Karnataka High Court
Smt Sowmya vs Sri S Venkatesh Babu on 16 August, 2022
MFA.No.4420/2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2022
PRESENT
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.JUSTICE S.RACHAIAH
MISCELLANEOUS FIRST APPEAL NO.4420/2014 (FC)
BETWEEN:
SMT. SOWMYA
@ SAROJA
AGED ABOUT 36 YEARS
W/O SRI VENKATESH BABU
D/O LATE SUBRAMANYAM
R/AT NO.23
4TH CROSS
(NEAR CHRIST KIND SCHOOL)
OLD MANJUNATHA NAGAR
RAMAMURTHY NAGAR
BANGALORE - 560 066
...APPELLANT
(BY SRI N.JAGADISH BALIGA, ADVOCATE)
AND :
SRI S. VENKATESH BABU
2 MFA.NO.4420/2014
AGED ABOUT 37 YEARS
S/O LATE S.G. SATHYANARAYAN SETTY
R/AT NO.1766,
4TH CROSS
14TH MAIN ROAD
PRAKASH NAGAR
BANGALORE - 560 021
...RESPONDENT
(BY SRI G.R. MOHAN, ADVOCATE)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, 1984
AGAINST THE JUDGMENT AND DECREE DATED 08.04.2014
PASSED IN M.C.NO.505/2010, ON THE FILE OF THE V
ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BANGALORE, ALLOWING THE PETITION FILED U/S
13(1)(ia) OF THE HINDU MARRIAGE ACT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR FURTHER HEARING THIS DAY, K.S.MUDAGAL J.,
DELIVERED THE FOLLOWING:
3 MFA.NO.4420/2014
JUDGMENT
Heard.
2. Aggrieved by the judgment and decree of divorce granted against her, the respondent / wife in M.C.No.505/2010 on the file of learned V Additional Principal Judge, Family Court, Bengaluru, has preferred this appeal.
3. Respondent was the petitioner and the appellant was the respondent in M.C.No.505/2010. For the purpose of convenience, the parties will be referred henceforth according to their ranks before the trial Court.
4. The marriage of the petitioner and the respondent was solemnized on 20.06.2005 at Bengaluru. Out of the said wedlock, the couple was blessed with a daughter, by name "Anuskha", born on 20.07.2006.
5. On 18.07.2007, the petitioner filed M.C.No.1603/2007 before the Family Court, Bengaluru, seeking decree of dissolution of marriage on the ground of 4 MFA.NO.4420/2014 cruelty. On 16.11.2007, on service of notice in M.C.No.1603/2007, the respondent/wife filed Criminal Miscellaneous No.977/2007 against the petitioner and his elder sister under the Protection of Women from Domestic Violence Act, 2005 (for short "DV Act") alleging that the petitioner and his elder sister have subjected her to physical, emotional and financial abuse. That was allowed on 04.12.2007 awarding maintenance, separate accommodation and protection order.
6. The petitioner challenged that order before the Sessions Court in Criminal Appeal No.1366/2007. The Sessions Court allowed that appeal on 26.03.2008 on the ground that the petitioner should have been given adequate opportunity to lead his evidence. After remand and on hearing the parties, learned Magistrate allowed Criminal Miscellaneous No.977/2007 by order dated 16.12.2009. The petitioner withdrew M.C.No.1603/2007 by filing memo dated 13.08.2008 as per Ex.P4 on the 5 MFA.NO.4420/2014 ground that the parties are residing together and they have decided to put an end to all disputes amicably.
7. Challenging the order in the DV Act proceedings, the petitioner filed Criminal Revision Petition No.1024/2010 before this Court. Challenging the order of remand passed in Criminal Appeal No.1366/2007, the respondent/wife also had filed Criminal Revision Petition No.453/2008 before this Court. However, she withdrew that petition by filing joint memo on 18.06.2008 as per Ex.P5 on the ground that the parties are willing to lead their matrimonial life together in house No.13/1 of Prakash Nagar, Bengaluru.
8. In Criminal Revision Petition No.1024/2010, the petitioner filed a memo saying that he is ready to provide a separate house for the respondent. On that basis, this Court disposed of Criminal Revision Petition No.1024/2010 by order dated 18.07.2011, recording the undertaking of the petitioner to provide a house in Prakash Nagar to the respondent and her child and ordering 6 MFA.NO.4420/2014 payment of maintenance of Rs.5,000/- per month. This Court also directed that the petitioner shall be permitted to meet the child on her birthday and the respondent shall not trouble him during such visit. Thereafter, the petitioner filed two applications to recall that order which came to be rejected on 19.11.2012 and 17.01.2014.
9. When the aforesaid proceedings were going on, the petitioner filed another petition in M.C.No.505/2010 on 17.02.2010 under section 13(1)(ia) of the Hindu Marriage Act against the respondent seeking decree of dissolution of marriage on the ground of cruelty. Following are the grounds of cruelty alleged by him:-
(i) That the respondent taunts him as a limp person and insults him;
(ii) She has filed a false complaint before the police against him and his family members;
(iii) She assaults him and his family members;
(iv) She has deserted his company thereby deprived him of the conjugal life. 7 MFA.NO.4420/2014
10. The respondent opposed the petition denying the allegations of cruelty, filing of false complaint, assaulting him and his family members. She claimed that the petitioner himself subjected her to physical and mental cruelty, therefore, she is living separately.
11. In support of his claim, the petitioner got examined himself as PW.1 and got marked Ex.P1 to Ex.P8. The respondent was examined as RW.1 and Ex.R.1 to R.8 were marked on her behalf.
12. The trial Court on hearing both the parties, by the impugned judgment and decree, decreed the petition granting decree for dissolution of marriage and rejected the application of respondent under section 24 of the Hindu Marriage Act on the following grounds:-
(i) That the allegation of cruelty was proved by the evidence of PW.1.8 MFA.NO.4420/2014
(ii) The respondent's allegations that she was subjected to cruelty was not proved. Ex.R2 to Ex.R4 -
medical records produced by her are not reliable one.
(iii) The allegation of respondent assaulting the petitioner, his mother and sister is proved by his evidence.
(iv) The respondent has left the company of the petitioner thereby depriving him of conjugal bliss.
13. Before this Court, the respondent filed I.A.No.1/2021 under section 24 of the Hindu Marriage Act seeking interim alimony of Rs.50,000/- per month and the actual educational expenses of the daughter pending this appeal. The respondent also filed I.A.No.2/2021 under section 25 of the Hindu Marriage Act claiming permanent alimony of Rs.60,00,000/-. Learned counsel for the petitioner opposed both the applications.
Submissions of Sri.N.Jagadish Baliga, learned Counsel for the appellant/wife.
14. The impugned judgment and decree suffers perversity and contrary to the admission given by the 9 MFA.NO.4420/2014 petitioner in the parallel proceedings. The evidence of the respondent sufficiently shows that there was dowry harassment to her. There was no reason to disbelieve Ex.R2 to Ex.R4 which are the medical records. They sufficiently show that she was assaulted by the petitioner. The petitioner having undertaken before this Court in Criminal Revision Petition No.1024/2010 to provide accommodation and pay maintenance, resiled from such undertaking. Therefore, he was not entitled to any decree in the hands of the trial Court. The records show that second matrimonial case was filed as a counter blast to the proceedings under the DV Act. When the earlier petition was filed on the same ground and withdrawn, the petitioner was barred from filing second petition. Since the petitioner owns a substantial house property and the need of the respondent is increasing, she seeks enhancement of interim maintenance and / or alternatively, she seeks permanent alimony.
10 MFA.NO.4420/2014
Submissions of Sri.G.R.Mohan, learned counsel for respondent/husband.
15. Admittedly, the respondent did not reside with the petitioner since 2006. There was no reason for her to separate from the petitioner. The fact of filing of the police complaint was admitted by her in her evidence. Ex.R1 was disputed. She did not examine any other witness or her brother to prove the dowry harassment. Therefore, the trial Court was justified in granting the decree of divorce. Withdrawal of the earlier petition in M.C.No.1603/2007 does not bar him from filing another petition. The wife's petition for enhancement of interim alimony was rejected by the trial Court. She did not challenge that. Therefore, that order has attained finality. The petitioner is a physically challenged person and there is no material to show that he has income to the extent of paying maintenance beyond Rs.5,000/- and accommodation as ordered by this Court in Criminal Revision Petition No.1024/2010. Thus he seeks dismissal of the appeal. 11 MFA.NO.4420/2014
16. On considering the submissions of both side and examining the records, the points that arise for consideration of this Court are:-
"(1) Whether the trial Court was justified in holding that the respondent / wife subjected the petitioner / husband to physical and mental cruelty?
(2) Whether the respondent / wife is entitled to interim alimony and permanent alimony as claimed in I.A.Nos.1 and 2 of 2021?"
Analysis:
17. There is no dispute between the parties with regard to the date of marriage and begetting a daughter on 20.07.2006. The only questions are,
(i) Whether the respondent/wife subjected the petitioner/husband to cruelty as alleged by him?
(ii) Whether she started living separately due to the dowry harassment and cruelty inflicted on her by the petitioner?
12 MFA.NO.4420/2014
18. Petitioner claims that the respondent insulted him calling him as limp, which was denied by her. To prove that except his self-serving testimony, there was no other material. PW.1 in his cross-examination, admitted that he was attacked with polio when he was one year old. At the time of marriage, he had disclosed that to the respondent and her family members. The suggestion made by him in the cross-examination of RW.1 shows that the respondent willingly married him after knowing about his physical disability.
19. Petitioner claims to have filed a complaint as per Ex.P6 on 18.12.2008. In that complaint, there were no allegations of respondent teasing him as limp. Though he claims that his mother and sister were also the witnesses to such teasing, he did not chose to examine them.
20. The other allegation of cruelty is that, respondent assaulted him, his mother and sister, but again 13 MFA.NO.4420/2014 it was denied by the wife. Except the self-serving testimony of the petitioner, there was no corroborating evidence to prove his allegation. So far as filing the false complaint before the police, it is not his case that any such case was registered against himself and family members and they were prosecuted.
21. As against that, the respondent claims that the petitioner and his family members themselves were the tormentors. She deposed in support of her allegations and produced the medical records Ex.R2 to Ex.R4. The trial Court suspects those documents without any basis. According to the respondent, a panchayat was convened in Ramanagar to pacify the couple and to reunite them.
22. Respondent claims that soon after the panchayat, the petitioner and his sister assaulted her and she suffered injuries. To substantiate that contention, she produced Ex.R2 dated 05.06.2007 - the outpatient slip of KC General Hospital, Bengaluru, Ex.R3 - Medical Laboratory Tests and Treatment of KC General Hospital, 14 MFA.NO.4420/2014 Bengaluru and Ex.R4 - wound certificate issued by the Chief Medical Officer, Taluk General Hospital, Ramanagar. The trial Court rejects those documents, ignoring that based on the same documents, learned Magistrate in Criminal Miscellaneous No.977/2007 returned a finding that the petitioner and his sister subjected the respondent to physical violence. The findings recorded by the learned Magistrate under the DV Act proceedings with regard to the petitioner and his family members subjecting the respondent to physical, emotional and economic abuse were upheld by this Court in Criminal Revision Petition No.1024/2010. That is evident from the fact that this Court did not allow the petition in Criminal Revision Petition No.1024/2010. The petitioner was directed to provide a separate accommodation as held by the trial Court in those proceedings and pay maintenance of Rs.5,000/-.
23. So far as dowry harassment allegation of the respondent, according to her, at the time of marriage, 15 MFA.NO.4420/2014 certain jewellery and articles were demanded and given as noted in Ex.R1. The trial Court rejected Ex.R1 on the ground that, it was issued one week prior to the engagement. However, the trial Court failed to note that, in his deposition in Criminal Miscellaneous No.977/2007 which was marked in the present proceedings as Ex.R5, the petitioner had unequivocally admitted that he is a signatory to that document.
24. Ex.R1 is a copy of the list of articles agreed to be paid and received by the bride and bridegroom and their parents. Ex.R1 shows that bride's parents had to give 150 grams of gold jewellery, 2½ kg. silver articles, Rs.15,000/- for clothes to the petitioner etc. The said document was marked in the DV Act proceedings as Ex.P33. Ex.R1 is stated to be signed by the petitioner also. Ex.R5 - the deposition of the petitioner in Criminal Miscellaneous No.977/2007 shows that, in his cross- examination, he admitted that on 05.12.2003, there were marriage talks, as mentioned in Ex.R1 and he has 16 MFA.NO.4420/2014 subscribed his signature on the same. The trial Court ignored said statement of the petitioner which amounts to perversity.
25. The evidence of RW.1, Ex.P1 to Ex.P4 and the findings of the competent court in Criminal Miscellaneous No.977/2007 show that the respondent was subjected to cruelty. Therefore, she had sufficient reason to stay separately. Under the circumstance, the finding of the trial Court that by staying away from the petitioner she has deprived him of marital bliss that amounts to cruelty is unsustainable in law.
26. So far as the alimony, this Court in Criminal Revision Petition No.1024/2010 on considering the sources of the petitioner, awarded maintenance of Rs.5,000/- per month and directed him to provide separate accommodation or to pay Rs.4,000/- in lieu of the accommodation charges. The respondent has accepted that. Further, admittedly the petitioner has some physical disability. He deposed that his monthly income from his 17 MFA.NO.4420/2014 business is Rs.6,000/- per month. Though it is contended that his family house generates rental income, there is no material on record to establish the same.
27. Admittedly the daughter of the couple has filed suit against the respondent for partition and that is pending before this Court in R.F.A.No.1608/2014. Therefore, the said property is the subject matter of another litigation.
28. The Hon'ble Supreme Court while dealing with Section 23(1)(b) relating to condonation of act of cruelty in para 52 of the judgment in N.G.Dastane (Dr.) v. S.Dastane1 held as follows:
"52. The next question for consideration is whether the appellant had at any time condoned the respondent's cruelty. Under Section 23(1)(b) of the Act, in any proceeding under the Act whether defended or not, the relief prayed for can 1 (1975) 2 SCC 326 18 MFA.NO.4420/2014 be decreed only and only if "where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty"
(Emphasis Supplied)
29. The earlier petition for divorce in M.C No.1603/2007 was filed on the same grounds. Admittedly, the petitioner withdrew that on the ground that the parties have decided to live together. After that they lived together for one month. After two years of such withdrawal, again the present petition is filed on the same allegation. Such withdrawal of M.C No.1603/2007 and re-union amounts to condonation of the cruelty in terms of Section 23(1)(b) of the Hindu Marriage Act. Therefore in the light of the judgment in N.G.Dastane's case the second petition was not maintainable.
30. In the light of the above discussions, this Court does not find any ground to confirm the impugned judgment and decree and allow I.A. Nos.1 and 2 of 2021. Therefore the following:
19 MFA.NO.4420/2014
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree is hereby set aside.
(iii) The petition for divorce in M.C.
No.505/2010 on the file of learned
V Additional Principal Judge, Family Court, Bengaluru is hereby dismissed with costs.
(iv) I.A.No.1/2021 and I.A.No.2/2021 are rejected.
Sd/-
JUDGE Sd/-
JUDGE Bss/UN