Smt Radha vs Sri Putta Swamy
2022 Latest Caselaw 9041 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY OF JUNE 2022

                    PRESENT
   THE HON'BLE MR. JUSTICE ALOK ARADHE

                      AND

        THE HON'BLE MS.JUSTICE J.M.KHAZI

            M.F.A.NO.9688 OF 2018 (FC)

BETWEEN:

SMT RADHA
W/O PUTTASWAMY
AGED ABOUT 45 YEARS,
RESIDING AT NO.209,
BHARATH HOUSE
CO-OPERATIVE SOCIETY LAYOUT,
4TH CROSS, BHBCS UTTARAHALLI,
WARD NO.55,
PADMANABHNAGAR
BENGALURU - 560 061
                                  ... APPELLANT
(BY SRI. KAMALESHWARA POOJARY, ADVOCATE)

AND:

SRI PUTTA SWAMY
S/O VENKATAPPA
AGED ABOUT 57 YEARS,
R/AT NAYANA NILAYA,
BEHIND SHAN TAKIS
KUVEMPU NAGAR,
RAMANAGARA TALUK
RAMANAGARA DISTRICT-562159
                                   ... RESPONDENT
(BY SRI. V.VIJAYA SHEKAR, ADVOCATE)

     THIS MFA FILED U/S 19(1) OF FAMILY COURTS
ACT, 1984 PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 08/11/2017, PASSED BY THE IV
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ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT AT
BENGALURU     IN    MC   NO.1191/2015    AND
CONSEQUENTLY TO ALLOW THE DIVORCE PETITION
FILED BY THE APPELLANT UNDER SECTION 13(1)(i-a)
OF HINDU MARRIAGE ACT, 1955 BY GRANTING THE
DECREE OF DIVORCE AS PRAYED BY THE APPELLANT
IN M.C.NO.1191/2015 ON THE FILE OF THE IV
ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU WITH COST.

     THIS MFA COMING ON FOR FINAL HEARING, THIS
DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:

                     JUDGMENT

Being aggrieved by the dismissal of her

petition filed under Section 13(1) (i-a) of the

Hindu Marriage Act, 1955 (hereinafter referred to

as 'the Act') seeking decree of divorce on the

ground of cruelty, the appellant/wife who was the

petitioner before the Family Court has filed this

appeal under Section 19(1) of the Family Courts

Act, 1984.

2. For the sake of convenience the parties

are referred to by their rank before the Family

Court.

3. FACTS: Brief facts leading to the filing

of the petition are that the marriage of petitioner

and respondent was solemnized on 18.05.1989 at

Channapatna as per Hindu customs and rituals.

Through the wedlock, they are blessed with a son

and a daughter who are now aged 23 years and

21 years respectively. Their son is mentally

disabled. It is averred that though respondent

was working in a private company, he did not pay

much attention to his family including providing

treatment to his disabled son and education to

the children.

4. After one year of the marriage,

respondent started consuming alcohol and used

to quarrel with the petitioner. He used to scold

her in vulgar language. When she questioned

respondent about him having an illicit

relationship, he used to assault her and make

allegations against her character. On 07.12.2014,

respondent assaulted the petitioner with a

chopper with the intention to kill her. She was

shifted to Maharaja Agrasena Hospital,

Benglauru by her brother. In this regard, she has

lodged complaint with Ijoor Police in

Cr.No.220/2014 and a charge sheet is filed for

the offences punishable under Sections 498A,

504, 307 IPC. From the date of marriage,

respondent has not at all taken the responsibility

of maintaining the petitioner and their children.

Petitioner reasonably apprehends that it is not

safe for her to live with the respondent.

5. Respondent had appeared before the

Family Court and filed objections admitting the

relationship between the parties and that they are

having a son and daughter. However, he has

denied that after one year he started quarelling

with the petitioner under the influence of alcohol

and used to abuse and assault her. He has

claimed that they lived happily till 2014 when one

Jayakumar, a relative of petitioner started living

in their house. When respondent objected for the

same and requested petitioner to send him out of

their house, she started quarelling with him.

6. Petitioner has purchased two

properties in her name and has let them out on

rent. She has leased two houses for more than

Rs.6,00,000/-p.a. During the absence of

respondent, she has left the matrimonial home

with all the household articles, jewels, etc. Since

December 2014, respondent is living alone.

Petitioner has lodged a false complaint and in the

said case, respondent was arrested and kept in

judicial custody. On the other hand, on

27.08.2014, it was petitioner and said

Jayakumar, who assaulted the respondent. He

was paying the loan installments taken for the

construction of house. Even now, respondent is

ready to take back the petitioner and children. He

has filed O.S.No.170/2015 for declaration that

the two houses are the joint property of petitioner

and respondent.

7. Respondent has denied that on

07.12.2014, he assaulted the petitioner. In fact,

on 21.04.2014, petitioner consumed some tablets

and it was he who shifted her to B.G.S Hospital,

Ramanagara. After being married for 25 years,

making false allegtions, the petitioner is seeking

divorce.

8. Based on pleadings, the Family Court

has framed issues and has recorded the evidence.

9. In support of her case, petitioner has

examined herself PW-1 and relied upon Ex.P1 to

16. Respondent has examined himself as RW-1

and got marked Exs.R-1 to 4.

10. Vide the impugned judgment and

decree, the Family Court rejected the petition.

11. Learned counsel representing the

petitioner argued that inspite of petitioner leading

evidence to prove the allegation of cruelty, the

Family Court has rejected the petition holding

that she has not explained the instances of

cruelty. Having regard to the fact that respondent

has made baseless allegation of illicit relationship

by itself is sufficient to say that she was treated

cruelly by the respondent.

12. He would further submit that the

Family Court has erred in not accepting the case

of the petitioner and inspite of leading the oral

and documentary evidence placed on record, it

has erred in coming to the conclusion that the

allegations of cruelty are not proved. Since the

respondent was not taking care of the family, it

was the petitioner who engaged herself in various

business ranging from saree business, chit fund,

real estate etc., and has managed to purchase the

immovable properties and also construct

residential tenements and has rented the same.

She has raised her children and succeeded in

securing an MBBS degree from Ukraine for her

daughter. She is also taking care of the Son, who

is mentally challenged.

13. Learned counsel for petitioner further

submitted that the respondent has made false

allegations of illicit relationship between

petitioner and one Jayakumar, who is no other

than his cousin and it was the respondent who

brought the said Jayakumar to assist the

petitioner in real estate business. Respondent has

gone to the extent of assaulting the petitioner

fatally and in this regard, based on the complaint

filed by the petitioner, a charge sheet came to be

filed against the respondent and case is pending.

Without appreciating these aspects, terming the

quarrels and dispute between the petitioner and

respondent as normal wear and tear between

married couple, the family Court has erred in

dismissing the petition filed by the petitioner and

prays to set aside the same and grant a decree of

divorce.

14. On the other hand learned counsel for

respondent has supported the impugned

judgment and decree and submitted that after

considering the pleadings, evidence and

arguments, the Family Court has rightly

dismissed the petition and prays to dismiss the

appeal also.

15. We have considered the arguments

advanced by both parties and have perused the

record.

16. The marriage between petitioner and

respondent was solemnized on 18.05.1989. They

are blessed with two children, a daughter and a

son. It is evident that the daughter has studied

MBBS in Ukraine, whereas son is mentally

challenged. Both the children are being taken

care of by the petitioner. It is also evident that

respondent is working as a Supervisor in a

private company. The evidence led by both parties

establish the fact that two sites were purchased

in the name of the petitioner and residential

tenements were constructed and they have been

rented out to the tenants. Some of the tenements

are mortgaged. Respondent claims that all these

properties were acquired through his salary and

he use to give 90% of his salary to the petitioner

and out of that she has purchased these

properties.

17. On the other hand, petitioner has

contended that as respondent was not taking care

of them, she slowly started engaging business.

Initially, she started a saree business, chit fund

business and ultimately, she is engaged in real

estate business and out of the said income from

the said business, she has purchased these

properties.

18. Having regard to the fact that

respondent is working as a Supervisor in a

private company, it cannot be believed that out of

his meager salary after expenses incurred for

taking care of the family expenses including

education of the children, the petitioner was able

to acquire immovable properties and put up

construction of houses, out of the savings from

his salary.

19. The fact that she is engaged in various

business and for assisting in the real estate

business, one Jayaram, a relative of respondent

is staying with them, is not disputed by the

respondent. It is evident that respondent has

raised a loan from the State Bank of India for

acquiring immovable property and he has repaid

the same. Petitioner though admits that loan was

taken in the name of respondent, she has claimed

that it is she who repaid the same. Nevertheless,

whether these immovable properties are acquired

by the petitioner independently or they were

acquired out of the salary income of the

respondent is a matter pending before the Civil

Court which has to be adjudged by the said

Court.

20. Fact remains that on account of the

presence of Jayakumar, a rift started between the

petitioner and respondent. Respondent has gone

to the extent of alleging that petitioner is having

an illicit relationship with the said Jayakumar

and that was the root cause for the bickering

which started between the parties. However,

respondent has not chosen to seek decree of

divorce from the petitioner on the ground that she

is having illicit relationship with the said

Jayakumar. In fact, he has also failed to establish

that they are having any illicit relationship.

Making false allegations of illicit relationship

against a spouse certainly amounts to cruelty.

21. The evidence placed on record

establish that not being satisfied despite making

such allegations, on 07.12.2014, he has

assaulted the petitioner with a chopper and

caused her grievous and simple injuries. Ex.P15

is the wound certificate. She was in-patient for 3

days. In this regard, she has filed a complaint as

per Ex.P13 and after investigation, concerned

police have filed charge sheet against the

respondent and the case is pending. Ex.P4 to 10

are the photographs regarding the injury

sustained by the petitioner. These documents

establish the fact that the respondent has treated

the petitioner cruelly and gone to the extent of

assaulting her. Admittedly, the children are

staying with the petitioner. Subsequent to the

assault by the respondent, when he was in

judicial custody, the petitioner has left the

matrimonial home and since then, she is living

with her brother along with her children.

22. Respondent has made a faint attempt

to prove that he was also assaulted by the

petitioner, Jayakumar on 27.08.2014 i.e., even

before petitioner made allegations of assault

against the respondent. He has chosen to

produce photographs at Ex.R2 which are dated

23.07.2015 i.e., almost 11 months subsequent to

the alleged assault dated 27.08.2014. Admittedly,

respondent has not filed any complaint against

the petitioner and others alleging assault. When

the evidence placed on record is analysed in its

proper perspective, it leads to an irresistible

conclusion that petitioner was treated cruelly by

the respondent. The conduct of the respondent is

such that it would certainly raise an

apprehension in the mind of the petitioner that it

would not be safe for her to live with him. It

appears the main concern of the respondent is

only with regard to the properties standing in the

name of petitioner, which according to him are

acquired through his resources. If that is the

case, he is at liberty to establish the same in the

civil suit which he has already filed and pending

consideration before the competent Civil Court.

23. The Family Court has not appreciated

the oral and documentary evidence placed on

record in its proper perspective and consequently,

fell into error by holding that the petitioner has

not discharged the burden placed on her and on

the other hand has termed the dispute between

them as only normal wear and tear of the married

life. The Hon'ble Supreme Court in Vijay Kumar

Ramachandra Bhate vs Neela Vijay Kumar

Bhate, reported in (2003) 6 SCC 334 has held

that unsubstantiated disgusting accusations

made by one spouse against the other constitute

mental cruelty for sustaining a claim for divorce.

Similarly, in K. Srinivas Rao Vs. D.A. Deepa

reported in (2013) 5 SCC 226 it has held that

making unfounded indecent defamatory

allegations against the spouse or his/her relatives

in the pleadings amount to causing mental

cruelty to the other spouse. Similarly in Raj

Talreja vs. Kavitha Talreja, (2017) KHC 635,

the Hon'ble Supreme Court has held that

reckless, defamatory and false accusations

against her husband, his family members and

colleagues, which would definitely have the effect

of lowering his reputation in the eyes of his peers

amounts to cruelty.

24. When the evidence placed on record in

the present case is analysed in view of the

principles enunciated in these decisions, we are

of the considered opinion that petitioner has

proved the allegations of cruelty against the

respondent and it is a valid ground to grant a

decree of divorce.

25. In the result, the appeal succeeds and

we proceed to pass the following:

ORDER

i) Appeal filed by the petitioner is allowed.

     ii)    The impugned judgment and decree
            dated     08.11.2017           passed   in
            M.C.No.1191/2015          by      the   IV
            Additional    Principal   Judge,    Family
            Court, Bengaluru is set aside.

iii) The petition filed under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 is

allowed. A decree of divorce is granted dissolving the marriage of petitioner with respondent dated 18.05.1989.

iv) The registry is directed to transmit the trial Court record along with copy of this judgment.

Sd/-

JUDGE

Sd/-

JUDGE RR/MDS