Sri Arun D Dalal vs Smt Roopa V Rao
2022 Latest Caselaw 5554 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

                   M.F.A.No.9537/2011

BETWEEN:

SRI ARUN. D. DALAL
S/O R. DWARANATH,
AGED ABOUT 37 YEARS,
R/A NO 481 THIRD MAIN,
10TH CROSS, T. K. LAYOUT,
4TH STAGE, MYSORE-570009
AND ALSO AT NO.84
GANAPATHI BUILDINGS,
BVK IYENGAR ROAD,
BANGALORE-53.                        ... APPELLANT

(By Sri Gurudath. B. S., Adv.)

AND:

SMT. ROOPA V. RAO
AGED ABOUT 32 YEARS,
W/O ARUN. D. DALAL,
D/O VIJENDRA RAO,
NO. 543 10TH CROSS,
9TH MAIN T. K. LAYOUT,
MYOSRE-570009.
PRESENTLY WORKING AS TEACHER
IN DAYANANDA ARYA VIDYALAYA,
NO. 25/D NEAR RAJARAJESHWARI TEMPLE,
INDUSTRIAL SUBURB,
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VISVESHWARANAGAR,
MYSORE-570008.                            ... RESPONDENT

(By Sri Dilip Kumar, Adv.)

      This Miscellaneous First Appeal is filed under Section 28
of Hindu Marriage Act against the judgment and award dated
14/09/2011 passed in MVC No.335/2008 on the file of the
Judge, Family Court at Mysore, rejecting the petition filed u/s
13(1)(ia)(ib) of Hindu Marriage Act for divorce.


      This appeal coming on for Orders, this day, Vishwajith
Shetty J., delivered the following:


                          JUDGMENT

1. This Miscellaneous First Appeal under Section 19(1) of

the Family Courts Act, 1984, has been filed by the petitioner-

husband challenging the judgment and decree dated

14.09.2011 passed by the learned Judge of the Family Court

at Mysuru, in M.C.No.335/2008, dismissing his petition filed

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

1955 (for short, 'the Act').

2. The parties are referred to by the rank 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 20.04.2000 at Saraswathi

Kalyana Mantapa, II Stage Banashankari, Bengaluru, as per

the customs prevailing in their community. After the

marriage, the couple lived together in the matrimonial house

cordially and the respondent-wife gave birth to a girl child in

the month of September 2000. The respondent had spent the

pre-natal and post-natal period in the house of her father at

Mysuru and after delivery, she returned to matrimonial house

along with the child, but stayed with the husband only for a

short period. It is the specific case of the petitioner-husband

that after the wife returned to matrimonial home along with

the child, her behaviour and attitude towards the petitioner

and his family members changed and she was putting forward

unreasonable demands including the demand to shift their

residence to Mysuru or to stay in her parents house at

Mysuru. Since the petitioner refused to leave his parents and

his job at Bengaluru, the respondent started quarreling with

him on petty issues and all of a sudden, she left to Mysuru

without even informing him and started residing in her

parents house. Efforts made by the petitioner to bring her

back were all in vain and the panchayats held in this regard

also failed. It is his case that subsequently, in order to settle

the strained relationship between the parties, he moved to

Mysuru and purchased a new house at Mysuru and started

residing there with the wife and child and also his parents. It

is his case that even thereafter, the respondent did not

change her attitude and behaviour and she refused to take

care of his parents and on the other hand, she was insisting

the petitioner to come and reside along with her in her

parents house. On 16.09.2005, abruptly she had left the

matrimonial house and started residing in her parents house

and all efforts made by the petitioner to bring her back failed

and it is under these circumstances, he had filed a petition

under Section 13(1)(ia) & (ib) of the Act, with a prayer to

dissolve his marriage with the respondent solemnized on

20.04.2000 by a decree of divorce.

4. The respondent-wife has contested the petition by filing

her statement of objection. While admitting the relationship,

she has denied the allegations made against her in the

petition. It is her specific case that after she became

pregnant, when she was in her parents house, the petitioner

developed illegal intimacy with one of his colleague by name

Veena and because of this reason, he started ill-treating her.

She has also further stated that since the parents of the

petitioner were ill-treating her, she was constrained to leave

the company of the petitioner and take shelter in her parents

house. She has also stated that subsequently the petitioner

had developed the habit of consuming liquor and he used to

return home late night in an intoxicated state and used to

harass her. She has also stated that the petitioner was in the

habit of womanizing and he did not take care of the

respondent and the child nor did he show any love and

affection towards them. She has also stated that after the

petitioner purchased a house at Mysuru, she had joined him

in the said house, but the petitioner's mother who was

residing with him used to harass her and even the petitioner

at her instance was harassing her. It is under these

circumstances, she was constrained to leave the matrimonial

house and take shelter in her parents house.

5. Before the Family Court, the petitioner had examined

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

PWs-2 & 3 on behalf of the petitioner and six documents were

marked as Exs.P-1 to P-6. The respondent examined herself

as RW-1 and got marked two documents as Exs.R-1 & R-2.

6. The learned Judge of the Family Court, thereafter, vide

the impugned judgment and decree dismissed the petition

filed by the husband under Section 13(1)(ia) & (ib) of the Act.

It is under these circumstances, the petitioner-husband is in

appeal before this Court.

7. Learned Counsel for the petitioner submits that the

parties are living separately ever since 2005, and therefore,

there is no point in continuing the marriage. He submits that

the respondent was demanding for setting up a separate

house or to join her in her parents house and she was not

ready to live with the parents of the petitioner. He submits

that the respondent had deserted the petitioner without valid

reasons. He also submits that the respondent's behaviour

changed after giving birth to the child. He submits that

though the petitioner made all the efforts to live with the

respondent, because of the adamant attitude of the

respondent, the relationship between the parties got strained

and the efforts made for conciliation have all been in vain.

8. Per contra, learned Counsel for the respondent submits

that the respondent was ill-treated in the matrimonial home

by her husband as well as by her in-laws. It is under these

circumstances, she was constrained to take shelter with her

parents. He submits that the couple have a daughter who is

aged about 21 years and is of marriageable age, and

therefore, if a decree of divorce is granted, the same would

have a repercussion in the marital prospects of the daughter.

He submits that the learned Judge of the Family Court having

appreciated the entire oral and documentary evidence

available on record, has given a clear finding that the

petitioner has not made out a case for grant of decree of

divorce either on the ground of cruelty or on the ground of

desertion, and therefore, there is no merit in this appeal and

accordingly, prays to reject the appeal.

9. We have carefully considered the arguments addressed

on both sides and also perused the material available on

record.

10. In order to substantiate the case of the petitioner, he

had examined himself as PW-1. During the course of his

deposition, he has reiterated the facts narrated by him in the

petition. After the marriage, the couple had stayed together

as husband and wife at Bengaluru till the year 2005,

thereafter, they lived in their house at Mysuru for a period of

about 10 months. Though the petitioner has stated that the

respondent was behaving rudely and adamantly with him and

her attitude towards him and his family members was hostile,

he has failed to point out any such instance of grave and

serious nature which would amount to cruelty for the purpose

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

11. The principal grievance of the petitioner appears to be

that the respondent was demanding to setup a separate

house or to live with her parents in their house and it is the

case of the petitioner that he was not in a position to leave

his parents for the sake of his wife. The respondent, on the

other hand, has contended that she was being ill-treated in

her matrimonial house by the petitioner as well as by her in-

laws, and therefore, initially she had left the matrimonial

house at Bengaluru and subsequently after the delivery, she

had joined the petitioner. It is her further case that even after

the petitioner shifted his residence to Mysuru, she had joined

him at Mysuru, but the petitioner and his mother continued to

ill-treat and harass her, and therefore, she was compelled to

take shelter in her parents house after September 2005

onwards.

12. According to the petitioner, the respondent was totally

unjustified in demanding to setup a separate house at Mysuru

or to stay in her parents house and this amounted to cruelty.

It is also his case that because of her rude behaviour, he and

his parents have suffered mental agony and torture. PWs-2 &

3 who have been examined by the petitioner have deposed to

the effect that they have made attempts to conciliate

between the parties and they have also deposed that the said

efforts made by them were in vain. PWs-2 & 3 are ignorant

about the reason as to why the relationship between the

petitioner and the respondent got strained. Therefore, the

evidence of PWs-2 & 3 is of not much relevance.

13. The marriage can be dissolved under Section 13(1)(ia)

of the Act only if the party approaching the court proves that

the other party has treated him or her with cruelty after the

solemnization of the marriage. Cruelty would be physical or

mental. In the case of physical cruelty, the graveness and

seriousness of allegation may have to be taken into

consideration, whereas in the case of mental cruelty, the

sustained unjustified conduct and behaviour of the other

spouse which would resultantly develop a feeling of anguish

and frustration because of the said conduct of the spouse for

a continued period would have to be appreciated. The

conduct of the other party which would merely cause

unhappiness and dissatisfaction and emotional upset cannot

be a ground for grant of divorce on the ground of cruelty. The

normal wear and tear which happens in the day today life

would not be adequate for grant of divorce on the ground of

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

14. For the purpose of seeking a decree of divorce on the

ground of desertion under Section 13(1)(ib) of the Act, the

petitioner is required to prove that the respondent is guilty of

deserting the petitioner for not less than two years

immediately preceding the presentation of the petition. The

expression 'desertion' means the desertion of the petitioner

by the other party without reasonable cause. The respondent

has stated in her objection as well as during the course of her

evidence that the petitioner and his mother were ill-treating

her in the matrimonial house and they were not taking care

of her and the child in the matrimonial house. It is also her

specific case that the petitioner was addicted to alcohol and

he also was a womanizer and used to abuse and assault her.

Under the circumstances, it cannot be said that the

respondent had no valid reason to desert the petitioner and

take shelter in her parents house. The respondent along with

her infant girl child was being ill-treated in the matrimonial

house by the petitioner and his mother, and therefore, if the

respondent has left the company of the husband and decided

to stay in her husband's house, it cannot be said that the

same would amount to willful desertion within the meaning of

Section 13(1)(ib) of the Act.

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

MANGAYAKARASI VS M.YUVARAJ - AIR 2020 SC 1198, has

held 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. In the

present case, admittedly, the child born to the couple is aged

about 21 years and she is of marriageable age. She is in the

custody of the respondent-wife. The outcome of this appeal

will definitely have a repercussion on her future life and her

marital prospects.

16. The principal grievance of the petitioner is that the

respondent-wife was demanding a separate house or to stay

in her parents house and this demand cannot be termed as

cruelty for the purpose of seeking a decree of divorce. The

Hon'ble Supreme Court in the case of SMT.ROHINI KUMARI

VS NARENDRA SINGH - AIR 1972 SC 459, has held that

desertion within the meaning of Section 10(1)(a) of the Hindu

Marriage Act read with the Explanation does not imply only a

separate residence and separate living. But, it is also

necessary that there must be a determination to put an end

to marital relation and cohabitation. Without animus

deserendi there can be no desertion within the meaning of

Section 10(1)(a) of the Act. In the present case, the material

on record would go to show that the respondent had no

intention at any point of time to put an end to the marital

relationship and it cannot be said that she had left the

petitioner's company for no valid reasons.

17. The learned Judge of the Family Court having

appreciated the entire oral and documentary evidence

available on record, by a reasoned order, has dismissed the

petition filed by the husband under Section 13(1)(ia)(ib) of

the Act on the ground that the petitioner has not proved

either the ground of cruelty or desertion against the

respondent-wife. We are of the considered view that the said

judgment and decree passed by the Family Court does not

suffer from any illegality or irregularity which calls for

interference of this Court. We, therefore, find no merit in this

appeal and accordingly, the same is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

KK