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2003 DIGILAW 992 (KAR)

G. SIDDAGANGAPPA v. R. SHALLAJA

2003-11-27

RAM MOHAN REDDY, S.R.NAYAK

body2003
RAM MOHAN REDDY, J. ( 1 ) THIS appeal is filed by the husband who has lost before the Court of the Prl. Judge, Family Court, Bangalore (for short the Family Court) by a dismissal of his petition seeking the relief of dissolution of the marriage solemnized between the parties on 15-5-1980. ( 2 ) THE appellant filed M. C. No. 317/ 1991 under Section 13 (1) (i-a) of the Hindu marriage Act 1955 (for short the Act) seeking dissolution of marriage and grant of divorce on the ground of cruelty said to have been meted out to him by his wife. In support of his case, the husband enumerated an instance and incident against the wife, branded her as an unchaste woman, keeping illicit relationship with one Mahadeva. The appellant had made known of this incdent to his in-laws, who, it is alleged, advised his wife, who in turn repented for the same and agreed to mend her ways. It is also alleged that on 17-2-1991, the wife took her two children and left the matrimonial home, without any reason, and despite notice issued to her, she failed to return to the matrimonial home. The Respondent wife, on notice, by the Family Court entered appearance and resisted the petition denying all the material allegations set out in the petition except the factum of marriage and birth of the two sons from out of the wedlock. She contended in her written statement that it was the respondent who had driven her out of the house along with her two children, due to which she had to take refuge at her parents home. She also contended that she had on 26-8-1992 filed M. C. No. 63 of 1992 for restoration of conjugal rights. ( 3 ) IN the premise of the aforesaid pleadings of the parties, the Familycourt framed one issue which is extracted below :"whether the petitioner has made out a case to grant decree for divorce under Section 13 (l) (ia) of the Hindu Marriage Act, 1955 ?" ( 4 ) THE Family court recorded the evidence of the appellant husband as PW-1 and marked the marriage invitation card as Ex. P1. The appellant closed his side with his sole testimony. The wife did not choose to enter the witness box nor exhibit any document. P1. The appellant closed his side with his sole testimony. The wife did not choose to enter the witness box nor exhibit any document. The Family Court appreciating the evidence of PW-1 held that it was deficient and the allegations were not supported by any independent witness and therefore, dismissed the petition. Hence, this appeal by the husband. ( 5 ) THE grievance of the appellant is that the wife having not entered the witness box and tendered evidence, it ought to be inferred that the wife had consented for the divorce. Another contention advanced is, despite notice issued to the respondent wife and even during the pendency of proceedings, the respondent did not return to the matrimonial home, but took a transfer to doddaballapur, which pre-supposes that the wife is disinterested in living with the husband. The learned counsel further sought to characterise as, perverse, the finding of the Family Court that in the absence of impleading Mahadeva to the proceedings, there was no proof of adultery committed by the respondent-wife. ( 6 ) HAVING heard the learned counsel for the appellant, the only question that arises for determination in this appeal is whether the dismissal of the petition by the Family court is justified in the facts and circumstances of the case ? ( 7 ) BEFORE answering the said question it would be useful to allude to the observations of the Supreme Court in Dr. N. G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534 . The Apex Court observed that the bu den lies on the petitioner to establish his or her plea that the spouse had meted out cruelty to the petitioner and with the standard of proof in matrimonial cases under the Act is not to establish the charge of cruelty beyond reasonable doubt, but merely one of weighing the various probabilities to find out whether the preponderancy is in favour of the existence of the said fact alleged. . . . . . . ". In V. Bhagat v. D. Bhagat, (1994)1 SCC 337 : ( AIR 1994 SC 710 ), it was observed thus :"mental cruelty in Section 13 (l) (ia) 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 V. Bhagat v. D. Bhagat, (1994)1 SCC 337 : ( AIR 1994 SC 710 ), it was observed thus :"mental cruelty in Section 13 (l) (ia) 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 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 accusation and allegations, regard must also be had to the context in which they were made. " ( 8 ) THE position of law is well settled in the edict of the Apex Court that levelling disgusting accusation of unchaste and indecent familiarity with a person outside the wedlock and allegations of extra-marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. The aspersion of infidelity attributed to the wife, an educated woman, would amount to insult, adding to injury of the worst kind, sufficient to substantiate cruelty. The allegation of the husband in the claim petition adverted to by the Family Court while recording the finding that they tantamount to cruelty by the husband to the wife, cannot be said to be perverse. The allegation of the husband in the claim petition adverted to by the Family Court while recording the finding that they tantamount to cruelty by the husband to the wife, cannot be said to be perverse. The appellant husband appears to have persisted in his endeavour to hurt the feelings of the wife so as to cause reasonable apprehension in the mind of the wife that it would be dangerous for her to live with the husband. ( 9 ) THE appellant husband has miserably failed to establish the allegation of cruelty meted out to wife by him by not adducing, substantial legal evidence. The plea of the appellant husband has remained a plea without proof. The appellant husband cannot tender his witness as a sole witness and contend that on such evidence alone, the allegation of cruelty should stand established. The husband has not taken any pains to substantiate the allegation against the wife through an independent, uninterested witnesss testimony. The standard of proof is one of preponderance of probability, even if applied to the evidence of husband, the sole witness, the preponderance in favour of the existence of facts alleged is not established. ( 10 ) THE findings recorded by the Family court, in our considered view are justified and there appears to be no infirmity in law or vitiated on the -ground of perversity calling for interference by this Court. The contentions urged by the learned counsel for the appellant do not merit consideration and are rejected. The appeal has to inevitably fail. Consequently, the appeal is dismissed at the stage of admission. No costs. Appeal dismissed. --- *** --- .