Sri. Venkatesh Babu.R vs Smt.V. Tulasimala
2022 Latest Caselaw 9366 Kant

                           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.217 OF 2016 (FC)
BETWEEN:

SRI. VENKATESH BABU.R
AGED ABOUT 42 YEARS,
S/O LATE RAMAKRISHNA,
R/AT 151, 4TH MAIN, 4TH CROSS,
B.S.K. 1ST STAGE,
SRINIVASANAGAR,
BENGALURU - 560 050.
                                     ... APPELLANT
(BY SRI. PRABHUGOUD B. TUMBIGI, ADVOCATE)

AND:

SMT. V. TULASIMALA
AGED ABOUT 39 YEARS,
W/O VENKATESH BABU R,
BEHIND SREE LAKSHMI-VENKATESHWARA
KALYANAMANTAPA, SARJAPUR ROAD,
ATTIBELE, ANEKAL TALUK,
BENGALURU DISTRICT - 562 107.
                                      ...RESPONDENT
(BY SMT. T.R.RAJESHWARI, ADVOCATE)

     THIS MFA IS FILED UNDER SECTION 19 (1) OF THE
FAMILY COURTS ACT, PRAYING TO ALLOW THIS MFA AND BE
PLEASED TO SET ASIDE THE JUDGMENT AND DECREE DATED
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22.06.2015 PASSED BY THE LEARNED VI ADDITIONAL
PRINCIPAL   JUDGE,    FAMILY   COURT,   BENGALURU     IN
M.C.NO.1592/2005 AND CONSEQUENTLY BE PLEASED TO
DISMISS   THE   PETITION   OF   THE   RESPONDENT    i.e.,
M.C.NO.1592/2005 IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS MFA HAVING BEEN HEARD AND RESERVED ON
07.06.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:
                      JUDGMENT

This appeal filed by the husband under Section

19(1) of the Family Courts Act, 1984 challenging the

impugned judgment and decree in M.C.No.1592/2005

dated 22.06.2015, by which the Family Court has

granted a decree of divorce under Section 13(1) (i-a) of

the Hindu Marriage Act, 1955.

2. For the sake of convenience the parties are

referred to by their rank before the Family Court.

3. FACTS: Briefly stated the facts giving rise to

filing of this appeal are that the marriage between

petitioner and respondent was solemnized on

25.10.1998, at Sri. Lakshmi Venkateshwara Choultry,

Attibele, as per the Hindu customs and rituals. Though

in the beginning respondent looked after the petitioner

with love and affection, later on he along with his parents

started sending the petitioner fortnightly to get money for

opening a Bar and Restaurant. He used to come home

late in a drunken condition, quarrel and assault the

petitioner. He was not satisfied with the fact that at the

time of marriage, petitioner's parents gave gold jewels

weighing 1 ½ Kgs and cash of Rs.5,00,000/- by way of

dowry. He was also pestering her to get a motor cycle.

During December 2000 assaulted petitioner with a knife.

3.1 It is further case of the petitioner that while

she was pregnant, during January 2001, when she went

to her parent's house and during check up at the Nursing

Home, Doctor advised her to be admitted to the hospital

as she was anemic. However, respondent forcibly took

her to his residence at Bengaluru. When her health

condition deteriorated she was admitted to the hospital

by her parents. On 12.09.2001, respondent forced her to

return to the matrimonial home. When she suffered

severe chest and stomach pain, she was admitted to

Vishwabharati Nursing Home. On 15.09.2001, the

Doctors informed her that the child has died in the

womb. Later when respondent refused to take her to the

matrimonial home, without any alternative she went

back to her parents house.

3.2 It is further case of the petitioner that during

April 2002, on the demand of respondent, the petitioner's

father gave him Rs.5,00,000/- and during May 2002,

purchased him a Pulsar motor cycle. Even when she was

admitted to Narayana Hrudayalaya, the respondent did

not visit her. After her discharge from the hospital,

respondent again demanded Rs.5,00,000/- to purchase a

Bar and Restaurant. During March 2003, petitioner gave

birth to a son. Respondent and his family members did

not even come to see the child. During naming ceremony

also the relatives of the petitioners demanded money and

created a scene. In April 2005, respondent demanded his

father-in-law to transfer the title deeds of choultry to his

name and when refused, he threatened to kill the

petitioner and her family members including the child. In

fact, on 21.04.2015, at the instance of respondent, 4-5

unknown persons entered the house and assaulted the

petitioner and her parents, in which incident petitioner's

father died. Respondent was not proceeded against for

lack of evidence. On 19.05.2005, respondent and his

friends attempted to kidnap the son of the petitioner.

3.3 Petitioner is subjected to physical and mental

cruelty by the respondent. She was humiliated, insulted

and made fun of by the respondent at the home as well

as outside. The life of petitioner has become a hell.

Petitioner, her mother and son are not safe at the hands

of respondent. Inspite of advise by the elders and

common friends, respondent has not changed his

attitude and without any alternative petitioner is seeking

decree of divorce on the ground of cruelty.

4. Respondent has filed objections admitting the

relationship between the parties and the fact that they

have a son through the wedlock. However, he has denied

all the allegations of demand of dowry, physical and

mental harassment attributed to him. He has pleaded

that the family of petitioner are very well off whereas he

has a humble background. Therefore, they were reluctant

to accept the alliance of petitioner. The mother of

petitioner wanted to give her in marriage to her brother,

but her father was against it. Therefore, petitioner's

father persuaded the respondent to marry her. Since the

petitioner was only child of her parents, her father

wanted the respondent to be their son.

4.1 Respondent has alleged that since petitioner's

mother was not happy with the alliance, she was not in

good terms with the respondent. She was egoistic

towards respondent and his family members. Petitioner

used to visit her parents house once in fortnight during

which period her mother slowly poisoned her mind.

During her pregnancy in the fifth month, petitioner went

to her parent's house, but she went on postponing her

return to the matrimonial home. In the ninth month of

pregnancy at the request of petitioner's father, the

respondent brought the petitioner to his house at

Bengaluru as there were no good hospitals at Attibele.

However, the child died in the womb, as petitioner's

parents were not able to provide her with proper medical

attention during her pregnancy. When she was admitted

to Vishwabharati Nursing Home, it was revealed that the

child had died.

4.2 After the delivery, as desired by her respondent

sent the petitioner to her parent's house to take rest. At

her request he also set up a separate residence. Though

petitioner joined him for sometime, while he went to

Shabari Malai temple, petitioner went to her parent's

house. After his return from Shabarimalai petitioner went

on postponing her return to the matrimonial home. After

petitioner became pregnant, respondent visited her and

requested to return to the matrimonial home. However,

she went on postponing the same. Since in the

meanwhile, petitioner's father suffered heart attack and

he was hospitalised, respondent did not insist upon

petitioner's return to the matrimonial home. Ultimately,

she gave birth to a son on 25.03.2003. Even after the

naming ceremony held on 03.03.2004, petitioner did not

return to the matrimonial home. Unfortunately, on

21.04.2005, petitioner and her parents were attacked by

dacoits and her father died due to the incident. Even

after his death, the respondent requested the petitioner

to return to the matrimonial home, but she refused. She

went to the extent of alleging that he tried to kidnap the

child. The Police did not proceed against the respondent

for lack of evidence. It is pleaded that the petitioner is

seeking divorce at the instigation of her mother and uncle

Roopachandra and has sought for dismissal of the

petition.

5. On the other hand, respondent has filed G &

W C.No.140/2005 seeking custody of his son.

6. Based on the pleadings the Family Court

framed the necessary issues.

7. M.C.No.1592/2005 and G & W.C.No.140/2005

clubbed together and common enquiry is held.

8. During the enquiry, petitioner examined

herself as PW-1 and got marked Ex.P1 to 39.

9. On behalf of respondent, RWs-1 to 5 are

examined, including the respondent. Ex.R1 to 9 were

marked on his behalf.

10. Vide the impugned judgment and decree, the

Family Court allowed the petition filed by the petitioner

granting decree of divorce on the ground of cruelty and

rejected the petition filed by the respondent for custody of

their son.

11. Though initially MFA 217/2016 and MFA

216/2016 were clubbed together and proceeded with, it

was submitted across the bar that the child in respect of

whom the G & WC was filed, has attained majority and

therefore MFA 216/2016 be disposed of as having

become infructuous and accordingly, it be de-linked from

this appeal.

12. During the course of arguments the learned

counsel representing the respondent submitted that the

pleading documents and evidence clearly shows that till

the death of petitioner's father there was cordiality

between the petitioner and respondent and this fact is

not properly appreciated by the Family Court. Since the

petitioner and respondent are related to each other prior

to their marriage, there was no question of any demand

of dowry or harassment. Based on minor instances, the

Family Court has held that the allegation of cruelty is

proved and granted decree of divorce. Only after the

death of her father, petitioner was mislead by her mother

and maternal uncle and this fact is not properly

appreciated by the Family Court. viewed from any angle

the impugned judgment and decree is not sustainable

and sought for dismissal of the same and prays to set

aside the same.

13. On the other hand the learned counsel

representing the petitioner submits that after the death

of only brother of the petitioner, her father with the fond

hope that respondent in his capacity as the son-in-law

would fill the place of his son, got married the petitioner

with the respondent by spending huge amount and

inspite of giving dowry in the form of ½ Kgs of gold and

Rs.5,00,000/- in cash, respondent was not satisfied.

After the marriage he started harassing and ill treating

the petitioner and in spite of meeting his demand, money

and other valuable articles, he was not satisfied. On

account of the ill treatment, petitioner lost her first child

during her 9th month of pregnancy. Even after the birth

of the second child i.e., son, respondent did not mend his

behavior and ultimately on his instigation, the petitioner

and her parents were attacked in which, the father of the

petitioner died. Ultimately, being not able to bear the

harassment any more, petitioner has sought a decree of

divorce. Based on the oral and documentary evidence

placed on record, the Family Court has accepted the

contention of the petitioner and allowed her petition for

divorce and at the same time rejected the petition filed by

the respondent for custody of their son. It is also

submitted that there are no grounds to interfere with the

well reasoned judgment of the Family Court and

accordingly dismissal of the appeal was sought for.

14. We have heard elaborate arguments on both

sides and have perused the record.

15. It is not in dispute that petitioner is from a

wealthy family. The fact that her brother died before her

marriage with the respondent is also not disputed.

Consequently petitioner is the only heir of her parents.

In fact in the objections statement itself, respondent has

conceded the fact that petitioner is from an affluent

family, where as he is from a middle class family and as

such he was reluctant to marry the petitioner. During

the course of her evidence, petitioner in unequivocal

terms has deposed that in spite of performing the

marriage in a grand manner by paying dowry of

Rs.5,00,000/- and also giving ornaments weighing

around one and a half Kg, respondent was not satisfied

and every fortnight he used to send the petitioner to her

parents house demanding money and in fact her father

used to meet his demand in order to see that his

daughter is happy in the matrimonial home. For the

aforesaid purpose, petitioner's father has paid around 10

to 15 lakhs to the respondent. The evidence placed on

record also prove the fact that throughout her pregnancy,

respondent did not take any responsibility of taking

petitioner to his house and meeting her medical expenses

and on the other hand when she was in full terms, on

12.09.2001 he has gone to the house of maternal home

of the petitioner and demanded her to accompany him.

Since, he was honking the horn continuously and

creating an ugly atmosphere, the petitioner accompanied

him immediately in her night gown itself. The evidence

placed on record also prove the fact that the petitioner

took her to a hotel which is at a distance of about 100 ft

from her house and they stayed the night in the hotel

and on the next day he has taken her to the matrimonial

house. As a result of the aforesaid mental harassment,

she suffered with high blood pressure and chest pain and

nausea and with great reluctance she was taken to the

Vishwabharathi Nursing Home at Hanumanthanagar.

However by that time the child had already died in the

womb. Therefore, the evidence on record clearly establish

that the petitioner has lost her child after a full term

pregnancy of nine months.

16. The evidence placed on record by the petitioner

further establish the fact that even after she lost the

child, the respondent did not chose to stay with her and

on the other hand he demanded a Pulsar motor cycle and

cash. After his demand was met, he went to the

matrimonial home of the petitioner once in fortnight and

after sometime demanded that his ancestral home at

Shivajinagar be demolished and in its place, a shopping

complex be constructed. When the said demand was not

met, he did not care to meet the petitioner even after

coming to know that she was pregnant with the second

child. Even after she gave birth to a son, respondent and

his family members have not bothered to see the child.

Even when the Doctors insisted that the signature of the

husband is necessary for the surgery, he has not come

forward to sign the papers. The evidence placed on record

also prove the fact that when the naming ceremony was

conducted, respondent and his family members have

gone to the choultry and have created a scene. After the

birth of the second child, when petitioner's father left her

in the matrimonial home along with child, respondent

and his family members have not taken care of them.

Upon looking at the attitude of the respondent and his

family members, the petitioner's father took her back to

his house.

17. It is also contended that while the petitioner

and her parents were in the house, they were attacked by

dacoits and in the said incident, her father sustained

serious injuries and died while undergoing treatment.

The petitioner gravely suspected the involvement of

respondent. Respondent has made allegations that

petitioner's mother was not inclined to marry her off to

the respondent and on the other hand she wanted her to

be given in marriage to her brother Roopachandra and

after the death of the father of the petitioner, at the

instance of her mother and her uncle, petitioner is not

inclined to live with the respondent and has filed a false

petition. However, respondent has failed to establish the

said fact by leading cogent and convincing evidence.

18. On the other hand the evidence on record

which has been adduced by the petitioner establish the

fact that even during the lifetime of the father of the

petitioner, she was harassed and ill treated by the

respondent and this harassment did not stop even after

his death. The case as made out by respondent through

the evidence of RWs-2 to 5 is inconsistent with evidence.

The evidence of RW-2 to 5 are with regard to those

aspects with reference to which there are no pleadings in

the written statement. Having regard to the fact that the

petitioner is coming from an affluent family and after

tragic death of her brother and father, she is the only

legal heir to the estate of her father, the interest of

respondent appears to have been directed towards

enjoying the property of his father-in-law. Based on the

oral and documentary evidence placed on record, the

Family Court by a well reasoned judgment has rightly

rejected the contention of the respondent and on the

other hand has accepted the case of the petitioner and

granted a decree of divorce on the ground of cruelty. We

do not find any justification to interfere with impugned

judgment and decree and accordingly, we proceed to pass

the following:

ORDER

(i) The appeal filed by the respondent is dismissed.

(ii) In the circumstances, the costs are made easy.

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

Sd/-

JUDGE

Sd/-

JUDGE

RR