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2023 DIGILAW 414 (KAR)

Leelavathi v. B. Shivaprakash

2023-03-10

ALOK ARADHE, VIJAYKUMAR A.PATIL

body2023
JUDGMENT/ORDER ALOK ARADHE,J. - Both these appeals have been filed by the wife. MFA No.1875/2015 has been filed against the judgment and decree dtd. 24/1/2015 by which the petition filed by the respondent under Sec. 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short) has been allowed and RPFC No.46/2015 has also been filed by the wife against the judgment and decree dtd. 24/1/2015 passed by the family Court by which petition filed by the appellant/wife seeking amount of maintenance has been partly allowed and the son of the parties alone is held entitled to maintenance at the rate of Rs.4,000.00 per month. 2. The parties to the dispute are common. Therefore, these appeals were analogously heard and are being decided by this common judgment. 3. The facts giving rise to filing of these appeals briefly stated are that the marriage between the parties was performed on 22/5/2006 at Akhila Namadhari Gowda Samudaya Bhavan, Hunsur Road, K.R. Nagar. The parties joined matrimonial home at Mysuru. It is not in dispute that out of wedlock, son was born to the parties in the year 2008. 4. The respondent/husband filed a petition on or about 7/6/2012 seeking dissolution of marriage on the ground of cruelty. It was inter alia pleaded that appellant had a quarrelsome behaviour and used to quarrel with the respondent as well as his parents for silly reasons and some times without any reason. It was also pleaded that the appellant went to her parents place for delivery and thereafter, despite efforts being made by the respondent, appellant did not join the matrimonial home. The respondent thereupon sent a notice on 20/5/2009 asking the appellant to join the matrimonial home. However, the appellant neither responded to the aforesaid notice nor joined the matrimonial home. 5. After receipt of notice asking her to join the matrimonial home, the appellant filed a complaint at Ex.R-2 against the appellant and members of his family for the offences punishable under Ss. 498-A , 506 read with Sec. 34 of IPC. The respondent thereupon filed a petition seeking dissolution of marriage on the ground of cruelty. 6. The appellant, on receipt of notice, filed statement of objections, in which the relationship between the parties was admitted. It was further admitted that the son was born out of the marriage. 498-A , 506 read with Sec. 34 of IPC. The respondent thereupon filed a petition seeking dissolution of marriage on the ground of cruelty. 6. The appellant, on receipt of notice, filed statement of objections, in which the relationship between the parties was admitted. It was further admitted that the son was born out of the marriage. It was denied that the appellant has either treated the respondent or his family members with cruelty. However, it was admitted that the appellant had filed the complaint in respect of the Dowry Harrasment which is pending trial. It was also pleaded that respondent was having an illicit relationship with one Shubha. 7. The family Court recorded the evidence of the parties. The appellant examined himself as PW-1 and exhibited 5 documents, namely, Ex.P-1 to P-5. The respondent examined herself as RW-1 and exhibited 7 documents, namely, Ex.R-1 to R-7. The family Court thereafter vide judgment and decree dtd. 24/1/2015 held that the respondent has proved that the appellant has treated him with cruelty. Accordingly, the marriage between the parties was directed to be dissolved by a decree of divorce. Hence, MFA No.1875/2015 has been filed. 8. The appellant had filed a C.Mis.172/2009 under Sec. 125 of the Code of Criminal Procedure along with her son claiming maintenance. The family Court vide judgment dtd. 24/1/2015 passed in C.Misc.No.172/2009 partly allowed the petition filed by the appellant. The family Court held that the appellant is not entitled to maintenance as she herself has deserted the respondent. However, the minor son was held entitled for an amount of maintenance of Rs.4,000.00 per month. Hence, RPFC No.46/2015 has been filed. 9. None has appeared on behalf of the appellant. Learned counsel for the respondent has read paragraph Nos.7 to 17 of the judgment of the family Court dtd. 24/1/2015 passed in M.C.No.244/2012 and has submitted that the family Court has rightly dissolved the marriage between the parties on the ground of cruelty. Learned counsel for the respondent has also referred to the decision of the Hon'ble Supreme Court in Vishwanat vs Sau . Sarla Vishwanath Agrawal, (2012) 7 SCC 288 . as well as Division Bench decision of this Court dtd. 28/6/2022 in MFA No.10111/2013. Learned counsel for the respondent has also referred to the decision of the Hon'ble Supreme Court in Vishwanat vs Sau . Sarla Vishwanath Agrawal, (2012) 7 SCC 288 . as well as Division Bench decision of this Court dtd. 28/6/2022 in MFA No.10111/2013. It has fairly been submitted by the learned counsel for the respondent that the respondent is under an obligation to take care of his son and since he is aged about 15 years, the respondent shall pay a sum of Rs.10,000.00 per month to him henceforth. 10. We have considered the submission made by learned counsel for the respondent and have perused the records. It is trite law that the standard of proof in case of matrimonial dispute pertaining to cruelty cannot be applicable as is applicable in case of trial under Code of Criminal Procedure. However, the parties to the dispute are required to describe the measure and standard of cruelty 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 ]. It is equally well settled legal position that making a false allegation against the character of a spouse amounts to cruelty. [See: 'V. BHAGAT VS D. BHAGAT', (1994) 1 SCC 337 ]. It is well settled in law that if a false criminal complaint is preferred by either spouse so as to claim divorce, it would invariably constitute to mental cruelty. [See: 'K. SRINIVAS RAO VS. D.A. DEEPA', (2013) 5 SCC 226 ]. 11. In backdrop of aforesaid well settled legal principles, we may advert to the facts of the case on hand. 12. In the instant case, admittedly, the marriage between the parties was performed on 22/5/2006 and a son was born to them in the year 2008. In the statement of objections, the appellant has made an allegation that respondent was having an illicit relationship with one Shubha. However, the respondent has not adduced any evidence to substantiate the aforesaid allegation made by her. These baseless and unsubstantiated allegation with regard to character of the respondent constitute mental cruelty. 13. It is also pertinent to note that the respondent sent a notice on 20/5/2009 to the appellant asking her to join the matrimonial home. The respondent even filed petition under Sec. 19 of the Act. These baseless and unsubstantiated allegation with regard to character of the respondent constitute mental cruelty. 13. It is also pertinent to note that the respondent sent a notice on 20/5/2009 to the appellant asking her to join the matrimonial home. The respondent even filed petition under Sec. 19 of the Act. However, the appellant neither submitted a reply to the notice sent on behalf of the respondent nor expressed her willingness to join the matrimonial home. Thus, the appellant is staying away from the respondent separately since 2008 without any justifiable reason. 14. The appellant files a complaint against the respondent as well as members of his family at Exs.R-2 for the offences punishable under Ss. 498A , 341 , 506 read with Sec. 34 of IPC. The appellant is staying away from the respondent without any justifiable cause. The family Court on the basis of perusal of the averments made by the parties and on the evidence of the parties has concluded that appellant has subjected the respondent to cruelty. The aforesaid finding of fact is based on meticulous appreciation of evidence on record which does not call for any interference in this appeal. 15. Insofar as judgment and decree dtd. 24/1/2015 passed in C.Misc.172/2009 is concerned, the Family Court has rightly declined to grant maintenance to the appellant as she is staying away from the respondent without any justifiable cause since 2008. However, the respondent being a husband, is under an obligation to maintain his son who is aged about 15 years, would require fund to meet the expenses on account of his education. 16. In view of the undertaking furnished by the respondent that he will henceforth pay a sum of Rs.10,000.00 per month on account of maintenance to his son, judgment and decree dtd. 24/1/2015 passed in C.Misc.No.172/2009 is modified and the amount of maintenance is fixed at Rs.10,000.00 per month which shall be payable from 1/1/2023 onwards. 17. Needless to state that the respondent shall deposit the balance amount of maintenance, if any, within a period of one month. For the aforementioned reasons, MFA No.1875/2015 is dismissed whereas RPFC No.46/2015 is disposed of.