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2023 DIGILAW 17 (KAR)

Kumuda v. Srinath. S S/o H. L. Subramanya

2023-01-03

ALOK ARADHE, S.VISHWAJITH SHETTY

body2023
JUDGMENT : Alok Aradhe, J. This appeal under Section 19(1) of the Family Courts Act, 1984 has been filed against judgment dated 25.04.2013 passed by the family court by which the marriage performed between the parties on 24.10.2007 has been dissolved by a decree of divorce on the ground of cruelty. 2. Facts leading to filing of this appeal briefly stated are that the marriage between the parties was an arranged marriage which was performed on 24.10.2007. After the marriage, appellant and the respondent went to Ooty, Kodaikanal and Mysore. On or about 01.01.2009, the respondent filed a petition under Section 12 and 13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short). It was averred in the petition that appellant never behaved like a newly wed girl and never evinced any interest in being with the respondent. It was further averred that appellant kept herself away from the respondent and never allowed the respondent to have physical contact. It was further averred that appellant did not wear mangalsutra and used to behave violently. 3. It is the case of the respondent that the appellant never took the responsibility of cooking the food at home and she used to lock herself inside a room for 4 to 5 hours and used to shout. It was pleaded that appellant broke a big mirror, which was fixed on the door and another plastic chair. It is the case of the respondent that appellant used to shout continuously to 2.5 hours to 5 hours. It was averred that on 17.06.2008, the appellant got up early and started shouting continuously for 5 hours and threw all the vessels in the kitchen and spoiled food items. On 24.07.2008, the appellant broke the remote of the television. It was also pleaded that appellant used to sleep for long hours and was not even interested to have food in time. It is also averred that the marriage between the parties has not been consummated. Accordingly, a decree under Section 12 as well as Section 13(1)(i-a) of the Act was sought. 4. The respondent filed his statement of objection, in which factum of marriage was admitted. However, the remaining averments made in the petition were denied. 5. The family court on the basis of pleading of parties, framed issues. Accordingly, a decree under Section 12 as well as Section 13(1)(i-a) of the Act was sought. 4. The respondent filed his statement of objection, in which factum of marriage was admitted. However, the remaining averments made in the petition were denied. 5. The family court on the basis of pleading of parties, framed issues. The respondent examined himself and his father viz., H.L.Subramanya as PW2 and exhibited documents viz., Ex.P1 to Ex.P25. The appellant examined herself. The family court vide judgment dated 25.04.2013 inter alia held that ground for dissolution of marriage under Section 12 of the Act is not established. However, the family court held that the appellant has treated the respondent with cruelty accordingly, the marriage between them was dissolved under Section 13(1)(i-a) of the Act. 6. Learned counsel for the appellant submitted that the respondent ought to have tendered an evidence of an expert viz., a Doctor about the mental health of her health as well as her capability to lead marital life. It is further submitted that no medical evidence was led by the respondent to prove the fact that the appellant was suffering from schizophrenia. It is also urged that after the parties had led evidence, the appellant had filed an interlocutory application seeking an appointment of court commissioner viz., a Doctor to examine the parties. However, the aforesaid application was erroneously rejected by the family court. In support of his submissions, learned counsel for the appellant has placed reliance on decisions of the Hon'ble Supreme Court in 'RAM NARAIN GUPTA VS. SMT. RAMEHWARI GUPTA', (1988) 4 SCC 247 , 'KOLLAM CHANDRA SEKHAR VS. KOLLAM PADMA LATHA', (2014) 1 SCC 225 . 7. On the other hand, learned counsel for the respondent while supporting the judgment passed by the family court has invited the attention of this court to the cross examination of the appellant. 8. We have considered the submissions made on both sides and have perused the record. It is trite law that standard of proof in a case of matrimonial dispute pertaining to cruelty cannot be said to be applicable as is applicable in case of trial in the Code of Criminal Procedure. However, the parties to the dispute is required to describe the measure and standard of cruelty and to lead cogent evidence to succeed in the plea of dissolution of marriage on the ground of cruelty. However, the parties to the dispute is required to describe the measure and standard of cruelty and to lead cogent evidence to succeed in the plea of dissolution of marriage on the ground of cruelty. [See: ‘MAYADEVI vs. JAGDISH PRASAD, AIR 2007 SC 1426 ]. 9. In SAMAR GHOSH VS JAYA GOSH (2007) 4 SCC 511 , the Supreme Court inter alia has elaborated the instances of mental cruelty which are reproduced below for the facility of reference: 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 of 'mental cruelty'. The instances indicated in the 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 with 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) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of 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) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. 10. In BHAGAT VS. D.BHAGAT (MRS.)', (1994) 1 SCC 337 , it has been held that mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. 11. Whether a ground for dissolution of marriage on the ground of cruelty is made out, has to be determined on the basis of facts and circumstances of each case. The respondent has reiterated the averments made in the petition in his examination in chief. However, it is pertinent to advert to the cross examination of the appellant. In her cross examination, the appellant has admitted that she was not interested in marrying the respondent and disliked him as he was not fair looking. She has further admitted that she was very dull at the time of engagement and an enquiry in this regard at the time of engagement was made by the respondent and his members of family. She has further admitted that there has been no physical relationship between her and the respondent and the appellant has further admitted that she had destroyed the food while cooking. She has further admitted that she has not worn mangalasutra and broken the remote of the TV. The appellant has further admitted the fact that she has broken the mirror and had removed the plaster of the wall as she was under depression. She has further admitted that she had heard the sound of talking by someone and observed nobody and therefore, broke the glass by pelting stone. She has further admitted that she used to stay alone in the room for two days and used to scream. 12. The aforesaid admission made by the appellant herself in the cross examination is sufficient to arrive at the conclusion that the appellant treated the respondent with cruelty. Admittedly, the marriage between the parties was not consummated. The respondent under mental pain, agony and suffering and in the facts of the case, it is not possible for the parties to live together. Therefore, the family court in the state of evidence on record has rightly concluded that ground for dissolution of marriage on the ground of cruelty is made out. 13. The respondent under mental pain, agony and suffering and in the facts of the case, it is not possible for the parties to live together. Therefore, the family court in the state of evidence on record has rightly concluded that ground for dissolution of marriage on the ground of cruelty is made out. 13. The judgment passed by the family court is based on meticulous appreciation of evidence on record. The decisions of the Hon'ble Supreme Court in 'RAM NARAIN GUPTA and 'KOLLAM CHANDRA SEKHAR do not have application to the facts of the case as in the aforesaid decisions, divorce was sought on the ground of mental disorder. In the instant case, the respondent had sought dissolution of marriage on the ground of cruelty, which has been duly proved by him. In the result, we do not find any merit in this appeal. Needless to state that the appellant shall be at liberty to seek permanent alimony in an appropriate proceeding. In the result, the appeal is dismissed.