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Savithri W/O. S Ravindra Reddy vs S.Ravindra Reddy on 19 April, 2017

IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
R
DATED THIS THE 19TH DAY OF APRIL 2017

PRESENT

THE HON’BLE DR. JUSTICE VINEET KOTHARI
AND
THE HON’BLE DR. JUSTICE H. B. PRABHAKARA SASTRY

M.F.A.NO.100682/2014 (FC)

BETWEEN:

SMT.SAVITHRI, W/O. S. RAVINDRA REDDY
AGE: 32 YEARS, OCC: HOUSEWIFE
R/O. C/O. JANARADHANA REDDY
YEMMIGANUR VILLAGE,
TQ: & DIST: BELALRY
… APPELLANT
(BY SRI. RAJASHEKAR GUNJALLI, ADVOCATE)

AND:

SRI.S.RAVINDRA REDDY
S/O. D SHIVANANADAPPA
AGE: 38 YEARS, OCC: BUSINESS & AGRICULTURE
R/AT: SINDAGI COMPOUND NEAR
RAGHAVENDRA TALKIES
BELLARY, DIST: BELLARY
… RESPONDENT
(BY SRIYUTHS MALLIKARJUN S. HIREMATH AND
GURUBASAVARAJ S M, ADVOCATES)
Date of Judgment 19.04.2017 MFA No.100682/2014(FC)
Savithri W/o. S.Ravindra Reddy
Vs.
S. Ravindra Reddy

THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE
DATED 19.12.2013, PASSED IN MATRIMONIAL CASE
NO.42/2013 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY
COURT, BELLARY, ALLOWING THE PETITION FILED UNDER
SECTION 13 OF THE HINDU MARRIAGE ACT.

THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 10.04.2017 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DR. H. B.
PRABHAKARA SASTRY, J., DELIVERED THE FOLLOWING:

JUDGMENT

Mr.Rajeshekar Gunjalli , Advocate for appellant. Mr.Mallikarjun S. Hiremath and Sri.Gurubasavaraj S. M. Advocates for respondent.

1. This appeal has been filed by the appellant under Section 19(1) of the Family Court Act, being aggrieved by the judgment and decree passed by the Principal Judge, Family Court, Bellary, dated 19.12.2013 in M.C.No.42/2013, dissolving the marriage of the appellant with the respondent by a decree of divorce.

2. In her memorandum of appeal, the appellant has contended that the learned Family Judge has not appreciated the oral and documentary evidence on Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy record and gave much reliance on the dismissal of the criminal case filed by her for the offence punishable under Section 498A of the Indian Penal Code. Dismissal of the criminal case cannot be a ground for granting a decree of divorce by the Family Court. She has further stated that the Court below failed to appreciate that, when the respondent-husband attempted to commit suicide, she, the wife was not in that place. It also failed to notice that the petition for maintenance and suit for partition was filed, since she had no source of income to maintain herself and her son. With this, she prayed for allowing the appeal by setting aside the judgment and decree under appeal.

3. In response to the notice, respondent has appeared through his counsel. The lower Court records were called for and the same are placed before this Court.

Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy

4. Heard the arguments from both sides, perused the memorandum of appeal, the impugned order, the entire lower Court records and the materials placed before this Court.

5. In the light of the above, the only point that arises for our consideration is;

“Whether the appellant has made out sufficient grounds to allow the appeal as prayed for?”

For the sake of convenience, the parties would be referred to with their rankings they were holding in the Tribunal below.

6. The petitioner – husband had filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’, for brevity), against the respondent seeking dissolution of their marriage said to have been performed on the date 10.05.1999. The Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy summary of the case of the petitioner-husband was that, he married the respondent on 10.05.1999. After the marriage, they resided happily for a period of one year. Thereafter, in the year 2000, the respondent went to her parents’ house for delivery and came back in the year 2001. After her return, she started demanding her husband to put up a separate house. Even after fulfillment of the said demand, she started visiting her parents’ house and started demanding the petitioner to seek a share in the properties in his joint family. At the refusal by him, she started quarreling with him and threatened him of deserting him and also lodging a criminal complaint against him. In view of this mental cruelty, he attempted to commit suicide on 18.03.2001.

It is his further case that the respondent filed a false complaint in C.C.No.2618/2006 and withdrew from his company and for the past 7 years, she is residing separately with her parents. With this, on the ground of Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy cruelty and desertion, he prayed for dissolution of their marriage.

The respondent in her statement of objection, except admitting her marital relationship with the petitioner and living with him till 2006, has denied all other allegations made in the petition. On the other hand, she complained that she was driven from her matrimonial house by the appellant and his parents on 16.07.2006. She made a specific allegation against her father-in-law and stated that it is at his instance, her husband ill-treated her. She further stated, it was because of the lack of source of income to maintain herself and her son, she filed a suit in O.S.No.15/2008, through her son, seeking partition of the properties of the petitioner. She has further stated that the petitioner with an intention to undergo second marriage, has driven her out of the matrimonial home. As such, it was the petitioner, who had caused cruelty and voluntarily Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy deserted her. With this, she prayed to dismiss the petition.

The petitioner and the respondent led their evidence as PW1 and RW1 respectively. The petitioner also got marked certified copy of the judgment passed in C.C.No.2618/2006 as Exhibit P1. After hearing the arguments from both sides and perusing the materials placed before it, the Court below by its judgment and decree dated 19.12.2013, allowed the petition by dissolving the marriage dated 10.05.1999, held between the parties, by a decree of divorce under Section 13(1)(a) and (b) of the Hindu Marriage Act. It is the said judgment and decree, the respondent-wife has challenged in this appeal.

7. It is not in dispute that the parties to this appeal married each other on 10.05.1999 at Yemmiganur. The petitioner states that they resided together happily only Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy for a period of one year and thereafter, the wife deserted her and left to her parents’ house. The main ground upon which the petitioner had sought dissolution of marriage was on the ground of cruelty and desertion. Section 13(1) (i-a)(i-b) of the Hindu Marriage Act, 1955, reads as follows:

“13. Divorce – (1) Any marriage solemnized, whether before or after the commencement of the 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)    has,    after    the       solemnization       of      the
            marriage         had         voluntary           sexual
            intercourse      with any person other than
            his or her spouse; or
     (ia)   has,    after    the       solemnization       of      the
            marriage, treated the petitioner                with
            cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or”

Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy

8. It may be noted that the word ‘cruelty’ used in Section 13(1)(i-a) has nowhere been defined in the Act.

The word ‘cruelty’ cannot be put in a strait-jacket formula of judicial definition. Since it is neither desirable nor possible to make any attempt to do so, for the same may prove abortive, since cases coming before the Courts have their peculiar individual facet calling for individualistic approach to tackle them. It is principally and essentially a question of fact to be decided on the basis of pleading and the evidence brought on the record by the respective parties and then the Court has to assess whether the behaviour of the spouse is of such a degree and can no longer be considered to be the routine wear and tear of the marriage life.

9. Our Hon’ble Apex Court in the case of Shobha Rani Vs. Madhukar Reddi reported in AIR 1988 SC Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy 121, with respect to Section 13(1) (i-a) of the Act, was pleaded to observe as below:

“The word “cruelty” has not been defined and could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance.”

The very same Hon’ble Supreme Court in Ramchander Vs. Ananta reported in (2015) 11 SCC 539, was pleased to discuss the scope of word ‘cruelty’ used in Section 13(1) (i-a) of the Act, in the following words:

“The expression “cruelty” has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behavior by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case, there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. Illustrative cases of instances of “mental cruelty” as set out in Samar Ghosh case are only illustrative and not exhaustive.”

In the light of the above decisions, the evidence led by the parties in the Court below has to be appreciated and the finding of the Court below made in the impugned order is required to be analysed.

10. As already observed above, the allegation of the petitioner that the respondent, after one year of her marriage with the petitioner, went to her parents’ house for delivery in the year 2000 and came back in the year 2001, and after that, she started demanding the Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy petitioner to establish a separate house and thereafter she also started demanding her husband to take his share in the properties of his joint family, were all denied by the respondent in her statement of objections. Further, petition averment that due to the quarreling by the respondent with him, and the mental cruelty caused by her, he made an attempt even to commit suicide, was also not admitted by the respondent. Though the respondent has not denied that she lodged a criminal case against the petitioner and his family in C.C.No.2618/2006, but she denied that it was devoid of any merit.

On the contrary, the respondent has alleged that she was deserted by her husband, who neglected to maintain her and her son. This made her to file a suit on behalf of her son claiming partition in the property.

Both the parties in their examination-in-chief as PW1 and RW1 respectively, have reiterated the contents Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy of the petition averment and the statement of objections respectively. PW1 in his cross-examination also maintained his original stand and reiterated that, since the year 2001, the respondent is staying in her parental house away from him. He also stated that, due to the cruelty meted out to him by the respondent, he attempted to commit suicide. He maintained that, since the year 2001, their relationship is not inter se cordial. In his cross-examination from the respondent’s side, he has further stated that his wife not only quarrels with him, but also with his mother. To corroborate his statement that the respondent had instituted a criminal case against his family and that the said case ended in acquittal, he has produced a certified copy of the judgment in C.C.No.2618/2016, dated 27.09.2008, passed by the Court of I Addl. Civil Judge and JMFC, at Bellary. A perusal of the said certified copy of the judgment go to show that the respondent, as a Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy complainant, had lodged a police complaint against her husband/petitioner and her in-laws before the Brucepet Police Station, Bellary. Th police after investigation had filed a charge sheet against the accused therein for the offences punishable under Sections 498A, 323, 504, 506 R/w. Section 34 of the IPC. Charges were framed for the alleged offences and the matter was tried. Through a judgment dated 27.09.2008 on merit, it ended in acquittal. The said fact has not been denied or disputed by the respondent in her evidence. On the other hand, apart from admitting that she had lodged the said criminal complaint, she has further stated in her cross- examination that, in the said criminal case, the appellants had arrested her husband and she was in judicial custody. This very clearly go to show that she had lodged a false complaint against her husband and her in-laws.

Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy In Malati Ravi, M.D. Vs. B. V. Ravi, M.D reported in (2014) 7 SCC 640, in a similar case the Hon’ble Apex court was pleased to hold that filing of a false and vexatious criminal proceedings under Sections 498A, 506 R/w. Section 34 of the IPC against the husband and his family by wife after filing of divorce petition would amount to mental cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

11. The learned counsel for the respondent in his argument relied upon the judgment of the Hon’ble Supreme Court of India dated 19.11.2014 in the case of K. Srinivas Vs. K. Sunita passed in Civil Appeal No.1213/2006, in his support. In the said case also, the Hon’ble Apex Court was pleased to observe that, knowingly and intentionally filing of a false complaint by wife, calculated to embarrass and incarcerate the appellant and seven members of his family Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy unquestionably constitutes cruelty as postulated in Section 13(1)(i-a) of the Hindu Marriage Act. It was further pleased to observe in the same judgment that even one such complaint is sufficient to constitute matrimonial cruelty. With this observation, the Hon’ble Apex Court was pleased to dissolve the marriage of the parties under Section 13(1)(i-a) of the Hindu Marriage.

12. As observed above, even in the instant case also, the respondent – wife had filed a criminal case inter alia for the offence punishable under Section 498A of the IPC, which ended in acquittal. More interestingly, the very same respondent in her cross-examination as RW1, has stated that except a gold chain, all other jewels were returned to her by her husband. Had there really been dowry harassment by her husband and in- laws, they would not have returned golden jewels to Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy her. This again shows that she has practiced mental cruelty against her husband and her in-laws.

13. Another allegation by the petitioner is that the respondent was always pestering him to establish a separate residence and demanding him to leave his parents and to stay away from them. No doubt, the respondent has not admitted the same as true in her statement of objection as well in her examination-in- chief as PW1. But it is noteworthy that in the cross- examination of PW1, from the respondent side it was elicited that the wife was pestering her husband to establish a separate residence and accordingly he has established a separate residence, in spite of the same, she was torturing him, due to which he attempted to commit suicide. Even though PW1 made such a statement, in his cross-examination, it was not denied at least by subsequent suggestions from the respondent Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy side. As such, the said statement of petitioner-husband remained un-controverted. In the very same cross- examination of PW1, from the respondent side, following statement has been elicited.

“£Á£ÀÄ £À£Àß MlÄÖ PÀÄlÄA§zÀ ªÀÄ£ÉAiÀÄ°è ¥ÀÄ£À: ªÁ¸À ªÀiÁqÀ®Ä EµÀÖ ¥ÀqÀÄwÛzÉÝ J£ÀÄߪÀÅzÀÄ D PÁgÀtPÁÌV ªÀÄ£À¸ÁÛ¥À EvÀÄÛ J£ÀÄߪÀÅzÀÄ ¸Àj C®è.”

The English translation of the above statement made in Kannada language is:

“It is not true to suggest that I wanted to again reside in a house of joint family and as such, there was a dispute.”

By making said suggestion, the wife has admitted that her husband was willing to go back to his joint family and it was because of that, there was dispute, shall go to show that respondent – wife does not wanted to stay in joint family along with parents of her husband. PW1 in his cross-examination has also stated as below:

Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy “E£ÉÆßAzÀÄ ¥ÀAZÁAiÀÄwAiÀÄ°è £ÀªÀÄä PÀÄlÄA§zÀªg À ÀÄ ªÀÄvÀÄÛ £À£Àß ºÉAqÀwAiÀÄ PÀÄlÄA§zÀªg À ÀÄ ªÀiÁvÀæ ¸ÉÃjzÉÝêÀÅ.

¥ÀAZÁAiÀÄwAiÀÄ°è ¥ÀÄ£À: £Á£ÀÄ ¨ÉÃgÉ ªÀÄ£É ªÀiÁr EgÀĪÀAvÉ vÀAzÉ vÁ¬Ä ªÀÄ£ÉUÉ ºÉÆÃUÀzA À vÉ ºÉýzÀÝgÀÄ. £Á£ÀÄ EzÀPÉÌ M¦àUÉ PÉÆnÖzÉÝ. ¥ÀAZÁAiÀÄwAiÀÄ wêÀiÁð£ÀzA À vÉ £Á£ÀÄ DUÀ ¨ÉÃgÉ ªÀÄ£É ªÀiÁrgÀ°®è.”

The English translation of the above statement made in Kannada language is:

“In another Panchayat, only the members of our family and the family of my wife had assembled. In the said Panchayat, I was told to make a separate house and to stay, but not to go to my parents’ house. I had agreed for the same. Despite the decision of the panchayat, I had not established a separate house.”

The above statement of the witness that in a panchayat, wherein the families of the petitioner and respondent were there, a suggestion was made to him to establish a separate residence, also goes to show that Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy the intention of the respondent – wife was to ensure that her husband lives separately from his parents and that she was successful once in such an attempt also.

In this regard, a decision of our Hon’ble Apex Court in Narendra Vs. K. Meena in Civil Appeal No.3253/2008, dated 06.10.2016, which decision was relied upon by the learned counsel for the respondent, is noteworthy. In the said case also, the Hon’ble Apex Court in its judgment at paragraph 11 was pleased to observe that the respondent – wife wanted the appellant to get separated from his family. It is not a common practice or desirable culture for a Hindu son in India to get separated from parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. After discussing the said aspect elaborately, the Hon’ble Apex Court was pleased to observe that the persistent effort Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy of the respondent – wife to constrain the appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes Act of cruelty.

14. In the instant case also, as observed above, it is established that the respondent – wife was constantly pestering her husband to establish a separate residence away from her in-laws and once was succeeded in her effort. Even in a subsequent panchayat also, a suggestion was made to petitioner- husband to establish a separate house once again. Undisputedly, the petitioner – husband was residing with his parents and was continuing his business. By virtue of the judgment of the Hon’ble Apex Court in the above said Narendra’s case (supra), the act of the respondent Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy

– wife in compelling her husband to stay away from his parents amounts to cruelty.

Therefore, the finding of the Court below that the petitioner therein had established the practice of mental cruelty against him by respondent – wife does not call for any interference at the hands of this Court.

15. The second ground upon which relief of dissolution of marriage was granted was on the point of alleged desertion of petitioner by respondent – wife. According to the petitioner, the respondent has deserted him since the year 2001 for no valid reasons. Both in his examination-in-chief as PW1 and in his cross- examination, he has maintained the same stand and reiterated that his wife is staying with her parents. No doubt, he admitted a suggestion as true that he has not filed any application in the Court seeking reunification (restitution of conjugal rights). However, he maintained Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy that he had requested orally his wife to come back and join him, but not sent any notice in that regard.

The respondent as RW1 in her examination-in- chief, though has stated that she was assaulted by her husband, his father, his brothers and sisters and that she was driven out from her matrimonial home on 16.07.2006, but in her cross-examination, she has stated that in the middle of the year 2001, she went to her parents’ house and that up to the year 2006, she continued to stay in her parents’ house. If that being the case, when she was in her mother’s house, away from her husband for five years or more from 2001 to 2006, how come she was thrown out from her matrimonial home in the year 2006 was not explained by her. She has further stated in her cross-examination that, in the year 2007 till the year 2011, she was working in a school at Yemmiganur. Admittedly, the said Yemmiganur, is not the place of residence of her Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy husband, which clearly go to show that from the year 2001 till the year 2011, i.e., even after filing of M.C.No.24/2009(later re-numbered as 42/2009), by the petitioner – husband in the Court below, she was residing separately and away from her husband. Admittedly she also did not file any cross-objection seeking Restitution of Conjugal Rights. Though earlier panchayats were made and once in the year 2001, in the month of May – June, they were reunited and for a short period lived together in a separate house, still even according to RW1, she left the company of her husband in the middle of the year 2001 and thereafter, constantly remained away from her husband. This aspect has been elicited in the cross-examination of RW1.

16. In Durga Prasanna Tripathy Vs. Arundhati Tripathy reported in (2005) 7 SCC 353, in Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy an appeal with respect to divorce under Section 13(1) (i-a) and (i-b) of the Hindu Marriage Act, 1955, observing that both husband and wife were living separately for almost 14 years and endure to effect reconciliation between them failed due to insistence of the wife to remain separate from her in-laws, the Hon’ble Apex Court has observed that there is no possibility of resuming a normal marital life as the marriage has irretrievably broken down, as such, the Family Court was justified in granting divorce.

17. “Desertion” for the purpose of seeking divorce under the Act, means intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. Thus, it is a total repudiation of the obligation of marriage. Though it is very difficult to define as to what is a desertion, but the essence of the desertion is Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy forsaking and abandonment of one spouse by the other without reasonable cause. Though a mere withdrawal by a party to the marriage from a place need not constitute a desertion and intentional abandonment of one spouse is necessary, the said intention can be gathered from the circumstance of the case.

18. In the instant case, as already observed above, despite holding of more than one panchayat, the respondent-wife did not reside with her husband. After an unsuccessful attempt of living together in a separate house, still she wanted her husband to establish a separate house away from his parents. When it was found that the same was not possible, she not only continued to stay with her parents with whom she was already staying for more than five years, i.e., from the year 2001-06, but also she joined an employment in a school at Yemmiganur, where she worked from the year Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy 2007-11, thus making her intention clear that she is forsaking and abandoning her spouse permanently. Thus, no fault could be found in the Court below granting decree of divorce and dissolving the marriage of the parties before it, under Section 13(1) (i-a) and (i-b) of the Act.

19. The petition filed in the Court below by the petitioner was only under Section 13 of the Act, seeking dissolution of his marriage with the respondent therein. During the pendency of the petition, at the application of the respondent-wife filed under Section 24 of the Act, the Court below was pleased to award maintenance at `4,000/- per month to the respondent-wife and at `3,000/- per month to their minor son, payable by the petitioner-husband.

During the course of the argument in this appeal, learned counsel for the appellant herein, who is Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy representing the respondent-wife, made a submission that in case this Court comes to a conclusion of confirming the decree of divorce passed by the Court below, then this Court be pleased to order for permanent alimony in favour of the wife and the minor son. The learned counsel appearing for the respondent herein, who is the petitioner-husband in the Court below, submitted his no objection to consider the oral application of the respondent-wife for permanent alimony. Thus, on the point of permanent alimony, submissions from both sides was heard.

20. Section 25 of the Act deals with permanent alimony and maintenance. The said Section reads as below:

“25. Permanent alimony and maintenance.- (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purposes by either the Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3) If the Court is satisfied that the party in whose favour an order has been made under this Section has re-married or, if such party is the wife, that she has not remained chaste or if such party is the husband, that he has had sexual intercourse with any woman Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.”

Though the above section speaks about an application to be made seeking permanent alimony, but reading of the said Section in its entirety does not make the said application mandatorily to be in writing. In a similar situation, in the case of Sadanand Sahadeo Rawool Vs. Sulochana Sadanand Rawool reported in AIR 1989 BOMBAY 220, the learned Single Judge of the Bombay High Court was pleased to observe that an application under Section 25 of the Act need not necessarily be in writing and that it can be oral also.

In the instant case, admittedly, the learned counsel for the petitioner-husband, since has submitted his no objection to consider the oral application made Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy from wife’s side seeking permanent alimony, we do not find any hindrance in considering the said request.

21. In Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga reported in (2005) 2 SCC 33, the Hon’ble Supreme Court in para 18 of its judgment was pleased to observe as below:

“The expression used in the opening part of Section 25 enabling the “court exercising jurisdiction under the Act” ” at the time of passing any decree or at any time subsequent thereto” to grant alimony or maintenance cannot be restricted only to decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as “at the time of passing of any decree”, it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13.”

Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy With the said observation, the Hon’ble Apex Court was pleased to hold that in the case before it, even though the marriage was held null and void underSection 11 of the Act, the High Court had rightly granted maintenance to the wife and her daughter, to be paid by the husband.

22. Therefore, in the present case, where a decree for dissolution of marriage is granted, there is no bar in awarding permanent alimony and maintenance. However, while granting the permanent alimony, the income and other properties of the applicant, the respondent’s own income and other properties, the conduct of the parties and other circumstances of the case, are required to be considered. According to the respondent-wife, presently she is not employed anywhere. As such, she has no source of income to maintain herself and her son. It is not in dispute that Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy the said son was born out of the wedlock of the parties to this appeal. The evidence of respondent – wife that the said son was born to them on 18.10.2000 is also not disputed by the petitioner-husband. Therefore, as on the date of institution of the matrimonial case, originally in the year 2009, the said boy was only completed 8 years. RW1- wife in her examination-in-chief has stated that her husband and his family members are living jointly and are getting an income of `25 lakhs per year. She has also stated that in addition to TV dealership and other business, which are flourishing in Bellary city, her husband and his family members own substantial agricultural lands at Chellur village at Bellary District. The said statements were not specifically denied in the cross-examination of RW1. On the other hand, the petitioner – husband as PW1, in his cross-examination has stated that he works in a TV repairing shop. However, he stated that his family owns seven acres of Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy land in Chellur village, which property stands in the name of his father. In his further cross-examination, the very same witness has further stated that he has got a partnership in M/s. Benjuman Pal and Sons Company, which deals in Television and DVD sets. Even though the learned counsel for the petitioner – husband in his submission has stated that the petitioner was not economically sound, as such not capable of paying a good some as permanent alimony, but the fact that the petitioner – husband is a partner in a company, which deals with the Television and DVD sets and that his family owns agricultural lands remains un-controverted. It can further be noticed that the interim maintenance granted by the Court below in favour of the wife and her son at the rate of `4,000/- + `3,000/- = `7,000/- per month in total is said to be being paid by the petitioner

– husband. As such, he is capable of affording a reasonable maintenance to his wife and the son. Even Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy otherwise also, being a husband, it is his duty to maintain his non-earning wife and minor son.

23. There is no formula prescribed under the statute for computation of permanent alimony and maintenance. However, as observed above, the facts and circumstances of the case and earning of the spouse, all have to be considered. In a motor vehicle accident claim petition, there is a method of computation of compensation by applying the multiplier, considering the age of the injured or the deceased and the same to be multiplied with the income of the injured deceased. The said formula cannot be applied in the case of calculation of permanent alimony. However, considering the age of the respondent – wife, which is said to be 32 as on the date of institution of the suit and the application filed by the wife under Section 24 of the Act in the Court below (I.A.2), objection filed by the Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy husband to it and also the order passed by the Court below on the said I.A., under which it awarded the maintenance at the rate of `4,000/- + `3,000/- per month to the wife and minor son respectively, we are of the view that directing the petitioner – husband to pay a permanent alimony of `10 lakhs to the respondent – wife would be just and appropriate in the facts and circumstances of the case. At the same time, considering the age, educational requirement and other necessities of their son, awarding the maintenance at the rate of `5,000/- per month payable by the petitioner

– husband to his minor son appears to be just and proper.

24. For the above reasons, we do not find any merit in allowing this appeal. However, an order regarding permanent alimony and maintenance is required to be made.

Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy

25. Accordingly, we answer this point partly in the affirmative and proceed to pass the following order:

ORDER The appeal is partly allowed.

The prayer of the appellant to set aside the judgment and decree dated 19.12.2013 passed by the Principal Judge, Family Court, Bellary in M.C.No.42/2013 is rejected.

However, the second prayer of the appellant to pass such other order as this Court deems fit, is allowed. The respondent herein is directed to pay permanent alimony of `10,00,000 (Rupees Ten Lakhs Only) to the appellant wife as permanent alimony under Section 25 of the Hindu Marriage Act, within three months from today.

The respondent husband shall deposit the said amount in the Family Court, which shall release the said Date of Judgment 19.04.2017 MFA No.100682/2014(FC) Savithri W/o. S.Ravindra Reddy Vs.

S. Ravindra Reddy amount to the present appellant-wife (respondent therein), on her application and in accordance with law.

The respondent – husband shall also continue to pay the maintenance at the rate of `5,000/- per month from the date of this order to his son S. R. Kumar, till he attains the age of majority, in whose favour maintenance under Section 24 of the Hindu Marriage Act, 1955, was passed by the Court below in his order dated 04.11.2011, in MC No.24/2009. There is no order as to costs.

Office to transmit a copy of this judgment to the Court below along with its records forthwith.

Sd/-

JUDGE Sd/-

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