Karnataka High Court
Sri Victor Sebastian S/O Hilari Karkada vs Smt. Thorulatha D/O John Bangera on 24 February, 2006
Equivalent citations: II(2006)DMC844, ILR2006KAR3097, AIR 2006 (NOC) 858 (KAR), 1997 (4) SCC 565, 2006 (3) AIR KANT HCR 270, 2006 A I H C 1742, (2006) 2 DMC 844, (2006) 4 ICC 486, (2006) 2 HINDULR 264, (2006) 3 KANT LJ 257, (2006) 2 KCCR 984, (2006) MATLR 609, (2007) 1 CIVLJ 554, (2006) 3 CIVILCOURTC 229, (2006) 4 RECCIVR 577, (2006) 4 CURCC 36, (1997) 1 CURLR 809, (1997) 1 RAJ LW 141, (1997) 2 LABLJ 26, (1997) 2 SCALE 569, (1997) 2 SCR 472 (SC), (1997) 2 SERVLR 378, (1997) 30 ALL LR 389, (1997) 33 BANKLJ 146, (1997) 3 JT 500 (SC), (1997) 3 SUPREME 312, (1997) 4 LAB LN 5, (1997) 76 FACLR 176, 1997 ADSC 3 408, 1997 LABLR 409, 1997 SCC (L&S) 1241
Author: R. Gururajan
Bench: R. Gururajan, C.R. Kumaraswamy
JUDGMENT R. Gururajan, J.
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1. Sri. Victor Sebastian is before us aggrieved by the Judgment and Decree dated 11.8.2005 passed in MC No. 24/2002 on the file of the Civil Judge (Sr.Dn.), Udupi in this appeal.
2. The appellant-husband married respondent on 8.5.1996 at U.B.M. Jublee Church, Udupi as per the customary rights of Protestant Christians. Parties are related to each other. The respondent is a daughter of appellant's mother's younger sister. Parties were knowing each other from their childhood and at the time of marriage, the appellant was working at Dubai. After marriage, at the respondent's instance, the newly married couple had rented a house and they were staying together at Udupi. After four months of the marriage, the respondent had vacated the rented house and gone to her parents house, taking away an advance deposit amount paid by the appellant to the landlord in the. matter. She did not join her husband. The respondent in the light of the amendment to the Indian Divorce Act 2001 filed a petition Under Section 10(1)(x) of the Divorce Act 1869 before the learned Judge alleging cruelty in the matter. Objections were filed. Witnesses were examined. The learned Judge, after hearing has chosen to allow the application filed by the respondent-wife in terms of the impugned order. This order is challenged before us.-
3. Sri. Vishwajith Shetty, learned Counsel appearing for the appellant argues that in terms of the evidence available on record, it cannot be said that Section 10(x) is attracted to the facts of this case. According to him/ there is no cruelty as such warranting divorce in terms of the findings of the learned Judge. He further argues that the Senior Civil Judge of Udupi Court has no jurisdiction in terms of the definition under the 1869 Act. He wants our interference.
4. Sri. Ananda Shetty, learned Counsel for the respondent supports. the order of the learned Judge.
5. After hearing, we have carefully perused the material placed on record. . An application Under Section 10(1)(x) of Divorce Act, 1869 as amended by Act of 51/2001 was filed before the Civil Judge, Sr. Division, Udupi in M.C. No. 24/2002. The respondent-wife alleged in the petition that her husband was initially employed at Dubai and thereafter he started residing with the Page 0245 respondent in a rented house in Udupi. According to her, her husband is addicted to drinks and he used to assault her very badly. He did not returned to Dubai after marriage and he was without job. She has also stated that the husband used to demand ' money from ' her for drinking and he ill-treated her. Her life became miserable. She was compelled to return, to her parents house. She waited for some time hoping that the husband would return back but unfortunately, the ill-treatment continued. It was in these circumstances, she filed a petition as mentioned earlier. Objection statement was filed stating therein that after marriage the appellant-husband helped his younger brother to set up a separated welding and machine shop for which the respondent and her parents raised objection. Mis-understanding between the appellant and respondent increased. He also stated that he did not get Visa and in those circumstances, he has to come back to Udupi. He has to take care of his father and sister. His wife was not ready to come and join the husband-appellant. He denied other allegations. Evidence was recorded. After evidence, the learned Trial Judge has chosen to grant the decree in terms of the impugned order.
6. Let us see as to. whether the said findings are justifiable or not in the given circumstances. Two issues were framed and they were answered in favour of the wife. As mentioned earlier/ two contentions are raised. One is with regard to Jurisdiction of the Courts at Udupi and the second contention is with regard to the applicability of Section 10(x) of the Act to the given case on hand.
7. In so far as question No. 1 is concerned, .one has to see the definition of a District Judge and a District Court in terms of the Statute. The said definition reads as under:
'District Judge' means a Judge. of a principal Civil Court of original jurisdiction however designated.
'District Court' means, in the case of any petition under this Act/ the Court of the District Judge within 'the local limits of whose ordinary jurisdiction, (or of whose jurisdiction under this Act the marriage was solemnized or) the husband and wife, reside or last resided together.
8. A combined reading of these two definitions would go to show that notwithstanding the nomenclature, the "original Judge" in terms of the definition would have jurisdiction in such matters. Admittedly, the cause of action has occurred in Udupi in terms of the material on record. In the light of the definition and on the facts of this case, we have no hesitation in accepting the argument of the respondent that Udupi Court has jurisdiction 'in the matter.
9. Section 10(1)(x) was introduced in terms of the Amendment Act. The said Section reads as under:
10. Grounds for dissolution of marriage: (1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent-
(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.
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10. A reading of the said provision would show that cruelty is to be of such nature which provides for an apprehension in the mind of a spouse. Pleadings and evidence on record would reveal that the husband was regular in drinking alcohol. The evidence on behalf of the respondent-wife also would show that he used to beat her. after consumption of alcohol and there was a screaming sound from the side of the wife. This evidence is not seriously challenged by way of an. acceptable material before the learned Trial Judge. In such matters of cruelty, it cannot be accepted of any neighbour to give evidence as argued by the appellant, since the neighbour also may be scared of his drunkard neighbour. Non examination of neighbour by itself would not wipe out the other evidence' available on record. If the husband after drinking starts beating his wife, it cannot be said that the said act of the husband is not cruel enough warranting an apprehension to the safety of that, woman. Learned Judge, after noticing these aspects of the matter rightly, in our view, has chosen to accept the case of the wife. The evidence . on record also would show, that the husband-appellant is a regular visitor of the wine shop available in Udupi. His evidence of 'sahaya' has rightly been not considered by the learned Judge in the case on hand. In these circumstances, we are satisfied that a case in terms of Section 10(1)(x) is made out by the wife in the case on hand.
11. At this stage, we must also notice certain leading Judgments with regard to cruelty in terms of the Hindu Marriage Act. Though cruelty has. to be considered in terms of Hindu Marriage Act, the broad principles can be accepted by this Court for the purpose of cruelty in terms of the Act.
12. (Parveen Mehta v. Inderjit Mehta) is a Judgment of the Supreme Court. In the said case in para 21, the Apex Court has ruled that "cruelty for the purpose of Under 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 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."
13. In (Savitri Pandey v. Prem Chandra Pandey), the Supreme Court has considered the case of cruelty in para 6. The Court Page 0247 ruled that cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial ' life of the other. "Cruelty", therefore,' postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party.
14. In the case on hand, the conduct of the husband in terms of the evidence would definitely go to show that he has caused cruelty causing apprehension in terms of Section 10(x) of the Act. Beating or assaulting or causing any bodily injury by a drunkard husband has to be viewed an act of cruelty causing apprehension in the mind of the wife as otherwise women are not safe in the hands of such drunkard husbands. The pleadings and the evidence support this finding in terms of the order of the learned Judge.
15. No grounds. Appeal stands reacted.