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2022 DIGILAW 725 (KAR)

Y. ARAVIND KUMAR v. THARASHRI

2022-06-09

ALOK ARADHE, J.M.KHAZI

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JUDGMENT : 1. These two appeals have been filed against the common judgment and decree in M.C.Nos.1736/2012 and 5272/2014 dtd. 30/11/2018, by which the Family Court has dismissed the petition filed by the appellant/husband under Sec. 13(1) (i-a) and (i-b) of the Hindu Marriage Act , 1955 (hereinafter referred to as 'the Act' for short) seeking a decree of divorce on the ground of cruelty and desertion and has allowed M.C.No. 5227/2014 filed under Sec. 9 of the Act by the respondent/wife seeking restitution of conjugal rights. 2. Since these two appeals are arising out of a common judgment and decree, they are heard analogously and disposed of by a common judgment. 3. For the sake of convenience hereinafter the husband is referred to as petitioner and the wife is referred to as respondent. 4. The petitioner contended that his marriage with respondent was solemnized 29/4/2011 at Swayamprabha Kalyana Mantapa, Bengaluru as per the Hindu customs and rituals. It was an arranged marriage. He has further contended that even though the respondent was born on 24/7/1976, as evident from the records maintained by the Income tax authorities, deliberately in the horoscope her date of birth was falsely stated as 1/11/1978 and thereby the respondent cheated the petitioner and his family members. After the marriage they lived together for a short period. There are no issues out of the wedlock. 4.1 The petitioner has alleged that during her short stay in the matrimonial home, respondent used to leave the house without the knowledge and consent of the petitioner and his parents. At the instance of inimical persons towards the family, respondent used to harass the petitioner and his parents by threatening to file a dowry complaint. She used to threaten to commit suicide by letting out the cooking gas. She was not taking care of the aged parents of the petitioner and being unable to bear with the harassment meted out by the respondent, petitioner lodged a complaint with the Commissioner of Police on 2/1/2012. The same was referred to Family Counselling Centre. Though counselled, the respondent failed to lead the marital life with the petitioner and take care of his ailing parents. 4.2 It is further case of the petitioner that respondent filed a false complaint before the Karnataka State Women Commission. The same was referred to Family Counselling Centre. Though counselled, the respondent failed to lead the marital life with the petitioner and take care of his ailing parents. 4.2 It is further case of the petitioner that respondent filed a false complaint before the Karnataka State Women Commission. She along with her family members used to come near his house and abuse him with filthy and vulgar language and threaten him with dire consequences. Inspite of several panchayaths, things did not go well. Respondent is employed in IBM since 2008 and is getting a hand sum salary. She used to leave the house at 7.00 a.m and return at 9.00 p.m. She was not performing her obligations towards the matrimonial home. In the mid of the night, she used to cry and create nuisance. She was not allowing the petitioner to do his office work. Without any alternative, petitioner was constrained to file the petition seeking decree of divorce. 5. In addition to filing objections denying and disputing the entire case of the petitioner, respondent filed M.C.No. 5227/2014 seeking restitution of conjugal rights, wherein she has contended that after the marriage, the petitioner has not showed any love or affection towards her. He and his family members treated her as a maid servant. Within 2- 3 days of the marriage, petitioner checked the bank balance of respondent and when she did not encourage the same, he started harassing her. She was thrown out of the matrimonial house. She was never allowed to speak to the neighbours. The petitioner and his parents did not provide her proper food, medicine, assistance, etc., 5.1 Respondent had further pleaded that it is the family members of the petitioner who spoiled their relationship. They demanded her to give all of her salary income to them. On 26/11/2011, father of the petitioner attacked the father of the respondent with iron rod and threatened to kill him. On two occasions, the petitioner squeezed the neck of the respondent and caused breathlessness. When the harassment became unbearable, respondent lodged a complaint with the Karnataka State Commission for Women. After filing a petition for divorce, the respondent was thrown out of the matrimonial home on 24/6/2012. Only on the intervention of the police, she was allowed to come inside the house. When the harassment became unbearable, respondent lodged a complaint with the Karnataka State Commission for Women. After filing a petition for divorce, the respondent was thrown out of the matrimonial home on 24/6/2012. Only on the intervention of the police, she was allowed to come inside the house. Therefore, the respondent filed Crl.Misc.No. 32/2012 before the MMTC, Bengaluru seeking residence order which came to be allowed on merits. Her pregnancy was terminated by giving desi medicine at the instance of petitioner's mother and sister, as his sister is not having any children. The respondent has not initiated any criminal proceedings against the petitioner and his family members. Without any reasonable cause, the respondent has withdrawn from the company of the petitioner and has sought for restitution of conjugal rights. 6. Common enquiry was held, wherein the petitioner examined himself as PW-1 and relied upon Ex.P1 to 13. Similarly, the respondent examined herself as RW-1 and relied upon Ex.R1 to 34. 7. Vide the impugned judgment and decree, the Family Court has rejected the petition filed by the petitioner seeking decree of divorce. It has allowed the petition filed by the respondent and ordered the restitution of conjugal rights. 8. During the course of his arguments, the learned counsel representing the petitioner has fairly submitted that on perusal of the date of their marriage and date of petition, the Family Court has rightly rejected the petition under Sec. 13(1) (i-b) and as such he would not press for the said ground. 8.1 However, so far as rejection of petition under Sec. 13(1) (i-a), the learned counsel for the petitioner submits that the Family Court has not appreciated the fact that the respondent and her family members have concealed the fact that respondent is elder to the petitioner in age by giving false age in the horoscope. If at all the petitioner would have known the correct date of birth of the respondent, he may not have proceeded with the alliance. Therefore, the respondent and her family members have cheated the petitioner. 8.2 He would further submit that the Family Court has erred in not considering the aspect of importance of the difference of age between the bride and bridegroom and by giving false date of birth, the respondent has cheated the petitioner and his family members. Therefore, the respondent and her family members have cheated the petitioner. 8.2 He would further submit that the Family Court has erred in not considering the aspect of importance of the difference of age between the bride and bridegroom and by giving false date of birth, the respondent has cheated the petitioner and his family members. The Family Court has failed to appreciate the fact that even though the petitioner lodged complaint with the Commissioner of Police, which was referred to Family Conselling Centre, it has not helped the petitioner to lead a peaceful marital life. It is also submitted that the Family Court has failed to appreciate the fact that the respondent has repeatedly approached the Karnataka State Women Commission with false, frivolous and baseless complaints against the petitioner and his family and also filed petition under Domestic Violence Act and it amounts to cruelty. It is also pointed out that the Family Court has also not appreciated the several decisions relied upon by the petitioner. 8.3 In support of his arguments the learned counsel for the petitioner has relied upon the following decision: (i) Raj Talreja vs. Kavitha Talreja, (2017) 14 SCC 194 9. On the other hand learned counsel representing the respondent argued that all the complaints, which the respondent filed are before the Karnataka State Women Commission with an intention to see that her rights in the matrimonial home are justified and in her anxiety to join the petitioner, the respondent has chosen to file such complaints. She has never filed any criminal complaint against the petitioner or his family members which itself goes to show that her intention is only to join the petitioner and nothing else. The Family Court has rightly rejected the contention of the petitioner that the conduct of the respondent has amounted to cruelty and prays to dismiss the appeals also. She has never filed any criminal complaint against the petitioner or his family members which itself goes to show that her intention is only to join the petitioner and nothing else. The Family Court has rightly rejected the contention of the petitioner that the conduct of the respondent has amounted to cruelty and prays to dismiss the appeals also. 9.1 In support of his arguments the learned counsel for respondent has relied upon the following decisions: (i) Sarwan Singh vs. State of Punjab, AIR 2002 SCC 3652 (ii) Traders syndicate vs. Union of India, AIR 1983 Calcutta 337 (iii) Rajesh Haribhai patil vs. Sow Ranjana Rajesh Patil, 2014 0 SUPREME (BOM) 1327 (iv) Gopal Naidu vs. R.Manjula, 2016 0 SUPREME (KAR) 158 (v) Gurumohinder Pal Singh vs. Kamal Mohini, 2014 0 SUPREME (P and H) 616 (vi) Sonali Samal vs. Vikranth Parida, 2016 0 SUPREME (ORI) 166 (vii) Jagaluru Madhukeshwar vs. B.G.Kamlakshi, AIR 2012 KAR 22 (viii) Shobha Srinivas Bodigar vs. Srinivas Veeranna Bodigar, AIR 2002 KAR 256 (ix) Nabakumar Banik vs. Amitha Datta, AIR 2009 Gouhati 103 10. We have heard elaborate arguments of both sides and perused the record. 11. The marriage between the parties is an arranged marriage. The grievance of the petitioner appears to be that in the horoscope the date of birth of the respondent is not correctly stated and if he had come to know the correct date of birth of the respondent, he would not have gone ahead with alliance. The major grievance of the petitioner appears to be that the respondent was born on 24/7/1976, but in the copy of the horoscope at Ex.P10, her date of birth is stated as 1/11/1978. If her date of birth is taken as 24/7/1976, then she is elder to the petitioner. This appears to be the main bone of contention between the parties. It appears after realizing this fact, there started difference of opinion between the parties. 11.1 It is relevant to note that respondent is an employee of IBM. It appears petitioner had expectations that she would also contribute to the family expenses, if not giving away her entire salary. However when respondent did not agree for the same, their difference of opinion broadened. 11.1 It is relevant to note that respondent is an employee of IBM. It appears petitioner had expectations that she would also contribute to the family expenses, if not giving away her entire salary. However when respondent did not agree for the same, their difference of opinion broadened. This fact could be ascertained from the contention of the respondent that within 2- 3 days of the marriage, petitioner tried to know what is the amount in balance in her account and she did not encourage him. As evident from the material placed on record, since the place of work of the respondent was more than 10-12 kms from their residence, she used to leave the house at 7.00 a.m and return in the evening at 7.00 p.m, though petitioner claims that she used to come home around 9.00 p.m. Because of this reason it appears she was not able to concentrate on the household chores like a home maker. The evidence placed on record also reflects that inspite of petitioner being an employee and engaged in her office throughout the major portion of the day, the petitioner and his family members were expecting that she should do the household chores and also take care of his aged parents, which was not practicable. It appears this also affected the relationship between the petitioner, respondent and his family members. 11.2 Even though petitioner has alleged that the respondent has treated him with cruelty and it is not possible for him to live with her, the instances of cruelty attributed by the petitioner to the respondent are not established. Except his self- serving statement, petitioner has not chosen to examine any witnesses to support his contention that she tried to commit suicide, etc. Even if the alleged instances of cruelty attributed to the respondent are taken at their face value, such incidents could not be termed as cruelty and as rightly held by the Family Court, they amount to being the normal wear and tear of a family. 11.3 Though it is vehemently argued by the learned counsel for the petitioner that the respondent has virtually bombarded the petitioner with series of complaints, as rightly submitted by the learned counsel for respondent, they are all the petitions given by the respondent to the Karnataka State Women Commission. 11.3 Though it is vehemently argued by the learned counsel for the petitioner that the respondent has virtually bombarded the petitioner with series of complaints, as rightly submitted by the learned counsel for respondent, they are all the petitions given by the respondent to the Karnataka State Women Commission. In all her petitions, her prayer was to see that she is admitted back to the matrimonial home and allowed to live a married life with the petitioner. She has not chosen to file any criminal complaints either against the petitioner or his family members with an intention to see that they are put behind the bars. The evidence led by the respondent also establish the fact that on one occasion, petitioner and his family members locked the gate of their house and thereby prevented the respondent from entering the house. Only on the intervention of the police, she was admitted back into the house. Moreover the proceedings initiated by the respondent under the provision of Prevention of Domestic Violence Act for a residential order also goes to show that the petitioner did not allow the respondent to live with him in the matrimonial home. 11.4 Even though at the interim stage, the concerned Court has rejected the application on the ground that respondent cannot claim right of residence in the house of her in-laws, at the final disposal, it has granted the said relief directing the petitioner to allow the respondent to live in the rented premises where he was subsequently staying. 11.5 After appreciating the oral and documentary evidence placed on record, the Family Court has rightly come to the conclusion that petitioner has failed to prove that the respondent has treated him with cruelty of such nature as it would not be safe for him to live with her. On the other hand, the respondent has established that the petitioner has without any reasonable excuse withdrawn from her society and as such ordered for restitution. 11.6 In the facts and circumstances of the case, the decisions relied upon the learned counsel for the petitioner are not applicable to the case on hand. On the other hand the citations relied upon by learned counsel for respondent are applicable. 12. In the result both appeals fails and we proceed to pass the following: ORDER: (i) MFA.Nos.732/2019 and 731/2019 are hereby dismissed. The impugned judgment and decree are confirmed. On the other hand the citations relied upon by learned counsel for respondent are applicable. 12. In the result both appeals fails and we proceed to pass the following: ORDER: (i) MFA.Nos.732/2019 and 731/2019 are hereby dismissed. The impugned judgment and decree are confirmed. (ii) In the facts and circumstances of the case costs are made easy. (iii) The registry is directed to transmit the trial Court record along with copy of this Judgment to the Family Court.