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2017 DIGILAW 1303 (KAR)

Jaisheela v. N. VS B. G. Mallikarjuna

2017-09-15

B.A.PATIL, JAYANT PATEL

body2017
ORDER : Though the appeal is listed for admission, with the consent of the learned counsel on both sides, it is heard finally. 2. The present appeal is filed by the appellant-wife assailing the order dated 12.8.2016 passed by the II Additional Judge, Family Court, Bangalore in MC.No.3296/2014. 3. For the purpose of convenience, the parties are referred to as they referred to before the trial Court. 4. The brief facts of the case are that the marriage of the petitioner and the respondent was solemnized on 17.10.2008 at Tiptur as per their rituals and customs. About 2½ years they led marital life happily and thereafter the respondent-wife went to her parental house for delivery of the child. She came back after six months and at that time, her character and behaviour was completely changed. She started humiliating the petitioner and degraded him by taunting. The petitioner tolerated the said humiliation. However, she continued to torture him mentally and even started insulting him in front of his relatives and friends. Subsequently, she left the matrimonial house without informing him and started living separately. All the efforts made by the petitioner became in vain and even the respondent stopped her matrimonial relationship since 9.9.2013. 5. Though the respondent-wife conceived for the second child, without the knowledge of the petitioner-husband, she underwent abortion which also caused mental shock and agony to the respondent and as such the petition for divorce came to be filed by him under Section 13(1)(ia) of the Hindu Marriage Act (‘Act’ for short). 6. In pursuance of the notice, respondent-wife filed objections denying the contents of the petition. She admitted the marriage. In her objections, she contended that the petitioner used to assault her as she has not taken care of his mother and also for silly reasons. The cruel and violent nature of her husband caused apprehension in her mind and as such she left the matrimonial house along with the child and started residing in her sister’s house. Hence, she prayed for dismissal of the petition. 7. In order to prove his case before the Court below, the petitioner got examined himself as PW.1 and marked ten documents as per Ex.P1 to P10. The respondent-appellant herein neither cross-examined P.W.1 nor adduced any oral evidence on her behalf. Hence, she prayed for dismissal of the petition. 7. In order to prove his case before the Court below, the petitioner got examined himself as PW.1 and marked ten documents as per Ex.P1 to P10. The respondent-appellant herein neither cross-examined P.W.1 nor adduced any oral evidence on her behalf. After hearing the learned counsel on both sides, the Court below passed the impugned order, against which, the respondent-wife is before this Court in the present appeal. 8. We have heard Mr. Nithyananda K.R., learned counsel appearing for the appellant-wife and Mr. R. Krishna Reddy, learned advocate for the respondent-husband and perused the records. 9. The learned counsel for the appellant has contended that the Court below has not given full opportunity to the appellant herein to put forth her case. Though the evidence is not sufficient to hold that the appellant has treated the respondent with cruelty and even though the appellant has not cross-examined the respondent and has not stepped into the witness box, heavy burden lies upon the respondent-husband to substantiate his contentions and to prove his case to succeed on the ground of cruelty. On these grounds, he prayed for allowing the appeal and to set aside the impugned order. 10. Whereas, the learned counsel appearing for the respondent-husband has vehemently argued and contended that the impugned order is in accordance with law. Appellant-wife has not cross-examined the respondent-husband and has not challenged the evidence led by him. There is sufficient material to show that the appellant-wife has suppressed the material facts. She used to be arrogant for silly reasons. She ill-treated and harassed the respondent-husband. Further, he has submitted that the respondent-husband has filed an affidavit, dated 7.8.2017 stating that after passing of the decree for divorce by the Court below on 12.8.2016, after lapse of 8½ months, he got remarried with one Anusha (Usha K.M.) on 5.5.2017 and they are living together. To the said effect, the respondent-husband has also produced the photographs and wedding card along with the affidavit. To the said effect, the respondent-husband has also produced the photographs and wedding card along with the affidavit. Learned counsel for the respondent has further contended that the appellant-wife is working as a Teacher and for the purpose of the welfare of the child, the respondent is ready to pay an amount of Rs.6 Lakhs as permanent maintenance and the same may be kept in Fixed Deposit till the minor daughter attains the age of majority and till then interest as may become due from time to time may be utilized for the benefit of minor daughter. On these grounds, he prayed for dismissal of the appeal. 11. It is the specific contention of the learned counsel for the respondent-husband that after passing of the impugned order, the respondent waited for statutory period and he got remarried with one Anusha on 5.5.2017. As such the marriage between the appellant and the respondent herein would automatically become a marriage in nullity which cannot be considered under the facts and circumstances of the case. On the other hand, it is the contention of the learned counsel for the appellant-wife that before remarrying, the respondent-husband should have appraised himself whether any appeal is preferred by the appellant-wife. As per the learned counsel, without making any assertion if the respondent-husband got remarried, the said marriage will become illegal as per Section 15 of the Act. In order to substantiate the said contention, he relied upon a decision of the Apex Court in the case of Tejinder Kaur Vs. Gurmit Singh, reported in AIR 1988 SC 839 . He has further contended that contracting second marriage during pendency of the appeal against a decree of divorce would be hit by mischief of the provisions of Section 15 of the Act. In support of his contention, he relied upon the decisions of the Apex Court in the case of Smt.Kajal Chowdhury Vs. Dilip Chowdhur, AIR 2004 Cal 113 ; Smt. Lila Gupta Vs. Laxmi Narian & others, AIR 1978 SC 1351 ; and Smt. Lata Kamat Vs. Vilas, AIR 1989 SC 1477 . 12. It is not in dispute that this Court by the order dated 11.5.2017 directed the respondent-husband not to contract second marriage without further orders from this Court. The said order was passed unilaterally before service of notice on the respondent. Vilas, AIR 1989 SC 1477 . 12. It is not in dispute that this Court by the order dated 11.5.2017 directed the respondent-husband not to contract second marriage without further orders from this Court. The said order was passed unilaterally before service of notice on the respondent. After service of notice on the respondent, on 27.7.2017, the learned counsel appearing on behalf of the respondent-husband sought permission of this Court to file an affidavit contending that prior to passing of the order dated 11.5.2017 by this Court, the respondent has remarried with Anusha and he also filed the affidavit on 7.8.2017 in that regard. Hence, the learned counsel for the respondent-husband has submitted that since the respondent has already remarried and without prejudice to the rights and contentions in the appeal, the respondent is ready to deposit a reasonable amount towards the maintenance of his minor daughter who is with the appellant-wife. He has further submitted that the appellant is working as a Teacher and her monthly salary is more than that of the respondent and he is ready to deposit Rs.5 Lakhs so as to keep the said amount in Fixed Deposit in the name of the minor daughter and periodical interest accrued thereon may be used for her welfare till she attains majority. 13. It was the specific contention of the petitioner-husband before the Court below that the respondent-wife used to insult him in the presence of his relatives and friends and was egoistic lady. She left the matrimonial house without informing him and started residing separately along with child in her sister’s house thereby caused cruelty. But the respondent-wife in her objections contended that the petitioner-husband assaulted her on the ground that she has not taken care of his mother and for other silly reasons. Because of his cruel and violent nature she got apprehended and under the fear, she left the matrimonial house along with child and started living in his sister’s house. 14. The records reveal that though the petitioner-husband was examined as PW.1 and got marked ten documents as per Ex.P1 to P10, the said testimony has not been challenged by the respondent-wife by cross-examining him and surprisingly she did not step into the witness box and never led any evidence to substantiate her contention taken in her objections. 14. The records reveal that though the petitioner-husband was examined as PW.1 and got marked ten documents as per Ex.P1 to P10, the said testimony has not been challenged by the respondent-wife by cross-examining him and surprisingly she did not step into the witness box and never led any evidence to substantiate her contention taken in her objections. When the evidence of the petitioner-husband remained unchallenged, the Court below has decreed the petition by granting divorce. It was contended by the respondent-wife that due to inconvenience of her work schedule and for having spent time to take care of her minor daughter and even the relative of her counsel met with an accident, she did not contest the case. 15. Though the learned counsel appearing on both sides have raised several contentions, the fact remains that the respondent-husband after waiting for the statutory period got remarried with Anusha on 5.5.2017. Under the circumstances, the marriage which has been taken place between the appellant and the respondent herein would automatically become a marriage in nullity, which cannot be considered at this stage. The learned counsel for the appellant by relying on the decision in Tejinder Kaur’s Case (cited supra) has contended that the respondent-husband ought to have made enquiries whether any appeal is preferred by the appellant-wife before the appellate Court and merely because the appeal has already been filed and at that time the respondent-husband has got remarried, the appeal will not become infructuous on that ground. We have carefully and cautiously gone through the decisions quoted by the leaned counsel for the appellant. It has been specifically observed in the said decisions that the successful party must wait for a reasonable time and make sure whether any appeal has been filed before the appellate Court and thereafter he has to remarry. 16. It is also the specific contention of the learned counsel for the respondent-husband that impugned order came to be passed on 12.8.2016 by which the marriage of the appellant and the respondent herein got dissolved and after lapse of 8½ months, the respondent got remarried with Anusha on 5.5.2017, that too before issuance of notice by this Court. It is also the contention of the respondent’s counsel that the appeal is not filed within the stipulated time and there is a delay of 77 days in preferring the appeal. It is also the contention of the respondent’s counsel that the appeal is not filed within the stipulated time and there is a delay of 77 days in preferring the appeal. As per the decisions quoted by the appellant’s counsel that the successful party has to wait for a reasonable time to ensure whether any appeal has been preferred by the opposite party. But however, it is not specifically stated in the said decisions as to what is the reasonable time. It may be interpreted reasonably and in that light, it is clear that the respondent has got remarried 8½ months after passing of the impugned order. Even as could be seen from the provisions of Section 15 of the Act, it indicates that after dissolution of the marriage, after expiry of the time for preferring the appeal or after the dismissal of the appeal either party to the marriage may remarry. In that light, the appeal ought to have been filed within 30 days from the date of the impugned order, but the respondent has waited for 8½ months and thereafter he got remarried on 5.5.2017. When the respondent has already remarried with another woman after waiting for a reasonable period and he proves the same, then under such circumstances, Court cannot declare the said marriage as void or illegal. Hence, we are of the considered opinion that if the matter is remanded back to the Court below with a direction to proceed further for fixing of the permanent amount of maintenance to the daughter who is with the appellant-wife as the appellant is working as a Teacher and drawing the salary more than that of the respondent and she may not be entitled to any maintenance or permanent alimony as she is well settled in the life, no purpose would be served. In view of the above, if an amount of Rs.5 Lakhs or 6 Lakhs as desired by the respondent-husband is ordered to be kept in Fixed Deposit and the interest accrued thereon may be utilized for the welfare of the minor daughter till she attains the age of majority, it would meet the ends of justice. Hence, we pass the following order:- The order dated 12.8.2016 passed by the II Additional Judge, Family Court, Bangalore in MC.No.3296/2014 is confirmed. Hence, we pass the following order:- The order dated 12.8.2016 passed by the II Additional Judge, Family Court, Bangalore in MC.No.3296/2014 is confirmed. However, in the facts and circumstances of the case, the respondent-husband is directed to deposit an amount of Rs.6,00,000/- (Rupees six lakhs only) within two months before the trial Court. The said amount of Rs.6 Lakhs is ordered to be kept in Fixed Deposit in any nationalized bank of choice of the appellant-wife or the postal authorities in the name of the minor daughter, till she attains the age of majority and the appellant-wife is permitted to withdraw the periodical interest accrued thereon for the welfare of the minor daughter. With the aforesaid observations, the appeal is disposed of. In view of disposal of the appeal, I.A.Nos.1 to 3 are disposed of as they do not survive for consideration.