The wife's extramarital conduct was held to constitute mental cruelty sufficient to dissolve the marriage. The Court confirmed the divorce decree and dismissed her appeal, with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
R
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2019
PRESENT
THE HON’BLE MR. JUSTICE P.B.BAJANTHRI AND
THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY
M.F.A.No.24990/2013 (MC)
BETWEEN:
KALPANA D/O NARAYAN NAIK, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, NOW C/O. SMT SHOBHA D NAIK, NEAR KEB OFFICE, PURALAKKI BENA, ANKOLA, DIST: UTTAR KANNADA. ... APPELLANT
(BY SRI.MRUTYUNJAYA TATA BANGI, ADVOCATE)
AND:
THIS MFA IS FILED U/S.28(1) OF THE HINDU MARRIAGE ACT 1955, AGAINST THE JUDGEMENT AND DECREE DATED:11.10.2013, PASSED IN MATRIMONIAL CASE NO.03/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUMTA, ITINERARY SITTING AT ANKOLA,
2
ALLOWING THE PETITION FILED U/SEC. 13(1)(i) OF THE HINDU MARRIAGE ACT 1955.
THIS APPEAL COMING ON FOR HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED ON 27.11.2019, THIS DAY, NATARAJ RANGASWAMY J., DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal is filed challenging
the order dated 11.10.2013 passed by the Senior Civil Judge, Kumta, itinerary sitting at Ankola, in M.C.No.3/2008.
3
the trial Court that he led a blissful married life with the respondent No.1 for a few days after the marriage and later the respondent No.1 used to quarrel with the petitioner at the ill advice of her mother. The respondent No.1 insisted that the petitioner should stay at her parents’ house and when petitioner refused to do so, she did not allow petitioner to cohabit with her and the status-quo continued for many days. Petitioner desired to lead a happy married life with the respondent No.1 and therefore he started to live in a rented house at Kumta from June, 1994. It is stated that when the petitioner was living with respondent No.1 at Kumta, she poured kerosene on the petitioner when he was sleeping and he escaped a major tragedy. The respondent No.1 was visiting her parents without information to the petitioner and since these acts of respondent No.1 continued unabated, the petitioner shifted to his village Belambar during March, 1997. Even at Belambar, respondent No.1 continued to ill-treat the
4
petitioner. It is stated that respondent No.1 used to take their children to the school at 8.30 a.m. and brought them back in the evening and in the meanwhile, she used to spend her time at her parents’ house. During the year 2005, respondent No.1 purchased a mobile phone bearing No.9448792793 and used to spend a lot of time speaking over the phone and when asked, she claimed that she was speaking to her sister’s children. The petitioner realized that respondent No.1 was talking to unknown persons during the late hours and at times continued the conversation in the washroom. The children of the petitioner confided with the petitioner that they would not go to school with respondent No.1 and they started hating respondent No.1. When the phone calls kept coming incessantly, the petitioner realized that respondent No.1 was talking to someone other than her relatives. On 05.10.2007 at about 10 p.m., when the petitioner went to sleep, respondent No.1 went out of the house and was found talking over the phone to some person in a seducing
5
manner. At about 11 p.m., respondent No.1 received another call which the petitioner attended and the person on the other side who was a male answered that it was a wrong number. After 10 minutes, again respondent No.1 received a call from the same number and the respondent No.1 disconnected the call saying that she would call the next day. On 06.10.2007 at about 8 p.m., the petitioner took the mobile phone of respondent No.1 and found that there were many calls coming to her phone. When the petitioner ascertained from the person who repeatedly called respondent No.1, the person identified himself as Ishwar Ira Harikantra (respondent No.2). In one of the calls, respondent No.2 disclosed to the petitioner that he wanted to speak to respondent No.1 and on the same day at about 8.45 p.m., a message was received on the mobile as “Good night darling, I love U”. When the petitioner questioned respondent No.1, she started quarrelling with him. The next day too, respondent No.2 called respondent No.1 many times. It was then that the children of the
6
petitioner told the petitioner that respondent No.1 was taking them to an ice-cream parlour along with an “uncle” by name Ishwar Ira Harikantra (respondent No.2) and the children also mentioned that in the parlour, respondent No.1 used to make them sit at a table and both the respondents would sit at another table and would hold hands, hug and kiss each other openly in the ice-cream parlour. The children also informed the petitioner that after leaving the children to the school, the respondents used to go to highway side in an autorickshaw. Respondent No.2 was working as a driver at Satishchandra and Company and some employees of the said company were also residing at Belambar where the petitioner was residing. The respondents used to meet at the house where the employees of the said company were residing.
7
brother and his wife had seen respondent No.1 visiting the
house of the employees of the said company. On 08.10.2007, the petitioner went to the school along with his son and respondent No.1 came with the daughter. At that time, respondent No.2 was present near the school and both the children identified respondent No.2 and showed him to the petitioner. When the petitioner confronted respondent No.2, he in the presence of the children admitted his illicit relationship with respondent No.1 since last two years. Respondent No.2 also disclosed to the petitioner that he had sexual intercourse with respondent No.1 and that they were continuing such act. Respondent No.2 also disclosed that respondent No.1 had an illicit affair with Narayan Halu Karvi of Belambar and told that after the death of Narayan Halu Karvi, respondent No.1 had contracted a relationship with respondent No.2.
8
of the respondent No.1 with the petitioner which caused him cruelty and felt that his life and lives of his children are not safe with respondent No.1.
she filed her objection denying the averments of the petition. She contended that the petitioner, his brother and his elder sister were not allowing respondent No.1 to mix
9
with the children and were trying to keep the children away from respondent No.1. She has also accused the petitioner of being a “suspicious” person and in all, accused the members of the family of the petitioner as being responsible for marring the marriage.
examined as PW-1 and an acquaintance of the petitioner and respondent No.1 as PW-2, a tempo conductor as PW-3 and two children as PWs-4 and 5. In the evidence of PW1, the petitioner has categorically disclosed what transpired post his marriage with respondent No.1 and he has stood his ground in the cross-examination. PW-2 is a lady who knew both petitioner and respondent No.1 and stated that she had seen respondent No.1 visiting the house of
10
respondent No.2. In the course of cross-examination, PW-2 has categorically stated that she has seen the respondents at the beach side and has also stated that respondent No.2 used to visit the house of the petitioner when the petitioner was not there. There is no reason as to why the evidence of this witness should not be believed. Likewise, a tempo conductor who was residing at Hanumatta of Ankola taluk had disclosed that he had seen the respondents holding hands and walking towards deserted places. In his crossexamination, he has also disclosed the amorous conduct of respondent No.1. The most important witnesses are the two children namely PWs-4 and 5. The trial Court before recording their statement conducted a voir dire and after being satisfied, the trial Court allowed their crossexamination. During the cross-examination, PWs-4 and 5 have narrated the way in which respondent No.1 was dealing with respondent No.2 and have also vividly described the lecherous conduct of the respondents in public. The son of the petitioner has stated as follows:
11
“ ¨É½UÉÎ 8-30 UÉ ªÀģɬÄAzÀ ºÉÆgÀlÄ ¨É½UÉÎ 9 UÀAmÉUÉ ±Á¯ÉUÉ §gÀÄwÛzÉݪÀÅ. ºÁUÉà £ÁªÀÅ ±Á¯ÉUÉ ºÉÆÃUÀÄwÛzÁÝUÀ F±ÀégÀ FgÁ ºÀjPÀAvÀæ EªÀgÀÄ §gÀÄwÛzÀÝgÀÄ. £À£Àß vÁ¬ÄAiÀÄÄ £ÀªÀÄä£ÀÄß ±Á¯ÉUÉ ©lÖ ªÉÄÃ¯É F±ÀégÀ ºÀjPÀAvÀæ EªÀgÉÆqÀ£É fæ£À°è ªÀÄvÀÄÛ jPÁëzÀ°è ºÉ滃 PÀqÉUÉ ºÉÆÃUÀÄwÛzÀÝgÀÄ ±Á¯ÉAiÀÄÄ ±À¤ªÁgÀzÀ ¢£À ªÀÄzsÁåºÀß 12-30 UÉ ªÀÄvÀÄÛ G½zÀ ¢£ÀUÀ¼À°è ¸ÀAeÉ 4 UÀAmÉ ©qÀÄwÛzÀÝgÀÄ. ±À¤ªÁgÀzÀ ¢£ÀUÀ¼À°è £À£Àß vÁ¬ÄAiÀÄÄ £À£ÀߣÀÄß £À£Àß vÀAVAiÀÄ£ÀÄß ºÉUÀqÉ PÉÆîØræAPÀì CAUÀrUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀÝgÀÄ. £ÀªÉÆäqÀ£É F±ÀégÀ ºÀjPÀAvÀæ ¸ÀºÀ: EgÀÄwÛzÀÝgÀÄ. £ÁªÀÅ C°è L¸ÀQæÃA w£ÀÄßwÛzÉݪÀÅ. L¸ÀQæÃA w£Àß®Ä £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß vÀAV MAzÀÄ §¢AiÀÄ°è ªÀÄvÀÄÛ £À£Àß vÁ¬Ä ºÁUÀÆ F±ÀégÀ E£ÉÆßAzÀÄ §¢AiÀÄ°è PÀĽvÀÄPÉƼÀÄîwÛzÀÝgÀÄ. L¸ÀQæÃA w£ÀÄߪÁUÀ £À£Àß vÁ¬Ä ºÁUÀÆ F±ÀégÀ ºÀjPÀAvÀæ L¸ÀQæÃA£ÀÄß M§âjUÉƧâgÀÄ w¤ß¸ÀÄwÛzÀÝgÀÄ ªÀÄvÀÄÛ ¥ÀgÀ¸ÀàgÀ PÁ®ÄUÀ¼À£ÀÄß vÁV¸ÀÄwÛzÀÝgÀÄ. ªÀÄvÀÄÛ ªÀÄÄvÀÄÛ PÉÆlÄÖ M§âjUÉƧâgÀÄ vÀ©âPÉƼÀÄîwÛzÀÝgÀÄ. EzÀ£ÀÄß £ÉÆÃqÀĪÁUÀ £À£ÀUÉ C¸ÀºÀå C¤¸ÀÄwÛvÀÄÛ. F «µÀAiÀĪÀ£ÀÄß £À£Àß vÀAzÉ ºÁUÀÆ CdÓ£À°è ºÉýgÀÄvÉÛãÉ.
£À£ÀUÉ £À£Àß vÁ¬ÄAiÉÆqÀ£É EgÀ®Ä EµÀÖ«®è. KPÉAzÀgÉ £À£ÀUÉ vÁ¬ÄAiÉÆqÀ£É EgÀ®Ä C¸ÀºÀåªÉ¤¸ÀÄvÀÛzÉ ªÀÄvÀÄÛ £À£Àß ¨sÀ«µÀå ºÁ¼ÁUÀÄvÀÛzÉ. £À£Àß vÁ¬Ä £ÀªÉÆäA¢UÉ §AzÀÄ G½zÀ°è £ÀªÀÄUÉ fêÀ£À ªÀiÁqÀ®Ä ¸ÁzsÀå«®è. £À£Àß vÁ¬ÄAiÀÄÄ £ÀªÀÄä£ÀÄß ¸Á¬Ä¸ÀÄvÁÛ¼É.
12
£À£Àß vÁ¬ÄAiÀÄÄ £ÀªÀÄä£ÀÄß ©lÄÖ ºÉÆÃV 5-6 ªÀµÀðUÀ¼ÀÄ DVgÀÄvÀÛzÉ. D PÁgÀt £ÀªÀÄUÉ vÁ¬ÄAiÀÄ ªÉÄÃ¯É PÉlÖ C©ü¥ÁæAiÀÄ §A¢zÉ CAzÀgÉ CzÀÄ ªÉÆzÀ°¤AzÀ®Æ EvÀÄÛ JAzÀÄ ºÉüÀÄvÁÛgÉ. ªÉÆzÀ°¤AzÀ®Æ £À£ÀUÉ vÁ¬ÄAiÀÄ ªÉÄðgÀĪÀ ¦æÃwVAvÀ®Æ vÀAzÉAiÀÄ ªÉÄÃ¯É eÁ¹Û ¦æÃw EvÀÄÛ CAzÀgÉ ¸Àj.
ªÀÄPÀ̼À ¥ÁvÀæªÀ£ÀÄß £ÉÆÃrzÁUÀ £À£ÀUÉ CAvÀºÀ ªÀÄPÀ̼ÀAvÉ DUÀ¨ÉÃPÀÄ JAzÀÄ C¤¹vÀÄÛ DzÀgÉ ¸ÁQëAiÀÄÄ £À£ÀUÉ ZÀ®£ÀavÀæzÀ £ÁAiÀÄPÀ£ÀAvÉ DUÀ¨ÉÃPÀÄ JAzÀÄ C¤¹vÀÄÛ JAzÀÄ ºÉüÀÄvÁÛgÉ.
£ÁªÀÅ ªÀģɬÄAzÀ ±Á¯ÉUÉ PÉJ¸ïDgïn¹ «Ä¤ §¹ì£À°è ºÉÆÃUÀÄwÛzÉݪÀÅ. £ÁªÀÅ ±Á¯ÉUÉ §AzÀÄ vÀ®Ä¦zÀ £ÀAvÀgÀ £ÉÃgÀªÁV ±Á¯ÉUÉ M¼ÀUÀqÉ ºÉÆÃV PÁè¹UÉ ºÉÆÃUÀÄwÛzÉݪÀÅ. £À£Àß vÁ¬ÄAiÀÄÄ £ÀªÀÄä£ÀÄß ±Á¯ÉAiÀÄ vÀ£ÀPÀ ©lÄÖ ºÉÆÃUÀÄwÛzÀݼÀÄ.
£Á£ÀÄ ±Á¯ÉAiÀÄÄ M¼ÀUÀqÉ ºÉÆÃzÀ £ÀAvÀgÀ ¥ÀÄ£À: ±Á¯ÉAiÀÄ ºÉÆgÀUÉ §AzÀÄ £À£Àß vÁ¬ÄAiÀÄÄ J°èUÉ ºÉÆÃUÀÄvÁÛ¼ÉAzÀÄ £ÉÆÃqÀÄwÛzÀÝ PÁgÀt CªÀgÀÄ jPÁëzÀ°è ªÀÄvÀÄÛ fæ£À°è ºÉÆÃUÀĪÀÅzÀ£ÀÄß £ÉÆÃrgÀÄvÉÛãÉ. ¸É. 8-10-2007 QÌAvÀ®Æ 3 ªÀµÀðzÀ »A¢¤AzÀ £À£ÀUÉ £À£Àß vÁ¬ÄAiÀÄÄ F ªÀvÀð£ÉAiÀÄ §UÉÎ w½¢vÀÄÛ.
ªÉƨÉʯïUÉ D ¢£À PÀgÉ §gÀÄwÛzÀÝ PÁgÀt £Á£ÀÄ £À£Àß vÀAzÉUÉ £À£Àß vÁ¬ÄAiÀÄ ªÉÄÃ¯É ºÉýzÀ ªÀvÀð£ÉAiÀÄ §UÉÎ ºÉýzÀÄÝ, ªÉƨÉÊ®£ÀÄß ZÉPïÀ ªÀiÁqÀ®Ä ºÉýzÉÝ£ÀÄ. ºÁUÉà zÀÆgÀªÁt PÀgÉ §AzÀzÀÄÝ JµÀÄÖ UÀAmÉ ¸ÀªÀÄAiÀÄPÉÌ JAzÀÄ £À£ÀUÉ £É£À¦®è. £Á£ÀÄ
13
ºÉýzÀ £ÀAvÀgÀ £À£Àß vÀAzÉAiÀÄÄ vÁ¬ÄAiÀÄ ªÉƨÉÊ®£ÀÄß vÀ¥Á¸ÀuÉ ªÀiÁrgÀÄvÁÛgÉ.
¥Àæw ±À¤ªÁgÀªÀÅ £À£Àß vÁ¬Ä £ÀªÀÄä£ÀÄß L¸ÀQæÃA w£Àß®Ä C°èUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀÝgÀÄ. ¸À¢æ L¸ÀQæÃA CAUÀrAiÀÄ°è ¥ÀævÉåÃPÀ ¸Éà±À¯ï gÀÆAUÀ¼ÀÄ EgÀĪÀÅ¢®è. £À£ÀUÉ PÀzÀÄÝ £ÉÆÃqÀĪÀÅzÀÄ CxÀªÁ PÀzÀÄÝ PÉüÀĪÀ ZÁ½ EgÀĪÀÅ¢®è. £À£Àß vÁ¬Ä ºÁUÀÆ F±ÀégÀ EªÀgÀ ªÀvÀð£ÉAiÀÄ£ÀÄß CAUÀrAiÀÄ ªÀiÁ°ÃPÀgÀÄ CxÀªÁ PÉ®¸ÀUÁgÀ UÀÄwð¹gÀĪÀÅ¢®è. CªÀgÀÄ CzÀ£ÀÄß £ÉÆÃqÀÄwÛzÀÝgÀÄ JAzÀÄ £À£ÀUÉ w½¢®è. £ÁªÀÅ ºÁUÉà ±À¤ªÁgÀ ªÀÄzsÁåºÀßzÀ ºÉÆwÛUÉ ºÉÆÃUÀÄwÛzÁÝUÉ CAUÀrAiÀÄ°è ¨ÉÃgÉ VgÁQUÀ¼ÀÄ ¸ÀºÀ EgÀÄwÛzÀÝgÀÄ. £À£Àß vÁ¬Ä ºÁUÀÆ F±ÀégÀ EªÀgÀ ªÀvÀð£É PÉlÖzÀÄÝ JAzÀÄ £À£ÀUÉ C¤¹gÀÄvÀÛzÉ. DUÀ £Á£ÀÄ vÁ¬ÄAiÀÄ°è ¤Ã£ÀÄ KPÉ »ÃUÉ ªÀiÁqÀÄwÛ JAzÀÄ PÉýgÀĪÀÅ¢®è. ªÀÄvÀÄÛ vÁ¬ÄAiÀÄ°è CzÀ£ÀÄß PÉüÀ¨ÉÃPÉAzÀÄ C¤¹gÀĪÀÅ¢®è.
vÁ¬ÄAiÀÄÄ UÉÆÃqÉUÉ £ÀªÀÄä vÀ¯ÉAiÀÄ£ÀÄß §rAiÀÄÄwÛzÀÝ «µÀAiÀÄ ªÀÄvÀÄÛ £ÀªÀÄUÉ £ÉÃtÄ ºÁPÀÄvÉÛãÉAzÀÄ ºÉzÀj¸ÀÄwÛzÀÝ «µÀAiÀÄ £À£Àß CdÓ¤UÉ ºÉýgÀÄvÉÛãÉ. £À£Àß CdÓ£ÀÄ £À£Àß vÁ¬ÄAiÀÄ°è F «µÀAiÀÄzÀ §UÉÎ ¥Àæ²ß¹zÁÝ£ÉÆà JAzÀÄ £À£ÀUÉ UÉÆwÛ®è.
14
EzÀÝgÀÄ. £Á£ÀÄ £À£Àß vÀAzÉUÉ F±ÀégÀ ºÀjPÀAvÀæ EvÀ£À£ÀÄß vÉÆÃj¹zÁUÀ £ÁªÀÅUÀ¼ÀÄ ©lÖgÉà C°è ¨ÉÃgÉ AiÀiÁgÀÆ EgÀ°®è. ºÁUÉà £À£Àß vÀAzÉAiÀÄÄ F±ÀégÀ ºÀjPÀAvÀæ£À£ÀÄß £ÀªÀÄä ±Á¯É ¥ÁægÀA¨sÀªÁUÀĪÀ ªÉÆzÀ¯Éà ºÉýzÀÝgÀÄ. F±ÀégÀ EvÀ£ÀÄ £À£Àß vÁ¬ÄAiÉÆqÀ£É DvÀ¤UÉ CPÀæªÀÄ ¸ÀA§AzsÀ«zÉ, CzÀÄ ªÀÄÄAzÀĪÀjAiÀÄÄvÀÛzÉ JAzÀÄ ºÉýzÁUÀ £À£Àß vÀAzÉUÉ ¹lÄÖ §A¢gÀÄvÀÛzÉ. £À£Àß vÀAzÉAiÀÄÄ DvÀ£À£ÀÄß ºÉÆqÉAiÀÄ®Ä ºÉÆÃVgÀĪÀÅ¢®è. ºÁUÉà ¹lÄÖ §AzÀ £ÀAvÀgÀ £À£Àß vÀAzÉ ªÀÄvÀÄÛ F±ÀégÀ EªÀgÀ ªÀÄzsÀå dUÀ¼ÀªÁVgÀÄvÀÛzÉ.
£À£Àß vÁ¬ÄAiÀÄÄ F±ÀégÀ EªÀgÉÆqÀ£É fæ£À°è ªÀÄvÀÄÛ jPÁëzÀ°è §gÀÄwÛzÀÝgÀÄ ªÀÄvÀÄÛ L¸ÀQæÃA CAUÀrAiÀÄ°è £Á£ÀÄ ºÉýzÀAvÉ ªÀwð¸ÀÄwÛzÀÝgÀÄ JAzÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É ªÀÄvÀÄÛ £À£Àß vÁ¬ÄUÉ ºÁUÀÆ F±ÀégÀ EªÀjUÉ CAvÀºÀ AiÀiÁªÀÅzÉà ¸ÀA§AzsÀ«®è CAzÀgÉ ¸ÀjAiÀÄ®è.”
£ÀAvÀgÀ £À£ÀߣÀÄß ºÁUÀÆ £À£Àß CtÚ£À£ÀÄß ºÉUÀqÉ PÉÆîØræAPÀì CAUÀrUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀÄÝ, £ÀªÉÆäqÀ£É F±ÀégÀ ºÀjPÀAvÀæ ¸ÀºÀ: EgÀÄwÛzÀÝgÀÄ. ºÁUÉà L¸ïÀQæÃA w£Àß®Ä £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß CtÚ MAzÀÄ §¢AiÀÄ°è ªÀÄvÀÄÛ £À£Àß CªÀÄä ºÁUÀÆ F±ÀégÀ E£ÉÆßAzÀÄ §¢AiÀÄ°è PÀĽvÀÄPÉƼÀÄîwÛzÀÝgÀÄ. £À£Àß vÁ¬Ä ºÁUÀÆ F±ÀégÀ L¸ÀQæÃA w£ÀÄߪÁUÀ ZÀªÀÄZÀUÀ¼À£ÀÄß §zÀ¯Á¬Ä¸ÀÄwÛzÀÝgÀÄ, PÉÊUÀ½UÉ ªÀÄÄvÀÄÛ
15
PÉÆqÀÄwÛzÀÝgÀÄ ªÀÄvÀÄÛ M§âjUÉƧâgÀÄ vÀ©âPÉƼÀÄîwÛzÀÝgÀÄ ªÀÄvÀÄÛ ¥ÀgÀ¸ÀàgÀ PÁ®ÄUÀ¼À£ÀÄß vÁV¸ÀÄwÛzÀÝgÀÄ. EzÀ£ÀÄß £À£ÀUÉ £ÉÆÃqÀĪÁUÀ ¸Àj PÁtÄwÛgÀ°®è. ªÀÄvÀÄÛ PÉlÖzÀÄÝ C¤¸ÀÄwÛvÀÄÛ.
£À£Àß vÀAzÉAiÀÄÄ F±ÀégÀ ºÀjPÀAvÀæ EvÀ£À£ÀÄß £ÀªÀÄä ±Á¯ÉAiÀÄ §½ £ÉÆÃrgÀÄvÁÛgÉ. £À£Àß CtÚ£ÀÄ £À£Àß vÀAzÉUÉ DvÀ£À£ÀÄß vÉÆÃj¹gÀÄvÁÛgÉ. £À£Àß vÀAzÉAiÀÄÄ F±ÀégÀ EvÀ£À°è £ÀªÀÄä vÁ¬Ä ªÀÄvÀÄÛ DvÀ¤UÉ ¸ÀA§AzsÀ«zÉà JAzÀÄ PÉýgÀÄvÁÛgÉ. DUÀ F±ÀégÀ EvÀ£ÀÄ vÀ«Ää§âjUÉ ¸ÀA§AzsÀ«zÉ JAzÀÄ ºÉýgÀÄvÁÛgÉ. £Á£ÀÄ N¢£À°è ZÀÄgÀÄPÀÄ EzÉÝãÉ. £À£Àß vÁ¬ÄAiÀÄÄ £À£ÀߣÀÄß ZÉ£ÁßV £ÉÆÃrPÉƼÀÄîwÛgÀ°®è Hl wArAiÀÄ£ÀÄß ¸ÀjAiÀiÁzÀ ¸ÀªÀÄAiÀÄPÉÌ PÉÆqÀÄwÛgÀ°®è. £À£Àß vÀAzÉAiÀÄÄ £À£ÀߣÀÄß ZÉ£ÁßV £ÉÆÃrPÉƼÀÄîwÛzÁÝgÉ. £Á£ÀÄ £À£Àß vÀAzÉ vÁ¬ÄAiÉÆqÀ£É MmÁÖV G½AiÀÄ®Ä EµÀÖ¥ÀqÀĪÀÅ¢®è. £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß vÀAzÉ ºÁUÀÆ ¸ÀºÉÆÃzÀgÀ ¥ÀævÉåÃPÀªÁV G½AiÀÄÄvÉÛêÉ. £À£Àß vÁ¬ÄAiÉÆA¢UÉ G½zÀ°è £À£Àß ¨sÀ«µÀå ºÁ¼ÁUÀÄvÀÛzÉ.”
follows:
“vÀAzÉAiÉÄà £ÀªÀÄä ¸ÀªÀð¸Àé JAzÀÄ £Á£ÀÄ w½zÀÄPÉÆArzÉÝÃ£É CAzÀgÉ ¸Àj. 2008 jAzÀ £À£Àß vÁ¬Ä ªÀÄ£É ©lÄÖ ºÉÆÃzÀ ªÉÄÃ¯É EªÀgÉUÀÆ £À£Àß vÁ¬ÄAiÉÆqÀ£É £Á£ÀÄ ªÀiÁvÀ£ÁrgÀĪÀÅ¢®è. £À£Àß CªÀÄä vÀ£Àß PÀvÀðªÀåUÀ¼À£ÀÄß ªÀiÁqÀzÉà ©lÄÖ ºÉÆÃVzÁÝgÉ JAzÀÄ £À£ÀUÉ CªÀgÀ ªÉÄÃ¯É ¹lÄÖ EzÉ. CAzÀgÉ ¸Àj. eÉ.JA.J¥sï.¹.
16
£ÁåAiÀiÁ®zÀ°è £ÀÄrzÀ ¸ÁQë «ZÁgÀuÉAiÀÄ®è £À£Àß vÁ¬Ä ªÀÄvÀÄÛ F±ÀégÀ PÉêÀ® ªÀiÁvÀ£ÁrPÉƼÀÄîwÛzÀÝgÀÄ.
L¸ÀQæÃA CAUÀrAiÀÄ°è d£À¸ÀAzÀt EgÀÄwÛvÀÄÛ CAzÀgÉ ¸Àj. ¥Àæw ±À¤ªÁgÀ ªÀÄzsÁåºÀß CAUÀrUÉ ºÉÆÃUÀÄwÛzÉݪÀÅ ªÀÄvÀÄÛ D ¸ÀªÀÄAiÀÄzÀ°è C°è d£À ¸ÀAzÀt EgÀÄwÛvÀÄÛ. £À£Àß vÁ¬Ä ºÁUÀÆ F±ÀégÀ vÀ«ÄäAzÀ JµÀÄÖ zÀÆgÀzÀ°è PÀĽvÀÄPÉƼÀÄîwÛzÀÝgÀÄ JAzÀgÉ ¸ÁQëAiÀÄÄ £ÁåAiÀiÁ®AiÀÄzÀ°è CAvÀgÀªÀ£ÀÄß vÉÆÃj¹gÀÄvÁÛgÉ CzÀÄ 10 jAzÀ 15 Cr DUÀ§ºÀÄzÀÄ. vÁ¬ÄAiÀÄÄ £ÀªÀÄä£ÀÄß ºÁUÉà PÀĽvÀÄPÉÆAqÀÄ ºÉÆÃV £ÀªÀÄUÉ CªÀgÀ PÀqÉ £ÉÆÃqÀ¨ÁgÀzÀÄ JAzÀÄ ºÉý ºÉÆÃUÀÄwÛzÀÝgÀÄ. £Á£ÀÄ £À£Àß vÀAzÉ vÁ¬ÄAiÀÄ ªÀiÁvÀÄUÀ½UÉ «gÀÄzÀݪÁV £ÀqÉAiÀÄĪÀÅ¢®è. £À£Àß vÁ¬Ä ºÁUÀÆ F±ÀégÀ EvÀ£À ªÀvÀð£ÉAiÀÄ£ÀÄß CAUÀrAiÀÄ°èzÀÝ ¨ÉÃgÉ VgÁQUÀ¼ÀÄ £ÉÆÃrgÀÄvÁÛgÉ. EvÀgÀ UÁæºÀPÀgÀÄ £À£Àß vÁ¬Ä ªÀÄvÀÄÛ CªÀgÀ ªÀvÀð£ÉAiÀÄ£ÀÄß £ÉÆÃr £ÀUÁqÀÄwÛzÀÝgÀÄ. UÁæºÀPÀgÀÄ CªÀgÀ ªÀvÀð£ÉAiÀÄ §UÉÎ CAUÀrAiÀÄ ªÀiÁ°ÃPÀ¤UÉ zÀÆgÀÄ ¤ÃrgÀĪÀÅ¢®è. F±ÀégÀ ªÀÄvÀÄÛ £À£Àß vÁ¬Ä L¸ÀQæÃA CAUÀrAiÀÄ°è »ÃUÉ ªÀwð¸ÀÄwÛzÀÝgÀÄ JAzÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É ªÀÄvÀÄÛ F «µÀAiÀĪÀ£ÀÄß £À£Àß »A¢£À ¸ÁQë «ZÁgÀuÉAiÀÄ°è ºÉýgÀĪÀÅ¢®è CAzÀÄ ¸ÀjAiÀÄ®è.
£À£Àß vÁ¬ÄAiÀÄÄ £ÀªÉÆäA¢UÉ §AzÀÄ ªÁ¸ÀªÀiÁqÀĪÀÅzÀÄ £ÀªÀÄUÉ ¨ÉÃqÀ, £À£Àß vÁ¬Ä £À£ÉÆßA¢UÉ §AzÀÄ ªÁ¸À ªÀiÁqÀ¨ÁgÀzÀÄ JA§ GzÉÝñÀ £À£ÀUÉ EzÉ CAzÀgÉ ¸Àj D GzÉÝñÀ¢AzÀ¯Éà £Á£ÀÄ ¸ÁQë £ÀÄrAiÀÄÄwÛzÉÝÃ£É CAzÀgÉ ¸Àj.”
17
18
noted that petitioner had definitely pleaded his case that the respondent No.1 had an illicit relationship with respondent No.2. Respondent No.2 is duly served with the notice meaning thereby that petitioner had known the particulars of respondent No.2. However, the respondent No.2 never turned up for evidence. In the evidence of PWs4 and 5, they have categorically stated that they had showed respondent No.2 to the petitioner and that petitioner had confronted respondent No.2 resulting in a heated exchange of words. It is therefore clear that respondent No.1 had in fact some kind of an extra marital affair with respondent No.2. Respondent No.1 being a married woman with two grown up kids, ought to have conducted herself in an orderly manner as a dutiful wife. If respondent No.1 had such kind of lascivious sinful relationship with respondent No.2, it is but natural that the marital life would be marred beyond repair and it would be unfair to expect the petitioner and his children to put up with the respondent No.1. It would also follow as a
19
corollary that such conduct of the respondent No.1 would in turn result in distrust sparking fire in the marriage. Respondent No.1 could also have retaliated against the petitioner, thereby causing mental and physical cruelty. One of the most disturbing statements is that the children namely PWs-4 and 5 who have stated that they do not want to stay with respondent No.1 and that they are more happy with the petitioner. PW-4 has also stated that the conduct of the respondent No.1 with respondent No.2 was very shameful and that PW-4 himself was feeling ashamed that respondent No.2 was his mother. PW-4 has also stated that he apprehended danger to his life at the hands of respondent No.1. Likewise, the evidence of PW-5 makes it more evident that respondent No.1 was not in cordial terms with her children. PW-5 has stated in her crossexamination that from the year 2008 when respondent No.1 left the house, till the date she was examined in the Court, she had not spoken to respondent No.1.
20
14. The word “cruelty” can neither be defined nor
any contours be laid but is subjective and depends upon facts and circumstances of each case, the social milieu, the educational background of the parties. Thus, what is cruel to one may not be to the other and therefore, any attempt to set limits would invariably be impractical and is thus desirable to leave it abstract. The Apex Court in the following decisions has shown the way forward in assessing circumstances that can constitute cruelty enough to mar a marriage resulting in its dissolution.
i) SAMAR GHOSH VS. JAYA GHOSH reported in (2007) 4 SCC 511 (paragraph 101)
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
21
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 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.
22
(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.
(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 sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without
23
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 parties. In such like situations, it may lead to mental cruelty.”
ii) VINITA SAXENA VS. PANKAJ PANDIT reported in [(2006) 3 SCC 778],
(paragraphs 36, 37, 38 and 45).
36. The legal concept of cruelty which is not defined by statute is generally described as conduct of such character as to have caused danger to life,
24
limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all question of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complains accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and abhorrence for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant's side, ought this appellant to be called on to endure the conduct? From the respondent's side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.
25
37. As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.
38. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.
45. Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives,
26
perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged.
the circumstances narrated by the petitioner in his petition coupled with the evidence of PWs-2 and 3 discloses that respondent No.1 was indeed cruel and she was responsible for marring the marital life. We are mindful of the standard of the proof to be adopted in a matrimonial proceeding as held in the case of DAVIS VS DAVIS [1950-1 ALL ER 40] as under:
“ a suit for divorce is a civil and not a criminal proceeding. One would expect, therefore, to find that in the ordinary way the rules of civil procedure and not the rules of criminal procedure would apply to divorce suits. The standards and rules of the criminal courts have been built up out of the high regard which the law has for the liberty of the individual. No man’s liberty is to be taken away unless the case is proved against him beyond reasonable
27
doubt. The same stringency is not necessarily called for in divorce suits, or, at any rate, in divorce suits on the ground of cruelty or desertion, where the court is concerned, not to punish anyone, but to give statutory relief from a marriage that has broken down”.
towards the guilt of respondent No.1 and it is clear that no purpose will be served in continuing such a dead marriage. In view of the above, we feel it appropriate to dissolve the marriage of respondent No.1 with the petitioner by decree of dissolution of marriage as the incidents narrated by the appellant in his petition before the Court below do constitute a case of mental cruelty sufficient enough to dissolve the marriage. Hence, the following:
ORDER
The order passed by Court of the Senior Civil Judge, Kumta, itinerary sitting at Ankola in M.C.No.3/2008 dated
28
11.10.2013 is confirmed. Accordingly, this Miscellaneous
First Appeal is dismissed. No order as to costs.
(Sd/-) JUDGE
(Sd/-) JUDGE
Jm/-
1 issue framed by the court
Did the wife's conduct, including her extramarital relationship, constitute mental cruelty sufficient to sustain dissolution of the marriage?
Colour shows how this judgement treated each authority
SAMAR GHOSH VS. JAYA GHOSHRelied on¶87
(2007) 4 SCC 511 · Who else cites this
VINITA SAXENA VS. PANKAJ PANDITRelied on¶108
[(2006) 3 SCC 778], · Who else cites this
DAVIS VS DAVISRelied on¶120
DAVIS VS DAVIS [1950-1 ALL ER 40]
1 provisions across 1 enactments
KALPANA D/O NARAYAN NAIK
ISHWAR S/O. URIYA NAIK
ISHWAR S/O. IRA HAIRKANTRA
P.B.BAJANTHRI
NATARAJ RANGASWAMY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
