Smt. Shreelatha Nayak vs Sri. Ajith Nayak
2023 Latest Caselaw 2115 Kant

                           -1-
                                    MFA No.3407 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 05 TH DAY OF APRIL 2023
                       PRESENT
        THE HON'BLE MR JUSTICE ALOK ARADHE
                           AND
  THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
 MISCELLANEOUS FIRST APPEAL NO.3407 OF 2016 (FC)

BETWEEN:

SMT. SHREELATHA NAYAK
W/O SRI AJITH NAYAK
AGED ABOUT 38 YEARS,
NO.85, 1ST FLOOR,
PRATHIMA, 8TH MAIN,
SECTOR 1, NOBO NAGAR,
SOS POST BANNERGHATTA ROAD,
BANGALORE-560076.
                                           ...APPELLANT
(BY SMT. SHREELATHA NAYAK, PARTY-IN-PERSON)

AND:

SRI AJITH NAYAK
S/O A.PANDURANGA NAYAK,
AGED ABOUT 41 YEARS,
HOUSE NO.2B GROUND FLOOR,
GULLAPPA REDDY BUILDING,
NEAR RAMAIAHA GARDEN,
SOS POST, BANNERGHATTA,
BANGALORE-560076.
                                        ...RESPONDENT
(BY SRI A.S.GUPTA, ADV.)

       THIS M.F.A IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE
DATED 11.03.2016 PASSED IN MC NO.1780/10 ON THE FILE
                                  -2-
                                               MFA No.3407 of 2016




OF THE 3RD ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU, ALLOWING THE PETITION FILED U/SEC.13(1) (ia)
OF THE HINDU MARRIAGE ACT.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
28.03.2023,    COMING       ON     FOR   PRONOUNCEMENT         OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:

                            JUDGMENT

This appeal under Section 19(1) of the Family Courts

Act, 1984, has been filed against the judgment and decree

dated 11.03.2016 passed in M.C.No.1780/2010 by the III

Additional Family Court, Bangalore, by which the petition

filed by the respondent seeking dissolution of marriage,

was allowed.

2. Brief facts giving rise to filing of this appeal are that

the marriage of the appellant and respondent was

solemnized on 26.11.2007 at Manipal. The couple started

living in Bangalore, the respondent is an Engineer by

profession and the appellant is a B.Com. graduate and

both were working in Bangalore. It is averred that after

marriage appellant started ill treating the respondent, she

MFA No.3407 of 2016

failed to perform the duties of a wife, she never mingled

with family members, relatives and friends and was in the

habit of finding fault with the respondent, his relatives and

friends. It is further averred that appellant started

pressurizing the respondent to send his parents back to

their native and when he did not agree, she started

quarreling by creating scene and humiliated the

respondent. It is also averred that appellant has forced

the respondent to remove the photographs of family

members kept in the bedroom and when the respondent

refused to do so, she suspected that he has illicit

relationship with his sister-in-law. She did not cook for all

the family members and sometimes the respondent slept

without any food. There was no peace of mind to the

respondent due to the conduct of the appellant.

3. It is pleaded that on 30.05.2010 the respondent left

the company of the appellant and started living separately.

The appellant has filed false missing complaint before the

Bannerghatta Police. It is further pleaded that when the

elder sister along with other family members of the

MFA No.3407 of 2016

respondent went for shopping, their car met with an

accident and respondent wanted to verify the same and

intended to file a Police complaint, but the appellant

shouted and quarreled with him unnecessarily and caused

embarrassment. In April 2008, the parents of the

appellant visited the matrimonial home, she insisted to

take them to temple and thereafter insisted to take them

to Nandi Hills and when the respondent informed that it is

far away place and they would not be able to return within

time, she abused him in filthy language. Similarly in July

2008 when they visited appellant's parents house at

Marur, she insisted to visit temple in and around

Mangalore, and when the respondent suggested that they

would have lunch with his brother, the appellant has

objected for the same and informed that the respondent

should not have any contact with his relatives.

4. In August 2008 when the house warming ceremony

was being performed, the appellant has insulted and

humiliated the respondent. When the father of the

appellant gave complaint in November 2008 to the

MFA No.3407 of 2016

jurisdictional police, the police summoned the couple and

they have given an undertaking that they would lead

happy life. Similarly when the respondent's uncle Sri.Gopal

Naik visited the house to advise the couple, the appellant

has created scene in front of him and abused him saying

that the respondent is having illicit relationship with his

sister-in-law.

5. The appellant has entered appearance before the

Family Court and filed the statement of objections. The

appellant has admitted the relationship of the couple,

however, she specifically denies the allegations made in

the petition. It is averred that from the very beginning of

their married life, their relationship was not cordial and the

respondent was of adamant attitude and used to pick up

quarrel for silly reasons. The respondent has also forced

the appellant to stay alone. He has purchased flat by

raising loan making her as co-obligant to repay the loan by

force and coercion. It is further averred that the

respondent expelled the appellant from the matrimonial

home, hence she shifted to another premises. The

MFA No.3407 of 2016

respondent is working in IBM and getting salary of

Rs.80,000/- per month. All the jewels of the appellant has

been retained by the respondent. It is also averred that

the respondent used to stay with his sister-in-law in

bedroom by locking the door, when she objected he said

that he was teaching Yoga, and his behavior and

movements were unnatural hence she suspected his

character, as no prudent wife would tolerate such behavior

of her husband.

6. It is pleaded that the respondent has not provided

any basic needs to the appellant, he took away gas

cylinder from the matrimonial home by which she was

forced to live in a rented premises and hence appellant's

father gave complaint to the police on 25.11.2008 stating

that the respondent is not taking care of the appellant and

both the appellant and the respondent undertook before

the police that they would lead happy married life. In the

month of May 2010, the respondent, without informing the

appellant, has left the matrimonial home hence she has

filed a missing complaint. It is further pleaded that the

MFA No.3407 of 2016

appellant has initiated proceedings under the provisions of

the Domestic Violence Act and filed a civil suit seeking

permanent injunction against the respondent from

alienating the property purchased jointly. It is also

pleaded that she has filed complaints against the

respondent and denied the allegations of cruelty.

7. The Family Court has recorded the evidence of the

parties. The appellant examined herself as RW.1 and

marked Exs.R1 to R3. The respondent examined himself

as PW.1 and produced Exs.P1 to P5. The Family Court

based on the evidence adduced by the parties vide

judgment dated 11.03.2016 allowed the petition by

granting decree of divorce on the ground of cruelty. In the

aforesaid factual matrix the present appeal has been filed.

8. We have informed the Appellant/party-in-person that

she can avail the free legal assistance from the Karnataka

State Legal Services Authority for which she has refused to

avail the said assistance. It was also informed to her that

this Court would appoint amicus curiae to appear on her

MFA No.3407 of 2016

behalf or to assist her in making submission. The same is

also declined by the appellant/party-in-person.

9. This appeal is heard analogously with Criminal

Revision Petition 1193/2016. The Criminal Revision

Petition is disposed of by a separate order.

10. The appellant submits that the respondent has made

false allegations of cruelty, the allegations pleaded are

bald and without any evidence. The Family Court has

erred in appreciating the pleading and evidence on record

and has given incorrect finding that the respondent has

proved the ground of cruelty and granted decree of

divorce. It is further submitted that it is the respondent

who was creating problem to the appellant and insisted

her to share 50% of the household expenditure. It is also

submitted that she has denied the allegations of the

petition by filing the statement of objections and it is the

respondent who has alleged that the appellant was

adamant, never gave respect to the respondent and his

family members and used to quarrel with the respondent.

MFA No.3407 of 2016

It is also denied that the appellant has abused the

respondent's uncle viz., A.Gopala Naik when he visited the

matrimonial home. The appellant has denied the specific

averment of the petition that the appellant has objected

and requested the respondent to remove the photographs

of his niece and his family members in their bedroom and

she was suspicious and alleged that the respondent was in

illicit relationship with his sister-in-law, which has caused

mental cruelty. It is further submitted that the allegations

of cruelty is false and made without any basis. However,

the Family Court has proceeded on wrong footing and has

come to the conclusion that the appellant's allegation of

adultery amounts to mental cruelty.

11. It is also submitted that the respondent has left the

matrimonial home abruptly and not provided any basic

necessities which has forced her to file complaint, it is

submitted that PW.1 in his cross-examination has

admitted that he has given an undertaking before the

police that he would behave properly with the appellant

and take care of the appellant.

- 10 -

MFA No.3407 of 2016

12. Per contra, learned counsel for the respondent

supports the impugned judgment and contends that the

respondent has proved the ground of cruelty by adducing

proper evidence. It is submitted that the appellant was

adamant in nature, quarrelsome, she never cooked food

for the respondent and that she has abused the

respondent and his parents. It is further submitted that

the appellant has lodged false cases against the

respondent and she was of suspicious character, which has

forced the respondent to leave the appellant. She has

initiated various proceedings for maintenance, filed a civil

suit for permanent injunction and also filed a complaint

before the consumer forum to delete her name as a co-

obligant for the loan, these acts of the appellant has

caused mental cruelty to the respondent. It is also

submitted that the parties are living separately from 14

years and that the marriage has broken down

irretrievably, hence seeks to dismiss the appeal.

- 11 -

MFA No.3407 of 2016

13. We have heard the appellant/party-in-person and the

learned counsel for the respondent and perused the

material on record. The parties to the proceeding have

admitted their relationship and they do not dispute that

they started their marital life in Bangalore and both were

working. The respondent has pleaded the various

instances of cruelty viz., the appellant has ill treated the

respondent, she used to avoid his family members and

friends, she used to find fault with the respondent's

relatives, she started pressuring the respondent to send

back his parents to their native and she insulted and

humiliated him on many occasions which has caused

mental cruelty.

14. It is alleged that she refused to cook food for him

and she always suspected him. She has filed false case

against him on 31.05.2010 and similar case was filed by

her father alleging the harassment. It is also alleged that

she has insulted the respondent's friend Hemant Raju and

his uncle Gopal Naik. It is further alleged that the

appellant has forced the respondent to remove the photos

- 12 -

MFA No.3407 of 2016

of his niece and other family members from their bedroom

and she has alleged that the respondent was in illicit

relationship with his own sister-in-law.

15. On careful close scrutiny of the pleading and

evidence on record, the allegations of cruelty are vague

and self serving statements of PW.1. The allegations that

the appellant was not respecting the respondent, his

family members and humiliated them, insulted his friend

Hemant Raju and his uncle Gopal Naik are also self serving

statements of the respondent, that has been pleaded and

same has been reiterated in the evidence of PW-1.

Nothing has prevented the respondent to adduce the

evidence of Sri Hemant Raju and Sri Gopal Naik or of any

independent witness to substantiate the allegations of

cruelty.

16. Mere pleading of cruelty and reiteration of the same

in his affidavit would not constitute mental cruelty unless

it is supported with corroborative evidence of independent

witness. The Family Court has erred in appreciating these

- 13 -

MFA No.3407 of 2016

aspects, which has resulted in giving erroneous finding.

The Family Court has given a finding that the appellant

has made reckless allegations against the respondent

about his illicit relationship with his sister-in-law and the

appellant has failed to prove the said statement by

substantiating proper evidence to prove the allegation of

adultery. The Family Court has lost sight that it is the

respondent who has pleaded specifically in para 9 of the

petition that the appellant has tried to remove the photos

of the respondent's niece for that the respondent objected

and requested the appellant not to remove the said photos

at that time, the appellant became suspicious and alleged

that the petitioner was in illicit relationship with his sister-

in-law. The appellant has denied the said allegations in

her statement of objections. It is the respondent who has

taken the said plea in his petition and is required to prove

the same independently.

17. The finding of the Family Court that no evidence has

been placed by the appellant to substantiate the allegation

of adultery is perverse and contrary to the evidence on

- 14 -

MFA No.3407 of 2016

record. The Family Court has further recorded a finding

that the very fact of alleging adulterous relationship with

his sister-in-law amounts to mental cruelty. The aforesaid

finding is perverse, the appellant has only denied the

allegations made in the petition.

18. The Family Court has given a finding that the parties

are living separately for more than 14 years and the

marriage has been irretrievably broken down, which prima

facie establishes that it is difficult for both of them to live

together as a married couple, hence proceeded to grant

decree of divorce. The said finding is perverse and

contrary to law, the Family Court cannot dissolve the

marriage on the ground that the marriage has been

irretrievably broken down, as the said ground is not

available under Section 13 of the Hindu Marriage Act,

1955.

19. The respondent is required to prove the grounds of

cruelty by pointing out specific instances of cruelty

substantiated with cogent evidence. Therefore, it is

- 15 -

MFA No.3407 of 2016

essential for the respondent who claims the relief to prove

that a particular conduct or behavior of the appellant has

resulted in cruelty. In the absence of any such proof the

Family Court has erroneously proceeded to grant decree of

divorce. The Family Court has failed to appreciate the

pleading and evidence on record in its proper perspective,

therefore, resulted in giving perverse finding which

requires to be interfered in the present appeal.

20. For the aforementioned reasons the impugned

judgment and decree dated 11.03.2016 is set aside.

In the result the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: DMN