IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE 2015
THE HON’BLE MR. JUSTICE N.K. PATIL
THE HON’BLE MRS. JUSTICE RATHNAKALA
MISC. FIRST APPEAL NO.323/2013 (FC)
SRI KRISHNA KUMAR
AGED ABOUT 46 YEARS
R/OFF. ECHALABEEDU POST,VIA SHENIVARA SANTHE, NORTH COORG – 571 235
NO.496, 1ST B MAIN
M.S.RAMAIAH CITY,J.P.NAGAR 7TH PHASE,BANGALORE – 560 076. …APPELLANT
(BY SRI M.T.NANAIAH, SR. ADV. FOR SRI PRABUGOUD B.THUMBIGI, ADV.)
W/O KRISHNA KUMAR
D/O LATE NARAYANA GOWDA AGED ABOUT 35 YEARS
R/AT B-3, 1702, L&T SOUTH CITY,
BANNERGHATTA MAIN ROAD,BANGALORE – 560 076.
FLAT NO.F-1, HONEY DEW APARTMENT,
VENKATADRI LAYOUT,NEAR DORESANI PALLYA,BEHIND APOLO HOSPITAL,
IIMB POST, BANNERGHATTA ROAD,BANGALORE – 560 076. …RESPONDENT
(NOTICE TO R1 IS HELD SUFFICIENT V/O DTD:30/07/2013)
THIS M.F.A. IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT AGAINST THE JUDGMENT AND AWARD DATED:22.11.2012 PASSED IN M.C. NO.742/2006 ON THE FILE OF II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, DISMISSING THE PETITION FILED U/SEC-13(1) (1A) & (1B) OF THE HINDU MARRIAGE ACT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 08/06/2015 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,RATHNAKALA J., DELIVERED THE FOLLOWING:-
The judgment and decree dated 22nd November 2012 in M.C.No.742/2006 passed by the II Additional Principal Judge, Family Court at Bangalore, is under challenge in this appeal.
2. The appellant is the husband whose divorce petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for brevity), is dismissed by the court below.
3. As the facts unfurl, the parties were married as per customs on 26.4.2000 at Bangalore. The husband owns 5 acres of coffee plantation at Sakaleshpur, Hassan District. The differences between the couple started during their honeymoon trip itself. The wife behaved with him in an uncivilized manner. After the honeymoon, the couple resided at the residence of the husband, but the wife continued with her indifferent behaviour. She used to cry for her deceased father. She was not co-operating in sharing sex with the husband. She did not heed to the advice of the husband to take medical help; her non-cooperation for coitus has inflicted mental cruelty on him which deprived him of fatherhood. She did not even allow him to adopt a child. Thus, she failed to discharge her marital obligation and thereby caused mental cruelty. Because of her abnormal behaviour, he started spending more time in his land, which was not tolerated by the wife and she started quarreling with him in front of the labourers. She neither cooked the food nor allowed the husband to engage a cook, which compelled him to have food from outside; that came in the way of his health. He tolerated all the humiliations to maintain the marital life. In the month of November 2003, he borrowed Rs.35,000/- from the wife’s mother when he fell short of funds to maintain his property but he could not return the amount well in time. The wife on that occasion expressed that she is unlucky for having married him. In the year 2004, he was constrained to raise loan for maintenance of his landed property; the wife irritated him in this connection, she used to shout at him, threw household articles, damaged the household items, threatened to commit suicide by leaving suicide note against him. She refused to get examined by the Psychiatrist in respect of her suicidal tendency. She herself has informed him that she aimed at defaming him. However, she apologized and expressed that she would stay with her mother at Bangalore for a change. In February 2005, she left for Bangalore, but did not return to the matrimonial home. She avoided his phone calls. When he contacted her parents, her mother shouted at him, his efforts to bring back the wife to the matrimonial home went in vain; her brother threatened to institute dowry related harassment case, if he does not provide a flat and a maintenance amount of Rs.50 lakhs. During the attempt for conciliation, the wife and her brother did not oblige the terms of conciliation. She has deserted him since February 2005.
4. The petition was contested. The wife denied all the main allegations leveled against her touching cruelty and desertion; interalia she contended that she was a victim at the hands of the petitioner and his family members; during her stay with the petitioner in Kyathanahalli till 7.12.2007, she was insulted and assaulted at the hands of the husband and in-laws. She tolerated him. In the month of December 2005 and during first week of April 2003, she suffered injuries due to the assault by the husband and was treated in different hospitals. She has been subjected to cruelty by the husband. The husband and in-laws demanded further dowry of Rs.2,00,000/- from her. The husband insisted her for consent for second marriage. Since she did not oblige, she was inflicted with cruelty by the husband and in-laws. He is addicted to alcohol and drugs and was treated at St.John’s Medical College Hospital, Bangalore, from 2002 to 2007. On his demand, during December 2005 for dowry, her mother gave him Rs.50,000/- and advised him to look after the wife properly. Keeping her under darkness, he has obtained a exparte decree (subsequently, the exparte decree was set aside at her instance). Since she did not conceive, in order to go for a second marriage, the husband has filed this petition. He has illicit relationship with one Alsiha Sherpa, the resident of Dubai.
5. After holding a full-fledged enquiry and on giving audience to both, the learned Family Court dismissed the petition.
6. Sri.M.T.Nanaiah, learned Senior Counsel appearing for the appellant/husband submits, the court below did not read the evidence in proper perspective. The husband had placed sufficient evidence about the harassment meted out on him by the wife. The objection statement of the wife indicates that she is not interested to join him. She did not step into the witness box. He had let in evidence about the harassment inflicted on him by the wife, her suicidal tendency and deserting him for ever with effect from 2005. There is enough of evidence let in by him about the acts of cruelty committed by the wife, which is not rebutted by the wife. He has not enjoyed marital life due to her estranged nature and behaviour. Her brother has threatened him to implicate in a false criminal case, if the flat and money as demanded is not provided to the wife. The judgment of the court below is arbitrary, perverse and not legal and same may be set aside and decree of divorce may be granted having regard to the unrebutted evidence let in by the husband.
7. The wife is served but unrepresented.
8. In the light of the above and on perusal of the impugned judgment and the lower court records, sole point arises for our consideration is:
“Whether the appellant/husband has established the case of cruelty and desertion against the wife entitling him for a decree of divorce?”
9. Initially, the petition filed by the husband was allowed on 30.03.2007 by placing the wife exparte. Subsequently, on the wife’s application seeking to set aside the exparte judgment and decree, the order passed on 30.3.2007 was set aside and she was afforded opportunity to contest the petition. The petitioner’s evidence was closed by 26.7.2001. Despite several opportunity being granted, the wife remained absent and after hearing the petitioner, the petition has been rejected. Since the petition was filed within two years of desertion, there was no case for the petitioner under Section 13 (1) (1-b) of the Act. As regards allegation of cruelty is concerned, some of the alleged acts of cruelty were held condoned by the husband, some were disbelieved for not lodging complaint to the Police and not disclosing to the relations of the wife and some were held not amounting to cruelty at all.
10. The adverse inference drawn by the court below against the case of the husband is on the basis of his cross-examination evidence. In that view of the matter, it is to be verified whether the cross-examination evidence of the husband/PW-1 is destructive of his own case. To put into a nutshell, the cruel acts alleged against the wife are her untoward behaviour at the very threshold of the marital life during honeymoon, hot temperament, entertaining the memories of her late father, who died while she was aged 12 years, reluctance to share sex with the husband happily, indifferent attitude, indifference to have a child, quarreling with the husband in front of the labourers, not cooking food, not allowing to engage a cook, pestering him to repay the loan amount availed by him from her mother while he was in financial distress, tantrums, suicidal tendency, pessimism, leaving the matrimonial home in the month of February 2005 and avoiding the husband thereafter and threatening the husband through her brother of filing a dowry harassment case though no dowry was taken during the marriage, blackmailing the husband and his parents.
11. For better appreciation of matrix on hand, let us reiterate the relevant statute, which reads thus:
“Section 13 : Divorce – (1) Any marriage solemnized, whether before or after the commencement of this Act may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party –
(i) …………. …. Or, (i-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
Explanation.- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”
12. The date of filing of the petition before the Family Court was on 1.4.2006. The desertion alleged against the wife was in February 2005. That means to say, within two years from the date of desertion, the divorce petition is filed. Hence, the time had not ripened for the petitioner to seek divorce on the ground of desertion in view of the time stipulated in Section 13(1)(i-b) of the Act.
13. Now coming to the ground of cruelty, the act does not define what amounts to ‘cruelty’ to seek relief under section 13(1)(i-
a) of the Act. There are any number of judgments of the Apex Court, this Court and various other courts defining as to what amounts to ‘cruelty’ in a matrimonial case; however, it takes into its wide fold both physical and mental cruelty. In the recent judgment reported in case of Dr.(Mrs.) Malathi Ravi, M.D. -vs- Dr.B.V.Ravi, M.D. arising out of S.L.P.(C) No.17/2010 reported in (2014) 7 SCC 640, the Apex Court cited its own earlier judgments while deciding the issue of ‘mental cruelty’ in the facts before it. Following judgments with the respective findings were cited:
“In Vinit Saxena v. Pankaj Pandit, while dealing with the issue of mental cruelty, the Court held as follows: –
“31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
Xxx xxx xxx
35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.”
In Samar Ghosh v. Jaya Ghosh, this Court has given certain illustrative examples wherefrom inference of mental cruelty can be drawn. The Court itself has observed that they are illustrative and not exhaustive. We think it appropriate to reproduce some of the illustrations: –
“(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.
xxx xxx xxx
(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.
xxx xxx xxx
(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.
xxx xxx xxx
(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 behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
xxx xxx xxx
(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. In such like situations, it may lead to mental cruelty.”
Further the Court has also observed thus: –
“99. … The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances….”
In Vishwanath Agrawal, s/o Sitaram Agrawal v. Sarla Vishwanath Agrawal, while dealing with mental cruelty, it has been opined thus: –
“22. The expression “cruelty” has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.”
14. In the above cited judgment of Dr.(Mrs.) Malathi Ravi , during the course of discussion it was observed that, “it is settled in law that subsequent facts under certain circumstances can be taken into consideration”. Said observation fits well to the conduct of the wife herein. It is alleged that at the first instance, she refused Court notice. Thereafter moved the court for setting aside exparte decree; then again does not fully participate in the proceeding; before this court also remained absent even after court notice by way of paper publication. That drives us to wonder, is she really at contesting the petition?
15. Now we will see how far cross-examination evidence of the petitioner has destroyed his own case. The respective piece of evidence on which the Family Court took its adverse inference is as below:-
i) Since the husband admitted that in respect of untoward incident during the honeymoon, he consoled himself and took the vehicle to the hotel as desired by the wife to visit and stay during the honeymoon trip, hence, he condoned the act of the wife within the scope of Section 23(1)(d) of the Act.
ii) Since he himself had stated that he had tolerated the arrogance of the wife with patience, he has condoned the acts of the wife.
iii) The wife crying in the memory of her late father is an outcome of her personal feeling and sentiments and it is not an act inflicting mental cruelty on him and he himself has stated that he tolerated her act, when his relatives convinced him that she was heartily sad at the time of death of her father;
iv) About the allegation that she was too frigid to share sex with him, the husband has stated that to save the dignity, he has not expressed the same with anybody thinking that the same is his plight, hence he has condoned the said act also.
v) His allegation that he developed blood pressure due to the act of the respondent is without proof of medical evidence.
vi) The allegation that she did not co-operate to adopt a child is not supported with independent evidence. The very fact that he lived with the wife for considerable length of time would falsify his evidence about her reluctance for sex.
vii) The wife quarreling in front of labourers was a trivial matter, since he has admitted during cross-examination that wife was attending household work including cooking, his allegations that she was not cooking cannot be accepted. Since he has stated in his examination-in-chief evidence itself that he suffered the humiliations and tolerated the acts, he has condoned the alleged acts.
viii) The wife insulting the husband for not returning Rs.35,000/- in time to her mother is not a matter inflicting mental cruelty, so also her refusal to raise loan to construct a house in her site is also not an act of mental cruelty.
ix) Since he has not lodged complaint to the Police in respect of her attempt to commit suicide, said allegation cannot be believed.
x) His story that during February 2005, she concealed insecticide bought by him for the purpose of committing suicide cannot be believed since no police complaint was lodged to that effect.
xi) Since he has admitted that his wife was mingling with his parents on some occasions, it would show that she was keen to identify herself with the family of the petitioner. If at all there was any cruelty, he would have brought those facts to the notice of wife’s mother and uncle.
xii) He had not attempted to resolve the dispute through panchayat or conciliation. He has shown his native place address in the cause title though he admits that at that time he was residing at Bangalore, said admission corroborates with the defence taken in the objection statement that as on the date of filing the petition, wife was residing with him and he had kept her in darkness and obtained exparte decree.
xiii) Since the wife had not left any suicidal note, it is difficult to hold that she attempted to commit suicide with sole intention of falsely implicating him. From the suggestion made to the husband that ‘since he developed ill-will towards his wife thereby she could not conceive, could be the fact’.
xiv) It was his duty to return the amount well in time and there was no cruelty inflicted on him.
xv) As per Ex.R1/case sheet from St.John’s Medical College Hospital, which is an admitted document in October 2004, he was treated for alcoholic addiction and the wife was very much present with him, which shows that out of love and affection and to see that the things are settled, was with him. As per Ex.R1, the wife has expressed before the Doctor that she attempted to commit suicide two months earlier to October 2004, because of the acts and omissions on the part of the husband, she must have attempted to commit suicide.
16. The reasoning portion of the judgment, in our considered opinion, is not sound, and the approach of the court is superficial. It appears that since the husband had taken treatment for de-addiction, the wife’s case appears to have gained sympathy of the court. When it is not the case of the wife herself that she had attempted to commit suicide, unable to bear with the acts and omissions of her husband, the learned Judge on his own, targets the husband as responsible for her suicidal attempt. The suffering of a person due to acts and omissions of the other is his individual’s perception. It is only after overall view of evidence of both, the Court can assess whether such individual’s perception goes well with accepted thinking pattern and norms of the members of the society from which he hails. It also needs to be looked into how would an ordinary/normal person would reciprocate to similar circumstance. After display of respective case and counter case, Court will be in a position to assimilate as to whose case is close to reality.
17. As per Ex.R1/case sheet of St.John’s Medical College, he was treated for de-addiction of alcohol, during February 2005. There was no evidence to presume that because of his alcoholism, he himself was the wrong doer. In the written statement and also in the miscellaneous petition filed to set aside the exparte decree passed against her, it was the case of the wife that as on the date of filing of the petition, she was residing with the husband in the matrimonial home only and after obtaining the decree, he drove her out of the house. That being so, it is for her to prove that the husband is guilty of fraud, which fact she failed to assert by entering the Witness Box. Ex.R1 is her own document which indicates that she had entertained suicidal thoughts and had attempted to commit suicide. In the very same document, there is a note that she was advised to take psychiatric help. This corroborates with the petition allegation that she was threatening the husband of committing suicide and implicating him in a case, and did not care to take psychiatric help. The court could not have disbelieved this part of the story of the husband only for the reason that he had not lodged complaint to the police and had not disclosed with her family members and his predicaments. It is possible, ordinarily family holders restrain themselves from making public of their domestic matter. We do not see any unusuality in the conduct of the husband in not making loud noise about his private matter to the external world. The affidavit evidence of the husband runs into several pages. Not each and every allegation in the affidavit evidence is negatived during his cross-examination.
18. Non-co-operation during the coitus is alleged to be one among the other cruel acts. It was insensitivity on the part of the court below to assume that because they lived together for a sufficient length of time, he has condoned said act. Expectation of sexual pleasure from his/her spouse is in the natural course and conduct of an adult, healthy person.
19. Kama/Libido, being the basic instinct, it is the bottom line of marital bliss. Both parties to the marriage among other marital obligation are entitled to seek sexual pleasure from the other spouse. The husband when alleges that he was deprived of enjoyment by non-co-operation of wife, thereby inflicted cruelty, the Court’s consciousness has to be receptive to his contention that he has suffered cruelty during his stay with his wife. The petition is filed after the wife withdrew her company from him, blackmailed by placing unwarranted demands, and threatened him of implicating in criminal cases. Unless she had shown by placing rebuttal evidence that these allegations are either false or do not amount to cruelty, in the absence of rebuttal evidence, the alleged act pertaining to period right from the honeymoon time till filing of petition for Divorce, over time in its cumulative effect is cruelty in the eye of law.
20. Even after proving ground of cruelty, there still remains the question, whether the husband himself was the perpetuator, had he condoned the alleged marital offence, is he taking benefit of his own wrong. Relevant provision reads thus:…
“23.Decree in proceedings- (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that –
(a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (c) of clause (ii) of Section 5] is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief; and
(b) where the ground of the petition is the ground specified in Clause (i) of sub-section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty; and (bb) xxxxxxxxxxxxx
(d) There is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.
21. In the landmark judgment reported in AIR 1975 SC 1534 in the matter of Dr.N.G.Dastane -vs- Mrs.S.Dastane, the principles enunciated at paragraphs-54 and 55 read thus:
“54. Even though condonation is not pleaded as a defence by the respondent it is Court’s duty, in view of the provisions of Section 23 (1) (b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the Court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if the Court is satisfied “but not otherwise”, that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty.
55. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration. . . . . . . .”
22. Having not shown that the alleged acts of cruelty were condoned by husband restoring the life to normalcy and there being nothing on record to suspect his involvement as a perpetuator, husband is entitled for decree of divorce.
Accordingly, the appeal is allowed.
The judgment and decree dated 22nd November 2012 in M.C.No.742/2006 passed by the II Additional Principal Judge, Family Court at Bangalore, is set aside.
The marriage between the parties dated 26.4.2000 is dissolved. However, this order shall not come in the way of the wife for seeking alimony/maintenance from the husband before proper forum.
No order as to costs.