Karnataka High Court
Ashok S/O Ningareddi Kenchareddi vs Shamala W/O Ashok Kenchareddi on 14 June, 2017
Bench: Vineet Kothari, H.B.Prabhakara Sastry
Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC)
Ashok Vs. Shamala
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14th DAY OF JUNE, 2017
PRESENT
THE HON'BLE DR. JUSTICE VINEET KOTHARI
AND
THE HON'BLE DR. JUSTICE H. B. PRABHAKARA SASTRY
M.F.A. No.100286/2015 (FC)
BETWEEN:
ASHOK S/O NINGAREDDI KENCHAREDDI
AGE: 43 YEARS, OCC: PRIVATE EMPLOYEE,
R/O. MAGOD, TAL: RANEBENNUR,
AT PRESENT RESIDING AT APPAJIGOUDA BUILDING,
HANUMEGOUDA LAYOUT,
BEHIND VEERASHANDRESHWAR TEMPLE,
TINDLU VIDHYARANYAPURA,
BANGALORE-01.
... APPELLANT
(BY SRI.SACHIN S. MAGADUM, ADVOCATE)
AND:
SMT.SHAMALA, W/O ASHOK KENCHAREDDI
AGE: 34 YEARS, OCC: H/W,
R/O. LAXMESHWARA, C/O. SMT.SHAMALA
D/O. LATE GOVINDAREDDI
H. ALAVANDI HIREBANA ONI,
LAXMESHWAR NEAR COURT,
TAL: SHIRAHATTI, DIST: GADAG-582101
... RESPONDENT
(BY SRI.T. HANUMAREDDY, ADVOCATE)
Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC)
Ashok Vs. Shamala
2
THIS MFA IS FILED UNDER SECTION 28 OF HINDU
MARRIAGE ACT 1955, PRAYING TO SET ASIDE THE ORDER
AND DECREE DATED 26.09.2014 PASSED IN
M.C.NO.26/2011 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE, GADAG SITTING AT LAXMESHWAR,
DISMISSING THE PETITION FILED U/S.13(1) OF HINDU
MARRIAGE ACT 1955.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF THE
JUDGMENT THIS DAY, DR. H. B. PRABHAKARA SASTRY,
J., DELIVERED THE FOLLOWING:
JUDGMENT
Mr. Shivaraj S. Balloli, Adv. for appellant. Mr. Sachin S. Magadum, Adv. for respondent.
1. The appellant-husband has filed this appeal under Section 28 of the Hindu Marriage Act, 1955, challenging the order and decree dated 26.09.2014 passed by the Addl. Senior Civil Judge, Gadag, sitting at Laxmeshwar (hereinafter referred to as the 'Court below', for short), in M.C.No.26/2011, dismissing the petition filed under Section 13(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act', for short), Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 3 seeking dissolution of marriage with the respondent - wife.
2. The present appellant - husband was the petitioner in the Court below, who had filed a petition under Section 13(1) of the Act, seeking a decree of divorce by dissolving his marriage said to have been performed with the respondent on 02.07.1998. In his memorandum of appeal, the appellant - husband has taken a contention that the Court below erred in disbelieving the evidence of PW1 to PW4, who had supported the case of the petitioner. It also erred in arriving at a conclusion that there was no sufficient evidence on record to hold that the respondent had deserted him. The appellant has further stated that the finding of the Court below that the respondent had an intention to lead marital life and it was the appellant who had driven her out of her matrimonial home was Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 4 also unfounded one. With this, he has prayed for setting aside the order and decree under appeal.
3. On notice being issued, respondent - wife has appeared through her counsel Sri. Sachin S. Magadum. The records of Court below were called for and the same are placed before us.
4. Heard the arguments from both sides and perused the memorandum of appeal, impugned judgment and the entire materials placed before this Court.
5. The point that arises for our consideration is:
"Whether the appellant - husband has made out grounds for setting aside the order and decree of the Court below?
6. For the sake of convenience, the parties would be referred to with the ranks they were holding Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 5 respectively in the Court below.
7. The summary of the case of the petitioner in the Court below is that, he married the respondent on 02.07.1998 at Magod village as per the customs prevailing in their community. After marriage, they led marital life and begot a female child by name Apeksha. Because of his avocation, the petitioner was living at Bengaluru with the respondent. After the marriage, the respondent started to harass the petitioner despite of love and affection shown towards her by him. She was considering that the petitioner was not a suitable match for her and was exhibiting her superiority complex. The respondent was tolerating all these acts and cruelty meted out to him by the respondent. The act of the respondent meeting cruelty was even extended to their daughter, to whom she was beating quite often. The respondent used to abuse the petitioner in front of the Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 6 neighbors. When mother of the respondent had visited their house, the respondent joined her mother and returned to her matrimonial home at Laxmeshwar, without even informing to the petitioner. The request of the petitioner calling her back to the marital home went in vain. On the contrary, both the respondent and her parental family members abused him in filthy language. With this, on the ground of cruelty and desertion, he has prayed for dissolution of marriage by a decree of divorce.
The respondent appeared in the Court below and has filed her statement of objection. In the said statement of objection, though she admitted that her marriage with the petitioner was solemnized on 02.07.1998, but denied all other allegations that she was subjecting her husband to mental cruelty and her child to physical cruelty and also the allegation that she Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 7 willfully deserted her husband. She further stated that, out of their wedlock, she has given birth to two children, incidentally both were daughters. It is her contention that, since both the children were daughters, she was subjected to cruelty by her husband. She went to the extent of alleging that her husband drove her out from his house and as such, she was compelled to file maintenance case against him in Criminal Misc.No.41/2005. She has further alleged that her husband demanded her to bring `1,00,000/- and other valuables from her parents' house. She specifically alleged that in February 2005, when she went to her matrimonial home, her husband, stating that she should enter his house with a cash of `1,00,000/- and other valuables, refused to admit her to the house and sent her back to Laxmeshwar. He did not accede to the advice of elders. It is for this reason, she has filed the Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 8 maintenance petition against her husband. With this, she prayed for dismissal of the petition.
Based on the pleadings of the parties, the Court below framed the following issues:
i. Whether the petitioner proves that the respondent has subjected him to cruelty and withdrawn his society without reasonable cause?
ii. What order?
In support of his case, the petitioner got examined himself as PW1 and got examined 3 other witnesses as PWs. 2, 3 and 4 respectively. He got produced a copy of legal notice, postal receipt and reply notice, and marked them as Exs.P1, P2 and P3 respectively. On behalf of the respondent, the respondent got herself examined as RW1 and examined one more witness from her side as RW2 and got produced copy of the order sheet and petition sheet in P.C.No.44/2009 as Exs.R1 and R2, a Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 9 copy of marriage invitation card as Ex.R3 and copies of statements as Exs. R4 and R5.
After hearing both sides, the Court below by its order and decree dated 26.09.2014, dismissed the petition filed by the petitioner - husband. It is the said order and decree, the petitioner - husband has challenged in this appeal.
8. Even though the petition in the Court below has been filed under Section 13(1) of the Act, but the main grounds canvassed by the petitioner - husband in his petition as the grounds for seeking divorce are that, the respondent - wife has, after solemnization of marriage, treated the petitioner with cruelty and that she deserted him. The said two grounds were the grounds available under Section 13(1)(i)(ia)(ib), which are reproduced hereinbelow:
Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 10
13. Divorce-
(1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) xxxxxxxxxxxxxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
ii)xxxxxxxxxxxxxxxxxx Either the word 'cruelty' or the word 'desertion' has not been defined in the said Act. However, their meaning and parameters can be understood in the light of judicial interpretation given in various judgments by Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 11 the Hon'ble Supreme Court of India.
In Vinita Saxena Vs. Pankaj Pandit, reported in (2006) 3 SCC 778, the Hon'ble Apex Court was pleased to make the following observations in para 32 to 36 of its judgment:
"32. The word 'cruelty' has not been defined and it 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. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the 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.
Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 12
33. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance. Judged by standard of modern civilization in the background of the cultural heritage and traditions of our society, a young and well educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony are irrelevant. This view was taken by the Kerala High Court in Rajani V. Subramonian, reported in AIR 1990 Ker 1.
Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 13
34. In 1993 (2) Hindu LR 637(sic), the Court had gone to the further extent of observing as follows:
"Sometime even a gesture, the angry look, a sugar coated joke, an ironic overlook may be more cruel than actual beating"
35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.
36. The legal concept of cruelty which is not defined by statute is generally described as Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 14 conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complains, accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and abhorrence for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 15 appellant's side, ought this appellant to be called on to endure the conduct? From the respondent's side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure."
In Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal, reported in (2012) 7 SCC 288, the Hon'ble Apex Court after referring to some of its earlier judgments was pleased to observe as;
"The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 16 temperaments and emotions that are conditioned by their social status. The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other."
With respect to 'desertion', the Hon'ble Supreme Court in Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73 at para 8 of its judgment was pleased to observe as below:
"Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion, is not the withdrawal Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 17 from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e., not permitting or allowing and facilitating cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case."
It is in the light of the above decisions, the evidence placed before the Court below is to be analysed.
Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 18
9. The petitioner - husband as PW1, in his examination-in-chief has reproduced the contents of his petition in the Court below. He has stated that many times the respondent was telling him that he was not a suitable match for her and exhibited her superiority over him by saying that she was the daughter of an advocate. She was also not giving respect to the brothers, sisters and relatives who were visiting their house. He has further stated that, she used to squeeze their daughter Apeksha, thereby used to beat the child. She was also not preparing food for them. He has further stated, after birth of Apeksha, the respondent refused to return to her matrimonial home. His personal request asking her to return also went in futile. It is his further case that, neither the respondent nor her parental family members informed him about the delivery of second child by the respondent. He has Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 19 further stated that, he issued a legal notice on 06.06.2005 through his advocate calling upon the respondent to join him. Instead of returning home, the respondent replied to the notice making false allegations.
Denial suggestions were made in the cross- examination of PW1, which he did not admit as true. Since categorical denial suggestions were made to PW1 in his cross-examination, the mere evidence of PW1 in his examination-in-chief itself about the alleged desertion and cruelty are not sufficient and those statements require further corroboration. In this regard, the petitioner examined PWs. 2 to 4 in his support.
PW2 to PW4 claimed themselves to be the persons knowing the petitioner. PW2 - Sri. Basavaraj R. Beleri, in his examination-in-chief has stated that the respondent, whom also he knows, was mentally Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 20 harassing the petitioner since the date of their marriage. Intentionally she has deserted her husband. However, in his cross-examination, he has stated that it is only the elder brother of the petitioner who is known to him since his house and their house were adjoining houses in Haliyal, Karwar in U.K. District. Interestingly, in his cross-examination, this witness has stated that, from the year 1994 to 2006, he was at Haliyal, but he has further stated that the petitioner and respondent, after their marriage were living at Bengaluru, it is only the petitioner on his visit to Haliyal, when stated about the alleged differences between himself and his wife, he came to know about it. This witness has further stated that he does not know at present where the petitioner is.
In this way, the statement made by this witness in his examination-in-chief was thoroughly shaken and Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 21 dismantled in his cross-examination by the respondent's side. It was brought in his cross-examination that PW2 had no personal knowledge or information about the family and living of the parties to the petition. He was only a hearsay witness with certain assumptions on his part. As such, his evidence would in no way strengthen the case of the petitioner.
10. PW3 - L. M. Koppad, whose examination-in- chief in the form of affidavit evidence is nothing but a copy of the affidavit evidence of PW2. In his cross- examination, it was elicited that many of the details of the family of the parties to the petition are not to the knowledge of this witness. Neither he knows the address of the residence of the parties nor the details of their children, nor even the area of parental home of the respondent. On the contrary, he claims that he had visited the parental house of the respondent. Had it Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 22 really been true, he would have at least remembered the name of the area in Laxmeshwar town, where the parental house of the respondent - wife was said to be situated. Therefore, even after claiming that he has knowledge of the family of the parties to the petition, when this witness was unable to answer many of the basic and primary questions regarding the details of the family of the parties to the petition, the evidence of this witness does not inspire any confidence to believe.
The evidence of PW4 - Hanumantappa Bellahalli, is also not an exception to the evidence of PWs. 2 and 3. The examination-in-chief of this witness is also nothing but one more copy of affidavit evidence of PWs. 2 and 3. This witness in his cross-examination has clearly stated that he does not know as to on what matter the dispute arouse between the husband and wife. He has also stated that he does not know what is written in his Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 23 affidavit evidence in the form of examination-in-chief. In this way, the evidence of none of the witnesses from PW2 to PW4 can be taken as a trustworthy and corroborating evidence of PW1.
11. The respondent Smt.Shamala got herself examined as RW1. In her examination-in-chief, she has reiterated the contention taken up by her in her statement of objection filed to the main petition. She has reiterated that she has not deserted her husband, but she was thrown out from the house from his husband himself for the reason that she has given birth to two female children and that she did not fulfill the demand of her husband in getting `1,00,000/- cash and other valuable articles from her father. She has also stated about she filing a Criminal Misc.No.41/2005 against her husband claiming maintenance from him and categorically stated that her husband had undergone Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 24 second marriage with one Ms. Shanta on 17.10.2009 at Shri. Shiddeshwara Kalyan Mantap, Ranebennur. Challenging this act of bigamy by her husband, she has filed a criminal case in the Court of JMFC at Laxmeshwar in C.C.No.249/2013, which is still pending.
In her cross-examination, the suggestions made to her to the effect that it was she who practiced cruelty against her husband has not been admitted as true by her. Except making some denial suggestions, nothing could be elicited in her cross-examination form the petitioner side. On the other hand, she has given some more details about the maintenance case and bigamy case said to have been filed by her. She got produced and marked as exhibits the certified copies of P.C.No.44/2009 as Exs.R1 and R2.
The respondent-wife in support of her evidence got examined one Sri. Bharmappa Shirahatti as RW2. The Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 25 said witness, stating that he knows the complete details of the family of the parties to the petition, has stated in his examination-in-chief that it is the petitioner- husband, who has deserted his wife and prior to which, had subjected her to cruelty both physically and mentally. Interestingly, in spite of granting sufficient time, this witness was not cross-examined from the petitioner - husband's side.
12. Therefore, from the analysis of the above evidence, of both the parties, it clearly go to show that, after making certain allegations, the petitioner - husband has failed to establish them viz., when the respondent-wife was staying with him, she had subjected him to cruelty in any manner, and further she herself has deserted him and left for her parental home. On the contrary, the respondent - wife through her detailed and elaborative evidence, supported by Exs.R1 Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 26 and R2 and more importantly through undisputed evidence of PW2, has been able to establish that she has not deserted her husband and not subjected him to cruelty. On the contrary, she has made those allegations against her husband including an allegation of bigamy against him, which is still under trial before the competent Court.
13. The above analysis go to show that the petitioner - husband might have been of the nature of expecting some extra high respect to him and his family members from his wife and her parents and he was not satisfied with what actually he was getting. It can be further gathered from the evidence that, he wanted that his wife should praise him even in front of their neighbors and other people, which she did not do. By such an act itself, it cannot be concluded that the petitioner-husband was insulted by his wife or that he Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 27 was ill-treated. Therefore, it cannot be said that he was subjected to cruelty by his wife. Similarly, the respondent-wife, apart from dismantling the evidence of PW1, insofar as the allegation of alleged desertion is concerned, has further able to present her case to show that she was deserted by her husband, which compelled her to file a petition seeking maintenance from him. These aspects have been appropriately analysed by the Court below and the Court below has come to a right conclusion holding that the petitioner before it has failed to make out grounds entitling him for the relief of dissolution of marriage with the respondent. As such, we do not find any convincing ground to interfere in the said observation made by the Court below in its order of dismissal of the petition filed before it by the present appellant.
Date of Judgment .14.06.2017 M.F.A. No.100286/2015 (FC) Ashok Vs. Shamala 28
14. Accordingly, we proceed to pass the following order:
ORDER The appeal is dismissed. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE gab