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2016 DIGILAW 193 (KAR)

Vanishree v. Rudhi Kumar

2016-02-23

N.K.PATIL, RATHNAKALA

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JUDGMENT : Rathnakala, J. The appellant/wife is aggrieved by the judgment of the Court below whereby her petition for divorce filed under Section 13(l)(a) of the Hindu Marriage Act (for short 'Act') is dismissed. Respondent though served through paper publication, is unrepresented. 2. Brief facts of the case is, the appellant/wife filed divorce petition contending that she married the respondent on 7.8.2003 at Bengaluru, as per Hindu rites and customs. Thereafter, the couple resided together for some days at Bengaluru, then shifted to Hyderabad and thereafter to Mumbai where husband harassed her for money and snatched all her valuables. Mother of the wife had to borrow money from her friends and relatives to fulfil the demands of the husband. He used to physically abuse her for not getting sufficient money from her parents. He used to snatch away money from her using her debit and credit card as she was working at that point of time. Further, he used to come home at late night drunk and pick up quarrel with her. On 05.09.2010, husband left the house in the early morning without informing her and absconded along with her cash, gold and silver articles. She filed a complaint at Mumbai against the husband in the local police station and returned to Bengaluru. She again filed a complaint against the husband before Kumaraswamy Layout Police Station and the case was registered in Crime No. 438/2010 in respect of the offence punishable under Section 498A read with Sections 34 and 379 of IPC. Legal notice issued to him has returned unserved. Hence, the petition for decree of divorce and also for return of gold jewellry and cash of Rs. 20 Lakhs. Husband remained ex parte and wife examined herself as PW 1 and produced 4 documents. 3. The learned Judge while declining to grant relief to the wife observes that at para-6 of the petition, she pleaded that the husband demanded money from her mother and took away the gold ornaments from her custody under the guise of developing his business. In the same running para, she had pleaded that all her gold ornaments weighing 1 kg and silver articles worth of Rs. 8 to 10 lakhs were snatched away from her. In the subsequent para, she had pleaded that on 05.09.2010, husband absconded with jewellry and cash of Rs. 50,000/-. In the same running para, she had pleaded that all her gold ornaments weighing 1 kg and silver articles worth of Rs. 8 to 10 lakhs were snatched away from her. In the subsequent para, she had pleaded that on 05.09.2010, husband absconded with jewellry and cash of Rs. 50,000/-. Further, in the complaint lodged before Charkop Police, Kandiwalli West, Mumbai, she had alleged that on 05.09.2010, husband left the house in the early morning along with her jewellries around 60 grams, but there was no mention about cash of Rs. 50,000/-. In the complaint lodged before Kumaraswamy Layout Police on 20.09.2010, she had averred that husband left the matrimonial home with mangalyasara, neck chain and finger ring weighing about 60 grams. According to the learned Judge, these allegations even if were to be proved, it cannot be taken as act of cruelty warranting to dissolution of the marriage. The other facts that counted upon the learned trial Judge to dismiss the petition was, she did not examine her mother and brother who allegedly had paid the money to her husband in compliance of his demand. That prompted the learned Judge to observe that the case of the petitioner is beset with impropriety, contradictions and inconsistency. The learned Judge while concluding his discussion referring to the provisions of Section 23 of the Act, further holds that the petitioner has failed to prove the alleged instances of cruelty making of the ground for dissolution of the marriage under Section 13(l)(ia) of the Act, the case was dismissed. 4. Section 23 of the Act has influenced the learned Trial Court to deny relief to the wife though it was an uncontested matter. Section 23(1) (b) is the relevant provision in respect of the prayer made under Section 13(1)(ia) of the Act reads thus: 23. Decree in proceedings. (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that- (a) xxx xxx xxx (b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of the Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and [(bb) xxx xxx xxx 5. Wherefore it is clear, what the Court is obliged to look for is that the petitioner-him-self/herself shall not be guilty of himself/herself of any matrimonial offence and he/she subsequent to the alleged act of cruelty has not condoned the cruelty by her wilful conduct and thereafter complain against the opposite party of such condoned cruelty as a ground for divorce. The question of testing the matrix under Section 23(1)(b) would arise only after the petitioner places sufficient evidence about the alleged act of cruelty. If in the opinion of the trial Court, the evidence is insufficient the question of invoking Section 23 of the Act will not arise at all. It is evident that the Trial Court has misdirected himself in returning simultaneously that the alleged acts ate not proved and she is not entitled for relief in view of Section 23(1)(b) of the Act. 6. Here is the case, the husband does not respond to the Court notice. There is not even a scintilla of material on record to presume or assume that the wife herself is taking benefit of her own wrong. The proceeding in a matrimonial case by virtue of Section 21 of the Act is regulated by the Code of Civil Procedure, 1908, as far as may. The proceeding being civil in nature, the appreciation of evidence necessarily under the touchstone of preponderance of probabilities as against proof beyond all reasonable doubt in a criminal case. The learned Trial Court is too meticulous in segregating and distinguishing the contentions of alleged act of cruelty. 7. The very fact that the husband does not appear before the Court to contest the case, indicates that he is not disputing the acts of cruelty alleged against him. Dehors the alleged acts of physical torture extortion of money and valuables, the very act of the husband abandoning the matrimonial home and deserting the wife without notice by itself is sufficient to make out a case of cruelty for the wife. "Cruelty" though is made available as a ground for desertion is not defined under the Act. The cruelty as defined under Section 498-A of IPC cannot be a parameter in a matrimonial case. The perception of cruelty being individualistic may vary upon the person to person. "Cruelty" though is made available as a ground for desertion is not defined under the Act. The cruelty as defined under Section 498-A of IPC cannot be a parameter in a matrimonial case. The perception of cruelty being individualistic may vary upon the person to person. What amounts to cruelty for a party before the Court cannot be negated on the individual perception of a Judge, when there is no evidence to the contrary. 8. The wife having come to the Court with the allegation of cruelty meted out on her by the husband, in the absence of anything to the contrary, the Court should not have rejected the relief. In the case of Samar Ghosh v. Jay a Ghosh (2007) 4 SCC 511 , the Apex Court held that the concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Hence, we do not have any such definition of cruelty and it is upon the Courts to perceive the meaning depending upon the circumstantial evidence. The reasons assigned by the learned Trial Judge is, on meticulous evaluation of evidence which is not warranted in a case of this nature. The Court could not have assumed on its own of hurdle under Section 23 of the Act to deny relief to her. The approach of the Trial Court is erroneous and warrants interference. In the result, the appeal is allowed in part. The judgment and order dated 27.01.2012 in MC No. 4011/2010, on the file of the Principal Judge, Family Court, Bangalore is hereby set-aside. The marriage between the appellant and respondent dated 7.8.2003 that was celebrated at Bengaluru is dissolved by decree of divorce. Liberty is reserved to the appellant/wife to workout remedy for return of cash amount of Rs. 20 lakhs, gold and silver valuables weighing 1 kg from the respondent/husband in a separate proceedings, if so advised. Draw the decree accordingly. Appeal partly allowed.