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Sri Aditya R vs Smt P Rashmi W/O Aditya R on 20 December, 2018

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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. 8721/2012(FC)

BETWEEN:

SRI ADITYA R
S/O T R RAJAIAH
AGED ABOUT 32 YEARS
R/AT NO.261, 8TH MAIN
BCC LAYOUT
(CHANDRA LAYOUT)
VIJAYANAGAR
BANGALORE – 560079. ..APPELLANT

(BY SRI M T NANAIAH AND
SRI PRABHUGOUD B TUMBIGI, ADVS.)

AND:

SMT P RASHMI W/O ADITYA R
D/O G PARAMESH
AGED ABOUT 26 YEARS
R/AT DABBASPET
OPP POLICE STATION
MADHUGIRI ROAD
NELAMANGALA TALUK
BANGALORE RURAL DISTRICT
BANGALORE

ALSO AT:
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SMT P RASHMI W/O ADITYA R
D/O G PARAMESH
AGED ABOUT 26 YEARS
R/AT C/O LAKSHMI NARASIMHA NILAYA
1ST FLOOR, 6TH MAIN, 4TH CROSS,
MUNICIPAL LAYOUT, S S PURAM
TUMKUR – 572101. .. RESPONDENT

(BY SMT HEMALATHA MAHISHI, ADV.)

THIS APPEAL IS FILED UNDER SECTION 19(1) OF
THE FAMILY COURTS ACT, AGAINST THE JUDGMENT
AND DECREE DATED 6.7.2012 PASSED IN
M.C.NO.3348/2009 ON THE FILE OF THE IV
ADDITIONAL FAMILY COURT, BANGALORE,
REJECTING THE PETITION FILED UNDER SECTION
13(1)(ia) OF HINDU MARRIAGE ACT.

THIS APPEAL HAVING BEEN HEARD AND
RESERVED ON 11.12.2018 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
BAJANTHRI J., DELIVERED THE FOLLOWING:

JUDGEMENT

The appellant/husband had presented Petition

under Section 13(1)(ia) of the Hindu Marriage Act, 1955

(hereinafter referred to as ‘the Act’ for short) on the file

of the Additional Prl. Judge, Family Court – IV,

Bangalore by order dated 06.07.2012 passed in

M.C.No.3348/2009. He had suffered judgment and

decree. Hence, the present appeal.

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2. Brief facts of the case are as follows:

Appellant and respondent’s marriage was

solemnized on 14.05.2008 at Nelamangala, Bengaluru.

After about 15 days from the date of marriage, on

account of ‘Ashadamasa’, respondent went to her

parents house. After completion of ‘áshadamasa’,

respondent did not turn out. Consequently, appellant

and his parents asked the respondent to return to

matrimonial home. In this background, elders and well

wishers of both the family members conveyed

panchayat, advised the respondent for which

respondent heeded to their advise and went back to

matrimonial home. Respondent was demanding

appellant to take her out every week end which was

responded by the appellant in taking her to various

places in and around Bengaluru like Nandi Hills,

Mysuru, Bannerghata, Devarayana Durga and various

temples with a view to impress and to adjust to the

appellant and matrimonial home. Respondent’s father

has taken undue advantage of the appellant’s nature
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that he is adjustable to any situation. Taking undue

advantage of the same, respondent’s father was visiting

appellant’s house frequently while poisoning the mind of

the respondent. Thus, respondent was demanding

unreasonable issues like leaving his parents and to

make a separate house, so that they could enjoy life.

When the appellant refused to such demands,

respondent’s father threatened the petitioner. In this

background, respondent became very adamant so also

very short-tempered. She was frequently visiting her

parents house without knowledge of the appellant so

also she was intimating the appellant over phone after

going to her parents house. When it was questioned by

the appellant, she was abusing in filthy language in

front of the family members, friends and relatives.

Respondent got Government job on 15.07.2008 as a

High school teacher. Thus, she was economically

independent and she was not bothered about the

appellant and his parents or in the house hold affairs.

That apart, appellant was only a diploma holder

whereas respondent was double graduate and she
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became Government employee. Once again, respondent

settled at her parents house in the guise of “Gowri

festival’ and stayed back for about 2 weeks. When it

was questioned by the appellant, she stated that she is

not interested to come to the matrimonial home and

she abused that she is not servant of the appellant and

she could not look after parents of the appellant. Thus,

there was strained relationship among the appellant

and respondent’s family. Once again, panchayat was

held on 10.08.2008 which was materialized.

Thereafter, on 15.10.2008 abruptly respondent took

away a big suitcase, when it was questioned it was told

by her that certain old books were being taken to her

parents house and she would be back after some time

as she had certain work in the University and so also

getting salary etc. Thereafter appellant noticed that

respondent had taken her belongings including clothes

and gold ornaments. Appellant tried to contact her and

her mobile was switched off. In fact, he had contacted

on number of occasions, there was no response.

Appellant, approached her parents to send her to
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matrimonial home for which her parents abused the

appellant in filthy language. It was also alleged that

during the stay of the respondent, she has even

deprived of physical contact with the appellant. These

are all the issues by which appellant has sustained

mental agony and cruelty at the hands of the

respondent. Respondent had denied all these

allegations including allegation stated in the notice.

Appellant was compelled to file the petition under

Section 13(1)(i-a) of the Act.

3. Family Court has framed following points for

consideration:

(1) Whether the petitioner proves that he
has sustained cruelty in the hands of
respondent?

(2) Whether respondent proves that without
any valid reason, petitioner has withdrawn
from the society of her?

(3) What Order?

4. The Family Court considered the evidence of

PW1 – appellant and PW2 – Premalatha, Ex.P.1 –
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marriage invitation card and on behalf respondent –

RW1 – wife of appellant. No document is produced on

her behalf. Family Court proceeded to consider the

allegations and counter allegations made by the

appellant and respondent. In terms of various decisions

quoted in para.14 and 15 of the Judgment, Family

Court has come to the conclusion that appellant had

not made out a case of cruelty so as to grant relief

under Section 13(1)(i-a) of the Act and rejected the

petition. During trial, respondent has made

allegations against the appellant that mother of the

appellant was demanding car or Rs.5.00 lakhs in cash.

At the outset, contention of the appellant and

respondent are that they are blaming each other’s

parents like respondent blaming appellant’s mother and

appellant blaming respondent’s father. Having regard

to the facts and circumstances, Family Court has come

to the conclusion that there is no misunderstanding

among appellant and respondent. Accordingly, petition

filed by the appellant under Section 13(1)(i-a) of the Act
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is rejected while allowing the counter claim of the

respondent/wife.

5. Learned counsel for the appellant

vehemently contended that having regard to the fact

that respondent left matrimonial home on 2 occasions

on the pretext that she would be going to her parents

house on occasion of ‘ashadamasa’ and ‘Gowri Festival’,

thereafter, she did not turn out, whereby appellant was

compelled to convey panchayat for her return to

matrimonial home. Even though it was materialized at

the same time, such incidents was repeatedly

happening which proves that respondent has deserted

appellant. She had inferior complexity with reference

to she being a double graduate and appellant a diploma

holder. She is a Government employee. In this

background, appellant was being ill treated so also his

parents as is evident from the dates and events.

Moreover, she became short tempered and was very

adamant in insisting to have a separate house and not

to stay with the appellant’s parents.
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6. On the other hand, learned counsel for the

respondent contended that appellant was poisoned by

his mother. She was very much possessive of the

appellant. Appellant was acting on the behest of his

mother while harassing the respondent. Mother of the

appellant was prohibiting respondent to prosecute

higher studies. In fact, appellant’s mother was not

happy that respondent had a Government job with

higher qualification etc. In other words, mother of the

appellant was ill treating respondent. She demanded a

car or Rs.5.00 lakh cash and on 12.10.2008 while

stipulating within 3 days, she has to fulfill the demand

of appellant’s mother otherwise, respondent would be

thrown out of the matrimonial home. Having regard to

these facts and circumstances, respondent’s counsel

submitted that there is no error committed by the

Family Court in rejecting the appellant’s petition for

divorce. Hence, the present appeal is liable to be

rejected.

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7. Heard learned counsel for the parties.

8. From the perusal of the judgment of the

Family Court it is evident that on behalf of the appellant

he has examined himself on his own behalf as PW1 and

PW 2 – Premalatha further, relying on Ex.P.1 – marriage

invitation card. Whereas on behalf of the respondent –

RW1 – P.Rashmi wife of the appellant is examined but

no document has been furnished. Having regard to the

evidence of PW1, pW2 and RW1, it is only allegations

and counter allegations that are made from the date of

marriage till filing of the petition. None of the parties

have produced any material in respect of allegations

and counter allegations. In other words, allegations are

self serving statement and not supported by any

corroborative evidence. Neither of the parties have

adduced evidence to corroborate allegations. In fact,

allegations on behalf of both the appellant and

respondent is with reference to each one’s in-laws like

appellant blaming respondent’s father read with

respondent’s attitude. At the same time, respondent
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was blaming appellant’s mother. Nowhere respondent

has blamed appellant except to the extent that he was

listening to his mother’s words. No-doubt it is not a

case for divorce as held by the Family Court at the same

time one has to examine the admitted fact that from

15.10.2008 till date both the appellant and respondent

have been residing separately. Therefore, one has to

draw inference that marriage has broken down

irretrievably.

9. Parties were present when the matter was

taken up for arguments. We have made every effort

asking the parties to settle among themselves and in not

pursuing the divorce petition. No-doubt, respondent –

wife of the appellant was willing to join her husband at

his house. However, appellant/husband submitted that

they are living separately from 15.10.2008. It is highly

improbable to rejoin her and live together at this

distance of time. The Hon’ble Supreme Court in the

case of GURUBUX SINGH vs HARMINDER KAUR

reported in 2010(14) SCC 301 in para 12 laid down
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certain principles as to under what circumstances,

cruelty could be taken into consideration for the

purpose of divorce, at para.12 it is held as under:

12. In Samar Ghosh vs. Jaya Ghosh,
(2007) 4 SCC 511, a three-Judge Bench of
this Court while considering Section 13(1)(i-

a) of the Act laid down certain guidelines.
The analysis and ultimate conclusion are
relevant which reads as under:-

98. On proper analysis and scrutiny of
the judgments of this Court and other
courts, we have come to the definite
conclusion that there cannot be any
comprehensive definition of the concept of
“mental cruelty” within which all kinds of
cases of mental cruelty can be covered. No
court in our considered view should even
attempt to give a comprehensive definition of
mental cruelty.

99. 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 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.

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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 while
taking aforementioned factors in
consideration.

101. No uniform standard can ever be
laid down for guidance, yet we deem it
appropriate to enumerate some instances of
human behaviour which may be relevant in
dealing with the cases of “mental cruelty”.
The instances indicated in the succeeding
paragraphs are only illustrative and not
exhaustive:

(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.

(iii) Mere coldness or lack of affection
cannot amount to cruelty, frequent rudeness
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of language, petulance of manner,
indifference and neglect may reach such a
degree that it makes the married life for the
other spouse absolutely intolerable.

(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.

(v) A sustained course of abusive and
humiliating treatment calculated to torture,
discommode or render miserable life of the
spouse.

(vi) Sustained unjustifiable conduct
and behaviour of one spouse actually
affecting physical and mental health of the
other spouse. The treatment complained of
and the resultant danger or apprehension
must be very grave, substantial and weighty.

(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.

(viii) The conduct must be much more
than jealousy, selfishness, possessiveness,
which causes unhappiness and
dissatisfaction and emotional upset may not
be a ground for grant of divorce on the
ground of mental cruelty.

(ix) Mere trivial irritations, quarrels,
normal wear and tear of the married life
which happens in day-to-day life would not
be adequate for grant of divorce on the
ground of mental cruelty.

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(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 behaviour of a spouse, the wronged
party finds it extremely difficult to live with
the other party any longer, may amount to
mental cruelty.

(xi) If a husband submits himself for an
operation of sterilisation without medical
reasons and without the consent or
knowledge of his wife and similarly, if the
wife undergoes vasectomy or abortion
without medical reason or without the
consent or knowledge of her husband, such
an act of the spouse may lead to mental
cruelty.

(xii) Unilateral decision of refusal to
have intercourse for considerable period
without there being any physical incapacity
or valid reason may amount to mental
cruelty.

(xiii) Unilateral decision of either
husband or wife after marriage not to have
child from the marriage may amount to
cruelty.

(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
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parties. In such like situations, it may lead
to mental cruelty.

10. On perusal of sub-para (xiv), cruelty could

be determined if there is separation among couples for

longer period. In this case, undisputably appellant and

respondent are living separately from 15.10.2008. It is

almost more than a decade. Hon’ble Supreme Court

held that if couples are living separately for longer

duration, in that event one has to draw inference that

marriage has broken down irretrievably.

11. In view of these facts and circumstances,

Family Court has erred in not appreciating that

appellant and respondent are living separately for more

than decade and so also the version of the appellant

when a question was posed for him to rejoin his wife,

respondent in the open Court has expressed that it is

highly improbable to join her as they are living

separately since a decade.

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12. Accordingly, we pass the following:

ORDER

Petition filed by the appellant/husband under

Section 13(1)(i-a) of the Act is hereby allowed. the

judgment and decree of the Additional Prl. Judge,

Family Court – IV, Bengaluru in M.C.No.3348/2009

dated 06.07.2012 is set-aside. Marriage solemnized on

14.05.2008 between the appellant and respondent held

at Nelamangala, Bengaluru is dissolved. Appellant is

hereby directed to pay necessary permanent alimony to

the respondent within a period of three months from the

date of receipt of certified copy of this order. If any

dispute arises in respect of settlement of permanent

alimony, in that event, appellant or respondent are

hereby directed to revive the appeal only to the extent of

permanent alimony.

Sd/-

JUDGE

Sd/-

JUDGE
brn

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