Karnataka High Court
Shrinivasa Nayak vs Chandrika Rao H on 16 December, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
M.F.A. No.6905 OF 2015 (FC)
BETWEEN:
SHRINIVASA NAYAK
AGED ABOUT 56 YEARS
SON OF LATE RAMAKRISHNA NAYAK
ADVOCATE
RESIDING AT KELA PARKALA
HERGA VILLAGE, POST PARKALA - 576107
UDUPI TALUK & DISTRICT.
... APPELLANT
(BY MR. S.K. ACHARYA, ADV.,)
AND:
1. CHANDRIKA RAO H
AGED ABOUT 53 YEARS
DAUGHTER OF LATE H. SANJEEVA RAO
WIFE OF SRINIVASA NAYAK
POSTAL ASSISTANT, HEAD POST OFFICE
UDUPI
RESIDING AT SHREYAS KELA PARKALA
HERGA VILLAGE, POST PARKALA - 576107
UDUPI TALUK & DISTRICT.
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2. GANGADHAR NAIK
AGED ABOUT 59 YEARS
SON OF SOMANATHA NAIK
POST MASTER, HEAD OFFICE
PUTTUR DK DISTRICT.
... RESPONDENTS
(BY MR. G. KRISHNA MURTHY, SR. COUNSEL FOR
MRS. A. NANCY PRINCE, FOR ADV., FOR R2
R2 SERVED)
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THIS MFA FILED U/S 28(1) OF HINDU MARRIAGE ACT
AGAINST THE JUDGMENT AND DECREE DATED 9.6.2015
PASSED IN M.C.NO.25/2009 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, UDUPI, DISMISSING THE PETITION
FILED U/SEC 13(1)(1) AND 1-(a) R/W SECTIONS 20 & 21 OF THE
HINDU MARRIAGE ACT.
THIS M.F.A. COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal under Section 28(1) of the Hindu Marriage Act has been filed against judgment and decree dated 09.06.2015 passed by the Family court, by which petition filed by the appellant seeking dissolution of marriage on the ground of cruelty and adultery has been dismissed.
2. Facts giving rise to filing of this appeal briefly stated are that the marriage between the appellant and the respondent No.1 (hereinafter referred to as 'the wife' for short) was solemnized on 06.09.1990 in Udupi. Out of the wedlock, on 26.03.1991 a son viz., Shreyas was born.
3. The appellant filed a petition on 04.03.2009 seeking dissolution of marriage under Section 13(ia) (ib) of the Hindu Marriage Act, 1955. It was inter alia pleaded that after the birth of the son, respondent 4 No.1 started making the demand to leave the matrimonial home to have a separate residence. The appellant did not agree to such a demand. Thereupon wife quarrelling with the appellant and left the matrimonial home in August 1998. The appellant constructed a new residential house on 10 cents of land bearing Sy.No.171/2 situate Herga Village, Udupi Taluk. The appellant as well as the wife started residing in the house. Thereafter, by a document Ex.P1 dated 15.12.2007, the appellants settled the residential house in favour of the wife.
4. It is the case of the appellant that from January 2008, the behavior of the wife became abnormal and was indicative of psychic problem. The appellant therefore, took the wife to a psychiatrist who treated her. It was also pleaded that wife fraudulently transferred a sum of Rs.40 Lakhs in her name, which was jointly invested by the appellant and the wife. 5 Thereafter, the wife forcefully ousted the appellant sometime in the last week of November 2008 from the house on the ground that he has no right under the settlement deed.
5. It was also pleaded that wife had an illicit relationship with respondent No.2 and other people. Despite, advise given by elders and relatives in family of the appellant to wife, she did not mend her ways. Thereupon the appellant filed a petition seeking dissolution of marriage on the grounds of adultery and cruelty.
6. The wife filed the counter statement in which averments made in the petition were denied. It was pleaded that appellant is leading an adulterous life with another junior lawyer. It is further pleaded that the appellant himself is having an extra marital affair with a lady lawyer. It was also pointed out that a 6 registered deed of settlement dated 15.12.2007 was executed by the appellant in favour of the wife out of love and affection. It was averred that appellant left the matrimonial home on 27.11.2008 and respondent No.1 is an elderly person and is aged about 57 years. The petition contains a false statement about adultery invented by the appellant.
7. The appellant got himself examined as PW1 and exhibited documents viz., Ex.P1 to Ex.P10. The wife examined herself as well as her brother and son as RW2 and RW3 and got exhibited a document viz., Ex.R1. The Family court vide judgment dated 09.06.2015 inter alia held that appellant has failed to prove that wife treated him with cruelty and that the wife was living in adultery. Accordingly, the petition filed by the appellant was dismissed.
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8. Learned Senior counsel for the appellant submitted that wife has made unsubstantiated allegations in the pleading and in her evidence, which itself amount to cruelty. It is also urged that since, 2008 there is no cohabitation between the parties and therefore, the non cohabitation for a long period of 14 years itself amounts to cruelty. It is further submitted that the family court has failed to appreciate the evidence on record in its correct perspective, which has resulted in erroneous findings and the consequent decree. In support of aforesaid submission, reliance has been placed on decisions of Supreme Court in 'A.JAYACHANDRA VS. ANIL KAUR', (2005) 2 SCC 22 and 'K.SRINIVAS RAO VS. D.A.DEEPA', (2013) 5 SCC 226 as well as a judgment passed by a division bench of this court in MFA No.9688/2018 DATED 22.06.2022.
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9. On the other hand, learned Senior counsel for the wife submitted that document Ex.P1 dated 15.12.2007 has been executed out of love and affection and the residential house has been settled in favour of the wife. It is further submitted that the averment that behaviour of the wife was abnormal and is indicative of psychic problem is baseless and there is no evidence to prove the same. It is also submitted that the petition filed by the appellant is not maintainable, as the appellant himself has stated that prior to the marriage, wife was married to one Nagaraj Acharya and admittedly, no divorce took place. It is also pointed out that aforesaid Mr.Nagaraj Acharya has not been impleaded in the petition. It is also urged that appellant has failed to prove the allegation of adultery and reckless allegations have been made in this regard. It is argued that there is no evidence on record with regard to alleged ouster of the 9 appellant from the residential house. It is contended that appellant has failed to adduce any evidence in respect of his claim for dissolution of marriage on the ground of cruelty. In support of aforesaid submissions, reliance has been placed on division bench decision of this court in 'S.SIDDAGANGAPPA VS. R.SHAILAJA', AIR 2002 KAR 244 and division bench decision of Allahabad High Court in 'RAM BABU BABELEY VS. SMT.SANDHY', AIR 2006 ALLAHABAD 12.
10. We have considered the submissions made on both sides and have perused the record. It is trite law that standard of proof in a case of matrimonial dispute pertaining to cruelty cannot be said to be applicable as is applicable in case of trial in the Code of Criminal Procedure. However, the parties to the dispute is required to describe the measure and standard of cruelty and to lead cogent evidence to 10 succeed in the plea of dissolution of marriage on the ground of cruelty. [See: 'MAYADEVI vs. JAGDISH PRASAD, AIR 2007 SC 1426].
11. In celebrated case of 'DASTANE VS.
DASTANE', AIR 1975 SC 1534, the Supreme Court while dealing with cruelty as a ground for divorce has held that in a case for divorce on the ground of cruelty, the conduct charged as cruelty is to be of such a character so as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It was further held that it was not necessary that cruelty must be of such nature as to cause danger to life limb or health or as to give rise to a reasonable apprehension of such a danger of harm or injury to health or reputation or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or 11 not. It was also held that the question of cruelty as ground for divorce has to be determined on the basis of facts and circumstances of each case. In 'V.BHAGAT VS. MRS. D.BHAGAT', AIR 1994 SC 710, it was held by Hon'ble Supreme Court that on mental cruelty in Section 13(1)(i-a) 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.
12. It is equally well settled legal proposition that there is a difference between the ordinary wear and tear of marriage life and cruelty and that the 12 dispute between the parties are not attributable to cruelty. [SEE: 'SAVITHRI PANDEY VS. PREM CHANDRA PANDEY', AIR 2002 SC 591].
13. On the touchstone of aforesaid well settled legal principles we may advert to the facts of the case in hand insofar as it pertains to ground of cruelty is concerned. Admittedly, the marriage between the parties was solemnized on 06.09.1990 and a son was born to the appellant and the wife on 26.03.1991. Therefore, the version of the appellant that the wife denied sexual intercourse to the appellant has rightly not been believed by the family court. Similarly, the version of the appellant that the wife was not doing any household work and the appellant was required to do the household work is not worthy of acceptance as they had engaged a house maid. The appellant is an Advocate himself had drafted a settlement dated 15.12.2007, which indicates that the same was 13 drafted out of love and affection. Therefore, it can be inferred that the relationship between the appellant and wife was cordial till December 2007.
14. The appellant has stated that he was turned out of his matrimonial home in November 2008. The wife on the other hand has stated that the appellant left the matrimonial home on 27.11.2008 by taking away all his belongings and thereafter, she went to the place of her in-laws where the appellant was staying and asked him to join the matrimonial home. However, the appellant refused to do so. The wife has examined her brother viz., Mr.Nagaraj Rao as RW2 who has also stated in his examination in chief that he learnt from his sister that the appellant has left the matrimonial home on 26.11.2008. He has further stated in his evidence that he along with his sister and sister's son had gone to the house of the mother of the appellant had requested him to join the 14 matrimonial home. However, the appellant refused to do so. Therefore, in view of the aforesaid evidence, it cannot be said that the appellant has proved that he was ousted from the house.
15. The appellant has also stated that the wife was mentally disturbed and her behavior was abnormal and was taken to Doctor P.V.Bhandari, Psychiatrist for treatment. However, even the aforesaid fact has also not been proved as neither any medical prescription nor Dr.P.V.Bhandari has been examined. The family court has recorded a finding that wife appears to be absolutely normal and cannot be said to be suffering from any mental incapacity. Thus, from the evidence on record, it cannot be inferred that wife is guilty of a conduct, which is of such a character so as to cause in the mind of the appellant a reasonable apprehension that it will be harmful or injurious for the appellant to live with his 15 wife. The appellant has also failed to establish the allegation of cruelty meted out to him by the wife by not adducing substantial legal evidence. Therefore, we hold that the appellant has failed to prove the ground of cruelty seeking dissolution of marriage.
16. Now we may advert to the second ground urged by the appellant seeking dissolution of marriage viz., adultery. It is trite law that burden of proof is on the person who alleges adultery as there is presumption of innocence. The mere fact that husband considers the conduct of the wife open to suspicion is not sufficient to prove adultery. The pleading with regard to adultery should be specific and clear so that the opponent can defend the case. The appellant has not led any evidence that the wife was previously married, became pregnant and got aborted before marriage with the appellant. In any case, if the aforesaid version of the appellant is to be 16 believed, the marriage between the appellant and the wife is a nullity and the appellant cannot maintain the petition for divorce.
17. The allegation of adultery has been made by the appellant on the basis of phone calls made by his wife to respondent No.2. The wife in her evidence has admitted that she made phone calls to respondent No.2 during office hours, as respondent No.2 was holding a higher post and was also looking after the work of store keeping with which the wife was also involved. It is also pertinent to note that wife was staying in Udupi, whereas, the respondent No.2 was posted at Arsikere and Puttur. It is also noteworthy that respondent No.2 has filed a written statement, in which he has denied the averments made by the appellant and has stated that he is staying with his family at Arsikere and Puttur. Therefore, the explanation submitted by the wife appears to be more 17 plausible and a mere allegation that wife had spoken to respondent No.2 on phone is not enough to draw an inference of adultery.
18. In the instant case, the appellant as well as the wife have leveled allegations against each other. However, the burden of proving the averments made by the appellant in the petition seeking dissolution of marriage was on him, which he has failed to discharge. Merely on the ground that there has been no cohabitation between the parties for a long time, cannot be a ground to hold that the wife is guilty of cruelty, as her specific case is that the appellant had left the matrimonial home. The appellant cannot be allowed to take advantage of his own wrong and seek dissolution of marriage on the ground that there has been no cohabitation between the parties. 18
19. The family court on the basis of meticulous appreciation of evidence on record has recorded the finding that the appellant has failed to prove the grounds urged by him seeking dissolution of marriage. We do not find any ground to differ with the conclusion arrived at by the family court.
In the result, the appeal fails and is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE SS