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2022 DIGILAW 1313 (KAR)

Sheeba Antony v. Antony Peter

2022-09-30

K.S.MUDAGAL, S.RACHAIAH

body2022
JUDGMENT/ORDER 1. This appeal is filed by the wife being aggrieved by the judgment and decree dtd. 16/11/2012 in M.C.No.1096/2008 on the file of the I Addl. Principal Judge, Family Court, Bengaluru, wherein the Family Court allowed the petition and the marriage of the petitioner/husband and the respondent/wife has been dissolved. 2. The appellant is the respondent and the respondent is the petitioner in the Trial Court. 3. For the sake of convenience, the parties would be referred henceforth as per their rankings before the Trial Court. BRIEF FACTS OF THE CASE ARE: 4. It is the case of the petitioner/husband that the petitioner married the respondent/wife on 28/1/1995 at Bengaluru as per Christian rites and customs. A son was born out of the said wedlock. The petitioner filed a petition before the Family Court seeking divorce on the ground of cruelty alleging that the respondent was ill- treating the petitioner and suspecting his character and also used to pick up quarrel even for petty reasons etc. Hence, the petition. 5. The respondent/wife appeared by filing objections and denied the allegations made against her. The respondent submits that, the Trial Court has not appreciated the evidence properly and granted the relief of dissolution of marriage which is liable to be set - aside. The respondent further submits that, the petitioner has not made out grounds for cruelty. The respondent further submits that, the Hon'ble Supreme Court time and again has reiterated that ordinary wear and tear in the family need not be construed as cruelty. 6. In order to substantiate their allegations, the petitioner examined himself as PW.1 and also got examined PW.2 and marked documents as Ex.P1 to Ex.P10 and the respondent examined herself as RW.1 and also got examined RW.2 and got marked Ex.R1 to Ex.R61. 7. The Trial Court after appreciating both oral and documentary evidence granted the decree of divorce as prayed for by the petitioner. Being aggrieved by the said judgment and decree, the respondent has preferred this appeal. 8. Heard Smt.Geetha Menon, learned counsel for the appellant and Sri.A.Ram Mohan, learned counsel for the respondent and perused the material on record. Submissions of Smt.Geetha Menon, learned counsel for the appellant / wife 9. Smt.Geetha Menon, learned counsel for the appellant/wife submits that the petitioner/husband has not at all co-operated to lead matrimonial life with the respondent/wife. 8. Heard Smt.Geetha Menon, learned counsel for the appellant and Sri.A.Ram Mohan, learned counsel for the respondent and perused the material on record. Submissions of Smt.Geetha Menon, learned counsel for the appellant / wife 9. Smt.Geetha Menon, learned counsel for the appellant/wife submits that the petitioner/husband has not at all co-operated to lead matrimonial life with the respondent/wife. The Trial Court has failed to appreciate the evidence, both oral and documentary, in proper perspective; hence it requires to be re-appreciated. 10. Learned counsel for the appellant further submits that the respondent/wife has supported the petitioner/husband by giving Rs.25, 000.00 to start computer firm, but due to mismanagement, it was dissolved and she had to clear the loan by selling her ornaments. 11. The petitioner has started one more company by name Taurus Computers affiliating the business with IISC. The petitioner has developed intimacy with one Jayashree who was working in the Department of MicroBiology which was at IISC. In the year 2004, the petitioner availed loan from the Bank in the name of the Company on furnishing the property of the respondent as collateral security. However, the petitioner was not cordial with the respondent and had affair with Jayashree and tried to avail loan jointly in the name of Jayashree. The respondent after coming to know that there is likelihood of tampering the property, she had to withdraw the surety to protect the property. 12. On 13/6/2005, said Jayashree had gone to Malaysia on her work. The petitioner visited Malaysia to meet Jayashree under the pretext of visiting Trivendram for the office work. It is further stated that said Jayashree had opened Bank account in ING Vysya Bank by mentioning the name of the petitioner as her husband. The said documents are marked as Exhibits R58, R59 and R60. Though the respondent has proved the adulterous life of the petitioner, the Trial Court failed to consider it and passed the impugned judgment which requires to be set-aside. 13. The petitioner has made several allegations against the respondent on the ground of cruelty; the same have not been proved by adducing cogent evidence. Hence, the Trial Court ought not to have granted the relief as prayed for by the petitioner. Therefore, the learned counsel for the appellant sought to allow the appeal. Submissions of Sri.A.Ram Mohan, learned counsel for respondent/husband 14. Hence, the Trial Court ought not to have granted the relief as prayed for by the petitioner. Therefore, the learned counsel for the appellant sought to allow the appeal. Submissions of Sri.A.Ram Mohan, learned counsel for respondent/husband 14. Sri.A.Ram Mohan, learned counsel for petitioner/husband while justifying the impugned judgment of the Trial Court, submits that the respondent/wife never co-operated with the petitioner/husband in day-to-day affairs of the business and she has not bothered to take care of the petitioner. The respondent was suspecting the fidelity of the petitioner and used to pick up quarrel even for petty reasons. Sometimes the petitioner was made to sleep outside the flat as the respondent refused to open the door, thus the petitioner was being insulted, humiliated and degraded in the eyes of neighbours. This amounts to cruelty. 15. The petitioner has suffered huge loss in his company as the respondent withdrew her security abruptly without giving any information. The banker has freezed the account of the company and it has affected the day - to -day affairs of the business. The petitioner and his friends had to clear the loan by borrowing with others. The learned counsel further stated that due to mental and physical harassment of the petitioner, he failed to succeed in his business. It is further stated that, the respondent has made allegations that the petitioner had illicit relationship with Jayashree and he had been to Malaysia several times to meet her, however the respondent has failed to produce the documents to show that the petitioner had been to Malaysia. Though the respondent has produced certain documents to show that the petitioner had affair with Jayashree, the Trial Court after appreciating the oral and documentary evidence on record, concluded that the respondent has failed to establish the adulterous life of the petitioner. Hence this is also one of the ground of cruelty and the petitioner was unable to lead life with the respondent. Hence, the petitioner filed the petition for dissolution of marriage. The learned counsel further submits that, the respondent without valid reason has deserted the petitioner and went for Nasik - Maharashtra by making false allegation of adultery which she did not substantiate. Hence, the Trial Court rightly appreciated the evidence on record and passed a valid and suitable judgment and decree which requires no interference. The learned counsel further submits that, the respondent without valid reason has deserted the petitioner and went for Nasik - Maharashtra by making false allegation of adultery which she did not substantiate. Hence, the Trial Court rightly appreciated the evidence on record and passed a valid and suitable judgment and decree which requires no interference. Hence, the learned counsel for the petitioner/husband sought to dismiss the appeal filed by the respondent/wife. 16. After having heard both the learned counsel and having given our anxious and thoughtful consideration to the arguments advanced by learned counsel for the parties and after perusing the documents on record, the points which arise for our consideration are: (1) Whether the Trial Court was justified in granting the prayer as prayed for by the petitioner / husband? (2) Whether the respondent / wife has made out grounds to interfere with the impugned judgment and decree for reversal? Analysis 17. Before adverting to the other facts of the case, it is relevant to refer to the definition of "cruelty". The Hon'ble supreme Court in the case of Samar Ghosh v. Jaya Ghosh, (2007)4 SCC 511 held that; "No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases 'mental cruelty'. The instances indicated in succeeding paragraphs are only illustrative and not exhaustive. (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) xxx xxx xxx (iv) "Mental cruelty" is a state of mind. The feeling of deep anguish, disappointment, frustration in one's spouse caused by the conduct of the other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (iii) xxx xxx xxx (iv) "Mental cruelty" is a state of mind. The feeling of deep anguish, disappointment, frustration in one's spouse caused by the conduct of the other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) xxx xxx xxx (vii) xxx xxx xxx (viii) xxx xxx xxx (ix) xxx xxx xxx (x) xxx xxx xxx (xi) xxx xxx xxx (xii) xxx xxx xxx (xiii) xxx xxx xxx (xiv) xxx xxx xxx The above principles clearly enunciate that the mental cruelty though has not been defined under the Hindu Marriage Act, it can be inferred through the various circumstances in the matrimonial life, the aggrieved spouse can substantiate the mental cruelty as the ground for dissolution of marriage. 18. In the present case, the petitioner - husband admitted the marriage said to have been solemnized on 28/1/1985 and a son was born out of the said wedlock. According to PW.1, the following are the grounds urged seeking for dissolution of marriage. They are: (a) The respondent - wife was adamant and not cooking properly and also not showing any affection to the petitioner as a dutiful wife. (b) The respondent was assaulting the petitioner physically and also made him to wait outside the house during night hours on several occasions. (c) The respondent suspecting the fidelity of the husband without any base. (d) The respondent to give trouble to the petitioner without informing him, she has withdrew the security which she had offered at the time of availing loan from UCO Bank. (e) The respondent without informing the petitioner had left his company and stayed at Nasik. The said unilateral decision taken by the respondent appears to be desertion. 19. In order to re-appreciate the evidence of PW.1 and RW.1, it is necessary to analyse the evidence. PW.1 has deposed that he has suffered mental agony due to the attitude of the respondent. According to PW.1, the respondent was suspecting his fidelity and alleging that the petitioner had illicit relationship with Jayashree. 19. In order to re-appreciate the evidence of PW.1 and RW.1, it is necessary to analyse the evidence. PW.1 has deposed that he has suffered mental agony due to the attitude of the respondent. According to PW.1, the respondent was suspecting his fidelity and alleging that the petitioner had illicit relationship with Jayashree. The respondent in her evidence has produced Ex.R3 which is the judgment of M.C No.1587/2006 wherein the said Jayashree had filed petition for divorce against her husband where the respondent appeared as witness and supported the case of the husband of Jayashree to substantiate the adultery between the petitioner and Jayashree. Though the said Jayashree had lost her case before the Trial Court, she has preferred an appeal before this Court in M.F.A No.3343/2010, there Jayashree and her husband compromised the matter and dissolved their marriage. 20. On careful perusal of evidence of PW.1, it appears that the respondent-wife and the petitioner jointly availed loan from UCO Bank by executing security of the property which they jointly owned. Due to misunderstanding between the petitioner and the respondent, the respondent withdrew the surety by giving letter to the Manager of the UCO Bank. The banker have freeze the bank account of the petitioner and caused obstruction to the day-to-day business. The banker have further demanded the petitioner to repay the entire loan consequently he has to raise the loan from his friend and had to clear the same. This humiliation caused by the respondent is considered as mental cruelty. 21. The respondent admitted in her evidence that she had been to Nasik and stayed there by taking job. Neither she informed the petitioner nor caused any notice regarding restitution of conjugal rights. This appears to be respondent not interested to lead her matrimonial life with the petitioner. 22. After careful scrutinizing the evidence, it appears that the respondent-wife caused by her conduct, mental cruelty to the petitioner-husband. On comprehensive appraisal of the matrimonial life of the spouses, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. Therefore we find no infirmity in the approach of the Trial Court, the finding relating to mental cruelty recorded by the trial Court suffers no infirmity and we see no good reason to interfere with the said findings. 23. Therefore we find no infirmity in the approach of the Trial Court, the finding relating to mental cruelty recorded by the trial Court suffers no infirmity and we see no good reason to interfere with the said findings. 23. The learned counsel for the Appellant submits that, there is no embargo to grant permanent alimony to the wife when the husband obtained the decree of dissolution of marriage. In support of her submission, the learned counsel for the appellant relied on the judgment of this Court in the case of Mrs.Margaret Pereira v. Mr.Gerald Castelino, 2015 SCC OnLine Kar 8027 in paragraph No.8, it is held thus, "8. We have given our anxious consideration to the rival submissions made at the Bar. The contention that the wife is not entitled for permanent alimony in a case where dissolution of marriage is granted in favour of the husband, may not be the correct proposition. Ss. 36 to 39 of the Act cover the subject of alimony to an aggrieved wife. While Sec. 36 deals with alimony pendente lite to the wife, Sec. 37 deals with permanent alimony to a wife where a decree of dissolution of marriage or decree of judicial separation is obtained by the wife. Sec. 38 is the relevant provision for the present circumstances, which reads thus: "38. Court may direct payment of alimony to wife or to her trustee.- In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to be the Court expedient so to do." A plain reading of the above provision would contemplate that the Court may order permanent alimony either to her or to her trustee in any case instituted either by the wife or by the husband. The statute expressly or impliedly does not debar a wife, who was respondent in divorce petition for permanent alimony." Further, it is also relevant to refer to the judgment of this Court in the case of Sri Daniel Anand v. Smt. G.N.Sujatha, ILR 2017 Kar 3461 in paragraph Nos.7 and 8 extracted below: "7. The statute expressly or impliedly does not debar a wife, who was respondent in divorce petition for permanent alimony." Further, it is also relevant to refer to the judgment of this Court in the case of Sri Daniel Anand v. Smt. G.N.Sujatha, ILR 2017 Kar 3461 in paragraph Nos.7 and 8 extracted below: "7. We are of the view that purposive approach to the provisions of the Act would sub-serve achieving the objects of the Act rather than the literal construction. Cardinal Rule of construction is that the statute has to be read as a harmonious whole to ascertain the legislative intent. A conjoint reading of the Ss. 36 to 39 of the Act makes it clear that there is no legal impediment or embargo under the Act for a wife, respondent in divorce petition, to seek for permanent alimony. Accordingly, the first contention of the learned counsel for the appellant deserves to be negated and is accordingly rejected. 8. As regards the second point, as aforesaid the relevant factors which are required to be examined while granting permanent alimony are: (1) Financial condition; (2) The standard of living of the parties; (3) The length of the marriage; (4) The age of the parties; (5) Physical condition of the parties; and (6) Ability of the person to support the recipient. It is significant to note that in a recent judgment, the Hon'ble Apex Court has set a benchmark in the case of Kalyan Dey Chowdhury vs.Rita Dey Chowdhury Nee Nandy reported in AIR 2017 SC 2383 , it is held that 25% of the income of the husband would be an appropriate maintenance amount to the wife. The Family Court has considered the evidence on record to quantify the amount towards the permanent alimony which is the amount based on the financial ability of the person qua the status, the dependency of the wife coupled with the inflation in consumer prices and value of the money, the maintenance amount quantified at Rs.5.00 lakhs, at any stretch of imagination cannot be considered as excessive or exorbitant. Accordingly, we are not inclined to interfere with the well reasoned order of the Court below." 24. On careful reading of both the judgments, it can be inferred that the court may order permanent alimony either to her or to her trustee in any case instituted either by the wife or the husband. Accordingly, we are not inclined to interfere with the well reasoned order of the Court below." 24. On careful reading of both the judgments, it can be inferred that the court may order permanent alimony either to her or to her trustee in any case instituted either by the wife or the husband. The statute expressly or impliedly does not debar a wife who was a respondent in divorce petition for permanent alimony. Considering the principles laid down by the Co-ordinate Bench of this Court and also considering the facts and circumstances of the case, we deem it appropriate to grant permanent alimony after having perused the affidavit of income filed by the parties in terms of judgment of the Hon'ble Supreme Court in the case of Rajnesh v. Neha, AIR 2021 SC 560 . 25. In the light of the observations made above, the points which arose for consideration are answered, Point No.1 in the "affirmative" by holding that the Trial Court is justified in granting the relief as prayed for filed by the petitioner/husband. Point No.2 in the "negative" by holding that the appellant/wife has failed to make out the grounds to interfere with the judgment and decree of the Trial Court. 26. Accordingly, we proceed to pass the following: ORDER i. The appeal filed by the respondent/wife is dismissed as devoid of merits. ii. The judgment and decree dtd. 16/11/2012 passed in M.C No.1096/2008 on the file of the learned I Additional Principal Judge, Family Court, Bengaluru is hereby confirmed. iii. The petitioner / husband is directed to pay permanent alimony to the respondent by way of transferring his right / share in the property / flat No.337 in Trinity Meadows, Anexe, Bellandur Main Road, Bengaluru-37. iv. No order as to costs.