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2023 DIGILAW 418 (KAR)

S. Kumara Swamy v. P. Mala

2023-03-10

ALOK ARADHE, VIJAYKUMAR A.PATIL

body2023
JUDGMENT : (Vijaykumar A. Patil, J.) This appeal is filed under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 10.10.2014 passed in M.C.No.1043/2012 by the V Addl. Judge, Family Court, Bangalore, by which the petition filed by the appellant seeking dissolution of marriage was dismissed. 2. Brief facts giving rise to filing of this appeal are that the appellant and respondent got married on 17.01.2005 as per Hindu customs in Bangalore. After the marriage respondent joined the matrimonial home. The respondent's mother used to interfere with the marital life. The respondent gave birth to a female child on 31.10.2005 and thereafter, the respondent started living with her parents. It is averred that the appellant requested the respondent to join the matrimonial home, however, she refused to join the matrimonial home. It is further averred that the respondent has requested the appellant to transfer the house property in her name, when the said demand was not complied with, she refused to join the matrimonial home and started harassing him. It is pleaded that respondent has filed police complaint against the appellant and his family members for the offences punishable under Sections 498A, 323, 324 325, 506 r/w Section 34 of IPC. The said criminal case is pending. The said act of respondent filing false case has caused mental cruelty to the appellant. It is further averred that the respondent has deserted the appellant from 20.02.2006 without any reasonable cause. Accordingly, the appellant sought dissolution of marriage on the ground of cruelty and desertion. 3. The respondent has filed statement of objections opposing the averments made in the petition. The respondent has admitted the factum of marriage and birth of female child out of the wedlock, however, she denies other averments of cruelty and desertion. It is further averred that appellant has not treated the respondent well, it is the appellant and his family members who have harassed her and used to demand dowry from her. It is further averred that due to cruelty and demand of dowry by the appellant and his family members, she has filed complaint with jurisdictional police. It is further averred that she was unable to live in such an atmosphere, hence, she was forced to leave the matrimonial home along with the child. 4. It is further averred that due to cruelty and demand of dowry by the appellant and his family members, she has filed complaint with jurisdictional police. It is further averred that she was unable to live in such an atmosphere, hence, she was forced to leave the matrimonial home along with the child. 4. The appellant in order to prove his case has examined himself as PW1 and marked the documents Exs.P1 to P3 and the respondent examined herself as RW1, however no documents were marked. The Family Court vide judgment 10.01.2014 inter alia held that the appellant has failed to prove the grounds of cruelty and desertion for grant of decree of divorce and dismissed the petition. 5. The appellant's case is that the marriage between the parties was solemnized on 17.01.2005 and out of the wedlock a female child was born on 31.10.2005. Despite providing all the comforts, the respondent has caused cruelty on the appellant. It is his case that she has filed false criminal case against the appellant with an intention to harass him. It is averred that without any reason the respondent voluntarily deserted the appellant on 20.02.2006, hence the petition is filed seeking dissolution of marriage. The Family Court has failed to appreciate the material on record and erroneously came to the conclusion that the appellant has failed to prove the case for grant of decree of divorce on the ground of cruelty and desertion and dismissed the petition, hence, the present appeal. 6. The respondent supports the judgment and decree of the Family Court. It is the case of respondent that the appellant has failed to prove the case before the Family Court, hence, Family Court has rightly dismissed the petition. 7. We have considered the contentions of both the sides and have perused the material on record. The parties have not disputed the factum of marriage and the birth of the child. On meticulous examination of pleading and evidence of PW1, it is admitted that the respondent has filed a police complaint on 20.02.2006. The jurisdictional police have filed charge sheet and it is pending adjudication before the jurisdictional Court. The parties have not disputed the factum of marriage and the birth of the child. On meticulous examination of pleading and evidence of PW1, it is admitted that the respondent has filed a police complaint on 20.02.2006. The jurisdictional police have filed charge sheet and it is pending adjudication before the jurisdictional Court. The contention of the appellant that the respondent has filed a false case against the appellant, which has caused mental cruelty, cannot be accepted for the simple reason that the jurisdictional police have filed charge sheet on collection of evidence, which prima facie establishes the commission of alleged offences unless contrary is established in pending trial. Mere filing of a criminal case cannot be construed as mental cruelty unless the jurisdictional court gives the finding that the initiation of case is malicious and false one. In the absence of any such finding we are of the opinion, that mere filing of police complaint ipso facto does not amount to mental cruelty. In that regard it will be useful to refer to the decision of the Hon'ble Supreme Court in Rani Narasimha Sastry Vs. Rani Suneela Rani, ( 2020(18) SCC 247 ) wherein at para 13 it is held as follows:- "13. In the present case the prosecution is launched by the respondent against the appellant under Section 498-A of IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A of IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. With regard to proceeding initiated by respondent under Section 498-A of IPC, the High Court made following observation in paragraph 14: 14.....Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A of IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty." The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005, they lived together only 18 months and thereafter they are separately living for more than a decade now." (THE UNDERLINED PORTION-EMPHASIS APPLIED) And in the decision of Hon'ble Supreme Court in Raj Talreja Vs. Kavita Talreja (2017)(14) SCC 194) it is held at paras 9 to 11:- "9. This Court in Para 16 of K.Srinivas Rao v. D.A.Deepa, has held as follows: "16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh v. Jaya Ghosh, 2007(4) SCC 511 , we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse." In Ravi Kumar v. Julmidevi, this Court while dealing with the definition of cruelty held as follows: "19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. 20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. 20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon, 1966(2) WLR 993 held that categories of cruelty in matrimonial cases are never closed." 10. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made 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. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 (for short `the Act'). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of IPC. 11. We have perused the judgment of the High Court. The police found, on investigation, that not only was the complaint false but also the injuries were self inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of IPC. 11. We have perused the judgment of the High Court. The High Court while dealing with the plea of false complaints held that there was no reason to hold that the criminal complaint filed by the respondent-wife was false and mala fide. We are unable to agree with this finding of the High Court and the court below. Both the courts below relied upon the statement of the wife that her husband had often visited her house and she fulfilled her marital obligations. These observations are not based on any reliable or cogent evidence on record. It is not disputed before us that the wife continues to live in the house which belongs to the mother of the husband whereas the husband lives along with his parents in a separate house and the son and daughter-in-law of the parties live with the wife. The son is working with the husband. We may note that Ms.Makhija has very fairly stated before us that the husband had always fulfilled his paternal obligations to his son and is continuing to pay maintenance to his wife as fixed by the court." (THE UNDERLINED PORTION-EMPHASIS APPLIED) 8. Keeping in mind the well settled legal position we are of the opinion, that initiation of criminal prosecution making certain acquisition against the accused itself is not a cruelty. The matter is seized before the Criminal Court and no finding is recorded by the said Court in favour of the appellant stating that the alleged acquisitions are false and malicious one. Hence we are of the opinion, that appellant has failed to prove the ground of cruelty for grant of decree of divorce. 9. The appellant has pleaded and adduced evidence in support of his case the ground of desertion before the Family Court. It is contended that respondent has deserted the appellant from 20.02.2006 without any reason or cause. The respondent has denied the said allegation and pleaded that the appellant has physically thrown her out from his house. The respondent in her cross-examination volunteers that she was and is always ready to join the appellant, but the appellant has not taken her back. The respondent has denied the said allegation and pleaded that the appellant has physically thrown her out from his house. The respondent in her cross-examination volunteers that she was and is always ready to join the appellant, but the appellant has not taken her back. On meticulous scrutiny of evidence on record, it is evident that the respondent has filed a criminal case against the appellant for demand of dowry and assault. The harassment and demand of dowry was the reason for the respondent to leave the matrimonial home. The respondent in her cross-examination has admitted that the appellant and her daughter are in cordial terms and once in a month or two the appellant takes the child for a day or two and thereafter sends her back to the respondent. It is evident that the respondent has left the matrimonial home for the reason that there was harassment and cruelty by the appellant and desertion is a not voluntary one. The appellant has failed to establish the factum of separation of the respondent with him, with an intention to bring cohabitation permanently to an end in his pleading or evidence. 10. It will be useful to refer the decision of the Hon'ble Supreme Court in Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi, (2002)(1) SCC 308 wherein at para 7 it is held as follows:- "7. Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are: 1. The factum of separation; 2. The intention to bring cohabitation permanently to an end animus deserendi; 3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period; The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include willful neglect of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include willful neglect of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period." 11. The appellant seeking dissolution of marriage on the ground of desertion has failed to prove that the respondent has deserted him voluntarily with an intention to bring the co-habitation permanently to an end-animus deserendi. 12. The Family Court on meticulous appreciation of evidence on record, has recorded a finding that the appellant has failed to prove the grounds for dissolution of marriage on the ground of cruelty and desertion. The aforesaid findings do not suffer from any infirmity warranting interference by this Court in the present appeal. 13. For the aforementioned reasons, we do not find any merit in this appeal, the same fails and is dismissed. No order as to costs.