Karnataka High Court
Smt Radha W/O Veeresh Baragundi vs Veeresh S/O Basavaraj Baragundi on 7 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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NC: 2024:KHC-D:16296-DB
MFA No. 102065 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 102065 OF 2023 (FC)
BETWEEN:
SMT. RADHA W/O. VEERESH BARAGUNDI,
AGED ABOUT 22 YEARS, OCC. STUDENT,
R/O. SECTOR NO. 57, NAVANAGAR,
BAGALKOTE-587101.
...APPELLANT
(BY SRI. RAJA RAGHAVENDRA V.NAIK,
SMT. SOUMYA S. GUJAMADI AND
SRI. MAHANTESH HIREMATH, ADVOCATES)
AND:
VEERESH S/O. BASAVARAJ BARAGUNDI,
AGED ABOUT 29 YEARS, OCC. AUTO DRIVER,
R/O. RAJIV GANDHI, ASHRAYA COLONY,
NAVANGAR-BAGALKOTE-587101.
...RESPONDENT
Digitally signed
by JAGADISH T (BY SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE)
R
Location: High
Court of
Karnataka, THIS MFA IS FILED U/S.19(1) OF FAMILY COURT ACT, 1955,
Dharwad Bench
PRAYING TO CALL FOR THE RECORDS AND ALLOW THE APPEAL, AND
SET ASIDE THE JUDGMENT AND AWARD DATED 07.03.2023 IN M.C.
NO.53/2022 PASSED BY THE LEARNED PRINCIPAL JUDGE, FAMILY
COURT, AT: BAGALKOTE, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
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NC: 2024:KHC-D:16296-DB
MFA No. 102065 of 2023
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T) This appeal is filed challenging the judgment and decree dated 7.3.2023 passed in M.C.No.53/2022 by learned Principal Judge, Family Court, Bagalakote, dismissing the petition filed by the appellant under Section 13(1)(i-a) (i-b) of the Hindu Marriage Act, 1955 ('the Act' for short).
2. The appellant was the petitioner and the respondent herein was the respondent before the Family Court. For the sake of convenience, the parties are referred to according to their ranks before the Family Court henceforth.
3. Brief facts of the case:
The marriage of the appellant and the respondent was solemnized on 20.11.2019 at Chikkasangam temple of Bilagi Taluk. After the marriage, their relationship was cordial for a couple of days. Thereafter the respondent and his family members used to abuse and harass the -3- NC: 2024:KHC-D:16296-DB MFA No. 102065 of 2023 appellant physically and mentally and also forced her to bring gold, cash and share of property from her parents' house and thus, evicted her from matrimonial home. In this regard, she left the matrimonial home within two months of the marriage and has been residing in her parental house. Therefore, she filed petition for grant of divorce.
4. After institution of petition before the Family Court, the respondent appeared and filed objections denying the allegations of the appellant, however, he admitted the marriage. The respondent took contention that he is ready and willing to join the company of the appellant, but the appellant herself made cruelty to him and deserted him without any lawful cause. Hence, prayed to dismiss the petition.
5. The appellant in order to prove her case got examined herself as PW-1, however, she did not mark any document. The respondent examined himself as RW1 and got marked two documents as Ex.R1 and R2. Ultimately, -4- NC: 2024:KHC-D:16296-DB MFA No. 102065 of 2023 the Family Court dismissed the petition filed by the appellant.
6. Having heard the learned counsel for the appellant and respondent and on careful perusal of the material on record, the following point arises for our consideration in this appeal:-
''Whether the appellant has made out sufficient ground to interfere with the judgment of the Family Court?''
7. From the perusal of the judgment of the Family Court and the evidence placed on record, the appellant has taken contention that her marriage was solemnized on 20.11.2029 at Chikkasangam temple of Bilagi Taluk, thereafter her marriage was registered in Sub-Registrar Office, Bagalkot. The respondent harassed the appellant and evicted her from the matrimonial home within two months of the marriage. Hence, she filed petition for divorce, on the ground of cruelty and desertion. -5-
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8. Desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.
9. Therefore, 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:
"Divorce.--(1) * * * 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."-6-
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10. 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 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.
11. Some factors to be considered before determining whether a marriage is irretrievably broken down are:
1. Duration of cohabitation after marriage;
2. Last time the parties cohabited;
3. Nature of allegations made by the parties against each other;
4. Attempts to settle disputes between the parties;
5. A sufficiently long period of separation.
12. In the light of the aforesaid factors, now, coming to the facts of the case, there is no dispute that the marriage between the parties was solemnised on 20.11.2019 and they stayed together for a period of two -7- NC: 2024:KHC-D:16296-DB MFA No. 102065 of 2023 months and thereafter, the respondent had withdrawn from the matrimonial house, without assigning any reason, on the pretext that she should bring gold, cash and share of the property. Even after repeated request and beseeches, the respondent did not heed to the request of the appellant. Accordingly, he threw her out from the matrimonial home, as contended by the appellant. Hence, she filed petition for divorce.
13. On the contrary, the respondent has taken contention that he is ready to join the company of the appellant. Accordingly, so many conciliations were held and went in vain. Even this Court, on 13.12.2023, at the request of the parties, referred the matter to the Mediation Centre, Dharwad, but the same has been failed.
14. In order to ascertain the grounds for divorce under the Act, it is just and necessary to analyse Section 13(1)(i-a) of the Act:
"13. Divorce.--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the -8- NC: 2024:KHC-D:16296-DB MFA No. 102065 of 2023 husband or the wife, be dissolved by a decree of divorce on the ground that the other party--
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the appellant with cruelty; or
15. The Amending Act of 1976 (Act 68 of 1976) had 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:
"Statement of Objects and Reasons for the Marriage Laws(Amendment) Bill, 1976:
"(1) To liberalise the provisions relating to divorce;
(2) to enable expeditious disposal of proceedings under the Act; and (3) to remove certain anomalies and handicaps that have come to light after the passing of the Acts."
16. While applying the sub-clauses to Section 13(1) of 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 -9- NC: 2024:KHC-D:16296-DB MFA No. 102065 of 2023 setting, educational qualification(s), financial status, employment, caste, community, age and place.
17. The word 'cruelty' under Section 13(1)(i-a) of the 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.
18. In the case of VISHWANATH AGRAWAL v. SARLA VISHWANATH AGRAWAL reported in (2012) 7 SCC 288, the Hon'ble Apex Court at para Nos.22 and 25.5 held as under:
"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.
xxx xxx xxx 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
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NC: 2024:KHC-D:16296-DB MFA No. 102065 of 2023 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."
19. In SAMAR GHOSH v. JAYA GHOSH reported in (2007) 4 SCC 511, the Hon'ble Apex Court, while referring to the concept of cruelty, which includes mental cruelty, in English, American, Canadian and Australian cases, at para Nos.99 and 100 it is observed as under:
"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.
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
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NC: 2024:KHC-D:16296-DB MFA No. 102065 of 2023 circumstances while taking aforementioned factors in consideration.'' (emphasis supplied)
20. 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 contours and rigours for grant of divorce at the instance of the parties.
21. In the case of DR. N.G. DASTANE v.
MRS. S. DASTANE reported in (1975) 2 SCC 326, the Hon'ble Apex Court at para Nos. 25, 26 and 27 held as under:
"25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and
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NC: 2024:KHC-D:16296-DB MFA No. 102065 of 2023 the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.
26. Neither Section 10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor Section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the appellant must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is "satisfied" on matters mentioned in clauses (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word "satisfied"
must mean "satisfied on a preponderance of probabilities" and not "satisfied beyond a reasonable doubt". Section 23 does not alter the standard of proof in civil cases.
27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a "matrimonial offence". Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases."
22. From the aforesaid judgment, it becomes clear that in order to prove the requirement of cruelty, the
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NC: 2024:KHC-D:16296-DB MFA No. 102065 of 2023 appellant must prove that the respondent caused cruelty to her and hence, she left the company of the respondent and thus, seeks for divorce. The proof required from the appellant in a petition for divorce on the ground of cruelty and desertion is not beyond reasonable doubt, but of preponderance of probability.
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. Whereas in the instant case, the appellant herself left the company of the respondent on the pretext that she is interested in prosecuting the education. As per contention of the learned counsel for the appellant, she is prosecuting her Degree in SDM College, Dharwad.
24. In the instant case, the burden is on the appellant to prove that respondent caused cruelty to him. Cruelty means and includes behavior that deliberately causes pain or distress to a person. Cruelty for the
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NC: 2024:KHC-D:16296-DB MFA No. 102065 of 2023 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.
25. From the perusal of the evidence on record, it appears that the appellant herself examined on oath as PW1. But, she failed to prove the ingredients of cruelty and desertion from her evidence. The evidence discloses only general and omnibus allegations against the appellant. Thus, it clearly establishes that the allegations made in the petition and evidence do not constitute any ingredient of Section 13(1)(i-a)(i-b) of the Act.
26. Hence, the Family Court has rightly declined to grant the decree of divorce. For the reasons aforesaid, we are inclined to affirm the judgment of the Family Court in M.C.No.53/2022.
27. Hence, we proceed to pass the following:
ORDER
i) The appeal is dismissed.
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MFA No. 102065 of 2023
ii) The impugned judgment and decree
dated 7.3.2023 passed in
M.C.No.53/2022 by learned Principal
Judge, Family Court, Bagalakote, is
hereby confirmed.
iii) In view of the disposal of the appeal, pending IAs', if any, stand disposed of. Costs made easy.
iv) The Registry to send copy of this judgment to the Family Court, along with Trial Court records.
Sd/-
(H.T.NARENDRA PRASAD) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE JTR/ct-an List No.: 1 Sl No.: 16