Allowed

Smt. Deepa v. H. S. Sanjeeva

Karnataka HC20 Jun 2024MFA/8411/2016

Case brief

AI extract

What is this about?

Husband's divorce petition on grounds of cruelty and desertion was allowed by the trial court; wife appealed. The High Court held that husband's own unproven allegations of prostitution against her gave her sufficient cause to live separately, and mere separation is not desertion. Appeal allowed, divorce decree set aside.

What did the court decide?

Impugned judgment and decree dated 27.09.2016 in M.C.No.54/2011 set aside; divorce petition dismissed; no costs.

Smt. Deepa Vs H. S. Sanjeeva — Dowry and Cruelty | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:22281-DB MFA No.8411/2016

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF JUNE, 2024 PRESENT

¶4

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

¶5

AND

¶6

THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.8411/2016 (MC)

¶7

BETWEEN:

¶8

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

¶9

SMT. DEEPA W/O H.S. SANJEEVA AGED ABOUT 37 YEARS OCCUPATION: HOMEMAKER R/O. KARAKIKOPPA VILLAGE SAGAR TALUK-577 430 SHIVAMOGGA DISTRICT.

¶10

(BY SRI. RAJENDRA S, ADV., FOR SRI. S.V. PRAKASH, ADV.,)

¶11

…APPELLANT

¶12

AND:

¶13

H.S. SANJEEVA S/O SUKRA POOJARI AGED ABOUT 47 YEARS AGRICULTURIST R/O. HORANI POST SANKADHAHOLE THIRTHAHALLI TALUK-577 432 SHIVAMOGGA DISTRICT.

¶14

…RESPONDENT

¶15

(BY SRI. SHOWRI H.R. ADV.,)

¶16

THIS MFA IS FILED UNDER SECTION 28(1) OF HINDU MARRIAGE ACT, 1955 AGAINST THE JUDGEMENT AND DECREE DATED 27.09.2016 PASSED IN M.C.NO.54 OF 2011 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SAGAR, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(i-a) AND (i-b) OF THE HINDU MARRIAGE ACT, FOR DISSOLLUTION OF MARRIAGE.

¶17

¶18

NC: 2024:KHC:22281-DB MFA No.8411/2016

¶19

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

¶20

JUDGMENT

¶21

Challenging the judgment and decree of dissolution of marriage passed against her, the respondent in M.C. No.54/2011 on the file of the Addl. Sr. Civil Judge and JMFC, Sagar, has preferred this appeal.

¶22

The appellant was the respondent and the respondent was the petitioner in M.C.No.54/2011 before the Trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial Court.

¶23

The marriage of the petitioner and the respondent was solemnized in the year 1997 as per the Hindu customs. The parties being Hindus are governed by the Hindu Marriage Act, 1955 (for short '1955 Act'). After the marriage, the couple begot a daughter by name Sahana on 27.02.1998 and a son by name Sandeep on 19.09.2000. Admittedly, on 22.02.2009, the respondent along with her children, left the house of the petitioner and took shelter in her parental house. The

¶24

3 - NC: 2024:KHC:22281-DB MFA No.8411/2016

¶25

petitioner got issued notice as per Ex.P3 dated 11.03.2009 alleging that the respondent is leading adulterous life, she did not discharge her conjugal duties, she has deserted him without any excuse, therefore, he intends to proceed for divorce. She replied to the same as per Ex.P4 dated 21.03.2009 denying all allegations of cruelty, adultery and desertion. She claimed that the petitioner himself was her tormentor, he was also harassing the children, therefore, she was forced to leave the matrimonial home and take shelter with her parents. She also stated that she is ready to live with him provided he overcomes all his misconduct.

¶26

After issuing the reply notice on 06.04.2009 respondent and her children filed Crl.Misc.No.69/2009 under Section 125 of the Code of Criminal Procedure, 1973 against petitioner claiming that due to his addiction to narcotics and illicit relationship with a woman in Thirthahalli, he squandered the family income, when that was questioned, he subjected the wife and children to cruelty and went on making uncharitable allegations against her. They also claimed in that petition that despite having sufficient income, the petitioner failed and neglected to maintain them and sought maintenance.

¶27

4 - NC: 2024:KHC:22281-DB MFA No.8411/2016

¶28

On 10.10.2011, namely subsequent to

¶29

Crl.Misc.No.69/2009 petitioner filed M.C.No.54/2011 under Section 13(1)(i-a) of the 1955 Act alleging that respondent - wife has subjected him to cruelty and she has deserted him without giving reasonable excuse. The respondent contested

¶30

the petition denying the allegations of cruelty and desertion. She contended that the petitioner, due to his addiction to alcohol and narcotics and his illicit relationship, started squandering the family income and started neglecting his wife and children and when that was questioned, he started troubling her and children. She further contended that being unable to withstand the same, she left to her parents' house with her children and to overcome all his misdeeds, he has filed the petition making allegations of infidelity against her. She sought dismissal of the petition.

¶31

In support of his case, petitioner got examined himself as PW-1 and got marked Ex.P1 to Ex.P9. On behalf of the respondent, she was examined as RW-1 and her father was examined as RW-2 and Ex.R1 to Ex.R4 were marked. The Trial Court, on hearing both side, by the impugned judgment and

¶32

5 - NC: 2024:KHC:22281-DB MFA No.8411/2016

¶33

decree, though held that the petitioner has failed to prove the allegations of adultery, held that the respondent has also failed to prove the illicit relationship of the petitioner along with a woman at Thirthahalli. The Trial Court further held that the respondent had not taken such contention in her reply notice Ex.P4 and she has taken such contentions for the first time in her pleadings in Crl.Misc.No.69/2009 and in her defence in the case on hand and that amounts to cruelty to the petitioner. The Trial Court further held that the respondent in her crossexamination has clearly admitted that since 22.02.2009 she has not returned to the husband's house and there is no cohabitation between them and that amounts to desertion. Thus, granted the decree of divorce.

¶34

Sri.S.V.Prakash, learned counsel for the appellant reiterating the grounds of the appeal, submits that it was the petitioner who had made the allegations of adultery and he had to prove that, which he failed to do so. That itself amounts to cruelty to the respondent and sufficient ground for her to stay separately. He further submits that in Crl.Misc.No.69/2009, the Court, finding the petitioner himself guilty of neglecting his wife and children, awarded maintenance. The Trial Court,

¶35

6 - NC: 2024:KHC:22281-DB MFA No.8411/2016

¶36

overlooking the admission in that regard, has upheld the allegations of cruelty and desertion which is perverse. He submits that the allegations of cruelty and desertion remained only self-serving statement of PW-1 and the Trial Court was in error in relying on such evidence and granting the decree of divorce.

¶37

Per contra, Sri.Showri H.R., learned counsel for the respondent, justifying the impugned judgment and decree, submits that the respondent has admitted living separately from the husband since February 2009 and she herself has made unfounded allegations of infidelity against the husband. That amounts to cruelty to him. Therefore, the Trial Court was justified in granting the decree of divorce.

¶38

On hearing both sides and on examination of the material on record, the point that arises for consideration is " Whether the impugned judgment and decree of divorce is sustainable in law?"

¶39

ANALYSIS

¶40

There is no dispute that the parties were married in 1997 and they begot a daughter and a son on 27.02.1998 and

¶41

¶42

NC: 2024:KHC:22281-DB MFA No.8411/2016

¶43

19.09.2000. It is also not in dispute that they are living separately from 22.02.2009. It is also not in dispute that on 11.03.2009, the petitioner got issued notice Ex.P3 to the respondent making allegations of being indifferent in the conjugal relationship and imputing adultery to her. After issuing reply to the same as per Ex.P4 on 21.03.2009, the respondent and her children filed Crl.Misc.No.69/2009 on 06.04.2009 against the petitioner claiming maintenance. It is also not in dispute that the respondent and her children filed O.S.No.41/2009 on 25.03.2009 before the Civil Judge (Jr. Dn.), Thirthahalli against the petitioner for permanent injunction restraining him from alienating the suit schedule property.

¶44

Thereafter, the petitioner filed M.C.No.54/2011 seeking the decree of divorce on the ground of cruelty and desertion. The following were the acts of cruelty alleged by the petitioner:

¶45

(i) That respondent was averse to village life (ii) She was not cooking for the petitioner

¶46

(iii) She had contemptuous approach towards the

¶47

petitioner and his people

¶48

8 - NC: 2024:KHC:22281-DB MFA No.8411/2016

¶49

(iv) She was frequenting to her parental house without information to him

¶50

(v) She was claiming herself to be a woman activist (vi) She was visiting cinema theatre without

¶51

informing him

¶52

(vii) She was getting many phone calls at odd hours and she was evading the petitioner noticing those things

¶53

(viii) He was getting anonymous calls enquiring about

¶54

her

¶55

(ix) At the instigation of the respondent, her brother and uncle Nagesh had a rift with him. The respondent was denying the paternity of the petitioner over his daughter Sahana.

¶56

(x) She was threatening him of filing police complaint. (xi) In Crl.Misc.No.69/2009, she made unfounded allegations of unchastity

¶57

(xii) On 21.02.2009 despite he speaking to her softly she was enraged and shouted against him and brought some unknown persons to assault him and ultimately, she ran away from his house without any information. Thereafter, she did not return to the matrimonial home despite notice.

¶58

9 - NC: 2024:KHC:22281-DB MFA No.8411/2016

¶59

It is settled law that when a person comes to the

¶60

Court seeking decree of divorce, it is for him to prove the grounds urged. It is also settled law that the routine wear and tear of the marital life do not amount to cruelty. The respondent denied the allegations of she being averse to the village life, not cooking for him, treating him and his people contemptuously, frequenting to her parental house without informing him and getting anonymous calls. She also denied the allegations of she denying the paternity of daughter Sahana, threatening of filing police complaint and she leading adulterous life, etc.

¶61

To prove the above allegations, the petitioner did not examine any of his family members like brothers and sister. When he claimed that she was indifferent towards his parents and not cooking for him, he ought to have examined his family members to prove the said allegation. There was absolutely no explanation for not examining them. In his deposition and in the cross-examination of PW-1, he made very unsavory allegations of respondent being in flesh trade. He went to the extent of saying that she had illicit relationship with his own

¶62

10 - NC: 2024:KHC:22281-DB MFA No.8411/2016

¶63

brother and farm servant and so many people. To prove such allegations, except his self-serving statements, there was no evidence. The Trial Court also held that such allegations were not proved. Even after holding so, the Trial Court holds that in her reply notice Ex.P4, the wife had not imputed infidelity to the petitioner, but she had taken such contention in her petition in Crl.Misc.No.69/2009 and in her defence in the present case and that amounts to cruelty to the husband. If the Trial Court found any omissions and improvements between the notice and the pleadings, at the most that may be a ground to reject the defence but that itself does not constitute the ground for the Trial Court to grant him decree of divorce considering the same as an act of cruelty. Trial Court itself says in paragraph 22 of the judgment that the parties have made acrimonious allegations against each other. It is not only that respondent has made such allegations, as already said the petitioner has also made very distasteful allegations against his wife who is the mother of his two children. That itself amounts cruelty for her. But that does not become a ground to grant decree of divorce on the ground of cruelty.

¶64

11 - NC: 2024:KHC:22281-DB MFA No.8411/2016

¶65

The Hon'ble Supreme Court in the judgment of N.G.Dastane v. Mrs.S.Dastane¹ , while considering the burden of proof when the grounds of cruelty is alleged, held that doubtless that the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. Therefore, it was held that the petitioner must prove that the respondent has treated him with cruelty under the relevant law. Though the petitioner referred to the allegations made against him in Crl.Misc.No.69/2009, he did not say that such statement caused him mental torture or harassment. Even otherwise, it is a settled position of law that the degree of cruelty depends upon the status of the parties and their mind set, etc. In this regard, the Hon'ble Supreme Court in paragraph 99 of the judgment in Samar Ghosh v. Jaya Ghosh² held as follows:

¶66

"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

¶67

1 (1975) 2 SCC 326

¶68

2 (2007) 4 SCC 511

¶69

12 -

¶70

NC: 2024:KHC:22281-DB MFA No.8411/2016

¶71

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 ."

¶72

emphasis supplied

¶73

The material on record shows that the petitioner

¶74

himself made very shameful allegations of prostitution against his wife who is the mother of his two children without proving the same. That shows his standards and culture. For such person, wife making an allegation of he having an illicit relationship cannot be treated as cruelty moreover, wife alone has not made that allegation but children have also made that allegation. At this stage, Sri.Showri, learned counsel for the petitioner submits that the minor children were represented by the respondent herself, therefore, that cannot be treated as allegations of the children. The petitioner himself made such a

¶75

serious allegation of wife indulging in prostitution. Despite that, he did not request the Court in the proceedings in Crl.Misc.No.69/2009 for her removal from guardianship in the case on the ground that she is living adulterous life and she is

¶76

13 -

¶77

NC: 2024:KHC:22281-DB MFA No.8411/2016

¶78

not a fit person to be the guardian of the children. Therefore, that contention, at this stage cannot be countenanced.

¶79

Though before the Trial Court it was elicited that Crl.Misc.No.69/2009 was allowed, neither of the parties produced the copy of the judgment nor the Court also required them to produce. However on this Court's request, learned counsel for the petitioner - husband had produced the copy of the judgment dated 24.02.2012 in Crl.Misc.No.69/2009. Since that is a judgment between the parties, the same is taken on record. A reading of the said judgment shows that in that case, the Court held that the petitioner making allegations of prostitution against the respondent constitutes sufficient cause for her to live separately in her parents' house. The said Court also held that the petitioner having sufficient means, has failed and neglected to maintain his wife and children and awarded maintenance of Rs.1,000/- p.m. to each of them. The said findings have attained finality.

¶80

The Trial Court, though was aware that the petition in Crl.Misc.No.69/2009 was allowed, without looking into the findings in that case and only referring to the statement of RW-

¶81

14 -

¶82

NC: 2024:KHC:22281-DB MFA No.8411/2016

¶83

1 i.e. respondent in her cross-examination that she has not returned to the matrimonial home since 22.02.2009, held that amounts to desertion. In saying so, the Trial Court lost sight of Section 13(1)(i-a) of the 1955 Act and explanation to the same. Reading of Section 13(1)(ib) of the 1955 Act along with explanation to the said section shows that mere living separately does not constitute desertion. To call it as desertion, the other party should live separately without reasonable cause. In the present case, the petitioner had made serious unfounded allegation of adultery against the respondent which not only humiliates her, but also pierces her soul. That amounts to sufficient cause for she living separately. Therefore, the findings of the Trial Court both on cruelty and desertion were contrary to the evidence on record and against the settled principles of law. Therefore, the impugned judgment and order is liable to be set aside. Hence, the following:

¶84