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2009 DIGILAW 50 (KAR)

S. Prasanna Kumar v. R. Saraswathi

2009-01-22

B.V.NAGARATHNA, K.L.MANJUNATH

body2009
Judgment :- K.L. Manjunath, J. Appellant was the petitioner before II Additional Principal Judge, Family Court, Bangalore. He filed the aforesaid petition under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 requesting the Court to dissolve the marriage solemnised between the appellant and respondent on 18-11-1993 at Lalithmahal Kalyana Mantapa, New BEL Road, Bangalore. 2. As per the petition averments, marriage between the parties was solemnised on 18-11-1993 at Bangalore and after the marriage parties lived together in the house of the father of the petitioner and immediately after the marriage respondent-wife demanded petitioner to permit her to continue her studies since she was studying in II year B.Com. at the time of marriage. Petitioner agreed and permitted the respondent to complete her B.Com. Degree. After completion of her graduation; she requested the petitioner to permit her to join computer classes. Petitioner agreed to send her to computer classes. According to him. she started harassing him; after graduation both mentally and physically and she started coming home at late night after finishing her computer classes. When the same was questioned; she gave evasive reply. It is also alleged that on 11-5-1995 an attempt was made by the respondent to commit suicide; when the petitioner was away from the house. She was immediately admitted to M.S. Ramaiah Hospital, Bangalore and also intimated to her parents. After discharge also she threatened to commit suicide at any time and the said threat has created an apprehension and tension in the mind of the petitioner and his family members. On account of the stress and strain, petitioner who was in B.E. course could not complete his B.E. graduation. Contending that the respondent has left the matrimonial home on her own in the month of May 1999, petition was filed on the ground of cruelty and desertion. 2. 3. Respondent-wife contested the case. She has denied the allegations made by the petitioner. According to her, petitioner pressurised her to continue her studies and till she completes her studies petitioner told her that marriage should not be consummated. Therefore, marriage has not been consummated even though marriage was solemnised on 18-11-1993. It is also alleged by her that; after completion of graduation she was asked to join computer course by the petitioner and she was not treated by the members of the family of the petitioner properly. Therefore, marriage has not been consummated even though marriage was solemnised on 18-11-1993. It is also alleged by her that; after completion of graduation she was asked to join computer course by the petitioner and she was not treated by the members of the family of the petitioner properly. Family members of the petitioner used to abuse her for trivial matters. It is also alleged by her that petitioner was having illegal intimacy with a lady even prior to the marriage and he continued his contacts with that lady even after the marriage and he occasionally coming to the matrimonial house. It is also contended that the parents of the petitioner use to abuse the respondent that she has spoiled the life of petitioner and she was not provided with proper food and clothing. These circumstances made her to consume poison to put an end to her life. According to her, on 16-6-1999 at about 11.30 p.m. she was thrown out of the matrimonial house by the petitioner and his parents and she was not allowed to enter the matrimonial house even after panchayat was convened. Therefore, she requested the Court to dismiss the petition. 3. 4. Trial Court after considering the pleadings, formulated the following points for its consideration: 1. 1. Whether the petitioner is entitled for a decree of divorce as sought for against the respondent? 2. 2. What decree or order? 3. 5. In order to prove the respective contentions, petitioner-husband has examined P.W. 1 and he relied upon Exs. P.1 to P.3. Respondent was examined as R.W. 1. Trial Court considering the oral and documentary evidence let in by the parties, held point No. 1 in the negative and dismissed the petition filed for divorce on the ground that the appellant-petitioner has failed to prove his case. Challenging the same, present appeal is filed. 4. 6. Considering the age of the parties, an attempt was made by us to settle the dispute between the parties. Respondent-wife is willing to join petitioner-husband. Husband is not willing to take her. In the circumstances, we have heard the Counsel for the parties on merits. 5. 7. Learned Counsel for the appellant contends that Trial Court has committed a serious error in dismissing the petition on the ground that the appellant has failed to prove both the allegations made in the petition. Husband is not willing to take her. In the circumstances, we have heard the Counsel for the parties on merits. 5. 7. Learned Counsel for the appellant contends that Trial Court has committed a serious error in dismissing the petition on the ground that the appellant has failed to prove both the allegations made in the petition. According to him, appellant has proved the allegation of cruelty and so also the desertion. The very fact that the respondent made an attempt to commit suicide by consuming poison and that she was admitted to M.S. Ramaiah Hospital would shows that such an attempt has caused a mental cruelty and torture to the appellant. According to him, Trial Court has failed to consider the oral and documentary evidence let in by the appellant in this regard. He further contends that the appellant has also proved the allegation of desertion. According to him, respondent on her own has left the matrimonial house in the month of June 1999 and thereafter she has never made an attempt to join matrimonial home and the marriage is not consummated on account of the act of the respondent, petition should have been allowed by the Trial Court on the ground that respondent for no reasons has deserted the petitioner has withdrawn the company of the appellant without any cause. Therefore, he requests the Court to allow the appeal and set aside the judgment of the Trial Court. 6. 8. Counsel for the respondent contends that none of the grounds urged by the appellant are tenable. According to him, marriage was not consummated on account of the attitude of the appellant and that there was no mental torture meted out to the appellant by the respondent. According to him, an attempt was made by the respondent to commit suicide by consuming poison only on account of the ill-treatment given to her by the petitioner and other members of the family. According to him, an attempt was made by the respondent to commit suicide by consuming poison only on account of the ill-treatment given to her by the petitioner and other members of the family. It is also contended by him that the allegation made by the respondent that the appellant is having an illicit relationship with one Laxmi has not been denied and the evidence of the respondent has not been challenged and it is also her case that on account of the illegal intimacy with Laxmi appellant was not interested in the marriage with the respondent and he was not willing to lead happy life with the respondent and therefore marriage has not been consummated. He further contends that considering the nature of pleadings and the evidence let in by the appellant, appellant has not made out a ground to grant a decree of divorce on the ground of cruelty. He also contends that the respondent did not desert the appellant on the contrary she was thrown out of the house by the appellant and his parents and an attempt made by the respondent to convene panchayat and settle the dispute was also ended in vein. Therefore, he requests the Court to dismiss the appeal with costs. 7. 9. Having heard the Counsel for the parties, this Court has to consider whether the appellant has made out a case to grant a decree of divorce either on the ground of cruelty or on the ground of desertion. 8. 10. Facts of this case are not in dispute to the following extent: Marriage between the parties is not in dispute, that at the time of marriage both the parties were studying, husband was studying in BE course, wife had joined B.Com. II year and that the marriage has not been consummated though marriage was solemnised on 18-11-1993 and that the respondent was in the house of the appellant till 16-6-1999. In other words, for nearly six years though parties were residing together marriage has not been consummated. Appellant is alleging that the marriage is not consummated on account of the conduct of the appellant. The fact remains is that the marriage is not consummated. The appellant alleges cruelty against the respondent. In para 6. In other words, for nearly six years though parties were residing together marriage has not been consummated. Appellant is alleging that the marriage is not consummated on account of the conduct of the appellant. The fact remains is that the marriage is not consummated. The appellant alleges cruelty against the respondent. In para 6. of the petition, it is pleaded by him that the respondent-wife use to come home late from the computer classes which has resulted in physical torture and mental agony. If a spouse after attending the computer course which she had joined with the permission of the appellant was coming late, no Court can hold that it amounts to mental torture and cruelty since appellant in his evidence or in the pleading has not stated the timings of the computer class and the time at which respondent use to come home. Except the allegation that she made an attempt to commit suicide, no other allegation is made in regard to the nature of physical and mental torture meted out to the appellant by the respondent. On oath respondent has stated the circumstances under which she was compelled to consume poison. It is no doubt true that in the cross-examination she has admitted that voluntarily she has consumed poison. If a lady had consumed poison on account of the torture meted out to her, same cannot be treated as a cruelty to the husband when he is responsible to make her to consume poison. The very fact that the marriage has not been consummated for over a period of six years would disclose the conduct of the appellant. In addition to that, we have seen in the examination-in-chief of R.W. 1 she has elaborately deposed that the appellant's contact with Laxmi prior to his marriage and also his continued relationship with that lady after the marriage also. It is unfortunate that this portion of the evidence of respondent has not been touched in the cross-examination by the appellant's Counsel. In other words, it goes without saying that evidence of the respondent is unchallenged. In addition to that, even in the examination-in-chief of P.W. 1 has not disclosed the nature of cruelty meted out to him by the respondent. Examination-in-chief of the appellant is nothing but replica of the petition. In other words, it goes without saying that evidence of the respondent is unchallenged. In addition to that, even in the examination-in-chief of P.W. 1 has not disclosed the nature of cruelty meted out to him by the respondent. Examination-in-chief of the appellant is nothing but replica of the petition. This Court is consistently observing in almost all the civil cases that after the amendment to Code of Civil Procedure, affidavit filed in lieu of examination-in-chief is nothing but replica of the plaint or the petition. Since parties are permitted to file affidavit in lieu of examination-in-chief. It is unfortunate that most of the Advocates are not studying the case of the parties properly and in a mechanical manner examination-in-chief would be typed repeating the averments made in the pleadings. By examining all the cases, in detail this Court has also observed that except cause title remaining portion of the pleadings would be the examination-in-chief. As a result, petitioner has not even stated various instances which according to him caused physical cruelty or mental cruelty. When there is lack of evidence of the appellant in his pleadings as well as in examination-in-chief and when the evidence of the respondent is not challenged by the appellant-husband, we do not see any merits in this appeal so far as the grounds of physical or mental cruelty. Therefore, findings of the Trial Court on this point has to be affirmed. 9. 11. Sofar as the allegation of desertion is concerned, in para 13 of the petition has stated that in the month of May 1999 respondent has deserted him. Except one sentence in para 13 we have not seen any other averments in regard to the ground of desertion. In the statement of objection filed by the respondent, she has contended that she was driven out of the matrimonial house by the husband and his parents on 16-6-1999 at about 11.30 p.m. and she was not allowed to enter the matrimonial house even after the panchayat was convened. We have to observe at this stage that convening panchayat after the respondent has left the matrimonial home has not been pleaded by the appellant, which shows that no attempt has been made by the appellant-husband to get his wife back to the matrimonial home. Even the appellant has not sent any legal notice before filing the case. We have to observe at this stage that convening panchayat after the respondent has left the matrimonial home has not been pleaded by the appellant, which shows that no attempt has been made by the appellant-husband to get his wife back to the matrimonial home. Even the appellant has not sent any legal notice before filing the case. By making one sentence of allegation that respondent has deserted him, no Court can grant a decree of divorce on the ground of desertion without an attempt has not been made by the husband to secure his wife to the matrimonial home. On the contrary, respondent on oath has deposed that a panchayat was convened and an attempt made by her to join the matrimonial home has failed, which shows that she has not deserted on the contrary it is the appellant who has deserted her. Therefore, we do not see any merits in the allegations made by the appellant to seek divorce on the ground of desertion. In the result, this appeal is dismissed. Judgment and decree of the Family Court in MC No. 799 of 1991, dated 8-8-2005 are hereby confirmed. Parties to bear their costs.