Karnataka High Court
K.R. Mangunath vs Smt. Veena on 4 August, 1998
Equivalent citations: I(1999)DMC525, 1998(6)KARLJ346, (1999) MATLR 207, AIR 1999 KARNATAKA 64, (1999) 1 MARRILJ 336, (1999) 1 CURCC 313, (1999) 1 DMC 525, (1999) 2 HINDULR 78, (1998) 6 KANT LJ 346
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT N.S. Veerabhadraiah, J.
1. This is the husband's appeal against judgment and order dated 8-4-1992 passed by the Family Court in M.C. No. 29 of 1988 dismissing the petition for dissolution of the marriage.
2. Brief facts of the case are as follows:
The petitioner-K.R. Manjunath filed a petition under Section 13 of the Hindu Marriage Act, 1955 praying for dissolution of the marriage dated 11-5-1973 between him and the respondent by granting a decree of divorce. The marriage of the petitioner with the respondent took place on 11-5-1973 at Kaiwara, Chintamani Taluk, Kolar District and both were leading a marital life. Out of their wedlock, they were blessed with two children, a daughter by name Rashmi and a son by name Sriram aged about 13 years and 8 years respectively. The respondent used to create unpleasant situations and frequently quarrel with the petitioner's mother and they shifted their residence in the year 1978 to the respondent's sister's house and after chain of movement from one residence to another ultimately in the year 1984 the petitioner along with the respondent and the children shifted to the premises where they are residing now. Even though the root cause for such unsettled movement and shifting of the residence from one residence to another was purely on account of the ill-tempered, cantankerous and non-co-operative behaviour of the respondent with the petitioner and also with the neighbours. In the neighbourhood of the said premises i.e., the premises where the respondent is presently residing, there is one lady by name Indira. After they shifted to the said premises the approach of the respondent with Smt. Indira was never friendly and cordial. The husband of Smt. Indira was ailing and was throughout bedridden. Instead of approaching such a neighbour woman with care, sympathy and concern, the respondent was throughout maintaining a scornful approach towards her. She always mistook and misunderstood the cordial relationship maintained by the petitioner with Bhasker, the ailing husband of Smt. Indira, has to be that an extra-marital affair between the petitioner and Smt. Indira. The misunderstanding of the respondent was expressly manifested by her by treating the petitioner disrespectfully, contemtemptously by scolding and abusing the petitioner in filthy language. Many times, the respondent has boldly commanded the petitioner to get out of the house proclaiming that she was a working woman earning more than the petitioner and that she can take care of herself and the children. After the demise of the said Bhaskar i.e., ailing husband of Indira on 12-8-1986 things took a worst turn for the petitioner. Respondent began making bold and open allegation against Indira also. She also went to the brother of late Bhasker i.e., brother-in-law of Smt. Indira and spread these false rumours to him. As the abusing and shouting against Smt. Indira continued daily, she was compelled to give a police complaint against the respondent with the Vyalikaval Police Station, Bangalore. Accordingly, Vyalikaval Police summoned the petitioner and the respondent to the police station. The respondent narrated the false story of the so called illicit affair between the petitioner and Smt. Indira. The respondent again continued to make false allegations against the petitioner of having an adulterous and illicit affair with Smt. Indira. The petitioner was thus subjected to grave mental cruelty. However, he was constrained to reside with the respondent only for the sake of children.
3. In the month of March 1987, the respondent approached the Deputy Commissioner of Police, Bangalore and both were advised to set right the difference. Thereafter, the respondent filed a complaint with the Deputy Inspector General of Police (Grievance Cell), Bangalore. The complaint was forwarded by the Deputy Inspector General to the Vyalikaval Police Station and the Vyalikaval police recorded the statement of the petitioner and also the statement of Smt. Indira in the month of October 1987 and found that there is no truth in the allegation of the complaint. Not satisfied with this, the respondent spread these false rumours with the brothers of Indira making the petitioner's position in the factory miserable. The respondent also resorted to certain black magic making it impossible for the petitioner to stay in the said premises with the respondent. The petitioner has been subjected to undue mental cruelty making his life miserable. The harassment meted out to the petitioner by the respondent and her brothers by way of false police complaints, open abuses, allegations, etc., is so harsh and grave that the petitioner found it difficult to live with the respondent any longer. The petitioner was thus compelled to shift to his mother's house in the first week of December 1987.
The petitioner caused a legal notice to the respondent calling upon her to give a mutual consent for divorce. After receiving the copy of the notice, the brother of the respondent who is working in the same factory where the petitioner is working came to the work spot in the factory and abused and threatened the petitioner with dire consequences. The petitioner lodged a complaint with the police on 18-12-1987. On the said allegation, he prayed to grant a decree of divorce of their marriage on 11-5-1973.
4. The respondent filed a detailed objection statement inter alia contending that the allegation this respondent used to create unpleasant situations by frequently quarrelling with the petitioner's mother and on the ill-advise they shifted their family to the house of the respondent's sister are all false. In the premises, where they are residing presently there is one lady by name Indira who is neither a relative nor a family friend of the petitioner or the respondent. Hence, the question of having friendly or cordial relationship with the strange woman does not arise. The way in which the petitioner makes allegations against this respondent that the respondent had not approached the said Indira with care, sympathy and concern to treat the husband of the said Indira and further she has maintained a scornly approach towards her, she always mistook and misunderstood the cordial relationship maintained by the petitioner with Bhasker, the ailing husband of Smt. Indira, these allegations have no legs to stand for the simple reason that she is utterly a stranger to the family of both the petitioner and the respondent. That the further allegations made in this para that the respondent understood that it is an extra-marital affair between the petitioner and Smt. Indira and this misunderstanding of the respondent was expressly manifested by the respondent by treating the petitioner disrespectfully is false. In fact, the petitioner compelled the respondent to visit the house of Indira and to have cordial relationship with the petitioner for the reason best known to him. It is only when the respondent did not heed to such words of the petitioner, he started abusing and assaulting the respondent many times before the children and further the petitioner began making bold and open statements that he would marry Smt. Indira. Having heard such statement the respondent has not made any allegations, on the other hand she advised the petitioner not to indulge in illegal acts and have any affair with Smt. Indira and further the intimacy of the petitioner with the said Smt. Indira the petitioner not being satisfied with the advise of the respondent he started moving closely with the said Smt. Indira and further the intimacy of the petitioner with the said Indira became more and more ultimately which took a bad turn after the demise of Bhasker, the husband of Smt. Indira. The respondent requested the petitioner to keep up the status and honour of marital life by leaving the illegal relationship with the said Smt. Indira. The respondent tried to convince the petitioner that the act would definitely endanger the career of their children but all her advise went in vain. The petitioner did not care for the welfare of his children also. However, the respondent as a dutiful wife has all along tolerated all these things and continued to live with the petitioner with agony. He ultimately deserted her as she did not consent for his illegal relationship with Smt. Indira.
5. The Vyalikaval Police have summoned both of them and also Indira and advised her not to interfere with the life of the petitioner and respondent. The allegation that she subjected him to undue mental cruelty making his life miserable and further harassment by giving false complaint are all false. In fact, the petitioner without her knowledge and consent has left the house without any lawful cause by taking away the jewels, cash and household articles to the house of petitioner's mother, and denied all other averments which are inconsistent with this objection statement and prayed to dismiss the petition.
6. The petitioner got himself examined as P.W. 1 and produced Ex. P. 1 to 10. The respondent got herself examined as R.W. 1 and closed her side.
7. The learned Judge of the Family Court considering the evidence of both the parties dismissed the petition by his order dated 8-4-1992. Being aggrieved of the said order, the husband has preferred this appeal.
8. Learned Counsel for the appellant contended that the reasonings of the Court below is erroneous and though there are sufficient materials to show that respondent has subjected the petitioner to mental cruelty has not considered and therefore prayed to allow the appeal by granting a decree of divorce.
9. Learned Counsel for the respondent justified the order of the Court below contending that from the very pleading of the petition and the evidence of the petitioner show that it is the petitioner who caused mental torture and did not allow her to live peacefully. It is also in the evidence of the petitioner he was very much cordial with one Indira than that of the respondent and it is because of the said reason that this petition came to be filed and that there are no merits in the appeal and prayed to dismiss the appeal.
10. In the light of the submissions the point for consideration, that arises is whether the order passed by the Court below does call for interference? If so, what order?
11. It is an admitted fact that the marriage of the petitioner and the respondent solemnized on 11-5-1973. Out of their wedlock the respondent gave birth to a daughter by name Rashmi then aged about 13 years and a son by name Sriram then aged about 8 years. Initially both were residing at No. 23, Kodandarampuram. From the averments of the petition and the evidence of P.W. 1-K.R. Manjunath, the trouble started after 1987 when they shifted their house to the present residence in which now the respondent is staying which they have taken the house on mortgage. It is in the evidence of the petitioner that there were some other tenements adjacent to their house. In one of the tenements one Indira, her husband Bhasker were residing. The husband of Indira was suffering from heart ailment and therefore he was frequently visiting his house to render some assistance and the said Bhasker, the husband of Indira died on 12-8-1986. After the death of Indira's husband, the petitioner was frequently visiting her house which was not liked by the respondent. It is thus, the problem started. It is also in the evidence that in connection with the said act, the petitioner, respondent as well as Indira were called by Vyalikaval Police and were suitably advised. According to the petitioner, that his wife Veena mistook his visits concocted the story of illicit intimacy and thereby subjected him to mental torture and cruelty. Whereas in the evidence of Veena-R.W. 1 shows that there was a neighbour by name Bhasker who was bedridden, wherein her husband used to visit him. After the death of Bhasker, her husband was very frequently visiting the house of Indira and she opposed it as there was no male member in her family. In spite of her best advice in the interest of the family, the petitioner did not listen to her. In fact, Indira also gave a complaint to Vyalikaval Police Station while the police called her husband and Indira and were suitably advised. It is also in her evidence that on 1-11-1986 there was function in her office and on that day she went to the office along with her son and returned home by 10.00 a.m. then she opened the door of their house, which was closed. Then she went to Indira's house which was in the first floor and found her husband was sitting in the house of Smt. Indira. She brought him back and questioned him as to why he was sitting in the house of Smt. Indira. This is how the trouble started and due to the misunderstanding between the husband and wife, the husband filed the petition for dissolution of the marriage on the ground of mental torture and cruelty.
12. The entire evidence of the husband and the wife clearly go to show that they lived a happy life till they mortgaging the house in the year 1984 in which Smt. Indira and her husband were the neighbouring tenements. In the light of the above evidence it is to be examined whether the wife subjected her husband to mental torture so as to render him unable to lead a marital life with her. In order to grant a decree of divorce on the ground of mental cruelty or mental torture that there must be an apprehension which would render harmful or injuries for the husband to live with his wife or is of such nature so as to create reasonable apprehension to that effect would amount to mental cruelty.
13. Section 13(1)(ia) of the Hindu Marriage Act reads as under:
"Clause (ia) of Section 13 specifies cruelty as one of the grounds of divorce. Insofar as the relevant Section 13 reads:
Section 13. Divorce.--(1) Any marriage solemnized, whether before or after the commencement of this Act, hiisband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(ia) has after the solemnization of the marriage treated the petitioner with cruelty".
That in order to grant a decree of divorce on the ground of mental torture and cruelty there must be material evidence whether any of the spouses subjected him or her to mental torture so as to be unable to lead a marital life and there must also be materials that there must be a reasonable apprehension in the mind of either of the spouses which would render harmful or injurious which results in mental cruelty and the act of the parties in regard to other does amount to a mental torture and cruelty has also to be scrutinized from the facts and materials placed. It is well-settled principles if there is reasonable apprehension of any danger to the life constitute the element of cruelty. The mere causing of mental tension does not amount to mental cruelty, and it is the conduct of the parties that have to be assessed on the basis of the evidence let in by the parties. In the light of the above principles in this case it has to be examined whether the wife subjected her husband to mental torture so as to unable him to lead a marital life with his wife.
14. The Counsel for the appellant relied on the decision reported in V. Bhagat v Mrs. D. Bhagat, their Lordships observed as under:
"Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necesary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to get out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made".
There cannot be any dispute regarding the factors to be considered while granting or refusing a decree of divorce. It is also settled principle that each case has to be examined on its own facts and circumstances of the case. Therefore, it is the facts of the present case which has to be considered to grant or to reject relief claimed.
15. Learned Judge of the Family Court at page 37 has observed thus:
"In the circumstances of the case there is absolutely no reason to disbelieve the evidence of the respondent to the effect that one year after they shifted to the house taken on mortgage at Kodandarampura, the petitioner developed illicit intimacy with Smt. Indira. The petitioner has not examined any neighbourers or relatives to show that the allegation made by the respondent about his illicit intimacy with Smt. Indira is false".
Further at paragraph 15 it is observed as under:
"In the instant case the petitioner has not whispered anything about the bad conduct of the respondent. In fact, he has admitted that even after filing this case, she requested him not to prosecute the case and to live with her".
16. The entire evidence of the husband and the wife goes to show that they led a happy marital life while they were residing at Kodandarampuram and out of their wedlock wife gave birth to a daughter by name Rashmi aged about 13 and a son by name Srirani aged about 8 years. It is after some time they shifted their residence to Malleswaram. From the said fact it is clear that they were living amicably. It is also in their evidence that in the year 1984 they took a house on mortgage and were residing together. In the neighbouring tenement Smt. Indira and her husband were residing wherein the husband of Smt. Indira was ailing from heart problem. On the guise of it, the appellant came in contact with Indira and very often visited her house. It is seen from the evidence of the husband and wife even after the death of Indira's husband, the appellant-Manjunath continued to visit the house of Indira though it was objected by his wife Veena. On going through the entire deposition of the appellant it shows that he was more interested in the affairs of the house of Indira rather than his own family. When such being the case, it is the natural conduct of a wife, wherein the wife does not tolerate her husband having an affair with another lady. Therefore, the wife has objected to the appellant's interfering in the affairs of Indira. It is in this connection, even the matters have gone upto the Police Station and the police have also advised the parties. It is further seen from the evidence and it can be analysed that the appellant was not interested about the welfare of his own children which is a paramount consideration and even without considering the welfare of his own family the appellant has resorted in filing the petition for dissolution of the marriage on the ground of cruelty. From the facts of the case, it clearly goes to show that it is on account of the conduct of the appellant it has lead the wife in a disturbed mind. Under such circumstances, wife quarrelling with the husband abusing him cannot be construed that the wife subjected the appellant to any sort of mental cruelty as defined under Section 13(1) of the Hindu Marriage Act.
17. When a duty is cast on the appellant to look after the welfare of the children and his wife which is paramount consideration, he has not acted as dutiful husband which he expects the same from the wife. Further the material evidence placed on record by the appellant is not with sound reasonings to come to the conclusion that he was subjected to mental cruelty or mental torture that renders him so harmful for his life.
18. For the foregoing reasons, we do not find any reasons to interfere with the finding of the Family Court.
19. Accordingly, the appeal is dismissed with costs of Rs. 2,000/-.