IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Dated this the 29th day of September, 2015

PRESENT

THE HON’BLE MR. JUSTICE N.K. PATIL

AND

THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

MFA No.3500/2011 (IDA) C/W MFA 3501/2011 (IDA)

BETWEEN:

Mrs. MABEL TREEZA PINTO
D/O DENISE LOBO
W/O FRANCIS PINTO
CHRISTIAN, AGED 44 YEARS
R/A NO.5, 18TH B CROSS
LAXMIPURAM, ULSOOR,BANGALORE – 560 008 …APPELLANT
(COMMON)
(By Sri CYRIL P PAIS, Adv., FOR M/s CYRIL PRASAD PAIS & ASSTS)

AND:

FRANCIS PINTO
S/O LATE JOSEPH PINTO
CHRISTIAN, AGED 57 YEARS
R/A FIELD’S VIEW
KADRI, KAIBATTAL, KADRI,MANGALORE,D.K.-560 001 … RESPONDENT
(COMMON)

(By Sri O SHIVARAMA BHAT, Adv.,)

MFA No.3500/2011 IS FILED U/S 55 OF INDIAN DIVORCE ACT, AGAINST THE JUDGMENT AND DECREE DATED 20.1.2011 PASSED IN M.C.NO.1/2008 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE & CJM, MANGALORE,DISMISSING THE PETITION FILED U/S 32 OF INDIAN DIVORCE ACT FOR RESTITUTION OF CONJUGAL RIGHTS.

MFA No.3501/2011 IS FILED U/S 55 OF INDIAN DIVORCE ACT, AGAINST THE JUDGEMENT AND DECREE DATED 20.1.2011 PASSED IN M.C.NO.98/2003 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE & CJM, MANGALORE,ALLOWING THE PETITION FILED U/S 10(vii), (ix), (x) OF DIVORCE ACT FOR DISSOLUTION OF MARRIAGE.

THESE MFAs HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.09.2015 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S. DINESH KUMAR, J., DELIVERED THE FOLLOWING:-

JUDGMENT
These two appeals preferred by the wife in a matrimonial dispute have emanated out of a common Judgment and Decree dated 20.1.2011 in M.C.No.98/2003 and M.C.No.1/2008 on the file of Principal Senior Civil Judge, Mangaluru.

2. MFA No.3500/2011 is directed against the Judgment and Decree in M.C.No.1/2008 and MFA No.3501/2011 against the Judgment and Decree in M.C.No.98/2003.

3. Brief facts of the case:

Appellant and respondent were married at St. Francis Xavier’s Church, Bejai, Mangaluru on 16.5.1999. Appellant stayed with the respondent till 4.1.2000. Marriage was not consummated.

Appellant got a legal notice dated 26.4.2002 alleging that after marriage she learnt that the respondent had an amorous relationship with a servant girl called Saroja and his niece Sylvia; that respondent was giving more prominence to the servant girl and when questioned, he used to shout at her; that she apprehended imminent danger to her life and having no other option left for her parents’ house on 4.1.2000. With these said allegations, respondent was called upon through the legal notice to take her back into his house, to terminate the services of servant girl and to part ways with Sylvia.

Respondent got the legal notice replied as per Ex.P3 stating that the notice was issued as a counter blast after he had initiated proceedings for annulment of marriage before the Ecclesiastical Tribunal. Further, allegations contained in the notice were denied and it was asserted that the appellant had left the matrimonial home on 4.1.2000 on her own volition; that the appellant did not bother to attend the funeral service of respondent’s father. It was also asserted that the respondent having come to know of health problems got appellant treated for Dental & Skin problems. Based on the medical advice not to have physical relation and not to conceive, there was no physical relation between the parties. Adverting to the allegations of his relation with Sylvia, it was stated that she was his first cousin and employed in his shop for the last over 20 years. It was also alleged in the reply that within a week from marriage, appellant was demanding for a share in the property and to include her name in the revenue records and this had created suspicion in the mind of the respondent. It was also alleged that appellant wanted to terminate services of Sylvia and take over money matters. Thus according to the respondent, appellant was interested only in his money and property and was using marriage as a means to achieve her goal.

Subsequently, appellant filed a petition in M.C.No.844/2002 at Bengaluru on 17.6.2002 for restitution of conjugal rights and the same was transferred to Mangaluru and re-numbered as M.C.No.1/2008.

On 19.8.2003, respondent filed M.C.No.98/2003 at Mangaluru for a decree of divorce reiterating his version narrated in reply to the legal notice and prayed for decree of divorce and dissolution of marriage. Appellant resisted the petition by filing statement of objections re-stating allegations levelled by her in the legal notice. However, she offered to live with the respondent if he left bad company of Saroja & Sylvia.

4. With the above pleadings, parties went to trial. Respondent was examined as PW.1. Appellant was examined as RW.1 and appellant’s brother was examined as RW.2. 10 documents Ex.P1 to P10 were marked by the respondent and 3 documents were marked by the appellant as Exs.R1 to R3.

5. Family Court framed two issues in both petitions, which read as follows:-

“In M.C.No.98/03:
1) Whether the petitioner-husband has made out sufficient grounds to seek divorce against the respondent on the ground of mental cruelty, non-consummation of marriage and actual desertion?
2) What order?
In M.C.No.1.08:
1) Whether the petitioner-wife Mabel Treeza Pinto has made out sufficient ground for issuance of direction against her husband- Francis X. Pinto for the restitution of conjugal right and directing to come and stay with her under the same roof?
2) What order?”
Point No.(1) in M.C.No.98/2003 was answered in the affirmative and Point No.(1) in M.C.No.1/2008 was answered in the negative and finally prayer for dissolution of marriage was allowed and the prayer for restitution of conjugal rights was dismissed. Hence, these appeals.

6. Heard Sri Cyril P. Pais, learned Counsel for the appellant and Sri O. Shivarama Bhat, learned Counsel for the respondent.

7. Learned Counsel for the appellant vehemently contended that the circumstances prevalent in the matrimonial home particularly the illicit relation of the respondent with two women and cruelty meted out to her, made her stay impossible with the respondent. There was an attempt to kill her and she was assaulted and thrown out of the house. Appellant had got a legal notice issued as early as on 26.4.2002 and filed M.C.No.844/2002 for restitution of conjugal rights in Bengaluru. Respondent had not made out any valid and legal ground for a decree of divorce. The learned Family Court had misread the facts and evidence and came to an erroneous conclusion that the appellant’s petition for restitution of conjugal rights was a counterblast to the petition filed by the respondent. He submits that the said conclusion is factually incorrect because, she had filed M.C.No.844/2002 as early as on 17.6.2002 whereas respondent had filed M.C.No.98/2003 on 19.8.2003. Therefore, the assumption that appellant’s petition was a counterblast to the petition filed by the respondent is incorrect and not sustainable in law.

8. Learned Counsel further contends that the allegations contained in the petition for divorce are concocted. No lady can tolerate if her husband had an illicit relation with other women nut in the instant case, respondent had illicit relation with two women. Therefore, he was not entitled for a decree of divorce and on the other hand, appellant’s petition for restitution of conjugal rights was more meritorious and ought to have been decreed. Accordingly, he prays for allowing both the appeals.

9. Per contra, learned Counsel for the respondent contends that the marriage was solemnized on 16.5.1999 and the appellant had walked out of the matrimonial home voluntarily on 4.1.2000. During her short stay, she had started demanding division of property and inclusion of her name in the property records. Thus, the appellant was interested only in property and money and not in the welfare of the respondent and a happy married life. She was attempting to take over the family business by terminating services of respondent’s cousin sister Sylvia, who was looking after the shop and Saroja, who was looking after aged father of respondent.

10. Learned Counsel further submits that immediately after the marriage, appellant learnt that the respondent had serious dental and skin problems. He got her treated. As per medical advice, there was no physical relation between the parties. Therefore, there was no relation of man and wife between them at any point of time.

11. Learned Counsel further submits that the appellant had made no efforts to join the respondent. Only when the respondent had moved Ecclesiastical Tribunal, appellant had got issued a legal notice containing false allegations against him. Therefore, respondent was compelled to file the petition for a decree of divorce. Thus, supporting the judgment of the Family Court, learned Counsel prays for dismissal of both the appeals.

12. We have bestowed our anxious consideration to the submissions made by the learned Counsel for the appellant and respondent and perused voluminous records.

13. In the back drop of aforementioned facts on hand and submissions of the learned Counsel, following points arise for our consideration:-

(i) Whether the appellant had willfully refused to consummate the marriage?

(ii) Whether the respondent had inflicted cruelty upon the appellant?

(iii) Whether the appellant proves that the respondent deserted him for a period of two years prior to the date of filing the petition? Re-point No.(i):

Both appellant and respondent belong to Christian Community and governed by the Divorce Act, 1869. A combined reading of the pleadings, depositions and material papers contained in voluminous records reveal following incontrovertible facts.

Marriage between the parties was solemnized on 16.5.1999, but not consummated. Though in the statement of objections, appellant has denied that she was under medication and marriage was not consummated, but in the cross – examination, she has admitted that even after medical treatment, she had refused to co-habit with the respondent.

According to the appellant, behaviour of the respondent towards other women and particularly presence of servant Saroja was responsible for non-consummation of marriage. She had stayed in the matrimonial home for a short period of six months and left on 4.1.2000. Thereafter, she made no efforts on her part for the success of marriage. Her first action commenced with issuance of a legal notice on 26.4.2002.

Thus, her admission in the cross – examination that she had refused to cohabit with the respondent and undisputed date of her departure from the matrimonial home are sufficient to answer this point in the affirmative and is accordingly answered. Re-points No.(ii) & (iii):

Both points (ii) and (iii) revolve around common facts and evidence.

The appellant has given different versions vis-a-vis her departure from the matrimonial home. In the cross

– examination, she has stated in one breadth that she left the matrimonial home voluntarily and abruptly without informing either the respondent, his father or anybody. In another breadth, she has stated that she left the matrimonial home as she was assaulted and sent out. For the first time after little over two years of her departure from the matrimonial home, she got a legal notice issued to the respondent, wherein there is no mention with regard to the assault. On the other hand, it is stated in the notice that the behaviour of the respondent appeared to endanger her life and she had no other choice but to go to her parents’ house. It is relevant to note that the apprehension of threat entertained by the appellant has been negatived by the Hon’ble Supreme Court in its Judgment dated 8.8.2005 in Civil Appeal No.4902/2005 (Mabel Treeza Pinto v. Shri Francis Pinto), filed by the appellant, which reads as follows:-

“The appellant has also expressed an apprehension of danger to her life at the hands of the respondent as well as two ladies alleged to be living with the respondent “and/or who are working with the respondent.” The allegation is wholly bereft of any particulars nor is it supported by any evidence. We are unable to accept such a bare allegation in the absence of any material in support thereof.”
Therefore, so far as the aspect of desertion is concerned, post her departure from the matrimonial home on 4.1.2000, appellant was not in touch with the respondent at all. On the other hand she paved a way to commence legal action by causing the legal notice. Both learned Counsel fairly conceded during the hearing that from and after appellant’s departure in the year 2000, parties have not lived together. A combined reading of appellant’s evidence and the sequence of events clearly indicate that the appellant willfully deserted the respondent.

Insofar as the cruelty aspect is concerned, Family Court has drawn sustenance from following judgments of the Hon’ble Supreme Court:-

(i) AIR 1994 SC 710 (V. Bhagat v. Mrs D. Bhagat ), wherein it is held as follows:-

“17. Mental cruelty in S.13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made”.
(ii) (2002)5 SCC 706 (Parveen Mehta v. Inderjit Mehta), wherein it is held as follows;

“22. xxxxxxxxxxx In such
circumstances, the respondent who was
enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy.xxxxxxxxxxx”

(iii) AIR 2006 SC 1662 (Vinita Saxena v. Pankaj Pandit), wherein following passage from AIR 1973 Delhi 200 at 209 has been extracted:-

“42. The Division Bench in the case of Rita Nijhawan v. Balkrishan Nijhawan in AIR 1973 Delhi 200 at 209 observed as follows: “Marriage without sex is an anathema Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long.”…………..
14. Learned Counsel for the respondent during the course of submissions also referred to the following rulings:-

(i) Sanat Kumar Agarwal v. Smt. Nandini Agarwal reported in AIR 1990 SC 594;

(ii) Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706; &

(iii) V. Bhagat v. Mrs. D. Bhagat reported in AIR 1994 SC 710(1).

In the case of Sanat Kumar Agarwal, the Hon’ble Supreme Court has taken note of the fact that for more than 10 years, the parties were living separately at the time of consideration of the appeal and held as follows:-

“7. It is further important to note that the petition for divorce was filed on 6-2-1982 i.e. more than three years of leaving the matrimonial home by the respondent w.e.f. 9-12-1978. There is not an iota of evidence placed on record by the respondent nor any averment to show that any effort was made by her to go and join the matrimonial home with the appellant at Bhopal. Now it is more than ten years that the parties are living separately. Admittedly the respondent after passing B.Ed. examination has joined an employment as a school teacher and has an independent income and both the parties have now adjusted to their new mode of life for more than a decade. Admittedly they have no issue and during the course of arguments learned counsel for the respondent also frankly conceded that in case this Hon’ble Court granted a decree for divorce it would be in consonance with justice. We are also alive to the situation that the root cause of the dissensions between the matrimonial relations in between the two families was on account of the custom of ‘GURAWAT’ and a decree of divorce has already been passed in favour of Shivnarain, against Smt. Shakuntala who is the sister of the appellant, Sanat Kumar. In spite of best efforts made by the Lower Courts as well as by this Court, reunion between the parties could not be possible. Thus taking in view the, peculiar facts and circumstances of this case.”
@ page-SC598 We are clearly of the view that the appellant has proved his case for the grant of decree of divorce on the ground of desertion.”
In the case of Parveen Mehta, the Hon’ble Supreme Court has held as follows:-

“19. Clause (i-a) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla’s Hindu Law, 17th Edn., Vol. II, p. 91).

20. In the case in hand the foundation of the case of “cruelty” as a matrimonial offence is based on the allegations made by the husband that right from day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. When the husband offered to have the wife treated medically, she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in the presence of elderly persons like Shri S.K.Jain. This Court in the case of Dr N.G.Dastane v. S. Dastane observed: (SCC p. 346, para 56) “Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment.”

15. In the institution of marriage, among several factors, physical relation between the couple is an important ingredient. Willful refusal for physical relation by one of the parties certainly amounts to infliction of cruelty on the other. In the light of the pleadings on record and the admission of the appellant as RW.1, we hold that there was willful act on the part of the appellant in refusing to consummate the marriage and we have no hesitation to hold that such behaviour on her part amounts to cruelty. We accordingly answer the aspect of cruelty against the appellant and in favour of the respondent.

16. As regards desertion, it is admitted by the appellant that she left the matrimonial home on 4.1.2000. A legal notice was issued on her behalf on 26.4.2000 and a petition for restitution of conjugal rights in M.C.No.844/2002 was presented at Bengaluru which is also decided after it’s transfer to Mangaluru along with the petition for divorce filed by the respondent at Mangaluru in M.C.No.98/2003 on 19.8.2003. No evidence is placed on record by the appellant to demonstrate that the couple had lived together anytime after 4.1.2000. Dates and events are conspicuous to answer the point with regard to desertion for a period not less than 2 years in favour of the respondent and the same is answered accordingly.

17. Further, parties in this case have lived separately for a long spell of time. To be precise, it is 15 years and 9 months. Appellant stayed in her matrimonial home for a very short period less than eight months. She has admitted to have refused to co-habit with the respondent. While replying during cross – examination recorded in the form of questions and answers, she has expressed her opinion that respondent would not leave the company of two girls and not take her back. Thus, all along she entertained a resolute stance in her subconscious mind that the respondent was in an illicit relation with two women and he would not take her back, which is not corroborated by any evidence.

18. During the course of the hearing, both learned Counsel mentioned that the respondent is now aged 61 years and the appellant 54 years. Learned Counsel for the respondent also placed for our perusal some medical records which indicate that the respondent has been taking treatment for hypertension. It was also submitted by the learned Counsel that the respondent is suffering from serious cardiac illness and advised not to travel alone.

19. Thus, in our considered view, the material on record clearly indicates that the appellant had willfully refused to consummate the marriage, she had deserted the appellant and thus inflicted upon him mental cruelty by depriving him of conjugal pleasures.

20. We have also taken note of the long recess of time which has elapsed. Following the Judgment of the Hon’ble Supreme Court in the case of Sanath Kumar, we hold that the parties would have adjusted to the new mode of life. In addition, submission with regard to the current health condition of the respondent also persuaded us not to disturb the present living condition of the parties. Resultantly, both appeals fail and accordingly stand dismissed.

No costs.

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JUDGE Sd/-