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2011 DIGILAW 630 (KAR)

Jagalur Madhukeshwar v. B. G. Kamalakshi

2011-06-21

ARALI NAGARAJ, N.K.PATIL

body2011
Judgment : ARALI NAGARAJ, J. 1. The present appeal is by the petitioner (husband) in M.C.No.6/2004 on the file of the learned Civil Judge (Sr.Dn.), Hassan (hereinafter referred to as ‘Trial Court’ for short). He has challenged in this appeal correctness of the Judgment and Decree dated 27.02.2009 passed in the said case dismissing his petition filed under Section 13(1)(i) (a) of The Hindu Marriage Act, 1955 against his wife (respondent herein) seeking divorce on the ground of cruelty. 2. We have heard the arguments of Kumari Prajwala, learned Counsel for the appellant-husband and Smt. Rajeshwari Devi, learned Counsel for the respondent-wife. Perused the impugned Judgment and Decree and also the entire material found in the original records in the said case obtained from the Trial Court. 3. Learned Counsel for the appellant-husband strongly contended that the Trial Court committed error in appreciating the evidence of the petitioner-husband and his witnesses which clearly establishes the mental cruelty to which the petitioner-husband was subjected by the respondent-wife and therefore, the impugned Judgment and Decree deserves to be set aside and the divorce petition of this appellant-husband deserves to be allowed dissolving his marriage with the respondent. 4. Per contra, learned Counsel for the respondent-wife contended that the Trial Court, on proper appreciation of the oral and documentary evidence placed on record by the respective parties and also following the judgment of Hon’ble Supreme Court in the case of Naveen Kohli v. Neelu Kohli reported in ILR 2006 Kar 1797: ( AIR 2006 SC 1675 ) has rightly held that the averments in the petition and the oral evidence of husband and his witnesses do not constitute cruelty of such a nature as to entitle the husband to seek divorce on that ground and therefore, the impugned judgment and Decree does not call for any interference in this appeal. 5. Having heard the learned Counsel for both the sides, the only point that arises for our consideration in this appeal is: “Whether the Trial Court is not justified in rejecting the petition of the petitioner-husband (appellant herein) filed under Section 13(1)(i)(a) of the Hindu Marriage Act, 1955, seeking dissolution of his marriage with the respondent on the ground of cruelty?” 6. On careful reading of the entire averments in the petition filed by the appellant before the Trial Court which runs into nine pages and also his evidence as PW1, it could be seen that his case against the respondent-wife is founded on the following allegations which, according to him, constitute mental cruelty: (i) Petitioner (husband), since the beginning of his marital relationship with the respondent-wife pursuant to his marriage with her that was performed on 04.12.1996, the respondent-wife started non-co-operating with him saying that her marriage with him was performed by her parents forcibly. This non-co-operation continued and the gap between him and the respondent came to be widened. (ii) While the respondent was staying with the petitioner at Dubai, she used to wake up very late everyday and therefore, the petitioner (husband) was to make all preparations before going to attend his work. Since the respondent was not preparing any food, he was to take only bread and jam as his breakfast. (iii) The respondent-wife used to wake up only by 12 noon everyday and thereafter she used to spend more than 2-3 hours in performing pooja. After taking food, again she used to go to sleep and wake up by evening only. Thus, she was not attending to any household work. Therefore the entire household work was to be attended to by the petitioner himself. (iv) The respondent had been in the habit of spending money in purchasing unnecessary articles which was a burden on the purse of the petitioner. She used to spend money in purchasing various articles for her parents and other relatives from out of the earnings of the petitioner. The petitioner tolerated the same. (v) The respondent delivered the first son on 13.09.1998. She was not taking proper care of the child. Therefore, the petitioner himself was to take care of the child. The respondent used to threaten the petitioner saying that she would commit suicide and make him to go behind the bars at Dubai. Since May, 2001, there could be no cohabitation between the petitioner and respondent as she started sleeping in a separate room. (vi) On 22.06.2002 the respondent threatened the petitioner that if he were not to send her to India she would commit suicide. Therefore the petitioner sent her to India. Thereafter, despite requests made by him, the respondent did not return to Dubai. 7. (vi) On 22.06.2002 the respondent threatened the petitioner that if he were not to send her to India she would commit suicide. Therefore the petitioner sent her to India. Thereafter, despite requests made by him, the respondent did not return to Dubai. 7. The respondent-wife contested the said divorce petition denying all the above said allegations and further alleging that it was her husband who was not taking care of herself and children and who, on account of his vices, started ill-treating her. It is her further case that her husband himself deserted her by not taking her to Dubai after the second child was born. 8. On careful reading of the evidence of the petitioner-husband, who is examined as PW1, it could be seen that he has reiterated in his evidence all the above allegations made in his petition against the petitioner. It is not the case of the petitioner-husband that respondent used to do any overt act of cruelty against him. All the allegations that are made by the petitioner against the respondent are omissions on the part of the respondent in doing household work, in taking care of the children, etc. 9. During the course of arguments in this appeal, both the parties were directed to be present before the Court with a view to explore the possibilities of reconciliation same amicable settlement. Though the respondent-wife appeared before this Court along with her two children and submitted that in the best interest of the children even now she is prepared to join her husband and lead happy married life, the appellant-husband did not choose to appear before this Court. His counsel submitted that he is not prepared to take back his wife and children. 10. The Trial Court, in the impugned judgment, has referred to the contents of Ex.P10, the letter written by the respondent-wife to the petitioner-husband while he was at Dubai. She has stated in the said letter that she and also her husband both committed some mistakes against each other and that, she is prepared to forget everything and lead a happy married life with him. While stating so, she requested her husband to come over to India, visit a Temple along with her so that they could together take oath in the Temple that they would lead an ideal life as husband and wife. While stating so, she requested her husband to come over to India, visit a Temple along with her so that they could together take oath in the Temple that they would lead an ideal life as husband and wife. In the said letter, she has assured him that she would not attempt to commit suicide in future. While referring to these contents of Ex.P10 letter, the Trial Court has rightly observed that it is the husband who has deserted his wife and children without any sufficient and valid reason and that all the allegations made by him against her do not constitute mental cruelty of such a nature as to entitle the petitioner-husband to seek divorce. In support of these findings, the Trial Court has relied upon the decision of the Hon’ble Supreme Court referred to supra. We do not find any reasons to interfere with the impugned Judgment and Decree dismissing the petition of the appellant-husband filed against his wife seeking dissolution of his marriage with her on the ground of cruelty. For the reasons aforesaid, we hereby dismiss the present appeal and direct the appellant-husband to pay to the respondent-wife a sum of Rs.10,000/- towards costs in this appeal.