Don Monthu Pascal vs Syivia
2022 Latest Caselaw 12891 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 8TH DAY OF NOVEMBER 2022

                       PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

  THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

             M.F.A. No.6767 OF 2015 (FC)
BETWEEN:

DON MONTHU PASCAL FERNANDES
S/O LATE CYPRIAN FERNANDES
AGED 45 YERAS
R/O C/O. JULIANA D'SILVA
BEHIND DEREBAIL CHURCH
ASHOK NAGAR POST, MANGALORE-575 006.
                                           ... APPELLANT
(BY MR. CHRISTOPHER NOEL, ADV.,)

AND:

SYIVIA FERNANDES NEE RODRIGUES
ASLO KNOWN AS
SILVIA FERNANDES NEE RODRIGUES
D/O LATE VICTOR RODRIGUES
AND BENNY RODRIGUES
AGED ABOUT 42 YEARS
RESIDING AT "JOY VILLA"
PREM NAGAR, KULSHEKAR POST
MANGALURU-575 006.
                                    ... RESPONDENT
(BY MS. ANANYA RAI, ADV., FOR
    MR. M. VISHWAJITH RAI, ADV.,)
                           ---
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     THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURT
ACT,   AGAINST    THE    JUDGMENT      AND    DECREE
DATED:15.07.2015 PASSED ON MC NO.81/2014 ON THE
FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, AT
DAKSHINA KANNADA, MANGALURU, ALLOWING THE
PETITION FILED U/S 10(1) (ix), (x) R/W SEC.37 OF THE
DIVORCE ACT.

    THIS M.F.A. COMING ON FOR 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

15.07.2015 by which petition filed by the respondent

under Section 10(1)(ix) and (x) read with Section 37 of the

Divorce Act, 1890 has been allowed and the claim of the

appellant seeking restitution of conjugal rights has been

dismissed. The appellant has been directed to pay a sum

of Rs.8 Lakhs to respondent by way of permanent alimony

and has been further directed to pay litigation cost of

Rs.20,000/-.

2. Relevant facts leading to filing of this appeal in

nutshell are that the marriage between the parties was

performed on 28.06.2003 in Mangaluru. Out of the

wedlock, a daughter was born on 10.09.2005. The

appellant at the relevant time was employed as an event

manager, whereas, the respondent was working as a

Manager in a private firm.

3. The respondent filed a petition on 05.03.2014

seeking dissolution of marriage on the ground of cruelty

and desertion. It was inter alia pleaded that the appellant

forced the respondent to abort the child. It was further

pleaded that the appellant treated the respondent with

cruelty and hit her. It was also pleaded that the appellant

deserted the respondent on 07.02.2012. Accordingly, a

petition was filed seeking dissolution of marriage on the

ground of cruelty and desertion.

4. The respondent filed statement of objections as

well as a counter claim. In the statement of objections, the

averments made in the petition were denied and it was

pleaded that he very much loves the appellant and his

child. It was also pleaded that brother of the respondent

from United Kingdom gave threatening calls to the

respondent. In the counter claim, the respondent sought

the relief of restitution of conjugal rights.

5. The family court on the basis of pleadings of

the parties framed the issues. The respondent examined

herself as PW1, whereas, appellant examined himself as

RW1 and Sister Celestine as RW2. The Family Court vide

judgment and decree dated 15.07.2015 inter alia held that

the appellant has deserted the respondent and has treated

her with cruelty. Accordingly, the marriage between the

parties was dissolved by a decree of divorce. However, the

counter claim filed by the appellant seeking restitution of

conjugal rights has been dismissed. In the aforesaid

factual background, this appeal has been filed.

6. Learned counsel for the appellant submitted

that the family court has failed to appreciate the evidence

on record in its correct perspective, which has resulted in

erroneous findings and the consequent decree. It is

further submitted that the family court ought to have

appreciated that the respondent was thrown out of the

matrimonial home. It is also argued that no ground of

dissolution of marriage is made out. However, it is

submitted that during the pendency of the appeal, the

respondent has migrated to United Kingdom.

7. On the other hand, learned counsel for the

respondent has supported the judgment and decree

passed by the family court.

8. We have considered the submissions made on

both sides and have perused the record. In SAMAR

GHOSH VS JAYA GOSH (2007) 4 SCC 511, the

Supreme Court inter alia has elaborated the instances

of mental cruelty which are reproduced below for the

facility of reference:

No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'.

The instances indicated in the succeeding

paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the

conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for

grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the

consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

9. In the backdrop of aforesaid well settled legal

principles with regard to cruelty we may advert to the

evidence on record. From the perusal of evidence of

respondent (PW1), it is evident that respondent used to

return home late and was always spending more time with

his friends and was neglecting his wife. From her

evidence, it is also evident that the appellant did not

answer the calls of the respondent and behaved like a sex

maniac. From the evidence of the respondent, it is also

evident that the respondent indulged in watching a lot of

porn movies and his cell phone was filled with it. The

appellant used to sit for long chats with unknown people

and the respondent was ill treated sexually. The appellant

also forced the respondent to forcefully abort the first

child. The sequences of incidents narrated by the wife in

her evidence demonstrates that the respondent was ill

treated by the appellant both physically and mentally. The

conduct of the appellant is such that the respondent

cannot reasonably asked to put up with such conduct and

continue to live with the appellant. Therefore, the ground

of cruelty as pleaded by the respondent is proved.

10. On the basis of evidence on record, it is evident

that on 07.02.2012, the respondent came out of the

matrimonial home along with his baggages and valuables

including the ornaments gifted to the respondent and

started residing with his bachelor friend at Gorigudde and

resided with his friend till 2015 who is a lecturer in

Fisheries College. The appellant has neither issued any

notice to the respondent nor has made any attempts to

ensure that the respondent joins the matrimonial home.

11. The Family court has taken into account the

evidence of RW2 viz., the Sister Celestine and has held

that her evidence has to be appreciated as a whole. It is

further held that there are inconsistencies in the

statement of the aforesaid witness and the appellant. The

parties are residing separately since, 07.02.2012 i.e., past

about 10 years. As per the version of the appellant

himself, the respondent has settled abroad and there are

no chances of re-union. The family court on the basis of

meticulous appreciation of evidence on record has

recorded a finding that the ground of desertion and cruelty

are proved. The aforesaid findings are based on evidence

on record.

For the aforementioned reasons, we do not find any

merit in this appeal. The same fails and is hereby

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

SS