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2016 DIGILAW 91 (KAR)

Gopal Naidu v. R. Manjula

2016-01-27

N.K.PATIL, S.SUJATHA

body2016
JUDGMENT : S. Sujatha, J. 1. This appeal is directed against the judgment and order passed by the Principal Judge, Family Court at Bangalore in M.C. No. 3361/2012 dated 09.04.2013. 2. Facts in brief are: The marriage of the appellant with the respondent was solemnized as per the Hindu religion and rites on 11.04.2008 at Seetha Kalyana Mandira, P & T Colony, Nagawara Main Road, Bangalore. The couple have a female child from their marriage. It is alleged by the appellant that after the birth of the female child on 13.08.2009, a separate house was set-up by him at Dodakkanahalli where the appellant and respondent along with the child lived together as husband and wife. Some differences arose between the appellant and respondent. Due to the strained relationship, police complaints were lodged by the respondent against the husband/appellant alleging harassment. It is contended by the appellant that on 03.06.2012, both husband and wife decided to enter into an agreement of separation and separation agreement was executed on 29.08.2012 wherein it is mentioned that a sum of Rs. 2.00 lakhs (Rupees two lakhs only) and Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) be paid by the appellant to the respondent towards the maintenance of the respondent and the child respectively. The appellant filed a petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act' for short) before the Family Court for a decree of divorce, dissolving his marriage with the respondent solemnized on 11.04.2008. 3. Though respondent was served, she remained absent in the proceedings before the Family Court. After appreciating the evidence placed on record by the appellant, the petition filed by the appellant came to be dismissed. This Judgment and order of the Family Court dated 09.04.2013 dismissing the petition filed by the appellant for a decree of divorce is challenged in this appeal. 4. Learned counsel appearing for the appellant would strenuously contend that the Family Court failed to appreciate the documents placed before it. The appellant had placed substantial evidence to prove that he physically and mentally suffered in the hands of the respondent and had undergone sufferings even at the hands of the police as the respondent is in the habit of filing false complaints. The appellant had placed substantial evidence to prove that he physically and mentally suffered in the hands of the respondent and had undergone sufferings even at the hands of the police as the respondent is in the habit of filing false complaints. The conduct of the respondent in dragging the appellant to the police station and making him sit in the police station for the entire day, has brought down his dignity in the eye of the neighbourers and in the society as well. It is further contended that filing false complaints in criminal case against the husband is suffice to prove the act of cruelty which is not properly considered by the Family Court. Learned counsel further submitted that the Family Court failed to consider Ex. P. 7 - the deed of settlement entered into between the appellant and the respondent wherein the parties have agreed for separation and the respondent has agreed to receive the alimony for Rs. 3,50,000/- from the appellant. This Ex. P. 7 demonstrates the humiliation suffered by the appellant and the conduct of the respondent in harassing the appellant. This crucial evidence was not considered in right perspective by the Family Court. It is also contended that the appellant has established the desertion of the respondent under Section 13(1)(ib) of the Act. The Family Court out rightly rejected the contentions raised by the appellant, albeit the same is not refuted by the respondent. 5. Learned counsel in support of his contentions relies on the following Judgments: (1) Praveen Mehta vs. Inderjit Mehta, AIR 2002 SC 2582 (1) (2) Naveen Kohli vs. Neelu Kohli, AIR 2006 SC 1675 (1) (3) N.B. Rukmini vs. P.M. Srinivasa, AIR 1984 Kar. 131 6. Though the respondent is served, she has remained absent. 7. After hearing the learned Counsel for the appellant and perusing the material on record, we noticed that the appellant was married to the respondent on 11.04.2008 as per the Hindu Religious and rites at Bangalore. A female child was born from the marriage. The appellant is seeking for decree of divorce under Section 13[1][ia] and [ib] of the Act. 8. It is the contention of the appellant that the respondent has humiliated the appellant by filing false complaints. A female child was born from the marriage. The appellant is seeking for decree of divorce under Section 13[1][ia] and [ib] of the Act. 8. It is the contention of the appellant that the respondent has humiliated the appellant by filing false complaints. The appellant except pleading that the respondent harassed the appellant by filing false complaints has not come out with any concrete evidence to establish the act of cruelty made by the respondent. Filing of complaints itself would not be construed as cruelty unless it is proved to be false allegations. No such material evidence is available on record to prove the act of cruelty made by the respondent. The other ground on which the appellant is seeking divorce is under Section 13[1][ib] of the Act. 9. Learned counsel for the appellant has emphasized on Exhibit. P7 i.e., the separation agreement said to have been executed by the appellant with the respondent. The recitals in the Separation Agreement at Exhibit. P7 makes it clear that due to the differences between the parties, they have been living separately since 16.02.2002 and the child is in the custody of the respondent. The further recital reads as follows: "As the parties herein are living separately have decided to enter into this Separation Agreement to live separately and to lead their lives separately to their whims and fancies, hence this separation agreement." 10. The petition was filed by the husband in M.C. No. 3361/2012 in the year 2012. This establishes that there was no separation between the parties for continuous two years to indicate that the appellant is entitled to a relief under Section 13[1][ib] of the Act. Clause No. 6 of the Separation Agreement provides that either of the parties shall not institute any proceedings at any Court of law for restitution of conjugal rights or otherwise take any other steps for that purpose. These conditions are opposed to public policy and against the provisions of the Act. As such, this Agreement has no force in the eye of law and hit by Sections 23 and 28 of the Contract Act, 1872. The appellant has not proved desertion of continuous two years as required under Section 13[1][ib] of the Act and Separation Agreement does not confer any right on the appellant to seek for divorce even assuming Exhibit. P7, the settlement deed is executed between the parties. 11. The appellant has not proved desertion of continuous two years as required under Section 13[1][ib] of the Act and Separation Agreement does not confer any right on the appellant to seek for divorce even assuming Exhibit. P7, the settlement deed is executed between the parties. 11. The Apex Court in the case of Praveen Mehta [supra], was considering a case wherein right from the beginning, the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of six months; the wife was suffering from ailment, husband had been trying to persuade the wife and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal marital life. In such circumstances, the Apex Court held that the marriage between the parties has broken down irretrievably without any fault on the part of the husband who was enjoying normal health and was being deprived of normal cohabitation that every married person expects. The Judgment in the case of Naveen Kohli [supra] is rendered by the Apex Court in the context of husband and wife initiating several civil and criminal proceedings against each other. The marriage has been wrecked beyond hope of salvage and the parties were living separately for more than ten years. In such circumstances, the Apex Court has held that 'to constitute cruelty, the conduct of the spouse should be 'grave' so as to come to the conclusion that one spouse cannot be reasonably expected to live with other spouse which will be more serious than ordinary wear and tear of married life'. It is held thus: "67. The Court dealing with the petition for divorce on the ground of cruelty has to hear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent." 12. In the case of N.B. Rukmini [supra], the ingredients of desertion are explained. It is held that the ingredients of legal desertion are [i] the factum of desertion and [ii] the intention of a party to bring cohabitation permanently to an end [animus deserendi]. Therefore, in a petition for divorce by husband on the ground of desertion, it is not enough if it is established that the wife left the matrimonial home without reasonable excuse and against the wishes of husband, it must further be shown that the intention was to bring cohabitation permanently to an end. 13. In the light of the law enunciated by the Hon'ble Courts as referred to above, it is clear that every difference which may cause annoyance to the other or ordinary wear and tear of married life would not constitute cruelty. Mere filing of complaint against the husband by the wife to save herself from the harassment by the husband or to safeguard her interest to maintain the marriage would not be considered as cruelty. No evidence is brought on record by the appellant to establish that the complaints filed by the respondent-wife are false. The respondent has not deserted the appellant for more than continuous two years before filing of the petition. The Judgments referred to above, do not assist the appellant's case. In such circumstances, we do not see any infirmity or illegality in the order passed by the Court below in rejecting the application filed by the appellant as ingredients of section 13[1][ia] and [ib] of the Act are not established. 14. The Judgments referred to above, do not assist the appellant's case. In such circumstances, we do not see any infirmity or illegality in the order passed by the Court below in rejecting the application filed by the appellant as ingredients of section 13[1][ia] and [ib] of the Act are not established. 14. Accordingly, we do not see any merit in this appeal. The appeal stands dismissed. Ordered accordingly.