Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 944 (KAR)

M. v. Veena Srinivasan VS V. Srinivasan

2015-08-18

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

body2015
JUDGMENT : P.S. Dinesh Kumar, J. This appeal is directed against the judgment and order dated 23-3-2011 in M.C. No. 1487 of 2002 on the file of II Additional Principal Judge, Family Court at Bengaluru allowing the petition filed by the husband under Section 9 of the Hindu Marriage Act, 1955 and dismissing the counter-claim filed by the wife seeking Divorce. 2. Brief facts of the case are that the marriage between the appellant and respondent was solemnised on 25-10-1988 at Guru Bhavan, Kollegal District. The couple have a male child born on 24-10-2000. 3. The averments contained in the petition filed before the Court below by the respondent disclose that the appellant went to her parents house for delivery and did not return to the matrimonial home. Efforts made by the husband to persuade the appellant to return to the matrimonial home did not yield any results. The husband initially wrote a letter requesting the appellant to join him in the matrimonial home. The said letter remained undelivered. The respondent got a legal notice issued on 14-6-2002 calling upon the appellant to join him. The appellant filed a complaint of down harassment against the respondent and his family members on 24-6-2002. 4. Thereafter, the respondent filed the instant petition under Section 9 of the Hindu Marriage Act, 1955 before Family Court on 22-10-2002 praying for restitution of conjugal rights. The appellant contested the petition and also filed a counter-claim praying for a decree of divorce. After trial, the Family Court has allowed the petition filed by the respondent and dismissed the counter-claim by the appellant. Hence, this appeal. 5. We have heard Sri N.K. Siddeswara, learned Counsel appearing for the appellant and Smt. Akkamahadevi Hiremath, learned Counsel appearing for the respondent. 6. Learned Counsel appearing for the appellant vehemently contends that the family members of the respondent were ill-treating and abusing her. There was a demand for dowry and her parents paid a sum of Rs. 1,50,000/- as dowry. In view of continued harassment, the appellant was compelled to lodge a complaint for offences punishable under Section 498-A of Indian Penal Code, 1860, read with Section 4 of the Dowry Prohibition Act, 1961. The said complaint is registered as FIR in Crime No. 223 of 2002 and pending adjudication in C.C. No. 790 of 2003 on the file of the ACMM, Bengaluru. 7. The said complaint is registered as FIR in Crime No. 223 of 2002 and pending adjudication in C.C. No. 790 of 2003 on the file of the ACMM, Bengaluru. 7. He submits that the respondent has filed the instant petition only to cover the ill-treatment meted out by him and his family members against the appellant. As a matter of fact, the respondent has always been keen to obtain a decree of divorce, which is manifest by his conduct in filing an application dated 16-11-2013 in Execution Proceedings No. 128 of 2011 on the file of III Principal Family Judge at Bengaluru. He adverted to the contents of the said application and submitted that the respondent has categorically sought fora direction to the appellant from the Family Court for divorce. 8. He submits that the respondent has made serious allegations against the appellant with regard to her chastity in his pleadings in G & WC No. 45 of 2013 on the file of Principal Family Judge at Bengaluru. He submits that in paragraphs 12 and 13 of the petition, the respondent has alleged that the appellant is leading an adulterous life. He further submits that the similar allegations are also found in the statement of objections (para 13) filed by the respondent in C. Misc. No. 480 of 2012 on the file of III Additional Family Judge, Bengaluru. 9. Thus, in sum and substance, it is contended on behalf of the appellant that the respondent and his family members have harassed her for dowry and ill-treated her. The petition filed by respondent for restitution of conjugal rights is only to cover the unjust treatment meted out against the appellant and cruelty inflicted on her. 10. Assailing the legality and correctness of the impugned order, the learned Counsel for the appellant strongly contends that the Family Court was swayed by the educational qualifications of appellants father and her sister and the designation of her father, who was working as a Tahsildar at the time of marriage of appellant with the respondent. He submits that the appellant has produced as many as 19 documents to contest the petition for restitution of conjugal rights and in support of her counter-claim for divorce, which have not been properly appreciated by the Family Court. Adverting to Ex. He submits that the appellant has produced as many as 19 documents to contest the petition for restitution of conjugal rights and in support of her counter-claim for divorce, which have not been properly appreciated by the Family Court. Adverting to Ex. R. 7, a certified copy of the deposition of one R. Srinivas, the learned Counsel submits that the contents of the said deposition are sufficient enough to come to the conclusion that the respondent and his family members have ill-treated the appellant and therefore the respondent was disentitled for any relief in his petition before the Family Court. On the other hand, the Family Court ought to have considered her case and granted the decree of divorce as prayed for. 11. Per contra, learned Counsel appearing for the respondent-husband while supporting the judgment and order passed by the Family Court submits that there is no error in law in the impugned order and prays for dismissal of the appeal. Amplifying her arguments, she submits that the appellant did not return to the matrimonial home after she went to her parents house for delivery. She strongly relied upon Ex. P. 1, a letter dated 16-5-2002 written by the respondent to the appellant. Adverting to the contents thereof she submits that the respondent by the said letter had requested the appellant to join him. She further submits that when the said letter was returned undelivered, he got a legal notice issued on 14-6-2002 calling upon her to join him within 15 days therefrom, failing which, he would institute appropriate legal proceedings. She further submits that as a counter blast, the appellant got a complaint lodged against the respondent and his family members for the offences punishable under Section 498-A of IPC and Sections 3 and 4 of Dowry Prohibition Act. 12. In reply to the submissions made on behalf of the appellant with regard to the application filed in execution proceedings, she submits that the said application was filed by the respondent in response to a categoric assertion made by the appellant that she was not prepared to join the respondent and lead a marital life with him before the Family Court on 4-12-2012. The learned Counsel referred to the order sheet dated 4-12-2012 in Execution Case No. 128 of 2011 and submitted that the order sheet clearly discloses that the appellant was present in the Court and it was submitted before the Family Court that she was not prepared to join the respondent and lead a marital life. Having realised the stand of the appellant, the respondent had got the application seeking a direction from the Court to the appellant to agree for divorce. 13. In sum and substance, learned Counsel for respondent submits that perusal of the impugned order makes it amply clear that the appellant has not made out any case of cruelty or desertion by the respondent and therefore the same does not require any interference. Accordingly she prays for dismissal of this appeal. 14. Having heard the learned Counsel at length and perused the entire material on record, the following points arise for our consideration: (i) Whether the appellant has made out a case for grant of divorce on the ground of cruelty and dowry harassment? (ii) Whether the respondent is entitled for a decree for restitution of conjugal rights? (iii) Any interference is required with the impugned order? Re: Point No. (i): The material on record discloses that the appellant did not return to her matrimonial home after delivery of the child. The child was born on 24-10-2000. Ex. P. 1 is a letter written by the respondent on 16-5-2002. The contents of the letter disclose that he was ill-treated when he visited the house of the appellant on 17-5-2001; that he had arranged a house in Mysuru and requested her to join and they could celebrate the naming ceremony of the child after she joined him in Mysuru. Ex. P. 2 is a legal notice issued on 14-6-2002. The complaint in Crime No. 223 of 2002 is lodged by the appellant with Rajajinagar Police Station on 24-6-2002. Column (3) of the FIR meant to record the occurrence of offence discloses that offences punishable under Section 498-A of IPC read with Sections 3 and 4 of the Dowry Prohibition Act are alleged against the respondent and four others and between 25-10-1998 and 23-6-2002. It is also not in dispute that the father of the appellant was working as the Tahsildar at the time of marriage of the appellant. It is also not in dispute that the father of the appellant was working as the Tahsildar at the time of marriage of the appellant. In the cross-examination, the appellant-R.W. 1 has stated thus: "I do not know whether the petitioner got issued legal notice to me on 14-6-2002. I do not know that the said legal notice was also returned as not claimed. It is false to suggest that petitioner never demanded anything from my father either personally or over phone. It is true that there is no phone facility in the house of the petitioner. It is incorrect to say that a false case is filed against the petitioner alleging dowry harassment. After filing complaint, police recorded my statement. In my statement before police I have stated that as a loan a sum of Rs. 1,50,000/- was given. Similarly my sister, my father have stated the same." (sic) (Underlining by us) The document-Ex. R. 7 is a copy of the deposition of one Srinivasa who was examined as a prosecution witness in the dowry harassment case (CC No. 790 of 2003). The said witness is no doubt a third party and spoken about the demand for downy. In the cross-examination, he has also admitted that a sum of Rs. 1,50,000/- was given as loan to the respondent. The said witness is an electrician by profession, residing in Chamarajapet, Bengaluru. The appellant and the respondent are residing at two different places. It is not forthcoming from the record as to how this witness knew the parties and what is his relation with them. Further, the veracity of said deposition is the subject-matter of adjudication of trial in C.C. No. 790 of 2003 pending on the file of VII ACMM, Bengaluru. The appellant is seeking to place reliance on the said deposition to contend that the contents thereof are sufficient to hold that there was a demand for dowry and infliction of cruelty upon the appellant. The said witness has not been examined before the Family Court. Hence, the said document does not lead the case of the appellant any further. So far as the application by the respondent in the execution proceedings seeking a direction to the appellant for a divorce is concerned, the same has been filed after appellant conveyed her clear stand that she was not prepared to lead marital life with the respondent. Hence, the said document does not lead the case of the appellant any further. So far as the application by the respondent in the execution proceedings seeking a direction to the appellant for a divorce is concerned, the same has been filed after appellant conveyed her clear stand that she was not prepared to lead marital life with the respondent. The allegation by the respondent with regard to the chastity of appellant, the same in our view, stands mitigated in view of the fact that the respondent has sought for restitution of conjugal rights notwithstanding the said allegation in different proceedings. At any rate, the said pleadings are filed before different proceedings and they are not subject-matter of adjudication in proceedings before the Family Court in these proceedings. Therefore, the arguments based on Ex. R. 7, copy of pleadings in G and W No. 45 of 2013 and Ex. No. 128 of 2011 are only noted to be rejected because, they are not on record as yet in these proceedings. The copies of the said documents are sought to be brought on record for the first time before this Court by filing an IA for additional documents. In the backdrop of the above discussion, we are of the view that the appellant has not made out any case of cruelty against her. We accordingly answer Point No. (i) against the appellant. Re: Point No. (ii): The appellant and the respondent are legally wedded couple. The appellant has filed a counter-claim before the Family Court seeking a decree of divorce while contesting the petition filed by the respondent for restitution of conjugal rights. A decree of divorce under the Hindu Marriage Act may be granted on the grounds available for a party seeking divorce. In the case on hand, the appellant has sought for dismissal of the petition for conjugal rights filed by the respondent and prayed for grant of decree of divorce by stating as follows in her counter-claim: "13............ It is humbly submitted that there is a total harassment to the respondent by the petitioner and his family members. The respondent does not wish to join the petitioner as there is a life threat, not only to her but also her parents." (sic) The alleged acts of harassment and threat to life have not been proved by placing cogent evidence. The respondent does not wish to join the petitioner as there is a life threat, not only to her but also her parents." (sic) The alleged acts of harassment and threat to life have not been proved by placing cogent evidence. The sequence of events placed on record lead us to infer that the complaint of dowry harassment was lodged on 24-6-2002 alleging offences for the period between 25-10-1998 and 23-6-2002 only as a counter blast to the legal notice issued by the respondent. There is neither proper foundation in the pleadings nor any cogent evidence either oral or documentary in favour of the appellant. Therefore, in our considered view, the appellant is not entitled for a decree of divorce. On the other hand, the respondent is entitled for the relief of restitution of conjugal rights. Re: Point No. (iii): In view of our answers to Point Nos. (i) and (ii) above, we have no hesitation to hold that the judgment and order passed by the Family Court is just and proper and does not call for any interference. 15. In the result, the appeal fails and accordingly, stands dismissed. No costs.