Remanded

Smt.Shilpa @ Shaila W/O. Shambhuling v. Sri.Shambhuling S/O. Fakkirappa Bhusad

Karnataka HC21 Oct 2024MFA/104375/2018

Case brief

AI extract

What is this about?

Wife's divorce petition on grounds of cruelty was dismissed by the Family Court; she appealed. The High Court held the available evidence was insufficient to decide finally and remanded the matter to the Family Court for fresh consideration with opportunity for both parties to adduce evidence.

What did the court decide?

Appeal allowed; Family Court judgment and decree set aside; matter remitted for fresh consideration; parties directed to appear before Trial Court on 19.11.2024.

Smt.Shilpa @ Shaila W/O. Shambhuling Vs… — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC-D:15011-DB MFA No. 104375 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 21^ST 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. 104375 OF 2018 (FC)

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BETWEEN:

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SMT. SHILPA @ SHAILA W/O. SHAMBHULING BHUSAD, AGED ABOUT 25 YEARS, OCC: HOUSEHOLD WORK, R/O. C/O. CHANNAPPA SANGOLLI, BETAGERI ONI, HEBBALLI AGASI, DHARWAD, DIST: DHARWAD, PINCODE-580030.

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…APPELLANT

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(BY SRI. G. I. GACHCHINAMATH, 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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SRI. SHAMBHULING S/O. FAKKIRAPPA BHUSAD, AGED ABOUT 32 YEARS, OCC: ELECTRICIAN, R/O. HUGAR ONI, HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD.

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(NOTICE TO RESPONDENT HELD SUFFICIENT)

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…RESPONDENT

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THIS MFA IS FILED U/SEC.19(1) OF FAMILY COURT ACT, PRAYING TO CALL FOR RECORDS IN RESPECT OF THE IMPUGNED JUDGMENT AND DECREE MADE IN M.C. NO.110/2017 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, DHARWAD AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 22.10.2018 MADE IN M.C. NO.110/2017 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, DHARWAD AND FURTHER DECREE THE PETITION BY GRANTING THE DECREE OF DIVORCE.

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

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NC: 2024:KHC-D:15011-DB MFA No. 104375 of 2018

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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 22.10.2018 passed in M.C.No.110/2017 by learned Principal Judge, Family Court, Dharwad, 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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2. The appellant was the petitioner and the respondent herein was the respondent in M.C.No.110/2017 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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3. Brief facts of the case:

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The marriage of the appellant and the respondent was solemnized on 09.06.2010 at Shirakol Village, Dharwad Taluk. The parties are Hindus and governed by the Act. After the marriage, the appellant and the respondent started their marital life at the residence of the respondent and their

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relationship was cordial for a couple of years. Thereafter, the appellant came to know that the respondent had misrepresented her about his avocation. Prior to the marriage, the respondent represented himself as an Electrical Contractor. However, after the marriage, the appellant came to know that

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he is not doing contract work but he is a mason and doing electrical repair work, thereby the respondent committed fraud on her. The respondent used to sit idle in the home without doing any work and was insisting the appellant to bring money from her parents’ house and he was addicted to bad vices. As the respondent neglected to maintain the appellant, she left the company of the respondent and has been residing in her parental house. Thus, the appellant has lost all hopes of the respondent changing himself and to lead happy marital life with the appellant. Hence, she filed petition under Section 13(1) (i-a) of the Act seeking decree for dissolution of marriage on the ground of cruelty.

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4. The respondent was served with notice before the Family Court, he appeared in-person but he did not file any objections nor led any evidence.

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5. The appellant in order to prove her case got examined herself as PW-1 and got marked two documents as per Exs-P1 & P2. The appellant also examined Sri. Kariyappa Hampannavar as PW2.

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6. The Family Court after conclusion of the trial held that the appellant-wife 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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7. Sri. G.I. Gachchinamath, learned counsel for appellant vehemently contended that the Family Court committed an error without appreciating the facts that the respondent was unnecessarily quarrelling with the appellant, he addicted to bad vices, he was not maintaining the appellant and thereby neglected her and as such, the appellant left the company of the respondent. These facts would constitute the ingredient of cruelty & desertion.

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8. It is further contended that the respondent has committed fraud upon the appellant. The respondent before the marriage misrepresented the appellant that, he was

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working as an Electrical Contractor, but he was working as electrical mason and this fact was realized by the appellant only after marriage. Further, the respondent was in the habit of consuming alcohol and all the while, he sits at home idly consuming alcohol and whenever, he needs money to consume alcohol, he used to go for work and thereby he was completely neglecting to maintain the appellant. The marriage is not consummated and that the respondent is interested only in drinking and not in any other aspect of marital life. This amounts severe cruelty on the appellant.

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9. It is contended that 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 Family Court is contrary to the facts and evidence placed on record and therefore, it is liable to be set aside.

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10. Despite granting sufficient opportunity, the respondent-husband did not turn up to lead any evidence before the Family Court. Considering the submissions of learned counsel for the appellant and on careful perusal of the

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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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11. There is no dispute with regard to the fact that the marriage of the appellant and the respondent was solemnized on 9.6.2010. In this case, the appellant/wife has filed this appeal challenging the judgment and decree of the Family Court, wherein her petition for divorce was dismissed on the ground of failure to prove the ingredients of cruelty.

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12. It is just and necessary to analyse 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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13. Thus, it appears that, the reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion/cruelty 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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14. Some factors to be considered before determining

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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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15. In order to ascertain the grounds for divorce under

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the Act, it is just and necessary to analyse Section 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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16. The Amending Act of 1976 (Act 68 of 1976) had

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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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17. While applying the sub-clauses to Section 13(1) of

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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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18. The word ‘cruelty’ under Section 13(1)(i-a) of the

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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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19. In the case of VISHWANATH AGRAWAL

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v. SARLA VISHWANATH AGRAWAL reported in (2012) 7

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

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(2007) 4 SCC 511 , the Hon'ble Apex Court, while referring to

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the concept of cruelty, which includes mental cruelty, in

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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, 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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21. 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

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contours and rigours for grant of divorce at the instance of the parties.

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22. In order to prove the requirement of cruelty, the appellant must prove that the respondent caused cruelty to her 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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23. 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.

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24. In the instant case, the burden is on the appellant to prove that respondent caused cruelty to her. 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,

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

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25. In the instant case, the appellant requires to prove the element of cruelty. Under such circumstances, the learned counsel has argued that if at all this Court found the want of requisite evidence; the proper course is to exercise the power of remand under the provisions of Order XLI Rule 23-A CPC. The learned counsel has contended that this Court being the first Court of Appeal, must give an opportunity to the parties to adduce proper additional evidence.

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26. The procedure relating to appeals from original decrees (usually referred to as ‘regular first appeal’) is provided in Order XLI of the Code of Civil Procedure, 1908 and therein, various provisions relating to hearing of an appeal, remand of case, remitting of issues for trial, production of additional evidence in Appellate Court etc. are contained in Rules 16 to 29 under the sub-heading ‘Procedure on hearing’.

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27. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose

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of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the real questions in controversy between the parties finally.

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28. It is only in such cases where the decree/award in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case.

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29. Under the aforesaid circumstances, we are of the considered view that this matter requires to be remanded to the Family Court for consideration afresh after affording reasonable opportunity of hearing to both the parties to adduce their respective evidence. Hence, the following:

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ORDER

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i. Appeal is allowed .

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ii. The impugned Judgment and Decree of the Family Court is hereby set-aside.

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iii. The matter is remitted back to the Family Court for fresh consideration, with a direction to provide reasonable opportunity to both the parties to adduce their evidence and then

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