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2023 DIGILAW 484 (KAR)

Neetha S v. Mahesh P. S.

2023-03-21

ALOK ARADHE, VIJAYKUMAR A.PATIL

body2023
JUDGMENT/ORDER VIJAYKUMAR A.PATIL, J. - This appeal under Sec. 19(1) of the Family Courts Act, 1984, has been filed against the judgment and decree dtd. 3/10/2016 passed in M.C.No.1019/2010 by the Principal Judge, Family Court, Bangalore, by which the petition filed by the respondent seeking dissolution of marriage, was allowed. 2. Brief facts giving rise to filing of this appeal are that the marriage between the appellant and respondent was solemnized on 26/4/1999 at Sri Chowdeshwari Kalyana Mantapa, Vijayanagar, Bangalore as per the customs and rituals. It is averred that the couple led happy married life for some days and thereafter the appellant started showing her colours. She used to prefer luxurious life which was not acceptable in the traditional family of the respondent and she never used to respect or wish the friends, relatives or guests. It is further averred that appellant used to disrespect the elders and refused to join the respondent at Bagepalli, the work place of the respondent. Hence he was constrained to set up a residence at Bangalore and he used to travel every day to Bagepalli. 3. It is pleaded that out of the wedlock a female child was born on 3/4/2000. It is pleaded that appellant has locked the respondent's mother in the room and went to her parental house. She has threatened to commit suicide by consuming poison, she also started black-mailing the respondent and expected to act as per her wish. It is further pleaded that appellant has attempted to commit suicide by hanging over the ceiling fan in the bedroom and on hearing the cry of the child, the respondent broke open the door, thus such act has caused mental cruelty to the respondent. It is also pleaded that appellant left the matrimonial home in the month of December 2003 and since then there is no conjugal relationship between the couple. It is averred that appellant was arrogant, career oriented and she had refused to join the matrimonial home, which made the life of the respondent miserable. 4. The appellant has entered appearance and filed statement of objections by admitting relationship between the parties and birth of the child. It is averred that allegations of ill treatment, harassment and cruelty are false and without any basis. 4. The appellant has entered appearance and filed statement of objections by admitting relationship between the parties and birth of the child. It is averred that allegations of ill treatment, harassment and cruelty are false and without any basis. It is the mother and brother of the respondent, who were harassing the appellant and tried to bring the difference of opinion between the couple. It is further averred that respondent never treated the appellant and the child with love and affection, he used to treat the appellant as a maid servant and the family members have caused mental harassment to the appellant. It is also averred that appellant and respondent were meeting in different places and have also visited Goa, Chennai and Mysore, even though they were not living under one roof, the appellant had fulfilled all the desires of the respondent as a dutiful wife. It is pleaded that appellant had never refused to lead marital life with the respondent and the allegations of cruelty and desertion are created for the purpose of filing the petition. 5. The Family Court has recorded the evidence. The respondent examined himself as PW.1 and other four witnesses as PWs.2 to 5 and got marked Exs.P1 and P2. The appellant examined herself as RW.1 and another witness as RW.2 and got marked Exs.R1 and R2. The Family Court on the basis of evidence adduced by the parties vide common judgment dtd. 3/10/2016 allowed the petition filed by the respondent/husband seeking dissolution of marriage and dismissed the petition filed by the appellant seeking restitution of conjugal rights. 6. With the consent of learned counsel for the parties both the appeals are heard together. 7. Learned counsel for the appellant submits that Family Court has erred in appreciating the evidence on record and has come to erroneous conclusion that the respondent has proved the grounds of cruelty and desertion and granted decree of divorce. It is submitted that the Family Court has not at all considered the various SMS communication between the couple for the last many years, which clearly establishes that there was no intention of ending cohabitation, even though they lived separately. The Family Court has also erred in appreciating the evidence on record as the respondent has not examined the father, mother and brother, whose evidence was vital. The Family Court has also erred in appreciating the evidence on record as the respondent has not examined the father, mother and brother, whose evidence was vital. It is further submitted that Family Court has erred in considering the evidence of PWs.2 to 5, who are the strangers to the Family and they have no personal knowledge about the alleged incidents. It is also submitted that only vague and false allegations are made against the appellant about the cruelty, the allegation that the appellant had locked the mother of the respondent is false and without any basis. It is submitted that there is no proof to substantiate the allegation of an attempt to commit suicide by the appellant and she has not voluntary deserted the respondent with an intention to end cohabitation, these aspects are not at all considered by the Family Court, which has resulted in giving incorrect finding. It is further submitted that there were minor differences between the parties, as they were very cordial, the said fact is evident from bunch of SMS's placed before the Court. These aspects have not been properly appreciated by the Family Court. 8. Per contra, learned counsel for the respondent supports the impugned judgment and submits that there is no dispute with regard to the relationship between the parties, the birth of the female child and it is also not in dispute that both the couple are well qualified. It is submitted that the appellant has initially led happy married life with the respondent, she was in the habit of leading luxurious life, however, the respondent's family being orthodox have requested the appellant to adjust with the customs and practices, however, she has refused to do so. It is submitted that the appellant was having suicidal tendency and attempted to commit suicide thrice. It is further submitted that the appellant has deserted the respondent in the month of December 2003 and thereafter she started living separately and which has been admitted by her in her evidence. It is also submitted that the appellant has purposefully locked the mother of the respondent in the house and left along with the child to her parents' house. It is also submitted that the appellant has purposefully locked the mother of the respondent in the house and left along with the child to her parents' house. It is submitted that the appellant has caused mental cruelty on the respondent and also deserted him without any reasons and the respondent has proved both the ground of cruelty and desertion, hence the Family Court has rightly granted the decree of divorce, which does not call for interference by this Court. 9. We have considered the submissions made by the learned counsel for the parties and have perused the records. 10. It will be useful to refer the decisions of the Hon'ble Supreme Court : a. SAMARGOSH Vs. JAYAGOSH (2007) 4 SCC 511 wherein at paragraph 101 it is held as follows :- "101. 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. (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. (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. 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." b. SUMAN SINGH Vs. SANJAY SINGH (2017) 4 SCC 85 at paras 14 and 17 it is held as follows:- "14. This we hold for more than one reason. First, almost all the grounds taken by the respondent in his petition were stale or/and isolated and did not subsist to enable the respondent to seek a decree for dissolution of marriage. In other words, the incidents of cruelty alleged had taken place even, according to the respondent, immediately after marriage. They were solitary incidents relating to the behavior of the appellant. Second, assuming that one or more grounds constituted an act of cruelty, yet we find that the acts complained of were condoned by the parties due to their subsequent conduct inasmuch as admittedly both lived together till 2006 and the appellant gave birth to their second daughter in 2006. Third, most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the appellant actually said etc 17) Few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Sec. 13 (1)(ia)of the Act." c. N.G. DASTANE (Dr.) Vs. S. DASTANE AIR (1975) SC 1534 wherein it is held at paragraph 72 as follows:- "72. It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival and in cases of cruelty, "very slight fresh evidence is needed to show a resumption of the cruelty, for cruelty of character is bound to show itself in conduct and behavior, day in and day out, night in and night out". But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. Condonation is conditional forgiveness but the grant of such forgiveness does not give to the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutely to submit to the cruelty of the other spouse without relief or remedy. The respondent ought not to have described the appellant's parents as "wicked" but that perhaps is the only allegation in the letter Ex. 318 to which exception may be taken. We find ourselves unable to rely on that solitary circumstance to allow the revival of condoned cruelty". d. DEBANANDA TAMULI V. KAKUMONI KATAKY, (2022) 5 SCC 459 has held at para 7 as follows :- "7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant/husband relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home." 11. Keeping in mind the legal position and the ratio laid down by the Hon'ble Supreme Court, now we advert to the case on hand. 12. The respondent has alleged that the appellant was having dominating attitude and always demanded for luxurious life and abused the respondent and his parents in unparliamentary words. The respondent has failed to establish specific instances of such allegations before the Family Court by adducing proper and acceptable evidence. The averments pertaining to cruelty are only self serving statement of the respondent without substantiating the same. The respondent has failed to establish specific instances of such allegations before the Family Court by adducing proper and acceptable evidence. The averments pertaining to cruelty are only self serving statement of the respondent without substantiating the same. Insofar as allegation that the appellant in the month of March 2001 has locked the mother of the respondent in the house and went to parental house with the child, on scrutiny of evidence of PW.1 and RW.1 it is evident that there was separate lock for the main door and the adjoining room, where the appellant was separately residing from the main house. RW.1 has clearly deposed that she has locked the room where she was separately residing and after informing the respondent only she left the matrimonial home to her parents house with the child. The said evidence has not been appreciated by the Family Court in its proper perspective, which has resulted in erroneous finding. 13. The respondent has asserted that the appellant has suicidal tendency and attempted to commit suicide on three occasions. The said statement has been emphatically denied by the appellant in her evidence. On perusal of the evidence of PW.1 to PW.5, it is axiomatic that all the witnesses have spoken that the appellant has attempted to commit suicide and on one occasion she has consumed poison and was taken to Primary Health Centre, Hesaraghatta. It is clear that PWs.2 to 5 are neither the relatives of the appellant nor they were physically present during the said incidents. They deposed that they came to know about the incidents from PW.1. The respondent has neither placed any medical records nor examined any Doctor. Therefore, in the absence of any such evidence, it would be difficult to believe oral testimony of PWs.1 to 5. The Family Court has erred in its finding relating to suicide. 14. Insofar as the second instance of alleged attempt to suicide by the appellant in November 2003 by hanging over the ceiling Fan in the quarters, the respondent has neither examined any independent witnesses nor examined his parents to substantiate the said allegation. The finding of the Family Court that the Director of his organization and his wife and others have visited their house and counselled the appellant is erroneous. The finding of the Family Court that the Director of his organization and his wife and others have visited their house and counselled the appellant is erroneous. The respondent has failed to examine the persons who have counselled the appellant, and in the absence of testimony of independent witness it cannot be held that the appellant has attempted for suicide. The assertion of the respondent that she was in habit of attempting to commit suicide is unfounded, in the absence of any cogent and acceptable evidence. It is admitted that the respondent has neither given any police complaint, nor has taken the appellant to any hospital for providing treatment and in the absence of any such evidence to substantiate the allegation of attempt to commit suicide, it can be fairly said that the respondent failed to prove the ground of cruelty. 15. The respondent has asserted that the appellant has deserted the respondent in the month of December 2003 and there is no conjugal relationship between them. It is not disputed that the appellant has left the matrimonial home in the month of December 2003, however, in her evidence she has clearly stated that it is respondent who has requested the appellant to stay with her parents and he has dropped her. RW.1 in her evidence has clearly deposed that the respondent used to visit the appellant and her child constantly and the respondent has taken the appellant and the child to Goa, Chennai and Mysore, and they used to meet frequently. The said statement is supported by contents of the text messages produced and marked as Ex.R1. The respondent has neither crossexamined the appellant on this statement nor denied the contents of Ex.R1. The oral testimony of the respondent and the contents of the Ex.R1 clearly demonstrates that they were not residing together under the one roof and used to meet frequently and there was no intention of the parties to end the co-habitation permanently. The Family Court has not considered these aspects in its proper perspective resulting in erroneous finding. To prove the ground of cruelty, party is required to lay proper foundation by way of pleading and substantiate the same by cogent and acceptable evidence. To constitute cruelty the conduct of party should be 'grave and weighty' so as to come to the definite conclusion that a spouse cannot be reasonably expected to live with other spouse. To prove the ground of cruelty, party is required to lay proper foundation by way of pleading and substantiate the same by cogent and acceptable evidence. To constitute cruelty the conduct of party should be 'grave and weighty' so as to come to the definite conclusion that a spouse cannot be reasonably expected to live with other spouse. In the instant case the respondent has made vague assertion of cruelty and desertion without substantiating the same. The allegations are nothing but instances of usual wear and tear in matrimonial life. The mere allegations of mental cruelty do not establish the factum of cruelty, as it is not supported with admissible evidence. In the absence of any such material we are of the opinion that the respondent has failed to prove the ground of cruelty and desertion to seek decree of dissolution of marriage. 16. For the aforementioned reasons the impugned judgment and decree dtd. 3/10/2016 is set aside. In the result the appeal is allowed.