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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2018
PRESENT
THE HON’BLE MR.JUSTICE L. NARAYANA SWAMY
AND
THE HON’BLE MR.JUSTICE P.B. BAJANTHRI
MISCELLANEOUS FIRST APPEAL NO. 8008/2012(FC)
BETWEEN:
MRS.SONY
AGED 26 YEARS
D/O CHANDRAHASA
R/AT THOTA HOUSE
RATHABEEDHI ROAD
OPP. BOYS HOSTEL KUDUPU
MANGALORE TALUK- 575 001 ..APPELLANT
(BY SRI.CYRIL PRASAD PAIR, ADVOCATE)
AND:
MR.PRAVEEN.S.
AGED 36 YEARS
S/O SOMAPPA POOJARY
R/AT BAGAMBILA SITE
NITHYANANDA NAGAR POST
DERALAKATTE VILLAGE
MANGALORE – 575 001 .. RESPONDENT
(RESPONDENT SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 19 (1) OF
THE FAMILY COURT ACT, AGAINST THE JUDGMENT
AND DECREE DATED: 20.04.2012 PASSED IN M.C.
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NO. 35/2011 (OLD NO. 53/2008) ON THE FILE OF THE
JUDGE, FAMILY COURT, D.K., MANGALORE, PARTLY
ALLOWING THE PETITION FILED UNDER SECTION 13
(1) (ia) (iii) OF HINDU MARRIAGE ACT, FOR DIVORCE.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED ON 10.12.2018 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
BAJANTHRI J., DELIVERED THE FOLLOWING:
JUDGMENT
Appellant/wife of husband – Respondent has
questioned the validity of the judgment passed in
M.C.No.35/2011 (Old No. M.C.No.43/2008) on the file of the
Family Judge, D.K., Mangalore by which respondent’s
petition under Section 13(1)(i-a) and (iii) of the Hindu
Marriage, Act, 1955 (hereinafter referred to as the ”Act’ for
short) is allowed in part and marriage dated 02.02.2006 has
been dissolved by decree of divorce with effect from the date
of decree. Further, application under Section 26 of the Act is
allowed in part, child shall continue to be in the custody of
appellant/mother. Respondent/father has got visitation
rights once in a month to visit the child in the house of the
appellant by giving prior notice to the appellant.
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2. Brief facts of the case are that marriage between
appellant and respondent took place on 02.02.2006 at
Milagres Church Hall, Falnir, Mangalore as per customs
prevailing in Hindu community. Both of them resided
together as husband and wife for about 7 months. Out of
their wedlock, a female child was born on 19.02.2017. The
respondent alleged allegations against the appellant that she
is behaving abnormally, it seems mentally she was facing
certain distress as is evident from her behaviour as she was
abusing respondent in a filthy language. She was
screaming, shouting so also physically attacking the
respondent. From the date of marriage, appellant’s
behaviour was not proper as a wife towards her husband.
Respondent informed the appellant’s mother about her
behaviour for which she has stated that even prior to
marriage, she was suffering from certain mental depression
for which she was taking psychiatric treatment in KMC
Hospital, Attawar, which has compelled Respondent to file
divorce petition and it was allowed.
3. The respondent was working at Chitradurga. He
had taken appellant and his child to Chitradurga. Even at
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Chitradurga she was behaving abnormally which was
irritating to the respondent in front of his friends. She was
not cooking food and un-necessarily she was harassing the
respondent. Thus, respondent has suffered humiliation as
well as undergone mental agony, depression due to the
respondent’s attitude and behaviour. Taking these issues,
respondent issued a legal notice on 10.12.2007 for which
appellant had replied on 28.12.2007. Appellant denied the
allegations stated in the notice. On the other hand, she had
made allegations against the respondent that he is in the
habit of taking alcohol and bringing his friends to his house
during night for dinner. She has also alleged that she do not
intend to continue to stay with her husband unless and until
he changes his attitude like not bringing his friends to his
house for dinner, not consuming alcohol outside and coming
in the midnight and so also if he shifts his house from
Chitradurga to Mangalore. In that event, appellant is
prepared and willing to join the matrimonial home. She has
also sought for maintenance for her as well as to her child a
sum of Rs.5000/- per month since the petitioner is having
business and earns Rs.30,000/- per month.
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4. Respondent got examined himself as PW1 and also
got examined Dr.V K Bhat as PW2 and got marked 13
documents – Ex.P.1 to P.13. Similarly, appellant got
examined herself as RW1 and got marked 8 documents –
Exs.R.1 to R.8.
5. Arising out of the above facts and circumstances,
the Family Court framed the following points for
consideration:
1. Whether the petitioner proves that the
respondent has treated the petitioner with
cruelty?
2. Whether the petitioner proves that the
respondent has been suffering continuously
from mental disorder of such a kind and to such
an extent petitioner cannot reasonably be
expected to live with respondent?
3. Whether the petitioner is entitled for the
custody of children or visitation rights?
4. What Order?
6. The Family Court after due examination of the
records and statement of PW1, PW2 – Dr. V K Bhat and RW1
– appellant and documents produced by both the parties,
passed an order allowing the petition in part under Section
13(1)(i-a) and (iii) of the Act, consequently, order has been
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passed dissolving the marriage by decree of divorce with
effect from the date of the decree and further, custodian of
the child and visitation rights etc.
7. Feeling aggrieved by the judgment and decree of
the Family Court, D.K.,Mangalore dated 20.04.2012 in
M.C.No.35/2011, the appellant presented this appeal on the
ground that Family Court has failed to appraise the evidence
which were adduced. Family Court has come to the
conclusion that appellant was suffering from mental
disorder. Such a conclusion is without any basis.
Therefore, question of cruelty meted out to the respondent is
only with reference to hear say evidence. Frequently,
appellant was admitted to hospital to get psychiatric
treatment has been denied. The respondent’s allegations are
not supported by any admissible evidence. Thus, Family
Court has erred in allowing the petition of the respondent.
8. Per contra, learned counsel for the respondent
submitted that Family Court has taken evidence of the
Doctor – PW2 – Dr.V.K.Bhat who has clearly disclosed that
he for medical treatment to the appellant on number of
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occasions. It was also contended that appellant’s reply to
the notice wherein she has specifically stated that
respondent’s behaviour was indifferent like bringing friends
for dinner and taking alcohol and troubling appellant in the
midnight. Further, if the respondent shifts the house from
Chitradurga to Mangalore, in that event, appellant would be
joining the respondent. It was contended that for the last 13
years, respondent is in Chitradurga and he is into transport
business; he cannot live such business on the wishes of the
appellant and settle at Mangalore. The doctor’s evidence is
crystal clear that appellant is suffering from certain mental
disorder before marriage so also after marriage having regard
to her behavior. The Family Court has appraised all these
issues read with Doctor’s evidence while granting relief to the
respondent under Section 13(i-a) of the Act. Consequently
the order has been passed. No interference is called for as
each and every issue has been dealt by the Family Court in
depth.
9. Heard learned counsel for the appellant.
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10. The appellant’s contention is that respondent was
harassing her and she was not suffering from mental stress,
as contended by the Respondent Doctor. On the other
hand, behaviour of the respondent in taking alcohol and
harassing her for which she had requested the respondent
to settle at Mangalore instead of Chitradurga, these
statements do not constitute cruelty. Therefore, Family
Court has failed to appraise the contention of the appellant.
It is only a one sided version to the extent that respondent’s
version has been taken into consideration for the purpose of
granting relief to him.
11. The respondent’s allegation relating to mental
stress of the appellant is evidence from PW2 – Dr.V K Bhat
who had given treatment to her prior to marriage and
thereafter, supported by evidence of PW2 -doctor. On the
date of examination of Dr.V.K.Bhat, appellant was not
present. In fact, PW2 – Dr.V.K.Bhat has categorically stated
that he could have identified the appellant if she had
appeared on the date of doctor’s examination. The said
statement of the doctor is recorded in evidence that he had
given certain treatment to the appellant in respect of
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psychiatric issue. NO-doubt the doctor has opined that it
was a curable disease. The appellant has taken treatment
relating to psychiatric issue prior to marriage and so also
after marriage. Even then there is no change in behavior of
the appellant as is evident from the allegations made by the
respondent like when they went to honeymoon to Ooty and
after giving birth to female child and when they were at
Chitradurga for some time her behavior was abnormal.
These issues would constitute ‘cruelty’ as held by the Family
Court.
12. That apart, appellant in her reply to the notice has
admitted certain issues relating to psychiatric problems as
well as if the respondent changes his behaviour like bringing
his friends to his house, giving up taking alcohol and shifting
his house from Chitradurga to Mangalore, she will join her
husband. Family Court has taken note of the issue that
there were no corroborative evidence relating to behavior of
the respondent in harassing Appellant. Insofar as shifting of
respondent’s house from Chitradurga to Mangalore is
concerned, it was noted by the Family Court that
respondent was settled at Chitradurga for more than a
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decade. To meet appellant’s wishes, he cannot shift from
Chitradurga to Mangalore as he was into certain business.
Therefore, no interference is called for in respect of
Judgment and decree of the Family Court, D.K., Mangalore
dated 20.04.2012 in M.C.No.35/2011.
13. The appellant is entitled to maintenance or
permanent alimony. Respondent is hereby directed to pay
certain maintenance or permanent alimony by settling
dispute with Appellant. If the issue relating to maintenance
or permanent alimony is not settled, in that event, either of
the party is at liberty to make necessary application/petition
before appropriate forum.
Accordingly, appeal stands rejected.
Sd/-
JUDGE
Sd/-
JUDGE
brn
