Dismissed

Shri.Sunil S/O Iranna Gadigin, v. Smt.Shilpa W/O Sunil Gadagin

Karnataka HC14 Oct 2024MFA/100298/2016

Case brief

AI extract

What is this about?

The High Court dismissed an appeal under Section 19(1) of the Family Court Act challenging a divorce decree. Upholding the Family Court's dismissal, the court held that the appellant failed to prove the statutory ingredient of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955, as the evidence consisted of general and omnibus allegations without proper corroboration.

What did the court decide?

The appeal was dismissed and the judgment and decree of the Principal Judge, Family Court, Hubballi, in M.C. No. 120/2015 dated 25.11.2015 were confirmed.

Shri.Sunil S/O Iranna Gadigin, Vs Smt.Shilpa W/O… — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC-D:14894-DB MFA No. 100298 of 2016

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

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AND

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THE HON'BLE MR. JUSTICE VENKATESH NAIK T

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MISCELLANEOUS FIRST APPEAL NO. 100298 OF 2016 (FC)

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BETWEEN:

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SHRI. SUNIL S/O. IRANNA GADIGIN, AGE: 35 YEARS, OCC: PRIVATE VEHICLE DRIVER, C/O: DEVANGA PETA, NADAVIN ONI, NEAR BANASHENKARI TEMPLE, R/O: HUBBALLI, DISTRICT: DHARWAD.

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…APPELLANT

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(BY SRI. SHARNAPPA S. KOLIWAD, ADVOCATE)

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AND:

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Digitally signed by JAGADISH T R Location: High Court of Karnataka, Dharwad Bench

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SMT.SHILPA W/O. SUNIL GADAGIN, AGE: 34 YEARS, OCC: HOUSEHOLD WORK, R/O: C/O MAHADEVAPPA S/O. CHANNAPPA DODDA 1803, DURADI GALLI, R/O: RABAKAVI, TALUK: JAMKHANDI, DISTRICT: BAGALKOT.

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…RESPONDENT

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(BY SRI. N. G. RASALKAR, ADVOCATE)

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THIS MFA IS FILED U/S.19(1) OF FAMILY COURT ACT, PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 25.11.2015 PASSED BY THE IN THE COURT OF PRL. JUDGE FAMILY COURT, AT HUBBALLI IN MC NO.120/2015, AS PRAYED WITH COSTS THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2024:KHC-D:14894-DB MFA No. 100298 of 2016

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CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

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This appeal is filed challenging the judgment and decree dated 25.11.2015 passed in M.C.No.120/2015 by learned Principal Judge, Family Court, Hubballi, dismissing the petition filed by the appellant under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (‘the Act' for short).

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The appellant was the petitioner and the respondent herein was the respondent in M.C.No.120/2015 before the Family Court. For the sake of convenience, the parties are referred to according to their ranks before the Family Court henceforth.

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Brief facts of the case:

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The marriage of the appellant and the respondent was solemnized on 25.11.2008 at Sri. Krishna Kalyana Mantapa, Hubballi. The parties are Hindus and governed

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by the Act. After the marriage, the appellant and the respondent started their marital life at the residence of the appellant and their relationship was cordial for a couple of years. In their conjugal life, they blessed with a daughter by name Sinchana. Thereafter, the respondent started quarreling with the appellant, his mother and father unnecessarily and always threatened them to commit suicide, thereby caused threat to the appellant and his family members. Further, she attempted to consume poison and she was not taking care of her child properly, thereby caused cruelty to the appellant. The respondent changed her attitude towards the appellant and misbehaved with him and his family members and was quarrelling with them on silly issues. The respondent has neglected to discharge her matrimonial duties. Though the appellant tried to pacify the respondent, she refused to return to the matrimonial home along with her child. Further, the respondent did not allow the appellant to interact with her daughter. Later, the appellant and his family members tried to contact the respondent and made

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their best efforts to convince the respondent in order to bring her to the matrimonial home, that went in vain. On the contrary, the respondent and her parents intimidated the appellant of alleging dowry harassment case and also to initiate proceedings under the provisions of Protection of Women from Domestic Violence Act, 2005. Due to mental torture inflicted and cruelty meted out at the hands of the respondent, the appellant has been put to mental agony and physical stress. Thus, the respondent without any reason has deserted him since long back. She never

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joined the company of the appellant till institution of matrimonial case in the year 2015. Now, the appellant has lost his precious life for no fault of him. Requests of the appellant to the respondent for conjugal love and affection have fallen on her deaf ears. Thus, the appellant has lost all hopes of the respondent returning in future to the matrimonial house. Hence, he sought decree for dissolution of marriage.

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The respondent was served with notice before the Family Court, but did not appear and thus, she was placed exparte.

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The appellant in order to prove his case got examined himself as PW-1 and got marked seven documents as per Exs-P1 to P7. The appellant also examined Sri. Shivananda Somashekharappa Javali and Sri. Mallikarjun Somashekharappa Javali as PW2 and PW3.

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The Family Court after conclusion of the trial held that the appellant-husband failed to prove the requirements of Section 13(1)(i-a) of the Act and thus dismissed the petition. Being aggrieved by the dismissal of the petition for divorce, the appellant has filed this appeal.

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Sri. S.S. Koliwad, learned counsel for appellant strenuously contended that the Family Court committed an error without appreciating the facts that the respondent was unnecessarily quarrelling with her husband/appellant and her in-laws, and threatened to commit suicide. It is contended that the respondent was threatening the

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appellant to lodge complaint against him and his parents, if they pressurized her to join the company of appellant. These facts would constitute the ingredient of cruelty.

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The counsel further contended that the Trial

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Court has grossly erred in not considering the facts that the respondent after marriage of two years went to her parents house, and thereafter, she did not turn back to the appellant’s house. Thereafter, the appellant requested the respondent to join his company and lead marital life, but she was not willing to lead the marital life. But, the Family Court without appreciating the facts that, the appellant put to mental agony and harassment due to the conduct of the respondent has dismissed the petition filed by the appellant. Hence, the judgment of Trial Court is contrary to the facts and evidence placed on record and therefore, it is liable to be set aside.

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Despite granting sufficient opportunity, the learned counsel for the respondent-wife did not turn up to address arguments. Considering the submissions of

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learned counsel for the appellant and on careful perusal of the material on record, the following point arises for consideration of this Court:-

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''Whether the judgment and decree passed by the Family Court dismissing the petition of the appellant filed under Section 13(1)(ia) of the Hindu Marriage Act is sustainable or calls for interference?''

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Reg. Desertion:

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Desertion means the intentional abandonment

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of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.

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Therefore, it is just and necessary to analyse

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the explanation added to sub-section (1) of Section 13 by Act 68 of 1976. The said Explanation reads thus:

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“ Divorce .—(1) * * *

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Explanation.—In this sub-section, the expression “desertion” means the desertion of the appellant by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the appellant by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

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Thus, it appears that, the reasons for a dispute

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between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.

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Some factors to be considered before determining whether a marriage is irretrievably broken down are:

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Duration of cohabitation after marriage;

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Last time the parties cohabited;

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Nature of allegations made by the parties against each other;

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Attempts to settle disputes between the parties;

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A sufficiently long period of separation.

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In the light of the aforesaid factors, now, coming to the facts of the case, there is no dispute that the marriage between the parties was solemnised on 25.11.2008 and they stayed together for a period of two years and thereafter, the respondent had withdrawn from the matrimonial house, without assigning any reason, on the pretext of visiting her parents. After the lapse of five years, when the respondent did not return to the matrimonial house, even after repeated request and beseeches, the appellant got issued legal notice as per Ex.P.2, thereby called upon the respondent to give her consent for mutual divorce or to join his company, as she had voluntarily withdrawn herself from the matrimonial house from the year 2010.

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In order to ascertain the grounds for divorce

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under the Act, it is just and necessary to analyse Section

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13(1)(i-a) of the Act:

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“13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

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(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

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(ia) has, after the solemnization of the marriage, treated the appellant with cruelty; or

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The Amending Act of 1976 (Act 68 of 1976) had introduced clauses (ia) and (ib) to Section 13 and Section 13A etc. to liberalize grant of divorce. The Statement of Objects and Reasons, when the Bill was introduced, clearly spells out the reasons in the following words:

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“Statement of Objects and Reasons for the Marriage Laws(Amendment) Bill, 1976:

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"(1) To liberalise the provisions relating to divorce;

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(2) to enable expeditious disposal of proceedings under the Act; and

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(3) to remove certain anomalies and handicaps that have come to light after the passing of the Acts."

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While applying the sub-clauses to Section 13(1) of the Act, one needs to have a proper understanding of the position of the spouse opposing the petition for grant of divorce as the consequences and impact may differ from person to person, based upon factors such as social setting, educational qualification(s), financial status, employment, caste, community, age and place.

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The word ‘cruelty’ under Section 13(1)(i-a) of the Act has got no fixed meaning, and therefore, gives a very wide discretion to the Court to apply it liberally and contextually. What is cruelty in one case may not be the same for another and it depends upon the attending circumstances.

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In the case of VISHWANATH AGRAWAL

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v. SARLA VISHWANATH AGRAWAL reported in (2012)

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7 SCC 288, the Hon'ble Apex Court at para Nos.22 and

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25.5 held as under:

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“22. The expression “cruelty” has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.

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xxx xxx xxx

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25.5. … when a spouse makes a complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance.”

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20. In SAMAR GHOSH v. JAYA GHOSH reported

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in (2007) 4 SCC 511 , the Hon'ble Apex Court, while referring to the concept of cruelty, which includes mental

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cruelty, in English, American, Canadian and Australian cases, at para Nos.99 and 100 it is observed as under:

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“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,

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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.''

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(emphasis supplied)

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We would like to emphasize that an element of subjectivity has to be applied, albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a person in a given case may not be cruelty for another person, a relatively more elastic and broad approach is required when we examine a case in which a spouse seeks divorce. Section 13(1) of the Act sets contours and rigours for grant of divorce at the instance of the parties.

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In the case of DR. N.G. DASTANE v. MRS. S. DASTANE reported in (1975) 2 SCC 326 , the

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Hon'ble Apex Court at para Nos. 25, 26 and 27 held as

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under:

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“25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature .

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26. Neither Section 10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor Section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the appellant must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is “satisfied” on matters mentioned in clauses (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word “satisfied” must mean “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt”. Section 23 does not alter the standard of proof in civil cases.

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27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a “matrimonial offence”. Acts of a spouse which are calculated to impair the integrity of a marital union have a

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social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases.”

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From the aforesaid judgment, it becomes clear

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that in order to prove the requirement of cruelty, the appellant must prove that the respondent caused cruelty to him and hence, he left the company of the respondent and thus, seeks for divorce. The proof required from the appellant in a petition for divorce on the ground of cruelty is not beyond reasonable doubt, but of preponderance of probability.

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Secondly, the Court must also keep in mind that the home which is meant to be a happy and loveable place to live, becomes a source of misery and agony where the partners fight. When there are children, they become direct victims of the said fights, though they may

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practically have no role in the breakdown of marriage. They suffer irreparable harm especially when the couples at loggerheads remain unmindful and unconcerned about the psychological and mental impact it has on her/him.

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Records show that the marriage was solemnized in the year 2008. It fell into rough weather after the birth of their child. Disputes started between the parties in the year 2010. The appellant made several efforts to resume matrimonial relation, however, the respondent has not joined the company of the appellant.

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In the instant case, the burden is on the appellant to prove that respondent caused cruelty to him. Cruelty means and includes behavior that deliberately causes pain or distress to a person. Cruelty for the purpose of Section 13(1) (i-a) of the Act is to be taken as behavior by one spouse towards the other, which causes reasonable apprehension in the mind of the Court. Further, frequent rudeness of language, petulance, indifference,

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sustained abusive and humiliating treatment calculated to torture or render miserable the life of spouse.

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From the perusal of the evidence on record, it appears that the appellant himself examined on oath as PW1 and he got examined his uncles as PW2 and PW3. As per their evidence, respondent made cruelty to the appellant and his parents. But, in order to establish this aspect, the appellant has not examined his mother or father. The evidence discloses only general and omnibus allegations against the appellant. Thus, it clearly establishes that the allegations made in the petition and evidence do not constitute any ingredient of Section 13(1)(i-a) of the Act.

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Hence, the Family Court has rightly declined to grant the decree of divorce. For the reasons aforesaid, we are inclined to affirm the judgment of the Family Court in M.C.No.120/2015.

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