Karnataka High Court
Smt (Dr) Smitha vs Shri Sathyajith on 17 September, 2009
Equivalent citations: AIR 2010 (NOC) 332 (KAR.), 2010 (1) AIR KANT HCR 189, 2010 A I H C 1250, (2010) 3 ICC 275, (2010) 3 CIVLJ 130
Bench: K.L.Manjunath, B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17% DAY oF5gm-mass 2009.: _
PRESENT _ S. D
THE HONELE MRJUSTICE _ E'
AND I S 'E
TI-IE HONBLE MRs.JUsTI__cE 1.
M.E.A.No.%§;4:2;¢gQoS" G 1
BETWEEN: K S
SMT{DR) V . ..
w/o. sHR}..s'ATHYAJrr'H ' A ._
AGED4.;AEoiJfrV_3~1 YEARS NOT1171, NEAR
KARIGOWDA EDU'cjAT1'oNAL».ARcADE BEHIND
T V .. APPELLANT
(By Sri: NARAYANA ADV.)
_ SHRI SATHYAJITH
s,/_o. SR1 A.c. LAKSHMAN
"AGED ABOUT 36 YEARS
. "'vA'R/o~.F_Ncs=. 976, 'SHREYAS'
OPP QAGAN VIHAR APARTMENTS
RAJESHWARINAGAR, BANGALORE - 560098.
RESPONDENT
~ Smt: PRAMILA ASSOCIATES. ADV. FOR C/R)
THIS MFA FILED U/ S. 19(1) OF FC ACT AGAINST THE
JUDGEMENT AND DECREE DATED: 19.4.2008 PASSED IN
M.C.NO. 699/2005 ON THE FILE OF THE III ADDL. JUDGE,
FAMILY COURT, BANGALORE, ALLOWING THE PETITION
/E
%
5.8"
FILED U/S. 13[l}{ia} OF THE HINDU GE ACT
SEEKING DIVORCE.
This MFA having been heard and reserved for Orders
this day, NAGARATHNA J, pronounced the following;--.___
JUDGMENT
This appeal is filed by the p the Judgment and Decree dated:'.__ "Pin M.C.No.699/2005 by the iii-..__AddI.t§uVdge, atl~.4ia--1ygpcmtjei Bangalore by which the marriage spoleniriiaedf between the parties on 4.8.2003 atA..}'_;-iangaloret is .._dis'soylved by a decree of divorce and a sum been ordered towards 'iI"i+.€,:l:'iF;I1 Irraintenance from the date of petition till the date ofxdelcree expenses of Rs. 10,000 / --.
2. After condlonihg delay in filing the appeal, though this gjrriatter was posted for orders on I.A.No.II/2008', both the pai9ties:"'uwere'directed to appear before the court to explore a settlement. However, on 5.1.2009 the coutlsel' the respondent filed a photo copy of the certifibate of registration of marriage of the respondent with
--,,oi1e_.A"Smt.Vysha1i M.A.shok which was registered on _.v_2§7.6.2008. On the subsequent dates when the parties appeared, this court directed the parties to settle the dispute 5'?
}%/E ..w' ' amicably by the respondent offering a reasonable permanent alimony to the appellant considering the fact respondent had entered into another marriagealliance ' under the circumstances practicallyppit would'~..h»a\}e_'bee'n it difficult for the appellant to get the..4ben'efit of would have been made in her«.._faVour.. in the_ evient...cf the= ' appeal being allowed. The howexfeiel niot accept the offer made by a permanent alimony of a sum of a sum of Rs.'7,20,000/«~ maintenance.
Thereafter subsequent dates and sufficienltl the appellant to think over about: to agitate this appeal by accepting the pennaneintldalimony from the respondent, in '~ respondensthaxring married again. The appellant, dentist could not persuade herself to acceptanyd.l§lin_:'ln:;of settlement in the matter but on the other Chand uinslisted upon a judgment on merits. Under the A ..circum.stances, with the consent of parties on both sides, we
-..'.hgA1't:e'l'l€aI'd the appeal at the stage of admission itself. We " also secured the lower court records and perused the " .' .~ 3 same. he
3. For the sake of convenience the parties shall be referred to in terms of their status before the trial
4. The petitioner before the co_u'rt"A.Vti1euu respondent herein filed the petition uiidier of the Hindu Marriage Act, seeking dis;'s:olu:t'ionVgof marriage with the respondent:"".by ,a decree: of? divorce. According to the petitionej~. he to the respondent as per Hindu rites at Saraswathi Convention hangaiore. The petitioner is an wHe had studied at thevrespondent is a qualified dentist has Degree in Dental Science (MDS), _v After~Vrr_iaI*Ifiage''vthe : parties Ieft for Hyderabad Where * the pieititioinevrppwas'vvo'rB:fing. but the petitioner found that the respo'nde--n_tivvasV very rude and egoistic and adamant in her beiiaviourfpvvhile she was aiways projecting that she was ',l.\/IDS.' Acgtording to the petitioner, he was put to severe it agony and cruelty on account of the following factors ' «f«7na'rrated in the petition:
"a) The respondent never respected the petitioner, his parents and elders and always using foul and abusive language by making much of hersegf and her parents howsoever she be wrongful. 2 b] The respondent never performed the household works and never used to do the cooking and always expecting the petitioner to do such works and expected him to take her out costly restaurants as and when she liked.
c} The respondent always used to be'''irithe.__: "
dark room not coming out and conversingslvith .the- petitioner even after he came backfrom..thel.ofii¢e._ and sending messages afterii»m,essages her__3 mobile sitting there in the; room' being' 'looked it inside.
d] The respondent impossibly'i:ea3:feles,s towards household articEles"'~and to" say towards the very life itself. --. l e} The responderit vvithreatened that she would commit suicide;.
V ____ VT respcndent..'.,always used to have ialteroaiions and quarrels with the petitioner even on t:*ivial"i?.iatterséandvtried always engage him in such «things'withoutlallowing him to look after his work, wherever hiehlbe either at home or at his V ' oJj'ice[eitherpersontilly or telephonically. 1 g) 1l'he'"re-spondent never liked the things, which "the petitioner liked and she intentionally tgttseddtos dislike them so as to be dominant over " ' She used to hurt at him with all possible it words and then she used to use all imaginary language as though she was sorry for it I that and requesting for a chance to mend it.
i) She used to pack her bag and baggage and used to go off to her parents place at Hassan without the permission of the petitioner and without even informing him "
5. According to the petitioner, the respondent was always suspicious of the fidelity and character of the petitioner and she used to frequently access website called wunv.ain:i:iaicom and by seeking advice therein she used to parents and friends of the petitioner whether the petitioner had an extranrnarfiital as he was never interested in her. Withi_n a few Weeks: after, marriage, the respondent declared» that 'she'..woulid"Vneyer be if able to live with him.' and sheftoolivj out her managalasutra and of the petitioner stating that sheurguldiifiot'at:cept:'c»hpirri'- her husband and went touher _ButWher father intervened and persuaded' «her her, but on account of her adamant andvV'arrc-gai'vit'attitude, within a few days she to.Hasslanttiespite the petitioner's father advising not back as it would create difference between thelnewlypcouple. On hearing this she fell down as if she wa.sfu_nconscious thereby putting his parents to disgrace if "ridicule before several neighbours, after which the ' parents of the respondent took her to Hassan and persuaded " to attend Yoga and Pranayama classes. After a month she returned to Bangalore with her parents and then left for Hyderabad, but the petitioner found that there was no _ 7 _ change in her attitude. After three days stay at Hyderabad she returned Hassan aiong with her mother without informing the petitioner. After she returned to Hassan she wrote letters and sent E--mails to petitioner admitting her mistakes but also defending herself in the fo11o\ving<'i?.iord.s~;:VA' "I have been a rule maker both at work place and at home. Nobody__,has pointed" fnyl. V mistakes earlier because of that rtzwiii-.tiy_ to"
defend mysetf. ....... l" V'
6. On another occasion she'~.wentA'tnpthe efxtent"-of sayings' that if the petitioner was unhappy.w'ith the he was free to walk out of time' pmarriagelé yyhieh the petitioner stated' that behetter tofllive separately for the next three months stay together after things settle down_vbetyifeen she replied that she would never V' _ agree for diyoreelarid' that she wanted him to be alone for the The parents of the petitioner tried to find a isiolutionpbxylwisiting the parents of the respondent at Hassan, but any avail. On 25.7.2004 when the petitioner with his father went to the respondent's house, they found that there were other strangers in the house of the "respondent and they demanded a sum of Rs.50,00,000/-- if the petitioner wanted that he should not be troubled, otherwise the respondent would file dowry harassment case performed in a grand manner and accordingly Saraswathi Convention Centre was booked for two days on 3.8.200'3_and 4.8.2003 for the marriage and reception Rs.5,00,00{)/-- was spent towards the maniage:
expenditure on jewelry, clothes and transportation';l._NeX{?day petitioner and his parents hosted {Beogara for the invitees at Prakash Caf!§:"Bangalore,*llthewparentslll and the relatives of the res'poi*ldent.' were"-not invited.
Thereafter the parties and went to Kerala for during which period the; was not talking with they left for Hyderabad wherevvthe and again the petitioner's behaviour was'u..nc--aringl'and he was not communicating with ijuxring Atheir~~«'stay at Hyderabad she did all the househo_ld:chores as the petitioners mother had instructed employ a servant. The petitioner and the respondent once drove all the way from Hyderabad to A C_" li)a"ndeli and then to Mumbai and back to Hyderabad by car, Alhutwduring the long drive he hardly spoke to her. During W1Z)eepavali festival the petitioner refused to visit the respondent's parents on their invitation and sent the respondent alone in a night bus to Bangalore. During that "L _g/rt."
W10- period the petitioner's mother questioned the respondent's mother as to why she had not stayed at Hyderabad for a month and there were Verbal altercations between them» and thereafter the father of the petitioner directed thepprestpondent to remain at Hassan to learn Yoga and Pranayam,al.Va11d for 11/2 months there was no response"fro1*p the'-vpeti'tiOI1er. Subsequently, the parents of the'Wpre:s..ponder;tlpl' tools: _ Hyderabad and after ten daysgthe mother'ofllthe're'spiohdent'V i wanted to return along withpyrthedrespondentvfor_.a cousin's marriage at Hassan, bot the',peti:tiolne_1=demanded that she stay for a couple of:'Amont¥l;s" or take the respojridlent'l~la'ss:an. the respondent's mother insisted that should live with the petitioner, he said that" he-_ not be responsible if anything .__happleneu~to the respondent, and he also stated i that Were of the View that she should return to \>\V}i'ij;l'1..e:'her mother. Accordingly, the respondent and her ..1r1o_ther hurriedly left Hyderabad and returned to * AAHassan. After ten days she called the petitioner to ask about return to Hyderabad to which the petitioner replied that they were not made for each other and they should part ways. After five months the father of the petitioner along with some other persons visited Hassan and met the parents ii W mlgt, "1. Whether the petitioner proves that after the solemnization of marriage, the respondent treated the petitioner with cruelty?
2. Whether the respondent proves thg.t_t'.he* V. is very keen to reside with the petitioner 5' ' perform all her marital obligations and the_rejioV're,?' , the petitioner has to be directed to tat:e"her'ivba;ek'~ _ to the rnatrirnonial home? ' M '
3. Whether the responident_tis entitiecl it interim maintenance and..__ litigation exprens_es'_V_as claimed? ' V ' -- H
4. What order?''
10. After considei'ing""'th?§.;nateria1fl'o.nA. record, it answered point No.1 in the affimiativet;anchpoint in the negative and awarded 'of Rs. :;'..»'lv()',0:€.;)'6V/-p.111 and litigation charges of passed a judgment and decree dissolving. marriage ':1-i§'é3,lL'\4Al€€I1 the parties on 4.8.2003 by grangtingga dec1'ee'o'f divorce and allowing the petition on the Being aggrieved by the said judgment and V' CI?]qecrgt3&{3,vv.th,-gvgtvgrespondent/wife has preferred this appeal.
11. have heard the learned counsel for the appeflant A f_" "learned counsel for the respondent.
"log; M It is submitted on behalf of he appellant that the " .mF'amily Court was not justified in giving a finding against the appeliant that her acts and emotions amounted to cruelty. 5% ..13W against the respondent herein. It is also submitted that the Family Court was not right in holding that the appellant had deserted the respondent herein. The observations made by the Family Court with regard to Ex.P3 and:
unsustainable and that the parties lived together short period of 11/2 months only. lvlence Decree of he Family Court ought t}:§_'i'ee tin-..thfi:s appeal.
13. Per contra, it is sr.ibmitted"on behalf oi°'the"rVespondent that on the basis of the on the Family Court Was justified thatthe petitioner was entitled to a decree of divorCe':_ion' gr.'9und of cruelty and the fact that the _appellant's. _oou'n_ter~-"claim for restitution of conjugal not clearly indicates that the respondent V t'hereinv..had"~rh'ade out a case for dissolution of the marriage the Family Court granted the relief sought by thetrespondent herein by its Judgment and Decree which i does not call for any interference in this appeal.
C Having regard to the above submission, the following C " ~ "points would arise for our consideration:
"I . Whether the petitioner has proved cruelty on the part of the respondent? Q -14-
2. Whether the respondent is entitied to restitution of conjugal rights?
3. What order?"
15. From the material on record it is not in dispute that the petitioner and respondent were married on that the marriage was an arranged marriage. is a qualified Engineer and the respondentyis"a.i1)entist_Who"V is teaching in a Dental College at the time :otlthe..rna.rria-g_e;<
16. According to the peti'tioii;er ertamined as PW.1 for a few days after marriage, stayed together at Bangalore_ 'fo_r'honey moon for four days and subsequently they Hyderabad for 11/2 months as theypetitioner'wasllworking in Hyderabad. During the said periodjltliel "respondent did not behave properly with the petitionve"r«.Vas was always projecting that she is a MDS degree and used to have frequent quarrels and altercatidns with the petitioner and always had an adament l' --_atti.t1uide. According to the petitioner on one occasion, the _Vv__1_'t:Sp0ndent declared that she would not be able to live with him and threw her mangalasutra on the petitioner's fact saying that she would never accept him. It is the further contention of the petitioner that the respondent suspected 2 ,//§:* .. 15 ..
his fideiity and was suspicious about his character, and that he was having an affair with another lady. Therefore, the respondent was always doubtful about the character of the petitioner. The petitioner has also stated in hisvvedvtgdence that he is a non--vegetarian and the respondent;"d'1d«d _ nonwvegetarian food. He has in effect... .. contents of his petition in his :a_ffidaVit':4.A.by'"'way exarnination~in--chief.
17. In his cross«~examination.'x"P-Wi--has'stated that in the year 1999, he compietexd. his Course and he deniedfthiathis"coiEege'._'dayvs he had affairs with his c}assrriates._ He that he had agreed to marry one I{athyayini'wlj1o wasaddstudent of Yoga under his mother. < He._'hasE_acirnitted"that--«after negotiation of the marriage, there 'wa"b--. .or1e:'1n;ont1i_ period, during which he had talk with the respdndent.'j_ has also stated that during the said period, they went to restaurants and other places and spent time together' and that both of them were happy with each other
-- marriage. He has also admitted that the marriage " "expenses were borne by respondents father, but he denied that a sum of Rs.50,000/-- was given to him from the respondent's side for the marriage expenses for buying :3»;
.. 16 _ clothes etc. According to him, after the marriage on 5.8.2003, he Went to the respondent's parents house at Hassan on 6.8.2008 where they spent two days they went on a honeymoon to Kerala 19.8.2003. He has also admitted'th.atH_iev;ei1 00 honeymoon, the parties did not have any grievance.Withleach other and after they from the"?
respondent went to her_parents?..hous"e..for CroW3fiAAI?eativaI and since he was working that peziod of time, he went tothe resp'ond:enVt'sy.hous'e at".vHassan and then went to . fpiresplondent returned to Hyderahald mother. has stated that the respondent.stayed"iét2ith~hir;a. Hyderabad for one and a half months, during wh-ich-._pe~fiod she used to prepare food and '7*th,e.re was no'v=maid servant also nor did they have a Vwashinggriiaehirae. According to him. during their stay at I-lydcrabadlf 'initially they did not have any grievance. Then from Hydperabad, respondent came to Bangalore and when w.she'wjasHat I-Iassan, she used to enquire about him regularly.
-- after she returned from I-Iassan, she stayed With his " "parents at Bangalore for about a Week, where she did not do any household work. According to PW1, he is a non- Vegetarian and though the respondent did not like non- VIIIIV VIIIIV vegetarian food, when they went to restaurants, she used to eat the same with him. He has also admitted that at Hyderabad, he stayed at a penthouse and used the house for work at 6 am. and return home at also admitted that he did not haveiany it wife in connection with Washing cI'othe_s," 'ic1eanihgpv:he' and cooking at Hyderabad. has aI'so__ adrrxittedthatj from' V Bangalore, respondent. 'went:rtowriyderabad"alongi with her parents and she stayedt'he.re-- in February 2004 and he has denied tfiiélflt' to return to her parents' house. __0hCyt0be1"{y" Hyderabad she went to hher to d';;:tténd to Deewali Festival. He has also adrn1tted.'Vt_hatv«sh*eystayed for a day at Bangalore, his mother had an with the respondent and as a :,_$/ilewell AAdow--'--n--,«"but he has denied that she fell down V iiimother pushed her or his father told her to return to'.h.'er.5parents' house to learn yoga and then returned to rnatrimonial fokd and then returned after a month. He 2 xhas._however, admitted that after she went to her parents' the petitioner contacted her over phone and she V it "returned to his parents' house for a few days. He has stated that white the respondent was staying with him at Hyderabad, she used to disturb him in his work. But he has W18"
denied that he had stated that he would commit suicide. lie has however, admitted that he had a satisfactory marital life with his wife and he does not have any grievance about her education. She was not respecting him because of in vision in his left eye. He admits that he didfnot. "
about the same before marriage to.his__Wife;.Hlllle'r.has"d'eriied if that in order to get married to another gin-1_"1a.é, petition or to extract any dowirtyfrom resoondent filed . if a case. To a categorical questiori.:_\2a<1nether'*he_ isvviwilling to stay with the respondentfiiie l'A1_as;_ansWlere'd in the negative.
18. tliempletitioner has produced two letters order--to'v§roike..attitude of the respondent. In one of the l"et.te1'S Ville Aifespondent has sought for forgiveness *'~.__of 3_._lApetit1oner'vv--as«' she had hurt him knowingly or 'u.r1li.r10wi'ng1;§,r.f:l"' She has also said that she would like to chanege thifigsA'EjetWeen them in the following words:
"Please, Please tell me when I am wrong. if 2 be I will defend myself at that moment and argue with you. But deep down I want to change".
She has also accepted her mistakes and stated the following words: £4 A19"
"That is the problem with me when you, point out my mistake, I might try to defend_'e._y myself, may be because, my mind refusesyto accept it. But believe me, I want to mould jmyse_l--"..__ " » to your wishes. May be, it takes little -bit more time to accept because of the ego that V nurtured over these years: Please give', "
sometime to change myself.l_ Bv..tp_?ecise .critic2;?;e_ me when I am wrong, and pointwout my'--mz'stake,__""._. even UT am argumentative". "
Regarding her personalitjr. this is she heisusll herself:
"I am not trying._to.de;i°en*'cl,rny",_' mistakes. At this age, Ilhave already formed my personality. I have beengrule m_aker=,7both"at*wofic place and at Nabodyv pointjed out my mistakes.
May be "becat5e"'of". that, I, will try to defend myself, whe,nVn:is'takes are pointed out as I have , 'lalreadyfonned mgviews She has ftI4ttherV'stated .-- .foI1oWs: "Li short comings. I had even told you before' -- my short temper and stubborn etc. I am trying my level best to control She has' sought for forgiveness and apologized as "I know I have hurt you unkind words. I tried to put rnysey' in your place. May be even I would have reacted the way you have reacted. Please forgive me for those unkind words and give me one more chance. Believe me those words were not from my heart. I am really sorry A20"
for whatever I have done knowingly and unknowingly. "
In an other letter she has stated as foiiows:
"If you feel sony for manying rne, if Vyou-"'i are unhappy and repenting for manying. _ free to walk out anytime. I u.~ant.you to behappy always and no relationship cjanflourish y',there..is,_ A unhappiness. May be it will"=hurt me. "
and wounds are common in my life. I keep my ' finger crossed and I wVa.nt"you to" be alwaysywith me. I will try my level 'hes': to keep "my house happy and sweétv - 7 It is just a tD".,g;ou are hurt by the contents of '-this',"letter--;«._VI' sorry and please let me knoiv"i'fit'«hurt,.S'e.you'? , I respondent has admitted about her feelings of as follows:
_ -"May be in 1% months, we stayed together, 4, there was_ misunderstanding between us, I may I be becailsbe'-our' wavelength was not matching. You expected me to understand your needs and I expected --- you to understand my needs, without I coirnrriunicating properly about each other needs. I tried to express my dissatisfaction by calling .. you.s-elfish, egoistic, impossible and you resorted ,. tobeing silent, distancing from me, hurting each x T other. Instead of telling me, you always ' complained to your parents. "
"'L'g':1'h1'eAthen states as follows: "Why don't you realise that my mind is like steel, whatever write on it, is un--erasable, and I don't have to rewenforce my mind by wrggfiig, -21- when I am determined 'to look beautiful, communicate well and keep of health."
The respondent also admits that she had called the petitioner as being selfish, impossible, egoistic and blames the mobile phone to be the root cause of the jlflili following words: i J i "If I had not had a cell; 'may',be,I_would'-I i never been able to call you seigftsnh, irripossible;-et,__ egoistic. I will throw that mobile which isthe. rootgi cause of our problem Why don't_y"ou re.::ili;~;'e.that, ll when I say I had rejected many; a.*td",mIan9ied' you, why don't you see ituczsb comp'li'ment and it is true. Ilove youfl', _ The 'letiie_r onV"3Cl.4.2OO4, few months after the Ina-3fria.ge was residing away from the l3etiUf'C_'I1er.i""-.
It'~is also borne in mind that though according to .' ti1.e_VresApoiirient she was sent back by the petitioner within a H ~fci»:r_ymo'nffns marriage, no steps were initiated by her for seeking: 'restitution of conjugal rights except by way of h Acoiintevr 'claim in the instant proceeding before the Family ' "'._Court. The only material that we have on record is the oral " »v-evidence of the parties and the letters written prior ,?to the 5% .1 filing of the petition.
144114 22 M,
20. As opposed to the petitioners evidence, the respondent in her affidavit by way of examination--in~chief hasgaiso reiterated the contents of her statement objections-V stated that she was living happily with her petitioner, but due to interferenee""of. the p.arentsx of} petitioner differences arose between ll"'1?A;Ao*th ,of would be happy if the parentsV_pof Athe petitioriei*"' notl interfere and she has also she 'Was ready and willing to reside with the itihebmatrimonial home and she had no'in_.tention"to;separated her husband at any point 0f:~t:I;Ilf16:E:'c;tI1d"fiCTl.f3fl'('3fT01'fii' she sought dismissal of the case claimllfor restitution of conjugal rights al1.ovVve.dV.'r" ,__
21. In hercross-exarnination, she has stated that after completion of Vposfiagraduation in Dental Surgery. she lvijoined :lfii'as_ai:amba Dental College at Hassan, where she joined Farukia Dental College, Mysore, where s_i1e.yQ'oArked till the date of her marriage. That after "her separation from the petitioner since February 2004 and A --J1.i{ne 2004. she joined Oxford Dental College where she _.Vwbrked for 11 months and then she joined Rajarajeshwari Dental College as a Reader till September 2007. Thereafter _ 23 -
she joined Bangalore Institute of Dental Sciences as a reader where she was working and her gross salary is Rs.23§'€)gO0/~ pm. That she was also working at Manasa Dental Care Centre in the year 2004. But er filing her affidavit evidence, she was" u--n4em.ployedl; Sheflhas stated that after the marriage talks°were concluded, met the petitioner twice afte1'._undei?staridir1g: him"
thoroughly, she agreed, to marry:Ahim'*~and that..til_1}F'ebruary 2004 they were living togetherlglwas thrownout of the house at Hy_d'erabarj'§"theije .noVqu:arre1 between them. 'I'hereafter,_p;§tit_io1ierfs" parerits aslted her to attend the panchayat in.iri'whichllshe told that she was ready to go the :p'e.t_ition.er;»..:b~ut they did not agree. After marriage c'ame--. to"._kn'oyv from the petitioner that he had ;withy_ the cl'as--smates when he was studying and was pl ab'ot{_it She said that the petitioner is a good person, parents are interfering in their life. That the petitioner is a mild and God fearing person. S 22.__ In" her further cross~examination RW.i has stated that it "atihe instance and on the instructions of her father~in-law, mshe had addressed letters to her husband though she had no intention to do so and infact had objected to the same. She M252 petitioner, a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.
25. In the case of V.Bhagat Vs. D.Bhagat reported in (199-4}} SCC 337, it has been observed that mental in Section l3(l)(i~a) can broadly be defined which inflicts upon the other pa1jty..such suffering as would make it not poszsibiefor that live with the other. In other words,' mental cruelty§I111ist..3beloft"
such a nature that the parties --..cannot--2f_reasonably be expected to live togethers' W1'f1_ile;_ such conclusion, regard must be had tov,the_ social usta.t"trs;"'-educational level of the parties. move in, the possibility or otherw"ise«lofthelpartiesi living together in case they are already; living.._:ap'artv' and all other relevant facts and VA ctrcurristances which it is neither possible nor desirable to 'set out exhaustively.
case of Savithri Pandey Vs. Prem Chandra r.Pandey'" reported in (2002) 2 sec 73 the Hoxfble Supreme ' observed that cruelty must be distinguished from the ' V. ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be 2 9/?
__ 26 _ adjudged on the basis of the course of conduct, which would in general, be dangerous for a spouse to live with the other.
27. In the case of Parveen Mehta Vs. In_c1:rajit.V_' _ reported in (2002) 5 SCC 706 it has been thew. approach should be to take the Cl.l=.1'fI11/11:a'(.lj\/:':v€"'(3:l>.fé'%".,.'t"Of' and circumstances emerging from the"'evide»n'ce don record", and then draw a fair inferencelvllwhether Vthejpetitioner in the divorce petition has beien. subjected ._L_0v_nienta1 cruelty due to conduct of the other. . it
28. In the case of «..f;fi'ee1 Kaur reported in beenlvobserved that in physical crueltv--the«reVcan"b:e and direct evidence, but in the caseof mental cpruelty tliere may not at the same time be direct evidence. "In'~~-cases where there is no direct evidence, to probe into the mental process and mental efiectfilof incidents that are brought out in evidence. It is View that one has to consider the evidence in » if " matrimonial disputes.
In the case of Vinitha Saxena Vs. Pankaj Pandit reported in (2006) 3 SCC 778 it has been observed that as to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the 9% .,2:» -27- numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity,' gravity and stigmatic impact of it when meted out even deleterious effect of it on the mentai attitude,'7lnece's.slary maintaining a conducive matrimonial hcrrie,
30. In the case of Samar Ghosh':.Vs:.'_'JalyalllGhosh in (2007) 4 sec 511 the'lllIfi'on'bleA'«Suprerne l.j_cvau;¢r.9 aftee' reviving the English, y_AmeIicyan;A-..:(;anadian~--.g,@pdVAvvi'kustralian cases held that no ever be laid down for guidance rega1*'dv:to: But however, has illustrative but not exhaustive mental cruelty wherein it has been held should be reviewed as a whoie aridi few isolated instances over a period of years Wit} not arnotintilptoiciruelty. The ill--conduct must be persistent for a lelngthyfipenod where the reiationship has deteriorated to"an ..extent that because of the acts and behaviour of a ..spouse; the wronged party finds it extremely difficult to live it the other party any longer, may amount to mental at _..crueIty. But mere trivial imitations, quarrels, normal wear and tear of the married life which happens in day~today life would not be adequate for grant of divorce on the ground of mental cruelty.
__ 28 _
31. While referring to an earlier decision in the case of Naveen Kohli Vs. Neelu Kohli reported in (2006) 4 SCC 558 it has been observed that Public interest deiiiands not only that the married status should a.s~._,fa:r'~._Vas possible, as long as possible and whenever"po'ssibjie0, maintained, but where a marriage, beyond the hope of salvage, interest recognition of that fact. L' _
32. Keeping the above prin.eipies in"m.ind the evidence would have to be app1'eoi'ateci in instant case. From the material 'on seen that the parties have lived together u"eon'ti.Vniio11ts3y" about one and half months at Hjvdierabad their stay together has otherwise been » iiiterntiitted they were married on 4.8.2003 and have been since February 2004. What is to be seen is asluto vvhether in the brief period of their stay together, the it 'ip-etitioiier has suffered cruelty at the hands of the lhrespiondent. Though the petitioner has made several " - "allegations in the petition which are also extracted above and has repeated the same in his examinatiori--iri--chief. In his cross«examination however, he has admitted that /goth the i n2g_ parties were quite happy with each other before the marriage with regard to they getting married and both the partielsowere satisfied about each others' qualifications and careeiand the has further admitted that both of them didlniotv any grievance during honeymoon. f.e""has. g_al.so .; «adl1n1tted»l«'that during their stay together for 1% at»'ll.yderab'a;d;..VV respondent used to prepare 'there fivasvlllvneither cook nor maid servant' and nor alvgiwashing rnachine and the respondent also did Subsequently, she stayed wipthjher and though the respondent"'di'd__ food, she ate non~ it.' lllnfllellyderabad he used to leave houselatll at 4.p.m and he did not have any grievancve abolutlhis wife with regard to house hold alsodenied that he asked the respondent to _' parental house. Under these circumstances it is'difficult:'tnllconclude that the respondent has caused any kind of 'cruelty mental or physical to the petitioner. When a xspe-cific question was put as to whether he was willing to reside with the respondent, he has answered that he is not V R "willing to do so. On the other hand he has admitted that he had satisfactory marital life with the respondent. When the petitioner has failed to prove the allegations of cruelty made ;/1 a3Qa by him against the respondent and the respondent is interested in living with him, we fail to understand as to why the petitioner stated that he was not Willing to reside with her.
33. Further a reading of all the letters an'd"p'articiilarly the' '2 extracts also do not reveal that the responder;-t Vhaslicauescd any cruelty to the petitioner'ie:;ceptVniaiiing she is a strong minded personw However? vvhai; becomes apparent from her lettersp'--are'_Vth;:.tv's'11e»hasrealized that there may have been some mi.sta_i«:.es"Vonighervpaift, 'out she is willing to tryingwto control her short temper as wellas her 'a,ttit.nde. At any rate according to the respondent'; s'aid':1etters were written at the instance of her."'ifathe1>.in~lavv;"despite objecting to the same and hence read into the contents of the said In the face of the explicit admission of the petitioner regarding a satisfactory marital life and the strong A f_" xdeniai of the respondent regarding acts of cruelty on her part and considering the fact that the parties lived together 'continuously for only 1% months and the fact that respondent is interested in continuing her marital life with the petitioner, we cannot hold that the petitioner has proved L __34m
37. What follows is the relief that we can grant to the parties herein as, the reality of the present case hasilnlow to be considered by us, Considering the fact reversing the decree of divorce granted by At this stage we have to take note ofbdthev tact 'Atl:,at* after decree of divorce was granted Faniiiy Court,&""the=.p petitioner has married oncedagain anclwhetheijé the said circumstance has p_ to of irretrievable breakdown of the herein, even though the the ground of cruelty and the said ground of irretrtevahle rriarriage is not an independent ground. under" of the Hindu Marriage Act, 1955 and thence not a_ ground for seeking divorce and neither V. _ court xhaveiany powers to grant a decree of divorce 'vground. But the peculiar facts and circumstazéicets of the present case has in our view lead to sucha situation.
*..--Prior to the enactment of the Hindu Marriage Act, dd the concept of divorce under Hindu Law was absent it .. _..except in the erstwhile states of Bombay, Madras and Saurashtra under certain circumstances. But in the said Q O;//Z' M35."
enactment Section 13 deals with the relief of divorce on certain grounds. The Act was later amended to add grounds on the basis of which the wife alone could seek a decree of divorce. Normally divorce postulates two things a guilty party i.e., party who has committed':----one"--.».}§f--T specified matrimonial offences and....a.n iniioce'ht.':Vpar1y.wh_of if has suffered, in which event the innocent._ papftyu proving the guilt of the otherjparty. seelc the"rlelief--vof decreed"
of divorce. However, even in theabsence .(5f«.g1,:1Vilt oh either of the parties to the marriage_ go"; on of guilt of both the parties. there can be a_,t5rea'k.down ofriiarriage, in which eventiit notibe neciessarylwfor a party to prove the fault of thefiother to a learned author.
irretrievable breal':do'wn""of marriage is in the realm of the theloty--**--*of marriage, when the marriage has _l without any possibility of repair and therefore 'j_dissolved without looking to the fault of either party.
H 39_. Justice Krishna Iyer has figuratively expressed such a "situation in the following words:
"Daily, trivial differences get dissolved in the course of time and may be treated as teething fém Q M36...
trouble of early matrimonial adjustment. While the stream of life lived in married mutuality, may wash away small pebbles, what is to happen iniransigent incompatibility of minds breaks. flow of the stream? In such a situation we jI"1'acej_~a__ " ;. break down of the marriage itself and -the only course left open is for law to ?'€'COgT1lZt} fact and accord aclivorce." V ' A'
40. It would be relevance to noteléihaitthe in England had submitted its'i-report on-. of V breakdown of marriagegas a..cgrou:i;dll"for di\'zor'ce~a4nd in the year 1969 the Divorcellhavv passed laying down certain of ineirriage. In fact the Law Commission"Vivnllndia.in.its?'l§* report has touched upon irretriey'abl'eA» marriage as a ground of divorce relying' the M_atrir;1onial law, but same has not yet resulted inlany enactment.
Another aspect of this concept is the long separation of ~ :spouses.«, there is such a separation there would H continuity in marriage and the law would not" serve any purpose to continue such a marriage as there 'wcs_uldlV'be no reasonable probability of the spouses living "I.toge:ther as husband and wife. Section I of Matrimonial it ' * "Clauses Act, 19?3 legislated in England lays clown that after the commencement of the Act, breakdown of the marriage 2 _37__ shall be the sole ground for divorce and Section 2 formulates certain criteria of breakdown which are as follows: "(aj Adultery of the respondent, bitt'*-then' 5 _,_' the petitioner has also to establish thatfon it account he finds it impossible to live..,toith respondent; f " " . ' {b} Cruelty of the resp:ondent°~.{i."e.,, the'-~, respondent has behaved in suehla. way,.--".tha'ii the: "
petitioner cannot reasonably be" expected "to'~li1.2e--' with the respondent}; --
{c} Two p ' - ..
(d) Two years-llieirtat Vthe spouses, provided the respon.:le'n.t 'agrees to Clfeorce [this is the English '_i-ers=.:on §of..divorce_'~by njlutaal consent; {ei living" apart of the spouses '(in -this cor'£aent._ o'r_no.n~consent of the respondent irnmaterialj; _ ..the English law version of ilTGfl"i€'I)abl€ breakdown of marriage." Tifliere is lllVaEso"Vanother aspect with regard to the V the basis of irretrievable breakdown and the is envisaged under the Hindu Marriage Act under Section}_13V. This is an aspect of dissolution on the basis of Virretrievable breakdown of marriage wherein if a decree for restitution of conjugal rights is not complied within one or 'either party may seek divorce. Further even if there is no resumption of co--habitation between the parties for one year or upwards after passing of the decree for judicial % yuan A33- separation, then it is a ground for dissolution of the marriage. Therefore, Section 13{1A) of the Act recogriiees to some extent irretrievable breakdown of marriage"'un_der5 above two circumstances.
43. Under Section 13{2) of the can:alsoVVpvr.eseVia.t it a petition for dissolution of her divorce on the ground that *h_usband has"again* V i.e., he is guilty of bigarhy. This is-onep' aspect of irretrievable breakdown of marriage on the facts of the present case. 'Considering the instant case, the after' the decree of divorce was granted.by--the--I*fat:iily' even in the event of reversal of the Judgtnent. a11d"*'l)ecree of the Family Court, no ' can be given to the respondent who is the "only alternative for the respondent--wife is to reliefs against the petitioner as we cannot lose the fact that the act of contracting the second Aipmarriage by the petitioner clearly implies that he is not 'interested in continuing his marital relationship with the ' respondent and even in the absence of his proving the allegations of cruelty against the respondent, we have to conclude that there is an irretrievable breakdown of 5% £1 m39_ marriage in the instant case. However, since there is no specific provision under the Hindu Marriage Act,'...lV_9S5.,_by which we can dissolve the mairiage between -Ion' _ the said ground and in View of our reversingg» 'decree __oi"= divorce granted by the Family Court granting any relief to the parties, Veigcept stating'__tha;t parties can seek appropriate them in law. By reversing decreevtof the Family Court, in law, the parties herein continue but" is" of marriage, despite "point No.2 in favour of the conscious of the fact that this order V. injustice to an innocent third party _whoi°'is'a.Vsvtraiigert to this proceeding, namely, the wife of respondent herein. Under the V circums,tancesV "we had suggested an amicable settlement between A 'parties .
44,' this juncture we would observe that in several cases, Hon'b1e Supreme Court has put an end to the tie on the ground of irretrievable breakdown of ~~.ai'1arriage by exercising powers under Article 142 of the Constitution of India so as to ensure complete justice W40- between the parties. This court is not conferred with such a power and hence we have no option but to allow the-appeal filed by the appellant/Wife and set aside the decree of the Family Court by dismissing the 'petitionlifiled = , the respondent herein, reserving liberty the .'p.a'rtie's'to_. seek whatever remedies are avai1a'ole__ them.in"law.
45. Before parting with this--e.as'e.wepA would lvikeuto observe that the Law Commission'-- its 71st report recommended amendrfient iito xlvlarriage Act by adding irretrievab:le:'_ b1'eal{.dowri' of marriage as an additional ground; "In 55:11 was p1*ep'ared providing three years of separation as of marriage and the said bill was envisaged-_tl1atl the spouse was entitled to seek relief on" _g1'ound Alofiruretrievable breakdown irrespective of the ' factVtiiat'~be_lor.. she was at fault or was taking advantage of H Though the said bill was introduced in in the year 1987, it was not enacted. In fact the._Hon'ble Supreme Court in certain decisions have relied this ground for dissolving a marriage even when the "petitions were filed on the ground of matrimonial fault and was not substantiated enough to grant relief. (:2, fr:
_42_ present case. However, as observed above, this court is not empowered to grant relief to the paflies on that ground.
48. Accordingiy, this appeal is allowed.