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2020 DIGILAW 992 (KAR)

B. Vasanth M Prabhu v. Nisha Rao N

2020-06-08

B.V.NAGARATHNA, S.VISHWAJITH SHETTY

body2020
JUDGMENT S.Vishwajith Shetty, J. - This miscellaneous first appeal has been filed by the husband being aggrieved by the judgment and decree dated 20.10.2014 passed by the learned Principal Judge, Family Court, D.K., Mangaluru, in M.C.No.66/2013, in so far as it relates to dismissal of his petition filed under Section 12(1)(a) of the Hindu Marriage Act, 1955 (for short, 'the Act') and further granting permanent alimony of Rs.5 lakhs to the respondent-wife in exercise of its power under Section 25 of the Act. 2. For the sake of convenience, the parties shall be referred to in terms of their rank and status before the Family Court. 3. The marriage of the petitioner/appellant herein with the respondent was solemnized on 27.11.2011 at Rama Laxmi Narayana Convention Hall, Mangala Devi Road, Mangaluru, as per the rites and customs prevailing in their community. After marriage, the petitioner and respondent started residing in their matrimonial home. 4. It is the case of the petitioner that their marriage has not been consummated due to deliberate refusal to have sexual intercourse by the respondent and the respondent refused to have sex stating that she is not interested and she used to abuse the petitioner for seeking physical intimacy. Subsequent to the marriage, the respondent in her Facebook account had changed her marital status as complicated, thereby indicating that she was not happy with the marriage. Having regard to the differences between the husband and wife, a meeting was held in the presence of respondent's paternal uncle and parents and it was brought to their notice about the abnormal behaviour of the respondent. It was also contended by the husband that the respondent had gone to the extent of threatening him stating that she would commit suicide and would lodge a false complaint against him and his parents. Petitioner along with his parents and paternal uncle had gone to the house of the parents of the respondent on 18.08.2012 to sort out the matrimonial problem. After differences being sorted out, the respondent started living with the petitioner, but even thereafter the marriage has not been consummated. Again, on 15.12.2012, a meeting was held at Abhiman Residency Hotel, Mangaluru, in the presence of the respondent's parents and her brother-in-law. In the said meeting, the respondent's parents humiliated the petitioner and his relatives. After differences being sorted out, the respondent started living with the petitioner, but even thereafter the marriage has not been consummated. Again, on 15.12.2012, a meeting was held at Abhiman Residency Hotel, Mangaluru, in the presence of the respondent's parents and her brother-in-law. In the said meeting, the respondent's parents humiliated the petitioner and his relatives. On 14.01.2013, the respondent threatened the petitioner that she would give a false complaint against him and his parents, and therefore, petitioner apprehended danger to his life and limb. Petitioner further contended that since 16.02.2013, he is living separately and on 14.03.2013, he got issued a legal notice to the respondent which was served on her, but there was no reply. It is under these circumstances, the petitioner had filed the petition before the Family Court, D.K., Mangaluru, in M.C.No.66/2013 under Section 12(1)(a) of the Act, to annul his marriage with the respondent, or, in the alternative, to dissolve the marriage on the ground of cruelty under Section 13(1)(ia) of the Act. 5. After service of notice, the respondent had entered appearance before the Family Court through her counsel and filed counter to the main petition admitting the marriage, but denying all the allegations made by the petitioner against her. The respondent had contended that since the beginning petitioner was neglecting her and that the petitioner was having an affair with a woman by name Vinitha Nayak. Petitioner used to sit and work in odd hours at night and he tried to have sex at odd hours forcibly that too when the respondent was totally exhausted. The respondent further contended that she was subjected to severe kind of neglect at the hands of the petitioner and because of the negligence and ill-treatment meted out on her by the petitioner, she had suffered mental agony. Inspite of the petitioner having an affair with another woman, she had not lodged any complaint or initiated any legal action against him in order to save the marriage. She also contended that the petitioner was in the habit of watching porn movies and he had failed to discharge his marital obligations, and therefore, she prayed for dismissal of the petition. 6. Both the parties were represented by their respective counsel before the Family Court. She also contended that the petitioner was in the habit of watching porn movies and he had failed to discharge his marital obligations, and therefore, she prayed for dismissal of the petition. 6. Both the parties were represented by their respective counsel before the Family Court. The conciliation efforts made by the Family Court under Section 9 of the Act had failed, and therefore, the matter was taken up for recording the evidence of the parties. During the course of trial, the petitioner examined himself as PW-1 and his paternal uncle, D.Satish Prabhu who was a witness to the meeting held at Abhiman Residency was examined as PW-2. In support of petitioner's case, ten documents were marked as Exs.P-1 to P-10. The respondent got herself examined as RW-1 and her father Nithyananda Rao was examined as RW-2. Respondent also examined RW-3 Dr. Sundari, a Gynaecologist who had examined her on 12.06.2014 and issued a certificate. In support of respondent's case, the certificate issued by RW-3 was marked as Ex.R-1. 7. The Family Court, after closure of the evidence, heard the arguments of both the parties and by means of the impugned judgment and decree dismissed the petition in respect to the prayer made under Section 12(1)(a) of the Act, and allowed the petition in so far as the alternative prayer made by the petitioner for decree of divorce under Section 13(1)(ia) of the Act. The Family Court further directed the petitioner to pay permanent alimony of Rs.Five lakhs to the respondent-wife within three months from the date of the order. 8. Being aggrieved by the said judgment and decree passed by the Family Court, in so far as it relates to dismissing the petition for the relief sought under Section 12(1)(a) of the Act and awarding of permanent alimony of Rs.5 lakhs to the respondent-wife, petitioner has filed this appeal under Section 19(1) of the Family Courts Act. 9. We have heard learned counsel appearing for the appellant who has addressed his arguments through video conference and also learned counsel for the respondent who has appeared in person before us. 10. Having heard learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration: (i) Whether the Family Court was justified in rejecting the prayer made by the petitioner in annulling the marriage under Section 12(1)(a) of the Act? 10. Having heard learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration: (i) Whether the Family Court was justified in rejecting the prayer made by the petitioner in annulling the marriage under Section 12(1)(a) of the Act? (ii) Whether the Family Court was right in awarding Rs.5.00 lakhs to the respondent herein towards permanent alimony? (iii) What order? 11. Learned counsel for the appellant contends that the Family Court was not justified in rejecting his petition in so far as the prayer made under Section 12(1)(a) of the Act inspite of there being sufficient material available on record to show that the respondent was suffering from impotency leading to non-consummation of marriage. He further contends that since the respondent is also gainfully employed, she is not entitled for any permanent alimony, and therefore, the impugned order granting permanent alimony is also not sustainable. Learned counsel for the appellant would also submit that the respondent has now re-married, and therefore, there is no justification in granting permanent alimony to her. 12. In reply, learned counsel for the respondent would support the impugned judgment and decree, by contending that the petitioner cannot have any grievance as against the rejection of his prayer under Section 12(1)(a) of the Act, because the Family Court has allowed his alternative prayer, wherein he had sought for a decree of divorce under Section 13(1)(ia) of the Act. Learned counsel for the respondent would further submit that the petitioner had failed to prove the allegation of impotency against the respondent by placing any cogent and material evidence before the Family Court and on the other hand, RW-3 doctor who had medically examined the respondent was examined before the Family Court and the certificate issued by her was marked as Ex.R- 1. He would further submit that in the course of crossexamination, RW-3 had deposed that the external genitalia of the respondent are normal, hymen was intact and from clinical examination, she was of the opinion that there was no evidence of sexual intercourse. RW-3 in her crossexamination has further deposed that non-consummation of marriage might be due to mental disability. She has further deposed that potency cannot be considered in a woman as she is regarded to be a passive partner in sexual activity. 13. RW-3 in her crossexamination has further deposed that non-consummation of marriage might be due to mental disability. She has further deposed that potency cannot be considered in a woman as she is regarded to be a passive partner in sexual activity. 13. It is not in dispute that the appellant herein is the husband, while respondent is the wife and that they were married as per Hindu rites and customs on 27.11.2011. M.C.No.66/2013 was filed by the husband/appellant herein seeking dissolution of marriage under Section 12(1)(a) of the Act. The said petition was dismissed, while relief was granted to the respondent herein under Section 13(1)(ia) of the Act. 14. From the oral and documentary evidence available on record, it is very clear that the petitioner has failed to establish his allegation that the respondent was impotent by producing cogent and material evidence in support of his contention. It is not his case that he had got the respondent medically examined at any stage or that he had made any efforts to get the respondent examined by a medical expert in the field. In the absence of any such material evidence available on record, it would not be possible to come to the conclusion that the respondent was impotent and she could not indulge in sexual activity. 15. On the other hand, the respondent has examined RW-3 who has deposed that respondent's external genitalia are normal. Having regard to the material available on record, the Family Court is fully justified in rejecting the prayer made by the petitioner for annulling the marriage under Section 12(1)(a) of the Act. 16. We have also taken note of the fact that in addition to the prayer under Section 12(1)(a) of the Act, petitioner had also sought for an alternative prayer under Section 13(1)(ia) of the Act for a decree of divorce by dissolving the marriage. The Family Court while rejecting the prayer made under Section 12(1)(a) of the Act, has allowed the alternative prayer made under Section 13(1)(ia) of the Act, and when the alternative prayer has been granted in favour of the petitioner, there is no justification on the part of the petitioner in challenging the judgment and decree in so far as it relates to rejection of his first prayer made under Section 12(1)(a) of the Act. It is relevant to note here that the decree of divorce granted by the Family Court under Section 13(1)(ia) of the Act has not been challenged by the wife, and therefore, it has attained finality. 17. The submission of appellant's counsel that the respondent has now re-married is not seriously disputed by the counsel for the respondent. Section 25(3) of the Act provides for modifying or rescinding the order of permanent alimony in such an event. Section 25(3) of the Act reads as under: "25(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just." 18. By taking into consideration the fact that respondent is gainfully employed in Infosys and that she has now remarried, we deem it fit to modify the order passed by the Family Court relating to grant of permanent alimony by reducing the amount of Rs.Five lakhs awarded by the Family Court to Rs.2,50,000/- as permanent alimony to the respondent. The judgment and decree passed by the Family Court in so far as other prayers are concerned, stands undisturbed. 19. In the result, this appeal is allowed in part on the basis of Section 25(3) of the Act. The judgment and decree dated 20.10.2014 passed by the Family Court, D.K., Mangaluru, in M.C.No.66/2013, is hereby modified only in respect of the permanent alimony awarded by the Family Court to the respondent-wife. The same is reduced from Rs.5,00,000 to Rs.2,50,000/-. The aforesaid sum of Rs.2,50,000/- was directed to be deposited by the appellant-husband before this Court and by order dated 05.01.2016, the respondent-wife has been permitted to withdraw the said amount subject to the outcome of this appeal. Since we have now re-quantified the permanent alimony at Rs.2,50,000/- and the said amount which was deposited by the appellant-husband has been withdrawn by the respondent-wife, the appeal is allowed in part to the aforesaid extent. Parties to bear their respective costs.