Karnataka High Court
Smt T Thirumala vs Sri Venkata Subbaiah on 3 October, 2023
Author: G.Narendar
Bench: G.Narendar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
M.F.A. NO.1957 OF 2019 (FC)
BETWEEN
SMT. T. THIRUMALA
W/O VENKATA SUBBAIAH
AGED ABOUT 45 YEARS
RESIDING AT QUARTERS # C-175
NOTE MUDRAN NAGAR
MYSORES.
...APPELLANT
(BY SRI. SREERANGA SWAMY C, ADV.,)
AND
SRI. VENKATA SUBBAIAH
S/O LATE T. SUBBAIAH
AGED ABOUT 46 YEARS
WORKING AT I.W. GRADE-5
BRBNMPL, MYSORE.
...RESPONDENT
(BY SRI. RAMAKRISHNA HEGDE, ADV., FOR C/R)
THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, 1984 READ WITH SECTION 28 OF THE
HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND
DECREE DATED 01/02/2019, PASSED IN MC. NO.240/2016,
ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE,
FAMILY COURT, MYSURU, PARTLY ALLOWING THE PETITION
FILED U/SEC.13(1)(ia) OF HINDU MARRIAGE ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
20.09.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:
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JUDGMENT
This appeal is filed under Section 19(1) of the Family Courts Act, 1984 by the appellant - wife against the judgment and decree dated 01.02.2019 passed in M.C.No.240/2016 by the II Addl. Prl. Family Court, Mysore wherein the petition filed by respondent - husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 was allowed.
2. Brief facts giving rise to filing of this appeal are that the marriage between the appellant and the respondent was solemnized on 20.03.1998 at Kadapa, Andhra Pradesh. Thereafter, the appellant started living with the respondent at Mysore and out of the wedlock, two sons were born. It is averred that the appellant was not cordial with the respondent from the beginning and she used to take the entire salary of the appellant - husband and used to send the said amount to her brother O.Venkatasubbaiah on assurance that the said O.Venkatasubbaiah will provide a site to appellant at her native place. It is averred that whenever the respondent questions about the money, she -3- used to quarrel with him and she used to threaten him with dire consequences on the strength of her brother. It is further averred that the appellant used to ill-treat the respondent, never showed love and affection towards the respondent and children, the appellant has spoiled the reputation of the respondent by quarrelling with the neighbours and by indulging in money lending business, the appellant has lodged false complaint against one of the neighbours before the Metagalli police and similar 5-6 complaints have been filed against the respondent. It is also submitted that the appellant has failed to provide food at home and she has conspired with her brother on 10.02.2016 and threatened the respondent over the phone to kill him. On questioning the act of the appellant, the appellant has thrown out the respondent from official quarters which was allotted to him by lodging false complaint against him of alleged assault. It is pleaded that the appellant and the respondent are residing separately since the said incident and the respondent is paying monthly maintenance to the appellant and rent of the official quarters. It is pleaded that on 23.03.2016 he got issued legal notice calling upon the appellant to give consent divorce, she refused to receive the -4- said notice. Hence, the appellant filed petition on the ground of cruelty and desertion.
3. The appellant has entered appearance before the Family Court and filed statement of objections by admitting the solemnization of marriage and birth of two children. However, she has denied the allegation of ill-treatment and cruelty. It is submitted that the appellant has discharged her marital obligation for 3 years and after her complaint dated 10.02.2016, a panchayat was convened on 11.02.2016 in the presence of elders wherein the respondent agreed to pay maintenance of Rs.15,000/- to the appellant and the petitioner has been residing separately. However, he has paid maintenance only for a period of two months. Hence, she has filed another complaint on 23.04.2016 which is registered as Crime No.71/2016 for the offences under Section 498A and 307 of Indian Penal Code. It is further submitted that the respondent used to harass the appellant and during the second pregnancy in May 2000, she had been to her parents house, the respondent humiliated the appellant by writing letter to her parents abusing her in -5- filthy language and in November 2003, the respondent leaked LPG with a view to kill her and the respondent's neighbour Subramanya assaulted the appellant's children on 07.12.2014 and even for such act, the respondent and his mother have threatened the appellant with dire consequences which has compelled her to compromise the matter. It is also averred that when the appellant went for summer holidays along with children to her parents' house, on their return to quarters the respondent made them to stand outside for long which caused mental agony and humiliation at the hands of the respondent. It is pleaded that in the month of May 2008, the respondent has picked up a quarrel with the appellant, poked his right thumb into her eye and similar incident had taken place when they were traveling to Bangalore by train, the respondent left the appellant and children on the railway platform and went away which has humiliated the appellant and was compelled to pay a fine of Rs.1,500/- to the ticket collector. It is further pleaded that similar incident has taken place on 18.05.2015 when the respondent has abused the children without any reason. It is also pleaded that on 04.01.2016 the respondent bit her fingers in an attempt to kill her and -6- on 18.01.2016 the respondent has tried to throttle her neck, on 20.01.2016 when the appellant was sleeping, he tried to smoother her with a pillow and on 28.03.2016 respondent left quarters No.175 with all his belongings. On trying to contact the respondent over the phone, he has abused the appellant in filthy language and used to threaten her to kill.
4. The Family Court, based on pleadings, framed the issues and recorded the evidence of the parties. The appellant examined herself as RW-1 and exhibited, Ex.R1 to R8. The respondent examined himself as PW-1 and exhibited Ex.P1 to P43. The Family Court, by judgment dated 01.02.2019, inter alia held that the petitioner has proved the grounds of cruelty and he has failed to prove the grounds of desertion and dissolved the marriage between the parties. In the aforesaid factual background, this appeal has been filed.
5. Sri.Sreeranga Swamy C., learned counsel for the appellant submits that the Family Court has committed grave error in allowing the petition filed by the respondent- -7- husband on the ground of cruelty. It is submitted that the Family Court has not considered the evidence adduced by the appellant in its proper perspective nor it has appreciated the documentary evidence placed before it. The Family Court has failed to consider the allegations of cruelty made by the appellant against the respondent, the respondent has failed to adduce the evidence of his mother who was staying with the respondent and non-adducing the evidence of the mother clearly establishes that the allegations of cruelty pleaded by the respondent-husband are without any basis. The Family Court ought to have appreciated the fact that the specific instance of cruelty is pleaded by the appellant that when the appellant, respondent and children were traveling from Mysuru to Bengaluru and the respondent left the appellant and the children on the railway platform without giving them ticket, which has humiliated the appellant and made her to pay fine of Rs.1,500/- to the railway authorities, these acts of the respondent have not been properly appreciated by the Family Court. It is further submitted that the respondent used to lend money on interest to his colleagues and friends and when the dispute arose on the issue of interest and recovery, the respondent used to put -8- blame on the appellant stating that she used to do the finance business, which has been clearly deposed by the appellant in her evidence, however the Family Court has not considered the same.
6. It is also pleaded that the misunderstanding between the parties arose when the appellant filed complaint at Metagalli police wherein the respondent has agreed to pay monthly maintenance of Rs.15,000/- as he is drawing salary of Rs.85,295/-. However, the respondent has stopped paying the maintenance after two months. The respondent has insisted for fee receipts of the children for reimbursement and always in the habit of saying that he does not have any money. These aspects have not been properly appreciated by the Family Court which resulted in allowing the petition. Learned counsel for the appellant submits that he has filed an application under Order XLI Rule 27(aa) of CPC seeking to produce additional documents in the appeal by contending that those documents were not in the custody of the appellant at the time of filing the appeal nor at the time of filing the written statement before the Family Court. -9- Hence, he seeks to allow the said application by taking the documents on record. It is submitted that the additional documents are the wound certificate of the appellant dated 04.01.2016, 14.05.2017, complaint dated 06.12.2004, copy of the charge sheet dated 22.12.2004, certified copy of the deposition of the respondent in STC No.89/2005 on the file of Addl. Judicial Magistrate of I Class, Kadapa and certified copy of the judgment in STC No.89/2005 and submits that these are the documents which clearly establishes that the respondent has inflicted cruelty on the appellant. Learned counsel for the appellant - wife submits that the Trial Court has committed error in not granting permanent alimony to the appellant while allowing the petition filed by respondent for dissolution of marriage. Hence, he seeks to allow the appeal filed by the appellant-wife.
7. Per contra, Sri.Ramakrishna Hegde, learned counsel appearing for the respondent-husband supports the impugned judgment and decree and submits that the appellant has led married life with the respondent few years only and the appellant was in the habit of grabbing the
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entire salary of the respondent and used to send the said amount to her brother and her brother has collected more than Rs.19.00 lakhs from the respondent stating that he would get residential site at his native place and when the respondent questioned the appellant about the money, the appellant and her brother used to threaten the respondent with dire consequences. It is submitted that the appellant was in the habit of quarreling with neighbours and she has filed numerous false complaints against the neighbours which has resulted in humiliation to the respondent. The appellant has not performed her duties as dutiful wife and on 10.02.2016 the appellant made a telephonic conversation with her brother and both have planned to kill the respondent for getting the financial benefits and to get rid of him.
8. It is further submitted that the appellant has lodged false complaint against the respondent alleging that the respondent has assaulted the appellant and as per the advice of the police, the respondent has started living separately from the appellant and agreed to pay the
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maintenance which he is paying regularly. It is also submitted that due to illegal treatment of the appellant, the respondent has suffered mental agony, caused frustration and damaged his reputation in the public and the appellant has not allowed the respondent to visit the children, she has not only spoiled reputation of respondent but the future of the children. It is submitted that the appellant has not sought any permanent alimony before the Family Court however, granting the same in this appeal would not arise. It is pleaded that the respondent has placed the cogent and acceptable evidence before the Family Court to prove the cruelty which has been properly appreciated and the decree of divorce has been granted on the ground of cruelty which does not call for any interference in the present appeal.
9. We have heard learned counsel for the appellant, learned counsel for the respondent, perused the appeal papers and the trial Court records.
10. The parties to the proceedings do not dispute that their marriage was solemnized on 20.03.1998 in Kadapa,
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Andhra Pradesh and they have two children. It is not in dispute that the respondent - husband is working as an employee in Reserve Bank of India and parties have started residing separately from February 2016. The appellant is residing in the official quarters allotted to the respondent - husband. The allegations of cruelty alleged by the respondent - husband are that the brother of the appellant had filed complaint against the respondent's colleague Satyanarayana for dishonour of Cheque which has resulted in conviction. The said act of the appellant has caused humiliation. The appellant - wife has transferred money to her brother from time to time as per Ex.P20 without the consent of the respondent - husband. The allegation that the appellant had filed a complaint with the superior officers of RBI with a request to stall the respondent's promotion, the appellant had an habit of filing false and vexatious complaint against the neighbour alleging that he has tried to outrage her modesty and later the said complaint was withdrawn and the allegation that appellant has not performed the duties as a dutiful wife and never taken care of the respondent - husband and children by providing food to them. It is averred that the appellant has started living
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separately from February 2016. However, on 14.05.2017, the appellant along with the children went to the house of the respondent and quarreled with him and assaulted his aged mother which has caused mental cruelty on the respondent. Ex.P5 eviction notice issued by the employer of the respondent dated 15.12.2004 makes a reference of the incident occurred on 06.12.2004 at the residential quarters and directed the respondent to vacate the possession of the quarters within one month failing which they would initiate disciplinary proceedings for misconduct. The respondent has replied to the said notice at Ex.P6 expressing his apologies to the employer for the incident occurred on 06.11.2004 and requested to withdraw the eviction notice. The employer of the respondent has issued the notice to the respondent as the appellant had quarreled and created ruckus with the neighbours. Ex.P7 is a warning notice issued by the employer of the respondent informing him that they have accepted the apology on the assurance that there will not be any prejudicial act to affect the interest of the neighbours.
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11. On close scrutiny of the pleadings, evidence and the exhibits referred supra, it is evident that the appellant was indulged in money lending business with the neighbours, and she used to pick up quarrel with regard to collection of interest which has resulted in filing of complaint against the neighbours falsely alleging that neighbour has attempted to outrage her modesty. The said act of the appellant has caused severe damage to the reputation of the respondent in his work place and in the RBI township. This Court is of the considered view, such an act of the appellant amounts to mental cruelty on the respondent. The appellant has admitted that she has filed complaints against the respondent on 10.02.2016 and 23.04.2016. Admittedly the respondent has left the official quarters and started living separately along with his mother from 11.02.2016. The said complaints are frivolous which has ended without taking any action against the respondent
- husband. The evidence on record clearly establishes that the appellant was a quarrelsome woman and she used to pick up quarrel with the neighbours and also with the respondent - husband and was of the habit of filing false and vexatious complaint against them in the police station.
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12. It will be useful to refer the decisions of Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of 'K.SRINIVAS RAO v. D.A.DEEPA' (2013) 5 SCC 226 has held as under:
"Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh [(2007) 4 SCC 511] , we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse."
The Hon'ble Supreme Court in 'JOYDEEP MAJUMDAR v. BHARTI JAISWAL MAJUMDAR' (2021) 3 SCC 742 has held as under:
"Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnisation of the marriage,
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treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term "cruelty". Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental."
13. Keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court, in the case on hand, the appellant has caused mental cruelty to the respondent - husband, by making reckless allegation against him, that he has attempted to kill her, which has caused mental cruelty to her. The allegations are not substantiated with any evidence before the Family Court. Making the reckless allegation without substantiating the same would amount to mental cruelty to the respondent - husband. It is admitted that the appellant - wife has initiated criminal proceedings against the respondent - husband on 23.04.2016 alleging the offences punishable under Sections 498A and 307 of IPC. Admittedly, the said complaint is filed after the respondent - husband started living separately. The said act
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of filing the complaint subsequently alleging the cruelty, and alleging the attempt to murder are the serious allegations which has caused humiliation and mental harassment to the respondent - husband. The appellant has further specifically asserted that the respondent - husband is living with one Sumathi by marrying her. However, the appellant has not substantiated the said allegation by placing proper evidence before the Family Court. The allegation of marrying Sumathi is a serious allegation made with an intention to harm the reputation of the respondent - husband knowing fully well that the respondent - husband is working in West Bengal and residing there along with his aged mother. The appellant has initiated proceedings under the provisions of Domestic Violence Act against the respondent - husband, his mother and one Sumathi by making reckless allegation against them. The aforesaid acts of the appellant clearly demonstrates that the appellant has inflicted mental cruelty on the respondent - husband continuously by initiating various proceedings against him. The appellant has made an attempt of producing the additional evidence in this proceedings. On careful scrutiny of the documents enclosed along with the application filed under Order XLI Rule 27(aa)
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of the Code of Civil Procedure, 1908 and the averments made therein. It appears that the appellant is trying to improve her case by way of additional evidence. The documents enclosed along with the application were very much available to be placed before the Family Court and no explanation whatsoever is forthcoming from the affidavit accompanying the application for non-production of the documents before the Family Court. Hence, the said application is devoid of merit. Accordingly, it is rejected.
14. The contention of the learned counsel for the appellant that Family Court has committed an error in not granting permanent alimony has no merit consideration, as no claim for permanent alimony was made by the appellant before the Family Court. The prayer of the appellant to grant permanent alimony to the appellant in the present appeal is also required to be rejected on the sole ground that the appellant has not placed any material evidence to determine permanent alimony. It is open for the appellant to initiate appropriate proceeding seeking for permanent alimony if so advised.
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15. The Family Court has recorded a detailed finding on the allegations of cruelty after appreciating the evidence on record, has come to the conclusion that the respondent - husband has proved the grounds of cruelty and proceeded to dissolve the marriage. This Court do not find any error or infirmity in the finding recorded by the Family Court calling for interference in this appeal.
16. For the aforementioned reasons, we do not find any merit in this appeal.
Accordingly, the appeal is rejected.
17. In view of dismissal of the appeal, the pending interlocutory applications do not survive for consideration and are accordingly disposed of.
Sd/-
JUDGE Sd/-
JUDGE RV/BSR