Karnataka High Court
A S Murugesh vs Smt Veena Mathangi on 15 March, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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NC: 2024:KHC:10804-DB
MFA No. 1508 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 1508 OF 2017 (FC)
BETWEEN:
A.S.MURUGESH
AGED 45 YEARS,
S/O A.K. SRIRAMACHANDRA GUPTA,
R/AT NO. 58, 5TH A CROSS,
5TH MAIN, K.P.PUTTANNA CHETTY STREET,
CHAMARAJAPET,
BENGALURU 560 018.
...APPELLANT
(BY SMT. ARCHANA MURTHY., ADVOCATE)
AND:
SMT. VEENA MATHANGI
Digitally AGED 41 YEARS,
signed by
SHAKAMBARI W/O. A.S. MURUGESH,
Location: DOOR NO.3050,
HIGH COURT
OF OPP. GOKULAM PARK,
KARNATAKA
2ND MAIN ROAD,
V.V.MOHALLA,
MYSURE 02.
...RESPONDENT
(BY SRI. PRASANNA V.R., ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 19(1)
OF FAMILY COURT ACT, 1984 AGAINST THE JUDGMENT AND
DECREE DT.14.12.2016 PASSED IN M.C.NO.428/2012 ON THE
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NC: 2024:KHC:10804-DB
MFA No. 1508 of 2017
FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, MYSURU.
DISMISSING THE PETITION FILED UNDER SECTION 13(1) (IA)
OF THE HINDU MARRIAGE ACT, FOR DISSOLLUTION OF
MARRIAGE.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY
RAMACHANDRA D. HUDDAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant/husband being aggrieved by the judgment and decree dated 14.12.2016 passed by the Principal Judge, Family Court, Mysuru dismissing his petition filed under Section 13(1)(ia) of Hindu Marriage Act, 1955 (for brevity `the Act') for grant of divorce has preferred this appeal.
2. Facts of the case briefly stated are that:
The appellant-husband and respondent-wife were married on 15.8.2001 as per Hindu rites and rituals at Govindarao Memorial Hall, Mysuru. The petitioner is a Software Engineer at the time of his marriage and was working at Robert Bosch India Ltd.,. His job was involved lot of unscheduled touring.-3-
NC: 2024:KHC:10804-DB MFA No. 1508 of 2017
3. It is his further case that, as his job was involved unscheduled touring, hence, respondent stayed at the house of her mother at Mysuru. She also used to visit the house of his parents at Kuvempu Nagar, Mysuru during week ends only. It is his case that, though his parents always used to stay in their house, she refused to stay with them. She gave threat to them to commit suicide if they insist for her stay at their house. It is alleged that the petitioner asked her to join him at Bengaluru, but, respondent flatly denied the same as she was inseparable from her mother. It is further alleged that, even after conceiving, she continued to stay with her mother.
4. It is specifically alleged by the appellant- husband that respondent used to lose temper on trivial and inconsequential reasons. Sometimes she was violent in her behaviour. She used to complain about the food being served in his parent's house and used to say that, said food was of poor quality and it was mal-nutritious. Therefore, without any alternative, petitioner-husband -4- NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 used to send respondent (his wife) to her mother's house keeping in mind her safety.
5. It is his further case that, on 11.09.2002, respondent gave birth to a girl child. Despite repeated request by the petitioner, respondent refused to join him at Bengaluru. The employer of the petitioner planned to send the petitioner to Germany for project work with his family members. Therefore, he wanted the names and particulars of his family members to get Visa. Till 2003, respondent did not bother to arrange the naming ceremony of his daughter. On 9.6.2003 after naming ceremony, when the petitioner asked respondent to go to his parents' house, she quarrelled with him and created a scene. He convinced her. After convincing, she was taken to his parents house. She shouted at everybody in his house and left to her mother's place within half an hour.
6. It is his further case that, he constructed a house at Bengaluru adjacent to Madhwa Sangh, 5th Main, Chamarajpet, Bengaluru. He scheduled the house warming -5- NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 ceremony on 7.9.2003. He came to Mysuru on 06.09.2003 to take the respondent for house warming ceremony. Instead of staying in the new house, after completing of house warming ceremony, she returned to Mysuru on the very same day. It is his further case that, the respondent joined the petitioner on 2.10.2003 and stayed for 13 days. But, during these 13 days also she was quarrelsome. The petitioner wanted to celebrate Deepavali Festival of the year 2003 at Mysuru in his parent's house. Though he requested respondent to join for celebration, but, she refused. When petitioner went to the house of respondent's mother in the year 2013 on one day at about 11.00 p.m., even the mother of respondent did not bother to offer a cup of coffee, tea or water. It hurt the sentiments of the petitioner. Though petitioner requested the respondent to join him to celebrate Deepavali atleast for a day, but, she has not shown any interest.
7. It is alleged that, on 01.11.2003, respondent came to Bengaluru along with Baby girl Vaishnavi along -6- NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 with her brother Dr.Tarakanam. The employer of the petitioner has decided to send him to Czech Republic for a period of 90 days. When the same was intimated by him to the respondent, initially she responded positively and stated that, she would remain at Benglauru along with Baby Vaishnavi. But, on the said day itself after dinner, she quarrelled with the petitioner and packed up her bags in between 2.30 and 3.00 a.m. Finally Dr.Shankarnath and Smt.Gayathri N.Gupta, the neighbours intervened and took her to their house. At 4.00 a.m. through phone she appraised her mother. On 7.11.2003 at about 9.00 a.m., her mother, brother and family members came to Bengaluru and convinced.
8. When the parents of the petitioner went to Bengaluru to see off the petitioner, respondent picked up a quarrel with them. It is alleged by the petitioner that he returned from Czech Republic on 24.12.2003. On coming to Benglauru, he came to know that respondent and her mother visited the office of the petitioner to know about -7- NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 the whereabouts of the petitioner. The petitioner had sent his telephone number of Czech Republic through email. She never contacted him. On 26.12.2003, he came to know that Dr.Tarakanam, the brother of the respondent had undergone surgery. Therefore, as a courtesy call, he wanted to meet him. In the meantime, he received the call from said Dr.Tarakanam and in the telephone he threatened the petitioner stating that, petitioner will be sent behind the bars. In anticipation of the arrest by the Police and also false complaint against him, the petitioner did not visit the said Dr.Tarakanam. The family members, petitioner have been put to mental agony and suffered a lot in the hands of respondent and her family members.
9. It is further alleged that, on 17.1.2004, petitioner did all arrangements to take respondent and baby Vaishnavi to Germany for a year. But, instead of preparing to go to Germany, on 5.1.2004, the respondent issued legal notice to the employer of the petitioner making false allegations. On reading the false allegations -8- NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 in the said notice, the petitioner was put to shock and mental agony. Knowing that the allegations so made in the notice are false, his employer sent him to Germany. He returned to India in the month of February 2007.
10. It is alleged that, the petitioner and his family members made several attempts to hold conciliations. But, there was no reaction from the side of the respondent. Thus, it is alleged that, from the year 2007 onwards, respondent has wilfully deserted the petitioner for a continuous period of two years. But, even then, the petitioner used to send `3,000/- per month as maintenance through cheque to the respondent even when he was at Germany. The respondent has treated him with cruelty. Therefore, he was constrained to file a petition in MC No.180/2007 under Section 13(1)(i-a and b) of Act seeking divorce. The said matter was referred to the mediation. Keeping welfare of the respondent and the child to resolve the dispute, petitioner agreed to take the respondent. But, inspite of that, the respondent did not -9- NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 stop abusive words against the petitioner. Even after 31.1.2008, again she started her two colours. She subjected the petitioner for cruelty and threatened him to send him behind bars including his family members. On number of occasions, petitioner requested the respondent to accompany him for counselling from a counsellor but, she did not agree for the same. It is alleged that, from 2008 to 2012, the petitioner took respondent and Baby Vaishnavi to several places. Respondent has remained the same without any change. Even he purchased gold to baby Vaishnavi and respondent but, on each occasion, respondent has created a new tension and thus, baby vaishnavi has become a victim.
11. It is alleged that, on 21.8.2010 baby Vaishnavi fell sick. When she consulted the doctor Sri Shankarnath, she was advised to take rest and not to attend any swimming class. But, even then on 21.8.2010, the baby Vaishnavi was sent to school. While coming from the school as it was a rainy day, she was drenched in the rain
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 again she suffered a lot. His daughter Vaishnavi suffered fever. The respondent abused the petitioner in foul language. She made allegations that why the baby was taken to Dr. Shankarnath. It is alleged that on 29th afternoon, he got a call from Vijayalakshmi family counsellor to meet her in her office. It is conveyed to him that, the respondent has complained against him. Thus, respondent made false allegations against him. It is alleged that there was persistent harassment by the respondent. She has threatened to lodge a dowry harassment case against him. Therefore, petitioner informed the said fact to Mr.Prabhakar of Coimbatore and Dr.Tarakanam about this development. One day when he returned from office, baby Vaishnavi was studying in kitchen and respondent was there. Suddenly he heard the cry of his daughter Vaishnavi. He noticed that Vaishnavi was found fallen in a pool of blood. It was understood by the petitioner that respondent had assaulted baby Vaishnavi with steel ladle. Though the petitioner requested respondent several times to accompany him to go to
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 psychiatrist but, she did not accompany him. When petitioner has questioned the acts of the respondent, she always used to quarrel with him. Even he called his friend Sri K.S.Raghavendra and informed about his decision. But, the respondent did not heed to the request. It is averred that, when she was called to attend the 70th birthday of his maternal uncle, she neglected to speak to his parents and relatives. It has deeply hurt the petitioner.
12. During 27.12.2004 to 1.5.2012, petitioner took the respondent and his child to various places at Mangaluru. but, the behaviour of the respondent was irritable. Even she has not allowed baby Vaishnavi to go near the sea and was shouting at her. Always she is in habit of abusing the petitioner. On 22.5.2012, petitioner has casually mentioned about the mango tree, but, she started abusing him in filthy language. Even she abused Smt.Gayathridevi. She shouted at her. On 13.6.2012 at about 2.00 a.m. when the petitioner was sleeping in the Master bed room suddenly she entered the bed room and
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 started abusing him in filthy language. She told that she cannot live there. Even the brother of the respondent Dr.Tarakanam supported her. On 14.6.2012, Dr.Tarakanam took respondent and Vaishnavi to Mysuru saying that they would return within couple of days. But, on 17.6.2012, it was informed that they would stay for some more days at Mysuru. On 24.6.2012, he met Dr.Tarakanam and had a talk. He tried to convince him about what all has been sacrificed by him for respondent. But, suddenly respondent said that baby Vaishnavi will not be returned to the house of the petitioner. Even she stated that, she does not want any maintenance from the petitioner. These are all the events which have taken in the life of the petitioner. On the ground of cruelty, he prayed to allow the petition and grant a decree of divorce against the respondent of their marriage.
13. In response to summons/notice, respondent appeared through counsel and filed detailed objections before the trial Court. She has denied all allegations
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 except the marriage and other aspects. According to her, she joined the tailoring class by staying at in-law's house, but, from day one, of her marriage, the parents of the petitioner started abusing her for not bringing adequate dowry. They used to attend the functions almost everyday leaving her alone in the house without adequate food and even sometimes by locking the door. After the engagement respondent asked the petitioner in which area he is making house. He abused her and immediately disconnected the telephone. He called his parents and in turn called the mother of the respondent and abused her. Thus, it is alleged that, petitioner and each of the family members of the petitioner has subjected the respondent to cruelty. When she has conceived a baby, she was compelled to abort. They have not bothered to give pre- natal care. It is alleged that petitioner and his family members have caused mental and physical torture on her. She has denied the fact that she has threatened to commit suicide as contended by the petitioner. She has contended that it is all invented story by the petitioner. Even the
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 petitioner and his parents did not come to the hospital to see the child. Dr.S.R.Kankraj, the maternal uncle of the petitioner brought him to the hospital to see the child. She has denied all other allegations made in the petition. Each and every allegation with regard to cruelty, misbehaviour etc., have been denied by the respondent in toto.
14. With regard to the visit of the petitioner to the Czech Republic, it is admitted. She denied that she picked up a quarrel with the petitioner when he was going to Czech Republic on official tour. It is further contended that, the petitioner used to abuse her and humiliate her by saying that after he going to the office, he knows that with whom she moves. Even he used to humiliate her by saying that when she was working at CFTRI, Mysuru, he knows that with whom she used to move. Thus, he used to abuse her and humiliate her. There is dowry harassment by her and her family members against the petitioner. It is further contended with regard to the incident took place on 21.2.2010 and 22.2.2010 the petitioner has made
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 baseless allegations against her. Therefore, denying all the assertions made in the petition, it is prayed by the respondent to dismiss the petition.
15. In the course of trial, the petitioner examined himself as PW. 1. He also examined witnesses on his behalf i..e. Dr.A.S.Shailaja as PW.2, Gayathri N.Gupta as PW.3, A.S.Lokamatha as PW.4 and K.S.Raghavendra as PW.5. He got marked exhibits Ex.P1 to P36 in support of his evidence.
16. The respondent examined herself as RW1. None of the documents are marked on behalf of the respondent.
17. In the deposition of the appellant, he reiterated the petition averments and proved the documents. During the cross-examination, respondent has not been able to elicit any evidence in support of respondent's defence. Appellant's witness namely, Dr.A.S.Shailaja, Gayathri N.Gupta and A.S.Lokamatha have stated before the Court on oath about the relationship between the petitioner and
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 respondent and they witnessing the behaviour of petitioner and respondent in their respective evidence. PW.5 K.S.Raghavendra the family friend of the petitioner has advised both petitioner and respondent as per his evidence.
18. The documentary evidence such as Ex.P1 to P3 i.e. certified copy of the petition, joint memo and order sheet in MC No.180/2007 show that when the petitioner filed petition in MC No.180/2007, it ended in withdrawal because of reconciliation made in between them in the Mediation centre. These documents are not disputed by the respondent. Ex.P4 is the marriage invitation card. Ex.P5 is the marriage certificate. These two documents are not denied by the respondent.
19. With regard to the visit of the petitioner to abroad, he has produced the air tickets at Ex.P6 to P8 which are also not denied by the respondent. It is also not denied by the respondent that he has letters issued by the employer as per Ex.P8, P9 and P10. Ex.P11 is the letter
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 written by the petitioner to the respondent. Likewise, he has produced various documents and even photographs. Even according to him, he has paid daughter's school fees to the extent of `32,000/- as per Ex.P34. So these documents are not denied by the respondent. With regard to the counselling, it is stated by the petitioner that, though the petitioner called the respondent to consult the counsellor, the respondent has not agreed to the same. Even respondent has reiterated the contents of her objections in her evidence on oath.
20. On perusal of the pleadings and evidence of both side, it reveals that petitioner is making allegations against respondent about her misbehaviour and in turn, respondent is also making similar allegations against the petitioner-her husband.
21. Learned counsel for the appellant submits that the judgment under appeal is not in consonance with the evidence available on record. The levelling of allegations against the appellant of the practising cruelty on the
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 respondent is misconceived. He further submits that the appellant and respondents are admittedly are residing separately since long years. It is submitted that hence, the marriage has been broken down. It is submitted that no purpose would be served in allowing such relationship to continue. He further submits that the appellant is making payment of maintenance. At earlier point of time, when the dispute was compromised before the Mediation, respondent did not agree. Due to her adamant attitude, it is she who is residing separately. In support of his submission, he relied upon various oral and documentary evidence so produced by him and also relied upon the pleadings so pleaded in the petition.
22. As against this submission, the learned counsel for the respondent-wife submits that, the judgment and decree under appeal does not require any interference. The allegation of cruelty, like she used to harass and abuse the petitioner-appellant as well as misbehave with him are not proved. Abuse to his parents is stoutly denied
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 by the respondent. It is his submission that, it was appellant-petitioner who disrespected this respondent. There is no material on record to suggest that, the respondent has practised cruelty upon the petitioner. Therefore, it is submitted that, the trial Court is right in dismissing the petition of the petitioner.
23. Having heard the learned counsels for the parties, the only point appellant-husband has to prove is:-
"Whether the appellant-husband is able to prove the cruelty on him by the respondent?"
24. Here it is apt to appreciate the scope and intent of `Cruelty' within the ambit of Hindu Marriage Act, 1955.
"cruelty' is not defined under the Act but, it is one of the grounds under Section 13 (1)(i-a) of the Act on the basis of which, the divorce can be granted. Cruelty is the human conduct or behaviour in respect to matrimonial duties and obligations and such a conduct adversely affects the other.
Cruelty can be of two kinds: Physical and Mental. It is easy to prove physical cruelty with direct evidence. But, it is
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 really difficult to prove the mental cruelty with direct evidence as mental cruelty impacts the mind of one side of the married couple by the other side which is of such a nature, a reasonable conclusion can be reached by the affected side. That is not possible or it is not safe to reside in the company of other side who has inflicted cruelty.
25. We shall now advert to some of the judgment rendered by the Hon'ble Apex Court wherein the concept of mental cruelty has been explained.
26. 'Cruelty' under Section 13(1)(i-a) of the Act has been analysed in the case of Parveen Mehta vs. Inderjit Mehta1. Paragraph 21 of the judgment reads as under:
"21. Cruelty for the purpose of Section 13(1)(i-
a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the 1 (2002) 5 SCC 706
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
27. 'Mental Cruelty' has been elaborated by the Hon'ble Supreme Court in the case of V.Bhagat vs. D.Bhagat2 paragraph 16 of the judgment reads as follows:
"16. 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 2 1994(1) SCC 337
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 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 necessary 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 set 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."
28. Similarly in the case of Savitri Pandey vs. Prem Chandra Pandey3, the Hon'ble Supreme Court held that `Cruelty' can be treated as mental cruelty when the husband or the wife who has claimed dissolution of marriage on the ground of mental cruelty has apprehension in his or her mind that it is harmful and injurious in the company of other side. However, it is well 3 (2002) 2 SCC 73
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 settled that, the cruelty largely depends on the living condition of the parties to which they are accustomed to or their economic or social conditions or their culture or human values to which they attach importance. Hence, each case has to be decided on its own merits. The daily wear and tear cannot be treated as mental cruelty.
29. The word `cruelty' has been analyzed by the Supreme Court in the case of A. Jayachandra vs. Aneel Kaur4 paragraph 10 reads as follows:-
"10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an 4 (2005) 2 SCC 22
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes."
30. In the present case, the only allegation of cruelty is, mental cruelty by the respondent. Throughout the petition averments as well as throughout the evidence, it is alleged by the petitioner/appellant that, because of misbehaviour of respondent-wife with him as well as with his parents, he has experienced the cruelty from this respondent-wife. He has mentioned throughout his petition running about 38
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 pages about the events that have taken place in between the petitioner and the respondent right from the date of marriage till he files a petition for divorce initially before the Family Court, Mysuru. The thrust of the pleading of the appellant is misbehaviour of respondent-wife. But, none of these alleged misbehaviour of the respondent wife has been proved by the petitioner except his evidence. Even the witnesses so examined by the petitioner before the Family Court, though speak with regard to the behaviour of the respondent, but, in the cross-examination, they have not at all stated any incriminating evidence about her misbehaviour etc.. Whatever the petitioner appellant husband has stated throughout his pleading and evidence show the wear and tear incidents in between himself and his wife the respondent. He never says that there was physical cruelty upon by the respondent. So also he never says how he is inflicted mental cruelty. He speaks with regard to the misbehaviour of the wife and regarding house warming ceremony. The main allegation of the petitioner that, whenever petitioner takes the respondent
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 to Mysuru, the respondent-wife used to reside in her mother's house. She never intended to reside with his parents. Further, it is his evidence that respondent-wife used to come to his parents house only in the week ends when the petitioner was very much available. After his departure from Mysuru, respondent used to go to her mother's house. This is main allegation of the petitioner. Further allegation is that, respondent-wife is much attached to her mother and not to his parents. Thus, it is specifically alleged by the petitioner that, the conduct of the respondent-wife amounts to cruelty upon him.
31. In the case of Samar Ghosh vs. Jaya Ghosh5, the Hon'ble Supreme Court has catalogued certain instances of mental cruelty. Paragraph 101 of the said judgment reads as under:
"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in 5 2007 (4) SCC 511
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi)Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse.
The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded
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NC: 2024:KHC:10804-DB MFA No. 1508 of 2017 that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
32. On scrupulous reading of the evidence placed on record by the petitioner-appellant and also the petition averments, the case of the appellant does not come in any of the instances mentioned above. Alleged conduct of the appellant does not appear unreasonable that within few days of marriage, when he went to Bengaluru for his avocation so also when he planned to go Germany and Czech Republic, some incidents from the respondents by the respondent took place. It is his evidence that, the respondent never cared the petitioner as well as his parents. Mother of the appellant is in house so also his father. She has admitted in her evidence that, she used to be in in-laws house i.,e parents of the husband and she used to go to her mother's house during week days.
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33. On perusal of the documents, certain informative documents have also been produced by the petitioner which do suggest that, they have been filed to make a ground for proving cruelty. It is contended by the counsel for appellant /petitioner that the respondent-wife has wantonly caused mental cruelty on the petitioner.
34. In several cases, the Hon'ble Supreme Court has exercised power under Article 142 of the Constitution of India. However, in view of this, such power cannot be exercised by the High court or the Prinicpal Judge, Family Court as been held in the case of Anil Kumar Jain vs. Maya Jain6 paragraphs 28 and 29 of the judgments reads as under:
"28. It may, however, be indicated that in some of the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution, this question had arisen and it was held in most of the cases that despite the fact that the marriage had broken down irretrievably, the same was not a ground for granting a decree of divorce either under Section 13 or Section 13-B of the Hindu Marriage Act, 1955.6
(2009) 10 SCC 415
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29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955 for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable breakdown of marriage is not available even to the High Court's which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955."
35. The plea of the appellant husband that the respondent caused mental cruelty upon him is not duly proved in accordance with law. Throughout his evidence though he speaks with regard to cruelty caused by the respondent, but, the respondent has flatly denied the same. The learned trial Court has held that allegations made in the petitioner with regard to the cruelty under Hindu Marriage Act are not proved in accordance with law.
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36. Respondent evidence is not properly denied by the petitioner through out his cross-examination.
37. In the present case, the daughter of the appellant and respondent now has become adult. We are of the view that, no useful purpose will be served at this stage to allow the marriage to be dissolved. Both the appellant-husband and respondent-wife have still occasion to ponder over the whole issue and take positive steps. Though several attempts were made to get the issue settled but, of no avail. There is a possibility of settlement and they are all trivial issues involved in the case and both are educated. In the circumstances, we do not find any merit in the appeal which accordingly is liable to be dismissed.
38. However, the appellant-husband is expected to make the payment of maintenance amount to respondent- wife and respondent-wife is at liberty to take recourse to the appropriate remedy available in law.
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39. Resultantly, we pass the following:
ORDER
(i) The appeal filed by the appellant-
husband is dismissed.
(ii) The judgment and decree passed in MC No. 428/2012 dated 14.12.2016 by the Principal Judge, Family Court, Mysuru dismissing the petition is hereby confirmed.
(iii) However, the respondent-wife is at
liberty to take recourse to the
appropriate remedy available in law for recovery of the payment of maintenance.
Sd/-
JUDGE Sd/-
JUDGE Sk/-