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2021 DIGILAW 667 (KAR)

P. Sudha v. Rajesh S/o Shri Swamy

2021-06-11

B.V.NAGARATHNA, HANCHATE SANJEEVKUMAR

body2021
JUDGMENT : HANCHATE SANJEEVKUMAR, J. 1. This appeal is filed under Section 19(1) of the Family Courts Act, 1984 (for brevity ‘FC Act’) calling in question the judgment and decree passed in M.C. No. 107/2018, dated 06.10.2018, by the Court of First Additional Principal Judge, Family Court, Mysuru, wherein the Family Court has dismissed the petition filed under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (for brevity ‘HM Act’) filed by the appellant-wife. Therefore, being aggrieved by the dismissal of the petition, the appellant-wife has preferred the present appeal. Brief facts: 2. It is stated that the appellant is the wife and the respondent is the husband and their marriage was solemnized on 14.06.2015 at Shaneshwara Temple, near Geleyara Balaga, Bengaluru as per the customs and tradition prevailing in their community. It is stated that for some time both were leading a happy married life. But thereafter, the respondent developed an affair with some other lady and when it was questioned by the appellant the respondent behaved rudely. Therefore, the respondent had betrayed the appellant and also had played a drama of committing suicide. But really he had not made any such attempt. 3. Further, the appellant has stated that the respondent had meted ill-treatment both mentally and physically and therefore, the appellant started residing along with her parents. Later, the appellant had joined a fashion design course. There also the respondent used to go to that college and he had a doubtful nature and therefore the appellant could not tolerate respondent’s cruelty. Hence, the appellant was constrained to file a petition for divorce. It is also further averred that when the appellant became pregnant, due to the mental agony caused by the respondent, her pregnancy was aborted. Therefore, by making averments regarding cruelty by the respondent, the appellant was constrained to file a petition for divorce before the Family Court. 4. On summons being issued by the said Court, the respondent remained absent and therefore, he was placed ex-parte. The Family Court observed that because of non-appearance of the respondent, the conciliation failed. Then, the Family Court had taken up the case on its merits. 5. The appellant was examined as PW-1 and got marked documentary evidences at Exhibits-P1 to P4 and since the respondent was placed ex-parte, there was no contest made by the respondent. The Family Court observed that because of non-appearance of the respondent, the conciliation failed. Then, the Family Court had taken up the case on its merits. 5. The appellant was examined as PW-1 and got marked documentary evidences at Exhibits-P1 to P4 and since the respondent was placed ex-parte, there was no contest made by the respondent. The Family Court framed point for consideration as to whether, the appellant was entitled for a decree of dissolution of marriage. The Family Court dismissed the petition on the ground that the appellant had not produced any evidence to prove cruelty and that due to unbearable torture, the appellant got aborted. 6. Further, the Family Court observed that there was no evidence placed by the appellant, that the respondent had visited her college at Mysuru and caused embarrassment and also further observed that visiting the wife in a college cannot be considered as an embarrassment. Therefore, on these grounds the petition was dismissed. Further, the Family Court observed that if the respondent had visited her college and insulted her in college, then the appellant could have got examined any witness in this regard, but there was no evidence let in by the appellant. Hence, on this ground it disbelieved the version of the appellant and dismissed the petition. 7. Therefore, the findings given by the Family Court was that the appellant had failed to prove that the respondent had been cruel and he was ill-treating the appellant. Therefore, by forming this opinion, the Family Court dismissed the petition. Being aggrieved by the dismissal of the petition, the wife has preferred the present appeal. 8. Learned counsel for the appellant submitted that the respondent had not appeared before the Court and not contested the case and this conduct itself shows that the respondent may not want to take the appellant as his wife. Further, it was submitted that when the appellant’s evidence is unimpeachable, then the Family Court ought to have passed a decree of dissolution of marriage. Further, it was submitted that the events of ill-treatment or cruelty which occur within the four walls, cannot be expected to be proved from other witnesses. 9. Therefore, learned counsel submitted that the Family Court had lost sight of the practicalities and facts involved in the case. The evidence produced by the appellant has not been appreciated properly. Further, it was submitted that the events of ill-treatment or cruelty which occur within the four walls, cannot be expected to be proved from other witnesses. 9. Therefore, learned counsel submitted that the Family Court had lost sight of the practicalities and facts involved in the case. The evidence produced by the appellant has not been appreciated properly. Hence, it has resulted in the dismissal of the petition, which calls for interference by this Court. Therefore, learned counsel for the appellant prayed to allow the appeal and grant the decree as prayed for. 10. From the above, we find that, the appellant-wife has filed the petition seeking divorce under Section 13(1)(i-a) of HM Act, for dissolution of the marriage. The respondent remained absent and had not contested the case. The appellant produced documentary evidence at Exhibits-P1 to P4, which are marriage invitation card, photographs, marriage certificate which proves the fact that the appellant is the wife of the respondent. The marital status between appellant and respondent is not disputed. Furthermore, appellant’s evidence given before the trial court is not impeached by the respondent. The appellant has stated that after completion of her degree, she started to work in Kirloskar Company, Mysuru. The respondent has pressurized the appellant to give up the job, hence she gave up the job. It is the further evidence of the appellant that respondent’s relative had invited the appellant for a picnic and the appellant went to the picnic and thereafter the appellant stayed in the residence of respondent’s relatives in Bengaluru. Further, the marriage of the appellant and respondent were celebrated by the friends and relatives of the respondent in the absence of her parents. 11. It is the further evidence of the appellant, that the appellant came to know that the respondent was having an affair with a lady and when she questioned, the respondent started to quarrel and berated the appellant. 12. It is also the evidence of the appellant that the friends of the respondent had called her through mobile phone stating that the respondent had attempted to commit suicide and was admitted in the hospital and when the appellant went to the hospital and saw the respondent, he was hale and healthy and the respondent had played a drama in this regard. Further, it is the evidence of the appellant that the respondent used to ill-treat the appellant. Further, it is the evidence of the appellant that the respondent used to ill-treat the appellant. It is also the evidence of the appellant that appellant had joined fashion designing course in Mysuru and the respondent used to go to her college and was torturing the appellant there. It is the evidence that due to the ill-treatment and torture by the respondent, the appellant had discontinued the fashion designing course and came to Bengaluru along with the respondent. But, the respondent had declined to look after the appellant. It is the evidence of the appellant that the respondent was not providing her with basic necessities of life. Therefore, for her livelihood, the appellant had joined Vodafone Company in tele-calling department in Rajajinagar, Bengaluru. 13. It was also deposed that the respondent was always suspecting the fidelity of the appellant, and when the appellant became pregnant, on account of respondent’s torture, she had got aborted. Therefore, it is the evidence of the appellant that she was not able to withstand ill-treatment and torture from the respondent and therefore she left her matrimonial home and started residing alongwith her parents in Mysuru and therefore filed the petition for dissolution of marriage. 14. The above stated evidence was not controverted by the respondent. The evidence of the appellant remained un-controverted. The ill-treatment and cruelty given by the respondent was within the four walls and it cannot be expected to be witnessed from outside and it is difficult to get corroboration from outside witnesses. Therefore, the Family Court has committed an error in disbelieving the evidence of the appellant. Where the wife has filed a divorce petition on the ground of cruelty and it is not contested by the respondent – husband and sufficient adequate evidence has been let in, dismissing the petition on this ground by the Family Court is not proper. 15. Further, the observations of the Family Court that the appellant could have examined any other witness to prove that the respondent had gone to the college and was ill-treating the appellant in the college, in the absence of examination of witnesses, the version of the appellant could not be believed, is also not a correct inference by the Family Court. Further, the observations of the Family Court that the appellant could have examined any other witness to prove that the respondent had gone to the college and was ill-treating the appellant in the college, in the absence of examination of witnesses, the version of the appellant could not be believed, is also not a correct inference by the Family Court. Just because the appellant had not examined any witnesses from the College, that per se cannot be made a ground to disbelieve the evidence of the appellant and making it a reason for dismissal of the petition. The appellant has given evidence regarding cruelty and ill-treatment given by the respondent. The respondent has not contested and has not taken any recourse for rejecting the contention of the appellant. When this being the true fact, dismissal of the petition by the Family Court is not correct. 16. When the appellant has given evidence on the cruelty meted to her by her husband and if this evidence is not impeached by the respondent, then the evidence has to be appreciated on the principle of preponderance of probabilities, rather than approaching the theory of beyond reasonable doubt. If the evidence is weighed and sifted and is found to be probable with the version of the appellant, then that can be accepted by the court of law. 17. In the present case, the respondent is absent and he has not contested the case before the Family Court and has not questioned the factual matrix stated by the appellant and the evidences adduced before the Family Court. 18. Before the Family Court as well as this Court, the respondent–husband has been served with notice but he did not choose to participate and contest the proceedings. Therefore, this conduct of the respondent-husband can also be taken note of. In similar facts and circumstances, a Coordinate Bench of this Court in the case of Smt. G. Premalatha @ N. Premalatha vs. Sri. R. Nagesh, (2015) ILR 2863 has observed at Para 13 and 14 as follows: “13. The respondent-husband has been served in accordance with law, both before the Family Court as also this Court. But he has chosen not to participate in the proceedings. Procedural law has its own sanctity. R. Nagesh, (2015) ILR 2863 has observed at Para 13 and 14 as follows: “13. The respondent-husband has been served in accordance with law, both before the Family Court as also this Court. But he has chosen not to participate in the proceedings. Procedural law has its own sanctity. Defiant behaviour of a party - respondent to exercise the option to remain absent or refrain from the proceeding in the Court of law in response to the command of the Court to appear is to be dealt in accordance with the provisions of procedural law. Therefore, we are of the view that records in this case are conspicuous enough to proceed ex-parte against the respondent. The facts on record are that since November 2009, the couple are living separately. As held by the Division Bench of this Court, living separately and continuance of marital relationship for name sake by itself is cruelty of mind (See: Hukkavva vs. Vishwanath). Time has changed. So also the perception of society vis-a-vis the institution of marriage. We are living in 21st century in an era of global village concept. Rights of individuals and their personal space in life is being sought in no uncertain terms by citizen across the globe. Rights of individuals enshrined under the Constitution of India have been expanded much folds. To live with dignity is sine qua non of Article 21. Here is a lady knocking at the doors of the Family Court and this Court from the year 2012 seeking relief from the fetters of institutional bond of marriage. 14. In our considered view, every human being is entitled to have his/her own space in the life and to live in the manner felt appropriate subject of-course without a fragrant transgression of well established customs and prevalent law. In this backdrop, the judgment and decree of the Family Court refusing to dissolve the marriage is too harsh and based on findings recorded which are not sustainable in law. With the change in times, Courts cannot be oblivious to the circumstances existing in the Society and metamorphosis in the behavioural pattern of the society.” 19. In this backdrop, the judgment and decree of the Family Court refusing to dissolve the marriage is too harsh and based on findings recorded which are not sustainable in law. With the change in times, Courts cannot be oblivious to the circumstances existing in the Society and metamorphosis in the behavioural pattern of the society.” 19. Therefore, having considered the factual matrix involved in the present appeal and the principle of law laid down by this Court, where the wife has filed a petition for divorce on the ground of cruelty and that is not contested by the respondent–husband, inspite of receiving notices issued by the Court but remained silent and where the evidences remained unchallenged, then under these circumstances, the case of the appellant can be accepted and rejection of the petition is too harsh when there is no contest by otherside and where the wife has knocked the door of justice seeking justice, under these circumstances, the appeal is liable to be allowed. 20. Therefore, we find that the Family Court has not appreciated the evidence correctly and thus, dismissed the petition wrongly. Wherefore, under these facts and circumstances involved in the present case, we are of the opinion that the appellant has to be protected by relieving her from the institution of marriage solemnized with the respondent. Hence, we proceed to pass the following order: ORDER: (i) The appeal is allowed. (ii) The judgment and decree dated 06.10.2018, passed by the 1st Additional Principal Judge, Family Court, Mysuru in M.C. No. 107/2018, is hereby set-aside. (iii) The petition filed by the appellant-wife in M.C. No. 107/2018 under Section 13(1)(i-a) of the HM Act, is hereby allowed. (iv) The marriage solemnized on 14.06.2015, at Shaneshwara Temple, near Geleyara Balaga, Bengaluru between the appellant and the respondent is hereby ordered to be dissolved. No order as to costs. Registry to draw a decree accordingly.