Marriage dissolved on Cruelty Only

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 12TH DAY OF DECEMBER, 2013 PRESENT

THE HON’BLE MR. JUSTICE K.L.MANJUNATH AND

THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA M.F.A. NO.1117/2012 (SMA)

BETWEEN

SRI S RAMA RAO
AGED ABOUT 53 YEARS
R/A NO.32/1, FORT A STREET,
BEHIND KAMATH HOTEL,
OPP: VANIVILAS HOSPITAL
K R ROAD, BANGALORE-560002…. APPELLANT

(BY SRI: C R SUBRAMANYA, ADV,)

AND

SMT J S VANITHA
AGED ABOUT 47 YEARS
W/O S RAMA RAO
D/O LATE J S ANDREWS
R/A NO.663, IV CROSS
MAHALAKSHMI LAYOUT
BANGALORE-560082…. RESPONDENT

MFA FILED U/S 39 OF SPECIAL MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED:02.09.2011 PASSED IN M.C.NO.1119/2009 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, REJECTING THE PETITION FILED U/S 27(b) OF THE SPECIAL MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, A.V.CHANDRASHEKARA, J., DELIVERED THE FOLLOWING:

JUDGMENT

This is an appeal filed by the appellant-husband against the final orders passed by the learned I Addl. Prl. Judge, Family Court, Bangalore, in M.C.No.1119/2009 dated 02.09.2011. The appellant is the respondent in the said case. The respondent herein is the petitioner in the said case. The parties will be referred to as the petitioner and respondent as per ranking in the Trial Court.

2. A petition had been filed under Sections 27(b) and 27(d) of Special Marriage Act, seeking decree of 3 divorce on the grounds of desertion and cruelty. Petition filed by the petitioner Smt.J.S.Vanitha, has been allowed on the ground of cruelty and thereby, divorce has been granted. Prayer for granting decree of divorce also on the ground of desertion has been rejected. It is this considered order dated 02.09.2011 which is called in question by the respondent-husband S.Rama Rao, on various grounds as set out in the appeal memo.

3. Petitioner was a Christian and respondent is a Hindu Brahmin by birth. The mother of the petitioner and the respondent were colleagues in Karnataka State Land Development Bank and therefore, both of them knew each other well. Since the mother of the petitioner advised the respondent to marry her son, respondent agreed and as such, the marriage was solemnized in a Temple in Basavanagudi on 08.12.1989 as per Hindu rites. The marriage was got registered on 08.12.1989 4 before the Marriage Officer, Registrar of Marriages, Rajajinagar, Bangalore, as per the provisions of Special Marriage Act.

4. According to the petitioner, the respondent started exhibiting his displeasure about her and as a result of the same, differences cropped up between them. As a result of the marriage, a female child was born on 05.10.1991. It is her case that respondent went on physically and mentally ill-treating the petitioner. The petitioner was employed at Bishop Cotton Boys School and the respondent was dropping her everyday in the morning hours near the School. At that time also, the respondent used to abuse her in the presence of her colleagues and students and he was in the habit of losing temper for no reason. He even went to the extent of suspecting her fidelity. Respondent is a practicing Advocate and by misusing his position went on further threatening her. The respondent is stated to 5 have insisted upon the mother of the petitioner to handover her retirement benefits and also to transfer the properties of her mother in his name. The respondent, according to the petitioner, was not permitting her and her daughter to visit house of her friends, relatives and Church. The respondent even conspired with a publisher of a Kannada monthly called ‘Vartha Simha’ and got published an article alleging that the petitioner and her mother were indulging in flesh trade and the petitioner was suffering from HIV virus. Hence, since 1998 the respondent is stated to be staying separately. The marriage is stated to have irretrievably broken down and respondent is stated to be guilty of cruelty and desertion. Hence she had requested for divorce both on the grounds of desertion and cruelty.

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5. The respondent appeared before the Court and filed detailed objections denying all the material averments insofar as it relates to the aspect of desertion as well as cruelty. According to him, petitioner and her mother started humiliating him since he was residing in the house of the mother of the petitioner. According to him, she had furnished a false address in the causetitle of the petition. The respondent is a practicing Advocate and is acting in cinemas and television serials and the mother of the petitioner and that the petitioner and her mother objected him to act in cinemas and television serials and therefore petitioner was prompted to file the present petition. It is his case that in connection with the alleged paper publication, a suit in O.S.No.3557/1999 was filed and a criminal case came to be filed in which he got impleaded as a party subsequently. The petitioner herself is stated to be 7 guilty of cruelty as well as desertion. Hence he has prayed for dismissal of the petition.

6. Petitioner herself has been examined as PW1 and has got marked six exhibits. Respondent has been examined as RW1 and has not got marked any documents on his behalf.

7. After hearing the arguments on merits, and perusing the evidence placed on record the learned Judge has rejected the prayer for granting decree of divorce on the ground of desertion. But marriage has been dissolved on the ground of cruelty, as contemplated under Section 27(d) of Special Marriage Act by virtue of a considered order dated 02.09.2011. It is this order which is called in question on various grounds by the respondent-husband in M.C.No.1119/2009 as appellant before this Court. 8

8. It is contended that the learned trial Judge has not properly evaluated the evidence in right perspective and that the Trial Court has adopted a wrong approach to the real state of affairs. It is further contended that that when the allegation of desertion has not been proved, the question of cruelty does not arise. It is further contended that the initial burden cast upon the petitioner to prove the allegation of cruelty has not been effectively discharged and therefore, decree of divorce could not have been granted. It is further contended that useful admissions culled out from the mouth of PW1 which are in support of the respondent’s case have been virtually ignored. The Trial Court is stated to have adopted a wrong approach to the real state of affairs. Therefore, it is prayed to allow the appeal in its entirety and dismiss the petition filed in M.C.No.1119/2009.

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9. We have heard the learned counsel for the appellant in regard to admission.

10. After going through the records and hearing the arguments the following points arise for our consideration:

1. Whether the Trial Court is justified in granting the decree of divorce on the ground of cruelty?
2. Whether any interference is called for and if so, to what extent?

11. The word ‘cruelty’ has not been defined under Hindu Marriage Act. Mental cruelty also comes within the purview of the word cruelty. To this effect the decision in the case of V.Bhagath Vs. Mrs.D.Bhagath reported in AIR 1994 SC 710 is an apt decision. What is mental cruelty has been succinctly explained in the said decision. The fact of marriage between the parties and the registration of the marriage as per the provisions of the Special Marriage Act and the birth of a female child 10

out of their wedlock is not in dispute. What is deposed by the petitioner as PW1 is that the respondent always suspected her fidelity. Her evidence with regard to defamatory paper publication in Kannada monthly paper called ‘Vartha Simha’ gets the support from the evidence of the respondent himself. A suit came to be filed in O.S.No.3557/1999 and the same has been decreed.

12. In the evidence of RW1 it is forthcoming that he came to know about the publication in the Kannada paper in the year 2001 or 2002 and the copy of the same was placed at his door. Despite coming to know of the said defamatory article, he did not take any legal action either against the editor or publisher. This act of not taking any action against the publisher or editor of the said newspaper has been considered as adverse circumstance to the husband.

13. One more allegation of the petitioner examined as PW1 is that she was annoyed by the respondent in many public places including the school in which she was working. This lends support to her version that her image in the public had been undermined. It is also her case in the cross-examination that for each and every trivial issue, the respondent was coming in her way and those acts mentally irritated her. The learned Judge has evaluated all these facts borne out of the evidence of PW1 and that act, according to the Judge, is an act of cruelty inflicted by the respondent-husband.

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14. The respondent has even gone to the extent of attributing malafides to the petitioner and her mother stating that they were involved in flesh trade and that petitioner was suffering from HIV. This is very serious allegation which needs strong evidence. The respondent is very educated person and a practicing lawyer. He 12 was expected to behave in a decent manner especially with his own wife. What is deposed by him that he was humiliated in the house of her mother. If he had been humiliated in the house of the mother, the same cannot be a ground to inflict mental cruelty to his own wife i.e, the petitioner. The fact that the respondent used to abuse her in the presence of her colleagues and it appears, at the time dropping her near Bishop Cotton Boys School, has not been seriously challenged during her cross-examination except putting certain general suggestions to her. Those suggestions have been emphatically denied by her. This portion of the evidence, has been discussed in the judgment which would establish that the respondent was in the habit of abusing the petitioner in public. Further assertion of PW1 that the respondent used to take her and her daughter outside the house and was abusing in public places and also in the family circle has virtually 13 remained unchallenged. Abusing PW1 an employee of a School, in public places causing humility is nothing but inflicting mental cruelty.

15. The learned Judge has evaluated the entire evidence in right perspective keeping in mind the circumstances under which the petitioner had to file a petition for divorce. Initial burden cast upon her in regard to proof of cruelty has been effectively discharged and the onus which had shifted on the opposite side has not been properly discharged and therefore the finding on point No.1 is valid and proper. Hence we answer point No.1 in the affirmative. Point No.2:

16. There is no cross-objections from respondent herein insofar as it relates to the rejection of her petition for divorce on the ground of desertion. In view of our finding on point No.1, no interference is absolutely 14 called for and hence the appeal is liable to be dismissed by confirming the impugned order.

ORDER

Accordingly, the appeal is dismissed as not fit for admission.

Consequently, the order of granting divorce on the ground of cruelty in M.C.No.1119/2009 on the file of I Addl. Prl. Judge, Family Court, is affirmed. Parties to bear their own costs.

Sd/-
JUDGE

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