Smt. Sudha S vs Sri.B.Vijayakumar
2022 Latest Caselaw 5351 Kant

                            1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH 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.1794/2016

BETWEEN:

SMT. SUDHA. S.
AGED ABOUT 49 YEARS,
W/O.SRI.B.VIJAYAKUMAR,
RESIDING AT NO.13,
II MAIN ROAD, 5TH BLOCK,
KUMARA PARK WEST,
BANGALORE-560 020.                    ... APPELLANT

(BY SRI M.T.NANAIAH, SENIOR COUNSEL FOR
    SRI PRABHU GOUDA. B. TUMBIGI, ADV.)

AND:

SRI.B.VIJAYAKUMAR
AGED ABOUT 56 YEARS,
S/O.SRI.BYRAPPA,
RESIDING AT "SRI" YAHSU NILAYA,
PARVATHAMMA LAYOUT,
THINDLU POST,
VIDYARANYAPURA,
BANGALORE-560 097.                   ... RESPONDENT

(RESPONDENT-SERVED AND UNREPRESENTED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE
JUDGMENT AND DECREE DATED 30.01.2016 PASSED ON
M.C.NO.3038/2012 ON THE FILE OF THE COURT OF THE II
ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, AT
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BENGALURU, DISMISSING THE PETITION                  FILED       U/S
13(1)(i)(ia) AND (ib) OF HINDU MARRIAGE ACT.

     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(1) of the Family Courts Act, 1984 by the wife

challenging the judgment and decree dated 30th January

2016 passed by the court of II Additional Principal Judge,

Family Court, Bengaluru in M.C.No.3038/2012.

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 between the petitioner and the

respondent was solemnized on 21.06.1991 at Sri

Malleshwaram Vardhaman Sathnakavasi Jain Sangh,

Bangalore, as per Hindu customary rites. It is the case

of the petitioner that at the time of marriage, there was a

demand for dowry and the same was met by her parents.

After the marriage, the coupled lived together in a rented

premises at Basaveshwara Nagar, Bangalore for few

months and thereafterwards the petitioner's father-in-law

allegedly threw the petitioner out of the matrimonial

home and the respondent did not object for the same.

Petitioner, who was pregnant by then, had no option but

to take shelter in her parents' house. The petitioner

thereafterwards gave birth to a girl child on 26.03.1993,

who was named as Chaitra. For about two years

thereafterwards, the petitioner stayed with her parents

and thereafterwards, the petitioner and the respondent

patched up their differences and shifted to Mysore and

started residing in a rented premises at Yadhavagiri. The

respondent, who is a post-graduate, commenced

business in the name and style of Saffire Ground Water

Consultants at Mysore. All the household articles to the

house in Mysore was provided by the parents of the

petitioner. The couple lived in the said premises for

about two years and the trouble started again when the

respondent started ill-treating the petitioner.

4. The parents of the petitioner purchased a site at

Mysore in her name and the documents were retained by

them. The respondent started ill-treating the petitioner

and demanded to bring the original documents of the

said site. Since the petitioner and her parents did not

agree for the same, the respondent deserted the

petitioner and his daughter and went away. The father

of petitioner advised the respondent to construct their

own house in the site which stood in the name of the

petitioner and also arranged for Bank loan and with the

help of petitioner's father, a house was constructed in the

said site in the month of May 2000. The respondent

thereafterwards started harassing the petitioner to

transfer the house in his name, but her parents refused

as they wanted to safeguard the future of the petitioner

and her daughter. The respondent who, by then had

cultivated the habit of consuming alcohol, started

assaulting the petitioner and his daughter for no reason.

5. During the last week of August 2000, the

respondent took away all the jewellery of the petitioner

and thereafterwards he deserted her. It is under these

circumstances, the petitioner had filed M.C.No.3038/2012

before the II Additional Principal Judge, Family Court,

Bangalore under Section 13(1)(ia) & (ib) of the Hindu

Marriage Act, 1955 ("the Act" for brevity) to dissolve the

marriage solemnized between the petitioner and the

respondent on 21.06.1991. The respondent after service

of notice in the said proceedings had entered appearance

but did not file his objections nor did he contest the

proceedings.

6. In support of the petitioner's case, she had

examined herself as PW.1 and got marked two

documents as Exs.P1 and P2. However, she was not

cross-examined by the respondent nor did the

respondent lead any defence evidence. After hearing

both the parties, the Family Court vide the impugned

judgment and decree dismissed the petition filed by the

petitioner and being aggrieved by the same, the

petitioner has preferred this appeal.

7. Learned senior counsel appearing for the

petitioner submits that the oral and documentary

evidence placed by the petitioner remains uncontroverted

and inspite of the same, the Family Court has

erroneously dismissed the petition. He submits that the

petitioner has made out a case for dissolution of the

marriage on the ground of cruelty as well as desertion.

He has referred to various incidents of cruelty and

submits that the respondent is also guilty of deserting

the petitioner and his child and he has not provided any

maintenance to them and therefore, he prays to allow

the petition.

8. We have carefully considered the arguments

addressed on behalf of the petitioner and also perused

the material available on record.

9. The petitioner in order to substantiate her case

has examined herself as PW-1. During the course of her

examination-in-chief, she has reiterated the averments

made in the petition. She has given the details of the

articles given to the respondent at the time of marriage

other than dowry paid in cash. She has also stated that

her father had purchased a Bajaj Chetak scooter in the

name of her husband. She has stated that immediately

after the marriage, she lived in the matrimonial house

along with her husband and after sometime, she was

thrown out of the house by her father-in-law and this

was not objected to by her husband. She has stated that

thereafterwards she stayed with her parents and she also

gave birth to a child on 26.03.1993 at Lakshmi Nursing

Home at Sheshadripuram, Bangalore and the entire

expenses of the delivery was met by her parents.

10. Subsequently, the couple shifted to Mysore

and started staying in a rented premises and the

respondent had commenced a business in the year 1994

and all the household articles were bought by her

parents. In the year 1996 the petitioner's father had

purchased a site in her name at Mysore and ever since

then the respondent started ill-treating her demanding

the original title deeds of the said sites which were in the

custody of petitioner's parents. She has also stated that

subsequently with the help of her parents, a house was

constructed in the site purchased in her name. But

respondent continued to harass and ill-treat her

demanding the title deeds of the property. She has also

stated that during the last week of August 2000, the

respondent took away all her gold jewellery and finally on

30.08.2000 he has deserted his wife and child. It is her

further case that inspite of taking all the gold jewellery,

respondent continued to insist transfer of the house

property in his name and he also has threatened to pour

acid on her face, if she visits Mysore without transferring

house in his name. This evidence of the petitioner

remains uncontroverted.

11. The respondent, who had entered appearance

and filed objections, has not bothered to participate

before the Family Court. Even before this Court he has

remained absent. We are aware that merely for the

reason that the evidence placed by the petitioner is

uncontroverted, that itself will not entitle the petitioner

for the relief sought in the petition. However, in the

present case, we find no good reasons to disbelieve the

evidence of the petitioner.

12. "Cruelty" for the purpose of Section 13(1)(ia)

of the Act would be either mental or physical. It would

be highly difficult to give a comprehensive definition of

"mental cruelty". What is cruelty in one case may not be

cruelty in another case. The perception with regard to

cruelty would differ depending upon various aspects in

life. In a given case, the cruelty has to be evaluated on

the basis of the facts and circumstances of the said case

and there cannot be any straightjacket formula for

assessing the same.

13. The petitioner during the course of her

evidence has narrated various incidents of cruelty meted

out on her by the respondent. She has stated that there

was a continuous demand for various things, right from

dowry till the house property from the respondent. This

continuous demand placed by the husband would

definitely cause mental harassment to any prudent

person. In addition to the same, she has also stated that

the respondent was in the habit of consuming alcohol and

assaulting his wife and child.

14. On a comprehensive appreciation of the entire

matrimonial life of the parties and taking into

consideration that the parties are staying away for the

last more than 20 years, we are of the view that the

petitioner, who claims to be a wronged party, cannot be

asked to put up with the respondent and continue to live

with him. Undoubtedly, in the present case, there has

been a long period of continuous separation and the

parties appear to have no respect, trust, feelings and

emotions to each other, much less are they interested in

performing their marital obligations.

15. Under the circumstances, we are of the

considered view that the Family Court was not justified in

dismissing the petition. Accordingly, the following order:

(i) The judgment and decree dated 30th January

2016 passed by the court of II Additional Principal Judge,

Family Court, Bengaluru in M.C.No.3038/2012 is set

aside.

(ii) The petition filed by the appellant-wife under

Section 13(1)(ia) of the Hindu Marriage Act, 1955 is

allowed and the marriage of the appellant with the

respondent solemnized on 21.06.1991 is dissolved by a

decree of divorce.

In the result, the Miscellaneous First Appeal is

allowed.

Sd/-

JUDGE

Sd/-

JUDGE

KNM/-