Dismissed

Smt. S. P. Suman v. Shri. D. K. Rajkumar

Karnataka HC17 Nov 2023MFA/7492/2022

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed an appeal against the Family Court's denial of divorce. The court held that the petitioner's allegations of mental cruelty were merely trivial irritations and isolated instances not amounting to a breakdown of marriage under Section 13(1)(ia).

What did the court decide?

Appeal dismissed; Family Court order dated 17.09.2022 in M.C. No.293/2020 confirmed.

Smt. S. P. Suman Vs Shri. D. K. Rajkumar — Matrimonial and Divorce | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 17^TH DAY OF NOVEMBER, 2023

¶4

PRESENT

¶5

THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

¶6

THE HON'BLE MR. JUSTICE K. V. ARAVIND

¶7

MISCELLANEOUS FIRST APPEAL NO. 7492 OF 2022 (FC)

¶8

BETWEEN:

¶9

SMT. S. P. SUMAN, AGED ABOUT 33 YEARS, W/O SHRI D. K. RAJKUMAR, RESIDING AT "SRINIVASA NILAYA", OPPOSITE WATER TANK, GOWRI KALUVE, CHIKMAGALORE 577101.

¶10

…APPELLANT

¶11

(BY SRI ANIRUDH A. KULKARNI., ADVOCATE)

¶12

AND:

¶13

Digitally signed by VINUTHA B S Location: High Court of Karnataka

¶14

SHRI. D. K. RAJKUMAR, AGED ABOUT 45 YEARS, S/O SHRI KRISHNAJI RAO, R/AT UPPAKERE RIGHT SIDE, MKK ROAD, SHIVAMOGGA 577201.

¶15

…RESPONDENT

¶16

(NOTICE SERVED BUT UNREPRESENTED)

¶17

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURT ACT AND UNDER SECTION 28(1) OF THE HINDU MARRIAGE ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 17.09.2022 PASSED IN M.C. NO.293/2020 ON THE FILE OF THE PRL. JUDGE, FAMILY COURT, SHIVAMOGGA, DISMISSING THE

¶18

2 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶19

PETITION FILED UNDER SECTION 13(1)(ia) OF HINDU MARRIAGE ACT.

¶20

THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, K. V. ARAVIND J., DELIVERED THE FOLLOWING:

¶21

J U D G M E N T

¶22

Challenging the dismissal of her petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, (for short 'the Act') the petitioner in M.C.No.293/2020 on the file of the Principal Judge, Family Court, Shivamogga, has preferred this petition.

¶23

Appellant was the petitioner and respondent

¶24

was the respondent in M.C.No.293/2020. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial court.

¶25

3. The brief facts are as under:

¶26

Petitioner is the wife of the respondent. Their

¶27

marriage was solemnized on 27.11.2005. Both the parties are governed by provisions of the Act. Out of the wedlock,

¶28

3 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶29

the petitioner and the respondent have two sons, aged 12 years and 8 years as on the date of the appeal.

¶30

4. Case of the petitioner is as follows:

¶31

The petitioner and the respondent could not lead

¶32

happy married life due to vast vacuum created between them. The petitioner came to her matrimonial house, which is joint family consisting of 15 members and the respondent was not taking care of her as a dutiful husband. The brothers and sister-in-law's of the respondent started to blame the petitioner quite often for no reason and the respondent did not mind to protect the petitioner from unusual behavior of his brothers and sister-in-law's. It is further stated that the respondent is doing tailoring job in garments and he started coming home late night. He cultivated the habit of spending time on the mobile without discharging the matrimonial duties and obligations since several months. The petitioner is very sincere and obedient in nature and dutiful wife in discharging her family affairs with the respondent. From

¶33

4 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶34

20.09.2020 the respondent stopped talking to the petitioner for no reason and intentionally abandoned the petitioner. She is living alone without minimum love and affection to her by the respondent and his family members. The respondent objects the petitioner when she visits her parental house. The discrimination by the respondent and his family members towards the petitioner is causing her severe mental agony and torture.

¶35

Though the respondent was represented

¶36

through advocate, he failed to file objections to the petition.

¶37

In support of the case of the petitioner, she got herself examined as PW.1 and got marked two documents as Exs.P1 and P2.

¶38

The Family Court by taking into consideration the pleadings, submissions and the documents on record formulated the following points for consideration:

¶39

5 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶40

"1. Whether the petitioner proves that respondent is her legally wedded husband?

¶41

2. Whether petitioner further proves that respondent treated her with cruelty?

¶42

3. What order?"

¶43

Insofar as the 1^st point regarding relationship of

¶44

the petitioner and the respondent, it has been answered in affirmative. Insofar as the issue of cruelty, the Family Court answered the same in negative.

¶45

Though the notice issued to the respondent -

¶46

husband is served, he is unrepresented.

¶47

We have heard the learned counsel for the appellant and perused the impugned order and the pleadings.

¶48

Shri. Anirudh A. Kulkarni, learned counsel for the appellant/petitioner vehemently submits that the respondent did not controvert the pleading and evidence of the petitioner regarding cruelty. That amounts to admission of cruelty by the respondent. Hence, Family

¶49

6 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶50

Court ought to have decreed the petition by granting divorce.

¶51

In support of his contention, he places reliance on the judgment of this Court in MFA No.4378/2017 dated

¶52

26.06.2023 in the case of SMT. KANAKASHREE R. V/s. DEVARAJ @ PAPANNA to contend that failure to cross-

¶53

examine the witness or failure to enter witness box or failure to offer himself for cross-examination, a presumption would arise that case set up by him is not correct.

¶54

On consideration of submission of appellant's

¶55

counsel and evidence on record, the point that arises for consideration of this Court is;

¶56

"Whether the Trial Court's finding that the cruelty is not proved is sustainable in law?"

¶57

ANALYSIS

¶58

It is the specific allegation of the petitioner that

¶59

herself and respondent could not lead happy married life

¶60

7 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶61

due to vast vacuum created between them. The petitioner was neglected in the joint family of the respondent consisting of 15 members. The brothers of the respondent used to blame the petitioner quite often for no reasons. The respondent is a tailor in a garment shop and he used to reach home late in the night and cultivated the habit of

¶62

spending time on the mobile. From 20.09.2020, the respondent has stopped talking to the petitioner for no reason. The respondent was not showing minimum required love and affection to her and the joint family members of the respondent are discriminating her.

¶63

The nature of allegations sought to be made by

¶64

the petitioner as a ground for cruelty are some isolated instances and the same are not recurring in nature or continuing one and there is no near proximity with the filing of the petition. The allegations are unsubstantiated. Non filing of statement of objections and non crossexamination of the petitioner or not leading evidence of respondent itself does not amount to proof of cruelty

¶65

8 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶66

enabling her for divorce in terms of Section 13(1)(ia) of the Act. The Family Court after examining the pleadings and the evidence placed by the petitioner has rightly arrived at the conclusion that oral testimony is not sufficient to hold that the respondent treated her with cruelty. The alleged conduct of the respondent and his family members does not constitute reasonable fear of threat or harm to the petitioner.

¶67

The Hon'ble Supreme Court in the case of Samar Ghosh vs. Jaya Ghosh¹ while dealing with the appreciation of mental cruelty has suggested/laid down the guidelines, which are as under:

¶68

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:

¶69

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as

¶70

1 (2007) 4 SCC 511

¶71

9 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶72

would not make possible for the parties to live with

¶73

each other could come within the broad parameters of mental cruelty.

¶74

(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.

¶75

(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.

¶76

(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.

¶77

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

¶78

(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.

¶79

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal

¶80

10 -

¶81

NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶82

standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

¶83

(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.

¶84

(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.

¶85

(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.

¶86

(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.

¶87

11 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶88

(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.

¶89

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

¶90

(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."

¶91

(Emphasis supplied)

¶92

On applying the principles laid down by the Hon'ble Supreme court in the judgment referred to supra , the treatment complained of and the resultant danger or apprehension is not very grave. On appreciation of the entire married life, two sons are born to the petitioner and the respondent. The allegations made by the petitioner are few isolated instances, which will not amount to cruelty. The issues are clear trivial irritations, quarrels,

¶93

12 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶94

normal wear and tear of the married life which happens in day-to-day life, especially in joint families, are not adequate for grant of divorce on the ground of mental cruelty.

¶95

The reliance on the judgment of the co-ordinate bench in the case of SMT. KANAKASHREE R referred to supra is not applicable to the facts and circumstances. In that case, the couple lived together only for two months, when the marriage was solemnized, the wife was aged 15 years. Wife preferred petition under Section 12 of the Act and amended to petition under Section 15 of the Act. On appreciation of the materials placed on record, the coordinate bench has arrived at a conclusion that wife has established her plea of cruelty.

¶96

Whereas in the present case, in view of the findings recorded above, the acts of cruelty alleged by the petitioner are unsubstantiated allegations and would not satisfy the circumstances or the nature of incidences as

¶97

13 - NC: 2023:KHC:41280-DB MFA No. 7492 of 2022

¶98

laid down by the Hon'ble Supreme Court in the case of

¶99

Samar Ghosh's case referred to supra .

¶100

On overall appreciation of the pleadings, submission of the learned counsel for the appellant and the principles of law laid down in the judgments of Hon'ble Supreme Court referred to supra , we are of the view that the order passed by the Family Court in M.C. No.293/2020 does not call for interference. Hence, the following:

¶101

O R D E R

¶102