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2022 DIGILAW 414 (KAR)

Arun D. Dalal v. Roopa V. Rao

2022-03-28

ALOK ARADHE, S.VISHWAJITH SHETTY

body2022
JUDGMENT VISHWAJITH SHETTY, J. - This Miscellaneous First Appeal under Sec. 19(1) of the Family Courts Act, 1984, has been filed by the petitionerhusband challenging the judgment and decree dtd. 14/9/2011 passed by the learned Judge of the Family Court at Mysuru, in M.C.No.335/2008, dismissing his petition filed under Sec. 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 (for short, 'the Act'). 2. The parties are referred to by the rank assigned to them before the Family Court. 3. Brief facts of the case relevant for the purpose of disposal of this appeal are, the marriage of the petitioner with the respondent was solemnized on 20/4/2000 at Saraswathi Kalyana Mantapa, II Stage Banashankari, Bengaluru, as per the customs prevailing in their community. After the marriage, the couple lived together in the matrimonial house cordially and the respondent-wife gave birth to a girl child in the month of September 2000. The respondent had spent the pre-natal and post-natal period in the house of her father at Mysuru and after delivery, she returned to matrimonial house along with the child, but stayed with the husband only for a short period. It is the specific case of the petitioner-husband that after the wife returned to matrimonial home along with the child, her behaviour and attitude towards the petitioner and his family members changed and she was putting forward unreasonable demands including the demand to shift their residence to Mysuru or to stay in her parents house at Mysuru. Since the petitioner refused to leave his parents and his job at Bengaluru, the respondent started quarreling with him on petty issues and all of a sudden, she left to Mysuru without even informing him and started residing in her parents house. Efforts made by the petitioner to bring her back were all in vain and the panchayats held in this regard also failed. It is his case that subsequently, in order to settle the strained relationship between the parties, he moved to Mysuru and purchased a new house at Mysuru and started residing there with the wife and child and also his parents. It is his case that even thereafter, the respondent did not change her attitude and behaviour and she refused to take care of his parents and on the other hand, she was insisting the petitioner to come and reside along with her in her parents house. It is his case that even thereafter, the respondent did not change her attitude and behaviour and she refused to take care of his parents and on the other hand, she was insisting the petitioner to come and reside along with her in her parents house. On 16/9/2005, abruptly she had left the matrimonial house and started residing in her parents house and all efforts made by the petitioner to bring her back failed and it is under these circumstances, he had filed a petition under Sec. 13(1)(ia) & (ib) of the Act, with a prayer to dissolve his marriage with the respondent solemnized on 20/4/2000 by a decree of divorce. 4. The respondent-wife has contested the petition by filing her statement of objection. While admitting the relationship, she has denied the allegations made against her in the petition. It is her specific case that after she became pregnant, when she was in her parents house, the petitioner developed illegal intimacy with one of his colleague by name Veena and because of this reason, he started ill-treating her. She has also further stated that since the parents of the petitioner were ill-treating her, she was constrained to leave the company of the petitioner and take shelter in her parents house. She has also stated that subsequently the petitioner had developed the habit of consuming liquor and he used to return home late night in an intoxicated state and used to harass her. She has also stated that the petitioner was in the habit of womanizing and he did not take care of the respondent and the child nor did he show any love and affection towards them. She has also stated that after the petitioner purchased a house at Mysuru, she had joined him in the said house, but the petitioner's mother who was residing with him used to harass her and even the petitioner at her instance was harassing her. It is under these circumstances, she was constrained to leave the matrimonial house and take shelter in her parents house. 5. Before the Family Court, the petitioner had examined himself as PW-1 and two other witnesses were examined as PWs-2 & 3 on behalf of the petitioner and six documents were marked as Exs.P-1 to P-6. The respondent examined herself as RW-1 and got marked two documents as Exs.R-1 & R-2. 6. 5. Before the Family Court, the petitioner had examined himself as PW-1 and two other witnesses were examined as PWs-2 & 3 on behalf of the petitioner and six documents were marked as Exs.P-1 to P-6. The respondent examined herself as RW-1 and got marked two documents as Exs.R-1 & R-2. 6. The learned Judge of the Family Court, thereafter, vide the impugned judgment and decree dismissed the petition filed by the husband under Sec. 13(1)(ia) & (ib) of the Act. It is under these circumstances, the petitioner-husband is in appeal before this Court. 7. Learned Counsel for the petitioner submits that the parties are living separately ever since 2005, and therefore, there is no point in continuing the marriage. He submits that the respondent was demanding for setting up a separate house or to join her in her parents house and she was not ready to live with the parents of the petitioner. He submits that the respondent had deserted the petitioner without valid reasons. He also submits that the respondent's behaviour changed after giving birth to the child. He submits that though the petitioner made all the efforts to live with the respondent, because of the adamant attitude of the respondent, the relationship between the parties got strained and the efforts made for conciliation have all been in vain. 8. Per contra, learned Counsel for the respondent submits that the respondent was ill-treated in the matrimonial home by her husband as well as by her in-laws. It is under these circumstances, she was constrained to take shelter with her parents. He submits that the couple have a daughter who is aged about 21 years and is of marriageable age, and therefore, if a decree of divorce is granted, the same would have a repercussion in the marital prospects of the daughter. He submits that the learned Judge of the Family Court having appreciated the entire oral and documentary evidence available on record, has given a clear finding that the petitioner has not made out a case for grant of decree of divorce either on the ground of cruelty or on the ground of desertion, and therefore, there is no merit in this appeal and accordingly, prays to reject the appeal. 9. We have carefully considered the arguments addressed on both sides and also perused the material available on record. 10. 9. We have carefully considered the arguments addressed on both sides and also perused the material available on record. 10. In order to substantiate the case of the petitioner, he had examined himself as PW-1. During the course of his deposition, he has reiterated the facts narrated by him in the petition. After the marriage, the couple had stayed together as husband and wife at Bengaluru till the year 2005, thereafter, they lived in their house at Mysuru for a period of about 10 months. Though the petitioner has stated that the respondent was behaving rudely and adamantly with him and her attitude towards him and his family members was hostile, he has failed to point out any such instance of grave and serious nature which would amount to cruelty for the purpose of Sec. 13(1)(ia) of the Act. 11. The principal grievance of the petitioner appears to be that the respondent was demanding to setup a separate house or to live with her parents in their house and it is the case of the petitioner that he was not in a position to leave his parents for the sake of his wife. The respondent, on the other hand, has contended that she was being ill-treated in her matrimonial house by the petitioner as well as by her inlaws, and therefore, initially she had left the matrimonial house at Bengaluru and subsequently after the delivery, she had joined the petitioner. It is her further case that even after the petitioner shifted his residence to Mysuru, she had joined him at Mysuru, but the petitioner and his mother continued to ill-treat and harass her, and therefore, she was compelled to take shelter in her parents house after September 2005 onwards. 12. According to the petitioner, the respondent was totally unjustified in demanding to setup a separate house at Mysuru or to stay in her parents house and this amounted to cruelty. It is also his case that because of her rude behaviour, he and his parents have suffered mental agony and torture. PWs-2 & 3 who have been examined by the petitioner have deposed to the effect that they have made attempts to conciliate between the parties and they have also deposed that the said efforts made by them were in vain. PWs-2 & 3 who have been examined by the petitioner have deposed to the effect that they have made attempts to conciliate between the parties and they have also deposed that the said efforts made by them were in vain. PWs-2 & 3 are ignorant about the reason as to why the relationship between the petitioner and the respondent got strained. Therefore, the evidence of PWs-2 & 3 is of not much relevance. 13. The marriage can be dissolved under Sec. 13(1)(ia) of the Act only if the party approaching the court proves that the other party has treated him or her with cruelty after the solemnization of the marriage. Cruelty would be physical or mental. In the case of physical cruelty, the graveness and seriousness of allegation may have to be taken into consideration, whereas in the case of mental cruelty, the sustained unjustified conduct and behaviour of the other spouse which would resultantly develop a feeling of anguish and frustration because of the said conduct of the spouse for a continued period would have to be appreciated. The conduct of the other party which would merely cause unhappiness and dissatisfaction and emotional upset cannot be a ground for grant of divorce on the ground of cruelty. The normal wear and tear which happens in the day today life would not be adequate for grant of divorce on the ground of mental cruelty for the purpose of Sec. 13(1)(ia) of the Act. 14. For the purpose of seeking a decree of divorce on the ground of desertion under Sec. 13(1)(ib) of the Act, the petitioner is required to prove that the respondent is guilty of deserting the petitioner for not less than two years immediately preceding the presentation of the petition. The expression 'desertion' means the desertion of the petitioner by the other party without reasonable cause. The respondent has stated in her objection as well as during the course of her evidence that the petitioner and his mother were ill-treating her in the matrimonial house and they were not taking care of her and the child in the matrimonial house. It is also her specific case that the petitioner was addicted to alcohol and he also was a womanizer and used to abuse and assault her. It is also her specific case that the petitioner was addicted to alcohol and he also was a womanizer and used to abuse and assault her. Under the circumstances, it cannot be said that the respondent had no valid reason to desert the petitioner and take shelter in her parents house. The respondent along with her infant girl child was being ill-treated in the matrimonial house by the petitioner and his mother, and therefore, if the respondent has left the company of the husband and decided to stay in her husband's house, it cannot be said that the same would amount to willful desertion within the meaning of Sec. 13(1)(ib) of the Act. 15. The Hon'ble Supreme Court in the case of MANGAYAKARASI VS M.YUVARAJ - AIR 2020 SC 1198 , has held that in a matter where the differences between the parties are not of such magnitude and is in the nature of the usual wear and tear of marital life, the future of the child and her marital prospects are also to be kept in view and in such circumstance, the dissolution of marriage merely because they have been litigating and they have been residing separately for quite some time would not be justified. In the present case, admittedly, the child born to the couple is aged about 21 years and she is of marriageable age. She is in the custody of the respondent-wife. The outcome of this appeal will definitely have a repercussion on her future life and her marital prospects. 16. The principal grievance of the petitioner is that the respondent-wife was demanding a separate house or to stay in her parents house and this demand cannot be termed as cruelty for the purpose of seeking a decree of divorce. The Hon'ble Supreme Court in the case of SMT.ROHINI KUMARI VS NARENDRA SINGH - AIR 1972 SC 459 , has held that desertion within the meaning of Sec. 10(1)(a) of the Hindu Marriage Act read with the Explanation does not imply only a separate residence and separate living. But, it is also necessary that there must be a determination to put an end to marital relation and cohabitation. Without animus deserendi there can be no desertion within the meaning of Sec. 10(1)(a) of the Act. But, it is also necessary that there must be a determination to put an end to marital relation and cohabitation. Without animus deserendi there can be no desertion within the meaning of Sec. 10(1)(a) of the Act. In the present case, the material on record would go to show that the respondent had no intention at any point of time to put an end to the marital relationship and it cannot be said that she had left the petitioner's company for no valid reasons. 17. The learned Judge of the Family Court having appreciated the entire oral and documentary evidence available on record, by a reasoned order, has dismissed the petition filed by the husband under Sec. 13(1)(ia)(ib) of the Act on the ground that the petitioner has not proved either the ground of cruelty or desertion against the respondent-wife. We are of the considered view that the said judgment and decree passed by the Family Court does not suffer from any illegality or irregularity which calls for interference of this Court. We, therefore, find no merit in this appeal and accordingly, the same is dismissed.