Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 558 (KAR)

Harsha S/o Chandrappa v. Bhagya D/o Madaiah

2023-04-05

ALOK ARADHE, VIJAYKUMAR A.PATIL

body2023
JUDGMENT : VIJAYKUMAR A. PATIL, J. 1. This appeal under Section 19(1) of the Family Courts Act, 1984, has been filed against the judgment and decree dated 20.01.2012 passed in M.C. No. 161/2010 by the Family Court, Mysore, 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 marriage of the appellant and respondent was solemnized on 22.04.2004 at Mysore as per customs and rites and out of the wedlock a female child was born on 23.08.2005. It is averred that the respondent joined the matrimonial home at Bangalore, where the appellant was working in a private company. It is further averred that after the birth of the child the respondent started showing different attitude towards the appellant and started to quarrel with him and his parents by using un-parliamentary words. It is also averred that the respondent used to quarrel and create embarrassment in social gatherings in front of relatives and friends. 3. It is pleaded that the respondent was not doing household work, used to misbehave with the appellant and his family members, she was adamant, ill tempered, and she used to threaten the appellant of filing false cases against him and his parents and also threatened to commit suicide. It is further pleaded that respondent used to leave the matrimonial home without informing the appellant and she was in the habit of frequently visiting and staying with her parents and on every occasion, the appellant had to bring her back to the matrimonial home. It is also pleaded that without the consent and without any reason the respondent left the matrimonial home on 05.04.2007 and never came back, hence the appellant had sent legal notice requesting her to rejoin, which went in vain. 4. The respondent has entered appearance before the Family Court and filed the statement of objections. The respondent has admitted the relationship, birth of the child and also admitted that the appellant was working in a Private Company in Bangalore. The respondent has specifically denied the allegations of cruelty and desertion by contending that it is the appellant and his parents, who have caused cruelty on the respondent, they used to find fault with each and every work of the respondent. 5. The respondent has specifically denied the allegations of cruelty and desertion by contending that it is the appellant and his parents, who have caused cruelty on the respondent, they used to find fault with each and every work of the respondent. 5. It is averred that the respondent's parents have given dowry as per the demand of the appellant's family. It is further averred that appellant and her in-laws have not provided proper medical treatment to the respondent, hence she stayed with her parents and gave birth to a female child on 23.08.2005. It is also averred that when they performed the naming ceremony of baby girl, she returned back to the matrimonial home. However, the appellant and his parents refused to take the respondent and her child back to the matrimonial home, therefore, the respondent, started living with her parents. It is pleaded that the appellant and his parents have caused physical and mental cruelty and they have refused to take the respondent to matrimonial home without any reason. 6. The Family Court has recorded the evidence. The appellant examined himself as PW-1 and another witness as PW-2 and produced Exs.P1 to P9. The respondent examined herself as RW-1 and produced Ex.R1. The Family Court based on the evidence adduced by the parties vide judgment dated 20.01.2012 dismissed the petition filed by the appellant. In the aforesaid factual matrix the present appeal has been filed. 7. Learned counsel for the appellant submits that the parties neither dispute the relationship nor the birth of the female child. It is submitted that the couple lived happily for sometime and thereafter, the respondent wife had started showing hostile attitude towards the appellant and family members. It is further submitted that respondent was adamant, never performed the duties of a wife, she used to humiliate and insult the appellant and his family members in the presence of friends and relatives and on many occasions she had created ugly scenes, which has caused mental cruelty. It is also submitted that respondent used to threaten the appellant of filing false cases and of committing suicide and on 05.04.2007 abruptly she left matrimonial home, thereafter never came back. Hence the appellant has sent legal notice and initiated the proceedings. 8. It is contended that Family Court has erred in dismissing the petition without appreciating the evidence on record in its proper perspective. Hence the appellant has sent legal notice and initiated the proceedings. 8. It is contended that Family Court has erred in dismissing the petition without appreciating the evidence on record in its proper perspective. It is further contended that PW-1 and PW-2 have categorically stated about the conduct of the respondent which demonstrate cruelty, the same has not been appreciated by the Family Court. It is also contended that Family Court has committed error in giving negative reasoning regarding the respondent leaving the matrimonial home and failed to appreciate that appellant has made efforts to bring her back. It is further contended that the respondent in her cross-examination (RW-1) has admitted that there was a maid servant who used to attend all household work. It is further admitted that it is the mother who has demanded the dowry, however, in the statement of objections a contradictory stand is taken that the appellant has demanded the dowry, hence she has left the matrimonial home. It is further submitted that respondent, while cross-examining the PW-1, has suggested that his mother had command over the family and she has assaulted his father, and his sister got him admitted to the Hospital at Indiranagar to take treatment. Such a suggestion by the respondent to the appellant amounts to mental cruelty and the said suggestion is made without substantiating with corroborative evidence. 9. He further submits that the appellant has sent legal notice at Ex.P.3 requesting the respondent to join the matrimonial home, however the respondent has sent reply notice at Ex.P5 making reckless allegation that the appellant’s parents used to harass the respondent by not giving food and did not allow her to take bath saying that water will be wasted. He further submits that he has filed complaint at Ex.P6 Sahayavani requesting them to resolve the dispute by conciliation, he further submits that the appellant and his family members have spent huge money and performed baby shower ceremony and contrary to the same the respondent in her cross-examination has made reckless allegation of demand of dowry and cruelty by the husband, these admissions of respondent are amounting to mental cruelty. 10. He relies on the following decisions by contending that the averments made in the statement of objections and evidence of the respondent are in the nature of damaging the reputation of the appellant and his family members, which amounts to cruelty. 10. He relies on the following decisions by contending that the averments made in the statement of objections and evidence of the respondent are in the nature of damaging the reputation of the appellant and his family members, which amounts to cruelty. He further submits that the separation of the couple is for sufficient length of time, it can be fairly presumed that the marriage has been broken down irretrievably: (a) Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511 “95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. (b) Narendra vs. K. Meena, (2016) 9 SCC 455 12. The respondent wife wanted the appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her. 13. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her. 13. In the instant case, upon appreciation of the evidence, the trial court came to the conclusion that merely for monetary considerations, the respondent wife wanted to get her husband separated from his family. The averment of the respondent was to the effect that the income of the appellant was also spent for maintaining his family. The said grievance of the respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the respondent wanted the appellant to be separated from the family the sole reason was to enjoy the income of the appellant. Unfortunately, the High Court considered this to be a justifiable reason. 17. This Court, in Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate, (2003) 6 SCC 334 , has held as under: (SCC p. 239, Para 7) “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of un-chastity and indecent familiarity with a person outside wedlock and allegations of extra-marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court [Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate, (2001) 2 DMC 64 (Bom)]. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.” Hence, he seeks to allow the appeal. 11. Learned counsel for the respondent has filed a memo seeking to retire from the above case. None for the respondent. 12. We have heard learned counsel for the appellant and perused the material on record. In the light of the above settled preposition of law, now we consider the case on hand. The relationship between the parties and birth of the child is not disputed. It is also not disputed that the appellant was working in a Private Company in Bangalore and the couple had lived together in Bangalore along with the appellant's parents. The appellant has deposed as PW-1 and examined one more witness viz. S. Mahesh Kumar, who is the friend of the appellant in support of his case. Now we deal with the allegations of cruelty with reference to the evidence on record. 13. PW-1 deposed that the respondent/wife was hostile towards the appellant and his parents she used to misbehave and pick up quarrel causing embarrassment and humiliation in front of friends and family members on many occasions. He further deposed that she has threatened the appellant of filing false complaint and threatened to commit suicide, she was of adamant behavior and frequently used to visit her parents house at Mysore and finally she left the matrimonial home on 05.04.2007. He further deposed that she has threatened the appellant of filing false complaint and threatened to commit suicide, she was of adamant behavior and frequently used to visit her parents house at Mysore and finally she left the matrimonial home on 05.04.2007. The said allegations are denied by the respondent in her statement of objections, however, the allegations of cruelty are consistent from the beginning of the marriage till the respondent left the matrimonial home, hence, the allegation can be termed as cruelty. 14. The respondent in her cross-examination has admitted that all the necessary household articles and facilities were available while she was staying with him which is sufficient to lead normal life, she has also admitted there was sufficient water facility available in the house, she has further admitted that her husband was cordial with her and other family members were looking after her properly with love and affection, however, she states that her mother-in-law used to ill-treat and harass her for money. She also admits that baby shower ceremony was performed by the appellant and the appellant has allowed her to complete higher education and supported her. 15. She further admitted that her parents have visited Bangalore, where the couple were residing for more than 4 to 5 times during 13 months stay, however in her reply to the notice at Ex.P5, and statement of objections she has stated that she was harassed by the appellant. The said statements are contradictory to each other. 16. The appellant has sent legal notice at Ex.P3 requesting the respondent to rejoin the matrimonial home, he has made attempt to bring her back to the matrimonial home by approaching the Sahayavani, the complaint at Ex.P6. Per contra, the respondent/wife has not taken any steps to rejoin the matrimonial home despite the best efforts of the appellant. The respondent has made reckless allegations and contradictory assertion in the statement of objections, reply notice and cross-examination. This Court can fairly infer that the respondent has left the matrimonial home without any justifiable reason and despite efforts made by the appellant, she failed to rejoin him. The respondent has made serious allegations in her cross-examination without substantiating the same, which amounts to mental cruelty to the appellant. 17. These aspects have not been properly appreciated by the Family Court, therefore, has resulted in giving erroneous findings. The respondent has made serious allegations in her cross-examination without substantiating the same, which amounts to mental cruelty to the appellant. 17. These aspects have not been properly appreciated by the Family Court, therefore, has resulted in giving erroneous findings. The Family Court has failed to appreciate that the respondent has left the matrimonial home for a sufficient length of time and despite an attempt by the appellant to bring her back, she has not rejoined the matrimonial home. The respondent in her statement of objections, reply to the legal notice and in the cross-examination has made reckless allegations, which are of such a nature that it damages the reputation of the appellant and his family members. The allegations made by the respondent are weighty, grave and unfounded, it can be fairly inferred that the respondent has caused the mental cruelty to the appellant. The assertions of the respondent are wholly unwarranted and made with an intention to cause harm to the reputation of the appellant. 18. Having regard to the peculiar facts and circumstances of the case and the fact that the respondent is living separately for more than 14 years, we are of the opinion, that it is a fit case to grant the decree of divorce. 19. For the aforementioned reasons, the impugned judgment and decree is set aside and marriage between the parties is dissolved by a decree of divorce on the ground of cruelty as stipulated under Section 13(1)(ia) of the Hindu Marriage Act, 1955. 20. In the result the appeal is allowed.