertion.
4. On service of notice, the wife appeared and filed her objection denying the allegation made in the petition and contended that she had left the matrimonial house due to the harassment and ill-treatment made by her husband itself. It is also contended that the husband had obtained signature of her father by force and the petition for divorce with mutual consent was filed in April 2014 in M.C.No.10/2014. However, she contended that when she came to know about the same, M.C.No.10/2014 was got dismissed. It is further contended that as her husband suspected the fidelity, she was sustained to mental torture by the husband. As she could not tolerate the ill-treatment, she was forced to leave with her parents and thus sought for dismiss the petition. 5
5. On the basis of the pleadings of the parties, the Tribunal has framed the following:
ISSUES
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6. In support of his contention, the husband examined himself as PW.1 and three witnesses as PWs.2 to 4 and marked 41 documents as Exs.P1 to P41, while the wife examined herself as RW.1 and two witnesses as RWs.2 and 3 and no documents are marked.
7. The Trial Court, considering the evidence and material on record allowed the petition filed by the husband under Section 13(1)(ia)(ib) of the Act.
8. Being aggrieved by the judgment and decree of divorce, the wife has preferred the present appeal. 6
9. We have heard the learned counsel for the appellant and the learned counsel for the respondent.
10. Sri. D.P.Ambekar, learned counsel for the appellant-wife would contend that the divorce is granted without considering the evidence and material on record in the proper prospective. It is also contended that the Trial Court below has gone to the extent of holding that there was an illicit relationship of the wife with one Manjunath, without there being any sufficient material and evidence on record. It is further contended that the Trial Court has failed to consider that there was no efforts made by the husband to take back the wife, on the other hand, the husband has gone to the extent of suspecting the character of the wife and the husband has willfully deserted. Thus, on the said ground, he sought to allow the appeal.
11. Per contra, Sri. Mahantesh H. Desai, learned counsel for the respondent-husband supported the judgment and decree of the Trial Court and submits that 7 the same would not call for interference at the hands of this Court. It is further contended that there is no merit in the appeal filed by the wife, since she has not joined the husband and performed the marital obligations, nor any efforts have been made by her to join the husband. Thus, he sought to dismiss the appeal.
12. In view of the rival contentions urged by the learned counsel for the parties, the point that arises for consideration in this appeal is,
1) Whether the Trial Court was justified in law in granting a decree of divorce under Section 13(1)(ia)(ib) of the Act?
2) Whether the judgment and decree of the Trial Court require interference?
13. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully.
14. Admittedly, the marriage of the parties was solemnized on 12.04.2012 and a son was born to them. 8 As they could not get along with each other, they filed a divorce petition by mutual consent in M.C.No.10/2014. However, the said petition came to be withdrawn.
15. It is not in dispute that the wife is not staying with the husband since 2014 and the mutual consent for divorce was not mutually agreed between the parties. Thus, the husband has filed a petition, seeking divorce on the ground of cruelty and desertion. It is also contended by both the parties that there is no mutual understanding between them and there is also differences of opinion. The Trial Court has granted divorce holding that the wife has willfully left the company of the husband and has caused mental cruelty by not leading the marital life.
16. In order to prove the case of the husband, he examined himself as PW.1 and got examined three witnesses as PWs.2 to 4, who categorically admitted that the husband and wife are not staying together and there is differences of opinion. As per the husband, the wife had left the matrimonial house at the time of delivery of the 9 child and subsequently she had left the parental house with one Manjunath and to substantiate his case that she is having illicit relationship with the said Manjunath, he has produced photographs at Exs.P6 to P20, wherein the said photographs were confronted to RW.1 and she has categorically admitted that the photographs at Exs.P6 to P20 are that of herself and the said Manjunath, but denied that she has illicit relationship with the said Manjunath. Considering the evidence of PWs.1 to 4 and the evidence of RWs.1 and 3 and considering Exs.P1 to P41 and also the admission of RW.1-wife, the Trial Court has come to the conclusion that the wife has caused mental torture to the husband and kept the husband away and did not fulfill her marital obligations. It is also not in dispute that the child born to them is with the husband.
17. Looking into the material on record, it is clear that though the husband has made several efforts to lead the marital life, no efforts have been made by the wife to lead a happy marital life, nor there is a single piece of 10 evidence lead by the wife to show that she is still ready and willing to stay with her husband. The allegations put forth by the husband against the wife would clearly prove that the wife has no intention to lead a married life with the husband, nor intends to join the husband. Considering the evidence tendered by the parties, it is evident that the wife is not interested to lead the married life with her husband and her relationship with the said Manjunath has given mental shock to the husband and its amounts to cruelty.
18. In the case of Shobha Rani V/s Madhukar Reddi (AIR 1988 SC 121), the Hon'ble Apex Court has held that, though the word cruelty is not defined, but looking into the relation of human behaviour and conduct, the cruelty may be mental, physical intentional or unintentional and thus, the cruelty has to be established in view of the facts and circumstances of the case. In the present case, the conduct on the part of the wife leaving 11 the matrimonial home and staying away from the child itself is a cruelty caused by the wife on the husband.
19. In the case of A.Jayachandra V/s Aneel Kaur, reported in (2005) 2 SCC 22, the Hon'ble Apex Court has held that, the matter of inference of cruelty is to be drawn by taking into account the nature and conduct and its effect on the complaining spouse. In this judgment, the Hon'ble Apex Court has considered the Shobha Rani's case.
20. In the present case, the wife has subjected the husband to mental cruelty by not performing the matrimonial obligations and staying away from the child and the husband. The husband and wife are staying separately from 2014 and there is rare chances of appeasement in view of the animus deserendi on the part of the wife to stay away, which is evident from the fact that the wife left the matrimonial home without any reasonable cause in the year 2014 itself and no efforts 12 have been made by the wife to rejoin the matrimonial home.
21. The Hon'ble Apex Court, in Durga Prasanna Tripathy V/s Arundhati Tripathy, reported in 2005 (7) SCC 353 at paragraph No.21 has categorically held that, irretrievable breakdown of marriage living separately for long years, there is no possibility of resuming normal marital life. Paragraph No.21 reads as under:
"21. In our view that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband. There has been an irretrievable breakdown of marriage between the appellant the respondent. The respondent has also preferred to keep silent about her absence during the death of her father-in-law and during the marriage ceremony of her brother-in-law. The complaint before the Mahila Commission does not implicate the appellant for dowry harassment though the respondent in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Mahila Commission was lodged after 7 years of the marriage alleging torture for dowry by the mother-in-law and brother-in-law during the initial years of marriage. The said complaint 13 was filed in 1998 that is only after notice was issued by the Family Court on 27.03.1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanor of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him since more than 7 years. The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the appellant. Apart from that, relationship between the appellant and the respondent have become strained over the years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies her stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by the in- laws of the respondent was an after-thought since the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his 14 efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced the ill-treatment meted out by the respondent to him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce."
22. The Hon'ble Apex Court further observed that, the marriages are made in heaven. Both the parties have reached the stage of "no return" and the parties at this stage cannot lead together forgetting their past.
23. It is true that irretrievable breaking of marriage is not one of the statutory ground on which the Court can direct dissolution of marriage. In the present case, in view of the allegation of leading adulterous life by the wife and the same not been properly rebutted / confuted by the wife and in view of the decision of the Hon'ble Apex Court stated supra, to do complete justice looking into the factual aspects, we are of the considered opinion that the judgment and decree passed by the Trial Court is just and proper and does not call for any 15 interference by this Court. Accordingly, point No.1 is answered in the affirmative and point No.2 is answered in the negative.
24. In the result, we pass the following:
ORDER
i) The appeal filed by the wife is dismissed.
ii) The judgment and decree dated 03.06.2017 passed in M.C.No.08/2015 by the Senior Civil Judge & JMFC, Afzalpur is hereby confirmed.
iii) Parties to bear their respective costs.
iv) In view of dismissal of the appeal, I.A.2/2017 for stay does not survive for consideration and the same is accordingly dismissed.
Sd/-
JUDGE Sd/-
JUDGE SMP/LG