Sri R Basavarajappa vs Smt B Neelamma
2022 Latest Caselaw 4888 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 16TH DAY OF MARCH, 2022

                          PRESENT

           THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

    MISCELLANEOUS FIRST APPEAL No.5552/2012

BETWEEN:

SRI R. BASAVARAJAPPA
S/O V.H.RAMASWAMY,
AGE: 48 YEARS,
OCC: TEACHER,
R/AT "MARUTHI NILAYA",
HOSABANDARAHALLI VILLAGE,
BADRAVATHI TALUK,
SHIMOGA DISTRICT-577301.                  ... APPELLANT

(BY SRI SAGAR, B.B., ADV. FOR
    SRI C.H.JADHAV, SR.ADV.)

AND:

SMT. B. NEELAMMA
W/O R. BASAVARAJAPPA,
AGED ABOUT 41 YEARS,
OCC: TEACHER,
R/AT NHLC, 1/A-2,
HUTTHA COLONY,
BADRAVATHI TALUK,
SHIVAMOGA DISTRICT-577301.               ... RESPONDENT

(BY SRI S.N.BHAT, ADV.)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 28(1) OF THE HINDU MARRIAGE ACT 1955, AGAINST
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THE JUDGMENT AND DECREE DATED 23.2.2012 PASSED IN M.C.
NO.10/2006 ON THE FILE OF SENIOR CIVIL JUDGE, JMFC,
BHADRAVATHI, DISMISSING THE PETITION FILED U/SEC-13, FOR
DISSOLUTION OF MARRIAGE.

    THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:


                       JUDGMENT

1. This appeal is filed by the husband challenging the

judgment and decree dated 23.02.2012 passed by the Senior

Civil Judge and JMFC, Bhadravathi, in M.C.No.10/2006.

2. Brief facts of the case relevant for the purpose of

disposal of this appeal are, the marriage of the appellant-

husband with the respondent was solemnized on 26.04.1995

as per the Hindu customs and rites in the office of the Sub-

Registrar, Bhadravathi. From the said wedlock, the couple

have two daughters viz., Kavya and Bhoomika who are said

to be in the custody of the appellant. The appellant-husband

had filed M.C.No.10/2006 under Section 13 of the Hindu

Marriage Act, 1955 (for short, 'the Act') seeking dissolution of

the marriage by a decree of divorce contending that the

respondent-wife who was a teacher never performed her

marital obligation. He has stated that the respondent was

behaving very adamantly and used to quarrel on petty issues

and she had a liking to live a luxurious life. He has stated in

his petition that whenever he came home after his duty

hours, the respondent used to start quarreling with him on

petty issues and never used to cook food for him. He has also

stated that she was constantly threatening him stating that

she would commit suicide along with the children and she

also used to threaten him that she will file false complaint

against him and send him behind the bars.

3. The respondent-wife had entered appearance in the

said proceedings and contested the petition denying all the

averments made against her in the said petition while

admitting the relationship of the parties.

4. Before the Trial Court, the appellant had examined

himself as PW-1 and two other witnesses were examined as

PWs-2 & 3 and 20 documents were marked in support of his

case as Exs.P-1 to P-20. On behalf of the defence, the

respondent was examined as RW-1 and two other witnesses

were examined as RWs-2 & 3 and 8 documents were marked

as Exs.R-1 to R-8.

5. The Trial Court, thereafter, heard the arguments

addressed on both sides and vide the impugned judgment

and decree dismissed the petition filed by the appellant-

husband and being aggrieved by the same, he has preferred

this appeal.

6. Learned Counsel for the appellant submits that the

parties are living separately for the last more than 15 years,

and therefore, there is no point in continuing the marriage

which is virtually dead. He submits that the Trial Court has

failed to appreciate the oral and documentary evidence

available on record, and thereby erred in dismissing the

petition. He submits that wife has filed a false criminal case

and in the said case, husband has been acquitted. He

submits that the appellant had proved the ground of cruelty

as well as desertion against the respondent, and therefore,

the Trial Court ought to have allowed the petition.

7. Per contra, learned Counsel appearing for the

respondent-wife submits that merely for the reason that the

wife is staying away, the same cannot be a ground for

divorce. He submits that the wife had a valid reason to stay

away from the husband along with her daughters. He also

submits that the daughters are of marriageable age, and

therefore, at this point of time, if a decree of divorce is

granted, the same would have an adverse effect on the

marriage prospects of the daughters. He submits that having

appreciated the oral and documentary evidence, the Trial

Court has rightly dismissed the petition, and accordingly,

prays to dismiss the appeal.

8. We have carefully considered the arguments addressed

on both sides and also perused the material available on

record.

9. To substantiate his case, the appellant had examined

himself as PW-1 and two other witnesses were examined as

PW-2 and PW-3. PW-1 has reiterated the narration made by

him in the petition in his affidavit filed by him in lieu of

examination-in-chief. Learned counsel for the appellant has

contended that the wife had filed a false criminal case against

the husband, in which, ultimately the husband was acquitted

and according to him, the same amounts to "cruelty". Merely

for the reason that criminal case filed by the wife against the

husband has ended up in acquittal, it cannot be said that

filing of such a case would amount to "cruelty" for the

purpose of Section 13(1)(ia) of the Act.

10. Mere filing of a criminal case itself cannot be termed as

"cruelty". For the purpose of Section 13(1)(ia) of the Act,

"cruelty" could be willful and unjustifiable conduct of such

character as to cause danger to life, limb or health, bodily or

mental, or as to give rise to a reasonable apprehension of

such a danger. The question of mental cruelty has to be

considered in the light of the norms of marital ties of the

particular society, to which the parties belong, their social

values, status, environment in which they live. Cruelty need

not be physical. If from the conduct of the spouse it is

established or an inference can be legitimately drawn that the

treatment of the spouse is such that it causes apprehension

in the mind of the other spouse, about his or her mental

welfare then this conduct amounts to cruelty.

11. The Hon'ble Supreme Court in the case of Raj Talreja

-vs- Kavita Talreja - 2017(3) KCCR SN 342 (SC) has

held that mere filing of complaints is not cruelty, if there are

justifiable reasons to file the complaints. It is further held

that merely because no action is taken on the complaint or

after trial, the accused is acquitted, may not be a ground to

treat such accusations of the wife as cruelty within the

meaning of the Hindu Marriage Act.

12. In the case of Shyam Lata -vs- Suresh Kumar - AIR

1986 Punjab and Haryana 383, the Punjab and Haryana

High Court has held that merely for the reason that the

prosecution had failed to establish the case against the

accused-husband, institution of such a proceedings by the

wife does not amount to cruelty justifying the grant of

divorce.

13. PW-2 and PW-3, who have been examined by the

appellant in support of his case are his friends and they are

not related to the parties to this lis. A reading of the affidavit

filed by these witnesses in lieu of their examination-in-chief

does not inspire confidence of this court in their evidence.

PW-2 has gone to the extent of stating that wife was not

sharing the bed with her husband and when he had enquired

this with her, she had stated that she had undergone chest

surgery and therefore, she is staying away from her husband.

These witnesses have not spoken anything about any specific

incidents regarding cruelty, but they have spoken in general,

virtually reiterating the facts stated by PW-1 in his affidavit.

PW-3, who has stated in his affidavit that the wife had filed

eight cases against her husband, has failed to give the

particulars of the cases when questioned during the course of

cross-examination. Both the witnesses, who have spoken so

much about the strained relationship of the couple and

various other aspects touching their personal affairs, have

admitted in the cross-examination that they have not

attended the marriage. Under the circumstances, we are of

the considered opinion that not much reliance can be placed

on the evidence of PW-2 and PW-3 in support of appellant's

case.

14. Appellant has also contended that the respondent-wife

is guilty of desertion as she has stayed away from him

without there being any valid reason. The material on record

would go to show that the wife has filed a criminal case

against the husband for the offence punishable under Section

498A of IPC. The appellant was tried for the said offence and

ultimately he has been acquitted. It has been the specific

case of the wife that the appellant was ill-treating her in her

house and was also demanding divorce from her so as to

enable him to marry another woman by name Vijayakumari.

The material on record would also go to show that the wife

had filed O.S.No.5/2006 before the jurisdictional Civil Court

seeking permanent injunction restraining the husband from

marrying said Vijayakumari and the said suit was decreed.

Therefore, it cannot be said that the wife did not have a valid

reason to stay away from the husband and that she was

guilty of deserting him for no reason.

15. Learned counsel for the appellant has made a

submission that the parties are residing separately and they

have been litigating for the last several years and therefore,

there is no possibility of re-union and virtually the marriage is

dead and accordingly had prayed to allow the appeal.

16. The Hon'ble Supreme Court in the case of

Mangayakarasi -vs- M.Yuvaraj - AIR 2020 SC 1198 has

observed that in a matter where the differences between the

parties are not of such magnitude and is in the nature of the

usual wear and tear of marital life, the future of the children

and their marital prospects are also to be kept in view and in

such circumstance, the dissolution of marriage merely

because the parties have been litigating and they have been

residing separately for quite some time would not be justified.

In the present case, the parties have two daughters and

admittedly they are in the custody of the respondent/wife.

The outcome of this litigation will definitely have a bearing on

their future life and the same may also have the effect on

their marriage prospects. Under the circumstances, the

submission made by the learned counsel for the appellant

that since the parties have been staying separately, there is

no purpose in continuing the marriage is liable to be rejected.

17. The learned Judge of the trial court having appreciated

the entire oral and documentary evidence available on record

has arrived at a conclusion that the appellant has not made

out a case for divorce. The grounds of cruelty as well as

desertion were not proved by the husband in accordance with

law by producing sufficient evidence before the trial court.

18. Under the aforesaid circumstances, we are of the

considered view that the judgment and decree dated

23.02.2012 passed by the Senior Civil Judge and JMFC,

Bhadravathi, in M.C.No.10/2006 dismissing the petition filed

by the appellant-husband under Section 13 of the Hindu

Marriage Act, 1955, does not suffer from any illegality or

infirmity, which calls for interference by this court.

The appeal is, therefore, dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

KK/KNM/-