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2022 DIGILAW 756 (KAR)

Radha v. Putta Swamy

2022-06-17

ALOK ARADHE, J.M.KHAZI

body2022
JUDGMENT 1. Being aggrieved by the dismissal of her petition filed under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') seeking decree of divorce on the ground of cruelty, the appellant/wife who was the petitioner before the Family Court has filed this appeal under Section 19(1) of the Family Courts Act, 1984. 2. For the sake of convenience the parties are referred to by their rank before the Family Court. 3. FACTS: Brief facts leading to the filing of the petition are that the marriage of petitioner and respondent was solemnized on 18.05.1989 at Channapatna as per Hindu customs and rituals. Through the wedlock, they are blessed with a son and a daughter who are now aged 23 years and 21 years respectively. Their son is mentally disabled. It is averred that though respondent was working in a private company, he did not pay much attention to his family including providing treatment to his disabled son and education to the children. 4. After one year of the marriage, respondent started consuming alcohol and used to quarrel with the petitioner. He used to scold her in vulgar language. When she questioned respondent about him having an illicit relationship, he used to assault her and make allegations against her character. On 07.12.2014, respondent assaulted the petitioner with a chopper with the intention to kill her. She was shifted to Maharaja Agrasena Hospital, Benglauru by her brother. In this regard, she has lodged complaint with Ijoor Police in Cr.No.220/2014 and a charge sheet is filed for the offences punishable under Sections 498A, 504, 307 IPC. From the date of marriage, respondent has not at all taken the responsibility of maintaining the petitioner and their children. Petitioner reasonably apprehends that it is not safe for her to live with the respondent. 5. Respondent had appeared before the Family Court and filed objections admitting the relationship between the parties and that they are having a son and daughter. However, he has denied that after one year he started quarelling with the petitioner under the influence of alcohol and used to abuse and assault her. He has claimed that they lived happily till 2014 when one Jayakumar, a relative of petitioner started living in their house. When respondent objected for the same and requested petitioner to send him out of their house, she started quarelling with him. 6. He has claimed that they lived happily till 2014 when one Jayakumar, a relative of petitioner started living in their house. When respondent objected for the same and requested petitioner to send him out of their house, she started quarelling with him. 6. Petitioner has purchased two properties in her name and has let them out on rent. She has leased two houses for more than Rs.6,00,000/-p.a. During the absence of respondent, she has left the matrimonial home with all the household articles, jewels, etc. Since December 2014, respondent is living alone. Petitioner has lodged a false complaint and in the said case, respondent was arrested and kept in judicial custody. On the other hand, on 27.08.2014, it was petitioner and said Jayakumar, who assaulted the respondent. He was paying the loan installments taken for the construction of house. Even now, respondent is ready to take back the petitioner and children. He has filed O.S.No.170/2015 for declaration that the two houses are the joint property of petitioner and respondent. 7. Respondent has denied that on 07.12.2014, he assaulted the petitioner. In fact, on 21.04.2014, petitioner consumed some tablets and it was he who shifted her to B.G.S Hospital, Ramanagara. After being married for 25 years, making false allegtions, the petitioner is seeking divorce. 8. Based on pleadings, the Family Court has framed issues and has recorded the evidence. 9. In support of her case, petitioner has examined herself PW-1 and relied upon Ex.P1 to 16. Respondent has examined himself as RW-1 and got marked Exs.R-1 to 4. 10. Vide the impugned judgment and decree, the Family Court rejected the petition. 11. Learned counsel representing the petitioner argued that inspite of petitioner leading evidence to prove the allegation of cruelty, the Family Court has rejected the petition holding that she has not explained the instances of cruelty. Having regard to the fact that respondent has made baseless allegation of illicit relationship by itself is sufficient to say that she was treated cruelly by the respondent. 12. He would further submit that the Family Court has erred in not accepting the case of the petitioner and inspite of leading the oral and documentary evidence placed on record, it has erred in coming to the conclusion that the allegations of cruelty are not proved. 12. He would further submit that the Family Court has erred in not accepting the case of the petitioner and inspite of leading the oral and documentary evidence placed on record, it has erred in coming to the conclusion that the allegations of cruelty are not proved. Since the respondent was not taking care of the family, it was the petitioner who engaged herself in various business ranging from saree business, chit fund, real estate etc., and has managed to purchase the immovable properties and also construct residential tenements and has rented the same. She has raised her children and succeeded in securing an MBBS degree from Ukraine for her daughter. She is also taking care of the Son, who is mentally challenged. 13. Learned counsel for petitioner further submitted that the respondent has made false allegations of illicit relationship between petitioner and one Jayakumar, who is no other than his cousin and it was the respondent who brought the said Jayakumar to assist the petitioner in real estate business. Respondent has gone to the extent of assaulting the petitioner fatally and in this regard, based on the complaint filed by the petitioner, a charge sheet came to be filed against the respondent and case is pending. Without appreciating these aspects, terming the quarrels and dispute between the petitioner and respondent as normal wear and tear between married couple, the family Court has erred in dismissing the petition filed by the petitioner and prays to set aside the same and grant a decree of divorce. 14. On the other hand learned counsel for respondent has supported the impugned judgment and decree and submitted that after considering the pleadings, evidence and arguments, the Family Court has rightly dismissed the petition and prays to dismiss the appeal also. 15. We have considered the arguments advanced by both parties and have perused the record. 16. The marriage between petitioner and respondent was solemnized on 18.05.1989. They are blessed with two children, a daughter and a son. It is evident that the daughter has studied MBBS in Ukraine, whereas son is mentally challenged. Both the children are being taken care of by the petitioner. It is also evident that respondent is working as a Supervisor in a private company. They are blessed with two children, a daughter and a son. It is evident that the daughter has studied MBBS in Ukraine, whereas son is mentally challenged. Both the children are being taken care of by the petitioner. It is also evident that respondent is working as a Supervisor in a private company. The evidence led by both parties establish the fact that two sites were purchased in the name of the petitioner and residential tenements were constructed and they have been rented out to the tenants. Some of the tenements are mortgaged. Respondent claims that all these properties were acquired through his salary and he use to give 90% of his salary to the petitioner and out of that she has purchased these properties. 17. On the other hand, petitioner has contended that as respondent was not taking care of them, she slowly started engaging business. Initially, she started a saree business, chit fund business and ultimately, she is engaged in real estate business and out of the said income from the said business, she has purchased these properties. 18. Having regard to the fact that respondent is working as a Supervisor in a private company, it cannot be believed that out of his meager salary after expenses incurred for taking care of the family expenses including education of the children, the petitioner was able to acquire immovable properties and put up construction of houses, out of the savings from his salary. 19. The fact that she is engaged in various business and for assisting in the real estate business, one Jayaram, a relative of respondent is staying with them, is not disputed by the respondent. It is evident that respondent has raised a loan from the State Bank of India for acquiring immovable property and he has repaid the same. Petitioner though admits that loan was taken in the name of respondent, she has claimed that it is she who repaid the same. Nevertheless, whether these immovable properties are acquired by the petitioner independently or they were acquired out of the salary income of the respondent is a matter pending before the Civil Court which has to be adjudged by the said Court. 20. Fact remains that on account of the presence of Jayakumar, a rift started between the petitioner and respondent. Nevertheless, whether these immovable properties are acquired by the petitioner independently or they were acquired out of the salary income of the respondent is a matter pending before the Civil Court which has to be adjudged by the said Court. 20. Fact remains that on account of the presence of Jayakumar, a rift started between the petitioner and respondent. Respondent has gone to the extent of alleging that petitioner is having an illicit relationship with the said Jayakumar and that was the root cause for the bickering which started between the parties. However, respondent has not chosen to seek decree of divorce from the petitioner on the ground that she is having illicit relationship with the said Jayakumar. In fact, he has also failed to establish that they are having any illicit relationship. Making false allegations of illicit relationship against a spouse certainly amounts to cruelty. 21. The evidence placed on record establish that not being satisfied despite making such allegations, on 07.12.2014, he has assaulted the petitioner with a chopper and caused her grievous and simple injuries. Ex.P15 is the wound certificate. She was in-patient for 3 days. In this regard, she has filed a complaint as per Ex.P13 and after investigation, concerned police have filed charge sheet against the respondent and the case is pending. Ex.P4 to 10 are the photographs regarding the injury sustained by the petitioner. These documents establish the fact that the respondent has treated the petitioner cruelly and gone to the extent of assaulting her. Admittedly, the children are staying with the petitioner. Subsequent to the assault by the respondent, when he was in judicial custody, the petitioner has left the matrimonial home and since then, she is living with her brother along with her children. 22. Respondent has made a faint attempt to prove that he was also assaulted by the petitioner, Jayakumar on 27.08.2014 i.e., even before petitioner made allegations of assault against the respondent. He has chosen to produce photographs at Ex.R2 which are dated 23.07.2015 i.e., almost 11 months subsequent to the alleged assault dated 27.08.2014. Admittedly, respondent has not filed any complaint against the petitioner and others alleging assault. When the evidence placed on record is analysed in its proper perspective, it leads to an irresistible conclusion that petitioner was treated cruelly by the respondent. Admittedly, respondent has not filed any complaint against the petitioner and others alleging assault. When the evidence placed on record is analysed in its proper perspective, it leads to an irresistible conclusion that petitioner was treated cruelly by the respondent. The conduct of the respondent is such that it would certainly raise an apprehension in the mind of the petitioner that it would not be safe for her to live with him. It appears the main concern of the respondent is only with regard to the properties standing in the name of petitioner, which according to him are acquired through his resources. If that is the case, he is at liberty to establish the same in the civil suit which he has already filed and pending consideration before the competent Civil Court. 23. The Family Court has not appreciated the oral and documentary evidence placed on record in its proper perspective and consequently, fell into error by holding that the petitioner has not discharged the burden placed on her and on the other hand has termed the dispute between them as only normal wear and tear of the married life. The Hon'ble Supreme Court in Vijay Kumar Ramachandra Bhate vs Neela Vijay Kumar Bhate, reported in (2003) 6 SCC 334 has held that unsubstantiated disgusting accusations made by one spouse against the other constitute mental cruelty for sustaining a claim for divorce. Similarly, in K. Srinivas Rao Vs. D.A. Deepa reported in (2013) 5 SCC 226 it has held that making unfounded indecent defamatory allegations against the spouse or his/her relatives in the pleadings amount to causing mental cruelty to the other spouse. Similarly in Raj Talreja vs. Kavitha Talreja, (2017) KHC 635, the Hon'ble Supreme Court has held that reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers amounts to cruelty. 24. When the evidence placed on record in the present case is analysed in view of the principles enunciated in these decisions, we are of the considered opinion that petitioner has proved the allegations of cruelty against the respondent and it is a valid ground to grant a decree of divorce. 25. In the result, the appeal succeeds and we proceed to pass the following: ORDER i) Appeal filed by the petitioner is allowed. 25. In the result, the appeal succeeds and we proceed to pass the following: ORDER i) Appeal filed by the petitioner is allowed. ii) The impugned judgment and decree dated 08.11.2017 passed in M.C.No.1191/2015 by the IV Additional Principal Judge, Family Court, Bengaluru is set aside. iii) The petition filed under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 is allowed. A decree of divorce is granted dissolving the marriage of petitioner with respondent dated 18.05.1989. iv) The registry is directed to transmit the trial Court record along with copy of this judgment.