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2023 DIGILAW 565 (KAR)

Shreelatha Nayak v. Ajith Nayak

2023-04-05

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. 11/3/2016 passed in M.C.No.1780/2010 by the III Additional 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 of the appellant and respondent was solemnized on 26/11/2007 at Manipal. The couple started living in Bangalore, the respondent is an Engineer by profession and the appellant is a B.Com. graduate and both were working in Bangalore. It is averred that after marriage appellant started ill treating the respondent, she failed to perform the duties of a wife, she never mingled with family members, relatives and friends and was in the habit of finding fault with the respondent, his relatives and friends. It is further averred that appellant started pressurizing the respondent to send his parents back to their native and when he did not agree, she started quarreling by creating scene and humiliated the respondent. It is also averred that appellant has forced the respondent to remove the photographs of family members kept in the bedroom and when the respondent refused to do so, she suspected that he has illicit relationship with his sister-in-law. She did not cook for all the family members and sometimes the respondent slept without any food. There was no peace of mind to the respondent due to the conduct of the appellant. 3. It is pleaded that on 30/5/2010 the respondent left the company of the appellant and started living separately. The appellant has filed false missing complaint before the Bannerghatta Police. It is further pleaded that when the elder sister along with other family members of the respondent went for shopping, their car met with an accident and respondent wanted to verify the same and intended to file a Police complaint, but the appellant shouted and quarreled with him unnecessarily and caused embarrassment. In April 2008, the parents of the appellant visited the matrimonial home, she insisted to take them to temple and thereafter insisted to take them to Nandi Hills and when the respondent informed that it is far away place and they would not be able to return within time, she abused him in filthy language. In April 2008, the parents of the appellant visited the matrimonial home, she insisted to take them to temple and thereafter insisted to take them to Nandi Hills and when the respondent informed that it is far away place and they would not be able to return within time, she abused him in filthy language. Similarly in July 2008 when they visited appellant's parents house at Marur, she insisted to visit temple in and around Mangalore, and when the respondent suggested that they would have lunch with his brother, the appellant has objected for the same and informed that the respondent should not have any contact with his relatives. 4. In August 2008 when the house warming ceremony was being performed, the appellant has insulted and humiliated the respondent. When the father of the appellant gave complaint in November 2008 to the jurisdictional police, the police summoned the couple and they have given an undertaking that they would lead happy life. Similarly when the respondent's uncle Sri.Gopal Naik visited the house to advise the couple, the appellant has created scene in front of him and abused him saying that the respondent is having illicit relationship with his sister-in-law. 5. The appellant has entered appearance before the Family Court and filed the statement of objections. The appellant has admitted the relationship of the couple, however, she specifically denies the allegations made in the petition. It is averred that from the very beginning of their married life, their relationship was not cordial and the respondent was of adamant attitude and used to pick up quarrel for silly reasons. The respondent has also forced the appellant to stay alone. He has purchased flat by raising loan making her as co-obligant to repay the loan by force and coercion. It is further averred that the respondent expelled the appellant from the matrimonial home, hence she shifted to another premises. The respondent is working in IBM and getting salary of Rs.80, 000.00 per month. All the jewels of the appellant has been retained by the respondent. It is also averred that the respondent used to stay with his sister-in-law in bedroom by locking the door, when she objected he said that he was teaching Yoga, and his behavior and movements were unnatural hence she suspected his character, as no prudent wife would tolerate such behavior of her husband. 6. It is also averred that the respondent used to stay with his sister-in-law in bedroom by locking the door, when she objected he said that he was teaching Yoga, and his behavior and movements were unnatural hence she suspected his character, as no prudent wife would tolerate such behavior of her husband. 6. It is pleaded that the respondent has not provided any basic needs to the appellant, he took away gas cylinder from the matrimonial home by which she was forced to live in a rented premises and hence appellant's father gave complaint to the police on 25/11/2008 stating that the respondent is not taking care of the appellant and both the appellant and the respondent undertook before the police that they would lead happy married life. In the month of May 2010, the respondent, without informing the appellant, has left the matrimonial home hence she has filed a missing complaint. It is further pleaded that the appellant has initiated proceedings under the provisions of the Domestic Violence Act and filed a civil suit seeking permanent injunction against the respondent from alienating the property purchased jointly. It is also pleaded that she has filed complaints against the respondent and denied the allegations of cruelty. 7. The Family Court has recorded the evidence of the parties. The appellant examined herself as RW.1 and marked Exs.R1 to R3. The respondent examined himself as PW.1 and produced Exs.P1 to P5. The Family Court based on the evidence adduced by the parties vide judgment dtd. 11/3/2016 allowed the petition by granting decree of divorce on the ground of cruelty. In the aforesaid factual matrix the present appeal has been filed. 8. We have informed the Appellant/party-in-person that she can avail the free legal assistance from the Karnataka State Legal Services Authority for which she has refused to avail the said assistance. It was also informed to her that this Court would appoint amicus curiae to appear on her behalf or to assist her in making submission. The same is also declined by the appellant/party-in-person. 9. This appeal is heard analogously with Criminal Revision Petition 1193/2016. The Criminal Revision Petition is disposed of by a separate order. 10. The appellant submits that the respondent has made false allegations of cruelty, the allegations pleaded are bald and without any evidence. The same is also declined by the appellant/party-in-person. 9. This appeal is heard analogously with Criminal Revision Petition 1193/2016. The Criminal Revision Petition is disposed of by a separate order. 10. The appellant submits that the respondent has made false allegations of cruelty, the allegations pleaded are bald and without any evidence. The Family Court has erred in appreciating the pleading and evidence on record and has given incorrect finding that the respondent has proved the ground of cruelty and granted decree of divorce. It is further submitted that it is the respondent who was creating problem to the appellant and insisted her to share 50% of the household expenditure. It is also submitted that she has denied the allegations of the petition by filing the statement of objections and it is the respondent who has alleged that the appellant was adamant, never gave respect to the respondent and his family members and used to quarrel with the respondent. It is also denied that the appellant has abused the respondent's uncle viz., A.Gopala Naik when he visited the matrimonial home. The appellant has denied the specific averment of the petition that the appellant has objected and requested the respondent to remove the photographs of his niece and his family members in their bedroom and she was suspicious and alleged that the respondent was in illicit relationship with his sister-in-law, which has caused mental cruelty. It is further submitted that the allegations of cruelty is false and made without any basis. However, the Family Court has proceeded on wrong footing and has come to the conclusion that the appellant's allegation of adultery amounts to mental cruelty. 11. It is also submitted that the respondent has left the matrimonial home abruptly and not provided any basic necessities which has forced her to file complaint, it is submitted that PW.1 in his cross-examination has admitted that he has given an undertaking before the police that he would behave properly with the appellant and take care of the appellant. 12. Per contra, learned counsel for the respondent supports the impugned judgment and contends that the respondent has proved the ground of cruelty by adducing proper evidence. It is submitted that the appellant was adamant in nature, quarrelsome, she never cooked food for the respondent and that she has abused the respondent and his parents. 12. Per contra, learned counsel for the respondent supports the impugned judgment and contends that the respondent has proved the ground of cruelty by adducing proper evidence. It is submitted that the appellant was adamant in nature, quarrelsome, she never cooked food for the respondent and that she has abused the respondent and his parents. It is further submitted that the appellant has lodged false cases against the respondent and she was of suspicious character, which has forced the respondent to leave the appellant. She has initiated various proceedings for maintenance, filed a civil suit for permanent injunction and also filed a complaint before the consumer forum to delete her name as a coobligant for the loan, these acts of the appellant has caused mental cruelty to the respondent. It is also submitted that the parties are living separately from 14 years and that the marriage has broken down irretrievably, hence seeks to dismiss the appeal. 13. We have heard the appellant/party-in-person and the learned counsel for the respondent and perused the material on record. The parties to the proceeding have admitted their relationship and they do not dispute that they started their marital life in Bangalore and both were working. The respondent has pleaded the various instances of cruelty viz., the appellant has ill treated the respondent, she used to avoid his family members and friends, she used to find fault with the respondent's relatives, she started pressuring the respondent to send back his parents to their native and she insulted and humiliated him on many occasions which has caused mental cruelty. 14. It is alleged that she refused to cook food for him and she always suspected him. She has filed false case against him on 31/5/2010 and similar case was filed by her father alleging the harassment. It is also alleged that she has insulted the respondent's friend Hemant Raju and his uncle Gopal Naik. It is further alleged that the appellant has forced the respondent to remove the photos of his niece and other family members from their bedroom and she has alleged that the respondent was in illicit relationship with his own sister-in-law. 15. On careful close scrutiny of the pleading and evidence on record, the allegations of cruelty are vague and self serving statements of PW.1. 15. On careful close scrutiny of the pleading and evidence on record, the allegations of cruelty are vague and self serving statements of PW.1. The allegations that the appellant was not respecting the respondent, his family members and humiliated them, insulted his friend Hemant Raju and his uncle Gopal Naik are also self serving statements of the respondent, that has been pleaded and same has been reiterated in the evidence of PW-1. Nothing has prevented the respondent to adduce the evidence of Sri Hemant Raju and Sri Gopal Naik or of any independent witness to substantiate the allegations of cruelty. 16. Mere pleading of cruelty and reiteration of the same in his affidavit would not constitute mental cruelty unless it is supported with corroborative evidence of independent witness. The Family Court has erred in appreciating these aspects, which has resulted in giving erroneous finding. The Family Court has given a finding that the appellant has made reckless allegations against the respondent about his illicit relationship with his sister-in-law and the appellant has failed to prove the said statement by substantiating proper evidence to prove the allegation of adultery. The Family Court has lost sight that it is the respondent who has pleaded specifically in para 9 of the petition that the appellant has tried to remove the photos of the respondent's niece for that the respondent objected and requested the appellant not to remove the said photos at that time, the appellant became suspicious and alleged that the petitioner was in illicit relationship with his sisterin-law. The appellant has denied the said allegations in her statement of objections. It is the respondent who has taken the said plea in his petition and is required to prove the same independently. 17. The finding of the Family Court that no evidence has been placed by the appellant to substantiate the allegation of adultery is perverse and contrary to the evidence on record. The Family Court has further recorded a finding that the very fact of alleging adulterous relationship with his sister-in-law amounts to mental cruelty. The aforesaid finding is perverse, the appellant has only denied the allegations made in the petition. 18. The Family Court has further recorded a finding that the very fact of alleging adulterous relationship with his sister-in-law amounts to mental cruelty. The aforesaid finding is perverse, the appellant has only denied the allegations made in the petition. 18. The Family Court has given a finding that the parties are living separately for more than 14 years and the marriage has been irretrievably broken down, which prima facie establishes that it is difficult for both of them to live together as a married couple, hence proceeded to grant decree of divorce. The said finding is perverse and contrary to law, the Family Court cannot dissolve the marriage on the ground that the marriage has been irretrievably broken down, as the said ground is not available under Sec. 13 of the Hindu Marriage Act, 1955. 19. The respondent is required to prove the grounds of cruelty by pointing out specific instances of cruelty substantiated with cogent evidence. Therefore, it is essential for the respondent who claims the relief to prove that a particular conduct or behavior of the appellant has resulted in cruelty. In the absence of any such proof the Family Court has erroneously proceeded to grant decree of divorce. The Family Court has failed to appreciate the pleading and evidence on record in its proper perspective, therefore, resulted in giving perverse finding which requires to be interfered in the present appeal. 20. For the aforementioned reasons the impugned judgment and decree dtd. 11/3/2016 is set aside. In the result the appeal is allowed.