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2014 DIGILAW 995 (KAR)

S. G. Latha v. M. V. Srinivas

2014-11-17

N.K.PATIL, RATHNAKALA

body2014
Judgment : 1. This appeal is filed assailing the judgment and decree dated 18th March 2011 passed in M.C.No.40/2003 on the file of the II Additional Principal Judge, Family Court at Bangalore, whereby the marriage of the appellant and the respondent is dissolved by a decree of divorce. 2. As the facts unfurl, the husband filed a petition under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') against his wife seeking decree of divorce. It was alleged that, the parties were married as per the customs on 5.11.2000 and a female child is born on 15.6.2001. After the birth of the child, the wife became non-cooperative. She was very rude and arrogant with her husband and the in-laws. She used to abuse her husband in the presence of others and also insulted and abused his parents. Once she assaulted the husband for which he had to go to hospital. She used to drop and break the household articles and neglected the child. Her brother, who is a politician, supported her and put threat to his life and also to the life of his family members. On the request of the wife, a rented house was arranged for their separate living. But the wife put threat to the life of the husband and once attempted to stab him with a sharp edged household article. Hence, he left the matrimonial home in the month of December 2002 and started residing with his parents. There is no safety to his life. Hence, the petition. 3. The wife contested the petition, admitted the relationship and also birth of a female child from the wedlock. Her counter allegation was, she was discharging her marital duties and obligations properly. Some time after the marriage, the husband used to come home late by consuming liquor and was behaving abnormally with her. After the birth of the female child, he ill-treated her and abused her in the presence of others, unnecessarily assaulted her at the instigation of his family members. He failed to discharge his matrimonial obligations towards her and also her child. She was subjected to physical and mental torture. He left the matrimonial home during second week of December 2002 without informing her. Since the husband's family members refused to divulge any details about the husband's whereabouts, she was constrained to lodge a complaint to the Police. He failed to discharge his matrimonial obligations towards her and also her child. She was subjected to physical and mental torture. He left the matrimonial home during second week of December 2002 without informing her. Since the husband's family members refused to divulge any details about the husband's whereabouts, she was constrained to lodge a complaint to the Police. On interrogation of the family members, the husband appeared before the Police and informed that he has filed a matrimonial case for divorce and refused to join her. On the above, she prayed for dismissal of the petition. 4. After completion of the pleadings, the couple were examined as PW-1 and RW-1 respectively and documents Exs.P1 to P9 and Exs.R1 to R12 were marked. The trial court after giving audience to both parties granted decree of divorce on the ground of cruelty, however, negatived his case about desertion. 5. Sri.Mohammed Rizwan, learned Counsel appearing for the appellant/wife submits that the trial court upheld the contention of the husband that the wife has caused cruelty to him, by relying on the reported judgments, which have no relevance to the facts of this case. In each of the reported cases relied by the learned Trial Judge, case ended up in acquittal of accused and the court held that they were false complaints. But those judgments have no semblance to be facts herein. Because of the torture inflicted on her, the wife had lodged complaint against the husband and in-laws. Dismissal of her complaint by itself cannot be a ground to hold that she was cruel to her husband and in-laws. The trial court has held that the wife gave different version with regard to the amount of dowry. But it is not the quantum of the dowry amount that counts, but the conduct of the husband and the in-laws in receiving the dowry thereby committing the offence punishable under the Dowry Prohibition Act and also Section 498-A of the Indian Penal Code. The learned Trial Judge has observed that, she did not examine her father to prove her allegation regarding demand and receipt of the dowry amount. But that is no ground to hold that the husband and his family members did not demand and receive any dowry amount. The learned Trial Judge held that, she has failed to prove her allegation of physical assault by the husband. But that is no ground to hold that the husband and his family members did not demand and receive any dowry amount. The learned Trial Judge held that, she has failed to prove her allegation of physical assault by the husband. But not lodging a Police complaint against husband and in-laws will not fortify the case of the husband. Without making attempt to bring about re-conciliation between the couple, the court below has granted decree of divorce. Hence, the judgment and decree passed by the court below calls for interference by this Court. 6. In reply, Sri.M.Lingaraju, learned Counsel for the respondent/husband supports the judgment of the lower court. 7. On perusal of the impugned judgment and lower court records, the sole point that arises for consideration is: 8. Section 6 of the Family Court Act contemplates appointment of Conciliators to assist the "Whether a case of cruelty is made out against the wife entitling the husband for a decree of divorce?"" Family Court in discharge of their function as per Section 6 of the Family Courts Act. Section reads thus: "6. Counsellors, officers and other employees of Family Courts.-(1) The State Government shall in consultation with the High Court, determine the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such counsellors, officers and other employees as it may think fit. (2) The terms and conditions of association of the counsellors and the terms and conditions of service of the officers and other employees, referred to in sub-section (1), shall be such as may be specified by rules made by the State Government". 9. On appearance of both parties, Section 9 of the Family Courts Act comes into play, which reads thus: "9. Duty of Family Court to make efforts for settlement.-(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. (2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it think fit to enable attempts to be made to effect such a settlement. (3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings". 10. The order sheet of the lower court records dated 19.2.2003 reflects that after appearance of the wife, the parties were referred to conciliation proceedings and same ended in failure. At the relevant time, there was no facility for mediation at Bangalore, it started only in the year 2007. 11. In this case after failure of Conciliation only, the case was proceeded with. Hence, there is no procedural irregularity in the conduct of the proceedings before the Family Court. 12. Returning back to the lis:- The term "cruelty" is not defined in the Act though is a ground for seeking divorce. The term "cruelty" as appearing in Section 498-A of the Indian Penal Code is in reference to female victims only. However, by judicial pronouncements, cruelty in matrimonial cases is conceived as an act by the offending spouse against the other, either physical or mental, whether intentional or unintentional, individualistic depending upon the facts and circumstance of each case. 13. It emanates from the admitted facts, the present petition is filed on 7.1.2003 and the respondent/husband appeared on 19.2.2003 and the conciliation failure report is recorded by the Court on 26.2.2003 and the complaint against husband and in-laws is lodged by the wife under Section 498-A of IPC and Dowry Prohibition Act on 4.5.2003. Consequently, husband and his brothers were arrested and were in custody for three days. The female members of the family had to rush to court for anticipatory bail. Though it was her first report, allegations against her husband and in-laws in the complaint runs into nine pages. On 12.4.2003, she lodged another complaint against her husband and his elder brother Nagaraj on the allegation that they assaulted her in the shop on the same day. Though it was her first report, allegations against her husband and in-laws in the complaint runs into nine pages. On 12.4.2003, she lodged another complaint against her husband and his elder brother Nagaraj on the allegation that they assaulted her in the shop on the same day. While recording his returns, the learned Trial Judge is not convinced by the quality of the evidence adduced by the wife regarding cruel treatment undergone by her during her stay in the matrimonial home. Not examining a witness on her behalf outweighed for the Judge to disbelieve the evidence of wife. Acquittal of the husband and in-laws from the criminal cases which were initiated on the complaint of the wife and cases filed by her at a far off place (Sakleshpur) for restitution of conjugal rights were counted upon, as amounting to cruelty on the husband. Variance in the version of the wife about the quantum of dowry handed over during marriage was another contributory factor for the court to reach its conclusion. It is to be noted that, the husband has not amended his petition about the cruel impact on him, in view of the conduct of his wife in lodging complaints against him and his family members and dragging him to the court in a far off place at Sakleshpur. 14. It is obvious from the impugned Judgment that, the developments subsequent to filing of the petition are the major factors for the Judge to infer cruelty on the husband. Much of the focus is on the plight of the husband subsequent to the wife lodging the Police complaint against him and his family members. When the learned Judge disbelieves the version of the wife about dowry demand etc., for not examining her father, he has lost sight of the fact that the husband has also not examined any witness or family members in whose presence, he was abused and ridiculed. It is husband's own admission that subsequent to the cross-examination, he met his daughter in the house where his wife is residing, on getting her address from her only. He had admitted during cross-examination that, when the parties resided in the rented house, there was no incident of assault or quarrel. His wife is looking after the daughter very well. He does not know when the brother of his wife became a Politician and a Councilor. He had admitted during cross-examination that, when the parties resided in the rented house, there was no incident of assault or quarrel. His wife is looking after the daughter very well. He does not know when the brother of his wife became a Politician and a Councilor. One of his allegation was, his wife was given to black magic. But he could not substantiate the same during his cross-examination. He admits that he has faith in Astrology. He does not deny the suggestion, but only expresses ignorance to the suggestion that it is predicted in Astrology that he will marry for second time and marriage will be with his sister's daughter. He admits that, his sister's daughter viz., Preethi is residing in his house only. He has further admitted that, wife lodged complaint against him on 7.3.2010 alleging that he made galata when he visited the child and he has signed a statement before the Police. 15. Admittedly, until the petition for divorce was filed by the husband, the wife never resorted to legal action against him and his parents. Once she was drawn into the litigation and provoked, the consequences have fallen in line. It is also possible that her overreaction to the divorce petition was under a wrong advice. The court could not have segregated the subsequent conduct of the wife from the past, the couple had undergone, which they led life together. It is the law of nature that present is in continuation of the past. In our considered opinion, the court below had to firstly record its finding whether the cause of action on which the case is built up is proved. If the conduct of the wife as pleaded by the husband is proved by him, then the subsequent conduct of the wife can be given weightage as fortifying the case of the petitioner/husband. 16. Under the circumstances, we are of the view that justice will sub-serve, if the matter is remanded to be decided afresh in the light of the observation made supra. Accordingly, the appeal is allowed. The judgment and decree dated 18th March 2011 passed in M.C.No.40/2003 on the file of the II Additional Principal Judge, Family Court at Bangalore, is hereby set aside. Accordingly, the appeal is allowed. The judgment and decree dated 18th March 2011 passed in M.C.No.40/2003 on the file of the II Additional Principal Judge, Family Court at Bangalore, is hereby set aside. The matter stands remitted back to the Court below for reconsideration afresh, in accordance with law, after affording reasonable opportunity of hearing to both the parties, as expeditiously as possible, not later than six months from the date of receipt of a copy of this judgment or production of the same by either Counsel for the parties; Both the appellant and respondent are permitted to file necessary application to adduce additional oral and documentary evidence, within four weeks from the date of receipt of a copy of this judgment; In case such applications are filed by the parties, the Court below is directed to receive the same and pass appropriate orders in accordance with law, in compliance of the direction issued above; The appellant and respondent are hereby directed to appear before the Court below, personally or through their counsel on 08-12-2014 at 11:00 A.M. without awaiting notice from the Court below and collect the further date of hearing; Registry is directed to return the entire LCRs, to the jurisdictional Court below, forthwith.