Smt Ramadulari Mishra vs Sri Praveer Mishra
2022 Latest Caselaw 5546 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH 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.1872/2019

BETWEEN:

SMT. RAMADULARI MISHRA
W/O PRAVEER MISHRA
AGED ABOUT 36 YEARS,
R/O. MF 41/11,
SYNDICATE BANK OFFICERS QUARTERS,
NANDINI LAYOUT,
BANGALORE-560 096.                     ... APPELLANT

(BY SRI SHARATH KUMAR SHETTY, ADV.)

AND:

SRI PRAVEER MISHRA
S/O MR. PRADEEP KUMAR MISHRA
AGED ABOUT 36 YEARS,
R/O FLAT NO.408,
PIPE-B-1-BLOCK,
PRESTIGE GREEN WOODS,
NAGAWARAPALYA, C. V. RAMAN NAGAR,
BANGALORE-560 093.                    ... RESPONDENT

(BY SRI AJAY GOVINDRAJ, ADV.)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE
JUDGMENT AND DECREE DT.04.12.2018 PASSED ON M.C.
NO.1161/2014 ON THE FILE OF THE III ADDITIONAL PRINCIPAL
JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION
FILED U/S.13(1)(ia) OF HINDU MARRIAGE ACT.
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    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 4th December

2018 passed by the court of III Additional Principal Judge,

Family Court, Bengaluru, in M.C.No.1161/2014.

2. The parties are referred to by their rankings

assigned to them before the Family Court.

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

disposal of this appeal are:

The marriage of the petitioner with the respondent

was solemnized on 01.12.2009 as per the Hindu customs

and rites at Bhopal, Madhya Pradesh. After the marriage,

respondent came to the matrimonial house and resided

there for a period of one week, then went to her parents

house at Hoshangabad. When the petitioner went to the

respondent's parents house to bring her back, she raised a

condition that she will not stay with the petitioner's parents.

Petitioner tried to bring to her notice that he will stay with

his parents only for a few days and then shift to Bangalore

where he is employed and they can stay together at

Bangalore. The respondent insisted that petitioner's

parents should not come to Bangalore and stay with them.

After the respondent came back to her matrimonial house

at Bhopal, she started behaving indecently with her in-laws

and also abused the petitioner and his parents.

Thereafterwards petitioner came to Bangalore along with

his wife. Respondent started saying that she was not

interested in the marriage and she will file a false dowry

case and domestic violence case against the petitioner and

his parents. She also threatened of committing suicide and

she used to hit her head against the wall and on one

occasion, she drank phenyl and she called her father over

phone, who took the respondent along with him on

20.12.2011. The efforts made by the petitioner to bring her

back were all in vain and therefore, he got issued a legal

notice through his advocate, which was not received by the

respondent. It is under these circumstances, he had filed a

petition under Section 13(1)(ia) of the Hindu Marriage Act,

1955 ("the Act" for short) seeking dissolution of his

marriage with the respondent solemnized on 01.12.2009 on

the ground of cruelty.

4. The respondent entered appearance in the said

proceedings and filed her statement of objections admitting

the relationship but denied the allegations made against

her. She stated that after marriage, they went for

honeymoon to Nainital and stayed for sometime at Bhopal

along with her in-laws. Thereafterwards they came to

Bangalore. Even at Bangalore initially they lived a happy

married life and trouble started only when she went to her

in-laws house at Bhopal. She states that the in-laws

created a misunderstanding in the minds of the couple and

they insisted that the respondent has to stay with her

parents and she has to leave the matrimonial house. She

has stated that the petitioner was acting as per the advice

of his parents and he started harassing the respondent.

She has stated that after they came to Bangalore, they

lived in a flat at C.V.Raman Nagar, Bangalore. The

petitioner forced the respondent to leave the said house on

29.12.2011 and thereafterwards she has been taking

shelter in her parents house. She has stated that the

petitioner and his parents were continuously making

demand for dowry and it is for this reason, she was thrown

out of the house.

5. Before the Family Court, the petitioner got himself

examined as PW-1 and got marked 11 documents as Exs.P1

to P11. On behalf of the respondent, she got herself

examined as RW-1 and examined another witness as RW-2.

However, no documents were marked in support of her

case. The learned Judge of the Family Court

thereafterwards heard the arguments and vide the

impugned judgment and decree allowed the petition filed by

the husband under Section 13(1)(ia) of the Act. Being

aggrieved by the said order, the respondent-wife has

preferred this appeal.

6. Learned Counsel for the respondent/appellant

submits that the petitioner has failed to prove the ground of

cruelty and therefore, the trial court was not justified in

allowing the petition. He submits that the normal wear and

tear in the marital life has been made much of by the

petitioner and the Family Court having failed to appreciate

the same, has granted a decree of divorce though the case

of cruelty for the purpose of Section 13(1)(ia) of the Act

was not made out by the petitioner. He submits that the

petitioner is a Software Engineer drawing a handsome

salary, but he has failed to take care of the respondent and

he has not provided any maintenance to her.

He further submits that the Family Court was not

justified in refusing to grant any permanent alimony to the

respondent on the ground that she had not made any claim

for the same. He submits that once the marital tie is

severed, the Family Court in exercise of its power under

Section 25 of the Act ought to have granted permanent

alimony to the respondent. He submits that even the

maintenance amount of Rs.40,000/- awarded to the

respondent in a separate proceedings is not paid by the

petitioner and this would go to show the conduct of the

petitioner which disentitles him any relief much less the

relief of decree of divorce. Accordingly he prays to allow

the appeal.

7. Per contra, learned counsel for the petitioner

submits that the respondent/wife has failed to perform her

marital obligations and she has been throughout treating

the petitioner and her in-laws with cruelty. He submits that

the learned Judge of the Family Court having appreciated

the oral and documentary evidence available on record has

rightly allowed the petition and the said order does not call

for any interference by this court. He submits that he has

filed an application before the Family Court for recalling the

order of maintenance awarded to the respondent.

However, he fairly submits that as on the said date,

petitioner is due to pay nearly a sum of Rs.15,50,000/-

towards arrears of maintenance to the respondent. He

submits that respondent has not filed any application under

Section 25 of the Act and therefore, not entitled for any

permanent alimony. He submits that the respondent is not

entitled for any permanent alimony having regard to her

conduct and he refers to Section 25 of the Act and submits

that the legislature has amended Section 25 of the Act and

as per the amendment, the conduct of the wife would be a

consideration for awarding alimony. He submits that

having regard to the fact that the divorce has been granted

on the ground of cruelty, the respondent is not entitled for

any permanent alimony. He accordingly prays to dismiss

the appeal.

8. We have given our anxious consideration to the

arguments addressed on both sides and also perused the

material available on record.

9. The petitioner has approached the Family Court

seeking dissolution of his marriage with the respondent

under Section 13(1)(ia) of the Act and therefore, he is

required to prove that the respondent had treated him with

cruelty after the solemnization of the marriage. Initially the

petitioner had filed the petition before the Family Court at

Bhopal and pursuant to the orders passed by the Hon'ble

Supreme Court, the said case was transferred to the Family

Court at Bangalore and the petition was disposed of by the

Family Court, Bangalore, vide judgment and decree dated

08.10.2015 in favour of the petitioner. The respondent had

challenged the same before this court in

M.F.A.No.8384/2015 and this court vide order dated

15.03.2016 had set aside the judgment and decree passed

by the Family court dated 08.10.2015 and remanded the

matter for fresh disposal after giving an opportunity to both

the parties to adduce further evidence. Thereafterwards,

the Family Court vide the impugned judgment and decree

has once again allowed the petition of the husband filed

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

10. In order to substantiate his case, the petitioner

has got himself examined as PW-1. Petitioner has

reiterated the averments made in the petition and has

deposed that the respondent used to ill-treat him and

behave abnormally. He has also stated that she used to

threaten stating she would commit suicide and also file

false criminal cases against him. He has also narrated an

incident wherein she had consumed phenyl and

thereafterwards she was admitted to C.M.H.Hospital,

Indiranagar, Bangalore. However, the respondent has

disputed the same and has stated that she was admitted in

the hospital because of her gastric problem. In Ex.P5, the

petition filed before the Hon'ble Supreme Court, the

respondent has specifically admitted that she had

consumed phenyl since she was not able to withstand the

pressure from the petitioner. Therefore, the contention of

the petitioner that the respondent has a suicidal tendency

and she was blackmailing him cannot be brushed aside.

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

respondent has initiated domestic violence proceedings

against the petitioner and his parents. The said

proceedings was dismissed by the jurisdictional court on the

ground that the respondent had failed to prove the alleged

domestic violence by the petitioner or by his parents.

Though the respondent has been contending that she is

ready and willing to join the petitioner, she has not taken

any necessary steps in this regard. Admittedly no petition

for restitution of conjugal rights has been filed by her. The

parties have been staying separately ever since December

2011. She has also not come out with a valid reason for

staying separately from her husband. The learned Judge of

the Family Court on a comprehensive appreciation of the

oral and documentary evidence has arrived at a conclusion

that the petitioner has made out a case for dissolution of

marriage on the ground of cruelty.

12. It is a settled principle of law that "cruelty" for the

purpose of Section 13(1)(ia) of the Act cannot be defined.

"Cruelty" 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. Therefore, in our considered view, the Family

Court was fully justified in allowing the petition of the

husband and dissolving the marriage of the petitioner with

the respondent solemnized on 01.12.2009, on the ground

of cruelty.

14. The learned Judge of the Family Court has held

that the respondent is not entitled for the relief of

permanent alimony since she had not made any claim for

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

Ramesh Chandra Rampratapji Daga -vs- Rameshwari

Ramesh Chandra Daga reported in AIR 2005 SC 422

has held that when by court intervention under the Hindu

Marriage Act, affectation or disruption to the marital status

has come by, at that juncture, while passing the decree, it

undoubtedly has the power to grant permanent alimony or

maintenance, if that power is invoked at that time.

15. Section 25 of the Act is an enabling provision,

which empowers the court to consider at the time of

passing any decree, whether or not to grant permanent

alimony or maintenance.

16. The Division Bench of this Court in the case of

Amit Vinay Welangi -vs- Mrs.Nupur Amit Welangi

reported in AIR 2018 KAR 156 has held that while

granting a decree of divorce in favour of the husband,

permanent alimony can be granted in favour of a wife even

if she has not filed an application.

17. In the present case, it is not in dispute that the

respondent had not filed any application under Section 25

of the Act seeking permanent alimony. However, the fact

remains that she had filed an application under Section 24

of the Act before the Family Court seeking interim

maintenance and the said application was rejected by the

Family Court. Being aggrieved by the same, she had filed

W.P.Nos.35631-35632/2018 before this court and this court

had disposed of the said writ petitions awarding a

maintenance of Rs.40,000/- per month till the main petition

is disposed of by the Family Court.

18. It is also not in dispute that the respondent had

filed a separate proceedings under Section 125 of Cr.P.C.

before the Family Court seeking maintenance from the

petitioner and in the said proceedings, the maintenance

amount of Rs.40,000/- has been awarded by the Family

Court to the respondent. It is the contention of the

respondent that the petitioner has not paid the

maintenance amount awarded by the Family Court. The

learned counsel for the petitioner during the course of his

arguments has admitted that the petitioner is due to pay

nearly a sum of Rs.15,50,000/- to the respondent towards

maintenance. He has also submitted that an application to

recall the order of granting maintenance has been filed by

him which is pending adjudication. The father of the

respondent, who was examined before the Family Court as

RW-2, has given the particulars of the expenses incurred by

him at the time of marriage and as per his deposition, he

has incurred nearly a sum of Rs.20 lakhs towards the

expenses of the marriage. All these claims can be put to an

end by awarding adequate permanent alimony to the

respondent.

19. At the time of considering the grant of permanent

alimony, the duty of the court is to see that the wife lives

with dignity and comfort. The court is required to take into

consideration the status of the party, assets, liabilities and

earnings of the husband and thereafterwards award

permanent alimony so as to enable the wife to live a

equally comfortable life.

20. In the present case, it is not in dispute that the

petitioner is a Software Engineer and is employed in a

Multi-National Company and is drawing a good salary.

Learned counsel for the respondent has submitted that the

petitioner is drawing more than Rs.4.50 lakhs per month.

However, the learned counsel for petitioner has disputed

the same and he submits that his earning is only Rs.2.50

lakhs per month. It is not in dispute that the respondent is

not employed and she has no independent source of

earning.

21. Under the circumstances, we are of the

considered view that for the purpose of adjudicating the

issue of granting adequate permanent alimony to the

respondent, the matter is required to be remanded to the

Family Court so as to enable the parties to produce relevant

materials in this regard and lead evidence, if any.

Accordingly, the following order:

(i) The Miscellaneous First Appeal is partly allowed.

(ii) The judgment and decree dated 4th December

2018 passed by the court of III Additional Principal Judge,

Family Court, Bengaluru, in M.C.No.1161/2014, insofar as it

relates to allowing the petition dissolving the marriage

between the petitioner and respondent under Section

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

insofar as it relates to awarding permanent alimony to the

respondent is set aside and the matter is remitted back to

the Family Court for the purpose of determining the

quantum of permanent alimony to be awarded to the

respondent.

(iii) The parties are at liberty to file necessary

statement/affidavit before the Family Court in this regard

and produce material in support of their respective case.

The Family Court shall also permit them to lead additional

evidence, if any and thereafterwards dispose of the matter

as expeditiously as possible but not later than a period of

six months from the date of receipt of certified copy of this

order.

(iv) The parties shall appear before the Family Court

on 18.04.2022 without awaiting any further notice from

the said court.

Sd/-

JUDGE

Sd/-

JUDGE

KNM/-