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2004 DIGILAW 407 (KAR)

VIDYA RAMAKRISHNAIAH v. R. N. VIKRAM

2004-06-30

P.VISHWANATHA SHETTY, S.ABDUL NAZEER

body2004
S. ABDUL NAZEER, J. ( 1 ) THIS appeal is by the wife. In this appeal she has called in question the correctness of the judgment and decree dated 26th September, 2003 made in M. C. No. 1173 of 2000 by the Court of Principal Judge, Family court, Bangalore (hereinafter referred to as 'the Family Court') granting a decree dissolving the marriage that had been solemnized between her and the respondent. ( 2 ) FACTS in brief, as set out in the petition may be stated as hereunder: the marriage between the appellant and the respondent was performed on 20th June, 1999 according to the traditional Hindu rites at dayananda Sagar Kalyan Mantap, Bangalore. ( 2 ) FACTS in brief, as set out in the petition may be stated as hereunder: the marriage between the appellant and the respondent was performed on 20th June, 1999 according to the traditional Hindu rites at dayananda Sagar Kalyan Mantap, Bangalore. According to the petition averment, the marriage was an arranged marriage; the appellant lived and studied in United State of America where her parents lived; and after obtaining her diploma she got admitted to the Devaraj Urs Medical college, Tamaka, Kolar District; she used to accompany her parents to india and spend the summer vacation in India; she is the only daughter for her parents; the appellant was never enthusiastic over the marriage either before or during or after the marriage for the reasons best known to her; the appellant was not at all inclined to come and stay with the respondent at the matrimonial home along with his mother and aged grandmother; the respondent is a qualified doctor; he is also the only son of his parents; he lost his father when he was in infancy and it was his mother and grandmother who brought him up with affection and concern bestowing attention to inculcate good and wholesome family values and higher education which have stood him in good stead as he had a brilliant academic record; he is a soft-spoken, level headed and considerate to others both by upbringing and by his profession; since the appellant was reluctant to stay with him at the matrimonial home along with his mother and grandmother, the parents of the appellant persuaded him to stay with her with the assurance that she would spend the weekends with his mother and grandmother at the matrimonial home, as a stop-gap arrangement he agreed to live with the appellant as suggested by her parents with a fond hope that the appellant will change her attitude and eventually come and stay with him along with his widowed mother and grandmother; the said hope was totally belied by the irresponsible, contemptuous attitude and behaviour on the part of the appellant. It is alleged that the appellant is highly temperamental and least concerned towards the sensibility of others; the appellant was never co-operative in her conduct as a newly wedded spouse; very few intimate relationship were there between the spouses; the appellant by nature is quarrelsome and there used to be frequent quarrels at her instance; she used to abuse the respondent and even assaulted him on 8th July, 1999, 12th August, 1999 and 19th september, 1999 without any provocation; the appellant generally displayed scant regard not only for him but also for his mother and grandmother despite their age and status; the appellant had asked him to quit her house on 19th September, 1999 alleging that he married her with the sole purpose of going to USA for improving his professional prospects which was false to her knowledge as his professional credentials are sufficient in themselves for him to improve his prospects either in India or abroad. It is further alleged that when he visited the appellant on 29th January, 2000 to deliver some books and booklets left by one Dr. Rajesh as requested by her in her letter dated 10th January, 2000, he was insulted and ill-treated by the appellant at her house; when the mother of the respondent visited the appellant on 30th january, 2000 at her house to join him at the matrimonial home, she showed scant regard for his mother and insulted her by refusing to let her enter the house; she had not cared to respond to several suggestions made to her to visit matrimonial 'home at least on festival days like gowri-Ganesha, Dasara, Deepavali, Sankranti which show that she is not concerned for either the marital tie or to lead a normal wedded life. The appellant is habituated to pick up quarrels and violently react even in ordinary situations and had abused the respondent, his mother and grandmother; the respondent had to suffer insult, humiliation and anguish ever since the marriage and his patience and tolerance have worn thin and if the endless agony continues, he might become a mental wreck; the efforts made by the respondent and the well-wishers of the respondent to repair the damage inflicted on the marital tie by the appellant have not borne fruit and on the other hand the appellant had become more reckless, callous and arrogant which seem to feed her ego to no end; his suffering and misery have served only to make the appellant more of a sadist and unreasonable. It is also asserted in the petition that the respondent caused notice on 18th February, 2000 issued to the respondent highlighting her misdeeds, misbehaviour and arrogant attitude which was replied by the appellant by her reply notice dated 13th April, 2000 making reckless allegations against the respondent, his mother and grandmother. To the said reply notice the respondent caused rejoinder notice dated 19th June, 2000; and since the unfortunate marriage between him and the appellant had turned out to be an oppressive yoke and unwanted burden causing great suffering, hardship, worry and humiliation to him, which he was unable to bear any more, he was constrained to file petition seeking for divorce. The respondent filed her objections statement inter alia disputing the assertions made by the respondent and contending that the respondent has not made out any ground for divorce under Section 13 of the Hindu marriage Act. 1956 (hereinafter referred to as 'the Act'), she has denied the assertion of the respondent that she had assaulted him on 8th July, 1999, 12th August, 1999 and 19th September, 1999. On the other hand, it is her case that on 8th July, 1999 the respondent's mother came to her house and started fighting with her parents in front of her relatives who were present and also in the presence of servants. Thereafter, for nearly one month the respondent, who was staying in her house, used to pick up quarrels every now and then and accused her and her parents unnecessarily. Thereafter, for nearly one month the respondent, who was staying in her house, used to pick up quarrels every now and then and accused her and her parents unnecessarily. It is claimed by her that on 12th August, 1999, the respondent, in order to spoil the preplanned programme of both the respondent and herself to give surprise to appellant's mother on her birthday that is on 13th August, picked up a quarrel with the appellant in respect of inviting guests for lunch and left her house abruptly in the night. It is also alleged by her that on 15th August, 1999, her parents left for USA leaving behind the appellant to complete her M. B. B. S. course and come to America with the respondent after finishing her course and thereafter the appellant and the respondent were living in her house at Jayanagar for some days. When the appellant went to the house of the petitioner on festival day, she saw a girl called Menaka in the house of the respondent who had accompanied the respondent and his mother to Airport while her parents left to America; and the said girl was a paying guest in the house of the respondent and her access to the respondent's room and his cupboard, though seemed to be suspicious, she did not bother; and during the dinner the respondent's mother forced the appellant to sit on the other end of the table and made that girl Menaka to sit beside the respondent. In response to the allegations of the respondent that the appellant assaulted the respondent on 19th september, 1999, she had stated that on the said date the respondent came to her house and started quarreling with her on the pretext that some relatives from her side had said that her parents though knowing several politicians and officials in America, have not got the visa done to the respondent even after 2-3 months because they want him to prove his worth to be in their family and they would not get him visa for 2-3 years. It is also asserted by her that on the said date the respondent insisted on the appellant 100 thousand dollars to be deposited in his mother's name and demanded a Ford Car and made a suggestion for transfer of their Jayanagar house, where she was living, in his mother's name; when she told him that his demand was unreasonable, the respondent got enraged against her, caught hold her by her hair and pulled her around and he physically assaulted her in the house; he damaged the phone table by smashing the telephone, etc. By this the appellant having been completely depressed, left to her hostel at Kolar on 20th September, 1999 to complete her examination and she never returned till 2nd January, 2000; she has asserted that there was a demand by the respondent and her mother for dowry and for presentation of car etc. , she has denied that she was never co-operative with the respondent and she is by nature quarrelsome and there used to be frequent quarrels at her instance and she used to abuse him, etc. ( 3 ) ON the basis of the pleadings, the Family Court framed three points for consideration. They read as hereunder:1. Whether the petitioner proves that he was subjected to cruelty by the respondent after the solemnization of marriage?2. Whether the petitioner proves that respondent has deserted him for a continuous period of not less than 2 years immediately preceding the presentation of the petition?3. Whether the petitioner is entitled for decree of divorce as prayed for? ( 4 ) WHILE the Family Court answered points 1 and 3 in favour of the petitioner, answered point No. 2 against the petitioner. The respondent examined himself as P. W. 1 in the course of the proceedings before the family Court. However, the appellant did not subject herself for crossexamination in the course of the proceedings, though she had filed her affidavit. The Family Court, on consideration of the evidence on record, as noticed by us earlier, found that the respondent had made out a case for dissolution of marriage on the ground that the appellant had treated him with cruelty. However, the appellant did not subject herself for crossexamination in the course of the proceedings, though she had filed her affidavit. The Family Court, on consideration of the evidence on record, as noticed by us earlier, found that the respondent had made out a case for dissolution of marriage on the ground that the appellant had treated him with cruelty. ( 5 ) SRI M. V. Vedachala, learned Counsel for the appellant, challenging the correctness of the judgment and decree passed by the Family Court strongly submitted that the entire consideration of the evidence by the family Court to record a finding that the appellant has treated the respondent with cruelty, is totally contrary to law. It is his submission that the Family Court has totally misunderstood and misread the evidence on record and proceeded to pass the impugned decree. According to the learned Counsel since the burden was on the respondent to make out a case that the appellant has treated him with cruelty, the Family Court should have assessed and ought to have appreciated the evidence of the appellant on merits without being influenced by the consideration that the appellant has not made herself available for cross-examination. He submitted that if the evidence of the respondent is properly appreciated it would be clear that there is no truth in his assertion that the appellant had abused and insulted him, as claimed by him. Alternatively, he submitted that even assuming that the assertion made by the respondent that the appellant had assaulted him on 8th July, 1999, 12th August, 1999 and 19th September, 1999 is true, it will not amount to cruelty within the meaning of Section 13 (1) (ia) of the Act. In support of his submission he relied upon a decision in the case of Smt. Nalini Sunder u G. V. Sunder, ILR 2002 Kar. 4734 : AIR 2003 Kant. 86. in the case of Dr. A. R. Aruna Kumar v Smt. Nalini, ILR 2003 Kar. 238 (DB): AIR 2003 Kant. 26 (DB) and in the case of Smt. Prabhavathi v K. Somashankar, ILR 2002 Kar. 3505. ( 6 ) HOWEVER, Sri Narayan, learned Counsel appearing for the respondent while strongly supporting the impugned judgment pointed out that the Family Court was fully justified in passing the order on the basis of the evidence available on record. 26 (DB) and in the case of Smt. Prabhavathi v K. Somashankar, ILR 2002 Kar. 3505. ( 6 ) HOWEVER, Sri Narayan, learned Counsel appearing for the respondent while strongly supporting the impugned judgment pointed out that the Family Court was fully justified in passing the order on the basis of the evidence available on record. He farther submitted that the fact that the appellant has failed to participate in the proceedings before the Family Court in spite of the opportunity made available to her on several occasions, would clearly show that she was not in a position to contest the grievance made by the respondent against her. Therefore, he submits that the Family Court was fully justified in allowing the claim of the husband. ( 7 ) IN the light of the rival submissions of the learned Counsels appearing for the parties, the only question that would arise for consideration in this appeal is as to whether the conclusion reached by the Family Court that the respondent has made out a case for dissolution of marriage on the ground that the appellant has treated him with cruelty? Section 13 (1) (ia) of the Act provides that any marriage solemnized whether before or after commencement of the Act, may, on a petition presented either by the husband or wife, be dissolved by a decree for divorce on the ground that other party has, after the solemnization of the marriage treated, the petitioner with cruelty. The ground made out by the respondent for seeking dissolution of marriage is that the appellant treated him with cruelty. The respondent has referred to the several instances where the appellant is stated to have been treated him with cruelty. The instances are, the appellant has assaulted him on three occasions and has abused him and his mother and has failed to live in the matrimonial home immediately after the marriage and as a result he was compelled to stay with the appellant in her house where she had treated him with utter contempt and she was non-co-operative with him as far as the matrimonial life and she has failed to fulfil the aspirations of a husband so far as matrimonial life is concerned. It is also the case of the Counsel for the respondent that the averments made in the objections statement making reckless allegations made by the appellant against the respondent and his mother alleging that they are demanding huge dowry and also a car, etc. , also amounts to cruelty. The word 'cruelty' has not been defined in the Act. However, the meaning that is required to be attached to the word 'cruelty' employed under Section 13 (1) (ia), has been the subject-matter of pronouncement by the Apex Court. The Apex Court has taken the view that the mental cruelty referred to under Section 13 (1) (ia) of the Act can be broadly defined as a conduct which inflicts upon the other party and such mental pain and suffering as would make it not possible for that party to live with the other. In other words, it is laid down that the mental cruelty must be of such nature that the parties cannot reasonably be expected to live together and while deriving at such conclusion the Courts should require to have regard to the social status, educational level of the parties, the society that they move in, the possibility or otherwise of the parties ever living together, in case they are already living apart and all other relevant circumstances. In a given case either of the spouses has treated the other with cruelty or not, is a matter required to be determined depending upon the facts and circumstances of each case and depending upon the nature of cruelty meted out by one spouse to the other. It is not possible to expect that the nature of cruelty alleged would be different from case to case. While deciding these things, as noticed by us earlier, the Courts must keep in mind the broad view of the entire matter and appreciate pleadings and assess the evidence on record and decide as to whether the cruelty pleaded has been established or not. In this connection, it is useful to refer to the observation made by the Supreme Court in the case of Dr. N. G. Dastane u Mrs. S. Dastane, AIR 1975 SC 1534 : (1975)2 SCC 326 . In this connection, it is useful to refer to the observation made by the Supreme Court in the case of Dr. N. G. Dastane u Mrs. S. Dastane, AIR 1975 SC 1534 : (1975)2 SCC 326 . while considering the question as to whether an order for judicial separation is required to be made in section 10 (1) (b) of the Act prior to 1976 amendment on the ground of cruelty pleaded by the husband. At paragraph 32 of the judgment it is observed by the Apex Court as follows.-". . . The Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near ideal one will probably have no occasion to go to a matrimonial Court for even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v Gollins, (1963)2 All ER 966: "in matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people" ". ( 8 ) IN the case of V. Bhagat v Mrs. D. Bhagat, AIR 1994 SC 710 : (1994)1 SCC 337 . the Supreme Court at paragraphs 17 and 18 of the judgment, has observed as follows.-"17. Mental cruelty is Section 13 (1) (ia) can broadly be denned 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 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 that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. 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 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 not 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. 18. At this stage, we may refer to few decisions of this Court rendered under Section 13 (1) (ia ). In Shobha Rani v Madhukar reddi, AIR 1988 SC 121 : (1988) 1 SCC 105 , Justice K Jagannatha shetty, speaking for the Division Bench, held (at p. 123 of AIR): "section 13 (1) (ia) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough as per se unlawful or illegal. Then the impact or the injuries effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord denning said in Sheldon v Sheldon, (1966)2 All ER 257, "the categories of cruelty are not closed". Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty" ". ( 9 ) KEEPING in mind the above principles in mind, now we will proceed to examine the merits of the contentions advanced by the learned counsels appearing for the parties in this appeal. ( 10 ) WE have been taken through the evidence of the respondent and also the judgment passed by the Family Court. In our view, there is no merit in this appeal. P. W. 1 in his evidence has stated that his marriage with the appellant was performed as per the Hindu rites at Bangalore on 20th June, 1999. In his evidence he has clearly stated that the appellant had assaulted him on 8th July, 1999, 12th August, 1999 and 19th September, 1999. He has also stated that the appellant used to abuse him and insult him and was not co-operating with him to discharge her marital obligations and though he lived with her in her house at Jayanagar with a fond hope that she would amend her ways and co-operate with him to lead a happy matrimonial life, it did not bear any fruit. Though the respondent has been elaborately cross-examined, nothing substantial has been elicited to discredit his evidence with regard to the nature of the treatment given to him by the appellant by way of insult, abuses and the assault made against him. It is also necessary to point out that the appellant has failed to step into the witness-box and refute the allegations made against her by the respondent in the petition and also in the course of his evidence. Further, the appellant in her objection statement has made serious allegations against the respondent and her mother alleging that they have demanded huge dowry and a car. As noticed by us earlier also, she has not stepped into the witness-box and made herself available for cross-examination. Further, the appellant in her objection statement has made serious allegations against the respondent and her mother alleging that they have demanded huge dowry and a car. As noticed by us earlier also, she has not stepped into the witness-box and made herself available for cross-examination. Under these circumstances, it is difficult to accept her version that there was a demand made by the respondent and his mother for dowry and for a car, etc. The Family Court, on consideration of the evidence on record, as noticed by us earlier, has accepted the plea of the respondent that the appellant has hit him on three occasions referred to above and abused and insulted him. In the absence of the appellant stepping into the witness-box and subjecting herself to cross- examination, we do not find any error on the part of the Family Court in relying upon the evidence of the respondent in respect of the assertion that the respondent has treated him with cruelty. We do not find any inherent improbabilities or contradictions in the evidence of the respondent, which would persuade us to reject his evidence with regard to the grievance made by the respondent against the appellant. Therefore, we are of the view that the judgment and decree passed by the Family Court dissolving the marriage between the appellant and the respondent on the ground of cruelty, does not call for interference in this appeal. In the light of the above conclusion reached by us, we are of the view that none of the decisions relied upon by the learned Counsel for the appellant is of no assistance to him. However, we would proceed to briefly refer to the said decisions. In the case of Nalini Sunder, the husband filed the petition on the ground that the wife started quarreling with him on the ground that sufficient water was not stored in the house and the second contention was that on one occasion when the husband asked for a cup of coffee, she replied him that he need not tell her of the duties of a wife. This Court held that those incidents will not constitute cruelty within the meaning of Section 13 (1) (ia) of the Hindu Marriage act. The Court had held that mental cruelty must be of a nature that parties cannot be reasonably expected to live together. This Court held that those incidents will not constitute cruelty within the meaning of Section 13 (1) (ia) of the Hindu Marriage act. The Court had held that mental cruelty must be of a nature that parties cannot be reasonably expected to live together. In that case, the couple continued co-habitation notwithstanding the alleged incident. Therefore, the said decision is not applicable to the facts of this case. ( 11 ) IN the case of Prabhavathi, this Court held that standard of proof required for granting of divorce on the ground of desertion should not be merely on preponderance of probabilities, but proof beyond reasonable doubt. In the said case, the Family Court has rejected the claim for dissolution of marriage on the ground of desertion. The petition is allowed only on the ground of cruelty. Therefore, the said decision is not applicable to the facts of the case. ( 12 ) IN the case of Dr. A. R. Aruna Kumar, this Court has held that the expression "treated the appellant with cruelty" clearly signifies that the opposite party must have been guilty of a conduct as could be said to be something more than ordinary wear and tear of married life. In that case, the wife has accused the husband of being drunkard and drug addict. On the facts and circumstances of the said case, the Trial Court had held that it was not possible to grant the decree to the husband on the ground that the allegation made by the wife has caused mental cruelty. The said decision is also not applicable to the facts of the case. In the light of the above discussion, we are unable to accede to the submission of Sri Vedachala that the finding recorded by the Family court that the appellant has treated the respondent with cruelty is not called for on the basis of evidence on record. In our view, as noticed by us earlier, the evidence of the respondent clearly establishes that the appellant, by her conduct of assaulting the respondent on three occasions referred to above and by insulting him as alleged by the respondent, has treated him with such cruelty which makes him impossible to continue in the matrimonial home with the appellant. In our view, as noticed by us earlier, the evidence of the respondent clearly establishes that the appellant, by her conduct of assaulting the respondent on three occasions referred to above and by insulting him as alleged by the respondent, has treated him with such cruelty which makes him impossible to continue in the matrimonial home with the appellant. No doubt, as contended by the learned Counsel for the appellant, the appellant has made very serious grievance against the respondent and his mother alleging that they have demanded dowry and also a car as a condition precedent to perform the marriage. The appellant has not examined herself in the course of the proceedings to speak to the said allegations. Under these circumstances, we are of the view that the said allegations are made against the respondent and his mother without any basis whatsoever. In our view, since the evidence of the respondent itself is sufficient to prove that the appellant has treated him with cruelty, we find it unnecessary to consider that the allegations made by the appellant against the respondent in the objection statement also should be taken into account to support our conclusion that the appellant has treated the respondent with cruelty. The only other question that remains to be considered is whether, as contended by Sri vedachala, the three instances of assault alleged by the respondent is not sufficient to come to the conclusion that the appellant has treated the respondent with cruelty. The incident regarding the assault has taken up within an interval of three months, i. e. , on 8th July, 1999, 12th august, 1999 and 19th September, 1999. May be a single instance of assault, either by husband or wife, as a result of outburst or emotion or quarrel, the Courts may not be justified in taking the view that the offending spouse has treated the other with cruelty. May be a single instance of assault, either by husband or wife, as a result of outburst or emotion or quarrel, the Courts may not be justified in taking the view that the offending spouse has treated the other with cruelty. But, if the wife who has good education and hails from a good background, from the very day of the marriage makes the life of the husband difficult to have a matrimonial home and refuse to stay with him in matrimonial home and does not co-operate with him to have the happiness or satisfaction of the married life, and as a result, if the husband is compelled to stay with the wife in her house in an attempt to persuade her to change her attitude and join him to lead a happy matrimonial life and in the process if he has to be beaten up by the wife on three occasions for no fault of him, and thereafter if the attitude of the wife has not changed, we find it difficult to accept the submission of Sri Vedachala that the assault by the wife on the husband on three occasions cannot be constituted as cruelty to make a decree for divorce under Section 13 (1) (ia) of the Act. Therefore, in the light of the above conclusion, this appeal is liable to be rejected. ( 13 ) FURTHER, we find that it is also necessary to place on record as to what has transpired in the course of hearing of this appeal. On 15th march, 2004, when the appeal came up for admission, in an effort to settle the dispute amicably between the parties if possible, we verified from Sri Vedachala, whether the appellant would be willing to settle down in the matrimonial home along with the respondent at Bangalore. However, Sri Vedachala submitted before us that while the appellant is willing to take care of her husband at USA, if he was willing to join her, and the appellant was not willing to come and settle down at Bangalore. We find it is useful to extract to the proceedings recorded by us on 15th march, 2004. However, Sri Vedachala submitted before us that while the appellant is willing to take care of her husband at USA, if he was willing to join her, and the appellant was not willing to come and settle down at Bangalore. We find it is useful to extract to the proceedings recorded by us on 15th march, 2004. The same reads as follows.-"when this appeal came up for admission, we wanted to know from Sri Vedachala, learned Counsel appearing for the appellant whether the appellant would be willing to come and settle down in the matrimonial home along with her husband. Sri Vedachala today submits before us that the appellant is not willing to come down to Bangalore and settle down in Bangalore, while she is willing to take care of her husband at United States, if he is willing to join her. The respondent and his mother are present before the Court. Respondent submitted that he is doing his Post-graduation in m. D. Pharmacy Course at Kempegowda Institute of Medical sciences at Bangalore and he had one more year to complete his course. Though he expressed before us some of the unhappy events that had taken place on account of the act of the appellant, he submitted that if the appellant is willing to co-operate with him and live with him by maintaining the matrimonial peace, he has no objection, notwithstanding what was happened earlier, to take her back and live with her. Mother of the respondent who is before us also submitted to that effect. The proceedings of the Trial Court indicate that the appellant did not appear before the Court in spite of several adjournments. Having regard to the fact and circumstances of the case, list this appeal on 12th April, 2004 to explore the possibility of settling the dispute between the parties amicably. . . ". ( 14 ) ON 13th April, 2004 when the matter was again taken up for consideration, a memo was filed by Sri Vedachala stating that the appellant had agreed to live with the respondent in USA and will take care of him in America. The said memo reads as follows.-"the appellant humbly submits that she has agreed to live with the respondent in the USA and will take care of him in america, in the event of the respondent agreeing to live with the appellant in the USA". The said memo reads as follows.-"the appellant humbly submits that she has agreed to live with the respondent in the USA and will take care of him in america, in the event of the respondent agreeing to live with the appellant in the USA". ( 15 ) ON the said date since we felt that one more opportunity should be given to the appellant to make up her mind as to whether she would be willing to live with her husband in India in the matrimonial home, we adjourned the hearing of the appeal to 4th June, 2004. However, the appeal was listed thereafter only on 16th July, 2004. On the said date on the request made by the learned Counsel for the appellant, as a last chance, we adjourned the appeal to 30th July, 2004 expecting that the dispute between the parties may be settled. On all these dates, though the respondent and his mother were present before the Court, the appellant was not present though we had directed the appellant also to be present before this Court on 12th April, 2004. The Family Court, at paragraph 3 of the judgment, has also observed that after the appearance of the parties, the matter was referred to reconciliation and the reconciliation had failed. As noticed by us earlier, the appellant has not entered the witness-box. The very facts set out above, apart from our conclusion reached above that the Family Court was justified in recording a finding that the appellant had treated the respondent with cruelty, we are satisfied that the appellant is not interested in retaining the marriage by living with the respondent in the matrimonial home. ( 16 ) IN the light of the discussions made above, we are of the view that this appeal is liable to rejected as one devoid of merits. Accordingly, it is dismissed. However, no order is made as to costs. --- *** --- .