Karnataka High Court

Smt. Swapna vs Sri Bhatla Penumarthi Venkata on 29 June, 2022

Bench: Alok Aradhe, J.M.Khazi

                       1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 29TH 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.6324 OF 2012 (FC)

BETWEEN:

SMT. SWAPNA
W/O SRI BHATLAPENUMARTHI
VENKATA PHANINDRA KUMAR,
AGED ABOUT 27 YEARS
R/O LR 82, ROHINI HOSTEL,
INDIAN INSTITUTE OF SCIENCE,
BENGALURU - 560 076,
REP BY GPA HOLDER
SMT VIJAYALAKSHMI
W/O LT G RAMRAJ
AGED ABOUT 60 YEARS,
NO.12-2-417/A/5, LIC COLONY,
GUDIMALKAPUR, MEHDIPATNAM,
HYDERBAD - 28

                                ... APPELLANT
(BY SMT. S.SUSHEELA, SENIOR COUNSEL, FOR
 SRI. N.SRINIVASA, ADVOCATE)

AND:

SRI BHATLA PENUMARTHI VENKATA
BALA PHANINDRA KUMAR
S/O B PANDURANGA RAO
AGED ABOUT 36 YEARS
                          2



R/O H.NO.1-8-47,
NEW DILSUKH NAGAR
HYDERABAD - 60

                              ... RESPONDENT
(BY SMT. M.V.LAKSHMI, ADVOCATE)

     THIS MFA FILED U/S 19(1) OF HINDU
MARRIAGE ACT, AND SEC.104 R/W ORDER 43
RULE 1 OF CPC, PRAYING TO a) SET ASIDE THE
ORDER DATED 31.05.2012 PASSED BY THE II
ADDITIONAL    JUDGE,      FAMILY   COURT      AT
BENGALURU IN M.C.NO.329/2008 DISMISSING THE
PETITION FILED U/S 13(1)(ia) [ANNEXURE-A]; b) TO
PASS SUCH OTHER WRIT, ORDER OR DIRECTION
AS THIS HON'BLE COURT MAY DEEM FIT TO
GRANT UNDER THE FACTS AND CIRCUMSTANCES
OF THE CASE, INCLUDING AWARDING COSTS TO
THIS APPELLANT THROUGH OUT, TO MEET THE
ENDS OF JUSTICE.

     THIS MFA HAVING BEEN HEARD AND
RESERVED ON 20.06.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
J.M.KHAZI J., DELIVERED THE FOLLOWING:

                   JUDGMENT

Being aggrieved by dismissal of her petition

filed under Section 13(1)(i-a) of Hindu Marriage

Act, 1955 (hereinafter referred to as 'the Act' for

short) seeking decree of divorce on the ground of

cruelty, petitioner has come up with this appeal

under Section 19 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. Briefly stated the facts leading to the

filing of the petition are that the marriage of

petitioner and respondent was solemnized on

24.02.2006 at Padmaraonagar, Secunderabad. It

was an arranged marriage. Before her

engagement with the respondent, the petitioner

was still prosecuting her studies and therefore,

she attempted to communicate about her future

plans to the respondent that she was not

interested to marry till she settles in her career.

However, respondent assured that he would co-

operate with the petitioner for the completion of

her Ph.D course for a duration of five years.

Therefore, reluctantly the petitioner agreed for the

marriage. After the marriage, petitioner came

back to Bengaluru to continue her Ph.D and on

this account their marriage was not

consummated. Respondent also returned to

Bengaluru in connection with his employment.

He used to visit the petitioner in her campus.

4. Subsequently, he started insisting that

she should join him at his residence. As she had

not completed her Ph.D course she was not

agreeable to the said proposition. Therefore, she

was avoiding the respondent. Without

understanding the situation, respondent started

insulting and abusing the petitioner and used to

cast allegations against her parents. He went on

harassing the petitioner and also threatened to

commit suicide on the ground that their marriage

is not consummated. He harassed her physically

and mentally. He used to say that she is useless

and used to humiliate the petitioner. He used to

call the father of the petitioner and threaten him.

During Janauary 2007, petitioner's father died

due to a heart attack. The lewd remarks made by

the respondent and insults to the petitioner, it

created a tense atmosphere in the family of the

petitioner. Her family members were also

defamed. In this background, it is averred that

the conduct of the respondent threatened the life

of petitioner. The conciliation proceedings also

ended in failure.

5. On 01.11.2007 respondent has sent

legal notice to the petitioner to join him.

Petitioner also approached Mahila Dakshitha

Samithi, a family counseling Centre, Bengaluru.

Inspite of receiving notice, respondent did not

turn up for conciliation. On the other hand, he

filed O.P.No.40/2008 before the Family Court,

Hyderabad for restitution of conjugal rights.

Petitioner refused to join the respondent since

she is yet to complete her Ph.D. In the aforesaid

circumstances, the petitioner is seeking

dissolution of marriage.

      6.   In     the       statement      of    objections,

respondent      has     admitted        the     relationship

between the parties. However, he has alleged that

the petitioner is adamant, rude and egoistic and

he has tolerated the same for a long time. His

parents expected from the petitioner that in

addition to pursuing her studies, the petitioner

would also lead a happy married life. He is ready

to co-operate with the petitioner till her

completion of Ph.D. by staying with her. The filing

of O.P.No.40/2008 seeking restitution of conjugal

rights was admitted. However, he has denied that

respondent has inflicted the cruelty to the

petitioner and insulted her.

7. It is contended that the petitioner did

not heed the advise of her father, family members

as well as elders in the family and that the Family

Court, Bengaluru has no jurisdiction to decide

the matter in dispute and has sought for

dismissal of the petition.

8. During the enquiry, petitioner has

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

to 9. Respondent has not led any evidence on his

behalf, but through the cross-examination has

got marked Ex.R1 and 2.

9. Vide the impugned judgment and

decree dated 31.05.2012, the Family Court has

dismissed the petition filed by the petitioner

holding that the petitioner has failed to prove that

she was treated with cruelty by the respondent.

10. During the course of arguments, the

learned counsel representing the petitioner

submitted that the impugned judgment and

decree is opposed to law, facts and probabilities

of the case. The conduct of respondent amounts

to infliction of mental cruelty. The Family Court

without appreciating the oral and documentary

evidence has jumped to an erroneous conclusion

that no ground for cruelty is made out. The

Family Court has failed to appreciate that prior to

the marriage, petitioner has shared her views

regarding her future family that emotional and

intellectual intimacy of the spouse is essential

rather than physical intimacy and the respondent

has consented for the same.

11. The Family Court has not appreciated

the fact that respondent abused and insulted the

petitioner for non consummation of marriage and

he went to the extent of threatening to commit

suicide. The Family Court has not considered the

averments of the petition and evidence of the

petitioner with regard to the fact that the

respondent did not hesitate to defame the

petitioner in public places and cause fear in her

mind. She had no one to support her and

respondent went to the extent of threatening her

by issuing legal notice.

12. As a result of which petitioner would

have to face consequences which caused mental

cruelty to her and degraded her status in social

circle. When petitioner is pursuing Ph.D, which is

of five years duration, the issue of legal notice by

the respondent calling upon her to join him at

Hyderabad by leaving her studies would amount

to cruelty and this fact is not appreciated by the

Family Court. As a Ph.D student petitioner was

required to spend 15-16 hours a day in her

research. Such being the case, it was impossible

for her to join the respondent. Inspite of all these,

the conduct of respondent in insisting upon the

petitioner to join him amounts to cruelty and the

aforesaid fact is not appreciated by the Family

Court. The Family Court has also not appreciated

the fact that even the family members of

respondent were insisting upon the petitioner to

consent for physical relationship with respondent

at the cost of her education and it certainly

amounts to cruelty. However, the Family Court

without appreciating the evidence led by the

petitioner in its proper perspective, has only

concentrated on the fact that petitioner has not

consented for consummation of marriage and on

that ground rejected the petition and the same

requires interference by this Court.

13. The learned counsel for petitioner has

relied upon the following decisions:

          i)      AIR 2006 SC 16751
                 (Naveen Kohli's case)
          ii)     (2005) 7 SCC 3532
                  (Tripathy's case)



    Naveen Kohli Vs. Neelu Kohli

Durga Prasanna Tripathy Vs. Arundhati Tripathy

14. Heard arguments and perused the

record.

15. From the material placed on record, it

is evident that before her marriage, petitioner was

pursuing her Ph.D in Indian Institute of Science,

Bengaluru, which an is institute of eminence.

Admission to the said institution is only available

to meritorious student. It is the definite case of

the petitioner that she was reluctant to marry

respondent and in fact she expressed the same to

respondent that unless and until she completes

her Ph.D, she is not ready for marriage. Only on

the assurance of the respondent that he would

co-operate and wait till she completes her Ph.D

before they could begin their marital life she

consented to the marriage. Therefore, it is evident

that her parents were desperate to see her settle

in life and only on the assurance of respondent,

she consented for marriage.

16. Petitioner has alleged that however

after the marriage, respondent changed his

version and started insisting upon her to agree

for consummation of marriage and on her refusal

for the same, he started abusing and humiliating

her and also her family members and her family

members were not able to bare with the said

humiliation. Ultimately, her father died due to

heart attack.

17. During the course of her evidence,

petitioner has deposed that because of her busy

schedule in her research work, she could not join

the respondent in his matrimonial home.

However, she made all efforts to attend the

festivals at the matrimonial home at Hyderabad.

Before his family members, respondent would act

and create an impression with the family

members of the petitioner as though he was in

very good terms with the petitioner, but while

interacting with the petitioner, he was blaming

and abusing her for not consummating the

marriage. He was harassing and threatening that

he would commit suicide making her solely

responsible for the dire consequences. He was

also stating that petitioner was a women of bad

character and that she was useless. Because of

this petitioner was feeling great shame and

suffering from mental agony. Despite knowing

that her father is suffering from heart ailment,

respondent used to call the father of the

petitioner and speak to him hours together on the

same issue and that he would not spare him for

marrying the petitioner to the respondent. Unable

to bare with the humiliation, ultimately her father

died due to heart attack.

18. When the insistence of the respondent

increased, without any other alternative,

petitioner has poured her heart out in an e-mail

dated 08.01.2006 at E.P5 wherein she has

implored the respondent. She has specifically

stated that though her parents were desperate to

get her married, at the same time they were

looking for an alliance with a person who is

settled in Bengaluru so that she should not

discontinue her Ph.D and the person should be

able to co-operate with her. She has stated that

only after he agreed that they would postpone

their marital life till she completes the Ph.D, she

consented for the marriage. She has also stated

that if he gets an opportunity to go abroad in the

period during which she is pursuing her Ph.D,

she has no objection for the same. She has also

stated that it was her dream to join Indian

Institute of Science and having regard to the

amount of effort and trauma she has underwent

to have admission, she is very serious about

pursuing the same. She has also stated that on

the other hand, respondent is of the opinion that

they should have kids at the right time so that

they can see them settle in life, but she cannot

afford to have kids for years during the course of

her stay in the Institute. She has pleaded that

after completing her Ph.D, she is ready to carry

on with her matrimonial life and having kids and

raising them. She has also stated that if he was

very particular about having kids immediately

after the marriage, he could have opted for some

other alliance rather than marrying her. Only on

his assurance, she consented for the marriage

and now at this crucial stage, he cannot go back

on his words.

19. It is pertinent to note that respondent

has neither admitted the fact that he had

consented for allowing the petitioner to complete

her Ph.D before they could start their

matrimonial life. He has also not disputed the

said fact. However, he has chosen to issue a legal

notice dated 17.11.2007 calling upon her to join

him at Hyderabad and lead a marital life.

However, in the said legal notice, he has admitted

that petitioner has postponed the consummation

of marriage on the ground that she was not

mentally prepared for it and requested the

respondent to wait till she completes the Ph.D. In

the legal notice, respondent has insisted that the

Hindu marriage system creates an obligation on

the part of the wife to be with the husband under

one roof in his home respecting his feelings and

ideas about the matrimonial life and therefore,

she should come and join him.

20. After receiving the legal notice,

petitioner has approached the Mahila Dakshatha

Samithi for conciliation and in fact as per Ex.P6,

the said family counselor has issued a notice

dated 05.12.2007 to the respondent to appear for

conciliation. It is duly served on him as per

Ex.P7. However, respondent has not chosen to

appear for counseling. On the other hand, he has

chosen to file a petition under Section 9 of the Act

seeking restitution of conjugal rights. It appears

he has not pursued the same.

21. In this background, petitioner was

forced to approach the Family Court seeking a

decree of divorce on the ground of cruelty. It is

pertinent to note that respondent has not chosen

to step into the witness box and answer the

allegations made by the petitioner regarding the

mental cruelty attributed to him. In spite of

petitioner being cross-examined at length on

several occasions, fact remains that the simple

request of petitioner was to let her finish the Ph.D

before they could start living together as husband

and wife and lead a marital life is rejected by the

petitioner.

22. However, throughout right from the

date of marriage, he is insisting upon the

petitioner to consent for consummation of

marriage without appreciating her predicament

that she would not be able to concentrate on her

studies if she is indulged in other responsibilities.

However, the Family Court has not appreciated

the point of view of the petitioner and on the

other hand, it has went on discussing that it is

the petitioner who is at fault in not consenting for

consummation of marriage and leading a marital

life.

23. Having regard to the fact that

petitioner was pursuing her Ph.D in Indian

Institute of Science, which study requires most

part of her time to be indulged in studies and

research. As evident from Ex.R1, a student of

Ph.D Degree is required to submit thesis within

six years, failing which her registration would be

cancelled. After cancellation of the registration,

the student would be allowed to resume her Ph.D

within a maximum period of two years from the

date of cancellation. Having regard to these

aspects and the state of mind in which the

petitioner was placed and in her anxiety to

complete the Ph.D, she was not able to

concentrate towards her matrimonial life and

consequently, she went on requesting the

respondent to be considerate. However, despite

agreeing to co-operate with her to complete her

Ph.D, without having the responsibility of

matrimonial life, respondent has reneged on his

words and went on insisting upon to join him.

24. In the peculiar facts and

circumstances of the case, this conduct of the

respondent certainly amounts to cruelty.

However, the Family Court has failed to

appreciate this aspect. On the other hand, the

Family Court has appreciated the evidence placed

on record in the perspective of a traditional case

of matrimonial dispute between the couples

rather than appreciating the intellectual aspect of

the petitioner's case and held that she has failed

to prove the allegation of cruelty and thereby

erred in rejecting the petition on the ground of

cruelty.

25. In Naveen Kohli's case referred to

supra, the Hon'ble Supreme Court observed and

held that there is no acceptable way in which

parties can be compelled to resume life with the

consort and nothing is gained by trying to keep

the parties tied forever to a marriage that is in

fact has seized to exist.

26. In Tripathy's case referred to supra,

the Hon'ble Supreme Court has held that already

14 years have elapsed since appellant and

respondent have been separated and there is no

possibility of they resuming the normal marital

life.

27. Having regard to the fact that the

ground of cruelty is established and the parties

are living separately since 2008, in the light of the

proposition of law in the above decisions, we are

of the considered opinion that no purpose would

served by dismissing the petition filed by the

petitioner/wife seeking decree of divorce and

forcing the petitioner and respondent to live

together. In the result, the appeal succeeds and

we proceed to pass the following:

ORDER

(i) The appeal is hereby allowed.

(ii) The impugned judgment and decree is set aside. Consequently, petition filed under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 by the petitioner/wife is allowed. The marriage between the petitioner and respondent performed on 24.02.2006 is hereby dissolved by a decree of divorce.