Smt. G Vasudha vs Sri R N Nagaraja
2022 Latest Caselaw 5654 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 29TH 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.4766/2014
                         C/W
                  M.F.A.No.7485/2014

IN M.F.A.NO.4766/2014

BETWEEN:

SMT. G. VASUDHA
W/O R.N.NAGARAJA,
AGED ABOUT 42 YEARS,
R/AT NO.1885, 41 "A" CROSS,
18TH MAIN, 4TH 'T' BLOCK,
JAYANAGAR,
BANGALORE-560 041.

PRESENTLY RESIDING AT:
C/O SRI PANDURANGA
NO.63, 2ND MAIN, 4TH CROSS,
SARVABOUMANAGAR,
CHIKKALSANDRA,
BANGALORE-560061.                    ... APPELLANT

(By Sri H.N.Venkatesh, Adv.)

AND:

SRI R. N. NAGARAJA
S/O LATE R.NARAYANA,
AGED 45 YEARS,
NO.201, 5TH MAIN ,
5TH CROSS, TANK BUND ROAD,
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MARENAHALLI,
JAYANAGAR,
BANGALORE-560041.                       ... RESPONDENT

(By Smt. Sona Vakkund, Adv.)


IN M.F.A.NO.7485/2014

BETWEEN:

SRI R. N. NAGARAJA
S/O LATE R. NARAYANA ,
AGED ABOUT 45 YEARS,
R/AT NO.615, MOSQUE ROAD,
3RD CROSS, PHEER KHAN STREET,
NAZARBAD,
MYSORE-570010.                          ... APPELLANT

(By Smt. Sona Vakkund, Adv.)

AND:

SMT. G. VASUDHA
W/O R. N. NAGARAJA,
AGED ABOUT 43 YEARS,
C/O SRI PANDURANGA,
NO. 63, 2ND MAIN,
4TH CROSS,
SARVABOUMANAGAR,
CHIKKALSANDRA
BANGALORE-560061.                       ... RESPONDENT

(By Sri H.N.Venkatesh, Adv.)

      Miscellaneous First Appeal No.4766/2014 is filed under
Section 19(1) of Family Courts Act, against the judgment and
decree dated 30.04.2014 passed in M.C.No.2748/2007 on the
file of the VI Additional Principal Judge, Family Court,
Bangalore, rejecting the petition filed u/Sec. 12(1)(a) of
Hindu Marriage Act, allowing the petition u/Sec.13(1)(i-a) of
the Hindu Marriage Act.
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      Miscellaneous First Appeal No.7485/2014 is filed under
Section 19(1) of Family Courts Act, against the judgment and
decree dated 30.04.2014 passed in M.C.No.2748/2007 on the
file of the VI Additional Principal Judge, Family Court,
Bangalore, rejecting the petition filed u/Sec. 12(1)(a) of
Hindu Marriage Act.

     These appeals coming on for Final Hearing, this day,
Vishwajith Shetty J., delivered the following:

                        JUDGMENT

1. These appeals filed under Section 19(1) of the Family

Courts Act, 1984, arise out of the judgment and decree dated

30.04.2014 passed by the VI Addl. Principal Judge of the

Family Court, Bengaluru, in M.C.No.2748/2007.

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 these appeals are, the petitioner/husband had

filed a petition under Section 12(1)(a) read with Section

13(1)(ia) of the Hindu Marriage Act, 1955 (for short, 'the

Act'), with a prayer to dissolve his marriage with the

respondent solemnized on 07.06.2004 at Deepashree Party

Hall, BDA Complex, Banashankari 2nd Stage, Bengaluru.

4. It is the case of the petitioner that his marriage with

the respondent was solemnized as per the Hindu customs and

rites and immediately after the marriage, nuptial ceremony

was also arranged, but the respondent-wife did not co-

operate with the petitioner for cohabitation and this attitude

of hers continued even thereafter. It is his specific case that

his marriage with the respondent is not consummated and

the respondent is an impotent. He has stated that after

coming to know that the respondent had certain problems, he

took her to various hospitals for treatment of her impotency,

but all efforts made by him were in vain. He has stated that

he has spent a sum of Rs.2 lakhs for the purpose of

treatment of the respondent and the doctors in various

hospitals after diagnosing the respondent, had confirmed that

she was impotent. He has stated that he has been denied the

pleasure of sex by his wife and his wife is not matured

physically as well as mentally and she has failed to perform

her obligations as a wife. He has stated that she was ill-

treating him and humiliating him in all possible ways and also

made efforts to assault and murder him with the assistance of

anti-social elements. She used to threaten him and his family

members stating that she will commit suicide by pouring

kerosene on herself and setting fire or by bursting gas

cylinder. In this background, he has also lodged a police

complaint and sought for protection. He has also stated that

the respondent was a money minded lady and for the

purpose of money, she was ill-treating him. He has stated

that he had purchased gold jewellery as per her demand and

she was also demanding to transfer a site in her name which

stood in his name. He has stated that along with her friends

and family members, he was once brutally assaulted and

even his private organs were injured in the said incident.

Accordingly, he prayed to allow his petition.

5. The respondent had entered appearance in the said

proceedings and filed her statement of objections. She has

denied the averments made by the petitioner in his petition

and stated that the petitioner was more money minded than

her. She also stated that the petitioner had demanded Rs.6

lakhs as dowry at the time of marriage and a sum of Rs.2.5

lakhs was paid to him. Even after the marriage, he was

harassing her for dowry, and therefore, she was constrained

to seek employment in a private establishment and the entire

salary earned by her was taken by the petitioner. She has

stated that the petitioner was a person of suspicious nature

and used to quarrel with her on petty issues. She has also

stated that the petitioner intended to marry her sister, but

her sister had refused the proposal and she married some

other person. Even in this regard, the petitioner had harassed

the respondent and asked her to bring 50% out of Rs.5 lakhs

which was kept in her sister's name for the purpose of her

marriage. She has stated that the petitioner was in the habit

of making false complaints against her and she has also

stated that she has filed a case against the petitioner and his

relatives for the offences punishable under Sections 498A IPC

and Sections 3 & 4 of the Dowry Prohibition Act. She has

stated that the petitioner was due to pay her a sum of

Rs.6,30,000/- and accordingly had prayed to dismiss the

petition and sought for a direction to refund the sum of

Rs.6,30,000/- and also prayed to grant a sum of Rs.10 lakhs

for life time.

6. In order to substantiate his case, the petitioner had got

examined himself as PW-1 and examined another witness as

PW-2 and got marked 21 documents as Exs.P-1 to P-21. On

behalf of the respondent, she got herself examined as RW-1

and two documents were marked as Exs.R-1 & R-2. The

learned Judge of the Family Court, thereafter heard the

arguments and vide the impugned judgment and decree

dismissed the petition filed by the husband under Section

12(1)(a) of the Act and allowed his petition under Section

13(1)(ia) of the Act. Being aggrieved by the same, the

respondent/wife has preferred M.F.A.No.4766/2014 against

the judgment and decree allowing the petition of the husband

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

petitioner/husband has preferred M.F.A.No.7485/2014

against the judgment and decree dismissing his petition

under Section 12(1)(a) of the Act.

7. Learned Counsel for the petitioner has contended that

the respondent has not attained puberty, and therefore, the

marriage between the parties was not consummated. She

submits that the learned Judge of the Family Court has failed

to appreciate the medical documents available on record

which would clearly establish this aspect. She also submits

that the respondent has not denied in her statement of

objection the specific averment made by the petitioner that

she was an impotent and their marriage was not

consummated. She, therefore, submits that the Family Court

had erred in dismissing the petition under Section 12(1)(a) of

the Act.

8. Per contra, learned Counsel appearing for the

respondent submits that the petitioner had not proved before

the Family Court that the marriage has not been

consummated owing to the impotency of the respondent. He

submits that the medical records only go to show that the

respondent was treated for her infertility and on the basis of

the same, it cannot be said that she was impotent. He

submits that the doctor who has treated the respondent was

not examined before the Family Court, and therefore, the

petition under Section 12(1)(a) of the Act was rightly

dismissed. He submits that the petitioner has failed to plead

and prove the cruelty for the purpose of Section 13(1)(ia) of

the Act. The only allegation against the respondent is that she

was money minded lady and that itself cannot be considered

as cruelty for dissolution of the marriage. He submits that the

Family Court was not justified in allowing the petition under

Section 13(1)(ia) of the Act, having regard to the material

evidence available on record.

9. In reply, the learned Counsel for the petitioner has

submitted that the petitioner was denied sexual pleasure by

the respondent and the same would amount to cruelty. She

submits that there are material on record to show that the

respondent had treated the petitioner with cruelty and she

and her relatives had assaulted him, and therefore, the

Family Court was justified in allowing the petition under

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

10. We have carefully considered the arguments addressed

on both sides and also perused the material available on

record.

11. The petitioner has approached the Family Court seeking

reliefs under Section 12(1)(a) and Section 13(1)(ia) of the

Act. For the purpose of getting the relief under Section

12(1)(a) of the Act, the petitioner is required to prove that

his marriage with the respondent has not been consummated

owing to the impotence of the respondent and for the

purpose of Section 13(1)(ia) of the Act, the petitioner is

required to prove that after solemnization of the marriage,

the respondent had treated the petitioner with cruelty.

12. The petitioner has examined himself as PW-1 to prove

that the respondent was impotent. He has marked Exs.P-1 to

P-4, P-9 & P-12 which are the medical records to show that

the respondent was treated in various hospitals. A perusal of

the said documents would go to show that the respondent

was treated in various hospitals for infertility, and therefore,

on the basis of the said documents, it cannot be said that the

respondent was impotent. The learned Judge of the Family

Court having considered these documents, has rightly held

that in the absence of the doctor's evidence who has treated

the respondent and who has issued the said documents, no

finding can be recorded with regard to the impotency of the

respondent. The burden of proving that the respondent was

impotent and thereby the marriage was not consummated, is

on the petitioner, and therefore, merely for the reason that

the respondent has not denied that she is not impotent in her

statement of objection, the relief under Section 12(1)(a) of

the Act cannot be granted to the petitioner. Therefore, no

fault can be found in the judgment and decree passed by the

Family Court rejecting the petition of the husband under

Section 12(1)(a) of the Act, wherein he had sought the relief

of annulling of his marriage by a decree of nullity on the

ground that his marriage had not been consummated owing

to the impotency of the respondent.

13. In so far as the relief sought for by the petitioner under

Section 13(1)(ia) of the Act is concerned, the Family Court

having considered the objections filed by the respondent,

wherein she has stated that if the amount claimed by her is

paid to her, she is ready to give divorce and also considering

the other material available on record which would go to

show that the respondent had not only assaulted the

petitioner, but also treated her mother-in-law with cruelty,

has arrived at the conclusion that the petitioner has proved

that the respondent had treated him with cruelty after

solemnization of his marriage with her.

14. The material on record also go to show that the

petitioner has specifically averred in his petition and also

deposed during the course of his evidence that the

respondent has denied the pleasure of sex to him and she

had not co-operated for cohabitation. As rightly contended by

the learned Counsel for the petitioner, the respondent has not

denied the same in her statement of objection nor she has

said that she was ready and willing to cohabitate with the

petitioner. Denial of sexual pleasure to a spouse would

definitely amount to cruelty. The husband cannot be made to

suffer for no fault of his and deprive of his natural urge to

enjoy sexual happiness. The married couple are duty bound

to discharge certain marital obligations and non-performance

of the same would definitely be considered as cruelty to the

other spouse. The appreciation of oral and documentary

evidence available on record would go to show that the

parties do not have faith, respect or love for each other and

they have been living separately ever since the year 2007. In

our considered view, the Family Court having appreciated all

these aspects of the matter, has rightly held that no purpose

would be served in asking the couple to stay together and

accordingly, has allowed the petition under Section 13(1)(ia)

of the Act.

15. The efforts made before the Family Court as well as

before this Court for conciliation between the parties have

failed. We are of the opinion that the judgment and decree

passed by the Family Court allowing the petition under

Section 13(1)(ia) of the Act does not suffer from any illegality

or irregularity which calls for interference by this Court.

Accordingly, the following the order:

Both the appeals are dismissed. The judgment and

decree dated 30.04.2014 passed by the VI Addl. Principal

Judge of the Family Court, Bengaluru, in M.C.No.2748/2007,

is confirmed.

Sd/-

JUDGE

Sd/-

JUDGE

KK