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2017 DIGILAW 42 (KAR)

JYOTHISHREE CHIDANANDA v. R. CHIDANANDA RANGAPPA

2017-01-04

K.S.MUDAGAL, S.ABDUL NAZEER

body2017
JUDGMENT : K.S. Mudagal, J. Being aggrieved by the judgment and decree dated 05.12.2013 passed by the Vth Additional Principal Judge, Family Court, Bengaluru in MC No. 1076/2010, the appellant/wife has preferred the above appeal under Section 19(1) of the Family Court Act. By the impugned judgment and decree the trial Court has allowed the petition of the respondent-husband for divorce. 2. The respondent filed M.C. No. 1076/2010 against the appellant for divorce. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court. In the petition, the petitioner/husband alleged that the respondent has deserted him since 01.04.2005 and subjected him to cruelty imputing him the communicable HIV/AIDS disease, isolated him in the house and humiliated him. He alleged that on such allegations respondent took him before the State Women's Commission and separated him from his daughter etc. 3. The respondent denied all the allegations made against her and contended that it is the petitioner who subjected her to cruelty, which forced her and her daughter to take shelter with her parents and he failed and neglected to maintain them. She further contended that the Principal Civil Judge (Sr.Dn.), Shimoga by the order dated 11.01.2007 dismissed the husband's earlier petition in MC No. 31/2006 for restitution of conjugal rights filed on the same grounds holding that the petitioner has subjected her to cruelty and she has reasonable grounds to withdraw from his company and therefore, again on the same grounds the petitioner cannot seek divorce. 4. The respondent further contended that the petitioner failed to discharge his marital duty towards the respondent and the parental duty towards daughter which resulted in she claiming maintenance under section 125, Cr.P.C. and daughter filing suit for maintenance in OS No.445/2009 which culminated into decree against him. Thus, sought for dismissal of the petition. 5. Before the Trial Court, the petitioner got himself examined as PW1 and got marked Exs.P1 to P14. The respondent got examined herself as RW1 and got marked Exs.R1 to R7. 6. Thus, sought for dismissal of the petition. 5. Before the Trial Court, the petitioner got himself examined as PW1 and got marked Exs.P1 to P14. The respondent got examined herself as RW1 and got marked Exs.R1 to R7. 6. The Trial Court by the impugned judgment allowed the petition and granted decree for divorce holding that: (i) respondent has deserted the petitioner since 2005 without any reasons and animus to join him; (ii) subjected the petitioner to cruelty making complaint against him before the Principal Secretary of Women and Child Welfare Department, Bengaluru imputing him HIV/AIDS and; (iii) the marriage of the parties has become dead-wood. 7. The learned counsel for the respondent contends that despite the clear finding in MC No. 31/2006 that the cruel conduct of the petitioner forced the respondent to withdraw from his company, the trial Court has granted decree on the same ground. The appellant's counsel, therefore, contends that the petition itself is hit by the principles of res judicata and the trial Court without meeting that point granted the decree, thus, it is perverse. 8. So far as the finding of the trial Court that the marriage has become dead-wood and therefore the petitioner is entitled for decree of divorce, the learned counsel for the respondent contends that the said reasoning is contrary to the ratio laid down by the Hon'ble Supreme Court in the following judgments; (i) Darshan Gupta v. Radhika Gupta, 2013 AIAR 674; (ii) Neelam Kumar v. Dayarani (2010) 13 SCC 298 . 9. Learned counsel for the petitioner supporting the judgment of the trial Court contends that admittedly, the respondent has withdrawn from the society of the petitioner since 2005 and she has made complaints to the Principal Secretary lo the Women and Child Welfare Department, Government of Karnataka imputing HIV/AIDS to the petitioner without proving the same. He contends that therefore, (he trial Court is justified in granting the decree. 10. In support of his contention the learned counsel for the petitioner relied upon the following judgments: (i) Vinod Kumar Subbaiah v. Saraswathi Palaniappan (2015) 8 SCC 336 . (ii) G.V.N. Kameswara Rao v. G. Jabilli (2002) 2 SCC 296 . (iii) Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 . (iv) Smt. Surekha v. R. Girish Aradhya AIR 2016 Karnataka 71. 11. (ii) G.V.N. Kameswara Rao v. G. Jabilli (2002) 2 SCC 296 . (iii) Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 . (iv) Smt. Surekha v. R. Girish Aradhya AIR 2016 Karnataka 71. 11. On hearing both the parties, the point that arises for consideration is "Whether the impugned judgment and decree suffers any legal infirmity warranting the interference of this Court?" 12. This Court being the First Appellate Court evaluated the pleadings, oral and documentary evidence. In fact the petitioner in his petition did not specify under which sub-section, Section 13 of the Hindu Marriage Act, he has sought the divorce. Even the trial Court in its judgment does not specify under which sub-section of Section 13 of the Hindu Marriage Act the divorce is granted. By the over all reading of the petition and the judgment, it has to be made out that the divorce is sought on the ground of desertion and cruelty and the trial Court has granted the decree of divorce on the ground of desertion, cruelty and irretrievable breakdown of marriage. 13. Reg - Irretrievable break down of marriage: The Trial Court in Paragraph 21 of the judgment at one breath holds that the petitioner is not seeking the decree of divorce on the ground of irretrievable break down of the marriage therefore the judgment of the Hon'ble Apex Court in Neelam Kumar v. Dayarani is not helpful to the respondent. In the same paragraph at another breath the trial Court holds that the respondent has left the matrimonial house with animus decirendi and there is no chance of re-union of the couple, therefore, the marriage has become dead-wood (as worded by the trial Court) as such the petitioner is entitled for decree of divorce. 14. Hon'ble Supreme Court in the judgments in the cases of Neelam Kumar and Darshan Gupta (supra) has held that the relief of dissolution of marriage on the ground of irretrievable break down of marriage cannot be granted since no such ground has been provided by the legislature for granting the decree of divorce. It is held that the Court cannot add such a ground under Section 13 of the Act as that would amount to amending the Act which is the function of the Legislature. Therefore, the decree of the Trial Court on the ground of irretrievable break down of the marriage is wholly unsustainable under law. It is held that the Court cannot add such a ground under Section 13 of the Act as that would amount to amending the Act which is the function of the Legislature. Therefore, the decree of the Trial Court on the ground of irretrievable break down of the marriage is wholly unsustainable under law. 15. Reg: Desertion and Cruelty: The trial Court grants decree holding that respondent has deserted the petitioner with animus decirendi. The petitioner himself has produced the judgment dated 11.01.2007 in MC No. 31/2006 passed by the Principal Senior Civil Judge, Shimoga at Ex.P1. The perusal of Ex.P1 and the pleadings in this case show that in both the cases the petitioner sought relief on the following grounds: (i) that the respondent has wilfully deserted him since 2005; (ii) she subjected him to cruelty suspecting that he is infected with HIV/AIDS, isolated him from her company and humiliated him ; (ii) she filed complaint before the Principal Secretary, Women and Child Welfare Department, Government of Karnataka; 16. In M.C. No. 31/2006 the respondent contended that the petitioner himself is guilty of cruelty as he harassed her demanding money from her parents and he has neglected to maintain her and her child. In both the cases, respondent contended that since she could no more tolerate his cruelty she separated from his company and as a revenge the petitioner tried to break the marriage of her brother also. 17. Ex.P1 shows that considering all the above said rival contentions and the evidence adduced by the parties on such contentions the Court in MC No. 31/2006 rejected the evidence of the petitioner and dismissed the petition. In MC No. 31/2006 the Court even went to the extent of saying that it observed the demeanour of the witnesses, namely, the petitioner and respondent and found that the respondent's case is more probable. 18. The petitioner did not challenge the judgment and decree in MC No. 31/2006. Thus the findings in the said case on the plea of desertion and cruelty raised by the petitioner have attained finality. It is not the case of the petitioner that later petition is filed on the different cause of action or based on any changed circumstances. 19. The petitioner did not challenge the judgment and decree in MC No. 31/2006. Thus the findings in the said case on the plea of desertion and cruelty raised by the petitioner have attained finality. It is not the case of the petitioner that later petition is filed on the different cause of action or based on any changed circumstances. 19. Even otherwise, the petitioner seeks divorce on the ground of desertion when there is a finding of the competent Civil Court operating against him in an earlier petition to the effect that the respondent has reasonable ground to withdraw from his society. As already pointed out the petitioner has allowed that finding to attain finality. 20. Similarly, the XIX Additional City Civil Judge, Bengaluru in OS No. 445/2009 decreed the suit of the daughter on 22.09.2010 for maintenance vide judgment at Ex.R1. Ex.R7 the judgment in Crl.R.P. No. 195/2010 dated 28.06.2013 shows that the Sessions Court has allowed the respondent's petition under Section 125 of Cr.P.C., and granted maintenance at the rate of Rs. 3,000/- per month from the date of filing of C.Mis. No. 955/2009 (707/2005) till 30.06.2006. In both the cases the maintenance is granted holding that the petitioner has failed and neglected to maintain his wife and daughter despite having sufficient means. Even those findings have attained finality. 21. The above evidence shows that it was the petitioner who was unjust in the family relationship. Despite that the trial Court over looking all those findings grants decree of divorce on the same allegations of the petitioner which did not find merit in the earlier litigations. Therefore, the impugned judgment fails the test of legal sustainability. 22. Sri. Sadashivappa, learned counsel for the respondent contends that Section 13(1)(b) of the Hindu Marriage Act contemplates 'desertion' and not a wilful desertion. Therefore, the judgment and decree in MC No. 31/2006 does not come in the way of granting the decree for divorce. Thus, he justifies the decree of divorce, granted by the trial Court overlooking the findings in MC No. 31/2006. 23. The term desertion is explained in the explanation to Section 13 of the Hindu Marriage Act as the desertion of the petitioner by the other party to the marriage without "reasonable cause" etc. Therefore, the word desertion in Section 13(1)(b) of the Act has to be necessarily read as desertion without reasonable cause. 23. The term desertion is explained in the explanation to Section 13 of the Hindu Marriage Act as the desertion of the petitioner by the other party to the marriage without "reasonable cause" etc. Therefore, the word desertion in Section 13(1)(b) of the Act has to be necessarily read as desertion without reasonable cause. But the trial Court oblivious of this provision and the earlier finding of the competent Civil Court in MC No. 31/2006 holds that respondent deserted the petitioner with animus-decidendi since 2005. 24. While granting a decree of divorce under Section 13(1) of the Hindu Marriage Act, 1955 Section 23(1)(b) of the Hindu Marriage Act requires the Court to satisfy itself that the petitioner has not connived at or condoned the acts complained of (desertion and cruelty in this case). While filing M.C. No. 31/2006, the husband though alleged cruelty sought restitution of conjugal rights thereby condoned the cruelty alleged. Secondly, the Court held that the husband himself is the cause for desertion. 25. It is not the case of the petitioner that after decreeing M.C. No. 31/2006, the couple lived together and there were later acts of cruelty or desertion which constitute different cause of action. Unless the earlier finding in M.C. No. 31/2006 is reversed by an Appellate Court it is not open to the petitioner to re-agitate the same ground nor the Court can grant a decree on such ground in view of Section 23 (1)(b) of the Hindu Marriage Act. The trial Court failed to appreciate the effect of the judgment in M.C. No. 31/2006, Section 23(1) of the Hindu Marriage Act and the evidence properly, thereby fell into error. Therefore, the Judgment and decree of the trial Court is liable to be set-aside. 26. In the judgment in Vinod Kumar Subbaiah's. case there was evidence to show that the respondent abused the petitioner in foul language and made false allegations against him before the police and treated the relatives of the petitioner contemptuously. 27. In G.V.N. Karneswara Rao's case, the Apex Court found that the respondent made false complaint against the petitioner and caused loss of his reputation and standing in the society. 28. In Naveen Kohli's case Hon'ble Apex Court found that the respondent filed many criminal cases against the petitioner and made all efforts to harass and torture him. 27. In G.V.N. Karneswara Rao's case, the Apex Court found that the respondent made false complaint against the petitioner and caused loss of his reputation and standing in the society. 28. In Naveen Kohli's case Hon'ble Apex Court found that the respondent filed many criminal cases against the petitioner and made all efforts to harass and torture him. Therefore, based on the evidence, it was held that there is mental cruelty to the petitioner and decree for divorce was granted. 29. The petitioner himself suggests to RW1 that she has not filed any complaint before the police alleging cruelty. Thereby the petitioner tried to prove that he was not cruel to her. As against that the judgments at Exs.P1, R1 and R7 substantiate the contentions of the respondent that it is the petitioner who neglected to discharge the marital duties. In addition to that Ex.P1 the judgment in MC No. 31/2006, there is reference to the letter written by the petitioner to the father in law seeking money. That itself substantiate the contention of the respondent that the petitioner was demanding money from her parents. 30. In Smt. Surekha's case (AIR 2016 Karnataka 71), the Court found that the respondent has failed to adduce evidence in support of her contention that she made sincere efforts to join the company of the petitioner. Therefore, the desertion is proved. But in this case, there is a finding of the competent Court that the respondent has sufficient reason for withdrawing from the company of the petitioner. Therefore, the judgments relied upon by the learned counsel for the petitioner are not applicable to the facts of the present case. 31. This case is squarely covered by the ratio of law laid down by the Hon'ble Apex Court in Darshan Gupta's case (supra), that if the respondent remains away from the petitioner for the causes attributable to him, he is not entitled to decree of divorce. 32. For the aforesaid reasons the impugned judgment and decree do not sustain the test of law and evidence. Therefore, the appeal is allowed with costs. The impugned judgment and decree is hereby set-aside. The petition filed by the petitioner/husband for divorce is hereby dismissed with costs throughout.