A Anil Kumar S/O C Anantharam vs Vanishri A on 29 May, 2009

[Cites 6, Cited by 2]

Karnataka High Court

A Anil Kumar S/O C Anantharam vs Vanishri A on 29 May, 2009

Equivalent citations: AIR 2009 KARNATAKA 201, 2009 (5) AIR KANT HCR 239, 2009 A I H C 3212, (2010) 1 MARRILJ 277, (2010) 2 CIVLJ 67, (2010) 2 KANT LJ 64, (2010) 2 CIVILCOURTC 87, (2009) ILR (KANT) 3028, (2009) 4 KCCR 2398

Bench: K.L.Manjunath, B.V.Nagarathna

?O

IN mu; HIGH c.:ous~.:*r om<;A1<NA*;'A1<.A AT 1:sA1mA;_,o:<;:;
mama THIS *n~1:::m;;;.1)AY my MAY, 2093 _
PRESENT M.'  3A
'me; HON'BLii2 MR. aus;'1§;;;; >1_<..1,.:s1:;;:;':'<a;§'L:_:4 zi§*i:{:-;:« _  1'
AN:::7.__  1'  4 
mu; H{)N"'Biﬁ~:§ MRS. -JU-§:§.1'l(3;ElA1;;§;'»'.!§A{5f}51$;§§'1v'é~iN;3 
M.F.A.  
Nbibimmbimbﬁg   _ _   

A ANIL l<_UMAl{ es/0 (;H5;'%AN':'u:1,1<;&M  ., 
AGED ABOU'I'.'3;"3_YE!1RS"'  _  _ - 
R/A.NO.55,; "NA'1SiiSANDRA" Rcm_D*--." = 
BANGAL()«r'$"E':-_O3$._ ~ A    .

 APPELLLANI'
(1:53; 3-1:': M 
Aim ; % '

W;NIf:§H§§I A A' ..... 

 .VW'jU;"AfN1LA~3iUMAR
'  AQEDV AB'£2}U'1?_.32 YEARS

R;  CRG.'E5S,

'- A7*:*H BL€Z}€fI{;= JAYANAGAR,

Bani; ~:.Qj:2E»-32,

:.">_;4;i:§ig;§;_:afLr

 " MEDICOM SOLUTIONS PV'l'.L-'I'D.,
 -7f;3i;'1::,Es:LE;<:':'R::3Ni<: CITY,
 HQSUR Rcjaa,
F BANGALORE-29

 R§:';.'.$P(}§~£DEN'l'
(By Szi ; 1»; SUMAN, Anv.)

THIS MFA §*'iLi§2§.} UIS 41-} UP' CFC A{IrAiNSl' Tirikl
JUDGMENT DT'. 8.6.05 PASSED IN MC.NC>.181]O3 ON THE



FILE} L)?' 'i'HE£ l ADDL. PRL. JUDGE, l4'AMlLY1 C()UH'l',
BANGALORE, DISMISSING THE PETITEON 
A?F'ELLANT HEREIN UIS 13(1){ia_} AND  'i'3 i'.ND.U

MARRIAGE ACT PRAYING TO GRANT 

DIVGRCE.

'Ibis appcai having been i1ca1Mfi'a;3,Ci ir¢se;I*:;éC{«.ifo§f't§fdt;i'3, bi' A'

this day, Nagaraihna J, pronounc-fad $112, foﬂowingf: " 

1.; u D;(W33_M ER 

This appeal is. filed  sgaﬂengng
the juciwent and'  :L,§{}{}5 passed in
M.c.No.:a1/23:03    Judge, Family
Court    Eﬁetition filed by the
 A' diasdiution of mariiage with

the  ' "(JiiSmi$seé.

2.  ";§.~i<;>1' the  (if cenvenience, the parties shaii be

   t§§"i1j terms of their status befere the trial court.

 'i'i1é §;e:iriﬁ0ner was marrie-:1 to tha respondent as

per rites and Customs 01}. 24.10.1993 at Hiaﬁjuilianthanagar, Bangalore. Aftezr their marztiage, K _;;%a.rtit:s started residing at iéajajilaagar t:3a1"1ga.£9:'e- 10. ACCOI'C§iI1g is tha peﬁﬁaner, initiaily their relationship was cordiai, but aftcr a ft'-:w mcrnths, the petitioner Ibund that the reswndent was very reserved and armgant and ﬁx' of suspicieus Character. That she used to quaifiiﬂ with the petitioner and his family members ﬁingts tolerated by them hoping that thillgﬁ ﬂorxnal in future. That out:;.{1»-E T resporasdent gave birth to a.vf¢n1aie ﬁ: hi1d 0;'; i99'S$.'ia{fi0%» is named as De:eptha.A. péﬁﬁoneﬁ Went to Muscat and the re$po11dent and ti1§:_ in September 1995. " upto £3.12}. and at Muscat and secured a job in /~ p.111. Actzording t9 the iéspondent started Working, £161' a7t§;i.'ti1d.e ﬁfrerst. She did not respect the did not take care: of the child properly ~_ occzasi-{>113 the Iespondent condemned the ;§étiti€§;.1e:"Vi11 front of his ﬁiends and Wﬁii-WiSh61'S. The " :'~3§p{§i1de11t 1"1€'S?(*§I' {med ta serve food to the petitioner he requﬁsted hm' to do so and that she had " devctleped Sheri: temper aﬁd ego and used 11(5) behave like $2;

a dictater and that whatever she said was agreed and a'\ the petiiiienerr was wrong. She get 3 transfer of her job /E9, ,.

\""*"

from Musmt to Bangalore in the sister (:o1"1c<.=:r;:1""oI" LLC at Muscat stating that she does not Want :.to.'"tf,1e company of the petitioner. 'I'ha_t.. {ﬂail}? reconciliation roeetings heid tfotsvooxg i:1j1e:f§.1e V we1i--WisherS to re-unite Vtfsom, oi:

account of the armgant. of in August, 2002 the Bangalore along with the petitioner was mnsuaioeﬂ ' Section 13(1)(ia) and dirooolution of the marriage

4. A VL¢"'-§4.1'i.€I',V from the Fa1nﬂy Court, the " and filed her statement of o ;"objor;tior;$5""to the pemion acimitting her marriage with * me on 24.10.1993 and contended that the pa1"eii'z:s.Vof the petitioner demanded for jewellery and * oiismr items apart ﬁvom wrist watch and soil: at the time of the marriage and démied the ailegations made in the pxetition. She has also stated that the Case of the petitioner is i:{ZtC£}I1gI'"i}0'L1S inasmuch as he has ailegod cmieity against tho rezsponoent and in the other brreath 5 f a stated that the respondent has. refused to jeir: the petitioner. if the ailegation of the cruelty there was me queetien of caning upon tt_1e_ to join the petitioner. Aeeording ieiae leave Muscat and return to ijangaiere can 'i;>1""the= ~' cruel conduct and adultefoee cf .':}getjt.iener.

According to the '1«€~;3$5 daughter was born andﬁhe ﬁuseat in -June, 1995 1995 and mi dune 1316 parties was quite:: _ >:*ae§§;,;,r;1;dent was working in Oman Liomptitezg - in the Software i}e1§§ai'tinent."' AA..V_B:{1t the trouble siarted in April 2002, w_h:en._ "'£he4'p;etitio11e;* recruited an Assistant by name ~.M';§:§;aVV was Werking as the Assistant (3eI'1era.£ Menager Capital Insurance §~3e1*vices at that time and " V' V' , "Iviaya ﬁaﬁya was already to one Yegesh Maﬂya was werking in Ciuif i-iotei, Muscat, but they had I10 issues. According tea the respondent, after Maya Maﬂya joined as Assistant to the petitioner in his eﬁfiee, the petitiener stopped his seeial activities and did not 2% f.

mingle with any body including the respondent herein. He wound frequently make calls at odd houzee night and she used to caji the and when the respondent enq11_i_1*e(i__ab0Lif e the petitioner, he used to shouf»et7f1ef purely busfmess talks else, 1 '?.£fhe"mtiﬁo11e:*~ used to go out a Ma3fj;3;._§j'f;d"'iVheﬁ s§1e ciuesﬁoned about the said gaze exp1a1"§at.ie11 that she we,e--::if1i:S ' "Many times, the her that they had see1'£.__the -- __ Maya in various restaurants. when the petitiofier to U.S., he was in touch with As sV'{1e_%e1:,V the reiatienship between the petitioner . jaea -rieepondent was siewiy being cut oil' by the he stopped having lunch and dinner at £:xe%:;*1..e';o,V "Evie weuid come vezy iate ﬁ*om office anti " » AA eengxetimes he would ge back to work even in the nights, which time Maya aiso was present. 'i'het. the ' tether of the respondent also noticed the strange befiaviour of the petitioner when he visited Muscat and he tried to advise the petitiener, but nothing worked. '?

Later, the respondent, her daughter respondemfs father returned to Bangaiore f<_);1*""a: _ and despite the petitioner wanted the to ~ V. ta iiangalore, the respondent 1?_¢-er, }~1e:1E;Ee_, went alone to Bembay stat1if1g_Vtt1ai:'-he ¥1a<i :é;Q1neVVeI?§§'ieia§.:V: * work and Maya had gene same time and the respo:1Vcie;.e't.i21:te;%:.» the petitioner and Maya i1ac§_:11;_et returned to Muscat 'betitioner stopped taﬂ<:ing----m. away from her and as a relationship ceased. That in July took leave and retmmeci to V. A. i;5a;1€ga:£_ei1'-72V' « petiﬁoﬁer neither made any ' 1:e'ierphQIie .3101" contacted the responcient. when the feependeiiit éiﬁbnned her parents about the petitioner, they Were' shocked to iearn abeut the behavieur of the A '*?_ ' géfxgioner and vmen they spoke to him, he made up his egwn innecexn story. Later, when the petitioner reaijsed that his in~le.Ws came to mew about his Inisdeecie, he caiied the xeeponcient to agwee for divorce, which came as a rude shock to the respondent. $he ret.urne<:i to Muscat as her leave was over. On her returzl to.j'Me,usCat, the petitioner told her that he was ring gven to him by Maya. Later on, the know that Maya was preglaet and she had resigned job. _ petitioner got. Maya home t_eidV'ti1eV':1'esp.§e;{ﬁiVent that he was 'iv'v£"A1eVAvVres;)ondent slﬂfered mental ti{:i'V.. téiie'-"V"eonduct of the petitioner' and returned to of the petitioner did ;{1ot:';geeeA1A)i;"%'»t31e._ the reepondent estayed with her eereizte aiong with her daughter Léfecﬁaeha wheﬁéas etudying in 4'-'*1 stanciard in Bangalore .' _V»Vtf;e-.éye¥:jtieI1er had ehewn no concern for her. 'flue 2 i'eepex§'iie:1t; eiater iearxxt tlmt Maya had retutmeci to for delivery and that the petitioner visited AA 'Tlvlanegjalore thrice.

5}. According to the respendent, her monies are in joint account and her j€'i&?(3iI€I"'}" and ether heueeheld axﬁeies are in the euetedy ef the peﬁtioner and the getitiener has not taken any step te maintain the minor 99 daughter. The petition has been ﬁled sniy t§)'s'.1'_f:1's;r_Vass and vex the respondent and therefore, sought dismissal of the petition,

6. In support of his case, i:i*1s1'p.c=:titi:.j1_~;si'~ V' himseif as PW 1 and got the;

respondent exs1nins§1~~..nsrss'ifA 1 gnt marked .*:}xs.R1 and :<1(a) to (1).

7, On record', the trial seurt .t§j;e i;{§.i;i07féif:;1g'ii)r consideration:

' 4' v§§;s"'pstiﬁoner--husband prsves A That htfiét :"s£)nndent--wﬁIs while isading 1sa::iea%%':us: with him she has treated cruelty and thus he is _ sizﬁtisd for dissoiutibn of maxriage and .. {iésres of divorce as corxtsmplated under Section 13(1)(ia) of Hindu Marriage Act?

ii} Whether there is more than two yams dessrljtm between husband and wizfe inzmsdisteiy preceding the pressntatis11 sf this petition and thus as csntexnplatsd under Section 13(13(ib) st' ﬁg, «I9- Hindu Marriage Act the pe1:itiener_.._i_s entitled for a decree 91' divorce)?

iii} To what; order?

On consicierixzg the 1 and '12 are answsred in fctxe imgzative 't§1e'1':l«58:I3fii£§,:

Court dismissed the _1:':eii1g_ by the said order 0i'disn1i$ $21, 1.:he§péti};i§§:1«afr i'1aSHp IV'€f("}IT6d this appeal. '

8. directed the parties to be ~'1f:lf::§.'<::. pa_11:tW1;<) explore the possibility sf $etﬂém%:nt. 4. }.'2.2(){}8 in arder 1:9 explore pcsﬁibilifty bf séigilement, the matter was adgourned i',.;§UU9 and suhsequentiy, on 22.1.2009, 31.1.2909. sguring this period, the did not appear, but the respoxideni: appeareti V» * :.t1"1a comzsei far {ha appeliaﬂt inibrmed that the ﬁairties sheuid speak to each ether and resonciie between thﬁmselves. Since the appﬁliant was not if} a positien to be present before the Court on acsceunt of his assigxment at bembay, the respondent however, $9 -13- categericaily stated before us that despite Wlia}: had transpired in ﬁrs: past, she was appeliant and Wt: were also gvan an i:::;;jr:3:sa=iio;"1' by me counsel for the appeilant th;§t: $30 'L interested in c£3nt1I1ui;}.Tg_ﬁ' »§?€i§ati01%W:1i\%§.

respoﬁdent. But no *;§%::§a;,;':Izacie the appellant beit:'r é_"fE--t";e he to appear before the cgurt. 1 13.. the comlsei for the made their V' V' H

9. "';e§g§11ed counsel for the appeiiami, the i«'22ii::3.4:§i};.V ta consider the evizlamce of {£161 V_a5;gp§§1iaa;1t z§?'i'£;?2...¥?f?£.vﬂfd to. erueity of the I'¢f3Sp{)1"1(§(i3I}'€. and ' that since 2'~'mgu$t, 20013, the respondent .' . :cii'eés,t.!:-;14t<§9:f§;_ appellant. Tha appeﬂant had requested the i"<:sp0nden's; to join him on many eccasions anti that " _ V Lfefcoixciiiation meetings were 3159 held, but the 1'1=:sp0I1dent did 1101: need to the advice 01' the weliw WiShC1'S on account af am"oga_n<:>e. 01": account of the fact that. 5:136 msponderit w*aS woriéng and eaxzuing an /..

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income, her attitude: was very arregarit and she made fzaise aﬂegations against the appeilant. That.~ t%'}€ trial Court hag fzaileci to appreciate the tjcgzf" ma petitioner--appei1ant and has eneneousﬁ' petition, which requi1*t%:s to revgfrseci

10. Per cantra, it is of the respondent that 3:16 i§.t-~:a*éni'mi"g-.tAto jbm, tiie appellant despite: his past the aliegaﬁons made: by xhér am faise that there was" tﬁﬂhﬂlﬁ of the respondent ﬂlid neit%1é1*..aL <:*aSe. :_* was made Gut and under 1316: t:ir£:u1j:1$t&*ncc_s, "'tne 1+'a.:s:{1i1j@ (Lauri; was jtlstified in V'it€.ii:i.S;¥I:i$Si;1g ttiiéﬁjétitioil ifiied by tha petiti0:1@r--appe§1a11t " the said judgtnsnt G065 not can for any A '-.4i_nt(::tfe:*:é~1ice in this appeal. x 3,}. H Having regard to the abova submission, the uni}? whit that arises :39? our CO1"}SiCi€}C'aT;i€)1"1 is as 113 Wi:1ether the guégmant and dectreze passed by the FE"-311113.? Court caiis f(:>:r any interference in this apptital. \"\°w:.;;.

\~..

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32. The petitioner has examined hi!11S€1f as PW 1. In his affidavit by way of examination--in--chieI', nu; has reiterated the C'(}1"1t€1"1tS of the petiticm by us in detajj. A H

13. The main grievance of the .

respondent is with i1c=:-1"A'a!::t1tL_:<:i'é,V .i::~€i1":g L' short tampered perspn, .330 qrxéirrcji ﬁver trivial things. At Muscat six? fgm; she did not take proper care child and was haviizg :;1-- 5 set. She suspected his ci1a1*acter4__aI1§iV"th§é1}eibr(_3 he had suffered cruelty' at the §1a.2§}'ciVsr*@i' thé"reé$ponrient'. 11:). his further examinat;'ion~in» » :¢i:I_iV<f:"£"._i"1s: stated at his instance the I'€SpO1"l(3i€I1t " eoursa.

1%.. if; .i1i$ c:r<:>$sm<:xa1nir1atio11 he has stated that from A t.!.ji:;e of marriage: tiii 1996 the marital relationship " gcmd but from 1996 onwards their relationship has * -1:10: been gecxi. He has also admitted that thaugh the respondent is wiliirig 1:0 1'€Sid€ with him, he is not read}«'

-14..

to live: w1t11 the I'(3'Sp0I}d6I1t. He has also admitt1é}:§.Tﬁ1at one Maya Mayya was appointed as his Assj.$t;-1:_j1t'__'L"ij' oﬁice and Um: certain writings in the as 3223,2131 are hers. He has howeVer,'_A§i¢3}i¢d':

calling the said Maya, i3or_a31_y " L. office vmrk and that even nigﬁts he was in USA on work, he -£0 ~-.I__';tT=,"1*'.:1%'<_>r the purpose of his oﬁiciai work. rfenied the letter dated that there was no

15. Malxga is I1'18.I"I'i6d and has a time empioyee ofi1is oiifictz, but; 3313 is.' woirking on part time basis and that th_ é1*e §:§I1":0"«3feiat::onsi1ip between them. He has alas z'e---

itézfafe'd°:§;a£':;"i§ie respondent has been Cruei to him and ht-Shoe ~:fé1'2ei' eught to be ganted to him.

" A1€>." As apposed '£0 this, the resyondent 13:; her aﬁidavit £3}? way of exami:1ation~in--chieI° izaﬁ 21'-:~i1:erat&d the CO?{1t€3T1'€.S 0:11:31' state11:1en.t: of oiyjections and has stated zé -15- that tin April 2002 there was no queetien of her euspectmg the ﬁdelity and character of the petitio11er at Bangalore and Muscat and the mm ble sta:1:e:14.¢3Vi;1J§§:Mj"o1:1 Aprii 2002 when the petitioner was woriijlggles' Genera} Manager recruited 0I:eAA9VN}.aya_."e;S" 'Vﬂvssistaént . and thereafter he stepped ueiiiid net mingle with e:1*1}.,rl;><3t1j;vé"'-~..§:u1<:i the respondent; also. when queefiioned aeeutehiefibehavieur by the respondent, iiiie that she was his good friend a::1'd.__tr1a{i"eiiei:i w 1r2e;3.V_1':e in U.S.A he was in <Vi:pnstatz{"'V.t::x_L 1c£f1"-iééitll' her. As a resuﬁ of his reiatio1ie§:iepVVsa?it._Ef.£\}ie}§§g;; he would come iate t0 the heuse fr€.{m efﬁee Ve.21rievheA,'wo111d get back to "ét?01'K even in the ' ; I1igi1t;s'.«, =.,: Aeeordi11g to her she is not arrogani: or * Vent has aiways <:<>~ca;::erated with the p€'titie1;1e:;. The peutiemer and she had 3:31:11; account " ~ éeiiiz eke bank at Muscat and that her jewelry and other ;Va.iue.b1ee are at Mueee.t. Aeeort:ii11g to her the petition had been ﬂied oxliy ti} vex her and emrce her to come to "terms with the ixnproper and unjust. behaviour and eenduct of the p€'(;iti(}I1€1'; that she has aiways been ,9, , ~16» wiiimg to resiﬁe with him despite the pet1tioV:;V1Ve1_fi%);ei1'2g guilty of causing mental crueity ta her, he cannot be granted any relief aspe has of his own wmrzg.

17 . in her crossmexanﬁnation Shehazs $tzi.te<i that smce% the time of the mairriage tgiie V.i9ei;ei::i<>z1si1i;V3 between the pa1Tie§i3_'_"§vas.'_"A of the child in January for Muscat in May 199$ «in September 1995 aI1<:[ "--$Al"1e4" fjxi' 1999 with the help of her i'),§ic£:."i;*e4:np£eted J:5.i:2., in Electronics in eeiizpieted N113' Course with the heip of her ' When she started marking at Muscat she was .' 35,UUO/- saiary and both the parties were remiftixxg their salaries in their joixit aeeeunt. it was on ' , aegﬁount of Maya who joined the petitioners oﬁice in April 2002, miswunderstanding arose between the parﬁes and that Maya was removed from service in August 2002. In October 2902 the respexzdent left. Muscat ané arrived at Baxigaiore. Aeearding to 1<w.1 /fé -13- the petitioner: was leading an adultereus life with Maya and once he had brought her heme also were moving together and visited I'€S£ail_I%§;.IitS«;_'V:' __";'--'e___ "a question posed by the court Vais» to x>=ii"iet£iexf""ai":&i:V Was; ready to 30111 the petitiener 'nor :ji_'0r divorce, she had states; iijepjte or L' by the peegaaner, sljxe waeV__1ea%1y'w.Vte jail": She has denied that on had. decided that she C§}u.i§ ._::10t::' life with the 1:>etiti£)I1f3;y .£i;ad'j.Z_;e't2u§*§§e§iV_: Muscat to India. Aeeerdi:1gA met the Manager of her eoxnpalijﬁé " J transferred from Muscat to kfsajngaiare she and the daughter have been ' 'af"her parents' heuee at Jﬁangalore and she is eaming a eum of Hs.20_.0U()/~--p.m. No panehayat took place after her retu:r£1 from Maecat and " ainee June 2302 she has been residing with her parents. She has denied that she has treated her haeband with erueitjz and aiae there is no desertion of two years befere preeenting the petition. 11):-c.R1 is a diary belonging to the peﬁtiorzer '£&--'i1;iClT1 has been 4%» -13- produced by the respondent in which on 2.6.2002 and 15.6.2002 marked as i:}x.R1(:) .z3z;{(fg.) '-:~;as been admitted to be Maya's writing by the But he has denied the writingvvi' ;§'_<;}.m x June 2002. to be that of May§if%V *?i_'£ié confronted with the as." of"

5.7.2002, has that"'"ﬁf: Ca1m<$t""ideﬁf1ﬁfy the handwriting 0f mm, 1'1'¥*.--*.~' 'ai1giw"1"1:2t§.;A£ig;is3: 200:2.

13. Beiﬁﬁeji-"";§j:¥1f$reci2:£;:ig-. -said evidence, it is K law with regard to cruelty being éiugi4ouﬁd. fckfd ' Ir $'ia(V:k's Law Dictionary the term 'mentai Cruelty' .¢3';~.?:=*.__.'_-1 divorce has been deﬁmzd as a course of a spouse that creates such anguish. that it " the iift-3, physical hwlth or manta}. heaith of ether spotme.

20. The Hon'b§e Supreme Court in the case of N.GJ.)asta:'1e (3)17 Vs. S.1)as1:a:r1e reported in (1975) 2 SS8 326 has observed that enquiry by the court in a 2 ,%,¢,~ -19- case where crueity is alieged must be as to whether the conduct charged as cruelty is of such 3. cha.*'a{:tei'- to cause in the mind of the pet:itimf1e1i,__ refétm11é1bieV apprehension that it wiii be ' to ﬁve with the respondent.

21. in the case of V.ldhagz;it».eV$.

{1994)1 SOC 337,Vhase"bBe:1; Gb_eer§eG;"Ati3 a.t mental cruelty in Section 13'{1-T)' be deﬁned as that condu§:t'1§ffsicI1:;'_ V_.t;1fj1fe'ott1er party such 1::1e1i'fal Wéuld make it not possibie for ti:1é1t~ *-3:: y"--to"' the ether. in other wards, crueV1i:y_VV§i1usf be of such a nature that the parties .A :ea§x1*'1(§1f..:Je§§.eonably be expected to live together. Whiie conclusien, regard must be had to the se£:igl"V$tét4;_1s, educational level of the parties, the society " V. x tiigey efiove in, the poesibiiity or athenvise of the parties '§e»\%er iiving together in case they are airead}! iiving apart ' and ali ether relevant facts and circumstances which it is; neither peseible nor desirabie be set out exhaustively. 5':

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in the case of Savithri Pandey Vs. Prem C§1andra Pandey reported in (2002) :2 SCALE '23 the Supreme Lieurt observed that cruelij/--- distinguished from the 01'diI1ar§:wvear f ' ; a life. It cannot be decided on of the petitioner and has adj'i1d.__ged._ 'besis ef' ' the eeurse of conduct, Wiiieh ivotlid «in» generai, be dangemus for a spouse 1:0 'ﬁve -tj1e"'ot.her. rep0i?§e<:i_ '?G(3 it has been observed that the appi¥.}_eCf1 eheﬁid £5 take the cunluiative effect of ihrsjfézcets and: '{?§i1'C11I].'}StaI1C€S emerging from the evidence . reeo;fc£ ez1ci then draw a fair inference whether the ..ii;§t:he divorce mtition has been subjected to me1J§:a?;§AVe:t9e.eity due ta) conduct of the other. jgjﬁ». :39" the case 0:' A.Jayacha:r:dra Vs. Arzeei Ram '% '~~_i*ep<)é:'tec1 in (2005; 2 :5.a::<:: 22 it has been observed that " physical cruelty there can be tangible and direct evidence, but in the case 0:' mentai c1*L1e££y there may IQ»;

not at the same: time be dire-,(:t evidence. In cageés §%z_11€re thare is no direct evidence, Courts are into the manta: process and mantel e:ﬁ<:<:t'::'»:.>I"'i.if1c<iAt:£<:%;3';t's*;» that are brought out in evidenge. ¢it,i";s 'iii tifiia ﬁgs}? 'iizat one has tr) Consider the:.___ ev:'u&.:ncg C1'g1;1t1VVfir;3.01%1iaj disputes.

25. in tha case Pazlkzaj Pandit reported 311 obsawed that as to manta} cruelty fer the --p§<ivi$ion, W11} not depend upon the nL§;fi::-:_;fiCaiVV C§$tﬁ';f1"i::'§i'4'ﬁnch incidents or 021%}; an the cmigunuuus £:{}ur§¢:_A of such conduct but reaﬂy ga by the ' V:Vir;t€:1";.s;.it;y arid stignatic impact crzf it when meted "*:+u-E ev%':1§i%j---{:> 3C1¢e aﬁd the deieteriaus Effﬁﬁil 0:' it on the mé:1téi., attitucilﬁ, necessary for maintainizlg a conducive ~ AA ;:%:'a,§'ri11"1on:2ai heme.

}.3§). in 'Q13 case $5' Samar Ghosh Vs. Jaya {3.§"}€}Si"} re3:p03:i:e<:i in (2{§£.3'"?) 4 SEC 5:31} the £~icm'bie Supreme Court: aftar reviviﬂg the iilngﬁsh, American, Canadian £2/ , and Australian asses héid that no u11§f0r:::1 standard can (ever be Laid down for guidance with regard to ~ crucify. But however, has enunciated ceztaiia being illustrative:-: but not exhaus*;iw3:_ of wijat '%f§;IiSt'1j::.,1te§""

mtrmai crueity w'b.ereix1 it ha}::; Lkfrexi married ﬁfe should be réizi::éir;?§:d éLe:,__a~ few"- isolated instances ever. a pe;*ied:"L£)i' y¢.:ars '{S.?3.§£...I1i2'§: amount to cruelty. ' 'he iiimcéiagziuét. persistent for a fairiy is11gt_h§,s=- ¥.,x}j1:1<~:14f€:~. ' 'ﬁifzlationship has deteri01'atE€& because of the acts and beha§§ou2'~ _» the wronged party fmcis it extrex}:1e£§j¢ 4_ di;t}'ii:11ii;A t<).""--.£i\%ai-, with the other party any £033gi;<éf,L'~n1ay to mental crueity. But Inert: trivial » :f13;";"itV;:;ti:io:1s4;4_"'~:;_ju1an'e£$, normal wear and tear of the . ':"c£a:ﬁ €édV".'iii'e§a%hiCh happfzns in dajwtoday ﬁfe wauki not b«e44'a<iéq_1;éte for gem': of diverse on the gonna cf manta:

~ :c'}:*u.ﬁ}ty.

. While 2'ei§er:*i1::g is an earlier decisicn in the cage of Navean &<;c:hii Vs, Neeiu kiehli reporized in (2006) <9: SCC 3&8 it 1135 been obseived that Public interest ciemazzds not oniy that the married Status Shouid as far as possible, as iong as possible and whenever p0sS;i"i3£€:, be Hmintaixzed, but where a marriage has beyalid the: hope of saivagez, public iI1t¢1f;§s;f. 11%:-ifs" V' 1"e<:;0g1iti<:>I1 91' that fact.

:38. Keeping in mirld the Tab0ve';3rii1cipie$;_;t_he 'eviri'e11Ce..L on record weuld have to Aéugﬁfdmg Ed the pﬁtitioner the V %{§g)£;'..piace 'be iV:wee:1 the: parties in October raiatiansirxip was c0rdiai:_'i1i'f§;i.1é "¥J§1€'a£'%e:1' a few months the respéxficirant. i:%::;%i11f:je"%'-[,_harrcigant and of suspicious <:ha1'actér._a:€2.d isséd tﬁquarrei an trivia} things wit}: the :1}c5znbéifs of A child was born in da11ua1jv ' the paxfies maved to Muscat Wham the .'m'sp0ndé§;t..i:*ompieted a course in cemputers and was aisé 3. job with tilt? assistance and t3I1C()l,1}"ag<':I}1€11'f1 of A ' _" petifianar. Accolriing is the petitioner after she sta1*te;r:l Warking the 3:esp9::;;.de11£.'$ attitude towaretis the petitioner became w<:>1'$€ and that ?:§i}1C6 August 20013 5116 has been I"€SidiITtg in Bangaiore. )1 ,5?' -34-

29. According t0 the p€£iti()11C1' the reiatignlship between the parti€:$ was gczod only til: 1996 that it deteriorated 011 acceunt of the aibre--;§é1i(1.;*e;§§§S<}i*£'s.

However, what is $i§1iﬁcaI1t is "tn-:,:a.té the Vpué£i1;i;«::$i:<é_r_ did V' newt take any steps with regéxrgi 3 i1.i.s-- reiat.io11si'1ip with the resp§)i3_<;i€:1i;t. ' 1"'£"zc: V to live together ITOIZ3; 'P";<:'<;;t:«3;'e;£'1:§11g ':0 the respondent it is o11i:s.;'f1;§§rﬁ 9:41:16 ﬁhe reiationship between ttge §"'f§§gf_:;aCc0i;I1t 3:' the conefiuct s§,5a1*ted havixlg an extra 111a1*i'i;;11 eerie Maya who was appointed as iaﬁ $6 Qiiice and the constant intéfxréxértian §f:€W f§€':£}f_h6 !:WC> during the day as well as in ' Viicfzs i:e:'_vg1f:t.« 'U716 conssezquc-:13: challge in the attitude Q3"

not onjiy with the ﬁ'ieI1d:;«;' circle, bat ajsso w*ii:3::; ﬁiﬁ hféspondent and the d.-aaugl'1ter, created a conﬁict " V» iii reiatitmsilip between the parties. According to ;i:he i"€*:S§}0I}d€f1t, despite the mis~C:0nduCt csf the petiticmeii. she is vs:*i_ili11g to msiée Wii;f1 him. in faci in the crosss~exaIz1ination the petitioner has admitted that Maya wag appomttzti as Big Assistant; in the Gﬁice. He /5 has also admitted ha: writing in his diary as }_+;x.K1. 111 :'am: it is this n1is--coz1<:luct of ff.-"1::.' which forcaszci the respormdent to retum settle down in Bangaiexﬁ. Ac{;o1'cii; 1g;t'0_ t;i"iAe'V--1'é&.g><3_ii<j§:;f1t, * but for the petitioner's reiaﬁoﬂshﬁj' sif;e'.'i:2;d, 11$ g:rieva11ce as such . {;iI1€1e1* the circm11stances we case of the pBtiTiOI161'._ that m=é_ been guilty cf Causing hand this is a case w£1eI'§: ﬁéiaﬁonsmp occmtred 01} acrrtimit eff the pﬁtitiﬁﬂﬁl" in having an extra as a resujit 0f' vanish, his aiffitncie 31151" §i>¥:3;t";av§V<)ur towards the respondent became .A tetaiiy averse to a cordiai marita} ﬁfe. 2 A'§'.§1ru:é-Q gaetitioner who has man guilty of mis- cc§i1§Tii:::t'a4I1ci under the Circumstances in Vi{*':.'W cf Section AA 2;3.§_l}{f3) 6f the Hindu Marriage Act, Wﬁ ﬁmi that the pé§:i"¥.:i_0r2er camlot take advantage Qf his ovm wrong by"

" filing the petiﬁan against the respandent. b'u;rt_t1er the matexéai {:31} record and the aiiegations made an: $:,1r::,£':z, which in our view, ck} net make out a ease that the i 'M .«-

respomiant. had caused crueity 1:0 the petitioner. The foii<:>Wi:1g ﬂiustration given in the case of Bama1% (3.tji:)si1 Vsuaya Ghost} are relevant to the p1'€:€$€I1t 'A on the above basis we ﬁnd tt1at,..ti1_e "

made out a case against ti1é": 1*e:43 pd:1dent. consideraﬁon of compiete i;3._;§uimoiiiai .pa1*ties~ . L' acute manta} pain, as ssgotud not make possible for tﬁe 'witi*1 each other could cc.«me_, of manta:

crueity. {ii} apggaisai of the entire rz1at;i*i§ﬁ11oI1'jTAa1'Tvj'i3}V:"i:: 4;iii6~ _.partjéV$, it beconms abundantiy ciear that _SitLl_8:.vIf;(.}I3."'S*;1Cfl that the wronged party caxggnui. Iwﬁsagjaiéiy asked to put up with such Cqfliitiét cont33.me ta live with othetr pazty. (iii) A Céfufse af abusive and humiiiating treatrnexat "r:u1«s:ift:c£"':t(} torture, discumxncrde or rfiﬂdﬁf niiserabiti V Ofvihﬁ spouse. (iv) Sustamed Lmjustiiiable cenciuct behavieur of 6:116 spouse amuaiiy affecting pfxjmicai 2 V' mantai health efsf the other spouse.. '1"he mzatmexit CQfIZi13l8iI1€d of and am resuitant danger ef appmhensiim must be very' gave, substantia.i and sn:e:igh'ty. {V} /% . I/'r-J

-37..

Sustained reprehens:ii}k-3 conduct, studied neglect, :'u1diﬁi:rence or total departure from the nor.{I1ai'~s1§a;f1'cia1*ci 01' ccxijugal i{iI1dI"1€SS causing iz1_jury to Ear.» cieriving sadistic pleasure oa.13_._.a.i,$o a3;i§£€§t;113Ii ti5' iizerztéi ' . crueity'. (vi) Mere trivia} wear and tear 91' the IZ1aI'iZ'l$:tii~w.,{iﬁ3 \§?'hi_Ci1_1ia.p1>:§1i'1sw~if1 day:-V ' t.o--day lift: would 120$ 'be ad¢:<.;Iﬁ?a1tc5"--»I7{:r g1'é3:1t..0fv Eiivorce on the gonna of 111e1:£§ia}_T 'cr'u_x3:Ef}k. The married life ShOL1id be .Vr€*§§i3we(1'VV'$§s V' a few isolated cz'1}eE_ty.._ must be persistent for a fairly 1er1gt11_§"'~-;1:§e:*i(>d;' ﬁ?ii€;'é'§".iie reiationship has c£eter}_<)1'ated £9,519: <:;e:t<%:1":t"'\z"-»!f_1.'é«:¢}tV: bécause :31' the acts and behaviour of a .' ,v§_21'0nged party finds it exumneiy diﬁicult to " Joiner party any lenger, may amount to msé.:1té.£'Vci*€1e1tyf. Hence an the issue of crueity we answﬁr 2 .. x the péﬁtioxier.

Secﬁon 13(1){i£3) of the Act states tiitat the desertien must be far a continueus period of £10: 1683 than twa years im:nt::<:iiat€£3; pre(::edi13g the pI'6Sf3I}tat.i0I'1 jg, ef the petition and in the exeianatjen to the said p;'evisioI1 the word 'desertion' is dei'i11e<;i* 1.;é:;;"'--;;ne desert:io11 of the petitioner by the Ot§1('3I'.'A4':]:Jii1vh'i"'!}.:§f' 4_ Inarriage without reasonable .-<:aese .-%3.:1;1 i»vLi'i3i()i;tt» {he f ' consent or against the wish ﬂ.iz"1{§i11de.sV wﬂlfui neglect 01' the peutioneer..eby etizeﬂ ite' g:ra1:e111at;icai vamaﬁea a11c}.e'{:ug:r;:a.Vie._. expreeeien have to be construed accerdiilgiﬁf.

eence_pt._ef -the Act and it envisages the fo1iowii1ge4_h1g1"e'ciJ}e1its _: (1) The faetum of separation (1/2,}._§j;191e.iI1te1"1i:ieV:r§£ te: bring eohabitetien permanently to e (ace:-imus deserendz) and that bath the above H Veiietlid continue during the entire statutory ﬁxerefbre, in erder to etmstitute a matrimenial " V. AAei'i"e;1ee, desertien must be fer a centinueus perimi fer lees than twe yeare beibre the presentation of tee V' petition. in the ease of Bzpin Chandra V"/s. Prabhawafi {AIR 1956 SC 17' 5162) the Herfble Supreme Ceurt has expmined the concept 0:' cieseI'tie11 under the Act and M:

-39.

painted. 011: that (i€:se1"ti0z1 is a matter ()fi11f€':I'€1'1CE': to be drawn mlder the circumstances sf each case... ~_ '};'.!_;1€':

in:?.=:re11ce may be drawn fi:'GI:1 certain facts, _13§Iiic!1V:~ _ not in a1":et:her case be capabie 01:1eadi111g"'t:$1:j i;{liEI'€11C€. if in fact therrs: has bee:-,j1=a5 s--;i;: essential question aiways is Ea'-'E16? t$1atT':§.{:tfc9i;lr;i be --. " atitmbsutable ta an 'mus __€i€::'S€'_?'€I§di .Si1«'1:::t_§: the factum and ».ni::x11;_t:3 "Sfiomc[_ a pveriod Q1' ati::;':;_: *3 two jg'€:a1_"€s.,__ 1:1 fgfié' W 3. Meena (AIR 1964;. a1i§;._A__}i?;}hi:1i:f.'V1{;;ni§;zri Vfs. fmirendra Sing}: V{.A1_%<;' IE;'3'.?"':«':'j'V---- thé t~£0:1'bie Supreme Gem': has reafir'ﬁ:3;1§*:c£ t{1g:4Vi;§_1*i;£1:(:_i:pies stated in the earlier case ._ With§;'eg%§1}"d ?ZO ﬁ'1€_Q{}I1C€})t af deser1:io;x":. under the Hindu i 2 '3eiaﬂ'iag§§ 'AC1? V ., _ 132';-T'__ 7i'i1é'i'¢ie:':;.-"' one of the essentiai ingzﬁdients of des ¥erfi<;>_I1:' i-3#'Sepa1'a.tio:1 of 0116 spause from azlother and . 1;i'I€€?If_€ be no deaertian Whiif: parties are living i'0g€:'i:§f1er. B'1:1*¥;her cantinuijlg Evidence ef desertion for "tide statutory period Gf at least two years can never became compiete uxzﬁl the petition is actuaiiy 2;

~31}-

presented. 1+'urt3.1er if the ciesertjng spouse gexmineiy desires to retzqrn to matrimoniai heme, the other spouse cannot. refuse reinstatement.

The question whether dveé*§ei't1:1g'--«« spe.t§;ée_ 3. reasonable cause for not ._ biixig an end and me eoiresficsﬁding Vq.i_.1eetio1i°, whether ciesertion witneut ex§eted¢.for tfie Vteeceesazﬁr period is always a queetiez-Qt'ef:'f'act5 ' :i_13.._'consi{ie1*iI1g the conduct of '1_'l14e'}:jts:!te53e}:5*tet5l: such case, the eeurtwiﬂ t.e""E__he'1"e.cts of the particular case, 111 0rderVte_%Meece1'¥,ai:_1 "Wf:'at in fact was the impact on the < tlie"'ciese1vti3.1g epouse ef anything which was ' _ by the deserted spouses. Furt:3:1er the .agfee1ne1*§:_t}:) pay maintenance is not in itself' proof of ceneexit to iive apart.

'£34. The expression 'wiiiftxi neglect' used in the explanation though 3:101"; deﬁned excludes acts or emissions done by accident or inadvertence. 01} the ether hand there must be censcieue acting in a e -31- reprehensible manner in discharging ail ebﬁgations which cermote a degree of in willful neglect. 'l'herefoI'e_. breach _of--» -« , marriage or failure to discha;*geV=.eveI3r zf.ie'*eof .m'a1*;i*§age obligation ealmot be regaréegl azéa ; neglect to become deeerﬁon__Vl§1:e:ei ivvkamomzts to fersaléng or by the other by a c011scieue_:di§=,reg.a3*{l.C'}%ij ebligations of the ifeeiiewlxehole. Further a spouse. miscenduet as Weuld re11der._ "of marital relations 30 1;tnbearal:i§.eV%%lV:l:.e" ether spouse feels compelled £0 v le:3.if'e ;11at1%i111Qnial home and in such a case it is the ' fei'mer.,<ler;'el j"1*2<::t the latter, who is the deserter. it is en the petiﬁoner to prove that desertion witl1e1,lt;. reascmable cause subsiisteci tlzreughout the ..<i;fg:§Lt§1t.e:'y tsefore §'a:1ting relief' on the grounci cf {iesertion the court must be satisfied that the matrénlenial offence complained ef' is eetabliehed. The legal burden of proof lies on the petitioner te establish that the desertion was witheut cause and to discharge 5% /' ..32..

that burden the petitioner may reiy an the fact he asked her 1:0 join him and she refused. that fact of mihsai she may seek _ interferencs of desertion by that §'uSL cause for her refusal and »1V.1suaU§:--. 'ii:-..wouijd."_; Wisa her to do 80.

35. As far as desezfiaﬂ we fixlti that the respondent r<:=,tur1;1ed ﬁg 12692 and the petition;1"ié"j:;1;§fesente:i" 2093 since the statuigory hf t'af d.year's stipuiated under Section 13 of Act e::{ese1"*tio11 of the spouse has no': cdnip1V¢1:éd. In the instant case, the gonna of ~._1f1ot 3.150 available to the petitioner. Apart frém fihd that there was no intention to desert the" pe'n_'ti::>;1e1' on the part 0! {he responcient, but 011 the 3 oﬁsgr ﬁand, the reassn for her retmta to lzzangajt:-re was act::0uI1t oi' the conduct cf the petitiomar and the VV 'fesponﬁcnt ﬁnding that the petitioner has :10 longer in much with his ﬁxssistant Maya, she is wiiiing {-3 391:; the

-33- } petitioner. Hence we find mat the petitioner "ﬁgziied to make 0111;. a case on the g'ound of desertiﬁnn' A' T

36. For the aibresaid reasons V petitioner has faiieci to prove the :a£l¢;g§5:tii;I:S--. E)i'V<:;fu<:itjv' and de$ertior1 against t.he.41_;*espo1;de:1t };_ir:<=:I_*}3I"<§r-¢?:_,:" w dismiss the appeal by colﬁifiiiixig thﬁh of the Family (3m1rI: by hbiiiiiigi vvV3§etjti0n filed by the petitioner is dismi. sSed~. _1§£o'epsts:. '~.h I. ---- 5} mm?' V' V'

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