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2022 DIGILAW 697 (KAR)

M. RADHA v. K. N. SAGAR

2022-06-01

ALOK ARADHE, J.M.KHAZI

body2022
JUDGMENT : 1. Being aggrieved by the grant of decree of divorce at the instance of her husband on the ground of cruelty, the appellant wife has come up with this appeal under Sec. 19(1) of the Family Courts Act, 1984 against the judgment dtd. 7/12/2016 passed by the Family Court. 2. For the sake of convenience the parties are referred to by their rank before the Family Court. 3. Petitioner filed petition under Sec. 13(1) (i-a) & (i-b) of the Hindu Marriage Act , 1955 (hereinafter referred to as 'the Act' for short) contending that marriage of petitioner and respondent was solemnized on 10/6/2011 at Thimmaiah Kalyana Mantapa, Chikkamallur, Channapatna. However, after the marriage, respondent lived with the petitioner only for 10 days. Since the petitioner was living in a joint family, after 10 days of marriage respondent demanded the petitioner to set up a separate residence. When he did not agree, on 20/6/2011, at about 9.00 p.m. without informing the petitioner, respondent left his house and at 11.15 p.m. one of her aunts, informed the petitioner that respondent has come to their house. On 21/6/2011, respondent along with her relatives and parents came to the house of the petitioner and created nuisance. In the Panchayath, she was advised by the Panchayatdars, after which came back to the matrimonial house. 4. When the petitioner did not agree to set up a separate residence, respondent started blackmailing him by threatening of commit suicide. She also made allegations that petitioner is having illicit relationship with his sister-in-law. To save the reputation of the family, the petitioner was advised by his mother and brother to set up a separate residence. Accordingly, on 25/8/2011, petitioner set up a separate residence and started living with respondent and his mother. However, respondent again started creating trouble by demanding that his mother should not stay with them and when he did not agree, she left the matrimonial home for three months. In the Panchayath which was held thereafter, it was decided that the petitioner's mother should stay with her elder son. 5. Even after this arrangement, the behaviour of respondent did not improve. She was not doing household work and demanding food to be brought from the hotel. She threatened to commit suicide in a casual manner. During 2012, the respondent left the matrimonial home and went to her parent's house for Varamahalakshmi festival. 5. Even after this arrangement, the behaviour of respondent did not improve. She was not doing household work and demanding food to be brought from the hotel. She threatened to commit suicide in a casual manner. During 2012, the respondent left the matrimonial home and went to her parent's house for Varamahalakshmi festival. However, she did not return to the matrimonial home even after several panchayaths. On 3/2/2013, respondent's father lodged a false complaint against the petitioner and his brother. The police detained the petitioner's brother. The petitioner's brother and mother were assaulted by rowdies at the behest of the respondent. Though staying under the same roof, they were living separately. On several occasions, at the instance of respondent, the petitioner and his family members were dragged to the police station. Ultimately, she deserted the petitioner during the year 2013. Accordingly, the petitioner had sought a decree of divorce on the grounds of cruelty and desertion. 6. Respondent has appeared through counsel and has filed objections inter-alia admitting the relationship between the parties. However, she has denied the remaining allegations. On the other hand she has alleged that during her stay with the petitioner, she was treated like a servant. She was assaulted upon for no reason. Even though the marriage was performed by spending Rs.5,00,000.00 including the jewelleries, petitioner and his family members were not satisfied. The respondent pleaded that it was the petitioner who had deserted, neglected and abandoned the respondent and that even now she is ready and willing to join the petitioner and has sought for dismissal of the petition. 7. During the enquiry, petitioner has examined himself as PW-1 and relied upon documents namely Ex.P1 and 2. 8. On the other hand respondent examined herself as RW-1 and got marked documents viz., Ex.R1. 9. Vide the impugned judgment and order, the Family Court has found that though the petitioner had failed to prove the ground of desertion, the allegations with regard to cruelty were proved and accordingly, the petition was partly allowed granting a decree of divorce. 10. We have heard the arguments of learned counsel for the parties and have perused the record. 11. During the course of arguments, the learned counsel representing the respondent submitted that the impugned judgment and order is contrary to law, facts and probabilities of the case. 10. We have heard the arguments of learned counsel for the parties and have perused the record. 11. During the course of arguments, the learned counsel representing the respondent submitted that the impugned judgment and order is contrary to law, facts and probabilities of the case. It is submitted that the Family Court has not appreciated the oral and documentary evidence in its proper perspective and that it has failed to appreciate the fact that petitioner himself had abandoned the respondent and inspite of repeated requests by the respondent, the petitioner has failed to take her back. It is pointed out that the petitioner has also neglected to take care of her and that the petitioner and his parents were aggressive. It is also submitted that inspite of several panchayaths, the petitioner did not improve his behavior and that the impugned judgment and order requires interference by this Court. 12. On the other hand, the learned counsel representing the petitioner has supported the impugned judgment and order and has sought for dismissal of the appeal. 13. The evidence placed on record by the petitioner establish the fact that within 10 days of the marriage, the respondent started demanding the petitioner to set up a separate residence, as she did not want to live along with the joint family and when he did not agree, she left the matrimonial home. Only after a panchayath was convened, she returned to the matrimonial home after two months. Thereafter, she made allegations against the petitioner to the effect that he is having illicit relationship with his sister-in-law. Unable to bare with such wild allegations, petitioner was advised to set up a separate residence and accordingly, he started living separately with his mother and the respondent. 14. The evidence led by the petitioner further prove that even though a separate residence was set up for her, respondent was not happy with the fact that petitioner's mother was staying with them and started quarrelling with her and succeeded in sending her to the house of petitioner's brother. Inspite of the fact that she and petitioner living separately, the respondent was not happy and ultimately, she left the matrimonial home during 2012. After respondent left the matrimonial home, when petitioner's mother came back and started living with him, after about six months respondent quarelled with the petitioner and also threatened his mother. 15. Inspite of the fact that she and petitioner living separately, the respondent was not happy and ultimately, she left the matrimonial home during 2012. After respondent left the matrimonial home, when petitioner's mother came back and started living with him, after about six months respondent quarelled with the petitioner and also threatened his mother. 15. The evidence led by the petitioner also establish the fact that respondent's father lodged complaint against the petitioner and his brother and they were called to the police station and in fact brother of petitioner was detained. Even though in the course of her evidence, the respondent has made allegations that petitioner was acting as per the advice of his mother, brother and his brother's wife and that there was a demand of dowry, no evidence is led to establish the said fact. As respondent had succeeded in setting up a separate residence and was staying with the petitioner, there was no occasion for the mother, brother and his wife to interfere with their life. She has admitted that several panchayaths were held which supports the case of the petitioner. 16. So far as the allegations that there was a demand for dowry and that in pursuance of the same, the respondent was harassed and ill treated, is concerned, it is pertinent to note that no complaint has been filed against the petitioner or his family members on this count. The examination of entire evidence on record makes it evident that the respondent was not willing to lead a happy married life with the petitioner and that on one or the other pretext, the respondent left the matrimonial home. She has gone to the extent of casting aspersions of illicit relationship between the petitioner and his sister-in-law. She has managed to get the petitioner and his family members summoned to the police station and detained. Even though she has contended that it is the petitioner who has withdrawn himself from the company of the respondent, admittedly, the respondent has not sought for restitution of conjugal rights. The aforesaid facts clearly indicate that the conduct of the respondent is of such nature that the same constitute mental cruelty of such character so as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful injurious for him to live with the petitioner. The aforesaid facts clearly indicate that the conduct of the respondent is of such nature that the same constitute mental cruelty of such character so as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful injurious for him to live with the petitioner. Upon appreciation of the entire oral and documentary evidence led by the parties, the Family Court has come to a correct conclusion that respondent treated the petitioner with cruelty and on this ground, he is entitled for a decree of divorce. 17. So far as ground of desertion is concerned, according to the petitioner ultimately, respondent left the matrimonial home during 2013. The petition came to be filed in the year 2014. Therefore, the mandatory period of two years, immediately prior to the filing of the petition to attract the provisions of Sec. 13 (1) (i-b) are not fulfilled. Therefore, the Family Court has rightly rejected the petition under Sec. 13(1) (i-b). The findings of the Family Court are based on meticulous appreciation of evidence placed on record. There are no grounds to interfere with the said conclusion. In the result, the appeal fails and accordingly, we proceed to pass the following: ORDER: (i) Appeal filed by the respondent under Sec. 19(1) of the Family Courts Act is hereby dismissed. (ii) The impugned judgment and order granting decree of divorce in favour of petitioner under Sec. 13(1) (i-a) of the Hindu Marriage Act, 1955 is hereby confirmed. (iii) The registry is directed to transmit the trial Court record along with copy of this judgment to the Family Court.