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2021 DIGILAW 991 (KAR)

R. Rekha v. K. G. Ravi

2021-12-07

B.VEERAPPA, K.S.HEMALEKHA

body2021
JUDGMENT : K.S. Hemalekha, J. 1. The appellant/wife has preferred this miscellaneous first appeal assailing the judgment and decree dated 10/04/2012, passed in M.C. No. 234/2011, on the file of the Family Court Judge, Davangere, allowing the petition under Section 13(1)(ia) filed by the respondent/husband under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for the sake of convenience) seeking divorce. 2. The appellant/wife (hereinafter referred to as "wife" and respondent/husband would be referred to as "husband" for the sake of convenience). 3. The husband filed the petition seeking divorce invoking Section 13(1)(ia)(ib) of the Act, contending that their marriage was solemnized on 23/04/2007 and that the wife treated with cruelty and left the matrimonial home without any reasonable cause. It is further contended that from the beginning itself the wife was not co-operating in discharging her marital obligations. There are no issues in their marital relationship. It is further case that the wife was incidental to commit suicide and also threatened that she will file criminal complaint under the provisions of dowry harassment. Ultimately, the wife left the matrimonial home and went to her parental home in the year 2010 and inspite of several requests made by husband, the wife has refused to rejoin the company and thereby living separately with her parents. It is further contended that wife has willfully refused and neglected to lead a happy married life. Having no other alternative, the husband had earlier filed a petition in M.C. No. 184/2010 seeking divorce and the said petition ended in compromise and both mutually agreed to lead a happy married life. It is further contended that inspite of the compromise entered into between the parties, the wife did not stay at the marital home for long and in due course left the marital home. Having no other remedy available to the husband, filed a petition in M.C. No. 234/2010 seeking divorce on the ground of cruelty and desertion. 4. On service of notice, the wife appeared and filed her objections contending that the husband treated her in a respectful way for about three months, but after three months the husband harassed her to bring dowry from her parents. 4. On service of notice, the wife appeared and filed her objections contending that the husband treated her in a respectful way for about three months, but after three months the husband harassed her to bring dowry from her parents. It is further contended by the wife that the matrimonial relationship was not cordial and the wife tried to adjust with the husband thinking that one day or the other he would mend his ways, but the husband did not co-operate in the marital obligations. It is further contended that the husband has fallen to bad vices like alcohol and women contacts and though M.C. 184/2010 was compromised and as per the compromise, wife was staying with the husband for a period of one week and he was good with her, however, the same was not continued. It is her case that the husband dropped the wife to her parental home without reasonable cause. As the husband refused to lead a happy married life, the parents of the wife had complained to the women's police station and after the complaint, the husband was directed to take his wife to the matrimonial home, but instead of taking the wife to the matrimonial home, the husband has filed M.C. 234/2011 seeking divorce and as such, sought for dismissal of the petition. 5. The trial Court, based on the pleading of the parties framed issues: 6. The husband in support of his case, examined himself as PW. 1 and got marked documents Exs. P-1 to P-4, while the wife examined herself as RW. 1 and no documents were marked. The Family Court, on the basis of the evidence on record, decreed the petition filed by the husband under 13(1)(ia) of the Act. However, dismissed the petition insofar as 13(1)(ib) of the Act is concerned. 7. Being aggrieved by the judgment and decree, the wife has filed this present miscellaneous first appeal. 8. We have heard learned counsel for the appellant, Sri Maheshwarappa and learned counsel for the respondent, Sri B. Hemanth Raj and perused the material on record as well as the original record carefully. 9. Learned counsel for the wife would contend that no sufficient opportunity was afforded to her to produce the documents and defend her case. 8. We have heard learned counsel for the appellant, Sri Maheshwarappa and learned counsel for the respondent, Sri B. Hemanth Raj and perused the material on record as well as the original record carefully. 9. Learned counsel for the wife would contend that no sufficient opportunity was afforded to her to produce the documents and defend her case. It is further contended that she is ready and willing to join her husband to live with him as a dutiful wife and that the Family Court was not justified in granting the decree of divorce against her as in the evidence adduced by the husband, nowhere it shows that there was cruelty committed by the wife. On the other hand, it was on the instigation of the husband that she was forced to leave the marital home and he sought to allow the appeal on the said grounds. 10. Per contra, learned counsel for the husband supported the judgment and decree of the trial Court and contended that the same would not call for interference at the hands of this Court and that there is no merit in the appeal filed by the wife and also contended that inspite of the compromise entered into between the husband and wife in M.C. No. 184/2010, the wife has not joined the husband and performed her marital obligations and thus, sought to dismiss the appeal. 11. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration in this appeal is as follows: "Whether the Family Court is justified in law granting a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and whether the same requires interference?" 12. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the records carefully. 13. Admittedly, the marriage of the parties was solemnized on 23/04/2007. As they could not get along with each other and the marital life being strained and inspite of the efforts made by the elders, there could not be reunion between the parties. It is not in dispute that M.C. No. 184/2010 was filed by the husband seeking divorce on the ground of cruelty and desertion. However, the said petition ended in compromise and both husband and wife agreed to live together and the same did not end well. It is not in dispute that M.C. No. 184/2010 was filed by the husband seeking divorce on the ground of cruelty and desertion. However, the said petition ended in compromise and both husband and wife agreed to live together and the same did not end well. As there was no reunion, the husband filed M.C. No. 234/2011 on the ground of cruelty and desertion contending that from February 2011 the wife left the matrimonial home and has not returned back. The Family Court granted divorce under Section 13(1)(ia) of the Act and rejected the petition filed by the husband under Section 13(1)(ib). The rejection of petition insofar as Section 13(1)(i)(ib) remains unchallenged by the husband. 14. The only evidence to be considered is in respect of Section 13(1)(ia) of the Act. In order to prove his case, the husband examined himself as PW. 1 and got marked Exs. P-1 to P-4. He specifically stated in his evidence and withstood the cross-examination that since February, 2011, the wife is living separately and several efforts made by him to see that the wife returns to the matrimonial home has been failed. Ex. P-3 is the petition filed by the husband under Section 13(1)(ia) of the Act in M.C. No. 184/2010. Ex. P-4 is the certified copy of the compromise entered into between the parties in M.C. No. 184/2010 on 17/01/2011, wherein they agreed to join and lead a happy married life. 15. The wife examined herself as RW. 1 and in her evidence she reiterated stating that the marital relationship was not cordial and though she tried to adjust with the husband, the husband did not co-operate with the marital obligations. She also stated that since February, 2011, she is residing separately. In her cross-examination, she has categorically admitted that she is not at all willing to go back to her husband and lead a happy married life. 16. It is apparent from the evidence tendered by the parties that right from February 2011 the wife has not stayed with her husband at the matrimonial home. Though numerous efforts were made by the husband to take the wife back, the wife did not desire to join the company of the husband and the evidence of RW. 1 clearly corroborates the fact that she is unwilling to join the husband. Though numerous efforts were made by the husband to take the wife back, the wife did not desire to join the company of the husband and the evidence of RW. 1 clearly corroborates the fact that she is unwilling to join the husband. It is not the case of the wife that the husband has not made any effort to take back the wife, but there is ample evidence on record, even in the form of admission that even if the husband wants to take his wife back, she is not willing to join him. There is nothing on record to show that there was a reasonable cause or excuse for the wife to leave the company of the husband. 17. Considering the evidence tendered by the parties, it is evident that the wife has not shown any interest to lead life with her husband and the wife's intention not to join the husband amounts to cruelty. When the wife refuses to come back to the matrimonial home, undoubtedly it gives mental shock to the husband and it amounts to mental cruelty. In the case of Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121 , paragraph No. 4 reads as under: "4. Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted." Thus, the Hon'ble Supreme Court in the judgment stated supra held that the cruelty will be established if the conduct itself is proved or admitted. 18. In the case of A. Jayachandra vs. Aneel Kaur, (2005) 2 SCC 22 , the Hon'ble Supreme Court has considered 'mental cruelty' as under: "10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. 11. The expression 'cruelty' has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. [See Shobha Rani v. Machukar Reddi]" 19. In the present case, the wife has subjected the husband to mental cruelty by not performing her matrimonial obligations and her evidence itself speaks about the unwillingness to live with her husband and separation for long years is nothing but desertion causing mental cruelty. [See Shobha Rani v. Machukar Reddi]" 19. In the present case, the wife has subjected the husband to mental cruelty by not performing her matrimonial obligations and her evidence itself speaks about the unwillingness to live with her husband and separation for long years is nothing but desertion causing mental cruelty. Our view is also fortified as we refer to the case of Durga Prasanna Tripathy vs. Arundhati Tripathy, 2005 (7) SCC 353 , wherein the Hon'ble Supreme Court holds that irretrievable breakdown of marriage living separately for long years there is no possibility of resuming normal marital life. Paragraph No. 21 reads as under: "21. In our view that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband. There has been an irretrievable breakdown of marriage between the appellant the respondent. The respondent has also preferred to keep silent about her absence during the death of her father-in-law and during the marriage ceremony of her brother-in-law. The complaint before the Mahila Commission does not implicate the appellant for dowry harassment though the respondent in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Mahila Commission was lodged after 7 years of the marriage alleging torture for dowry by the mother-in-law and brother-in-law during the initial years of marriage. The said complaint was filed in 1998 that is only after notice was issued by the Family Court on 27.03.1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanor of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him since more than 7 years. The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the appellant. Apart from that, relationship between the appellant and the respondent have become strained over the years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies her stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by the in-laws of the respondent was an after-thought since the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced the ill-treatment meted out by the respondent to him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce." 20. The Hon'ble Supreme Court further observed that the marriages are made in Heaven. Both the parties have crossed the point of "no return". A workable solution is certainly not possible. Parties cannot at this stage live together forgetting their past as bad dream. In the case of Naveen Kohli vs. Neelu Kohli, (2006) 4 SCC 558 , the Hon'ble Supreme Court has held as under in paragraph Nos. 66 to 71: "Irretrievable breakdown of marriage: 66. Irretrievable Breakdown of Marriage is not a ground for divorce under the Hindu Marriage Act, 1955. In the case of Naveen Kohli vs. Neelu Kohli, (2006) 4 SCC 558 , the Hon'ble Supreme Court has held as under in paragraph Nos. 66 to 71: "Irretrievable breakdown of marriage: 66. Irretrievable Breakdown of Marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955. 67. The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7-4-1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory. 68. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these words: "The legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist dejure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous." 69. In the Report it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bounds which are of the essence of marriage have disappeared. 70. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. 71. On May 22, 1969, the General Assembly of the Church of Scotland accepted the Report of their Moral and Social Welfare Board, which suggested the substitution of breakdown in place of matrimonial offences. It would be of interest to quote what they said in their basis proposals: "Matrimonial offences are often the outcome rather than the cause of the deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offences, increase bitterness and widen the rift that is already there. Separation for a continuous period of at least two years consequent upon a decision of at least one of the parties not to live with the other should act as the sole evidence of marriage breakdown." 72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties." The Apex Court held that the separation has been continued for sufficient length of time and it can be fairly summarized that the matrimonial bond is beyond repair. 21. Admittedly, the marriage between the parties was performed on 23/04/2007. The parties tried to reconcile, but it went in vain. 21. Admittedly, the marriage between the parties was performed on 23/04/2007. The parties tried to reconcile, but it went in vain. Admission on the part of wife regarding her unwillingness to join back her husband would itself amount to mental cruelty and leaving no option for the husband then to file a petition for divorce. 22. This Court is aware that merely on the basis of the allegations and counter allegations, the Court cannot grant a decree of divorce. Bearing this in mind, this Court, looking into the pleadings, evidence and material on record as well as the conduct of the parties, hold that the marriage of the wife and the husband is irretrievably broken and the trial Court was justified in granting a decree of divorce. 23. The Hon'ble Supreme Court in the case of Vinny Parmvir Parmar vs. Parmvir Parmar, 2011 (13) SCC 112 , held that the Court is not debarred from granting permanent alimony in favour of the wife and no fixed formula can be held for fixing the amount of maintenance and also to consider the status of the parties. 24. However, in the present case, no material is produced to determine the quantum of permanent alimony and the determine the status of the parties. Admittedly, there is a criminal miscellaneous petition filed by the wife for maintenance. The wife is at liberty to pursue for remedy of permanent alimony/maintenance in the said criminal miscellaneous petition in accordance with law. 25. Any observation made in this appeal will not come in the way to determine the right of the wife in claiming maintenance or permanent alimony in accordance with law. 26. In view of the aforementioned circumstances, point that arose for consideration by this Court is answered in the affirmative holding that the trial Court is justified in decreeing the petition for divorce U/s. 13(1)(ia) of the Act and does not call for interference from this Court. 27. For the foregoing reasons, we pass the following: ORDER (i) The appeal is dismissed. (ii) The judgment and decree dated 10/04/2012 passed by the trial Court in M.C. No. 234/2011 on the file of the Family Court Judge, Davangere, is confirmed. (iii) The rights in respect of maintenance or permanent alimony could be adjudicated in the criminal miscellaneous petition pending before the trial Court. (iv) No order as to costs.