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2015 DIGILAW 1360 (KAR)

Surekha v. R. Girish Aradhya

2015-12-17

N.K.PATIL, PRADEEP D.WAINGANKAR

body2015
JUDGMENT : 1. Both these appeals are arising out of the common judgment dated 29.07.2011 passed by the III Additional Principal Judge, Family Court at Bangalore in M.C.No.110/2004 and G & WC No.76/2004 between the same parties. 2. The parties are referred to their respective ranks before the Trial Court, that is to say that appellant/wife in both the appeals is referred to as respondent and respondent/husband in both the appeals is referred to as petitioner. 3. Brief facts which gave rise to these appeals are as under:- Respondent is the legally wedded wife of the petitioner. Their marriage was solemnized on 15.03.1999 at Bangalore as per Hindu rites and customs. After the marriage, petitioner and respondent led marital life in the house of the petitioner/husband. One week after the marriage, the respondent/wife started behaving in an unpleasant manner. She started treating the petitioner/her husband and his family members in a degrading manner by not even extending minimum respect towards him and his aged parents and other family members. She started picking up quarrels for silly reasons with the petitioner/her husband and also family members of her husband. His parents suggested him to live with the respondent in separate house for few months in the larger interest of the couple. He made separate rented house at 9th block, Jayanagar, Bangalore. But she did not change her behaviour. Even after they started residing separately, she abused the petitioner and scolded. She teased his parents and family members. She also went to the extent of assaulting the petitioner by footwear, she had thrown her Mangalya and told him that he is neither her husband nor she is his wife. Therefore, a panchayath was held in the presence of Channaiah, who is an Economic Professor in BES college, Jayanagar, Bangalaore and a family friend of the petitioner. The respondent/wife blatantly told him that he has no business to advise her and she behaved arrogantly. Her conduct displayed that she is not interested in leading marital life with him. When she came to know that she is pregnant, she threatened the petitioner saying that she will get pregnancy terminated. On one day she tried to commit suicide by pouring kerosene on her and behaved very abnormally for best reasons known to her. Her conduct displayed that she is not interested in leading marital life with him. When she came to know that she is pregnant, she threatened the petitioner saying that she will get pregnancy terminated. On one day she tried to commit suicide by pouring kerosene on her and behaved very abnormally for best reasons known to her. Immediately, the petitioner contacted her mother who came and rescued the situation and she left with her mother when she was pregnant and thereafter she never returned to her matrimonial house even after she gave birth to a male child. When the petitioner approached the respondent and her parents on 30.06.2009 and asked her to come and join his company and also told her mother to send her along with the child to the matrimonial house, her parents threatened him saying that they cannot send her and the child. The respondent/wife also supported her parents. On the other hand, she told the petitioner to get divorce from her. Since all the efforts made by him to restore the company of his wife did not materialize, he issued a legal notice on 04.07.2003 and called upon her to give consent for divorce. Instead of giving consent, she gave untenable reply making some false allegations against the petitioner. Thus, on account of the commission and omission on the part of the respondent/his wife, he suffered mentally and physically. Eversince she left the company of the petitioner during her pregnancy and went to the house of her parents, she did not join the company of the petitioner. There has been no cohabitation eversince then. Thus, the respondent/wife deserted the petitioner for continuous period of more than two years without any lawful excuse or without any fault on the part of the petitioner. As such, he filed a petition for dissolution of marriage by a decree of divorce on the ground of desertion and cruelty. 4. The petition was contested by the wife. In her reply she denied the entire allegations made out against her and her parents by the petitioner/her husband. It is contended by her that she never deserted her husband. On the other hand, her husband deserted her. It is also contended that she is ready to join the company of the petitioner/husband and lead a happy marital life. She has categorically denied that her husband was subjected to harassment and cruelty by her. It is contended by her that she never deserted her husband. On the other hand, her husband deserted her. It is also contended that she is ready to join the company of the petitioner/husband and lead a happy marital life. She has categorically denied that her husband was subjected to harassment and cruelty by her. Hence, she sought for dismissal of the petition. 5. The petitioner/husband also filed a petition in G & WC No.76/2004 for the custody of the minor son on the ground that the mother has no capacity to maintain and lookafter the welfare of the child. He has got sufficient income and that he is in a better position to maintain and look after the education of the minor son. The petition was opposed by the respondent/wife on the ground that ever since her desertion, she has been maintaining and looking after the welfare of the child. She is a B.Com. Graduate and she is the better person to give best education to her son, she has brought up her son in a good atmosphere, the child cannot be given to the custody of the petitioner merely because he is the father of the child since he has totally neglected the child and welfare of the child for all these days. She sought for dismissal of the said petition. 6. Both the petitions were clubbed together by the Family Court as per the directions of this Court. The petitioner/husband in order to prove the desertion and that he is entitled for the custody of the minor child, examined himself as PW.1 and got marked Exs.P1 to P4. The respondent/wife-Smt. Surekha stepped into the witness box as RW.1, Exs.R1 to R29 were marked. The learned Family Court Judge on appreciation of evidence and keeping in mind the welfare of the child as paramount consideration allowed the petition filed by the petitioner/husband for custody of the child and directed the respondent/wife to hand over the custody of the child-Chiranth to the petitioner within one month from the date of the order. The learned Judge also recorded a finding that the respondent/wife deserted the petitioner/husband without any lawful excuse and thereby he allowed the petition for divorce filed by the petitioner/husband and dissolved the marriage between the petitioner and respondent solemnized on 15.03.1999 by a decree of divorce by the impugned judgment. 7. The learned Judge also recorded a finding that the respondent/wife deserted the petitioner/husband without any lawful excuse and thereby he allowed the petition for divorce filed by the petitioner/husband and dissolved the marriage between the petitioner and respondent solemnized on 15.03.1999 by a decree of divorce by the impugned judgment. 7. Aggrieved by the decree of divorce in M.C.No.110/2004, the respondent/wife preferred MFA No.7754/2011. Aggrieved by the order as to grant of custody in G & WC No.76/2004 in favour of the petitioner/husband she preferred MFA No.7755/2011. 8. We have heard the arguments addressed by the learned counsel appearing for both the parties. Perused the records. 9. Upon hearing the arguments of the learned counsel for both the parties and upon consideration of entire material on record, the following points would arise for our consideration: (i) Whether the order as to dissolution of marriage by decree of divorce passed by the Court below is sustainable in law? (ii) Whether the Court below is justified in directing the respondent/wife to hand over the custody of the minor child? Re. Point No.1. 10. Upon hearing the submission made by the learned counsel for both the parties and on perusal of material on record, what emerges is that the relationship between the petitioner and respondent as husband and wife is not in dispute. Their marriage was solemnized on 15.03.1999 at Bangalore as per Hindu rites and customs is also not in dispute. It is also not in dispute that after the marriage respondent/wife was taken to matrimonial house and out of the said wedlock a son by name Chiranth was born. It is the case of the petitioner that within eight days from the date of his marriage with the respondent, he was subjected to harassment and ill-treatment by the wife. It is also alleged that when his parents advised her, they were also not treated properly. The respondent deserted him without any reason. Of course, respondent/wife has denied all those allegations made including the allegation of desertion and cruelty. On the other hand, she has contended that she is willing to join the company of her husband. Admittedly, the marriage had taken place in the year 1999. From the allegations made out by the husband, differences and dispute arose between the husband and wife within a week from the date of the marriage. On the other hand, she has contended that she is willing to join the company of her husband. Admittedly, the marriage had taken place in the year 1999. From the allegations made out by the husband, differences and dispute arose between the husband and wife within a week from the date of the marriage. Petitioner/husband has went on record to depose that all the efforts made by him to restore the company of his wife did not materialize. On the other hand, the respondent/wife went on record to depose that she was not treated properly in the matrimonial house and even after she gave birth to a male child while she was in the house of her parents, her husband did not come to see the face of her child. Be that as it may, that the relationship between the husband and wife is strained eversince 1999 though the petition came to be filed in the year 2004 for dissolution of marriage. Admittedly, there has been no relationship between the petitioner and respondent for the last more than 15 years. There is no cogent evidence for having made sincere efforts by the respondent or by her parents to restore the company of her husband during this period of 15 years. She has not examined her parents or any of her relatives to establish her bonafides that she was interested to join the company of her husband and for that matter to show the efforts made by her. Taking into consideration, the conduct of both the parties the court below has recorded a finding that the desertion has been proved by the husband and granted divorce. On our re- appreciation of evidence, we also do not find any reason to call for our interference in the impugned judgment as to the dissolution of marriage by the decree of divorce on the ground of desertion. Even if the decree passed by the Court below is reversed, no useful purpose would be served. It is highly impossible that after 15 long years, the respondent/wife would go and join the company of the petitioner and lead marital life. Having regard to the facts and circumstances of the case, the dissolution of marriage by a decree of divorce is in the larger interest of both the petitioner and the respondent. It is highly impossible that after 15 long years, the respondent/wife would go and join the company of the petitioner and lead marital life. Having regard to the facts and circumstances of the case, the dissolution of marriage by a decree of divorce is in the larger interest of both the petitioner and the respondent. As such, we are not inclined to interfere in the order passed by the court below as to the dissolution of marriage by decree of divorce. The appeal is liable to be dismissed as devoid of merits. Re. Point No.2. 11. Admittedly, eversince the birth, the child is in the custody of the mother. The child is brought up by the mother for all these days and admitted to school. However, the educational expenses of the child and the maintenance of the child is being lookedafter by the petitioner. At present, the child is aged about 14 years. During the course of argument, it was submitted that the child is in 9th Standard. It is manifest from the records that the petitioner/husband is well placed, he has got sufficient income so as to maintain the child and to lookafter the welfare of the child. He is qualified having completed his M.B.A. His father is a Retired Principal of Junior College. All his brothers and sisters are educated. The respondent has got no income of her own. In an application under Section 24 of the Hindu Marriage Act, filed in M.C.No.110/2004 she had stated that she is unemployed, she has no independent income and that the petitioner husband is getting monthly salary of Rs.15,000/-. The application was allowed and maintenance amount of Rs.1,500/- was awarded to her and Rs.500/- per month to the child which the petitioner has been regularly paying. She has admitted in her evidence that the school where the child is admitted is at a distance of 15 Kms from the house of her parents. Whereas, the petitioner is residing in Jayanagar where there are number of good educational institutions. The petitioner has undertaken that if the child is given to his custody, he will admit the child to renowned school very near to his house at Jayanagar. The mother of the respondent is no more. She has got a brother who is mentally retared. Whereas, the petitioner is residing in Jayanagar where there are number of good educational institutions. The petitioner has undertaken that if the child is given to his custody, he will admit the child to renowned school very near to his house at Jayanagar. The mother of the respondent is no more. She has got a brother who is mentally retared. Therefore, having considered the economic conditions, family background, educational background of the petitioner and the respondent, the petitioner will be in a better position to maintain, to lookafter the education and welfare of the child. Moreover, he being a father is a natural guardian entitled for the custody of the child. Having considered all these aspects in its proper perspective, the Court below has rightly ordered to give the custody of the child to the petitioner/the father of the minor child. But, the Court below has forgotten to remember that the respondent is the mother of the child who shall have visiting rights to visit the child to maintain the relationship of mother and son. Moreover, for all these more than ten years, the child is in the custody of the mother. Keeping in mind this fact, the respondent/mother is entitled to visit the child on every fortnight on Sunday and she is entitled for the custody of the child whenever the school in which the child is studying is on vacation for the whole period. Thus, on our re-appreciation of the entire material placed on record, we do not find any good ground to interfere in the order as to grant of custody of the minor child-Chiranth in favour of the petitioner. 12. For the foregoing reasons, M.F.A.No.7754/2011 is dismissed. 13. M.F.A.No.7755/2011 is partly allowed granting visiting right to the respondent/mother of the child to visit the child on every fortnight on Sunday in between 9.00 a.m. to 6.00 p.m. and to have custody of the child whenever the school in which the child is studying is on vacation, while confirming the order of custody of the child granted in favour of the petitioner by the Court below.