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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.8021 OF 2014 (FC)
C/W
M.F.A. NO.71 OF 2015 (FC)
IN MFA No.8021/2014:
BETWEEN:
SRI. C.C.CHALUVARAJU
S/O CHINNEGOWDA,
AGED ABOUT 46 YEARS,
R/O CHEERANAKUPPE,
VILLAGE, KASABA HOBLI,
KANAKAPURA TALUK-562 117,
RAMANAGARAM DISTRICT.
... APPELLANT
(BY SRI. KRISHNA B.R., ADVOCATE)
AND:
SMT. K.S.HEMALATHA
W/O C.C.CHALUVARAJU,
D/O SRINIVASAIAH,
AGED ABOUT 40 YEARS,
RESIDING AT NO.36,
17TH 'C' CROSS
38TH MAIN, ROSE GARDEN,
J.P.NAGAR, 6TH PHASE,
BANGALORE-560 078.
PRESENTLY RESIDING AT
NO.444, VASANTHA NILAYA,
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BENDRE STREET, B.M. EXTENSION,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 120.
....RESPONDENT
(BY SRI.SANJEEV B.L., ADVOCATE FOR
CAVEATOR/RESPONDENT)
THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, 1984 AGAINST THE JUDGMENT AND
DECREE DATED 27.09.2014 PASSED IN MC NO.3689/2011 ON
THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT,
BANGALORE, DISMISSING THE PETITION FILED UNDER
SECTION 13(1)(ia) OF THE HINDU MARRIAGE ACT, 1955.
IN MFA NO.71/2015:
BETWEEN:
SMT. K.S.HEMALATHA
W/O C.C.CHELUVARAJU
AGED ABOUT 41 YEARS,
R/O NO.36, 17TH 'C' CROSS,
38TH MAIN, ROSE GARDEN,
J.P.NAGAR, 6TH PHASE,
BANGALORE;
PRESENTLY RESIDING AT
NO.44, VASANTHA NILAYA,
B.M.EXTENSION,
KANAKAPURA,
RAMANAGAR DISTRICT-562 117.
... APPELLANT
(BY SRI. SANJEEV B.L., ADVOCATE)
AND:
SRI. C.C.CHALUVARAJU
S/O CHINNEGOWDA,
AGED ABOUT 47 YEARS,
R/O CHEERANAKUPPE VILLAGE
KASABA HOBLI,
KANAKAPURA HOBLI-562 117
RAMANAGARAM DISTRICT.
....RESPONDENT
(BY SRI. B.R. KRISHNA, ADVOCATE)
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THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, 1984 AGAINST THE JUDGMENT AND
DECREE DATED 27.09.2014 PASSED IN M.C NO.3689/2011 ON
THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT,
BANGALORE, DISMISSING THE PETITION FILED UNDER
SECTION 13(1)(ia) OF THE HINDU MARRIAGE ACT, 1955 FOR
DISSOLUTION OF MARRIAGE.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY,
NATARAJ RANGASWAMY J., DELIVERED THE FOLLOWING:
JUDGMENT
Though MFA No.8021/2014 is listed today for Orders regarding non-compliance of objections on an interlocutory application, as the records of the Trial Court are received, it is taken up along with the connected appeal - MFA No.71/2015 for final disposal, with the consent of the learned counsel for the parties.
2. MFA No.8021/2014 is filed challenging the Judgment and Decree dated 27.09.2014 passed by Principal Judge, Family Court, Bangalore in M.C.No.3689/ 2011 by which, a petition filed by the appellant for divorce was dismissed.
3. MFA No.71/2015 is filed by the wife challenging the quantum of maintenance awarded by Principal Judge, Family Court, Bangalore in M.C.No.3689/2011.
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4. The parties shall henceforth be referred to as appellant-husband and respondent-wife respectively.
5. The appellant-husband filed a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act' for short) alleging cruelty by the respondent-wife. The facts pleaded by the husband in his petition before the Trial Court are, he had married the respondent-wife on 21.05.1998 at Sri Chamundeswari Kalyana Mantapa, Kanakapura. He claimed that she was not cordial towards him and his family members and was reluctant to perform her duties as a wife and had no respect for him and his family members. He claimed that despite her behaviour, he continued to show love and affection towards her, but yet she did not alter her behaviour. She started demanding the petitioner to set up an independent accommodation at Bangalore. Accordingly, he established a home at Bangalore and started living independently. However, even at Bangalore, she started demanding the monthly salary to fulfil her unreasonable and unwanted demands, as a result he fell in debt with his friends and relatives. He alleged 5 that he tolerated all the mental and physical torture for the smooth running of the family. He alleged that his wife lodged a complaint with Basavanagudi Mahila Police Station, Bangalore on 01.03.2010 alleging the commission of an offence punishable under Section 498-A of the Indian Penal Code, 1860 (IPC) and a case in Crime No.37/2010 was registered against him. He was arrested and was enlarged on bail. Later, he approached his wife and requested her to put an end to the issues and to join him and lead a normal life. However, she refused. Later a charge sheet was filed by the Police in C.C. No.41298/2010. On an application filed by him for discharge, the Court allowed the application in terms of the Order dated 18.06.2011 and discharged him from the case. The respondent-wife did not appeal against the discharge. He claimed that he and his wife have been residing separately ever since then. The appellant-husband got a notice issued calling upon his wife to join him along with their son. However, she refused to join. He alleged that his wife had left the matrimonial home on her own accord and without his knowledge and consent. He also contended that there was no cohabitation with the 6 respondent-wife from several years and that the relationship had irretrievably broken down. Thus he sought for a decree of dissolution of marriage on the ground that his wife had treated him cruelly.
6. The wife contested the petition and denied each and every contention of the husband. She alleged that the husband had attempted to cover up all his mistakes by filing the petition for divorce. She admitted about the lodging of the complaint, filing of the charge sheet but claimed that she was not aware that her husband was discharged from the case. She contended that the department of prosecution ought to have challenged it in appeal and that she had taken steps to challenge it. She alleged that her in-laws were trying to get the appellant-husband married for the second time. She alleged that it was the husband who was cruel to her in the marriage.
7. Based on these rival contentions, the Trial Court framed the following points for consideration:
(i) Does the petitioner prove that the respondent has treated him with cruelty and 7 the cruelty is of such a nature which falls within Section 13(1)(ia) of the Hindu Marriage Act, 1955 ?
(ii) Whether the respondent is entitled for maintenance and if so quantum thereof?
(iii) What Order ?
The appellant-husband was examined as PW.1 and he examined his father as PW.2 and a friend as PW.3 and marked the documents as Exs.P1 to P7 while the respondent-wife was examined as RW.1 and she examined a neighbour as RW.2 and her father as RW.3. RW.3 marked the documents as Exs.R1 and R1(a).
8. The Trial Court felt that the petition did not disclose a clear cause of action and did not spell out the grounds that constituted cruelty in marriage. It therefore felt that if the petition was scanned at the time of its presentation itself, it could have rejected it under Order VII Rule 11 of the Code of Civil Procedure, for non disclosure of the cause of action. The Trial Court held that the allegations of the husband were vague and ambiguous, as no specific incidents were cited in the petition so as to enable the Court to assess whether the acts alleged 8 constituted cruelty. It also held that the husband had condoned the cruelty by setting up a new house in Bangalore. It also held that the petition did not contain any specific instance of cruelty and as to how the behaviour of the respondent constituted cruelty. The Trial Court held that the petition must have been rejected soon after it was filed by invoking Order X Rules 1 and 2 of the Civil Procedure Code. The Trial Court noticed the criminal proceedings initiated by the wife but yet held that the pleadings on record did not satisfy the test as prescribed by the Apex Court in the case of Naveen Kohli vs. Neelu Kohli reported in 2006 AIR SCW 1550 (Naveen Kohli's case). It noted the evidence of the husband about his monthly salary and held that his income was Rs.40,000/- per month and thus directed him to pay Rs.10,000/- per month as maintenance to the respondent-wife from the date of the application.
9. Feeling aggrieved by the above, the husband has filed this appeal. At the instance of this Court, the appeal was adjourned several times so as to enable the parties to arrive at an amicable settlement. However, the 9 parties were unable to reach any settlement. Hence the appeal was taken up for final disposal.
10. We have heard Sri. D.R.Ravishankar for Sri. Krishna B.R., learned counsel for the appellant- husband and Sri. Sanjeev B.L., learned counsel for the respondent-wife. We have perused the records of the Trial Court, its Judgment and Decree as well as the grounds urged in the memorandum of appeal.
11. Learned counsel for the husband contended that the evidence on record indicated that the son of the appellant-husband was found stealing and when the appellant reprimanded the child, the respondent-wife took offence. He contended that the child had continued his habit of stealing even at school, which was the reason that he had to be shifted from one school to another. In this regard, he invited the attention of the Court to the evidence of RW.1 where she admitted that her son was admitted at Jyothi Kendriya Vidyalaya, Yelachenahalli and thereafter at Prarthana School and then at Sai Shankar Prashanthi Nilaya, Ponnampet. He also invited the attention of the Court to the evidence of RW.1 where she 10 deposed that the peers of the child broke his hand and therefore, he was shifted to another school. Learned counsel contended that the wife was in no mood to tolerate the disciplining of the child, which was the root cause for their marriage going sour. He also contended that though there was no demand for dowry, yet she lodged a false complaint against the appellant - husband and that he was incarcerated in jail until his release. He claimed that even after the appellant was discharged from the criminal case, he attempted a rapprochement which was spurned by his wife. He contended that the husband and wife have been separated from the last ten years and that there has been no cohabitation between them and that the marriage has broken down irretrievably. He also contended that the respondent-wife was not willing to join the appellant- husband and she had deprived him of the comforts / pleasure of marriage, which also constituted grave cruelty. He contended that the respondent-wife too was interested to put an end to the marriage.
12. In reply, learned counsel for the wife contended that the petition was vague and bald. He 11 contended that there was no instance of cruelty as alleged by the appellant-husband. On the contrary, the appellant- husband was demanding money from her and her parents. He invited the attention of the Court to the evidence of RW.3 who deposed that the appellant-husband was demanding money to purchase a site and that RW.3 paid 80% of the cost of the site. Further RW.3 deposed that the appellant-husband desired that RW.3 sell off his share in the joint family property, to enable the appellant-husband to put up construction on the site, for which he (RW.3) refused. However, he did not dispute the lodging of a complaint and the registration of Crime No.37/2010 and the consequent arrest and filing of charge sheet in C.C No.41298/2010. Learned counsel submitted that the respondent-wife was not interested in joining the appellant-husband and insisted the Court to pass an Order granting enhancement in permanent alimony to the respondent-wife.
13. In view of the rival contentions urged, the following questions arise for our consideration in this appeal:
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1) Whether, the appellant-husband has proved that the respondent-wife was cruel and that the marriage between them deserved to be dissolved?
2) Whether the respondent - wife is entitled to enhancement in maintenance?3) What order?
14. As rightly contended by the respondent-wife, the appellant-husband failed to plead and prove any instance which according to him constituted cruelty. In an action for dissolution of marriage on the ground of cruelty, it is absolutely necessary for that party to delineate instances which he terms caused cruelty. This is so, having regard to the fact that "Cruelty" is not defined under the Act and is left abstract to be decided on a case to case basis. What is cruel to one may not be to the other and does not depend upon the number of instances. It could be a stand-alone instance or a series of instances continued over a prolonged period of time. It varies from person to person, their social/educational status, their culture/upbringing etc. Thus, in a given case, where the Court is called upon to decide a case of divorce on the 13 ground of cruelty, it is incumbent upon the parties to plead instances of cruelty, so that the Court can assess whether those instances could be termed "cruel" or "normal wear and tear" of family life.
15. The Apex Court in the case of Samar Ghosh vs. Jaya Ghosh reported in 2007(4) SCC 511 (Samar Ghosh's case) considered the dimension of the word "cruelty" as expounded by the Courts in India, England, America and Canada and held as under:
"98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of "mental cruelty" within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.
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, 14 financial position, social status, customs, traditions, religious beliefs, human values and their value system.
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.
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:
(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.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes 15 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.
(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.
(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.
(v) A sustained course of abusive and humiliating treatment calculated to torture,
discommode or render miserable life of the spouse.
(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 16 injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(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.
(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.
(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.
(xi) If a husband submits himself for an operation of sterilization 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.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(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."
Taking a cue from the above, it is evident that except stating that the respondent-wife had lodged a case against the appellant-husband alleging the commission of an offence under Section 498-A of the IPC, the appellant husband neither pleaded nor proved any instance, which according to him constituted cruelty. However, the fact that the respondent-wife had lodged a case against the appellant-husband alleging the commission of an offence under Section 498-A of IPC, his consequent arrest and the 18 filing of the charge sheet in C.C.No.41298/2010 is not disputed. The above stands proved beyond doubt from Exs.P1 to P4. Further, the appellant-husband had caused a notice dated 04.08.2011 (Ex.P5) calling upon the respondent-wife to join him along with their son. However, the respondent-wife accused the appellant of committing acts of cruelty and did not join the appellant. Thus, it is clear that from 01.03.2010, when the respondent-wife lodged a complaint against the appellant, there was no cohabitation between them. The question which consequently props up, is, whether, these two instances could cause cruelty sufficient enough to dissolve a marriage.
16. The Apex Court in Malathi Ravi M.D vs B.V.Ravi reported in 2014(7) SCC 640 held in para Nos.43 to 45 as under:
"43. As we have enumerated the incidents, we are disposed to think that the husband has reasons to feel that he has been humiliated, for allegations have been made against him which are not correct;
his relatives have been dragged into the matrimonial controversy, the assertions in the written statement depict him as if he had tacitly 19 conceded to have harboured notions of gender insensitivity or some kind of male chauvinism, his parents and he are ignored in the naming ceremony of the son, and he comes to learn from others that the wife had gone to Gulbarga to prosecute her studies. That apart, the communications, after the decree for restitution of conjugal rights, indicate the attitude of the wife as if she is playing a game of chess. The launching of criminal prosecution can be perceived from the spectrum of conduct. The learned Magistrate has recorded the judgment of acquittal. The wife had preferred an appeal before the High Court after obtaining leave. After the State Government prefers an appeal in the Court of Session, she chooses to withdraw the appeal. But she intends, as the pleadings would show, that the case should reach the logical conclusion. This conduct manifestly shows the widening of the rift between the parties. It has only increased the bitterness. In such a situation, the husband is likely to lament in every breath and the vibrancy of life melts to give way to sad story of life.
44. From this kind of attitude and treatment it can be inferred that the husband has been treated with mental cruelty and definitely he has faced ignominy being an Associate Professor in a Government Medical College. When one enjoys social status working in a government hospital, this humiliation affects the reputation. That apart, it can be well imagined the slight he might be facing. In fact, the 20 chain of events might have compelled him to go through the whole gamut of emotions. It certainly must have hurt his self-respect and human sensibility. The sanguine concept of marriage presumably has become illusory and it would not be inapposite to say that the wife has shown anaemic emotional disposition to the husband. Therefore, the decree of divorce granted by the High Court deserves to be affirmed singularly on the ground of mental cruelty.
45. Presently, we shall proceed to deal with grant of maintenance. Both the appellant and the respondent are doctors and have their respective jobs. The son is hardly sixteen years old and definitely would require financial support for education and other supportive things to lead a life befitting his social status. The High Court, while granting a decree for divorce should have adverted to it. However, we do not think it appropriate to keep anything alive in this regard between the parties. The controversy is to be put to rest on this score also. Considering the totality of circumstances, the status the appellant enjoys and the strata to which the parties belong, it becomes the bounden duty of the respondent to provide for maintenance and education for the son who is sixteen years old."
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17. In yet another Judgment of the Apex Court in the case of K.Srinivas vs K.Sunita reported in 2014 (16) SCC 34, it was held in para No.5 as under:
"5. The respondent wife has admitted in her cross-examination that she did not mention all the incidents on which her complaint is predicated in her statement under Section 161 CrPC. It is not her case that she had actually narrated all these facts to the investigating officer, but that he had neglected to mention them. This, it seems to us, is clearly indicative of the fact that the criminal complaint was a contrived afterthought. We affirm the view of the High Court that the criminal complaint was "ill advised". Adding thereto is the factor that the High Court had been informed of the acquittal of the appellant husband and members of his family. In these circumstances, the High Court ought to have concluded that the respondent wife knowingly and intentionally filed a false complaint, calculated to embarrass and incarcerate the appellant and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1)(i-a) of the Hindu Marriage Act.
6. Another argument which has been articulated on behalf of the learned counsel for the respondent is that the filing of the criminal complaint has not been pleaded in the petition itself. As we see it, the criminal complaint was 22 filed by the wife after filing of the husband's divorce petition, and being subsequent events could have been looked into by the court. In any event, both the parties were fully aware of this facet of cruelty which was allegedly suffered by the husband. When evidence was led, as also when arguments were addressed, objection had not been raised on behalf of the respondent wife that this aspect of cruelty was beyond the pleadings. We are, therefore, not impressed by this argument raised on her behalf."
18. A Division Bench of this Court in the matter of Kiran.C vs Latha T.G reported in (2016) 2 KCCR 1539 held in para Nos.16 and 18 as follows:
"16. The learned Family Court Judge during the course of her discussion has not at all touched the impact of the complaint lodged by the wife against the husband and his father. That pales the judgment of the trial court as perverse. The wife had every opportunity before the court below to substantiate her act of lodging the complaint against the husband, but she did not take care of this aspect of the matter. What amounts to mental cruelty which can form the ground for divorce is well elaborated by judicial pronouncements till now. The Apex Court in the matter of Naveen Kohli
-vs- Neelu Kohli reported in (2006) 4 SCC 558 recapitulated the principles of law so far crystallized by the series of judgments pronounced 23 by it; at para-48 it was observed that, "the cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits."
xxx
18. By a host of judicial pronouncements, it is now well settled that making unfounded allegations against the other spouse, lodging false complaint against the husband and his family members amounts to mental cruelty and can be a basis to seek decree of divorce. As observed above, both parties are in their mid-thirties, it is in the natural course of a husband confronted with police complaint to apprehend safety of himself in the company of his wife. In 2014 (8) Supreme 36 in the matter of K.Srinivas -vs- K.Sunita, the Apex Court observed that either of the spouse filing false criminal case invariably and indubitably would constitute matrimonial cruelty entitling the other spouse to claim a divorce. The ground of cruelty urged by the husband against his wife has to be appreciated in the backdrop of his age, education, social and cultural background. Dehors all other allegations made against the husband, the consequence of the wife filing a criminal complaint, which in all probability being false and concocted would definitely drive any normal person to uncompromising situation with his wife. Said act of the wife amounts to mental cruelty; there is no 24 evidence to the effect that, the husband himself is guilty of any matrimonial offence, which necessitated the wife to lodge the complaint and subsequent to such lodging of complaint, there is no material from either side that said act of cruelty is condoned. In that view of the matter, the judgment of the Trial Court in rejecting the prayer of the husband is liable to be set aside and the appellant is entitled for dissolution of marriage with the wife."
19. If the complaint (Ex-P2) lodged against the appellant-husband is perused, it shows that the appellant- husband caught their child stealing money from his pocket. When the husband reprimanded the wife in failing to discipline the child, the respondent-wife retorted that the appellant-husband also held a duty to take care of the child. This incident swelled to a flashpoint when the husband lashed the respondent-wife with the waist belt that he was wearing, which compelled the respondent to lodge the complaint. However, RW.1 denied in her evidence that her son was caught stealing money. The respondent-wife had made scathing attacks against the appellant-husband in her complaint before the police. The appellant was arrested and put behind bars until he was 25 released on bail. The appellant was thereafter discharged by the Court and the respondent-wife has not challenged the same till date. Thus, the Trial Court saw that there was no evidence enough to sustain the charge sheet against the appellant. These acts definitely amounted to cruelty by the respondent-wife against the appellant-husband.
20. In addition, the respondent-wife refused to join the appellant, though the latter had called upon her to do so. Even before this Court, the respondent-wife was categorical that she was not interested to join the appellant-husband. It is clear from the material evidence on record, that there is no cohabitation between the parties from March 2010 and onwards, thereby depriving the appellant of marital pleasure, which too tantamount to cruelty as held by the Apex Court in Samar Ghosh (referred supra) that unilateral decision of refusal to have a physical relationship for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
21. In that view of the matter, it is clear that the respondent-wife was cruel towards the appellant-husband 26 which was sufficient enough to dissolve the marriage between them and hence the appellant-husband was entitled to seek dissolution of the marriage by a petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Hence the point framed by this Court for consideration is held in the affirmative.
22. In so far as the claim for maintenance made by the respondent-wife is concerned, the appellant pleaded before the Trial Court as well as before this Court that he earns a net salary of Rs.40,000/- per month. Though the appellant-husband claimed that the respondent-wife is beneficially employed as a Teacher, he failed to produce any evidence in that regard. This Court had directed the appellant to place on record his salary slip, which he failed to produce. In view of the fact that the appellant has a 16 year old child, whose educational expenses are to be borne by the appellant-husband, it is appropriate that the appellant-husband is directed to pay a sum of Rs.20,000/- per month as maintenance to the respondent-wife from the date of filing the application for maintenance before the Trial Court. The appellant-husband shall continue to 27 pay the premium in respect of any or all the insurance policies subscribed in the name of either the respondent- wife or their son.
23. Hence MFA No.8021/2014 is allowed and the impugned Judgment and Decree dated 27.09.2014 passed by the Principal Judge, Family Court, Bangalore, in M.C.No.3689/2011 dismissing the petition filed by the appellant-husband is set aside and the marriage of the respondent-wife with the appellant-husband which was solemnised on 21.05.1998 at Sri Chamundeswari Kalyana Mantapa, Kankapura, is dissolved by a decree of divorce as per section 13(1)(ia) of the Act.
24. MFA No.71/2015 is allowed in part and in modification of the impugned Judgment and Decree passed by the Family Court, the appellant-wife is entitled to maintenance at the rate of Rs.20,000/- per month, from the respondent-husband from the date of filing the application for maintenance before the Trial Court.
Registry to draw up a decree accordingly. 28 In view of the disposal of these appeals, the pending application in MFA No.8021/2014 stands disposed off.
Sd/-
JUDGE Sd/-
JUDGE sma