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2015 DIGILAW 1092 (KAR)

G. Premalatha v. R. Nagesh

2015-09-11

N.K.PATIL, P.S.DINESH KUMAR

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JUDGMENT : P.S. Dinesh Kumar, J. 1. This appeal is presented by an unsuccessful wife, whose petition for a decree of divorce and dissolution of marriage filed under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 ('Act' for short) stood dismissed vide Judgment and Decree dated 15.1.2013 by the learned Principal Judge, Family Court, Bengaluru. 2. Appellant filed the instant petition before the Family Court, contending inter alia: (i) that her marriage was solemnized with the respondent on 10.3.2004 in Someshwara Temple, Ulsoor, Bengaluru as per Hindu rites and customs in the presence of her friends and well wishers; (ii) that the couple have a baby girl, namely, Karunya N. born on 12.10.2006; (iii) that after few months of marriage, behaviour of respondent towards the appellant started changing and he started demanding dowry and inflicting physical and mental cruelty upon the appellant; (iv) that as the days passed, situation turned from bad to worse with the respondent suspecting the character of appellant; (v) that on 10.2.2006, respondent borrowed a sum of Rs. 1,00,000/- from appellant's mother agreeing to repay within 12 months therefrom, but did not repay; (vi) that in November 2009, respondent drove away the appellant from the matrimonial home; (vii) that though the appellant made several attempts to reconcile the matter between her and her husband, the same did not yield any results and therefore she was compelled to seek a decree of divorce. 3. The order sheet of the trial Court discloses that by the order dated 9.10.2012, the respondent was placed ex-parte. Appellant got herself examined as PW.1 and her mother as PW.2 and produced Exs.P1 to P9 to prove her case. On consideration of appellant's pleadings and evidence on record, the family Court framed following points for consideration:- 1. Whether the petitioner proves that the respondent subjected her to cruelty and ill treatment in the matrimonial home? 2. Whether the petitioner further proves that the respondent deserted her for a continuous period of not less than two years immediately preceding the presentation of this petition? 3. Whether the petitioner is entitled for a decree of divorce under secs.13(1)(ia) & (ib) of the Hindu Marriage Act? 4. Family Court answered all points in the negative and dismissed the petition. Hence, this appeal. 5. We have heard Sri Prabhugoud B. Tumbigi, learned Counsel for the appellant and examined the material papers including trial Court records. 3. Whether the petitioner is entitled for a decree of divorce under secs.13(1)(ia) & (ib) of the Hindu Marriage Act? 4. Family Court answered all points in the negative and dismissed the petition. Hence, this appeal. 5. We have heard Sri Prabhugoud B. Tumbigi, learned Counsel for the appellant and examined the material papers including trial Court records. 6. Learned Counsel for the appellant strongly contends that the respondent has chosen not to accept the notice and to participate in the proceedings. Appellant has examined two witnesses and produced 9 documents including - Ex.P9 to demonstrate that the respondent in addition to inflicting cruelty upon her, has taken money from her mother and not returned. The evidence brought on record has remained un-controverted. In the circumstances, the learned family Court was not justified in dismissing the petition. Accordingly, he prays that this appeal may be allowed. 7. We have given our anxious consideration to the submissions of the learned Counsel for the appellant and examined the pleadings and evidence. 8. Appellant as PW.1 has stated that the respondent inflicted physical torture and harassment upon her. She is also stated in unequivocal terms that, the respondent questioned her character. To be precise, she has stated thus in her evidence: "7. I submit that, the respondent was picked (picking) up quarrel for silly reasons and abusing me regarding my character. Several times when the respondent picked up quarrel with me, he used to abuse me with words of subspecies about my fidelity and character. Even if I get neatly dressed, he was suspected (suspecting) my character by using filthy and vulgar language and always abuse (abused) me that, she has (I had) illicit relationship with others. Surpassing boundaries of decency, many times the respondent directly asked the petitioner who is your paramour?" (sic) (words in bracket are by us) 9. In addition to the infliction of physical and mental torture, it is also alleged that the respondent had borrowed a sum of Rs. 1,00,000/- from appellant's mother and executed an agreement as per agreement -Ex.P9 agreeing to repay the said sum within 12 months therefrom. It is asserted by the appellant that the said sum was not repaid. With regard to desertion, there is say of the appellant that she was thrown out of the matrimonial home in November 2009. 10. 1,00,000/- from appellant's mother and executed an agreement as per agreement -Ex.P9 agreeing to repay the said sum within 12 months therefrom. It is asserted by the appellant that the said sum was not repaid. With regard to desertion, there is say of the appellant that she was thrown out of the matrimonial home in November 2009. 10. Appellant's mother is examined as PW.2 and she has also deposed before the family Court in like terms as that of her daughter. 11. Petition averments and the evidence on record have remained un-impeached. Respondent was placed ex-parte in the proceedings before the family Court. Office note dated 4.9.2015 of this Court shows that the respondent was served. His name is shown in the cause - list. He has neither appeared in person nor represented by an advocate. 12. The family Court has observed that specific instances of cruelty were not pleaded by the appellant. It is note worthy that Family Court has held that the testimony of the appellant and her mother (PW.2) have remained unchallenged and un-controverted. Yet, in the opinion of the learned family Court, evidence on record did not inspire the Court to grant the prayer made by the appellant. In other words, the learned family Court did not find the material sufficient enough to hold that the appellant was indeed a victim of cruelty in the hands of the respondent and that the respondent had deserted the appellant with an intention to put an end to the marriage. 13. The respondent husband has been served in accordance with law, both before the family Court as also this Court. But he has chosen not to participate in the proceedings. Procedural law has its own sanctity. Defiant behaviour of a party - respondent to exercise the option to remain absent or refrain from the proceeding in the Court of law in response to the command of the Court to appear is to be dealt in accordance with the provisions of procedural law. Therefore, we are of the view that records in this case are conspicuous enough to proceed ex-parte against the respondent. The facts on record are that since November 2009, the couple are living separately. Therefore, we are of the view that records in this case are conspicuous enough to proceed ex-parte against the respondent. The facts on record are that since November 2009, the couple are living separately. As held by the Division bench of this Court, living separately and continuance of marital relationship for name sake by it self is cruelty of mind (See Hukkawa Vs Vishwanath ILR 2009 KAR 4193). Time has changed. So also the perception of society vis-a-vis the institution of marriage. We are living in 21st century in an era of global village concept. Rights of individuals and their personal space in life is being sought in no uncertain terms by citizen across the globe. Rights of individuals enshrined under the Constitution of India have been expanded much folds. To live with dignity is sine qua non of Article 21. Here is a lady knocking at the doors of the family Court and this Court from the year 2012 seeking relief from the fetters of institutional bond of marriage. 14. In our considered view, every human being is entitled to have his/her own space in the life and to live in the manner felt appropriate subject of-course without a fragrant transgression of well established customs and prevalent law. In this backdrop, the judgment and decree of the family Court refusing to dissolve the marriage is too harsh and based on findings recorded which are not sustainable in law. With the change in times, Courts cannot be oblivious to the circumstances existing in the Society and metamorphosis in the behavioural pattern of the society. 15. In the facts and circumstances of this case, we are of the opinion that the appellant needs to be protected by relieving her from the institution of the marriage. 16. In the result, we pass the following:- ORDER (i) Appeal is allowed; (ii) Judgment and Decree dated 15.1.2013 in M.C. No. 1384/2012 on the file of Principal Judge, Family Court, Bengaluru, is set aside and consequently, the said petition is allowed dissolving the marriage of the appellant with the respondent solemnized on 10.3.2004 at Bengaluru.