Karnataka High Court
Smt. Sapna W/O Rajashekhar Mangalgi vs Rajshekhar S/O Shivasharanappa ... on 30 June, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JUNE 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 200137 OF 2020
(MC)
BETWEEN:
SMT. SAPNA W/O. RAJSHEKHAR MANGALGI,
AGE 37 YEARS, OCC.- HOUSEHOLD,
R/O.- LINGAD ROAD, CHALUKYA NAGAR,
VIJAYAPUR, CORRECT ADDRESS H.NO.39,
VIJAY NAGAR COLONY,
ALAND ROAD, KALABURGI. ... APPELLANT
(BY SMT.SAPNA, PARTY-IN-PERSON)
AND:
RAJSHEKHAR
S/O. SHIVASHARANAPPA MANGALGI,
AGE 43 YEARS, OCC.- NIL,
R/O.- H.NO. 39, VIJAY NAGAR COLONY,
ALAND ROAD, KALABURGI 585-101 ...RESPONDENT
(BY SRI.DEEPAK V. BARAD, ADV.)
THIS MFA IS FILED UNDER SECTION 19(1) OF F.C. ACT,
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND
DECREE DATED 21.12.2019 PASSED BY THE DISTRICT JUDGE,
FAMILY COURT, KALABURAGI ALLOWING M.C.NO.103/2015
AND CONSEQUENLTY DISMISS THE SAID M.C.NO.103/2015
WITH COSTS THROUGHOUT, IN THE INTEREST OF JUSTICE
AND EQUITY.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.02.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed under Section 19(1) of the Family Courts Act, 1984, by the respondent/wife challenging the judgment dated 21.12.2019 in M.C.No.103/2015 on the file of the Family Court at Gulbarga ('the Trial Court' in brevity), in allowing the petition filed by the petitioner/husband under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
2. The appellant is respondent and the respondent in the present case is the petitioner before the Trial Court. For the sake of convenience, the parties will be referred to as per their status before the trial court.
3. Briefly stated the facts are, the petitioner and the respondent are a couple, their marriage was 3 solemnized on 28.12.2013 at APMC Mangala Kalyana Mantapa, Indi Road, Bijapur. After the marriage, respondent/wife resided in the matrimonial home for a period of 15 days happily. Thereafter, she started behaving indifferently, quarreling with the petitioner and his family members. She claimed that she was not willing and interested in the alliance with him, it was a forced marriage for her and she did not show any interest in the marital life. Inspite of advice by the elders, she did not heed to it and expressed that she wants to put an end to her marital relationship with the petitioner. She did not co-operate with him even during the short stay, did not take care of his aged parents and she had thrown hot water on the mother-in-law. She started proclaiming openly that the petitioner is impotent, she never allowed the friends and relatives of the petitioner to visit the matrimonial home and those who did come received insults from her and she was making allegations that 4 the petitioner is having illicit relationship with another woman. She did not allow the petitioner to have intercourse on the first night. She told him that if he forcibly tries to have sex with her, she will make a hue and cry and create a scene. She put the petitioner and his family members under fear and forced him to give her divorce from the marriage in which she was not interested. The respondent is a short-tempered lady, she damaged a cell phone by throwing it away and tore the marriage clothes of the petitioner. Every day and night, she picked up quarrels with the petitioner, threatening that she will commit suicide if there is any force for intercourse. At the time of marriage, petitioner was working at Vadodara, Gujarat and because of the torture being committed by the respondent, he lost his job. In the month of February 2014, the respondent voluntarily left the matrimonial home. In the month of March 2014, the petitioner along with the elders, visited the 5 parental home of the respondent, panchayat was held and her parents tried to convince her, but she did not heed to their advice. Contrarily, she threatened the petitioner that he should not come to her parental home again. Thereby the marriage between the petitioner and the respondent, so also their relationship, has broken down, hence the petitioner has approached the trial court seeking dissolution of marriage on the ground of cruelty.
4. The respondent contested the claim denying the allegations made against her. She admits her marriage with the petitioner. It is her case that 18 days after the marriage, the petitioner and his family members started ill-treating her, insisting her to bring the balance dowry of Rs.3,00,000/- agreed at the time of engagement ceremony. The petitioner took her to Vadodara, Gujarat where he was working as a Mechanical Engineer. The sister of the petitioner 6 Smt.Sheela was also working at VTU Company in Vadodara. Even at Vadodara, the petitioner had persisted her for the balance dowry upon the instigation by his sister Sheela and her husband Sathish. The petitioner used to return home very late, never spent time with the respondent, the sister of the petitioner told him over phone not to co- operate with the respondent for sexual intercourse until she brings the balance dowry. For this reason, the petitioner maintained distance from her and started torturing her mentally and physically. In the month of April 2014, the petitioner was brought back to Gulbarga. Even thereafter he continued his ill- treatment, demanding the balance dowry and he did not mend his ways despite advice given by elders. On 14.04.2015, the petitioner came home in a drunken condition, assaulted the respondent on her left ear and abused her in filthy language. She took treatment at Basaveshwara Hospital. Her parents, 7 after coming to know about it, visited her, but did not initiate any legal action against the petitioner, as they did not want to strain the relationship between husband and wife.
4.1. It is further pleaded that the petitioner filed the divorce petition showing the respondent's address as 'Vijayapura' even though she is residing in Gulbarga and obtained an exparte decree of divorce on 29.02.2016. She has challenged the same before this court in M.F.A.No.201230/2016. The petitioner after getting the divorce filed a complaint to the Chowk Police Station, Gulbarga, that even after the divorce, the respondent is residing in their house. She was summoned to the Police Station. Her parents came to the Police Station and they told that the petitioner never informed about the filing of the divorce petition and they have not received any Court notice. The petitioner started posing threat to the 8 respondent by sending rowdy elements to her house threatening her to withdraw the appeal in M.F.A.No.201230/2016. She does not want to put an end to her relationship with the petitioner and she sought for dismissal of the petition.
5. Before the trial court, the parties have led the evidence. The petitioner examined himself as PW-1 and marked as many as 35 documents as per Exs.P1 to P35. The respondent examined herself as DW-1 and marked as many as 53 documents as per Exs.R1 to R53.
6. The trial court after hearing the parties and considering the materials placed before it by the impugned judgment did not accept the defence of the respondent and held that the respondent has subjected the petitioner to mental cruelty and thereby allowed the petition dissolving the marriage between the petitioner and the respondent by a decree of 9 divorce. Aggrieved by the said judgment, the respondent has filed this appeal on various grounds.
7. We have heard the arguments of Smt.Sapna R.Mangalgi, Party-in-person, who is appellant herein and Sri.Deepak V.Barad, learned counsel for the petitioner/respondent.
8. It is the contention of the appellant that trouble started to her in the matrimonial home for the sake of a dowry amount of Rs.3 lakhs and in order to secure the same from her, she was kept away from sexual life with her husband. Her mother-in-law suffered a heart attack in the year 2011 itself and her marriage was performed two years later and she is not responsible for the same. Her husband has not resigned from the job at Vadodara because of her, but he tendered resignation in order to do the business at Kalaburagi. After marriage, she never resided in her parental home at Bijapur and she is residing in the 10 matrimonial home at Kalaburagi, she never left the company of her husband. False allegations are thereby made against her that she has subjected her husband and his family members to cruelty and also regarding non-performance of marital obligations. In the first week of March 2014, she was residing at Vadodara along with her husband. Another false allegation was created against her that her husband and his family members went to meet her and her parents at Bijapur, but there was no such occasion. She is unaware of the action taken by her husband to seek divorce from her. Though she was residing at Kalaburagi itself, false address was furnished in the divorce petition that she is residing in Bijapur and purposefully obtained an order of exparte decree of divorce. She has challenged the same before this Court in M.F.A.No.201230/2016 and the exparte decree of divorce was set aside and it was remanded back to the trial court.
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8.1. She has further submitted that, she filed cases under the provisions of Protection of Women from Domestic Violence Act, 2005 and other cases subsequent to filing of the divorce petition, it shall not be a ground for 'cruelty' which the trial court has wrongly appreciated. She is very much interested in the marriage and wants to continue the marriage and to lead a happy marital life with her husband, but for the greed for money to help his brother to settle in life, she has been targeted and was subjected to mental and physical cruelty. Physical torture against her is evidenced by her medical treatment at Basaveshwara Hospital in the month of April 2015 and she was persuaded by her parents to maintain a good relationship with her husband. There is an interference by Smt.Sheela, sister of her husband, who works at Vadodara and even her daughter Vinitha. Her husband's another sister's son Abhishek has ill-spoken about her and harassed her. 12
8.2. It is further contended that, her husband is earning monthly income of Rs.60,000/-, however, he falsely claims that he has left the job at her instance and became unemployed. Her father-in-law and mother-in-law have four sons and four daughters. Two sons are residing in Kalaburagi, one each residing at Bangalore and Pune. One daughter is residing at Vadodara and three daughters are residing at Kalaburagi.
8.3. She further submitted that, in order to harass her and to evict her from the matrimonial home, her father-in-law filed a suit in O.S.No.150/2017 before the IV Additional J.M.F.C., Kalaburagi, but it came to be abated on account of death of her father-in-law on 06.03.2021. It is the family members of her husband who have subjected her to physical and mental ill-treatment everyday since the date of her marriage. After the petition was 13 filed for divorce, she was constrained to file a case under the provisions of the Protection of Women from Domestic Violence Act, 2005, seeking protection. In that case, she was granted Rs.2,000/- per month as interim maintenance till the disposal of the petition. After the death of her father-in-law, her mother-in- law has filed a petition before the Assistant Commissioner in Petition No.3/2019 under the Senior Citizens Act. With influence, an order was obtained for her eviction from the house. She has challenged the said order before this court in W.P.No.223665/2020, but she was directed to file an appeal as contemplated under Section 16 of the Senior Citizens Act. Hence, she filed an appeal before the Deputy Commissioner, Kalaburagi in No.Sum.Cum.M.A.G./07/2022-23. Even before the Deputy Commissioner, her husband and his family members used influence, thereby the Deputy Commissioner did not properly entertain her and 14 dismissed her appeal, for which she has filed a complaint before the Regional Commissioner. She was dispossessed from the house. Even a false complaint was filed at the instance of the Deputy Commissioner in Crime No.59/2022 for which she is taking separate recourse.
8.4. She has also referred to the evidence of the petitioner, the documents marked on his behalf and also pointed out that the admissions elicited in the cross-examination, which are all in her favour and the petitioner has not proved the 'cruelty' as defined under the law, there is no evidence available to prove that the marriage between her with her husband was broken down irretrievably, so as to grant the decree of divorce and all these aspects were not considered by the trial court and thereby she sought for interference by this court to restore her marriage so as to lead marital life with her husband. 15
8.5. On similar lines, she has filed written arguments along with certain documents.
9. Per contra, learned counsel for the respondent/husband contended that the marriage between the petitioner and the respondent was a forced marriage for the wife and for this reason, she did not perform her marital obligation. She has informed her husband that she was not willing to continue the marital life with him, her parents forced this marriage against her will and she declined to perform the marital obligation including consummation of marriage, but she proclaimed that the husband is impotent, she never treated the family members of her husband with respect. The marriage lasted for seven days only, thereafter it turned out to be hell for the husband; in order to give her a change, husband took wife to Vadodara, there also she expressed her unwillingness and she threatened him 16 and she forcibly returned back to Kalaburagi and then went to parental home. The conduct of the wife has been observed inside and outside the court. She is contacting the public authorities regularly, wherever she goes, she creates a problem to each and everybody.
9.1. Learned counsel further submitted that the wife was represented before the court through an Advocate, however, because of her abnormal attitude, they have retired from the case and for this reason, she is prosecuting the appeal as Party-in-person.
9.2. Learned counsel also contended that the wife has created a false ground from the initial day of the marriage that there was a dowry demand of Rs.3,00,000/-, which not revealed anywhere in the evidence and neither was it demanded from the parents of the wife and such baseless allegations are made to keep her husband away from sexual 17 intercourse. The husband lost his job at Vadodara, at her instance and came down to Kalaburagi, where he is now unemployed and there is no income for him. The wife has troubled her in-laws in such a way that they were constrained to take shelter under the Senior Citizens Act. Even her father-in-law was constrained to file a suit for her eviction. She threatens everybody including Sub-Divisional Magistrate, Deputy Commissioner, Police Officers, so also the advocates for not supporting her misdeeds. She filed false dowry cases, private complaints, petition under the Protection of Women from Domestic Violence Act, criminal cases and thereby drove the husband and his family members to file an original suit, taking shelter under the Senior Citizens Act and also filing of criminal petition seeking protection from the harassment and cruelty of the wife. Evidence has been placed before the court which speaks to the cruelty and attitude of the wife 18 which explains on its own that the marriage between the husband and wife has failed, the wife is not interested in the husband and that the marriage has broken down and there is no chance of re-union and it is an irretrievable marriage and for this reason, the Trial Court has rightly recorded its findings and supported the impugned judgment and sought for dismissal of the appeal.
9.3. To buttress his arguments, learned counsel has placed reliance on several judgments of the Hon'ble Apex Court as well as this Court.
10. The appellant/wife apart from her written arguments has also submitted her written reply arguments denying the contentions urged in the arguments canvassed on behalf of her husband.
11. Having heard the arguments of both sides, we have given our anxious consideration to the 19 pleadings, evidence and written arguments and perused the entire records.
12. Now the points that arise for consideration are:
(1) Whether the petitioner has made out that the respondent subjected him to 'cruelty' resulting in marriage between the petitioner and respondent to be irretrievably broken down?
(2) Whether the impugned judgment is
erroneous and calls for our
interference?
Reg. Point No.1:
13. The admitted facts are that the petitioner and respondent were married on 28.12.2013 at Bijapur and they lived a marital life for the shortest period. During this short period of marital life, they uttered lot of complaints against each other. Both were also driven to file several cases against each 20 other, such as, the husband filing the instant case, wife filing petition for dowry harassment in C.C.No.1447/2018; case under the Protection of Women from Domestic Violence Act in Crl.Misc.No.1264/2017; private complaint in PCR No.992/2018; father-in-law filing a suit against daughter-in-law in O.S.No.150/2017 and also seeking protection under the Senior Citizens Act before the Assistant Commissioner, Kalaburagi; wife filing a criminal case against husband and others in C.C.No.131/2022 and husband filing a case in Criminal Petition No.200402/2022 before this Court challenging the said charge sheet. Inspite of both the parties litigating in this manner, the respondent continues to claim that she wants to lead marital life with the petitioner. The petitioner is alleging cruelty as a ground for divorce which, in fact, has been denied by the respondent.21
14. Let us examine the evidence led by both parties. PW-1/Rajashekhar, the husband in the affidavit evidence, reiterated the facts urged in the petition. He has also been cross-examined and he has relied upon 10 documents, which will be referred at the later stage. On perusal of the evidence of PW-
1, it is pertinent to note that on the first day of the marriage, the respondent refused to lead marital life with him on the ground that her marriage was performed with him at the instance of her parents and it was a forceful marriage for her. She led only 15 days of marital life and thereafter, she stopped talking to him. Prior to this marriage, the marriage of respondent was engaged with one Prashanth. It was broken down because of the attitude of the respondent. The mother of the respondent forcefully performed this marriage inspite of conflicting opinion with her husband. Respondent was a short-tempered lady, she was quarrelsome even for petty issues, he 22 has spent his day and night on the quarrels she did against him and his family members. She did not respect her in-laws, she denied to cook food on the pretext that she does not know cooking. There was no demand for dowry at the time of marriage and there was no payment of Rs.2 lakhs or any additional demand for Rs.3 lakhs. Six years prior to marriage, the petitioner was working as a Deputy Manager in Vijaya Tanks and Vessels Private Limited, Vadodara and was getting a monthly salary of Rs.60,000/-, there was no need for him to demand any dowry. Inspite of all these things, the respondent has filed a dowry harassment case against as many as 15 persons of his family, which ultimately culminated in filing of 'B' report. She has questioned the 'B' report before the court and got issued the summons, which has been challenged before the High Court wherein against 13 persons, proceedings was quashed. Thereafter she filed a petition under the provisions of 23 Protection of Women from Domestic Violence Act as against 7 family members. By taking help of goondas, she has taken illegal possession of self- acquired house of his father. Since his parents were aged and ill, they have taken a separate house on rent and residing therein. His father was forced to file a suit against the respondent in order to evict her from the said house. Even though she was in occupation of the house, she did not pay electricity and water charges and huge money was due to be paid, which forced his father to approach the Electricity Board and Water Board for disconnection of electricity and water supply, which is wrongly coloured before the court by the respondent. He has regularly paid maintenance of Rs.2,000/- per month as per the order of the court. The respondent drags the names of the Police officers and Revenue officers, whoever comes to the aid of his family members. She refused to lead marital life with him. She claimed 24 that the petitioner was impotent before the Court mediator Dr.Chandrashekar Huded, who has been directed to give counseling in M.F.A.No.201230/2016 and the report is also filed and marked as per Ex.P7. The substance of his cross-examination has brought out that for about 15 days only, marital life was cordial. The respondent admits her earlier engagement with one Prashanth and its break down. On 05.12.2018 she filed a petition to the Superintendent of Police, Kalaburagi and no action has been taken because the allegations were false. It is asserted on behalf of the respondent that she is ready to lead marital life with him, the marriage was consummated, both husband and wife had intercourse in the first night as well as during their stay together for two months at Baroda which, in fact, has been denied by PW-1. At Baroda, respondent had maintained cordial relationship with the sister of the petitioner.
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15. To controvert the claim of the petitioner, the respondent has filed her affidavit evidence and relied on 53 documents as per Exs.R1 to R53. During the course of cross-examination, she has admitted that after marriage, she led marital life with the petitioner for a period of four months and 14 days. She filed several cases against the husband and his family members, a petition was also filed to the Superintendent of Police, Kalaburagi and a complaint was also filed to Mahila Police, Kalaburagi, which ended in 'B' report, which she has contested, and a case in C.C.No.1442/2018 came to be registered against 15 persons, but as against 13 persons, proceedings has been quashed in Criminal Petition No.200408/2018. She has claimed maintenance in the domestic violence case, her father-in-law has filed O.S.No.150/2017 seeking possession of the house, which came to be abated upon his death. The sisters of the petitioner were married 25 years ago and they 26 are settled with their families. She did not concede the fact that in view of her mental attitude, it is not possible for the petitioner to lead marital life with her. She did not give any reason as to why her proposed marriage with Prashanth was broken down. It is attributed that she was not respectful to her in-laws and family members. She has openly proclaimed that the petitioner is impotent, she has insulted him openly referring to it. She has even poured boiling water on the mother of the petitioner. It is interesting to note that she does not know the age of her in-laws, though they were aged 81 years and 75 years. She is also unaware about her in-laws and she admits that:
"£Á£ÀÄ CfðzÁgÀ£À eÉÆvÉ zÁA¥ÀvÀå fêÀ£ª À ÃÉ ªÀiÁqÀzÃÉ EzÀÝ PÁgÀt, £À£U À É DvÀ£À vÀAzÉ-vÁö¬ÄAiÀÄ §UÉÎ AiÀiÁªÀÅzÉà ªÀiÁ»w UÉÆöwÛ®.è "
She admits that as per the order of this Court, Dr.Chandrashekar, Psychiatrist, Government Hospital, 27 Kalaburagi had conducted counseling and also admits its failure. Referring to CD/Ex.P8 the conversation between her and her husband, it is attributed that she was not interested in the marriage with the petitioner, it was an unwilling marriage forced by her parents, she has not accepted the marriage which, in fact, has been denied by her. Ex.P9, the exchange of messages has been confronted to her, though she denies it, these are the messages which are said to be sent by her to her husband from her mobile phone. It is attributed that in Ex.P9 she has threatened the petitioner that she will finish him off, so also his family members. Even Ex.P10/email communication has been confronted to her that her marriage with the petitioner was not a willing marriage, rather it was a forced marriage at the instance of her parents. She has even used abusive language in her messages as per Ex.P9 and Ex.P10. It is brought out in her evidence that before marriage, she was working as an 28 Administrator in a school at Vijayapur belonging to her cousin and she being an educated lady undertook an unwilling marriage, now targeting her husband and his family members with her weird attitude and she has openly proclaimed that she will teach a lesson to him and his family members at any cost.
16. Adverting to the arguments canvassed by the respondent/wife, it is her specific claim that cruelty has not been established. Marriage is not irretrievably broken down and she is even now ready to lead marital life with her husband. To substantiate it, she has relied upon the judgment of this Court in the case of D.N.Chandrashekar -vs-
Smt.N.M.Ambika - 2018(4) KCCR 3721 (DB) that cases filed by her against the petitioner and his family members were subsequent to filing of the divorce petition. Hence, it will not amount to "cruelty" either mentally or physically.
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17. In the above judgment, Co-ordinate Bench of this court while referring to certain cases filed by the wife against the husband and his family members subsequent to filing of the divorce petition before the Family Court without specific allegation of cruelty against the wife, as vague allegations are being made, did not accept it holding that filing of such cases amounts to 'cruelty' and dismissed the claim for divorce.
18. The facts pleaded in the said case is quite contrary to the facts of this case. In this case, there is a specific allegation of cruelty. The allegation against the respondent that the marriage was an unwilling marriage, it was a forced marriage and the respondent has not accepted the marriage and for this reason, marital life was led only for a period of 15 days. In order to counsel the respondent, she was taken to Vadodara for a period of two months, yet, 30 she did not cope-up with her husband. Even at Vadodara, she makes an allegation against the sister of the petitioner viz., Sheela, her husband Satish and also their daughter Vinitha that they are interfering in her personal life. She spoke ill against them, used filthy language and for this reason, the petitioner brought her back to Kalaburagi. Under these circumstances, the principle laid down by the Co- ordinate Bench of this court in the above judgment is of no help to the petitioner.
19. The main allegation against the petitioner is that, the respondent was not treated properly in the matrimonial home for the reason that at the time of marriage, dowry of Rs.5 lakhs was demanded, Rs.2 lakhs only was paid and there was a demand for additional dowry of Rs.3 lakhs. The respondent makes a categorical allegation that her husband left job at Vadodara, came down to Kalaburagi in the 31 month of December 2014 in order to settle his brother Shashi by demanding additional dowry of Rs.3 lakhs from her.
20. As we see from the evidence, the petitioner was working as a Deputy Manager in Vijaya Tanks and Vessels Private Limited at Vadodara earning Rs.60,000/- per month. The evidence did not support the contention of the respondent that the marriage was supported with any demand and payment of dowry and there is no evidence to that effect. It is very difficult to accept the contention of the respondent that she was subjected to ill-treatment in demand of additional dowry of Rs.3 lakhs to settle the brother of the petitioner.
21. The petitioner has demonstrated before the Court that the respondent has developed an attitude of complaining for each and every aspect against him and his family members. She also developed same 32 attitude against the public officers who were approached in connection with their marital discord. In this regard, it is specifically alleged against the respondent that she made a complaint against the Police Inspector, who came to verify disconnection of water and electricity supply to her house. Since the respondent has not taken care of the in-laws, her father-in-law died due to Cancer and thereafter her mother-in-law was constrained to take shelter under the Senior Citizens Act by filing a petition before the learned Assistant Commissioner, Kalaburagi. She has challenged the said order before this Court, but her petition was returned with a direction to go before the Appellate Authority. Under the Senior Citizens Act, she has filed an appeal before the learned Deputy Commissioner, Kalaburagi, where during the course of enquiry, she has quarreled with the District Magistrate for dismissing her appeal. Because of her attitude and adamant behaviour, a criminal case has been 33 registered against her and she was subjected to judicial custody. She makes an allegation against the District Magistrate and also the Assistant Commissioner that they are favouring her husband.
22. This demonstrates that wherever the respondent goes for any remedy before the public authority, if she feels that situation is adverse to her, she tries to make a complaint against the authority itself. We would like to mention here the argument of the learned counsel for the petitioner that similar is the situation faced by the members of the Bar, Kalaburagi while handing the case on her behalf. As the advocates felt very difficult to handle her case because of her attitude, she herself is prosecuting this appeal as party-in-person.
23. Learned counsel for the petitioner to substantiate the 'cruelty' has relied upon the judgment of the Hon'ble Apex Court in Samar Ghosh 34
-vs- Jaya Ghosh - (2007) 4 SCC 511. The Hon'ble Apex Court referring to the judgment in Naveen Kohli -vs- Neelu Kohli - (2006) 4 SCC 558 framed several illustrations where 'cruelty' can be inferred from the facts and evidence of the case, which reads as follows:
"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 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 35 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.
(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 sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if 36 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 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."
102. . . . . . . . .
103. The High Court in the impugned judgment seriously erred in reversing the judgment of the learned Additional Sessions Judge. The High Court in the impugned judgment ought to have considered the most important and vital circumstance of the case in proper perspective that the parties have been living separately since 27-8-1990 and thereafter, the parties did not have any interaction with each other. When the appellant was seriously ill and the surgical intervention of bypass surgery had to be resorted to, even on that occasion, neither the respondent nor her father or any member of her family bothered to enquire about the health of the appellant even on telephone. This instance is clearly illustrative of the fact that now the parties have no emotions, sentiments or feelings for each other, at least since 27-8-1990. This is a clear case of irretrievable breakdown of marriage. In our considered view, it is 37 impossible to preserve or save the marriage. Any further effort to keep it alive would prove to be totally counterproductive."
In Naveen Kohli's case (supra), the Hon'ble Apex Court at paragraphs-63, 80, 83, 84 and 86 has laid down as under:
"63. 11. The expression 'cruelty' has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted 63.12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct 38 taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
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80. The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is concerned, the status of husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5% share of Rs.100/- each in 39 the company. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the Association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He has stealthily removed produce of the company, besides diverted orders of foreign buyers to his proprietorship firm M/s Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the company. Statutory authority- Companies Act had refused to register documents filed by Mr. Naveen Kolhi and had issued show cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable.
xx x x x x x x x x x
83. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and 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 appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.
84. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.40
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86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond."
24. In Vidhya Viswanathan -vs- Kartik Balakrishnan - (2014) 1 SCC 21, the Hon'ble Apex Court referring to 'mental cruelty' has held at para-13 and 14 that husband is seeking decree of divorce on the ground of cruelty and the wife admitted that the marriage was not consummated and not allowing the spouse to have sexual intercourse for a long time without sufficient reason amounts to 'mental cruelty' and therefore, the decree for dissolution of marriage is maintainable against the wife.
41
25. In Joydeep Majumdar -vs- Bharti Jaiswal Majumdar - (2021) 3 SCC 742, the Apex Court while considering the judgment of the High Court in describing the broken relationship as normal wear and tear of middle class married life as erroneous and restored decree of divorce granted by the Family Court in favour of the husband on the ground of cruelty. At para-15, it is held as follows:
"15. Therefore, we are of the considered opinion that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life. It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court. The appellant is accordingly held entitled to dissolution of his marriage and consequently the respondent's application for restitution of conjugal rights stands dismissed. It is ordered accordingly."
26. A Co-ordinate Bench of this court in Shashidhar -vs- Vijayalakshmi reported in 2022(4) ALLMR1 referring to the allegation of wife against the husband that he is impotent laid down that the wife 42 has not led any evidence to prove that the husband is actually impotent. Under such circumstances, mental cruelty can be inferred against the wife.
27. Having regard to the above settled principles of law, let us appreciate the facts and also the evidence relied upon by both the parties. As seen from the material on record, the marriage of the petitioner with the respondent was against the willingness of the respondent. Her earlier marriage proposed with one Prashanth was broken down due to her weird attitude. Her parents forced her to marry the petitioner as they are relatives. At the time of marriage, respondent was working as an Administrator in a School run by her cousin at Vijayapura. The marriage made the respondent leave the job and come with the petitioner to Kalaburagi. Being an educated lady, she has not led marital life with her husband properly. She is not aware of the 43 age and condition of her in-laws. She proclaimed from the beginning of the marriage that the petitioner is impotent and the marriage was against her interest. She is not interested in prosecuting marital life with the petitioner. The petitioner started making allegations not only against the petitioner, but also against her in-laws, sisters of the petitioner and their children, even though they were married 27 years ago and settled elsewhere in their respective matrimonial home. Even the evidence speaks that the respondent did not spare the children of the sister of the petitioner and also dragged the name of the brother of the petitioner stating that her husband left the job to settle his brother Shashi out of additional dowry of Rs.3 lakhs. Neither the parents of the respondent nor the persons who have finalized the marriage have entered into the witness box to speak that the marriage of the petitioner with the respondent was supported with the demand and payment of dowry. 44
28. It is interesting to note that this Court has initiated counseling to the petitioner and the respondent and requested Dr.Chandrashekar Huded, Psychiatrist, District Hospital, Kalaburagi to carry out counseling and to submit his report. Report of Dr.Chandrashekar is available on record as per Ex.P7. The said report reads as follows:
1) Multiple individual as well as combined sessions were taken for both the parties (husband and wife) (individual sessions: two each and combined sessions: two)
2) The individual sessions were aimed at assessing the presence of any mental illness as well as understanding each person's version of the major reason for the conflict leading to the current situation.
3) The combined sessions were held with the aim of counseling and helping the couple to resolve their differences and to reconsider the decision of divorce.
4) During the individual sessions a detailed evaluation was done including the mental status examination. With the evaluation the examining psychiatrist came to the conclusion that none of them are suffering from any kind of mental illness requiring medication or any other mode of psychiatric treatment.
5) Both the parties gave different versions regarding the reasons for conflict between them.45
6) Husband reported that his wife has physically and mentally tortured him on multiple occasions since the early days of marriage and considers her responsible for having broken his entire family relations which lead to all his siblings moving away from him.
7) Wife reported that the reason for conflict was his impotency and his excessive attachment to his sisters which was preventing her from spending adequate time with him. She also alleged that prior divorce granted by family court was without her knowledge.
8) Combined session had to be terminated abruptly as the couple were abusing each other and were almost getting physically assaultive which created quite a scene in the hospital outpatient department despite prior warning and repeated reminders.
9) Though the wife expresses wish to be together with the husband it was noted that during the combined session they were really up against each other and the psychiatrist had a hard time calming both of them.
10) The husband expressed his wish to be away from his wife at any cost.
11) With the above findings the examining psychiatrist concluded that none of them are suffering any kind of psychiatric illness and currently they are not in a state of mind to stay together."
29. The exchange of text messages and voice messages are also made available which point out that the relationship between the petitioner and the 46 respondent from the beginning of the marriage was not cordial and both were at loggerheads against each other and the respondent was threatening the petitioner that she will not spare not only him, but also his entire family members including his sisters and their children. This aspect demonstrates the mindset of the respondent towards the petitioner and his family members. Another interesting point to note is that the respondent is claiming that she wants to lead happy marital life with the petitioner, but she scolds her husband as impotent without any proof of it. The conduct and mental attitude of the respondent towards the petitioner and his family members clearly demonstrate that she wants to teach them a lesson for not accepting her as she is. The evidence on record unequivocally explains that the respondent, though not interested in marital life with the petitioner, is proclaiming that she wants to lead married life with the petitioner only for the purpose of 47 targeting him and his family members and to bring their reputation in the society to the streets. Hence, we are of the opinion that the petitioner is able to explain that the attitude of the respondent, her behaviour with the petitioner and his family members from the day one of the marriage explain that she has subjected the petitioner to 'cruelty'. Accordingly, we answer point No.1 in the affirmative.
Reg: Point No.2:
30. We have carefully perused the impugned judgment. The Trial Court has recorded several reasons, viz., allegation of additional dowry demand of Rs.3 lakhs was intentionally taken by the respondent. There was no occasion for the petitioner to demand dowry or additional dowry as he was very well employed as a Mechanical Engineer at Vadodara since six years prior to marriage drawing monthly salary of Rs.60,000/-. The respondent has no 48 intention to continue marital relationship with the petitioner. The respondent put the petitioner and his family members into mental and physical agony by making one or the other allegations and falsely involving them in criminal cases. She has also involved unconcerned family members of the petitioner into litigations and tried to put them behind bars. The petitioner led life with the respondent by tolerating all sorts of her cruelty with a hope that she will mend her ways in future, but she did not. The family of respondent was a well-to-do family, respondent has a superiority complex and she wants to have command over the husband. Her father is doing Real Estate business, her brother is running Alpha Tutorials at Dharwad and another brother is an Electrical Contractor at Vijayapura. The allegations made by her in the form of complaint and pleadings shows that both husband and wife reached a stage of no return. The behaviour of the respondent, the 49 manner in which she treated the family members of the petitioner shows that they were inflicted with severe cruelty by her act and conduct. The recitals in Exs.P8 and P9/communication show that both petitioner and respondent have developed revengeful attitude and sense of rivalry against each other.
31. The Trial Court has also recorded its reasoning that the respondent told Dr.Chandrashekar that the petitioner was impotent, but at the same time, she makes a contrary statement that her husband is having an illicit relationship with another lady. On these aspects, both the husband and wife underwent counseling with Dr.Chandrashekar as per the order of the High Court. The reason for the conflict was 'impotency' of the petitioner and his excessive attachment to his sister, which prevented the respondent to spend quality time with her husband. Insofar as impotency, no panchayat was 50 held or any advice was given to the husband take treatment for that. But the allegation of impotency is make believe, fabricated, without any proof and thereby subjected the petitioner to mental cruelty. The Trial Court has referred the report of Dr.Chandrashekar at Ex.P9 and has ultimately come to the conclusion that involvement and false implication of the petitioner, his parents, brother and sisters and their children is sufficient to prove 'mental cruelty' by the respondent. The sole intention of the respondent to file false complaint was to torture them mentally and physically. The reason for filing number of civil and criminal cases even subsequent to filing of divorce petition made their relationship beyond repair. The messages exchanged between the husband and wife at Ex.P8 shows that the respondent has made up her mind to put the petitioner and his family members in jeopardy. The Trial Court has also come to a conclusion that the wife is inflicting her husband into 51 cruelty and thereby granted decree of divorce on the ground of 'cruelty'.
32. As referred supra, we have analyzed the evidence of the parties while answering point No.1. We do not find any reason that the Trial Court has committed any error in appreciating the evidence. The only contention of the respondent is that all these cases were filed subsequent to filing of the divorce petition. The settled law relied upon by the respondent is not helpful to her case as the facts of the said case is different from the facts of this case. The Trial Court has rightly recorded its reason by appreciating legal evidence that both petitioner and respondent have reached such an end that they cannot come back together. Hence, we do not find any error in the findings recorded by the Trial Court and the appeal is devoid of merits and accordingly, 52 point No.2 is answered. In the result, we pass the following:
ORDER
(i) The appeal filed by the respondent/wife is dismissed.
(ii) The judgment dated 21.12.2019 in M.C.No.103/2015 on the file of the Family Court at Gulbarga, is confirmed.
(iii) Having regard to the relationship between the parties, no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE KNM/-