Allowed

B.N.Dhanalakshmi v. S.Naresh

Karnataka HC19 Jun 2024MFA/2522/2017

Case brief

AI extract

What is this about?

Wife appealed against a divorce decree granted on cruelty and desertion. The High Court held the two-year desertion requirement was unmet, cruelty allegations lacked cogent evidence, and mere filing of a dowry complaint is not cruelty; the decree was set aside.

What did the court decide?

Appeal allowed; judgment and decree dated 10.02.2017 in M.C.No.50/2014 set aside; M.C.No.50/2014 dismissed.

B.N.Dhanalakshmi Vs S.Naresh — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC:22087-DB MFA No.2522/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JUNE, 2024

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PRESENT

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

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AND

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THE HON'BLE MR.JUSTICE VIJAYKUMAR A. PATIL

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MISCELLANEOUS FIRST APPEAL No.2522/2017 (MC)

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BETWEEN:

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B.N.DHANALAKSHMI W/O S.NARESH D/O.B.N.NARASIMHALU AGED ABOUT 30 YEARS R/AT VIJAYA COLLEGE CAMPUS R.V.ROAD, BASAVANAGUDI BANGALORE – 560 004 …APPELLANT

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(BY SRI B.M.BALIGA, ADVOCATE)

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AND:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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S.NARESH S/O SHIVARAMAN AGED ABOUT 33 YEARS R/AT NO.171F, WEST RAILWAY COLONY BANGARPET – 563 114 …RESPONDENT

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(BY SRI LAKSHMI NARAYANA SETTY L.R., ADVOCATE [ABSENT])

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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 10.02.2017 PASSED BY ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, K.G.F IN M.C.NO.50/2014 ALLOWING THE PETITION FILED UNDER SECTION 13 OF THE HINDU MARRIAGE ACT FOR DISSOLUTION OF MARRIAGE.

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

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NC: 2024:KHC:22087-DB MFA No.2522/2017

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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.50/2014 on the file of Additional Senior Civil Judge, JMFC, KGF has preferred this appeal.

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The respondent was the petitioner and the appellant was the respondent in M.C.No.50/2014 before the Trial Court. For the purpose of convenience, the parties are henceforth referred to according to their ranks before the trial Court.

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The petitioner and the respondent are Hindus. Their marriage was solemnized on 26.04.2012 as per the customs of Hindu religion. Out of the said marriage, on 24.10.2013 son by name Kushal was born to the couple.

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The petitioner filed M.C.No.50/2014 on 07.06.2014 under Section 13(1)(iii) of the Hindu Marriage Act, 1955 (‘the Act’ for short) seeking decree for dissolution of marriage. In the petition he alleged that after marriage, he and the respondent were living together in his parental house at Bangarpet. Thereafter some quarrels cropped up between them. The respondent went to her parents’ house at Bangalore without informing him. In September, a panchayat

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NC: 2024:KHC:22087-DB MFA No.2522/2017

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was convened. In that panchayat the respondent demanded that the petitioner should separate from his parents and set up separate house. Since the mother of the petitioner is suffering from heart ailment, she needed his support. The respondent ill-treated him and his family members and threatened them of filing police complaint. Though she gave birth to son on 24.10.2013, the said fact was not informed to him. When he tried to see the son in the parental house of the respondent, they threw him out of the house and threatened him that if he comes again, police complaint will be filed. In May 2014, the respondent filed complaint before Bangarpet police in which the petitioner and his family members were summoned to the police station. In the police station, he was threatened that if he does not separate from his parents, he will be sent behind the bars. He claimed that such acts of the respondent amount to cruelty and sought decree of divorce.

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The respondent contested the petition denying the allegations of cruelty, demand for setting up of separate house or demand to separate from his parents. She also denied the allegations of not informing about the birth of the son or throwing him out, when he visited her parental house for seeing the child or threatening him of filing police

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complaint. She contended that the mother and the sister of the petitioner subjected her to cruelty demanding dowry. She claimed that the petitioner’s sister quarreled with him demanding room occupied by the couple. Consequently, the petitioner himself came out of his parental house and set up house in Bangalore. Thereafter the petitioner abandoned her and joined his parents. When she tried to join him, she was thrown out and she was forced to take shelter in her parental house. On some mediation, when she was pregnant, she stayed five months in the house of the petitioner. The petitioner did not take care of her medical needs during her pregnancy. Even during that time, she was subjected to cruelty by the petitioner and his family members. Thereafter her parents took her back to their house. After delivery the petitioner at the instigation of his mother never bothered to visit her and see the child. The petitioner was employed in Railways and earning Rs.15,000/- per month. But he failed and neglected to maintain the respondent and her child. She is always ready and willing to join him. Section 13(1)(iii) of the Act contemplates grant of decree of divorce on the ground of incurable mental ill-health. The petition is liable to be dismissed as no such grounds were urged in the petition.

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NC: 2024:KHC:22087-DB MFA No.2522/2017

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In support of his case, the petitioner got examined himself as PW.1 and got marked Exs.P1 to P4. The respondent got examined herself as RW.1. No documents were marked on her behalf.

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The Trial Court on hearing the parties by the impugned judgment and decree held that though the petition is purportedly filed under Section 13(1)(iii) of the Act, the contents of the petition show that decree of divorce sought on the ground of cruelty and desertion but the substance of the petition has to be seen and quoting the wrong provision is not fatal. The Trial Court further held that Exs.P3 and P4 the copies of the complaint and first information report respectively show that, on the basis of the complaint of the respondent, Bangarpet police registered Crime No.164/2014 against the petitioner, his parents and sister. They were being prosecuted in C.C.No.563/2015 on the allegations of dowry harassment and that amounts to cruelty. The Trial Court further held that though the respondent contended that she had informed the birth of son, the same was not proved. Such act also amounts to cruelty.

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Sri B.M.Baliga, learned Counsel for the

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appellant/wife submits that the petition itself was filed within

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two years from the date of marriage. As per the petition itself, the child was born on 24.10.2013 and the petition was filed on 07.06.2014. That goes to show that there was no desertion for a period of two years preceding the petition. More over the petition shows that the decree was not sought on the ground of desertion. But, the Trial Court granted decree of divorce on the ground of desertion which is patently illegal. So far as the ground of cruelty, he submits that the very fact of filing of the charge sheet and trying the petitioner and his family members on the ground of dowry harassment shows that the complaint was not vexatious. The Trial Court committed error in holding that filing of the complaint amounts to cruelty, though RW.1 deposed that she was subjected to cruelty in the hands of the petitioner and his family members for the sake of dowry. The allegations of cruelty and demand of separate house were not proved by cogent evidence. Thus he seeks reversal of the impugned judgment and decree. Counsel for respondent herein (husband) did not turn up to address the arguments.

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On considering the submission of appellant’s Counsel and on perusal of records, the point that arises for determination of the Court is “Whether the impugned

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judgment and decree of divorce granted by the Trial Court is

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sustainable in law?”

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Analysis

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There is no dispute that the parties are Hindus,

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their marriage took place on 26.04.2012, son was born on 24.10.2013 and the petitioner filed the petition for divorce on 07.06.2014.

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The petition was styled as one under Section 13(1)(iii) of the Act. The said provision contemplates grant of decree of divorce on the ground of incurable mental unsoundness of the other spouse. In the entire petition there is no allegation of the respondent suffering from any mental ill-health or mental unsoundness. Secondly, reading of the entire petition shows that the petitioner did not seek decree of divorce on the ground of desertion. He only claimed that the respondent on becoming pregnant and after going to her parental house, did not return on the ground that he should set up separate house and separate from his parents.

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It was not the case of any of the parties that birth of the child was premature. If that is taken into consideration, she must have lived in the house of the petitioner atleast till

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her pregnancy. Even according to para 5 of the petition, a panchayat was held in September 2013. To grant decree of divorce under Section 13(1)(ib) of the Act, there should be willful separation for two years preceding the presentation of the petition. The petition was presented on 07.06.2014. Therefore mandate of two years as contemplated under Section 13(1)(ib) of the Act was not complied. Probably for that reason the petitioner also did not seek decree of divorce on the ground of desertion. The Trial Court in gross dereliction of provision of Section 13(1)(ib) of the Act and the pleadings and evidence of the parties, has granted decree of divorce on the ground of desertion which is wholly unsustainable.

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So far as the ground of cruelty, the Trial Court mainly proceeded on the ground that the respondent/wife filing the police complaint on the allegations of dowry harassment amount to cruelty. It is settled principle of law that allegations of cruelty must be specific and cogent evidence shall be adduced with regard to such acts of cruelty. The following were the acts of cruelty alleged by the petitioner against the respondent:

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(i) The respondent/wife demanded that the petitioner should separate from his parents and set up separate house;

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(ii) The respondent ill-treated the petitioner and his

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parents and sister;

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(iii) The birth of the child was not informed to him;

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and

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(iv) The respondent and her parents threatened to file

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police complaint.

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So far as ill-treatment by the respondent to the petitioner’s parents and sister, except the self serving testimony of the petitioner himself which was disputed by the respondent, there was no independent evidence. His sister or parents were not examined by the petitioner. It is material to note that Exs.P3 and P4 show that the respondent filed the complaint against the petitioner and his family members on 26.06.2014 alleging that all of them subjected her to physical and mental cruelty in connection with their unlawful demand for dowry and ousted her from the matrimonial house. On investigation the charge sheet was filed against them. The Trial Court itself refers that they were being tried in C.C.No.563/2015 by the jurisdictional Court. The filing of the charge sheet itself shows that the compliant filed by the respondent was not found vexatious one. The Investigating agency found some substance in the same and filed the

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NC: 2024:KHC:22087-DB MFA No.2522/2017

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charge sheet. Mere filing of the police complaint and registration of first information report do not amount to cruelty. Such prosecution of the petitioner and his family members probabilizes the defence of the respondent that it was the petitioner and his family members who subjected her to cruelty and threw her out.

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Further the petitioner though claimed that the respondent had not informed him about birth of the child, being parent he did not seek to file any application seeking visitation rights or custody of the child. Exs.P3 and P4 were not filed in the year 2013. Thereby, the allegations that when he went to the parental house of the respondent on the birth of the child (which took place on 24.10.2013), they threatened to file the police complaint against him does not sustain. Even in the complaint Ex.P3 there was no allegation that wife and her parents threatened him when he tried to enter their house to see the child. That also falsifies his case of they threatening him to file the complaint or restraining him from visiting the parental house of the respondent to see the child.

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At the cost of repetition, it should be stated that though the petitioner alleged that the respondent ill-treated his parents or sister and demanded for separate house, they were not examined. Though it was contended in the petition that panchayat was convened in September to sort out the issue, no person who participated in the alleged panchayat was examined. The Trial Court without judiciously evaluating the evidence, accepted the petitioner’s version that filing of the complaint under Section 498A of IPC against the petitioner and his family members amounts to cruelty.

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The Trial Court relied on the judgment in Kottiveera Venkata Padmavathi vs. Kotti Sriram (1(2003) DMC 383) . Reading of the said judgment shows that in that case the allegations of wife demanding to set up separate house from the parents was held proved. Further the husband in that case was acquitted in the prosecution initiated on the complaint of the wife. In the present case, first of all 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

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NC: 2024:KHC:22087-DB MFA No.2522/2017

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in this case. Therefore the said judgment was mis-applied by

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the Trial Court while answering point of cruelty.

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It is settled proposition of law that routine wear and tear of the marital life do not amount to cruelty. No evidence was adduced to show ill-treatment by the respondent to the petitioner and his relatives. The grant of decree on the ground of desertion was grossly erroneous. Therefore the impugned judgment and decree is unsustainable. 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 10.02.2017 in M.C.No.50/2014 passed by the Additional Senior Civil Judge & JMFC, KGF is hereby set aside.

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M.C.No.50/2014 is hereby dismissed.

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No order as to costs.

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Sd/JUDGE

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Sd/JUDGE

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KSR List No.: 1 Sl No.: 23

B.N.Dhanalakshmi v. S.Naresh

Case brief

What is this about?

What did the court decide?

B.N.Dhanalakshmi v. S.Naresh

Case brief

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