Dismissed

Sri R Basavarajappa v. Smt B Neelamma

Karnataka HC16 Mar 2022MFA/5552/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal in a matrimonial dispute. The appellant-husband challenged the trial court's refusal to grant divorce under Section 13 of the Hindu Marriage Act, citing cruelty and desertion. The court held that mere filing of criminal cases by the wife did not constitute cruelty, separation was justified by her safety, and the marriage's future, including children'

What did the court decide?

Appeal dismissed; impugned judgment and decree dated 23.02.2012 affirmed.

Sri R Basavarajappa Vs Smt B Neelamma — Succession and Inheritance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF MARCH, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY

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MISCELLANEOUS FIRST APPEAL No.5552/2012

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BETWEEN:

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SRI R. BASAVARAJAPPA S/O V.H.RAMASWAMY, AGE: 48 YEARS, OCC: TEACHER, R/AT “MARUTHI NILAYA”, HOSABANDARAHALLI VILLAGE, BADRAVATHI TALUK, SHIMOGA DISTRICT-577301. … APPELLANT (BY SRI SAGAR, B.B., ADV. FOR SRI C.H.JADHAV, SR.ADV.)

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AND:

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SMT. B. NEELAMMA W/O R. BASAVARAJAPPA, AGED ABOUT 41 YEARS, OCC: TEACHER, R/AT NHLC, 1/A-2, HUTTHA COLONY, BADRAVATHI TALUK, SHIVAMOGA DISTRICT-577301. … RESPONDENT

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(BY SRI S.N.BHAT, ADV.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 28(1) OF THE HINDU MARRIAGE ACT 1955, AGAINST

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THE JUDGMENT AND DECREE DATED 23.2.2012 PASSED IN M.C. NO.10/2006 ON THE FILE OF SENIOR CIVIL JUDGE, JMFC, BHADRAVATHI, DISMISSING THE PETITION FILED U/SEC-13, FOR DISSOLUTION OF MARRIAGE.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, VISHWAJITH SHETTY J. , DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the husband challenging the judgment and decree dated 23.02.2012 passed by the Senior Civil Judge and JMFC, Bhadravathi, in M.C.No.10/2006.

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Brief facts of the case relevant for the purpose of disposal of this appeal are, the marriage of the appellanthusband with the respondent was solemnized on 26.04.1995 as per the Hindu customs and rites in the office of the SubRegistrar, Bhadravathi. From the said wedlock, the couple have two daughters viz., Kavya and Bhoomika who are said to be in the custody of the appellant. The appellant-husband had filed M.C.No.10/2006 under Section 13 of the Hindu Marriage Act, 1955 (for short, ‘the Act’) seeking dissolution of the marriage by a decree of divorce contending that the respondent-wife who was a teacher never performed her marital obligation. He has stated that the respondent was

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behaving very adamantly and used to quarrel on petty issues and she had a liking to live a luxurious life. He has stated in his petition that whenever he came home after his duty hours, the respondent used to start quarreling with him on petty issues and never used to cook food for him. He has also stated that she was constantly threatening him stating that she would commit suicide along with the children and she also used to threaten him that she will file false complaint against him and send him behind the bars.

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The respondent-wife had entered appearance in the said proceedings and contested the petition denying all the averments made against her in the said petition while admitting the relationship of the parties.

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Before the Trial Court, the appellant had examined himself as PW-1 and two other witnesses were examined as PWs-2 & 3 and 20 documents were marked in support of his case as Exs.P-1 to P-20. On behalf of the defence, the respondent was examined as RW-1 and two other witnesses were examined as RWs-2 & 3 and 8 documents were marked as Exs.R-1 to R-8.

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The Trial Court, thereafter, heard the arguments addressed on both sides and vide the impugned judgment and decree dismissed the petition filed by the appellanthusband and being aggrieved by the same, he has preferred this appeal.

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Learned Counsel for the appellant submits that the parties are living separately for the last more than 15 years, and therefore, there is no point in continuing the marriage which is virtually dead. He submits that the Trial Court has failed to appreciate the oral and documentary evidence available on record, and thereby erred in dismissing the petition. He submits that wife has filed a false criminal case and in the said case, husband has been acquitted. He submits that the appellant had proved the ground of cruelty as well as desertion against the respondent, and therefore, the Trial Court ought to have allowed the petition.

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Per contra, learned Counsel appearing for the respondent-wife submits that merely for the reason that the wife is staying away, the same cannot be a ground for divorce. He submits that the wife had a valid reason to stay

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away from the husband along with her daughters. He also submits that the daughters are of marriageable age, and therefore, at this point of time, if a decree of divorce is granted, the same would have an adverse effect on the marriage prospects of the daughters. He submits that having appreciated the oral and documentary evidence, the Trial Court has rightly dismissed the petition, and accordingly, prays to dismiss the appeal.

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We have carefully considered the arguments addressed on both sides and also perused the material available on record.

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To substantiate his case, the appellant had examined himself as PW-1 and two other witnesses were examined as PW-2 and PW-3. PW-1 has reiterated the narration made by him in the petition in his affidavit filed by him in lieu of examination-in-chief. Learned counsel for the appellant has contended that the wife had filed a false criminal case against the husband, in which, ultimately the husband was acquitted and according to him, the same amounts to “cruelty”. Merely for the reason that criminal case filed by the wife against the

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husband has ended up in acquittal, it cannot be said that filing of such a case would amount to “cruelty” for the purpose of Section 13(1)(ia) of the Act.

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Mere filing of a criminal case itself cannot be termed as “cruelty”. For the purpose of Section 13(1)(ia) of the Act, “cruelty” could be willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty.

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The Hon’ble Supreme Court in the case of Raj Talreja

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–vs- Kavita Talreja – 2017(3) KCCR SN 342 (SC) has held that mere filing of complaints is not cruelty, if there are

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justifiable reasons to file the complaints. It is further held that merely because no action is taken on the complaint or after trial, the accused is acquitted, may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act.

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In the case of Shyam Lata –vs- Suresh Kumar – AIR 1986 Punjab and Haryana 383 , the Punjab and Haryana High Court has held that merely for the reason that the prosecution had failed to establish the case against the accused-husband, institution of such a proceedings by the wife does not amount to cruelty justifying the grant of divorce.

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PW-2 and PW-3, who have been examined by the appellant in support of his case are his friends and they are not related to the parties to this lis. A reading of the affidavit filed by these witnesses in lieu of their examination-in-chief does not inspire confidence of this court in their evidence. PW-2 has gone to the extent of stating that wife was not sharing the bed with her husband and when he had enquired this with her, she had stated that she had undergone chest

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surgery and therefore, she is staying away from her husband. These witnesses have not spoken anything about any specific incidents regarding cruelty, but they have spoken in general, virtually reiterating the facts stated by PW-1 in his affidavit. PW-3, who has stated in his affidavit that the wife had filed eight cases against her husband, has failed to give the particulars of the cases when questioned during the course of cross-examination. Both the witnesses, who have spoken so much about the strained relationship of the couple and various other aspects touching their personal affairs, have admitted in the cross-examination that they have not attended the marriage. Under the circumstances, we are of the considered opinion that not much reliance can be placed on the evidence of PW-2 and PW-3 in support of appellant’s case.

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Appellant has also contended that the respondent-wife is guilty of desertion as she has stayed away from him without there being any valid reason. The material on record would go to show that the wife has filed a criminal case against the husband for the offence punishable under Section

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498A of IPC. The appellant was tried for the said offence and ultimately he has been acquitted. It has been the specific case of the wife that the appellant was ill-treating her in her house and was also demanding divorce from her so as to enable him to marry another woman by name Vijayakumari. The material on record would also go to show that the wife had filed O.S.No.5/2006 before the jurisdictional Civil Court seeking permanent injunction restraining the husband from marrying said Vijayakumari and the said suit was decreed. Therefore, it cannot be said that the wife did not have a valid reason to stay away from the husband and that she was guilty of deserting him for no reason.

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Learned counsel for the appellant has made a submission that the parties are residing separately and they have been litigating for the last several years and therefore, there is no possibility of re-union and virtually the marriage is dead and accordingly had prayed to allow the appeal.

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The Hon’ble Supreme Court in the case of Mangayakarasi –vs- M.Yuvaraj – AIR 2020 SC 1198 has

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observed that in a matter where the differences between the parties are not of such magnitude and is in the nature of the usual wear and tear of marital life, the future of the children and their marital prospects are also to be kept in view and in such circumstance, the dissolution of marriage merely because the parties have been litigating and they have been residing separately for quite some time would not be justified. In the present case, the parties have two daughters and admittedly they are in the custody of the respondent/wife. The outcome of this litigation will definitely have a bearing on their future life and the same may also have the effect on their marriage prospects. Under the circumstances, the submission made by the learned counsel for the appellant that since the parties have been staying separately, there is no purpose in continuing the marriage is liable to be rejected.

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The learned Judge of the trial court having appreciated the entire oral and documentary evidence available on record has arrived at a conclusion that the appellant has not made out a case for divorce. The grounds of cruelty as well as

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desertion were not proved by the husband in accordance with law by producing sufficient evidence before the trial court.

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Under the aforesaid circumstances, we are of the considered view that the judgment and decree dated 23.02.2012 passed by the Senior Civil Judge and JMFC, Bhadravathi, in M.C.No.10/2006 dismissing the petition filed by the appellant-husband under Section 13 of the Hindu Marriage Act, 1955, does not suffer from any illegality or infirmity, which calls for interference by this court.

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The appeal is, therefore, dismissed.

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Sd/JUDGE

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Sd/JUDGE

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KK/KNM/-

Sri R Basavarajappa v. Smt B Neelamma

Case brief

What is this about?

What did the court decide?

Sri R Basavarajappa v. Smt B Neelamma

Case brief

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