Karnataka High Court

Sri K N Krishnegowda vs R Pallavi on 22 March, 2022

Bench: Alok Aradhe, S Vishwajith Shetty

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND 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.2724/2014

BETWEEN:

SRI K. N. KRISHNEGOWDA
S/O LATE NANJEGOWDA,
AGED ABOUT 41 YAERS,
R/O H. R. P. COLONY,
HALUVALLY, PALYA HOBLI
ALUR TALUK,
HASSAN DISTRICT-573201.                     ... APPELLANT

(BY SRI ABHIJITH.S., ADV. FOR
    SRI SADASHIVAIAH.K.G., ADV.)

AND:

R. PALLAVI
D/O RAMEGOWDA,
AGED ABOUT 26 YEARS,
R/O 5TH CROSS,
NEAR POST OFFICE,
HEMAVATHINAGAR,
HASSAN DISTRICT-573201.                    ... RESPONDENT

(BY SRI SANCHAN JAINANDAN, ADV.)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF THE FAMILY COURT ACT, AGAINST THE
JUDGMENT AND DECREE DATED 06.02.2014 PASSED IN
M.C.NO.21/2013(OLD NO.52/2012)ON THE FILE OF THE PRINCIPAL
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JUDGE, FAMILY COURT, HASSAN, DISMISSING THE PETITION
FILED U/S 13(1)(ia) & (iii) OF HINDU MARRIAGE ACT, FOR
DIVORCE.

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

                       JUDGMENT

This miscellaneous first appeal is filed under Section 19

of the Family Courts Act, 1984 by the husband challenging

the judgment and decree dated 6th February 2014 passed by

the court of Principal Judge, Family Court, Hassan in

M.C.No.21/2013 (Old No.52/2012) wherein the petition filed

by him under Section 13(1)(ia) and (iii) of the Hindu Marriage

Act, 1955 (for short hereinafter referred to as "the Act") was

dismissed.

2. The parties are referred to by their rankings assigned

to them before the Family Court.

3. Brief facts of the case that would be relevant for the

purpose of disposal of this appeal are:

The marriage of the petitioner with the respondent was

solemnized on 01.09.2010 at Sapthapadi Soudhamini Kalyana

Mantapa, Hassan as per Hindu rites and customs. After the

marriage, the couple were living happily in their matrimonial

house along with the mother of the petitioner. From the

wedlock, the couple have a girl child, who was born on

04.07.2011. During her pregnancy, the respondent had gone

to her parents' house and it is the case of the petitioner that

she did not come back and efforts made by him to bring her

back had failed. She insisted that the petitioner has to set up

a separate house and she was not willing to live along with

her mother-in-law. Various panchayats held in this regard

had all failed and therefore, the petitioner got issued a legal

notice dated 12.01.2011 through his advocate and the

respondent gave a untenable reply to the same on

17.01.2011. It is the further case of the petitioner that the

respondent used to threaten him with dire consequences and

was also harassing in his work place and therefore, in this

regard, he had given a complaint to the jurisdictional

Superintendent of Police on 27.04.2012. The respondent

allegedly also harassed his relatives and she showed

disrespect towards him and his family members. She used to

tease him in front of other for his dark complexion and called

him "mudiya" (old man). It is also his case that she had

made allegation against him that he had illicit relationship

with other woman and thereby caused him mental cruelty.

Under these circumstances, he had approached the Family

Court, Hassan under Section 13(1)(ia) and (iii) of the Act with

a prayer to dissolve the marriage by granting a decree of

divorce on the ground of cruelty and desertion.

4. The respondent-wife had entered appearance in the

said proceedings before the Family Court and had filed her

statement of objections admitting the relationship but denied

all other allegations made against her by her husband. She

had contended in her statement of objections that during her

stay in the petitioner's house, she was being ill-treated by

him and his mother both mentally and physically. After she

gave birth to the child, she had gone to the petitioner's

house, but petitioner and his mother refused to take her back

and on the other hand, they not only threatened her but also

filed a false complaint against her and her parents. She has

further alleged that at the time of marriage, her parents had

given dowry of Rs.3 lakhs in cash and 300 grams of gold

ornaments to the petitioner. She contended that the

petitioner had an intention to get married once again and

therefore, he was not willing to take her back. She has

stated that the petitioner had not made out any good grounds

for allowing the petition for divorce and accordingly prayed to

dismiss the petition.

5. In order to substantiate his case, the petitioner had

examined himself before the Family Court as PW.1 and his

mother and sister were examined as PW-2 and PW-3 and got

marked 27 documents as Exs.P1 to P27 in support of his

case. On behalf of the defence, the respondent was

examined as RW-1 and her father was examined as RW-2.

She got marked two documents as Exs.R1 and R2. The

learned Judge of the Family Court thereafterwards heard the

arguments of both sides and vide the impugned judgment

and decree dismissed the petition filed by the husband under

Section 13(1)(ia) and (iii) of the Act. Being aggrieved by the

same, the petitioner-husband has preferred this appeal.

6. Learned counsel for the petitioner contends that the

Family Court has not assigned any valid reason for dismissing

the petition. He submits that the material on record would go

to show that the respondent and her father were in the habit

of giving false complaints against the petitioner and his family

members. He has referred to the criminal complaint filed by

the wife for the offences punishable under Section 498A of

IPC and 3 and 4 of the Dowry Prohibition Act and also to the

petition filed by her under the Protection of Women from

Domestic Violence Act, 2005 and contends that false cases

are filed against the husband only with an intention to harass

and coerce him. He submits that in addition to filing false

complaint against the petitioner and his family members, she

had also assaulted the petitioner and his family members and

the same is evidenced from Exs.P25 and P26, which has not

been properly appreciated by the Family Court. He has also

strenuously contended that the parties have been residing

separately for the last more than 10 years and therefore, no

purpose would be served in keeping the marital life alive, as

the marriage had irretrievably failed.

7. In support of his case, he has relied upon the

judgments of the Hon'ble Supreme Court in the following

cases:

1. Samar Ghosh -vs- Jaya Ghosh - (2007) 4 SCC 511;

2. K.Srinivas Rao -vs- D.A.Deepa - (2013) 5 SCC 226.

8. Per contra, learned counsel for the respondent has

argued in support of the impugned judgment and decree

passed by the Family Court and submitted that the petitioner

has failed to prove his case before the Family Court and

therefore, the Family Court was justified in dismissing the

petition. He submits that though the petitioner has invoked

Section 13(1)(iii) of the Act, there is no pleading or any other

material evidence to show that the respondent was suffering

from incurable mental disorder. He, accordingly, prays to

dismiss the appeal.

9. We have carefully considered the arguments

addressed on both sides and also perused the material

available on record.

10. The petitioner has approached the Family Court by

filing a petition under Section 13(1)(ia) and (iii) of the Act

seeking dissolution of his marriage with the respondent

solemnized on 01.09.2010. The petitioner is, therefore,

required to establish before the court that the respondent has

treated the petitioner with cruelty after solemnization of

marriage and she has been suffering incurably of unsound

mind or has been suffering continuously or intermittently

from mental disorder of such a kind that the petitioner cannot

reasonably be expected to live with her.

11. To establish his case, the petitioner has examined

himself as PW-1. During the course of his deposition, the

petitioner has reiterated the averments made in the petition.

A perusal of the same would go to show that no serious

allegation, which would prima facie show that the respondent

has treated the petitioner with cruelty after the marriage, is

not seen. Normal wear and tear in the family cannot itself be

considered as a "cruelty" for the purpose of Section 13(1)(ia)

of the Act. Petitioner during the course of his cross-

examination has admitted that during the pendency of the

case in the mediation proceedings, the respondent had

agreed to join him, but he had refused to take her back. For

a specific question whether he was ready to take the mother

and the child, even at that juncture, he has stated that he is

not ready for the same. He has also admitted that in the

reply notice also, the wife had stated that she was ready and

willing to come and join him. PW-2, the mother of the

petitioner has admitted in her cross-examination that after

the respondent gave birth to a girl child, she had come home

with the child and at that time, there was a quarrel and the

respondent was stabbed on her back with a knife. She has

also admitted that in this regard, a case was registered

against the petitioner and herself before the jurisdictional

Police. PW-3, who is the sister of the petitioner, has stated

that she is married about 22 years prior to the date of

evidence and she is staying with her family at Biccodu, Belur

taluk. Therefore, her evidence is of not of much significance

as she was staying away with her family at Biccodu village.

DW-1 and DW-2 have consistently stated that though the

respondent was very much willing to join the petitioner, he

was not ready to take the respondent back and it is their

specific case that the petitioner intended to marry a girl by

name Rekha and therefore, he was demanding divorce from

the respondent.

12. The material on record would also go to show that

the marriage between the parties was solemnized on

01.09.2010 and few months after the marriage, the

respondent had gone to her house and at that point of time,

she was pregnant. Immediately the petitioner had got issued

a legal notice dated 12.01.2011 calling upon the respondent

to join him failing which he would institute a petition for

restitution of conjugal rights. In response to the same, the

respondent had got issued a reply notice dated 17.01.2011

wherein she had stated that she was very much willing to join

him provided he arranges for a separate house as she was

being ill-treated by her mother-in-law in her matrimonial

house. Thereafterwards the respondent had given birth to a

girl child on 04.07.2011. The petitioner had not either gone

to see the child nor had he made any arrangement to bring

back his wife and child to his house. On the other hand, he

got issued a legal notice dated 28.04.2012 threatening of

filing a petition for divorce and the said notice was also

replied by the respondent-wife wherein she has stated that

she was being abused over phone by him and his relatives for

having given birth to a girl child and had once again

requested him to come and reside with her separately.

13. From the overall appreciation of this material, it is

clear that though the respondent was willing to join the

petitioner with the child, it is the petitioner, who had refused

to take them back. The evidence of PW-2 further would go to

show that after the respondent gave birth to a girl child, she

had come to the matrimonial house with the child and at that

time, the petitioner and his family members had quarreled

with her and also assaulted and caused injury to her back

with the knife. Though the learned counsel for the petitioner

has contended that the respondent has filed false criminal

cases against the petitioner and his relatives in which they

have been acquitted subsequently, the mere fact of filing a

criminal case itself or the fact that the said criminal case has

ended up in acquittal would not amount to "cruelty".

14. 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.

15. 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.

16. It was submitted by the learned counsel for the

petitioner that in addition to filing false cases, the respondent

and her family members had assaulted the petitioner and his

mother, which is evident from Ex.P25 and Ex.P26. On

perusal of Exs.P25 and P26 it is seen that the said documents

are discharge certificates and there is no mention of any

assault either by the respondent or by her relatives in the

said document. From the said documents it is seen that the

petitioner and his mother were treated in the hospital and

discharged on the same day. But the history of the incident

is not mentioned in the said documents. Therefore, Exs.P25

and P26 will not aid the case of the petitioner to prove that

the respondent and her family members had assaulted him

and his mother.

17. The judgments of the Hon'ble Supreme Court in the

cases of Samar Ghosh and K.Srinivas Rao (supra) relied

upon by the learned counsel for the petitioner would not be

applicable to the facts and circumstances of the present case.

In the case of Samar Ghosh, a serious allegation of mental

and physical cruelty with various instances were stated. The

Hon'ble Supreme Court on a comprehensive appreciation of

the same has held that the trial court had rightly concluded

that the various instances in the matrimonial life had led to

grave mental cruelty to the husband which the High Court

had failed to consider.

18. In the case of K.Srinivas Rao, the judgment in the

case of Samar Ghosh has been reiterated wherein it is held

that refusing to sever the marital tie would also amount to

mental cruelty. It is useful to note that in both these cases,

the Hon'ble Supreme Court has held that considering the

facts and circumstances of the case, it is evident that the

marriage between the parties has irretrievably failed. It is

trite law that the judgments can be relied as precedents if

they are applicable to the facts and circumstances of the

case. In the present case, the allegations of cruelty made by

the petitioner against the respondent are not grave or serious

and on the other hand, the natural wear and tear in a family

life is sought to be made much of by the petitioner.

19. The material on record would go to show that the

respondent was ill-treated in her matrimonial house by her

mother-in-law and efforts made by the respondent to join her

husband by setting up a separate house was not agreed to by

the petitioner. The respondent was admittedly assaulted in

her matrimonial house when she came back with her child

after delivery and therefore, it cannot be said that the

respondent was guilty of willful desertion or that she had

deserted the husband without there being any valid reasons.

Mere staying away from the husband itself will not amount to

desertion, unless it is proved that the spouse had an intention

to put an end to the marital life. The couple have a girl child,

who is aged about 11 years and any break-up in the marriage

will not only affect her but also will have a serious

repercussion on her future life also.

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

Mangayakarasi -vs- M.Yuvaraj reported in AIR 2020 SC

1198 at para-15 has held as follows:

"15. It cannot be in doubt that in an appropriate case the unsubstantiated allegation of dowry demand or such other allegation has been made and the husband and his family members are exposed to criminal litigation and ultimately if it is found that such allegation is unwarranted and without basis and if that act of the wife itself forms the basis for the husband to allege that mental cruelty has been inflicted on him, certainly, in such circumstance if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original court to allege mental cruelty it could well be appreciated for the purpose of dissolving the marriage on that ground. However, in the present facts as already indicated, the situation is not so. Though a criminal complaint had been lodged by the wife and husband has been acquitted in the said proceedings the basis on which the husband had approached the Trial Court is not of alleging mental cruelty in that regard but with regard to her intemperate behaviour regarding which both the courts below on appreciation of the evidence had arrived at the

conclusion that the same was not proved. In that background, if the judgment of the High Court is taken into consideration, we are of the opinion that the High Court was not justified in its conclusion."

21. In the said case, the Hon'ble Supreme Court has also

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 child and

her marital prospects are also to be kept in view and in such

circumstance, the dissolution of marriage merely because

they have been litigating and they have been residing

separately for quite some time would not be justified.

22. Though the petitioner had filed the petition also

under Section 13(1) (iii) of the Act, there is no pleading nor is

there any oral or documentary evidence available on record

to show that the respondent was suffering incurably of