SRI B SHIVAKUMAR @ A SHIVANNA S/O BASAVARAJAPPA AGED ABOUT 40 YEARS R/AT KHALAGHATTA VILLAGE B.DURGA HOBLI, HOLALKERE TALUK CHITRADURGA DISTRICT …RESPONDENT

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(BY SRI N.D.ONKARAPPA, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 28(1) OF HINDU MARRIAGE ACT, 1955 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 24.08.2016 PASSED BY SENIOR CIVIL JUDGE, & JMFC, HOLALKERE IN M.C.NO.43/2011 ALLOWING THE PETITION FILED U/S 13(1)(i-a)(i-b) OF HINDU MARRIAGE ACT FOR DIVORCE.

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

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JUDGMENT

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Challenging the judgment and decree of divorce passed against her, the respondent in M.C.No.43/2011 on the file of Senior Civil Judge & JMFC, Holalkere, has preferred this appeal.

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The appellant was the respondent and the respondent herein was the petitioner in M.C.No.43/2011 before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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The marriage of the petitioner and respondent was solemnized on 05.05.2009 at Sri.Nanjundeshwara Samudaya Bhavana, Santhebennur Village, Holalkere Taluk. The parties being Hindus are governed by the Hindu Marriage Act, 1955 (‘the Act’ for short).

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The petitioner filed M.C.No.43/2011 against the respondent under Section 13(1)(ia)(ib) of the Act seeking decree of dissolution of marriage alleging that after three months of marriage, the respondent subjected him and his parents to mental cruelty. He alleged that the respondent was always speaking ill of him and insisting him to separate from his parents. He further alleged that during night time, the

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respondent used to get phone calls and she used to go outside and converse with the callers. Ultimately, the respondent deserted him and left the matrimonial home about two years and one month prior to the filing of the petition i.e., 19.10.2011. He alleged that since two years prior to the petition, respondent deprived him of his conjugal rights and pushed him to depression.

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The respondent contested the petition denying the allegation of cruelty and desertion. She contended that the petitioner, his sisters and parents subjected her to physical and mental cruelty on the ground that she did not begot the child and forced her to leave the house. In that connection, panchayats were held. Being unable to withstand the illtreatment, she filed the complaint in Chikkajajur police station, there also they were advised. She further alleged that to play fraud on her, petitioner, his sisters and parents have effected the partition in the family properties and have thrown her out. She sought dismissal of the petition.

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In support of his case, the petitioner got himself examined as PW.1 and one Sri.S.R.Rajashekharappa @ Rajappa as PW.2 and on his behalf wedding invitation card is marked as

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Ex.P1. The respondent was examined as RW.1 and on her behalf RWs.2 & 3 were examined.

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The trial Court on hearing the parties, by the impugned judgment and decree, allowed the petition and granted decree of divorce. The trial Court held that the evidence of PWs-1 and 2 that due to the conduct of the respondent, petitioner had to separate from his parents was not controverted. The trial Court further held that on the complaint of the respondent, petitioner, his parents and his sisters are facing trial in C.C.No.442/2012 for the offence punishable under Section 498A of IPC and that amounts to cruelty. The trial Court further held that the evidence of RWs.1 to 3 did not prove the allegations of cruelty set up by the respondent, thus allowed the petition.

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Sri.D.S.Shivanand, learned Counsel appearing for Sri.M.V.Hiremath, learned Counsel on record for the respondent-wife submits that the allegations of cruelty were bald and mere filing of criminal case does not amount to cruelty. He further submits that there were sufficient grounds for the wife to leave the matrimonial home and the trial Court has failed to appreciate the evidence in proper perspective.

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Thus, he seeks for reversal of the order of the trial Court and dismissal of the petition.

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Sri N.D.Onkarappa, learned Counsel for the petitioner-husband justifying the impugned judgment and order submits that the wife has admitted about she living separately and she failed to prove that there was reasonable excuse for her to stay separately. Her allegations of cruelty were not proved. He further submits that during the pendency of this appeal, petitioner-husband has contracted second marriage, got a child out of the said marriage and if now the decree is reversed that leads to further complications. He further submits that in the year 2023, respondent-wife has initiated the proceedings under the provisions of Protection of Women from Domestic Violence Act, 2005 and in that case the Court has awarded interim maintenance of Rs.5,000/- per month and the same is being paid. Thus, he seeks dismissal of the appeal.

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Considering the submissions of both sides and examining the materials on record, the question that arises for consideration is :

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"Whether the impugned judgment and decree passed by the trial Court for dissolution of marriage is sustainable in law?"

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Analysis

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There is no dispute that the parties are Hindus and

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are governed by the Act. It is also not disputed that they were married on 05.05.2009 and they started living separately about two years prior to filing of the petition i.e., 19.10.2011.

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The husband claims that respondent-wife subjected him to mental cruelty and deserted him without any excuse, thereby he is entitled to decree of divorce. Whereas, the wife claims that it was the husband and his relatives, who ill-treated her mentally and physically for she not begetting the child, which forced her to leave the matrimonial home. When the petitioner-husband has come before the Court seeking decree for dissolution of marriage under Section 13(1)(ia)(ib) of the Act, the burden is on him to establish the said grounds.

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Reg. Cruelty:

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What amounts to mental cruelty and how the cruelty has to be proved was dealt with by the larger bench of the Hon’ble Supreme Court in Samar Ghosh v. Jaya Ghosh¹ . Para

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1 (2007) 4 SCC 511

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101 of the said judgment, which is relevant for the purpose of

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this case, reads as follows:

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"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:

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

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(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.

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(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.

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(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.

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

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(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 . (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.

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(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.

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(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 .

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(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.

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(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.

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(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.

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

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(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."

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(Emphasis supplied)

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In the present case, the allegation of inflicting

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cruelty that too to the extent of causing mental depression to

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the petitioner, being serious in nature, he has to plead the particulars and prove the same by cogent evidence. In the petition, the particulars about when and what kind of mental depression the petitioner suffered and whether he was treated for that are not pleaded. Even the date and place of alleged illtreatment by the respondent to the petitioner and his family members were not stated. In the cross-examination of PWs.1 and 2, the respondent denied the allegation of cruelty. The observation of the trial Court that the allegations of cruelty were not controverted in the evidence is apparent error.

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Though the petitioner claims that himself and his parents were subjected to ill-treatment by the respondent wife, he did not choose to examine his parents or sisters. He chose to examine PW.2 who was neither neighbour nor witness to the alleged cruelty which had taken place within four walls of the house of the petitioner. PW.2 clearly states that in between the house of himself and the petitioner, there are several other houses. The immediate neighbours would have been the best witnesses to speak to the alleged cruelty, but they were not examined. Absolutely no explanation was given by the petitioner for non examination of his parents, sisters and

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neighbours regarding alleged cruelty or the respondent abusing

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them or ill-treating them.

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The petitioner contended that because of insistence

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of the respondent, he separated from his parents and that was the cruelty inflicted by the respondent. But the respondent claimed that to defeat all her claims, the petitioner, his parents and sisters have effected partition subsequently. The petitioner did not whisper any particulars of such partition nor produced any documents of such partition to find out what was the cause mentioned in the partition document. Contrary to that, the petitioner in the petition itself imputes disloyalty to the respondent claiming that during odd hours she used to go outside the house and indulge in conversation with some other men. In the cross-examination, he admits that she was conversing when she was between the family members. If that be so, how the respondent could talk over the phone and speak with strangers was not clarified. The trial Court also disbelieved such allegations on the ground that the petitioner neither produced any call detail records nor produced any documents to show that the respondent was possessing phone.

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According to the trial Court, respondent’s complaint

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against the petitioner, his parents and sisters was cruelty. Records show that they were being tried in C.C.No.442/2012. The very fact of filing of the charge sheet and finding that to be a fit case for trial, implies that the law enforcing agency did not find the complaint frivolous. Had the Investigating Officer filed ‘B’ summary report, then it would have been said that the complaint was vexatious. Therefore the trial Court was not justified in observing that such prosecution of the petitioner and his relatives amounts to cruelty.

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It was argued before this Court that in C.C.No.442/2012 the petitioner and his relatives were acquitted. First of all, nothing is produced to show such acquittal. Secondly, nothing is produced to show that such acquittal was honourable acquittal or any finding was recorded against the respondent to the effect that the complaint was vexatious to wreck vengeance against the petitioner or his relatives. The copy of the said judgment is not produced by the petitioner husband in this case. Therefore that ground also does not sustain.

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The judgment in Samar Ghosh’s case referred to supra indicates that to call the act as cruelty, it should be such

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that 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 with each other could come within the broad parameters of mental cruelty. It was further held that mere trivial irritations, quarrels between spouses, normal wear and tear which happens in day-to-day married life may also not amount to cruelty and would not be adequate to grant decree of divorce on the ground of mental cruelty.

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In this case, first of all the alleged ground of cruelty namely the respondent ill-treating the petitioner, his parents and sisters of the petitioner were not substantiated by acceptable evidence. Even assuming for the sake of arguments, the respondent had no compatibility with the parents-in-law or sisters-in-law, that does not amount to cruelty as contemplated under Section 13(1)(ia) of the Act and interpreted by the Hon’ble Supreme Court in Samar Ghosh’s case referred to supra . Therefore finding of the trial Court on this point is unsustainable.

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Reg. Desertion:

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The petitioner contended that the respondent has deserted him without reasonable excuse for more than two

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years prior to the petition. The allegation of cruelty is already rejected. Desertion as contemplated under Section 13(1)(ib) of the Act does not mean only the couple living separately. Explanation to Section 13(1) of the Act shows that desertion should be without any reasonable cause.

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The respondent contended that the petitioner himself subjected her and her family members to cruelty making it impossible for her to live in the said house. The petitioner himself in his petition made unfounded allegations that during night hours, the respondent was getting phone calls from some outsiders, soon after she gets call, she used to leave the house during night hours and return. Thereby he made allegations of infidelity to her. Making unfounded imputations of infidelity itself amounts to cruelty. Admittedly in the complaint of the respondent, the petitioner and his parents and sisters were tried in C.C.No.442/2012. That goes to show that there were sufficient grounds for the respondent to leave matrimonial home. If really the petitioner was interested in continuing the matrimonial relationship, on she leaving matrimonial home, he could have filed the petition for restitution of conjugal rights or issue notice seeking restitution of conjugal rights and he did not

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do so. Under the circumstances the finding of the Trial Court on the ground of desertion is unsustainable.

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It was argued before this Court that pending this appeal, the petitioner/husband remarried and he has child out of the said marriage, therefore if decree of divorce is reversed that leads to complications. Atleast, he could have sought permission of the Court to remarry. Such conduct of the petitioner goes to show that he himself wanted to end his conjugal relationship with the respondent/wife to find new spouse. The trial Court without appreciation of the aforesaid fact granted decree of divorce which is unsustainable.

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So far as the contention of complication due to second marriage of the petitioner pending this appeal, the petitioner has willingly invited the same. More over no material is placed to show when and whom he married and the said contention is totally baseless. Even otherwise, a flawed judgment cannot be confirmed only for the purpose of legitimizing the alleged second marriage of the petitioner/husband. Showing such leniency amounts to thwarting the cause of justice. Under the circumstances, the

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impugned judgment cannot be confirmed and the same is liable

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to be set aside. Hence the following:

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ORDER

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The appeal is allowed with costs.

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The impugned judgment and decree dated 24.08.2016 in M.C.No.43/2011 passed by the Senior Civil Judge and JMFC, Holalkere is hereby set aside.

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M.C.No.43/2011 is hereby dismissed.

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Sd/JUDGE

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Sd/JUDGE

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BSR,KSR List No.: 1 Sl No.: 38

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