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2023 DIGILAW 383 (KAR)

B. G. Krishnareddy v. H. N. Bharathi

2023-03-06

ALOK ARADHE, VIJAYKUMAR A.PATIL

body2023
JUDGMENT : (Alok Aradhe, J.) This appeal under Section 19(1) of the Family Courts Act, 1984 has been filed against the judgment and decree dated 19.07.2015 passed by the Family Court, by which petition filed by the appellant seeking dissolution of marriage on the ground of cruelty has been dismissed. 2. Facts giving rise to filing of this appeal briefly stated that the marriage between the parties was performed on 05.03.1995 in Bangalore. After the marriage, the respondent joined the matrimonial home and parties lived together for a period of one year at Devarabisanahalli and later on lived at Agara in a rented accommodation. It is not in dispute that a daughter and son was born to the parties and presently the son is aged about 21 years, whereas, the daughter is aged about 22 years. The appellant filed a petition on or about 21.03.2011 seeking dissolution of marriage on the ground of cruelty. In the petition, it was pleaded that on 05.08.2004, when the appellant was taking bath, the respondent started quarrelling with him and bet the appellant with 'lattagi' (stick) on the left arm. It was pleaded that the appellant sustained internal injury and received treatment from the Doctor. It was also pleaded that the respondent used to ill treat the appellant as well as his parents. It was averred that the mother of the appellant was suffering from paralysis. The appellant sent a legal notice on 12.08.2004 asking the respondent to join the matrimonial home. However, the respondent neither replied to the notice nor joined the matrimonial home. The appellant thereupon filed a petition under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights on or about 16.07.2005. However, the same was subsequently withdrawn. Accordingly, the appellant sought dissolution of marriage on the ground of cruelty. 3. The respondent entered appearance and filed statement of objections, in which inter alia the factum of marriage as well as the birth of two children out of the wedlock was admitted. It was pleaded that the parents of the respondent had purchased a site in her name and her father along with her brothers, constructed nine houses without financial assistance of the appellant. It was also averred that father and brother have availed of the loan for construction purposes. It was pleaded that the parents of the respondent had purchased a site in her name and her father along with her brothers, constructed nine houses without financial assistance of the appellant. It was also averred that father and brother have availed of the loan for construction purposes. In para 8 of the statement of objections, it was pleaded that the appellant was addicted to several bad habits and when she questioned the appellant, she was ill treated and abused. It was also denied that the respondent assaulted the appellant on 05.08.2004. 4. The appellant in order to prove his case examined himself and produced documents viz., Ex.P1 to Ex.P11. The respondent neither entered the witness box nor produced any documents in support of her claim. The family court vide judgment dated 16.07.2015 dismissed the petition filed by the appellant. 5. Learned counsel for the appellant while inviting the attention of this court to the averment made in the petition as well as the evidence of PW1 submitted that from the evidence of the appellant, it is evident that respondent subjected him to cruelty. It is also submitted that a reckless and baseless allegation was made in para 8 of the statement of objections not only against the appellant but his father as well. It is submitted that aforesaid action of respondent in making the baseless allegation in the pleading amounts to cruelty. In support of aforesaid submissions, reliance has been placed on decisions of Hon'ble Supreme Court in 'V.Bhagat Vs D.Bhagat', AIR 1994 SC 710 and K.Srinivasa Rao Vs D.A.Deepa', 2013(5) SCC 226 . On the other hand, learned counsel for the respondent has supported the judgment and decree passed by the family court. 6. We have considered the submissions made on both sides and have perused record. It is trite law that standard of proof in a matrimonial dispute relating to cruelty cannot be said to be as applicable in case of a trial under the Code of Civil Procedure. However, the parties are required to describe the measure and standard of cruelty and to lead cogent evidence in support of plea of dissolution of marriage on the ground of cruelty. 7. 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. 7. 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. [See: 'Mayadevi vs. Jagdish Prasad, AIR 2007 SC 1426 ]. 8. In celebrated case of 'Dastane Vs. Dastane', AIR 1975 SC 1534 , the Supreme Court while dealing with cruelty as a ground for divorce has held that in a case for divorce on the ground of cruelty, the conduct charged as cruelty is to be of such a character so as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It was further held that it was not necessary that cruelty must be of such nature as to cause danger to life limb or health or as to give rise to a reasonable apprehension of such a danger of harm or injury to health or reputation or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. It was also held that the question of cruelty as ground for divorce has to be determined on the basis of facts and circumstances of each case. It is well settled in law that a petition seeking a decree of divorce on the ground of cruelty should contain specific instances of cruelty. [See: 'Neelam Kumar Vs Daya Rani', 2010(13) SCC 298 ]. In the instant case, in the averments made in para 6 of the petition are vague and do not contain any specific instances of cruelty. It is equally well settled in law that mere filing of the complaint does not amount to cruelty if there are justifiable reasons to file a complaint. [See: 'Raj Talreja Vs Kavita', 2017(3) KCCR SN 342 (SC)]. 9. In backdrop of aforesaid well settled legal principles, we may advert to the facts of the case on hand. Admittedly, the marriage between the parties has been performed on 05.03.1995. It is also not in dispute that from the wedlock, two children have been born to the parties. [See: 'Raj Talreja Vs Kavita', 2017(3) KCCR SN 342 (SC)]. 9. In backdrop of aforesaid well settled legal principles, we may advert to the facts of the case on hand. Admittedly, the marriage between the parties has been performed on 05.03.1995. It is also not in dispute that from the wedlock, two children have been born to the parties. The appellant in order to prove his plea of dissolution of marriage is required to state the specific instances of cruelty with precision in the plea and mere ordinary wear and tear of the marriage life does not amount to cruelty. In the petition under Section 13 of the Act, the appellant in para 9 has only pleaded that the appellant was assaulted on 05.08.2004. In evidence apart from the pleading in the aforesaid para, no other averments have been made in the petition with regard to cruelty. The appellant in his evidence has stated that he has sustained internal injuries on account of the assault, which took place on 05.08.2004 and was treated. However, no medical records have been produced before the family court in support of aforesaid contention. 10. The averment made with regard to cruelty are vague and baseless without any factual foundation. The family court therefore, has rightly found that the allegations of cruelty are not made out. So far as reliance placed by the appellant on decision of V. Bhagat supra is concerned, suffice it to say that in the aforesaid decision, in the facts of the case, the Hon'ble Supreme Court had found that the ground of cruelty was made out on account of unfounded allegations made in the pleading. The appellant has to succeed on the strength of his own case and cannot rely on the weakness of the respondent. Though we are aware that the respondent has failed to enter the witness box, however the fact remains that the appellant has been cross examined by the respondent and from the averments made in the petition as well as the evidence, it cannot be held that the respondent has treated the appellant with cruelty. In view of aforementioned reasons, we affirm the judgment and decree passed by the family court. In the result the appeal fails and is hereby dismissed.