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Mahadevi @ Megha W/O. Shailendra … vs Shailendra S/O. Babugouda Patil on 25 April, 2018

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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

ON THE 25TH DAY OF APRIL 2018

BEFORE

THE HON’BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON’BLE MR. JUSTICE S.G.PANDIT

MISCELLANEOUS FIRST APPEAL NO.24134 OF 2013 (MC)

BETWEEN:

SMT. MAHADEVI @ MEGHA
W/O SHAILENDRA PATIL
AGE:34 YEARS, OCC:SERVICE,
R/O NEAR COLLEGE CANTEEN,
SAMAJMAL, NIPPANI ROAD,
TQ: HUKKERI DIST:BELAGAVI.
…APPELLANT
(BY SRI. P.P HITTALAMANI,
FOR SRI. JAGADISH S. PATIL, ADVOCATES)

AND:

SHRI SHAILENDRA
S/O BABUGOUDA PATIL,
AGE:39 YEARS,
OCC:ASSISTANT SUPERVISOR,
R/O VIGHANARAJENDRA KRUPA,
BEHIND RUTHURAJ APARTMENT,
AYODHAA NAGAR, BELAGAVI.
…RESPONDENT
(BY SRI. S.S. YALIGAR,
FOR SRI. MRUTYUNJAYA TATA BANGI, ADVOCATES)
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THIS APPEAL IS FILED UNDER SECTION 28 OF THE
HINDU MARRIAGE ACT, 1955 AGAINST THE JUDGMENT
AND ORDER DATED 10.9.2013 PASSED IN MC NO.3 OF
2009 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUKKERI, ALLOWING THE PETITION UNDER SECTION
13(1) (ia) (ib) OF THE HINDU MARRIAGE ACT, 1955.

*****

THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 16/04/2018 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:-

JUDGMENT

The wife is in appeal before this Court aggrieved by

the judgment and decree dated 10.09.2013 passed by the

Senior Civil Judge, Hukkeri in MC No. 3 of 2009, by which

the Trial Court has allowed the petition filed by the

husband under Section 13(1) (ia) (ib) of the Hindu

Marriage Act, 1955 (for short, ‘the Act’).

2. Brief facts of the case are that, the marriage of

the petitioner and respondent was solemnized on

21.06.2002 at B.B. Hanji Kalyanmantap, Yamanmardi,

Taluk Hukkeri as per Hindu rites and customs. According to

the husband, who has filed the petition for divorce, they
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lived happy married life for one year. After the marriage,

the wife never became familiar with the family members of

the husband and used to abuse them in filthy language

and she blamed the husband that he is a diploma holder

and she is a double graduate and earning more than the

husband, as a government Teacher. From the wedlock, a

female child was born. It is further case of the husband

that without informing to his family members, she

performed naming ceremony in her parents house. All

these events resulted in mental harassment to him. The

wife even threatened to send him to jail. He further states

that the wife has not taken care of his parents and she has

left the house 2 ½ years before instituting the petition for

divorce. According to the husband, it is the main demand

of the wife that he has to make separate house for them,

unless he makes to do so, she is not ready to live with

him. On these allegations, the husband filed petition for

divorce on the ground of cruelty and desertion.
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3. The wife appeared before the trial Court and

filed her objections stating that the husband and parents

of the husband never treated her well and always used to

harass her demanding to bring dowry from her parents

house. She further contends that they have a female baby

and at that time, the husband was very much present in

the hospital. She denied the allegations made by the

husband. Further, she contends in her objections that her

in-laws were insulting and harassing her. It is further

allegation of the wife that the parents in-law would not

allow to co-habit with the husband till she brings money

from her parents house. When she refused to bring

money, she was driven out of the matrimonial home.

4. On the pleadings of the parties, the Trial Court

framed one issue as to whether the petitioner proves

sufficient grounds to allow petition under Section 13(1)

(ia) (ib) of the Act?

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5. The husband in support of his case has

examined himself as PW1 and examined two other

witnesses as PW2 and PW3 and produced documents as

per Exs.P1 to P5. On the other hand, wife examined

herself as RW1 and produced documents as per Exs.R1 to

R9. The Trial Court based on the evidence both oral and

documentary has allowed the petition filed by the husband

under Section 13(1)(ia)(ib) of the Act. Being aggrieved by

the same, the wife is before this Court.

6. The learned counsel appearing for the

appellant-wife assailing the impugned judgment and

decree would submit that the Trial Court has not properly

appreciated the material on record both oral and

documentary. He further submits that the trial Court has

wrongly held that the wife has left the house of the

husband without any reason. Further, the learned counsel

submits that the Trial Court as a routine has considered

the allegation of desertion and has allowed the petition on

the ground of desertion and cruelty. There is no material
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on record to come to the conclusion that the wife has

deserted the husband. On the other hand, the wife is

ready and eager to join the company of the husband.

7. Per contra, the learned counsel appearing for

the respondent-husband submits that the trial Court on

appreciation of the material both oral and documentary

has come to a right conclusion. Further, he submits that

the series of criminal cases filed by the wife would

constitute mental cruelty. Further, he submits that the

wife failed to perform her duty as a wife and she never

looked after his parents as everyone used to look after the

parents-in-law at their old age. Therefore, he prays that

the appeal of the wife be dismissed.

8. Having heard the learned counsel appearing

for the parties and examining the appeal papers along with

the original records, the only question that arises for our

consideration in this appeal is, whether the judgment and
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decree of the Trial Court requires interference by this

Court?

9. On examination of the evidence and material

on record, it is manifest that the marriage between the

parties and a female baby born from their wedlock are not

in dispute. It is mainly the wife being more qualified than

the husband, which is a root cause for misunderstanding

between the husband and wife. It is an admitted fact that

the wife is M.A., B.Ed., who is earning Rs.30,000/- per

month as a government teacher, whereas the husband is

only a diploma holder, who is working in a private sector.

It is on record and proved that the wife used to tease the

husband saying that she is a double graduate and

unfortunately, she has married him. The wife demanded

the husband to make separate house. It appears that

when he refused to do so, she got transferred to Belvi

village to which her husband has objected. The husband

has stated that as he objected for getting transfer to Belvi

village, on the night of the said day, she squeezed his
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testicles and tried to kill him. Even though there is no

pleadings to the said allegation, the same has come on

record in the evidence of PW1, PW2 and PW3. The Trial

Court at para-18 of the judgment has assigned reasons for

looking into those evidence without pleading. Further, PW2

and PW3 also supported the incident of squeezing the

testicles of the husband. PW1-husband, who has reiterated

the allegations made by him in the evidence, he has stated

that behaviour of the wife and demand for separate house

and also filing false criminal case against him and his

parents have made him to suffer mental cruelty. It is on

record that the wife has filed a complaint against the

husband and his family members under Section 498A of

IPC and also under Section 4 of the Dowry Prohibition Act,

1961. The wife in her evidence has admitted that the

husband and his family members were acquitted of the

alleged offence of Section 498A of IPC.

10. PW2 and PW3 are the residents of the same

chala(street), who used to come often to the house of the
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husband. The wife in her cross-examination has admitted

the said fact that they were residing in the same street

and used to often come to their house. Further, PW2 and

PW3 also supported the incident of squeezing the testicles

of the husband. They stated that on that day, there was

hue and cry in the house. They also stated that the wife

used to pick-up quarrel and used tease the husband. They

further stated in their evidence that the wife left the

matrimonial home in the year 2005.

11. The wife who has examined herself as RW1 has

re-iterated the averments made in the objections

statement that she was not treated well in her matrimonial

home and admitted that she gave birth to a female child.

She has re-iterated that the husband and his parents

demanded her to bring Rs.5 Lakhs from her parents house

to construct new home; she expressed her inability and

she was driven out from the matrimonial home. In fact,

she has further stated that she was not even allowed to

watch television. Being fed up with all these incidents, she

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has filed compliant under Section 498A of IPC. In fact, the

husband has made many efforts to bring back the wife and

he had made application before the Mahila Sahayawani,

Belagavi seeking their help to bring back the wife. Before

the Mahila Sahayawani, she has specifically stated that

unless the husband makes separate house, she is not

ready to come and stay with him. She also stated that she

has filed petition for maintenance; she denied the incident

of squeezing the testicles of the husband. The Trial Court

on consideration of the material placed before it, has

rightly come to the conclusion that the husband has

proved the allegation of cruelty.

12. The Hon’ble Supreme Court in the case of

Viswanath Agrawal Vs. Sarla Vishwanath Agrawal, reported

in (2012) 7 SCC 288 at para-22 has held thus:

” 22. The expression “cruelty” has an
inseparable nexus with human conduct or
human behaviour. It is always depended
on the social strata or the milieu to which
the parties belong; their ways of life,

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relationship, temperaments and emotions
that have been conditioned by their social
status.”

13. Further, the Hon’ble Supreme Court in the case

of Vinita Sxzena Vs. Pankaj Pandit (2006) 3 SCC 778, at

para-35 has held thus:

“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.”

14. Following the above decisions enunciated by

the Hon’ble Apex Court, if we take into consideration the

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entire facts and circumstances and the evidence and

material on record, it could be safely stated that the

husband in the present case has established the allegation

of cruelty against the wife. Teasing of the husband that he

is less qualified and she is more qualified than him

definitely amounts to mental cruelty. Further, it is on

record and before the Mahila Sahayawani, the wife has

admitted that she has demanded the husband to make

separate house and unless he makes separate house, she

is not ready to live with him. The husband should leave

his parents and he has to make separate house. It is

everyone’s duty to look after the aged parents. No one

can leave their parents as demanded by the wife herein.

In the facts and circumstances of the case, the said

demand also amounts to mental cruelty to the husband.

Therefore, it is to be held that the husband has proved the

allegation of cruelty against the wife.

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15. Insofar as the allegation of desertion is

concerned, it is on record that the wife has left the

matrimonial home in the year 2005 and the husband has

made best efforts to bring back the wife to the matrimonial

home. Even the husband has sought for the help of Mahila

Sahayavani to bring back his wife, wherein the wife has

refused to come and join the husband, unless he makes

separate house. Furthermore, the wife is residing

separately and it is seen that the wife is not ready to

reside with the parents of the husband. On the other

hand, the wife is residing with her parents. Therefore, all

these continued events would go to show that the wife

without there being any reason has left the matrimonial

home.

16. Taking into consideration of the above facts

and circumstances, it is to be held that the Trial Court has

come to the correct conclusion. The judgment and decree

passed by the trial Court is sound and proper. No ground

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is made out by the wife to interfere with the well-reasoned

impugned judgment and decree.

17. Appeal is dismissed. No costs.

Sd/- Sd/-
JUDGE JUDGE

JTR

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