Karnataka High Court
Sri P Puttaswamy vs Smt N Rukmini on 29 June, 2012
Bench: N.K.Patil, S.N.Satyanarayana
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R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF JUNE, 2012
PRESENT
THE HON'BLE MR. JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
M.F.A. NO. 2752 OF 2011(FC)
Between:
Sri. P.Puttaswamy,
S/o. Late Parashuramappa,
Aged about 46 years,
Announcer,
Akashavani,
Hassan-573 201.
....Appellant
(By Smt. Bhushani Kumar, Advocate)
And:
Smt. N. Rukmini,
W/o. Puttaswamy,
Aged about 38 years,
Women Police Constable,
Rural Police Station,
N.R. Circle,
Hassan-573 201.
...Respondent
(By Sri. N.K. Ramesh, Advocate)
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This M.F.A. is filed under Section 28(1) of Hindu
Marriage Act, against the judgment and decree dated
31/01/2011 passed in M.C.No.22/2004 on the file of the
Additional Senior Civil Judge, Hassan, dismissing the
petition filed U/s. 13 of Hindu Marriage Act for divorce.
This M.F.A. coming on for Admission this day,
S.N.Satyanarayana, J, delivered the following:
:JUDGMENT:
The unsuccessful petitioner in M.C.22/2004 on the file of the Additional Senior Civil Judge Court, Hassan, has come up in this first appeal. The appellant herein is the petitioner and respondent is the respondent before the Court below. For the sake of convenience, they are referred to by the ranking before the Court below.
2. The brief facts leading to this appeal are as under:
Petitioner and respondent are Hindus, their marriage was arranged by elders of both family and solemnized on 20th May 1994 at Shimoga according to customs prevailing in their community. At the time of marriage, the husband was working in Akashavani and the respondent a housewife. After the marriage, initially the matrimonial house was set up at Tharikere, where the petitioner was working. 3 Thereafter, due to his transfer, it was shifted to Hassan. In the wedlock, petitioner and respondent have two children, a male and female born respectively in the year 1996 and 1998. At the time of filing the petition both the petitioner and respondent were living in the matrimonial house at Hassan, which is set up in the residential quarters allotted to petitioner by Akashavani, Hassan. In the matrimonial house, besides the petitioner, respondent, their two minor children and mother of the petitioner were residing.
3. The petition was filed by the husband under section 13 of the Hindu Marriage Act, for the relief of Decree of Divorce. The petition averments are that, after the marriage in the year 1994, the petitioner and respondent setup matrimonial house at Tharikere and lived there for a period of six months. During that period, respondent treated the petitioner and his family members in rude manner addressing every one of them in singular, did not respect the elders, ill-treated and insulted for no reason. She was not co-operating with the petitioner in leading the normal marital life. Since she refused to live in Tharikere along with 4 other members of the petitioner's family which at that time included his mother, brother, sister-in-law and others, petitioner was forced to take transfer from Tharikere to Bhadravathi. Accordingly, he shifted his residence to Bhadravathi on 1.4.1995. In the matrimonial house, though he provided all comforts the behaviour of respondent did not improve. She continued to treat the petitioner and his mother in the same manner, as she was treating them in Tarikere.
4. During this period, respondent conceived and delivered two children, one in the year 1996 and another in 1998. The first baby is male child and second is female child. When her mis-behaviour with family members continued, it also extended to abusing the children in filthiest of the languages like, calling the husband and the children as persons born in illicit relationship (Bastard) and addressing the petitioner's mother as prostitute, she was also physically assaulting them without any reason. When her behaviour continued like this, petitioner took her to Government 5 Mental Hospital, Hassan, on 12.3.2003. The Doctor diagnosed her and informed the petitioner that his wife is suffering from Paranoid Schizophrenia and also stated that the disease could not be cured completely, it will continue to relapse often, that it can only be managed with medication. In that behalf, a certificate was also issued by Doctor S.M.Arunachalaiah who treated her. The said Doctor advised her continuous medical treatment. Inspite of best efforts on the part of petitioner respondent did not co- operate with him in taking the treatment as advised by Doctor. She also did not co-operate in reforming herself.
5. In the meanwhile, she had applied for the post of Police Constable and got selected as Women Police Constable to Karnataka Police Service. Her posting was to the place where petitioner was working. Accordingly, even after that, she continued to live with petitioner, their children and mother of petitioner. After her appointment as Police, she became more bold and her torture to members of the family increased. She also started using abusive language to them in the presence of neighbours, relatives and friends. The 6 words, which were used were filthiest in nature and would not befit the stature of a married woman. Under the said circumstances, the petitioner left with no other option, got issued a legal notice to her on 6.5.2004 to the same address where the petitioner and respondent were living together.
6. Though the legal notice sent under registered post was refused by the respondent, a copy of which sent under Certificate of posting was duly served. Inspite of service of notice, she did not bother to reply to the notice. Therefore, petitioner left with no other option initiated proceedings seeking decree of divorce from the respondent. Though in the said petition, it is not stated specifically under what ground the decree is sought, on going through the contents of the petition, it is seen that petitioner has sought for decree of divorce under section 13 (1)(ia) of the Hindu Marriage Act i.e. under the ground that, petitioner is subjected to mental cruelty by the respondent in the wedlock.
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7. In the proceedings before the court below after service of notice, respondent entered appearance and filed statement of objections. The sum and substance of the statement of objections is, she accepted the marriage between herself and petitioner and also the birth of two children in the wedlock in the year 1996 and 1998, her employment as woman Police Constable in Karnataka Police Service, also her residence with petitioner, his mother and their children in the quarters allotted to the petitioner by Akashavani in Hassan City. In respect of the allegations made by the petitioner regarding her conduct, use of abusive and filthy language against the petitioner, his mother and children were denied emphatically. She also denied that she is physically violent towards petitioner, his mother and children and that she is not taking care of any of them and that she is trying to live wayward life being uncontrolled by the petitioner.
8. In the said statement of objections she tried to set counter attack against the petitioner in trying to find fault 8 with his conduct, inasmuch as that, the brother of the petitioner- husband tried to get their first male child in adoption. The respondent refused said request, hence, petitioner and his brother have joined together to give pinpricks to respondent to see that somehow the marriage between petitioner and respondent is annulled and thereafter, to get their child given in adoption to the brother of the petitioner. In the said proceedings, she has repeated all the averments made in the petition regarding her mis- behaviour and denied each one of them as false and concocted for the sake of the petition. After the pleadings were complete, the Court below proceeded to record the evidence of the parties.
9. On behalf of the petitioner, he examined himself as PW-1, in support of his case, he also examined his mother Smt. Gowramma as PW-2, Dr. Arunachalaiah and Dr. M.K.Harish who treated the respondent for the problem of Paranoid Schizophrenia as PWs- 3 and 4. He also examined his minor son who was aged about 12 years at the time of 9 evidence as PW-5 and his minor daughter who was aged about 10 years was examined as PW-6.
10. The sum and substance of the evidence given by PWs -1,2,5 and 6 are one and the same. On reading of said evidence, it is clear that language that is used by respondent as stated in the evidence of these four witnesses is unprintable. These four witnesses, while giving their evidence in support of the petition have also relied upon Exs.P1 to P 42. Out of which, Exs.P27 to 37 are 11 audio cassettes, Exs.P38 and 40 are the Compact Discs with audio video recording and Ex.P39 is the Memory Card of Nokia Mobile phone. The contents of Exs.P27 to 42 are outrageous and would cause worry to any conscious person. In these documents, it is clearly seen that whatever the petitioner has stated in his evidence which runs about 21 pages appears to be true to the last word which is stated by him. Infact, this Court after seeing those documents could even say that the oral evidence of PWs.1, 2, 5 and 6 is milder version of what was meted out to petitioner for 18 long years in his 10 unfortunate married life with respondent and also to his mother and children which they do not deserve. The kind of language that is used and the kind of words that are uttered by the respondent is so atrocious that no respectable women would use that kind of words. The evidence of the petitioner which is running to 21 pages is being corroborated with these 11 audio cassettes and 2 compact discs and also the photographs in Nokia Mobile and other things, which establish beyond all reasonable doubt that the respondent is not a women of respectable stature and her language is so cheap and mean, no respectable person can have reasons to tolerate her. The manner in which she has addressed each one of them as could be seen in those audio cassettes has shattered the faith of this Court in womanhood. What is more painful and unfortunate according to us is that the entire thing is substantiated by her own children i.e. son aged about 12 years and daughter aged about 10 years.
11. It is seen in the evidence that she has addressed her son as bastard (not born to his father) and has told him 11 that she have given birth to him by sleeping with several persons. She is also uncharitable to her daughter who has not attained puberty and who is in tender age of 10 years as prostitute, who goes with other persons to get seduced. This Court finds it difficult to place all these on record, when it has found that the respondent has uttered these words by herself. It is needless to say that, she has given same kind of treatment to her mother-in-law, PW2 who is now aged about 82 years which is also brought on record. The evidence of these four witnesses clearly disclose that though the respondent given birth to these two children, it is the mother of the petitioner-PW2- Gowramma, who is a pious elderly respectable lady, has brought up these children with utmost love and affection, even in such repelling circumstances in which the children were placed during their formative period, they appear to have learnt to respect elders and retain their sanity of mind.
12. So far as the evidence of PWs- 3 and 4 are concerned, who are the Doctors, they have supported the case of the petitioner, inasmuch as, confirming the mental 12 illness suffered by the respondent and also attempt made by the petitioner to get her treated and advised by these witnesses. The Doctors, PWs.3 and 4, have also opined that the decease suffered by respondent is incurable, but can be managed with continuous medication for life. They further confirm that the respondent did not co-operate either with her husband or the doctors in getting treatment continuously and uninterruptedly.
13. As against this, the respondent has stepped into witness box to give evidence as RW1 and in support of her case, she has also examined her elder brother Gopi and one Hanumanthaiah, for the limited purpose of producing the Service Register of respondent before the Trial Court as RWs- 2 and 3.
14. The evidence of respondent as RW1 is nothing but repetition of averments made in the statement of objections. In her evidence, she has tried to substantiate whatever that she has stated in her statement of objections and denied each and every allegations that is made by PWs- 13 1,2,5 and 6 in their evidence. In addition to denial of this, there is nothing much. However, the respondent in her cross- examination also took the ground that she has not done any mistake and she has not abused anybody in the family and that the documents which are produced at Exs.P27 to 41 has got nothing to do with her and she is not person in those CDs and also Audio cassettes and what is being done is Morphing by the petitioner who is well versed in recording, has misused his personal knowledge in the same in creating document against her
15. With the above said pleadings, oral and documentary evidence available on record, the Court below proceeded to frame the following points for its consideration:
(i) Whether the petitioner has made out grounds for grant of decree of divorces sought?
(ii) What order?
On appreciation of the aforesaid material, the court below has proceeded to answer the same in the negative and thereby rejected the prayer of the petitioner for decree of 14 divorce. Being aggrieved by the same, the present Miscellaneous First Appeal is filed by the unsuccessful petitioner in M.C. 22/2004, on the ground that, there is failure on the part of court below in appreciation of pleadings, evidence of PWs-1, 2,5 and 6 which would directly supports the petition averments and also the evidence of PW1 in the Court below. There is an error on the part of the Court below in not taking into consideration the evidence adduced by the innocent minor children who were not under the influence of either the petitioner or respondent. The innocent statements of fact by PWs-5 and 6 to the effect that, the respondent would address their father as impotent, hijada, so on and so forth and that the children as bastard, prostitute is not taken into consideration by the Court below.
The Court below has not looked into the Psychiatrist Report which is produced as Ex.R1 by the respondent in support of her case, which clearly discloses that the respondent is suffering from incurable disease of Paranoid Schizophrenia. The opinion of the Doctors who have given evidence as PWs- 3 and 4 is also totally ignored.
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16. The Court below has not taken into consideration the conduct of the respondent in not obeying the order of this Court passed in W.P.No.13643/2008 wherein, a direction was issued to the respondent at her instance to get herself treated before NIMHANS and to produce the report. It is seen that, in obedience of the said direction, she went to NIMHANS only once and when she was called upon to pursue her visit for further treatment, she has restrained herself from that without any valid reasons and failed to submit herself for further examination. The said conduct of respondent is not taken into consideration by the Court below at the time of disposing of the petition for divorce. It is further urged that, in the absence of proper appreciation of pleadings and evidence, there is miscarriage of justice in rejecting the petition filed by the appellant herein, seeking decree of divorce against the respondent.
17. In this appeal, after lower court records were received, heard the counsel for the parties for a while. After hearing the counsel on facts and on going through the oral 16 and documentary evidence available on record, this Court found it difficult to accept the same. However, to make sure that there is no exaggeration of facts and to ascertain the truth, directed the counsel appearing for appellant and respondent to keep their respective parties present before the Court along with the minor children. Initially, petitioner and respondent were directed to be present before this Court on 10.4.2012. Since, the respondent did not personally appear before the court, at the instance of the counsel appearing for both the parties, the matter was referred to Mediation Center. The mediation, which was held was reported to have failed and thereafter, this Court directed both the parties to be present before the Court along with the minor children by its order dated 4.6.2012. The petitioner and respondent were present along with their two minor children on 18.6.2012 at about 2.30 p.m. On that day, at about 4.30 p.m., this matter was taken up in the Chambers of the Presiding Judge for in-camera proceedings, in the presence of petitioner and respondent, their children and their respective counsel namely, Smt. Bhushani Kumar for the petitioner-husband 17 and Sri.N.K.Ramesh for respondent-wife. What transpired in the said in-camera proceeding before this Court is un- comprehendible.
18. Initially, the children were called in. The minor son of the parties stated that his mother is not treating her husband with respect and she is also not showing any love and affection to her children. She is disrespectful to her mother-in-law. He said that, his mother would use such filthy and abusive language, which is difficult for him to repeat before the Court. It is mentioned to us that, all those words which are used to his father is recorded in the evidence of his father in the Court below as PW-1. Subsequently, when the daughter came in, she has some more thing to add to that, about the conduct of the mother. She said, her mother was not leading respectable life, the whole night she would be talking to different male colleagues and even she would talk all dirty thing over phone. If she is called out of the house in the middle of the night, she would put on jeans, tops, gagra choly and often go out of the house 18 in a two wheeler in the middle of the night without telling anybody where she is going and when she is coming. Usually she would go out to meet her male friends under the pretension that she is going out for raid to catch persons doing immoral activities. The innocent child of 14 years with all pain and humiliation brought to the notice of the Court that her mother herself was leading immoral life and that she would constantly talk to one Police Sub Inspector over telephone, whose name is Ramesh Rao and she would talk all explicit sexual and intimate details. When ever the said person calls her out for company, she would go. She also said that there are some other people who would also call her mother at odd hours.
19. She also said that, once her mother had taken her to Sangli, which is the native place of Ramesh Rao. In that place, respondent made her daughter to stay for four weeks in a house, where the child was put to sleep in one room and respondent would sleep with said Ramesh Rao in a separate room. When they were residing in the said house, the relatives of Ramesh Rao came there and physically 19 manhandled this respondent and the minor daughter PW-6, they were beaten black and blue, at that time, respondent called RW2, her brother to get herself relieved from the misery of getting tortured by the family members of said Ramesh Rao, Police Sub Inspector. It is also stated that they were warned not to come to Sangli again. The girl also said that her mother has taken several photographs in her cell- phone in which her mother was in compromising position with Ramesh Rao. Those photographs were available in the Mobile phone of respondent. The minor son of the parties PW.5 informed this Court that they have collected the same from their mother's room and preserved it to show to the Court and they did show us said photographs at the time of in-camera proceedings. The son also showed certain photographs in his Mobile phone with MMS clippings, which according to him, got it transferred from the mobile of his mother to his mobile. When this Court directed the counsel appearing for the parties to produce those photographs, the same were produced along with I.A.No.I/2012 which is on record of this Court.
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20. The daughter also said that, of late her mother has given up the association of Ramesh Rao, Police Sub- Inspector and now she has developed intimacy with some other person, with whom she goes out in the night in the pretext of night duty. When all these things were going on, the respondent, who was present before this Court in in- camera proceedings, tried to protest that her children are making false statements as tutored by her husband. At this point, the minor female child confronted her mother with each and every act of her mother as to the date, time and name of persons with whom she spoke over telephone, at whose instance she went out of the house in the middle of night under the pretext of duty, for which the respondent had no answer, except saying that she loves her children and husband and she wants to live with them. She also had no explanation to the recording in CDs, photos in Nokia memory card and also MMS clippings in the cell-phone of her son, which are said to have copied by him from his mother's mobile, showing her mother in compromising position with Inspector Ramesh Rao. The in-camera 21 proceedings went on for more than 1 ½ hours on that day in the presence of petitioner, respondent, their two children and also the elder brother of respondent. When the photographs in the mobile were shown to respondent in the presence of counsel appearing for respondent, she refused to accept her own photographs as that of her and she pretended that she does not know the male person seen in those photographs, which the children identified as Sub Inspector Ramesh Rao, who they have known as mother's friend for longtime. Though this Court could make out the person in the said photos, MMS clippings, video recording is none other than respondent, both respondent and her brother tried to convince the court that the person in said photos is different from respondent. This Court is unable to accept the denial of respondent and her brother.
21. It is rather unfortunate that when all the above material was available on record in the court below in both in print as well as in audio mode, it is difficult to comprehend what prevailed in the mind of trial judge in ignoring such serious evidence. All these material prove 22 beyond all doubt that the respondent is woman of ill-temper, ill mannered and also of easy virtue. Though the Trial Judge accepted all these evidence right from paragraph Nos.11 to 31, in para-32, goes against the same and dismissed the petition filed by husband on the ground that respondent is a Paranoid Schizophrenia patient and at this juncture if decree of divorce is granted, she would be forced to live alone and she would undergo mental torture without anybody to take care of her. It is rather sad to observe that, the Trial Judge did not even for a minute think about the future of the minor children who have to live with the said lady at their formative age. The future of the petitioner, who is forced to live with a woman who is proved to be a woman of easy virtue beyond all reasonable doubt, is also not taken into consideration. If the marriage is not dissolved and if she is allowed to continue with petitioner and PWs-2,5 and 6 who are none other than the mother of petitioner and minor children of petitioner and respondent, they would be exposed to serious threat of suffering of ignominy and disrespect in the society. It is also seen that, when the evidence of PWs.5 23 and 6 which is so overwhelming in demonstrating that the presence of respondent in matrimonial house is to the detrimental of the upbringing of PWs- 5 and 6, the Court below without considering the same, with scant consideration for the welfare of minor children, has dismissed the petition filed by petitioner for decree of divorce, which is required to be interfered with in this appeal.
22. This Court, after reappreciating the evidence, pleadings which are reiterated by documentary evidence in Exs.P27 to P40 and further confirmed by the conduct of respondent in in-camera proceedings on 18.6.2012 between 4.30 p.m to 6.00 p.m in the presence of her counsel and also her husband, their two children and her own brother, it is seen respondent could not deny any of the allegations that were made by her children before this Court in in-camera proceedings. However, there was meek attempt on her part to show that children were tutored by petitioner to give false evidence against her. She also made attempt to demonstrate that she will die for her children. Which of-course children 24 flatly refused to accept and stated that it is only a gimmick on her part. In support of what they said, they drew our attention to the evidence which is already on record in the form of video and audio disks.
23. In addition to that, the daughter of parties to the proceedings said that, after the evidence was recorded and before this appeal came up for final hearing, she attained puberty, on that day, respondent was inaccessible to her except being there in the morning. Even after coming to know of the same, she just walked out of the house, as if she has nothing to do with that. The child also stated that it was her grandmother PW2, in the Court below who took care to attend to all hygienic and health assistance which was required to the child at that time and she attended to the customary rituals that follows. The said incident was attended only by the grandmother. The respondent did not even bother to take any interest in the said matter, for which, respondent had no answer except to hang her head in shame before the Court. After hearing the minor children of the parties to the proceedings who explained everything with 25 utmost maturity and calmness with such a firmness without being influenced by anybody in in-camera proceedings and pleaded to the Court to allow this petition and to relieve their father of mental torture which he is undergoing from past 19 years and also prayed that they should be permitted to live in decent atmosphere where the neighbours and their friends would not laugh at them for the conduct of their mother because of which, they are not able to move out in the society freely with their friends. This Court has absolutely no reason to disbelieve the pleadings and evidence of petitioner made in petition as well as in his oral and documentary evidence and the statement made by the children before this Court in in-camera proceedings.
24. It is rather unfortunate situation for learned counsel for respondent Mr. Ramesh, who after witnessing all these things in in-camera proceedings had to substantiate the defence in support of his client. However, the denial of aforesaid facts by respondent and her counsel is nothing but a vain attempt on their part to save the marriage of respondent. This Court is not willing to accept the same not 26 only in the interest of petitioner, but also in the interest of minor children who need to be provided a better and sensible atmosphere for their growth. In that view of the matter, this Court finds that there is absolutely no justifiable reasons to sustain the impugned judgment, which requires to be set aside placing on record the displeasure of this Court in the manner in which the Trial Court has handled the said petition.
25. It is seen that the only thing that probably might have gone through the mind of the court below is that, respondent being a woman, her interest should be protected. Though the said view is laudable in normal circumstance, but not in this case at the cost of petitioner, his aged mother and two children. This Court feel that the manner in which this case is handled by the Trial Judge is not befitting the manner in which it was required to decide the same.
26. With the aforesaid observations, the judgment and decree passed by the learned Additional Senior Civil Judge, Hassan in MC 22/2004 is set aside and consequently, the 27 petition filed by the husband for decree of divorce under section 13 is allowed and the marriage between the petitioner- P Puttaswamy and respondent-N Rukmini which was solemnized on 20th May 1994 is hereby dissolved.
27. While doing so, this court feel it is just and necessary that cost should be imposed on the respondent for the trauma she has caused to her children. Hence, it is hereby ordered that respondent-wife shall pay cost of Rs.25,000/- in these proceedings, which she shall deposit in the Court below within six weeks from this day. On such deposit, the Trial Court shall invest the same in the name of PW-6 minor daughter -Shreyaswini for her benefit. She shall be entitled to receive the same along with interest after she attains majority.
SD/-
JUDGE SD/-
JUDGE tsn*