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2023 DIGILAW 427 (KAR)

Shilpa Rani v. Suresh H. R.

2023-03-13

ALOK ARADHE, VIJAYKUMAR A.PATIL

body2023
JUDGMENT/ORDER VIJAYKUMAR A.PATIL, J. - This appeal under Sec. 28(1) of the Hindu Marriage Act, 1955, has been filed against the judgment and decree dtd. 20/4/2016 passed in M.C.No.3/2010 by the Senior Civil Judge and JMFC, Channagiri, by which the petition filed by the respondent/husband seeking dissolution of marriage, was allowed. 2. Brief facts giving rise to filing of this appeal are that the appellant/wife and respondent/husband got married on 13/11/2005 as per the Hindu customs and rituals. The respondent/husband has averred that he is from a respectable family and his father is a government servant. It is further averred that the appellant/wife was happily residing in the matrimonial home initially after the marriage and out of the wedlock a male child has been born. It is further averred that the appellant/wife was not discharging her marital obligations properly, she used to quarrel with the respondent/husband and she had not shown any interest in cooking. It is further averred that mother of the respondent/husband is suffering from skin disease, hence the appellant/wife used to disrespect her and did not allow her to touch household articles. It is further averred that the appellant/wife used to pick up quarrel with the mother in law for silly reasons and as per the wish of the appellant/wife the respondent/husband had arranged separate house hoping that situation would improve. However, the appellant/wife has not changed her attitude. It is averred that appellant/wife threatened the respondent/husband and his family members and later went to her parental house without informing the appellant/wife, but later she came back. The act of the appellant/wife caused mental agony to the respondent/husband. It is further averred that appellant/wife is suffering from psychological problems, hence she was treated by the Psychiatrist and the Doctor has opined that the brain of the appellant/wife is not matured and was provided treatment. The appellant/wife refused to follow the Doctor's advise, by not taking the tablets. It is further averred that during second week of February 2009 the appellant/wife left the matrimonial home and started living with her parents and she refused to rejoin the matrimonial home. It is further averred that respondent/husband sent a letter to the appellant/wife and her father on 15/4/2009 and got issued legal notice dtd. 25/5/2009 to the appellant/wife, however, there was no reply from the appellant/wife. It is further averred that respondent/husband sent a letter to the appellant/wife and her father on 15/4/2009 and got issued legal notice dtd. 25/5/2009 to the appellant/wife, however, there was no reply from the appellant/wife. It is further averred that appellant/wife was harassing the respondent/husband, thus the acts of the appellant/wife amounts to cruelty. 3. The appellant/wife has entered appearance before the Family Court and filed the statement of objections. The appellant/wife has admitted the relationship and the birth of the child out of the wedlock. The appellant/wife has specifically denied the allegation of cruelty and averred that parents of the appellant/wife have given gold ornaments to the respondent/husband. It is further averred that it is the respondent/husband and his family members, who have behaved rudely with the appellant/wife. It is further averred that immediately after the birth of the child, the respondent/husband's family members used to get the household work done by the appellant/wife and did not provide her with sufficient food. Hence, she was not able to feed the new born baby. It is further averred that respondent/husband and his family members have harassed in order to forcefully send out the appellant/wife from matrimonial home. 4. The Family Court on the basis of pleading and evidence, framed the issues and recorded the evidence. The respondent/husband examined himself as PW.1 and other two witnesses and produced Exs.P1 to P13. The appellant/wife examined herself as RW.1 and examined other two witnesses and produced Ex.R1. The Family Court based on the evidence adduced by the parties vide judgment dtd. 20/4/2016 allowed the petition by dissolving the marriage between the appellant/wife and the respondent/husband. In the aforesaid factual matrix the present appeal has been filed. 5. We have heard learned counsel for the appellant/wife and the respondent/husband and perused the material on record. 6. Learned counsel for the appellant/wife submits that there is no dispute with regard to the relationship between the parties and the birth of the child. It is submitted that the respondent/husband has filed petition before the Family Court seeking dissolution of marriage on the ground of cruelty however, he has failed to prove the ground of cruelty by adducing proper evidence and without considering the same the Family Court has erroneously allowed the petition. 7. It is submitted that the respondent/husband has filed petition before the Family Court seeking dissolution of marriage on the ground of cruelty however, he has failed to prove the ground of cruelty by adducing proper evidence and without considering the same the Family Court has erroneously allowed the petition. 7. It is submitted that the Family Court has mainly relied on the Ex.P12 (CD) and has come to the conclusion that the appellant/wife has caused cruelty on the respondent/husband. The said finding is perverse and contrary to the evidence on record and sought to set aside the same. 8. Per contra learned counsel for the respondent/husband supports the judgment of the Family Court and contends that it is the appellant/wife, who has caused mental cruelty on the respondent/husband by not treating the respondent/husband and his family members well. She always used to quarrel with the respondent/husband and his family members. She has failed to discharge the marital obligations and failed to act as a dutiful wife. 9. On considering the rival submissions and meticulous scrutiny of the evidence on record, it is evident that the relationship between the parties and birth of the child is not disputed. The appellant/wife in her pleading and evidence has denied the allegation of cruelty by stating that it is the respondent/husband, who has caused cruelty on her and against her wish, she has been sent out from the matrimonial home in the second week of February 2009. However, she has admitted that Sirigere Swamiji had held panchayat and sent the appellant/wife to the matrimonial home and she has further deposed that when she was not well, the respondent/husband has forced her to write a letter as per his dictation, which has been marked as Ex.P11. She has admitted the voice recorded in CD which is produced and marked as Ex.P12 is her voice, however, she has deposed that the recording of the CD was forceful. The Family Court has recorded a finding that the appellant/wife was in love with one Basavaraj and wanted to marry him prior to this marriage. It has further recorded that now at this stage there is no chance of reunion between the appellant/wife and the respondent/husband, hence proceed to dissolve the marriage. The Family Court has recorded a finding that the appellant/wife was in love with one Basavaraj and wanted to marry him prior to this marriage. It has further recorded that now at this stage there is no chance of reunion between the appellant/wife and the respondent/husband, hence proceed to dissolve the marriage. The said finding the Family Court is perverse for the reason that RW.1 in her cross-examination has clearly stated that the recording of CD is by force and the said act amounts to cruelty by the respondent/husband. The Family Court has not appreciated this fact in its proper perspective, hence it has committed error in coming to the conclusion that the appellant/wife has admitted her voice in the CD and also admitted the writings at Ex.P11. Mere admission of voice by RW.1 is not sufficient to come to the conclusion that the said act of the appellant/wife amounts to cruelty as the appellant/wife has clearly deposed that the recording CD is by force. The Family Court has relied on the electronic evidence i.e., Ex.P12 (CD). It is borne out from the record that no certificate is made available as contemplated under Sec. 65B(4) of the Indian Evidence Act, 1872. For admissibility of electronic evidence, the certificate contemplated under sub-Sec. (4) of Sec. 65B of the Evidence Act is mandatory and in the absence of such a certificate the oral evidence adduced by the party cannot be admissible as it is not in accordance with the Act. It is useful to refer to decision of the Hon'ble Supreme Court in the case of RAVINDER SINGH Vs. STATE OF PUNJAB (2022) 7 SCC 581 , wherein at paragraphs 21 and 22 it is held as follows :- "21. Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under Secs. 65-A and 65-B of the Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under Secs. 65-A and 65-B of the Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. The uncertainty of whether Anvar P.V v. P.K Basheer occupies the field in this area of law or whether Shafhi Mohammad v. State of H.P lays down the correct law in this regard has now been conclusively settled by this court by a judgment dated14-7-2020 in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal wherin the court has held that: (Arjun Panditrao Khotkar, SCC pp.56 and 52, paras 61 and 73) "61. We may reiterate, therefore, that the certificate required under Sec. 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V, and incorrectly 'clarified' in Shafhi Mohammad. Oral evidence in the place of such certificate cannot possibly suffice as Sec. 65-B(4) is a mandatory requirement of the law" (emphasis supplied) 22. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certificate requirement, for it to be admissible in the court of law. As rightly stated above, oral evidence in place of such certificate, as is the case in present matter, cannot possibly suffice as Sec. 65-B(4) is a mandatory requirement of law." 10. The Family Court has given a finding that the appellant/wife has produced a document which establishes the fact that she has been treated by the psychiatrist. It is evident from Ex.R1 that the treatment taken by the appellant/wife is after the appellant/wife left the matrimonial home. The said exhibit does not disclose that the appellant/wife is mentally ill and in the absence of any examination of doctor before the Family Court, the plea of mental illness requires to be rejected. The Family Court has given a finding that all attempts have been made by the panchayat to reunite the appellant/wife and respondent/husband and they have failed, thus there is no meaning in dismissing the petition. The Family Court has given a finding that all attempts have been made by the panchayat to reunite the appellant/wife and respondent/husband and they have failed, thus there is no meaning in dismissing the petition. The finding recorded by the Family Court is erroneous and perverse because merely making an attempt to reunite the appellant/wife and respondent/husband which have failed does not mean that the appellant/wife has left the matrimonial home by causing cruelty on the respondent/husband. The averments in the petition and evidence adduced on behalf of the respondent/husband are very vague and no specific instances of cruelty have been established in support of the ground for cruelty. Hence the finding recorded by the Family Court is contrary to evidence on record. On close scrutiny of pleading and evidence on record we are of the opinion, that the respondent/husband has failed to prove the ground of cruelty before the Family Court seeking dissolution of marriage. 11. For the aforementioned reasons, the impugned judgment and decree dtd. 20/4/2016 passed in M.C.No.3/2010 is set aside. In the result the appeal is allowed.