Sri Nanjundaswamy vs Smt S Mangala
2022 Latest Caselaw 9476 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD 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.1992 OF 2017 (FC)

BETWEEN:

SRI.NANJUNDASWAMY,
S/O LATE SRI.MADAIAH,
AGED ABOUT 52 YEARS,
R/AT NO.316, EWS 1ST STAGE,
HEBBAL, LAKSHMIKANTHANAGARA,
MYSURU - 571 117.
                                        ... APPELLANT
(BY MR.V.R.BALARAJ, ADV.,)

AND:

SMT.S.MANGALA,
W/O SRI.NANJUNDASWAMY,
AGED ABOUT 45 YEARS,
C/O DASAPPA, NO.657,
LIG, SUBRAMANYA NAGAR,
HEBBAL, MYSURU - 571 116.
                                        ... RESPONDENT
(BY MR.F.S.DABALI, ADV., )
                             ---

     THIS M.F.A. IS FILED U/S 19(1) OF THE FAMILY
COURTS ACT, 1984, AGAINST THE JUDGMENT AND DECREE
DATED 07.02.2017 PASSED IN M.C.NO.68 OF 2014 ON THE
FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, MYSURU,
DISMISSING THE PETITION FILED UNDER SECTION 13(1)(ia)
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OF THE HINDU MARRIAGE ACT, FOR DISSOLUTION OF
MARRIAGE.

    THIS M.F.A. COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                              JUDGMENT

This appeal under Section 19 of the Family

Courts Act, 1984 has been filed against the judgment

dated 07.02.2017 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' for short) has been dismissed.

2. Facts giving rise to filing of this appeal in

nutshell are that the marriage between the appellant

and respondent was solemnized on 22.05.1989. Out

of the wedlock, three children were born. The

appellant filed a petition under Section 13 of the Act

on 10.02.2014 seeking dissolution of marriage. It was

inter alia pleaded that since beginning, the

respondent doubted the fidelity of the appellant and

used to torture and ill treat him. It was further

pleaded that on account of misbehaviour of the

respondent, the appellant shifted the matrimonial

home to his place viz., Ittanalli Koppalu. It was

pleaded that respondent used to quarrel with the

appellant and assaulted him in public. The

respondent also lodged a criminal complaint against

the appellant for an offence under Section 498A and

307 of Indian Penal Code, 1860 on 12.10.2012. It was

further pleaded that the appellant was arrested and

was in judicial custody for a period of 18 days. It was

also pleaded that appellant had also lodged a

complaint against respondent's brother before

Vijayanagar Police Station, Mysore on 08.06.2013. It

was averred that the marriage between the parties

have irretrievably broken down and the respondent

has treated the appellant with cruelty. Accordingly, a

decree of dissolution of marriage under Section

13(1)(i-a) of the Act was sought.

3. The respondent filed statement of

objections in which the relationship between the

parties was admitted. However, it was denied that she

has subjected the appellant to cruelty. It was pleaded

that the appellant has not provided basic necessities

to the respondent and has assaulted her and turned

her out of the matrimonial home. Therefore, the

respondent lodged a complaint against the appellant

for offences under Section 498A and 307 of Indian

Penal Code. It was also averred that appellant is

working as Senior Health Assistant at Government

Hospital and has an illicit relationship with Junior

Health Assistant viz., Daisy Agnes. It was also averred

that since the respondent was tortured at the

matrimonial home, she has started residing at

Mysuru.

4. The Family Court vide impugned judgment

inter alia held that pursuant to the complaint made

by the respondent, penalty of stoppage of increments

for a period of two years was imposed on the

appellant. It was also found that appellant in his

evidence has admitted that allegation of dowry

demand was found to be proved in a departmental

enquiry. It was also held that the appellant had

developed illicit relationship with aforesaid Daisy

Agnes and was harassing the respondent. It was

further held that the appellant has not placed on

record any documents to show the proceeding

initiated to the complaint as well as First Information

Report filed against him. It was further held that the

appellant has failed to prove the ground of cruelty.

Accordingly, the petition filed by the appellant was

dismissed.

5. Learned counsel for the appellant

submitted that due to the complaints made by the

respondent, the reputation of the appellant was

damaged and therefore, the respondent had inflicted

mental cruelty on the appellant. However, the family

court has failed to take into account the aforesaid

aspect of the matter. In support of aforesaid

submissions, reliance has been placed on decision of

Supreme Court in 'JOY DEEP MAJUMDAR VS.

BHARTHI JAISWAL MAJUMDAR', (2021) 3 SCC 742.

On the other hand, learned counsel for the

respondent has supported the judgment and decree

passed by the family court.

6. We have considered the submission made

by learned counsel on both sides and have perused

the record. In celebrated case of 'DASTANE VS.

DASTANE', AIR 1975 SC 1534, the Supreme Court

while dealing with cruelty as a ground for divorce has

held that in a case for divorce on the ground of

cruelty, the conduct charged as cruelty is to be of

such a character so as to cause in the mind of the

petitioner a reasonable apprehension that it will be

harmful or injurious for the petitioner to live with the

respondent. It was further held that it was not

necessary that cruelty must be of such nature as to

cause danger to life limb or health or as to give rise to

a reasonable apprehension of such a danger of harm

or injury to health or reputation or the like would be

an important consideration in determining whether

the conduct of the respondent amounts to cruelty or

not. It was also held that the question of cruelty as

ground for divorce has to be determined on the basis

of facts and circumstances of each case.

7. It is trite law that standard of proof in a

case of matrimonial dispute pertaining to cruelty

cannot be said to be applicable as is applicable in case

of trial in the Code of Criminal Procedure. However,

the parties to the dispute is required to describe the

measure and standard of cruelty and to lead cogent

evidence to succeed in the plea of dissolution of

marriage on the ground of cruelty. [See: 'MAYADEVI

vs. JAGDISH PRASAD, AIR 2007 SC 1426].

8. In the backdrop of aforesaid well settled

legal principles, we may advert to facts of the case in

hand. In paragraphs 3 to 7, the appellant has pleaded

cruelty. However, the averments made lack in material

particulars inasmuch as the date and time of the

incident has not been mentioned. The general

averments have been made without referring to

particular instances. From the examination in chief of

the appellant, it is evident that averments made in the

petition have been reproduced and vague averments

have been made with regard to cruelty without

furnishing any particulars. The appellant in his

evidence has admitted that on the basis of the

complaint made by the respondent, a penalty of

stoppage of increment for a period of two years was

imposed on the appellant. The Family Court ha also

recorded a finding that the appellant has indirectly

admitted the averments of demand of dowry have

been proved in the departmental enquiry. The

appellant has further to place on record material, if

any, to indicate that he has been acquitted in respect

of the criminal case, which is registered against him.

Even otherwise, from the evidence on record, it cannot

be inferred that cruelty, if any, is of such a nature so

as to cause danger to life or limb or give rise to a

reasonable apprehension of such a danger of harm or

injury.

9. The judgment and decree passed by the

family court is based on meticulous appreciation of

evidence on record. The impugned judgment and

decree does not suffer from any infirmity warranting

interference of this court in this appeal.

For the aforementioned reasons, the appeal fails

and is hereby dismissed.

Sd/-

JUDGE

Sd/-

JUDGE SS