Karnataka High Court

Shashikanth vs Nethravathi on 22 June, 2022

Bench: Alok Aradhe, J.M.Khazi

                       1



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.3125 OF 2015 (FC)

BETWEEN:

SHASHIKANTH
S/O SRI SHISHUPAL
AGED ABOUT 37 YEARS
RESIDING AT NO.494
4TH CROSS,
VEERESHESHANNA ROAD
K R MOHALLA
MYSORE - 577311
                                   ... APPELLANT
(BY SRI. SAMPATH A, ADVOCATE FOR
    SMT. RASHMI PATEL, ADVOCATE)

AND:

NETHRAVATHI
D/O MAYACHAR @ ANNAIACHAR
W/O SHASHIKANTH
AGED ABOUT 25 YEARS
RESIDING AT NO. 243
BEHIND N E S QUARTERS
GOKUL ROAD
HUNSUR TOWN
                                  ... RESPONDENT
(BY SRI. V.R.SARATHY, ADVOCATE)
                          2



     THIS MFA IS FILED UNDER SECTION 19(1) OF
THE FAMILY COURTS ACT PRAYING TO a) SET
ASIDE    THE   JUDGMENT     PASSED  IN   M.C
NO.374/2009    DATED    09.10.2014 BY    THE
ADDITIONAL FAMILY JUDGE, MYSORE; b) PASS
SUCH OTHER ORDER OR ORDERS AS THIS
HON'BLE COURT DEEMS FIT TO GRANT IN THE
FACTS AND CIRCUMSTANCES OF THE CASE AND
IN THE INTEREST OF JUSTICE AND EQUITY.

    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 09.10.2014 passed by

the Family Court, by which petition filed by the

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

Hindu Marriage Act, 1955 (hereinafter referred to

as 'the Act' for short) 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 17.06.2007 at

Hunsur. The appellant and respondent thereafter

stayed together in their matrimonial home for

about two weeks. No children have been born to

the parties out of the wedlock.

3. The respondent filed a petition on

20.10.2009, seeking dissolution of marriage. It

was inter-alia averred that the appellant is the

only son of his parents and he had to look after

two sisters. However, soon after marriage,

respondent started ill treating the appellant and

used to defame him in the presence of his

relatives and friends. The respondent insisted for

a separate accommodation and forced the

appellant to demand share in the property

belonging to his father. It was also averred that

the respondent issued threats of committing

suicide and falsely implicated the appellant in

criminal cases. It was also pleaded that the

respondent on 04.10.2009 quarelled with the

appellant and left the matrimonial home. The

appellant therefore sought for dissolution of

marriage on the grounds of cruelty and desertion.

4. The respondent entered appearance

and filed her statement of objections in which the

fact of the marriage was admitted. However, it

was pleaded that she has been ill treated by the

appellant in the matrimonial home and there was

a demand of dowry from the appellant. It was also

pleaded that respondent had filed a complaint

with the police authorities on 14.02.2008,

alleging harassment due to dowry. It was also

pleaded that respondent has not deserted the

appellant, but she has been driven out by the

matrimonial home.

5. The Family Court vide impugned

judgment and decree dated 09.10.2014 inter-alia

has held that neither the ground of desertion nor

the ground of cruelty is made out. Accordingly, it

was held that appellant has failed to prove cruelty

as pleaded by him. Accordingly, the petition filed

by the appellant seeking decree of divorce on the

grounds of desertion and cruelty was dismissed.

6. Learned counsel for the appellant at

the outset fairly submitted that since respondent

had deserted the matrimonial home on

04.10.2009 and the petition was filed on

20.10.2019, therefore, the ground of desertion, in

the facts of the case is not made out. However, it

is pointed out in the statement of objections of

the respondent that the appellant is a drunkard

and was addicted to smoking, etc. and forced the

respondent to abort their child. It is also pointed

out that the aforesaid averments have not been

proved and therefore, the Family Court ought to

have appreciated the fact that respondent

subjected the appellant to mental cruelty. It is

also pointed that since the year 2009, the parties

are living separately and no attempt has been

made by the appellant to join the matrimonial

home. In support of the aforesaid submissions,

reliance has been placed on the decision of

Hon'ble Supreme Court in AIR 1994 SC 710 in

the case of V.Bhagat Vs. Mrs.D.Bhagat.

7. We have considered the submissions

made by the learned counsel for the parties and

have perused the record.

8. 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.

9. On perusal of the aforesaid judgment

of the Hon'ble Supreme Court, it is evident that if

there has been a long period of separation, it may

fairly be concluded that the matrimonial bond is

beyond repair and in such situation it may lead

to mental cruelty. In the instant case, admittedly

the parties are residing separately since

04.10.2009. No attempt has been made by the

respondent to join the matrimonial home,

inasmuch the respondent/wife neither served any

notice for restitution of conjugal rights nor has

initiated proceedings under Section 9 of the Act.