Gist
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* Marriage 11.06.1997
* 2 kids out of wedlock; One on 23.05.1998 and another on 19.04.2007
* Husband is a doctor
* Husband was working in prestigious hospitals in Bombay for approx 4 years
* Hubby claims he was forced to move to Bangalore due to wife's compulsion, moved circa 2001
* Finanlly couple part circa 2007 ~ 2008
* Wife claims she was assaulted by the petitioner and his parents on the night of 17.03.2008.
* Wife files 498a etc !!
* Wife has Domestic Violence case claiming maintenance of Rs.40,000/- p.m. !!!
* Husband files divorce and wins at Family court by order dated 17.03.2012, u/ Section 13(1)(ia) of Hindu Marriage Act, 1955 (cruelty)
* Husband alleges cruelty and also illicit relations by wife.
* Matter goes to HC
* Hc says,
(a) husband has NOT proven wife's infidelity sufficiently and
(b) Husband has NOT proven wife's cruelty and ill treatment by examining witnesses
and
(C) why did he have 2 kids with this wife and that too the second kid just one year before the split ??
* Hubby's DIVORCE IS SET ASIDE !!
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*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF AUGUST, 2014
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
M.F.A. NO.9974/2012 (FC)
BETWEEN:
SMT K RADHA
W/O. C ASHOK
D/O KOLLI NAGESHWARA RAO
AGED ABOUT 34 YEARS
SAROJNAGAR, VIVEKANANDA COLONY
GANGAVATHI-583227
KOPPAL DISTRICT. ... APPELLANT
(BY MS.R. AISHWARYA, ADV. FOR
SRI. P.N. RAJESWARA, ADV.)
AND:
SRI C ASHOK
S/O C SUBBARAYADU
AGED ABOUT 44 YEARS
R/AT NO 5, 2ND CROSS
ABBAIAH REDDY LAYOUT
KAGGADASAPURA
BANGALORE 560 093 ... RESPONDENT
(BY SRI M.R. NANJUNDA GOWDA, &
SRI. JANARDHANA G. ADVS)
THIS MFA FILED U/S 19(1) OF THE FAMILY COURTS ACT, R/W SEC.28 OF THE HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED:17.03.2012 PASSED IN M.C.NO.1968/2008 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, ALLOWING THE PETITION FILED U/S 13(1)(ia) OF HINDU MARRIAGE ACT, AND REJECTING THE PETITION FILED U/S 13(1)(i) OF HINDU MARRIAGE ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, A.V.CHANDRASHEKARA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed under Section 19(1) of the Family Courts Act, 1984, read with Section 28 of the Hindu Marriage Act, 1955, challenging the decree of divorce passed by the learned II Addl. Prl. Judge, Family Court at Bangalore, in M.C.No.1968/2008. The appellant herein is the respondent in the said case and the respondent in the said case is the petitioner in M.C.No.1968/2008. Parties will be referred to as petitioner and respondent as per their ranking given in the Trial Court.
2. Petitioner is the husband of the respondent and their marriage was solemnized according to Hindu customs on 11.06.1997 in Gangavathi town of Koppal District. After their marriage, both of them started living in Mumbai, since the petitioner was working as a Doctor in Jaslok Hospital. They lived there for four years during which time, the petitioner worked as a Doctor in Leelavathi Hospital, Mumbai also. According to the petitioner, he had to come and settle in Bangalore, due to the pressure of his wife. It is his case that the respondent was teasing him on the ground that the income earned by him was very meager and that he could not fulfill her needs. According to him, the respondent was ill-treating his parents at Mumbai and at times, she used to send them back to their native place. After coming over to Bangalore, he secured a house on rent at Kaggadasapura, Bangalore, and this was not to the liking of his wife, since she wanted a posh bungalow in a posh area. The petitioner could not meet her requirements and in this regard, she was abusing him every now and then. It is his case that she used to ill-treat him in the presence of his friends and guests and thus she was ill-treating him with cruelty. The respondent is stated to have filed a case which was registered in Crime No.71/2008 for the offences punishable under Section 498-A of IPC and she had even filed a private complaint in PCR No.42/2008 on the file of JMFC, Anekal. She had filed a case under the relevant provisions of Protection of Women from Domestic Violence Act, claiming maintenance of Rs.40,000/- p.m. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
3. The respondent left the matrimonial home threatening that she would put him and his parents behind the bars. According to the petitioner, she is living in adultery and that on 20.04.2002 at about 2.00 p.m. he noticed a man coming out of his house and when he entered his house, he found that the respondent was not properly dressed and on questioning her about the person who left the house, she did not give any proper answer.
4. The respondent has filed detailed objections admitting the relationship but has denied all the allegations made against her in regard to cruelty and adultery. On the other hand, it is her allegation that the petitioner himself had illicit contact with a Receptionist in the Hospital at Mumbai and on questioning about the same, he had threatened her with dire consequences. It is her case that she was not allowed to attend any ceremonies or functions in the house of her parents and thus she was totally restrained from going to her parents house.
5. According to her, the petitioner had treated her with cruelty and coerced her to bring dowry from her parents house. She was assaulted by the petitioner and his parents on the night of 17.03.2008.
6. With these pleadings, she had requested the learned Judge to dismiss the petition. The petitioner has himself examined as PW1 and has got marked 27 exhibits. Respondent is examined as RW1 and her evidence is eschewed from consideration, since she did not subject herself to cross-examination.
7. After hearing the arguments, the learned Judge has allowed the petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, and thereby the marriage of the petitioner solemnized with the respondent has stood dissolved by the decree of divorce. The relief sought for the decree of divorce on the ground of adultery under Section 13(1)(i) of Hindu Marriage Act, is rejected.
8. The respondent-wife is aggrieved by the said judgment dated 17.03.2012. Hence, the present petition is filed challenging the same on various grounds as set out in the appeal memo.
9. Learned counsel appearing for the parties have submitted their arguments at length.
10. It is argued by the learned counsel for the appellant-wife that the Trial Court has not properly analysed the oral and documentary evidence in right perspective and that it has adopted wrong approach to the real state of affairs. It is argued that the petitioner has made a serious allegation imputing her chastity and that the petitioner has thoroughly failed to prove the same. It is argued that the very fact of making wild allegations touching her chastity and consequential inability to prove the same would be a good ground to reject the petition filed for divorce even under section 13(1)(ia) of Hindu Marriage Act. It is argued that the initial burden cast upon the petitioner has not been effectively discharged and the onus does not shift on the other side.
11. Learned counsel for the petitioner-husband has supported the impugned judgment. He has relied upon the following decisions in support of the case put forth by the husband:
1. AIR 2002 Supreme Court 2582 Praveen Mehta vs Inderjit Mehta
2. AIR 2012 Supreme Court 2586 Vishwanath Sitaram Agrawal vs Sarla Vishwanath Agrawal
3. (2007) 4 Supreme Court Cases 511 Samar Ghosh vs Jaya Ghosh
12. After going through the records and hearing the arguments, the following points arise for our consideration:
1. Whether the Trial Court is justified in granting the decree of divorce under Section 13(1)(ia) of Hindu Marriage Act, 1955, on the ground of cruelty, inspite of the husband's inability to prove the serious allegation of adultery imputed to his wife-the appellant herein?
2. Whether any interference is called for by this Court and if so, to what extent?
Re.Point No.1:
13. 'Cruelty' as contemplated under Section 13 of Hindu Marriage Act, 1955 is not defined. In the case of V.Bhagat Vs. Mrs.D.Bhagat reported in AIR 1994 SC 710, the Hon'ble Supreme Court has held that cruelty includes mental cruelty. In the affidavit filed in lieu of examination-in-chief, the petitioner has reiterated the contents of the petition. In paragraphs-6 and 7, a serious averment is made in regard to the cruelty stated to have been meted out by his wife to him and his parents. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
14. What is argued before this Court is that he had to shift his residence from Mumbai to Bangalore on the pressure of his wife-the appellant herein and that she was pressurizing him to have a posh house in a posh locality at Bangalore and according to him, the house taken on rent by him at Kaggadasara, Bangalore was not to the liking of his wife and therefore, she started insisting him to move out to a bigger house. It is his case that in the presence of his friends and guests she used to humiliate him. According to him, she was taunting him many a times and she was in the habit of breaking her bangles and squeeze her neck by herself and hit her head to the wall, so that the guests and his friends should go out of the house. This, according to him was cruelty meted out to him and this is stated to be the mental cruelty. He has not examined anybody on his behalf to prove these allegations. The best persons would have been his parents. They could have come and deposed before the Court about the alleged humiliation meted out to them while the petitioner and the respondent were living in Mumbai.
15. Petitioner could have atleast examined one of his friends or relatives in whose presence she had humiliated him. These averments found in paragraphs 6 and 7 have virtually remained as averments without being substantiated in any manner. Though the concept of proof beyond reasonable doubt as insisted in criminal cases is not the requirement in matrimonial cases, atleast the allegations made in this petition need to be proved on the basis of broad preponderance of probabilities. Unless the initial burden cast upon him under Section of 101 of Evidence Act is effectively discharged, the onus does not shift on the other side.
16. What is argued before this Court is that the learned counsel for the respondent-wife has not cross- examined PW1 on material aspects and therefore his allegations made in the affidavit filed in lieu of chief have remained uncontroverted.
17. Learned counsel for the respondent has relied upon a decision reported in 2002 AIR 2582 in the case of Praveen Mehta Vs. Inderjit Mehta to contend that inference regarding mental cruelty which is a state of mind and feeling, has to be drawn on facts and circumstances taken cumulatively. In paragraph-21 of the said decision, it is held as follows:
21. Cruelty for the purpose of S. 13(1)(ia) is to be taken as a behaviour by one spouse towards the other which causes 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. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in a divorce petition has been subjected to mental cruelty due to conduct of the other.
18. In the present case, two children are born out of the wedlock. Both of them are female children. One was born on 23.05.1998 and another was born on 19.04.2007 i.e., the year prior to the filing of the petition for divorce by the husband. This would speak in volumes against the very petitioner-husband in regard to the allegations made against his wife. If his wife was really causing trouble to him as alleged in his petition, she would not have co-habitated with him and would not have allowed him access.
19. The very fact that two children are born to the respondent Smt.Radha with a gap of nine years would go to show that though there were differences between the two, the differences were not of such magnitude to term it as 'mental cruelty'. It is in this regard, the facts of each case will have to be looked into before coming to the conclusion as to whether the acts alleged cruelty do really come within the purview of 'mental cruelty'. Hence, the said decision is not helpful to the case of the petitioner-husband.
20. Another decision reported in AIR 2012 Supreme Court 2586 in the case of Vishwanath Sitaram Agrawal vs Sarla Vishwanath Agrawal has been relied upon to contend that cruelty alleged would largely depend upon the type of life the parties are accustomed to or their economic and social conditions. Admittedly, the petitioner-husband is a Doctor by profession and his wife comes from an affluent family. We cannot forget the reality that she was brought up by her parents with all care and love providing all the material comforts. While dealing with the concept of mental cruelty, according to the decision, in Vishwanath Sitaram Agrawal's case, enquiry must begin as to the nature of cruel treatment and the impact of such treatment in the mind of the spouse. It has to be seen as to whether the conduct is such that no reasonable person would tolerate it. In regard to the decision of reported in AIR 2002 SC 2582 has been referred to in Vishwanath Sitaram Agrawal's case mentioned above. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
21. Here is a petitioner-husband who has made wild allegations against his wife imputing her chastity. He has specifically averred in paragraph-9 of his petition that she had developed some illicit intimacy with another male member and living in adultery. It is his case that he had advised her to stop such by acts and maintain good relationship. She is stated to have ignored his advise. It is his case that on 20.04.2002 at about 2.00 p.m. he came to his house from the clinic and opened the gate and found that a male member came out of his house and rushed towards the terrace and that he saw his wife in a bad position with her clothes scattered and not properly dressed. Serious allegations imputing chastity of his own wife needs to be proved with a higher degree of proof. It has remained only as an allegation without being substantiated.
22. When such serious allegations imputing the chastity of a woman is made, that itself amounts to cruelty. Such an imputation can be definitely called as a mental cruelty if it is not substantiated in any manner. The learned Judge of the Trial Court has lost sight of this serious aspect while dealing with the aspect of mental cruelty allegedly meted out by this appellant. The learned Judge has rightly refused to grant the decree on the ground of adultery being not proved. But the learned Judge has failed to take into consideration the effect of such a serious allegation being made without substantiating the same in any manner.
23. As already discussed earlier, the differences that the husband and wife had were normal wear and tear in a family. It appears that itself has been blown out of proportion to make a ground for obtaining a divorce.
24. In fact in Vishwanath Sitaram Agrawal's case reported in AIR 2012 SC 2586, the facts had disclosed that the wife had made serious allegation against her husband that he had illicit relationship with another woman and that allegation was made on the basis of a newspaper publication and some cryptic evidence. Even in the application filed by her seeking maintenance, she had alleged that her husband was a drunkard and a womanizer. In Vishwanath Agrawal's case, it is specifically held that making such allegations are bound to create mental agony.
25. Learned counsel for the petitioner-husband has relied upon a decision reported in (2007) 4 SCC 511 in the case of Samar Ghosh Vs. Jaya Ghosh. As per the facts of the said case, domestic servant was a natural witness to speak about the cruelty meted out by one spouse to the other. As per the facts of the said case, the wife had humiliated her husband to such an extent that his father was forced to leave the matrimonial home for good. The petitioner herein has not made any such attempt to prove the allegation of cruelty though he has alleged that she used to break her bangles and force her head against the wall and humiliate him in the presence of his guests and relatives.
26. Learned counsel for the petitioner-husband has argued that the petitioner had to leave Sarala Birla Academy because of the nuisance created by her. He has relied upon Ex.P4 a letter issued to him by the Principal of that Academy. It is mentioned in the said letter marked as Ex.P4 that due to domestic problems, a nuisance was created within the campus and that was absolutely unacceptable in a residential school set up. Nothing is forthcoming as to what was the nuisance caused in the campus. It does not speak anything about his wife going to his School and creating a nuisance. This is a letter dated 27.03.2008 obtained three months prior to the filing of the petition.
27. Suffice to state that the learned Judge has adopted a wrong approach to the real state of affairs and has not taken into consideration the serious allegation of adultery imputed to his wife without substantiating the same even remotely. Just because the wife's counsel has not cross-examined the petitioner on some material aspects, it cannot be said that petitioner has been able to probablise all the allegations. The allegations of mental cruelty without specific reference to instances have not been established at least on the basis of broad preponderance of probabilities.
28. Learned counsel for the petitioner-husband argued that the respondent has made wild allegations in her written objections imputing the chastity of her husband. In the written objections, wife has averred that the petitioner had illicit contact with a Receptionist in the Hospital at Mumbai and on questioning him about the same, he had threatened her with dire consequences. It is true that an allegation imputing his chastity is found in her written objections, but she has not chosen to pursue the same in her evidence.
29. On the other hand, the petitioner-husband has not only made serious allegation against his own wife imputing her chastity on the ground that she had adulterous life, he has even pursued the same in his oral evidence. This amounts to clear case of causing mental cruelty to his wife. In this view of the matter, the Trial Court is not justified in granting the decree of divorce on the ground of cruelty. Hence, Point No.1 is answered in the negative.
30. In view of negative finding on Point No.1, appeal will have to be allowed and the decree of divorce will have to be set aside.
ORDER Accordingly, the appeal is allowed with costs. Consequently, the petition filed for divorce in M.C.No.1968/2008 on the file of Court of learned II Addl. Prl. Judge, Family Court at Bangalore, is dismissed. The order dissolving the marriage of the parties to this appeal is set aside.
Sd/-
JUDGE Sd/-
JUDGE JT/-
Ct/RH
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regards
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
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