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2011 DIGILAW 1167 (KAR)

Padmalatha v. M Suresh Ballal

2011-12-02

H.S.KEMPANNA, N.KUMAR

body2011
Judgment :- N. KUMAR J: 1. This appeal is by the wife challenging the decree for divorce granted by the Principal Civil Judge (Sr. Dn.), Mangalore in M.C.No.41/06. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original proceedings. 3. The petitioner M.Suresh Ballal married the respondent Smt.Padmalatha on 13.10.1995. A female child was born in July 1998. The record discloses in the year 2002, the second pregnancy was terminated. The grievance of the petitioner is that the respondent after coming to know that she is pregnant created a scene, started abusing the petitioner, showing gestures and started behaving indifferent, started showing disrespect and misbehaving and she became wild and outrageous for the pregnancy and insisted that she wanted to undergo an abortion and terminate the pregnancy. Therefore, she hated and ill-treated the petitioner and the child. She did not care for the child and she never had motherly love to the child and she started to quarrel with the petitioner and his family members. Since 1997 the respondent was subjecting the petitioner to mental cruelty. The petitioner suffered severe strain and mental agony and developed high blood pressure. The conduct, the manner of her behaviour, attitude of arrogance and domineering intention of the respondent started subjecting the petitioner to all sorts of mental tension and health problems and it is unsafe and dangerous for the petitioner to live under the same roof with the respondent. That the petitioners practically severed his marital relationship with the respondent since 2002 after the termination of the second pregnancy and have separated from bed and board. In May 2005, the respondent was taken away by her parents at her own wish. There is no compatibility of temperament between them. Their marriage has irretrievably broken. There is no collusion between the petitioner and the respondent for filing this petition. Therefore, he sought for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 and hereinafter referred to as the Act. 4. After service of notice the respondent remained absent therefore she was placed exparte. 5. Thereafter, the trial Court has framed the following points for consideration: 1. Whether the petitioner proves that he is subjected to mental cruelty by the conduct of the respondent as alleged? 2. Whether there are any sufficient and reasonable ground to grant a decree for divorce as prayed for? 3. 5. Thereafter, the trial Court has framed the following points for consideration: 1. Whether the petitioner proves that he is subjected to mental cruelty by the conduct of the respondent as alleged? 2. Whether there are any sufficient and reasonable ground to grant a decree for divorce as prayed for? 3. In order to substantiate his claim the petitioner got examined himself as PW.1. He filed an affidavit reiterating the allegations made in the petition but he was not cross-examined. 6. The trial Court proceeded on the assumption, as the petitioner was not cross-examined, his evidence is undisputed and unchallenged. Further, it observed that there is absolutely nothing contrary to the petitioner’s case before the Court. Hence, in the absence of anything to the contrary, he did not find any reason to disbelieve or discard the case of the petitioner. For all the above said reasons, he proceeded to grant a decree or divorce. Aggrieved by the said order, the present appeal is filed. 7. Learned counsel for the appellant assailing the impugned order contended that Section 23 of the Act makes it very clear that in any proceedings under the Act, whether defended or not before a decree is passed on any of the ground enumerated under Section 13, the Court must be satisfied that the ground for granting relief exits and the petitioner has not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. Before proceeding to grant any relief under the Act, it was the duty of the court in the first instance, in every case, where it is possible to do so consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Therefore, he submits that in the first instance, the allegations in the petition made did not constitute a ground of mental cruelty. Assuming it constituted a plea of cruelty, no evidence was adduced to establish the said plea. Moreover, the Court does not disclose in the order what is the cruelty Pleaded, whether it is proved, whether a ground exists for granting divorce. It has proceeded to grant a decree only on the ground that the evidence of the petitioner has remained undisputed and unchallenged and there is nothing contrary to the petitioner’s case before the Court. Moreover, the Court does not disclose in the order what is the cruelty Pleaded, whether it is proved, whether a ground exists for granting divorce. It has proceeded to grant a decree only on the ground that the evidence of the petitioner has remained undisputed and unchallenged and there is nothing contrary to the petitioner’s case before the Court. That is not the way a matrimonial matter to be adjudicated as required under Section 23. The Court below has not applied its mind and it has not recorded any finding before grant of divorce. Therefore, the judgment and decree passed by the Court below is nullity and requires to be set aside. 8. Per contra, learned counsel for the respondent/husband submits that after decree is passed, the husband has taken a second wife and the daughter born is with him. The respondent did not bother to take care of the child. The plea of cruelty is specifically pleaded in the petition, which has remained unchallenged. That apart, her subsequent conduct and the conduct of not contesting the matter before the Court below, all should be taken into consideration in deciding the case. If all those factors are taken into consideration, the conduct of the wife disentitled her to any relief from the Court. There is no merit in this appeal. 9. In the light of the above facts and circumstances, the point that arises for our consideration is: 1. Whether the decree for divorce passed by the Court below is in accordance with law? 2. Section 13 of the Act provides for divorce on several grounds. The ground that is indicated in this petition is a ground of cruelty, which reads as under: “13. Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has after the solemnization of the marriage, treated the petitioner with cruelty” 12. Section 20 of the Act deals with contents and verification of the petition, which reads as under: 20. Section 20 of the Act deals with contents and verification of the petition, which reads as under: 20. Contents and verification of petitions: (1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded 49[and except in a petition under Section 11, shall also state] that there is no collusion between the petitioner and other party to the marriage. (2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence. 13. Therefore, the ground under which the divorce is sought shall be stated as distinctly as the nature of the case permits the facts or on which the claim of relief is found. 14. Section 23 deals with decree in proceedings, which reads as under: 23. Decree in proceedings: (1) in any proceedings under this Act, whether defended or not, if the court is satisfied that- (a) any of the grounds for granting relief exists and the petitioner 55[except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b), or sub-clause (c) of clause (ii) of Section 5]is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief. 15. Sub-Section (2) of Section 23 mandates as under: “(2) Before proceeding in grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties”. 16. Such an attempt is not warranted in the cases which are mentioned in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) and clause (vii) of Sub-Section (1) of Section 13 of Hindu Marriage Act. However, in respect of clause (i-a) and (i-b) of subsection (1) of Section 13 it is mandatory. 17. In order to bring about a reconciliation sub-Section (3) of Section 23 vests power in the Court to adjourn the proceedings. 18. Section 28 of the Act provides for appeal from decrees and orders. However, in respect of clause (i-a) and (i-b) of subsection (1) of Section 13 it is mandatory. 17. In order to bring about a reconciliation sub-Section (3) of Section 23 vests power in the Court to adjourn the proceedings. 18. Section 28 of the Act provides for appeal from decrees and orders. “All decrees made by the court in any proceedings under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decision of the court given in the exercise of its original civil jurisdiction. 19. The Apex Court in the case of JAGRAJ SINGH VS. BIRPAL KAUR reported in AIR 2007 SC 2083 has laid down what should be the approach of the Courts of law while dealing matrimonial matter in para 15. which reads as under:- “The above decisions of this Court make it more than clear that the approach of a Court of law in matrimonial matters is much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire. Matrimonial matters must be considered by Courts with human angle and sensitivity. Delicate issues affecting conjugal relations have to be handled carefully and legal provisions should be construed and interpreted without being oblivious or unmindful of human weakness. Probably, this aspect has been kept in view by the Legislature in enacting sub-Section (2) of Section 23 of the Act by requiring a Court to make all efforts to bring about reconciliation between the parties” 20. In fact, Apex Court relied on the judgment of this Court in the case of JIVUBAI VS. NINGAPPA reported inAIR 1963 Mysore 3 (V 50 C 2) where it is stated as under: “There can be no doubt that a duty is laid on the Court to make every endeavour to bring about a reconciliation between the parties whenever the nature and the circumstances of the case permit to do so. It is urged by the learned advocate for the appellant that the failure to make such an endeavour deprives the Court of the jurisdiction to try and decide the case. It is urged by the learned advocate for the appellant that the failure to make such an endeavour deprives the Court of the jurisdiction to try and decide the case. The intention of the provision undoubtedly is to render all possible assistance in the maintenance of the marital bond and if at any stage of the case the circumstances are propitious for reconciliation it will be the Court’s duty to make use of such circumstances irrespective of the stage. The use of the words “in the first instance” can in this context only mean that the Court’s efforts in the direction of reconciliation should commence right from the start of the case and not that such effort should not be made at any later stage. It would therefore follow that the matter is not one of jurisdiction. If no endeavour had been made by the Court, it will undoubtedly a be a serious omission which has to be taken into account. But it can’t affect the jurisdiction of the court to by the case. It also follows that, as it is the constant duty of the court to bring about a reconciliation, such efforts are not only open to the appellate court or courts but that it is appropriate that those courts also should make the endeavor.’’ 21. The High Court of Patna in the case of CHHOTE LAL Vs. KAMLA DEVI AND OTHERS reported in AIR 1967 PATNA 269 dealing in Sub-Section 2 of Section 23 held as under: “A perusal of Sub-Section 2 of Section 23 of the Act leaves no room for doubt that even where the estrangement between the parties to the marriage might seem to be acute, it is the duty of the Court to make every endeavour to bring the parties to reconciliation. Of course, the Court can not help. If in spite of its endeavour no reconciliation can be brought about, but every endeavour in that direction has got to be made in cases of this nature”. 22. The Apex Court in the aforesaid Jagraj Singh’s case further held as under: A Courtis expected nay, bound, to make all attempts and endeavours of reconciliation. To us, Sub Section (2) of Section 23 is a salutary provision exhibiting the intention of Parliament requiring Court ‘in the first instance’ to make every endeavour to bring about a reconciliation between the parties. To us, Sub Section (2) of Section 23 is a salutary provision exhibiting the intention of Parliament requiring Court ‘in the first instance’ to make every endeavour to bring about a reconciliation between the parties. If in light of the above intention and paramount consideration of the Legislature in enacting such provision, an order is passed by a Matrimonial Court asking a party to the proceedings (husband or wife) to remain personally present, it cannot successfully be contended that the Court has no such power and in case a party to a proceeding does not remain present, at the most, the Court can proceed to decide the case ex parte against him/her”. 23. The essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage “breakdown” – and if it continues for a fairly long period, it would indicate destruction of the essence of marriage “irretrievable breakdown”. Conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely a creature of the statute. Such a right is inherent in the very institution of marriage itself. Matrimonial matters must be considered by Courts with human angle and sensitivity. Delicate issues affecting conjugal relations have to be handled carefully. Sub Section (2) of Section 23 is a salutary provision exhibiting the intention of parliament requiring Court ‘in the first instance’ to make every endeavour to bring about a reconciliation between the parties. Where the estrangement between the parties to the marriage might seem to be acute, it is the duty of the Court to make every endeavour to bring the parties to reconciliation. The failure to make such an endeavour deprives the Court of the jurisdiction to try and decide the case if no endeavour had been made by the Court, it will undoubtedly be a serious omission which has to be taken into account. 24. The failure to make such an endeavour deprives the Court of the jurisdiction to try and decide the case if no endeavour had been made by the Court, it will undoubtedly be a serious omission which has to be taken into account. 24. It is in this background if we look into the approach of the trial Judge while dealing with the matrimonial matter, none of the steps prescribed in the law is followed by him, even if he is writing an order in a case where the opposite party has not contested the matter. 25. When the Appellant Court looks into that order, the order passed by the trial Court should disclose that the Court has applied its mind to the pleadings, the evidence on record and then it should discuss the evidence and a finding is to be recorded showing that a ground as contemplated under Section 13 exits. Then it should further indicate that he made attempt to bring about the settlement. It is only when his efforts to reconciliate between the husband and wife fails, he gets jurisdiction to proceed to pass an order of divorce. If we look at it from that angle, in the impugned order he has briefly set out what the case of the petitioner is. Even if the entire plea is accepted as true, in our view it would not constitute a ground of cruelty as understood in the matrimonial law. The affidavit of the petitioner is filed by way of examination-in-chief. What is stated in the petition is reproduced in the affidavit. If what is stated in the petition is only a plea, the petitioner has to adduce evidence to substantiate the said plea. Mere repetition of the plea in the affidavit would not take the place of evidence, merely because PW.1 is not cross-examined. Especially in the context of matrimonial matters the Parliament has mandated what the Court is expected to do, in a proceedings under the Act whether defended or not. There is no evidence adduced in support of the plea which is taken. An affidavit sworn to affirming the plea would not take the place of evidence. Moreover, the trial judge has not recorded a finding that the petitioner by such evidence has made out a case for granting of divorce. 26. There is no evidence adduced in support of the plea which is taken. An affidavit sworn to affirming the plea would not take the place of evidence. Moreover, the trial judge has not recorded a finding that the petitioner by such evidence has made out a case for granting of divorce. 26. In this context, it is also useful to refer to the judgment of this Court in Huvakka vs. Vishwanath reported in ILR 2009 KAR 4193. This Court while dealing with cruelty after reviewing the entire case law has held as under: “12. Cruelty is one of the ground for granting a decree of divorce. However, the word “Cruelty” has not been defined. It is impossible to give a comprehensive definition to cruelty. It has been used in relation to human conduct or human behaviour. It is a conduct in relation to or in respect of matrimonial duties and obligations. It is a course of one which is adversely affecting the other. It may be intentional or unintentional. The cruelty may be mental or physical.” 27. Dealing with mental cruelty this Court has held as under: “14. But if the case pleaded is of mental cruelty, the problem presents difficulty. Mental cruelty is a conduct which one party inflicts upon the other party, such mental pain and suffering as would make it not possible for that party to live with the other. First the enquiry must begin as to the nature of cruel conduct complained of. Secondly, the impact of such conduct on the mind of other spouse. In trying to find out the impact of such conduct, one should have knowledge and intention of the spouses, their character and physical and mental weakness. It is also necessary to have a fair knowledge of the setting in which they are living. The type of life the parties are accustomed to or their economic and social condition, the education they had, the cultural background and the human values to which they attach importance.” 28. Dealing with the way a Judge should decide this question, at para 15 it held as under: “15. The Judge who is deciding the case of cruelty more so mental cruelty should be sensitive to the feelings and in understanding the trauma of the parties. Otherwise he will not be able to appreciate and understand the intricacies involved in a sensitive conjugal relationship. The Judge who is deciding the case of cruelty more so mental cruelty should be sensitive to the feelings and in understanding the trauma of the parties. Otherwise he will not be able to appreciate and understand the intricacies involved in a sensitive conjugal relationship. The Judge should not import his own notions of life and go parallel with them. Actually there is a generation gap between the Judge and the parties. It would be less better if he depends on precedents. It is necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular there is a sea change. They are of varying degrees from house to house, 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 standards in life. A set of facts stigmatized as cruelty in one case may not be so in another. 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.” 29. All these aspects are not kept in mind by the judge while delivering the judgment. The judgment rendered by him do not show the application of his mind, the nature of cruelty pleaded and proved and how he has appreciated the material on record. A perusal of the order clearly demonstrates he has treated this petition as money suit for recovery of rent. Because the defendant was placed exparte, the evidence of PW.1 is not challenged in cross-examination, he has no reason to disbelieve the case of the petitioner and has proceeded to grant a decree of divorce. This approach is contrary to the statutory provisions, the law laid down by this Court as well as Apex Court. That is not a manner in which the matrimonial dispute are to be decided. In that view of the matter, the order passed cannot be sustained and requires to be set aside. Hence we pass the following order: ORDER i) Appeal is allowed. ii) The impugned order is set aside.