Sri B K Ramesh vs Smt Dhanalakshmi
2022 Latest Caselaw 9352 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 22ND 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.1708 OF 2015 (FC)

  BETWEEN:

  SRI B K RAMESH
  S/O KENCHAIAH,
  AGED 32 YEARS,
  R/OF BYRANAMAKKI
  DEVADHANA VILLAGE,
  KHANDYA HOBLI,
  CHIKMAGALUR-577101
                                     ... APPELLANT
  (BY SRI. V.D.RAVIRAJ, ADVOCATE)

  AND:

  SMT DHANALAKSHMI
  W/O B.K. RAMESH
  AGED 27 YEARS,
  R/OF BYRANAMAKKI VILLAGE,
  SANGAMESHWARA PETE POST,
  KHANDYA HOBLI,
  CHIKMAGALUR-577101.
                                    ... RESPONDENT
  (BY SRI. SACHIN B.S., ADVOCATE)

      THIS MFA IS FILED UNDER SECTION 19(1) OF
  FAMILY COURTS ACT, PRAYING TO SET ASIDE THE
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JUDGMENT AND DECREE DATED 11.11.2014
PASSED IN M.C.NO.220/2013 BY THE PRINCIPAL
JUDGE, FAMILY COURT, AT CHICKMAGALUR, BY
ALLOWING THIS APPEAL AND CONSEQUENTLY
ALLOW THE M.C.NO.220/2013 FILED BY THE
APPELLANT IN THE INTEREST OF JUSTICE.

    THIS MFA COMING ON FOR FINAL HEARING,
THIS DAY, ALOK ARADHE J., DELIVERED THE
FOLLOWING:


                   JUDGMENT

This appeal under Section 19(1) of the

Family Courts Act, 1984 has been filed against

judgment and decree dated 11.11.2014 passed by

the Family Court, by which petition filed by the

appellant under Section 13(1) (i-a) of the Hindu

Marriage Act, 1955 (hereinafter referred to as 'the

Act') seeking dissolution of marriage has been

dismissed.

2. Facts giving rise to the filing of this

appeal briefly stated are that marriage between

the parties was solemnized on 18.06.2006 in

Chikamagalur. Out of the wedlock, admittedly, a

son and a daughter has been born to the parties.

3. On 03.08.2013, the appellant filed a

petition seeking dissolution of the marriage. It

was inter-alia pleaded that the respondent had an

affair with one S. Pete Satish, who also had

assaulted the appellant. It was pleaded that a

complaint was lodged with the police by the

appellant. It was also pleaded that in view of the

affair, which the respondent had with one S.Pete

Satish, the appellant had to suffer humiliation

and insult and appellant tried to commit suicide

on 14.09.2012. It was also pleaded that at the

instigation of the respondent, her brother viz.,

one Mahendra attacked the appellant with sickle

and assaulted him. Thereupon, a complaint to

the police was filed on 29.09.2012. It was pleaded

that children born out of the marriage are in the

care and custody of the appellant and the petition

filed by the respondent seeking custody of the

children has been dismissed. The appellant

thereupon sought dissolution of marriage on the

ground of adultery as well as cruelty.

4. The respondent filed statement of

objections in which relationship between the

parties has been admitted. However, it was

pleaded that behavior of the appellant is

abnormal and he is receiving medical treatment

on account of his psychological disorder. It was

also pleaded that the appellant is a drunkard and

has an illicit relationship with a women. However,

the allegations with regard to the cruelty and

adultery were denied.

5. The Family Court on the basis of the

pleadings of the parties framed the issues and

recorded the evidence.

6. The appellant examined himself as PW-

1 and 5 documents viz., Ex.P1 to 5 were marked

and respondent got examined herself as RW-1.

7. The Family Court vide impugned

judgment and decree inter-alia held that the

appellant has not impleaded the adulterer as

respondent and therefore the ground of adultery

was not made out. It was further held that except

the self-serving statement of the appellant, there

is no other material on record with regard to the

allegations of cruelty. The Family Court,

therefore, held that the ground of the adultery

and cruelty is not proved. Accordingly, petition

filed by the appellant was dismissed. In the

aforesaid factual background, this appeal has

been filed.

8. The learned counsel for the appellant

has invited the attention of this Court to the

admission made by the respondent in her

evidence to the effect that a news item was

published with regard to her alleged affair with

one S.Pete Satish. She has further admitted that

after publication of the news item, the appellant

tried to commit suicide. It is submitted that at the

instance of the respondent, the appellant was

assaulted and the evidence on record proves that

appellant was subjected to mental cruelty.

However, the aforesaid aspect of the matter has

not been appreciated by the Family Court. It is

also submitted that the parties have been

residing separately since 2012 and the marriage

between the parties therefore, deserves to be

dissolved by a decree of divorce.

9. On the other hand, learned counsel for

the respondent has supported the impugned

judgment and decree passed by the Family Court.

It is further submitted that since the appellant

has failed to implead the alleged adulterer in the

proceedings, therefore, the Family Court has

rightly declined the decree on the ground of

adultery. It is further submitted that the

appellant has failed to prove the ground of

cruelty. It is also argued that the impugned

judgment and decree is just and proper and does

not call for any interference by this Court.

10. We have considered the submission

made by both sides and have perused the record.

11. In SAMAR GHOSH VS JAYA GOSH

(2007) 4 SCC 511, the Supreme Court inter alia

has elaborated the instances of mental cruelty

which are reproduced below for the facility of

reference:

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 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 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.

(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.

12.. 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.

13. When the evidence placed on record in

the present case is analysed in view of the

principles enunciated in the aforesaid decisions,

we are of the considered opinion that petitioner

has proved the allegations of cruelty meted out to

him by the respondent.

14. The respondent in para-8 of her

statement of objections has averred that the

appellant is abnormal and has taken treatment at

Manasa Nursing Home, Shimoga for his mental

abnrmality. It has also been stated that he is

having an illicit relationship with one Vishala,

R/o Matthikanda, Khandya Hobli.

15. In her evidence, the respondent has

admitted that a news item was published with

regard to the alleged illicit relationship with

S.Pete Satish in the news paper and after

publication of the aforesaid news item, the

appellant tried to commit suicide. It is also been

stated by her in the evidence that the appellant is

a alcoholic and he is abnormal and receiving

treatment for his mental ailment. It is also been

stated that the appellant is having illicit

relationship with a women.

16. It is pertinent to mention here that the

aforesaid unsubstantial allegations which have

not been proved, the respondent has neither

summoned the medical records nor has examined

any Doctors, in support of the plea that the

appellant has suffered from mental ailment and is

receiving treatment. Similarly, no evidence has

been adduced by the respondent, except for the

self-serving statement by her to the effect that the

appellant is an alcoholic. Even otherwise, the

petition deserves to be allowed on the ground of

cruelty. The Hon'ble Supreme Court in Samar

Ghosh's case supra has held that if there is a

long period of separation, it may be fairly

concluded that matrimonial bond is beyond

repair and such circumstances may lead to

mental cruelty. It is pertinent to note that the

parties have been residing separately for about 12

years. The respondent-wife has not pleaded and

proved any justification for denying her company

to the appellant. Moreover, it appears from the

evidence on record that the wife is not interested

in joining the matrimonial home.

16. Therefore, on the basis of the aforesaid

evidence on record as well as taking into account

holistic view of the evidence on record as well as

the fact that parties are residing separately for

past 12 years, we hold that in the facts of the

case, the appellant has made out the ground of

cruelty and it can be concluded that the

respondent has subjected the appellant to mental

cruelty. Therefore, the impugned judgment and

decree insofar as it rejects the petition filed by the

appellant under Section 13(1) (i-a) of the Act on

the ground of cruelty deserves to be set aside.

However, the appellant has not impleaded the

alleged adulterer in the proceedings in the

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

Therefore, the Family Court has rightly rejected

the petition for dissolution of marriage on the

ground of adultery.

19. For the aforementioned reasons, the

impugned judgment and decree dated 11.11.2014

is hereby set aside and the marriage between the

parties is dissolved by a decree of divorce on the

ground of cruelty under Section 13(1)(i-a) of the

Act.

In the result, the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

RR