Parubai W/O Raghavendra Rathod vs Ragvendra S/O Tukaram Rathod
2021 Latest Caselaw 3539 Kant

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          IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

    DATED THIS THE 27TH DAY OF OCTOBER 2021

                       PRESENT

        THE HON'BLE MR.JUSTICE R. DEVDAS
                         AND
 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

MISCELLANEOUS FIRST APPEAL No.200958/2014 (FC)


BETWEEN:

Parubai W/o Raghavendra Rathod,
Aged about 26 years,
Occ: Woman Police Constable,
R/o B-10 New Building,
DAR Quarters, Gulbarga.
                                       ......Appellant

(By Sri Ameet Kumar Deshpande, Advocate)

AND:

Ragvendra S/o Tukaram Rathod,
Aged about 30 years, Occ: Constable in DAR
R/o B-10 New Building,
DAR Quarters, Gulbarga585103.
                                         ...Respondent

(By Sri Shivanand Patil, Advocate)
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     This MFA is filed under Section 19(1) of the Family
Courts Act, 1984, praying to allow this appeal and set-
aside the impugned judgment and decree dated
30.04.2014 passed in M.C.No.108/2013 by the Family
Court, Gulbarga.

     This Appeal having been heard and reserved for
judgment    on    21.10.2021,      coming on    for
pronouncement of judgment this day, Rajendra
Badamikar J., delivered the following:

                      JUDGMENT

The respondent has filed this Misc. First Appeal

under Section 19(1) of the Family Courts Act, 1984

challenging the judgment and decree passed by the

Family Court, Gulbarga in M.C.No.108/2013 dated

30.04.2014 whereby it has allowed the petition filed

under Section 13(1)(ia) of Hindu Marriage Act filed by

the husband-respondent herein and dissolved the

marriage by decree of divorce.

2. For the sake of convenience, the parties

herein are referred with the original ranks occupied by

them before the trial Court.

3. The factual matrix leading to this case are

that, the petitioner husband has filed the petition under

Section 13(1)(ia) of Hindu Marriage Act seeking divorce

against the respondent wife. It is alleged that the

petitioner and respondent are the legally wedded

husband and wife and their marriage was solemnized

on 07.11.2011 at Venkateshwar Kalyan Mantap,

Gulbarga and it was a love cum arranged marriage.

That after the marriage, respondent has joined the

company of the petitioner and out of the said wedlock a

son by name Aryan was born on 19.08.2012. It is

alleged that after the birth of the child, the relationship

between the petitioner and respondent become strained

and respondent had refused to prepare / cook the food

in the house and also she had not cooperated with the

petitioner in marital obligation. It is further alleged that

respondent has refused to cohabit with the petitioner

and did not allow the petitioner any physical contact

with her without any reasons and refused to share bed

with him which amounts to mental cruelty. It is also

alleged that she used to insist for payment of entire

salary to her and later on she ousted the petitioner from

his house. It is also alleged that the respondent is

suspecting the character of the petitioner making

allegation that he is having illicit relationship with

others and the marriage bond was irretrievably broken

down and there is no possibility to reunion. Hence, the

petitioner claims that the act of the respondent

amounts to cruelty and sought for dissolution of the

marriage.

4. The respondent has appeared and admitted

the relationship, but denied the other allegations. She

has contended that the petitioner is addicted to bad

habits like drinking alcohol, gambling and womanizing

and he is a short tampered person, behaved in

abnormal and indifferent manner. She alleged that he

used to come to house late in the night and used to

insist her to bring dowry from her parents. She also

alleged that he sexually harassed her by beating her

and used to abuse her in filthy language and she

tolerated all these ill-treatment with a hope of change in

the attitude of the petitioner in future but there was no

improvement. It is alleged that petitioner has not

married the respondent whole heartedly as he is having

eagle eye over the salary of the respondent and other

allowances. Hence, she has sought for rejection of the

petition.

5. Initially during the trial before the Family

Court, the matter was referred to conciliation, but it did

not materialized. Then petitioner himself was got

examined as PW-1 and his father was examined as PW-

2 and one witness was examined as PW-3. The

petitioner has placed reliance on two documents

marked at Ex.P1 and Ex.P2. The respondent got herself

examined as DW-1 and one another witness was

examined as DW-2. Ex.D1 was marked which is

pertaining to call details between petitioner and one

Saroja.

6. We have heard the arguments advanced by

the learned counsel for appellant and the learned

counsel for respondent at length. We have also perused

the trial court records in detail.

7. The learned counsel for appellant would

contend that the judgment and decree under the appeal

is contrary to law and records of the case. He would

also contended that Ex.P2 is not a authenticated

document which is inadmissible in evidence and it

cannot be looked into. He would also contend that non

performance of daily activities alone does not amount to

cruelty and he would further contend that non proof of

allegations made by the respondent does not assist

petitioner to establish the allegations of cruelty and

burden is on the petitioner/husband to prove that the

allegations are false. He would also contend that

documents produced and evidence led by the petitioner

does not establish the cruelty as alleged and desertion

is not a ground urged for seeking divorce. He would

also contend that a child was also born and the trial

court has failed to consider the future of the child and

hence he would seek for setting aside the impugned

judgment and decree of divorce passed by the trial

court.

8. Per contra, the learned counsel for

respondent would vehemently support the judgment of

the trial court and contend that the respondent wife all

along subjected the husband to cruelty and made false

allegations against his character. He would also

contend that she occupied the quarters allotted to the

petitioner/husband, but ousted him which forced him

to take shelter in his sister's house. He would further

contend that the marriage bond is broken irretrievably

and all the efforts of reunion went in vain. He would

also contend that the respondent has also initiated

498-A IPC proceedings as well as Domestic Violence

proceedings against the family members as she has not

spared any opportunity to harass the husband. Hence,

he would contend that considering these aspects and

appreciating the oral and documentary evidence, the

trial court has come to a right conclusion that marriage

bond was broken irretrievably and granted a decree of

divorce. Hence, he would submit that there are no

grounds forthcoming for interfering with the judgment

of the trial court and sought for rejection of the appeal.

9. Having heard the arguments and after

perusing the records of the trial court, now the following

point would arise for our consideration.

Whether the trial court has erred in granting decree of divorce on the ground of cruelty and the judgment and decree of the trial court is

erroneous, illegal and arbitrary so as to call for any interference by this court.

10. It is an undisputed fact that the petitioner

and respondent are husband and wife and their

marriage was solemnized on 07.11.2011 at

Venkateshwar Kalyan Mantap, Gulbarga. It is also an

undisputed fact that it was a love cum arranged

marriage. Further it is an admitted fact that a son by

name Aryan was born on 19.08.2012 out of the said

wedlock. It is also evident that both the petitioner and

respondent are working in police department. The

petitioner/husband is working as constable in DAR,

while the respondent wife is working as a constable in

University Police Station initially. It is also an

undisputed fact that the respondent wife was residing in

the police quarters allotted to the petitioner husband

and HRA is being deducted from his salary. It is also an

undisputed fact that she is residing along with her

mother and brother and petitioner is residing in his

sister's house at Gulbarga. It is further evident that for

last more than 8 years, the parties are residing

separately and there is no cohabitation between them.

11. It is also important to note hear that the

petition is filed under Section 13(1)(ia) of Hindu

Marriage Act by husband seeking divorce on the ground

of cruelty by wife. The petitioner is not seeking any

divorce on the ground of desertion.

12. The petitioner is examined as PW-1 and in

his examination in chief, he has reiterated the

averments made in the petition. He has further placed

reliance on Ex.P1, which is the certified copy of the

complaint lodged by one Ravindra Rathod against

respondent before S.P.Gulbarga, wherein he has made

serious allegations against the respondent in respect of

she assaulting the complainant and his wife on the

ground that her husband i.e. the present petitioner is

having illicit relationship with wife of Ravindra Rathod.

Ex.P1 is not under serious dispute. Further the

endorsement issued by the respondent to this complaint

discloses that she has confessed her mistake that she

has made such complaint against the wife of Ravindra

Rathod and her husband under mistaken facts.

Therefore, it is evident that she was making allegations

regarding the character of the petitioner/husband.

13. Though PW-1 was cross examined at length,

except a formal denial nothing was elicited so as to

impeach his evidence. During the cross examination of

PW-1 suggestion has been made to him that he is

susceptive in nature about respondent's character

which is nobody's case. The petitioner has also placed

reliance regarding printout of conversation messages

sent by respondent to petitioner under Ex.P2. As

rightly contended by the learned counsel for appellant,

these documents are not admissible in evidence unless

the person who downloaded and got printed these

documents is examined and certification under Section

65(b) of Evidence Act is filed. However, during the

cross examination of PW1 a suggestion was made to

him that he has produced the conversation of

respondent which was recorded in his mobile. By

making such suggestion, the defense counsel has

admitted the contents of Ex.P2 and when Ex.P2 is

admitted by making the suggestion to petitioner himself

in his cross examination, question of proving the said

admitted document does not arise at all. The language

used in the said conversation is vulgar, to say the least.

It is argued that since both the parties are working in

police department, use of such a language is common to

them. But that may be proper in respect of their duty,

but when they are conversing with each other as

husband and wife some dignity and or decorum are

required to be maintained. But these conversation

under Ex.P2 disclose that it has crossed the limit. These

conversations speak in volume about the strained

relationship between the parties and breach in the

mutual trust which is the foundation for the marriage

bond.

14. The respondent wife is examined as DW1

and in her evidence she has denied the allegations made

against her. However in the cross examination, she

admits that she is now residing along with her mother

and brother in the official quarter allotted to petitioner.

She also admits that her in laws are residing in Jewargi.

Her evidence does disclose that they were in love two

years prior to the marriage and they were dating for

almost two years which was subsequently resulted in

marriage. Though in Ex.P1 she has confessed that

under mistaken facts she made allegations, but again

during her evidence, she made allegations regarding

character of the petitioner alleging that he was addicted

to bad vices such as drinking, gambling and is a

womanizer. In her cross examination, she refused to

disclose the name of the ladies with whom the petitioner

had extra marital affair on the ground that she cannot

disclose her name. This clearly discloses that she is

making serious allegations about character / chastity of

petitioner without their being any piece of material

evidence. The chastity / character is not the property of

woman alone and the said principle is also applicable to

a man. Hence, merely because the respondent is a

woman, she cannot make scandalous allegations

regarding the character of her husband. She has placed

reliance on Ex.D1 which is alleged to be a mobile

conversation between Saroja W/o Ravindra Rathod and

the petitioner. At the first instance, how she got this

call sheet is not at all forthcoming and the author of the

call sheet is also not examined. Hence, Ex.D1 itself is

inadmissible in evidence. Apart from that, no evidence

is placed to show that the particular mobile numbers

belong to said Saroja and the petitioner. On the

contrary, Ex.P1 itself establishes that Saroja is related

to petitioner and under such circumstances Ex.D1 does

not help the respondent wife in any way.

15. No doubt non cooking of the food or non

assistance in the family affairs by itself does not amount

to cruelty. Further, there is no material evidence

regarding demand of entire salary as claimed by the

petitioner. However, the allegations regarding the

character assassination in respect of extra marital life

and denying the marital cohabitation amount to cruelty.

For withdrawal from matrimonial relation, there should

be sufficient and reasonable cause, but they are missing

in the instant case.

16. The learned counsel for the appellant has

placed reliance of decision of the Andhra Pradesh High

Court in Civil Miscellaneous Appeal No.1631/2004

dated 24.03.2014 in the case of Katada Baby @ Kollati

Baby V/s Katadi Sri Venkata Satya Raja Sekhar. He

has also further placed reliance on a decision of Andhra

Pradesh High Court reported in 1998 (5) ALD 349 in

the case of Naval Kishore Somani Vs/ Poonam

Somani. On the basis of these citations he would

contend that to establish strict proof in accordance with

evidentiary rule is absolutely indispensable. He would

also contend that merely because the allegations made

by the wife in the counter are not substantiated, that

does not amount to proof of cruelty and in order to

succeed on the ground of cruelty, the petitioner is

required to establish falsity of such a allegation. In the

said case petitioner sought to take advantage of

allegation of cruelty levelled in counter being not

proved, amounts to cruelty on him which was not

accepted as he was required to prove his ground of

cruelty but not in the negative. Such rule is applicable

only when petitioner is seeking to prove cruelty on the

basis of allegation made in counter. But the facts and

circumstances of the said case are entirely different. In

the present case, the allegations of cruelty were based

on the character assassination in respect of extra

marital relationship of petitioner/husband with some

other lady without making any efforts to establish the

same. Further, initially the respondent wife has made

allegations regarding extra marital relationship of

petitioner with Saroja, but subsequently confessed

under Ex.P1 that it was under mistaken fact. However

again in her objection statement as well as in her

evidence she has made allegations against him, but

failed to disclose the name of the woman on the ground

that she cannot disclose the name of said lady for the

best reasons to known to her. Hence, when such

serious allegations regarding character has been made,

same is required to be substantiated and negative

burden cannot be placed on petitioner to disprove the

same. Hence, the principle elicited the above cited

decisions will not come to the aid of the appellant in any

way.

17. Learned counsel for the appellant has

further placed reliance on a decision reported in

SCC- 1999 (3) 620 in the case of S.Hanumantha Rao

V/s S.Ramani. But the facts and circumstances of said

case are entirely different and in the said case there was

no allegations regarding character assassination, but

the allegations were regarding desertion and removing

mangalsutra by the wife which is held that it cannot be

termed as cruelty. But the facts of the present case are

entirely different.

18. The learned counsel for the respondent/

husband has placed reliance on a decision reported in

AIR 2006 SC 1675 in the case of Naveen Kohli V/s

Neelu Kohli, wherein the Hon'ble Apex Court in para

56, 68 and 80 has dealt with issue of cruelty and

irretrievably breakdown of marriage which is

reproduced herewith:

"56. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental

agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

68. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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 do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

80. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some

proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond."

19. The said principles are directly applicable to

the facts and circumstances of the case in hand, as in

the instant case also the marriage bond was broken

irretrievably and all the efforts to reconcile went in vain.

Matrimonial bond is broken beyond repair in the instant

case also and the marriage bond stays on trust and

faith on each other. But in the instant case, that itself

is lacking as the wife is making scandalous allegations

against the character of the husband and his extra

marital relationship without any piece of evidence.

Though she is working in police department, such

scandalous allegations definitely amounts to cruelty and

coupled with the same, there is denial of marital

obligation and comfort of physical relationship between

husband and wife.

20. The learned counsel for the respondent has

further placed reliance on a decision reported in (2007)

4 SCC 511 in the case of Samar Ghosh V/s Jaya

Ghosh, wherein the Hon'ble Apex Court had an

occasion to deal with concept of mental cruelty. In the

said case also the wife has refused cohabitation and

stopped sharing bed with husband which is held to be

mental cruelty on the husband. In the instant case also

the appellant/wife has refused to share the bed and

also making scandalous character assassination and

that definitely attracts the definition of cruelty especially

mental cruelty. Further all the efforts made for

reconciliation did not materialized. This court has also

made all possible efforts for reconciliation, but they did

not yield any fruitful results. The very foundation of

marriage is demolished in the instant case, due to loss

of mutual trust and faith and as such marriage bond is

broken irretrievably as marriage bond ruptured beyond

repairs. As such no purpose will be served by

continuing the marriage bond only for the sake of

records. Under these circumstances, looking to these

facts and circumstances and on appreciating the

evidence on record, it is evident that appellant has failed

to make out any justifiable grounds to interfere with the

judgment and the decree of the trial court. The

judgment and decree of the trial court cannot be said to

be arbitrary or illegal or erroneous so as to call for

interference. Under these circumstances, the appeal is

bound to fail and accordingly we answer the point

under consideration in the negative and proceed to pass

the following;

ORDER

Appeal stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

SMP