Sn Dhananjaya vs Smt Soubhagya
2022 Latest Caselaw 7434 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF MAY 2022

                        PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

           THE HON'BLE MS.JUSTICE J.M. KHAZI

              M.F.A. NO.1318 OF 2012 (FC)
BETWEEN:

S.N. DHANANJAYA
S/O S.C. NARASIMAIAH
AGED ABOUT 37 YEARS
R/AT. NO.123, NEW TIMPER LAYOUT
1ST MAIN, 3RD CROSS
SANJA NAGAR, MYSORE ROAD
BANGALORE-560026.
                                             ... APPELLANT
(BY MRS. GOWHAR UNNISA, ADV., FOR
     MR. V. VISHWANATH, ADV.,)

AND:

SMT. SOUBHAGYA
D/O RAMANNA
AGED ABOUT 32 YEARS
R/AT. NO.97, 98, 1ST MAIN
3RD CROSS, NEW TIMBER LAYOUT
MYSORE ROAD, BANGALORE-560026.
                                             ... RESPONDENT

(BY MRS. RAJESHWARI DEVI C, ADV., (ABSENT)

                           ---

     THIS M.F.A. IS FILED U/S 19(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED 9.9.2011 PASSED
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IN M.C.NO.1423/2006 ON THE FILE OF PRINCIPAL JUDGE, FAMILY
COURT, BANGALORE, DISMISSING THE PETITION FILED U/S
19(1)(ia) OF HINDU MARRIAGE ACT FOR DISSOLUTION OF
MARRIAGE.

     THIS M.F.A. COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal under Section 19(1) of the Family

Courts Act, 1984 has been filed against the judgment

dated 09.09.2011 passed by the family court, by which

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

the Hindu Marriage Act, 1955 (hereinafter referred to as

'the Act' for short) seeking dissolution of the marriage

on the ground of cruelty has been dismissed.

2. Facts giving rise to filing of this appeal briefly

stated are that the parties were married as per Hindu

Rights and Customs on 11.02.1996 at Anjaneyya

Devasthana, New Timber Layout, Bangalore. After the

marriage, the parties stayed together and from the

wedlock a son viz., Mohan Kumar was born on

29.03.1999. It appears that the relation between the

appellant and the respondent were not cordial. The

appellant on 12.10.2009 filed a petition seeking

dissolution of marriage on the ground of cruelty. In

para 9 of the petition, it was pleaded that there is total

mental incompatibility between the appellant and the

respondent. It was further pleaded that the appellant

has not enjoyed the marriage and the respondent does

not respect the aged and infirmed parents of the

appellant. Thereafter, an application for amendment

was filed and by way of amendment, a pleading was

sought to be incorporated that the behavior of the

respondent with the appellant as well as his aged

parents is very rude and cruel and the respondent

during her stay in the matrimonial home used to ignore

and neglect the parents of the appellant. It was also

pleaded that the respondent used to stay with her

parents for a long time and therefore, the appellant was

denied the company of the respondent. The appellant

also pleaded that the respondent is seen in the company

of one Prabhu who was a mechanic by profession.

However, it is pertinent to note that no decree of divorce

was sought on the ground of adultery.

3. The respondent filed written statement in

which averments made in the petition filed by the

appellant were denied and it was pleaded that in fact,

the appellant and the parents used to make a demand

for dowry and she was sent to her parents house. It was

also pleaded that the appellant was harassing and ill

treating her in the matrimonial home and was not being

provided with basic necessities. It was also pleaded that

respondent is ready and willing to join the matrimonial

home at any point of time but the appellant is not

agreeable and is not providing her basic amenities.

4. The family court on the basis of pleadings of

the parties framed issues and recorded evidence. The

appellant examined himself as PW1 and produced 12

documents viz., Ex.P1 to Ex.P12. The respondent

examined herself and did not produce any documentary

evidence. The family court on the basis of the evidence

adduced by the parties vide judgment dated 09.09.2011

inter alia held that the appellant has failed to prove the

ground of cruelty against the respondent. Accordingly,

the petition filed by the appellant was dismissed. In the

aforesaid factual background this appeal has been filed.

5. Learned counsel for the appellant submitted

that the behavior of the respondent during her stay in

the matrimonial home was cruel and she never

respected the parents of the appellant and our attention

has also been invited to the photographs namely Ex.P1

to Ex.P7. It is further submitted that the family court

has failed to properly appreciate the evidence adduced

by the appellant and therefore, the judgment and decree

passed by the family court is required to be set aside.

6. We have considered the submission made by

learned counsel for the appellant and have perused the

record. It is trite law that standard of proof in a case of

matrimonial dispute pertaining to cruelty cannot be said

to be applicable as is applicable in case of trial in the

Code of Criminal Procedure. However, the parties to the

dispute is required to describe the measure and

standard of cruelty and to lead cogent evidence to

succeed in the plea of dissolution of marriage on the

ground of cruelty. [See: 'MAYADEVI vs. JAGDISH

PRASAD, AIR 2007 SC 1426].

7. In celebrated case of 'DASTANE VS.

DASTANE', AIR 1975 SC 1534, the Supreme Court

while dealing with cruelty as a ground for divorce has

held that in a case for divorce on the ground of cruelty,

the conduct charged as cruelty is to be of such a

character so as to cause in the mind of the petitioner a

reasonable apprehension that it will be harmful or

injurious for the petitioner to live with the respondent. It

was further held that it was not necessary that cruelty

must be of such nature as to cause danger to life limb or

health or as to give rise to a reasonable apprehension of

such a danger of harm or injury to health or reputation

or the like would be an important consideration in

determining whether the conduct of the respondent

amounts to cruelty or not. It was also held that the

question of cruelty as ground for divorce has to be

determined on the basis of facts and circumstances of

each case.

8. It is equally well settled legal proposition that

there is a difference between the ordinary wear and tear

of marriage life and cruelty and that the dispute

between the parties are not attributable to cruelty.

[SEE: 'SAVITHRI PANDEY VS. PREM CHANDRA

PANDEY', AIR 2002 SC 591].

9. In the backdrop of aforesaid well settled legal

principles may examine the facts of the case on hand. In

the petition by the appellant under Section 13 seeking

dissolution of marriage on the ground of cruelty, only

bald averments in para 9 of the petition were made that

the behavior of the respondent was cruel and the

appellant did not enjoy even a single day with the

respondent. It has also been pleaded that the

respondent is not even respecting the aged parents of

the appellant. Thereafter, the petition was amended. In

the amended petition also, no particulars were furnished

as to how the behavior of the respondent amounted to

cruelty. Though the appellant made an averment in the

amended petition that respondent is seen moving with

one Prabhakar, however, it is pertinent to note that no

decree was sought on the ground of adultery.

10. The appellant was examined as a witness

who in his examination in chief has again made vague

allegations of harassment and mental agony caused to

him by the respondent without giving any particulars.

From close scrutiny of the evidence of PW2 and in

paragraph 5 to 11 of the examination in chief, it is

evident that no ground of cruelty has been proved by

the appellant and only certain bald assertions have been

made without any basis. The family court has taken into

account the evidence adduced by the parties. It has

further been held that the aforesaid Prabhakar with

whom the respondent is seen is the younger cousin of

the respondent. It has further been held that appellant

has not led any evidence to falsify the relationship

which has been asserted by the respondent in her

deposition. It has further been held that though the

appellant has produced photographs Ex.P5 to Ex.P7,

however, in the absence of any evidence being adduced

by the appellant no such inference as sought to be

indirectly suggested by the appellant can be drawn. The

family court on the basis of meticulous appreciation of

evidence on record has held that no ground has been

made out to grant a decree to dissolve the marriage on

the ground of cruelty.

For the aforementioned reasons, we do not find

any merit in this appeal. The same fails and is here by

dismissed .

Sd/-

JUDGE

Sd/-

JUDGE

SS