Sri Harsha vs Smt Bhagya
2023 Latest Caselaw 2116 Kant

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                                      MFA No.2403 of 2012




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.2403 OF 2012 (FC)

BETWEEN:

SRI HARSHA
S/O CHANDRAPPA
AGED ABOUT 34 YEARS,
R/AT NO.1311, 6TH CROSS,
2ND MAIN, HAL 3RD STAGE,
BANGALORE-560008.
                                              ...APPELLANT
(BY SRI L.GOVINDRAJ, ADV.)

AND:

SMT. BHAGYA
D/O SRI MADAIAH,
AGED ABOUT 29 YEARS,
R/AT NO.4964, 8TH CROSS,
7TH MAIN, 2ND STAGE,
VIJAYA NAGARA,
MYSORE-570017.
                                             ...RESPONDENT
(BY SRI VENKATESH B. PYAGI, ADV. - ABSENT)

       THIS M.F.A IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED
20.01.2012 PASSED IN MC NO.161/2010 ON THE FILE OF
JUDGE, FAMILY COURT, MYSORE, DISMISSING THE PETITION
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                                               MFA No.2403 of 2012




FILED U/SEC.13(1) (i-a) OF HINDU MARRIAGE ACT FOR
DIVORCE.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
30.03.2023,    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 20.01.2012 passed in M.C.No.161/2010 by the

Family Court, Mysore, by which the petition filed by the

appellant seeking dissolution of marriage, was dismissed.

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

the marriage of the appellant and respondent was

solemnized on 22.04.2004 at Mysore as per customs and

rites and out of the wedlock a female child was born on

23.08.2005. It is averred that the respondent joined the

matrimonial home at Bangalore, where the appellant was

working in a private company. It is further averred that

after the birth of the child the respondent started showing

different attitude towards the appellant and started to

MFA No.2403 of 2012

quarrel with him and his parents by using unparliamentary

words. It is also averred that the respondent used to

quarrel and create embarrassment in social gatherings in

front of relatives and friends.

3. It is pleaded that the respondent was not doing

household work, used to misbehave with the appellant and

his family members, she was adamant, ill tempered, and

she used to threaten the appellant of filing false cases

against him and his parents and also threatened to commit

suicide. It is further pleaded that respondent used to

leave the matrimonial home without informing the

appellant and she was in the habit of frequently visiting

and staying with her parents and on every occasion, the

appellant had to bring her back to the matrimonial home.

It is also pleaded that without the consent and without any

reason the respondent left the matrimonial home on

05.04.2007 and never came back, hence the appellant had

sent legal notice requesting her to rejoin, which went in

vain.

MFA No.2403 of 2012

4. The respondent has entered appearance before the

Family Court and filed the statement of objections. The

respondent has admitted the relationship, birth of the child

and also admitted that the appellant was working in a

Private Company in Bangalore. The respondent has

specifically denied the allegations of cruelty and desertion

by contending that it is the appellant and his parents, who

have caused cruelty on the respondent, they used to find

fault with each and every work of the respondent.

5. [ It is averred that the respondent's parents have

given dowry as per the demand of the appellant's family.

It is further averred that appellant and her in-laws have

not provided proper medical treatment to the respondent,

hence she stayed with her parents and gave birth to a

female child on 23.08.2005. It is also averred that when

they performed the naming ceremony of baby girl, she

returned back to the matrimonial home. However, the

appellant and his parents refused to take the respondent

and her child back to the matrimonial home, therefore, the

respondent, started living with her parents. It is pleaded

MFA No.2403 of 2012

that the appellant and his parents have caused physical

and mental cruelty and they have refused to take the

respondent to matrimonial home without any reason.

6. The Family Court has recorded the evidence. The

appellant examined himself as PW.1 and another witness

as PW.2 and produced Exs.P1 to P9. The respondent

examined herself as RW.1 and produced Ex.R1. The

Family Court based on the evidence adduced by the

parties vide judgment dated 20.01.2012 dismissed the

petition filed by the appellant. In the aforesaid factual

matrix the present appeal has been filed.

7. Learned counsel for the appellant submits that the

parties neither dispute the relationship nor the birth of the

female child. It is submitted that the couple lived happily

for sometime and thereafter, the respondent wife had

started showing hostile attitude towards the appellant and

family members. It is further submitted that respondent

was adamant, never performed the duties of a wife, she

used to humiliate and insult the appellant and his family

MFA No.2403 of 2012

members in the presence of friends and relatives and on

many occasions she had created ugly scenes, which has

caused mental cruelty. It is also submitted that

respondent used to threaten the appellant of filing false

cases and of committing suicide and on 05.04.2007

abruptly she left matrimonial home, thereafter never came

back. Hence the appellant has sent legal notice and

initiated the proceedings.

8. It is contended that Family Court has erred in

dismissing the petition without appreciating the evidence

on record in its proper perspective. It is further contended

that PW.1 and PW.2 have categorically stated about the

conduct of the respondent which demonstrate cruelty, the

same has not been appreciated by the Family Court. It is

also contended that Family Court has committed error in

giving negative reasoning regarding the respondent

leaving the matrimonial home and failed to appreciate that

appellant has made efforts to bring her back. It is further

contended that the respondent in her cross-examination

(RW.1) has admitted that there was a maid servant who

MFA No.2403 of 2012

used to attend all household work. It is further admitted

that it is the mother who has demanded the dowry,

however, in the statement of objections a contradictory

stand is taken that the appellant has demanded the

dowry, hence she has left the matrimonial home. It is

further submitted that respondent, while cross-examining

the PW-1, has suggested that his mother had command

over the family and she has assaulted his father, and his

sister got him admitted to the Hospital at Indiranagar to

take treatment. Such a suggestion by the respondent to

the appellant amounts to mental cruelty and the said

suggestion is made without substantiating with

corroborative evidence.

9. He further submits that the appellant has sent legal

notice at Ex.P.3 requesting the respondent to join the

matrimonial home, however the respondent has sent reply

notice at Ex.P5 making reckless allegation that the

appellant's parents used to harass the respondent by not

giving food and did not allow her to take bath saying that

water will be wasted. He further submits that he has filed

MFA No.2403 of 2012

complaint at Ex.P6 Sahayavani requesting them to resolve

the dispute by conciliation, he further submits that the

appellant and his family members have spent huge money

and performed baby shower ceremony and contrary to the

same the respondent in her cross-examination has made

reckless allegation of demand of dowry and cruelty by the

husband, these admissions of respondent are amounting

to mental cruelty.

10. He relies on the following decisions by contending

that the averments made in the statement of objections

and evidence of the respondent are in the nature of

damaging the reputation of the appellant and his family

members, which amounts to cruelty. He further submits

that the separation of the couple is for sufficient length of

time, it can be fairly presumed that the marriage has been

broken down irretrievably.

a. SAMAR GHOSH Vs. JAYA GHOSH (2007) 4 SCC 511

"95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed

MFA No.2403 of 2012

that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

b. NARENDRA Vs. K. MEENA (2016) 9 SCC 455

12. The respondent wife wanted the appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.

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MFA No.2403 of 2012

13. In the instant case, upon appreciation of the evidence, the trial court came to the conclusion that merely for monetary considerations, the respondent wife wanted to get her husband separated from his family. The averment of the respondent was to the effect that the income of the appellant was also spent for maintaining his family. The said grievance of the respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the respondent wanted the appellant to be separated from the family--the sole reason was to enjoy the income of the appellant. Unfortunately, the High Court considered this to be a justifiable reason.

17. This Court, in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate [Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334] , has held as under: (SCC p. 239, para 7)

"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra-marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards

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MFA No.2403 of 2012

would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court [Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2001) 2 DMC 64 (Bom)] . We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."

Hence, he seeks to allow the appeal.

[ 11. Learned counsel for the respondent has filed a memo

seeking to retire from the above case. None for the

respondent.

12. We have heard learned counsel for the appellant and

perused the material on record. In the light of the above

settled preposition of law, now we consider the case on

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MFA No.2403 of 2012

hand. The relationship between the parties and birth of the

child is not disputed. It is also not disputed that the

appellant was working in a Private Company in Bangalore

and the couple had lived together in Bangalore along with

the appellant's parents. The appellant has deposed as

PW.1 and examined one more witness viz., S. Mahesh

Kumar, who is the friend of the appellant in support of his

case. Now we deal with the allegations of cruelty with

reference to the evidence on record.

13. PW.1 deposed that the respondent/wife was hostile

towards the appellant and his parents she used to

misbehave and pick up quarrel causing embarrassment

and humiliation in front of friends and family members on

many occasions. He further deposed that she has

threatened the appellant of filing false complaint and

threatened to commit suicide, she was of adamant

behavior and frequently used to visit her parents house at

Mysore and finally she left the matrimonial home on

05.04.2007. The said allegations are denied by the

respondent in her statement of objections, however, the

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MFA No.2403 of 2012

allegations of cruelty are consistent from the beginning of

the marriage till the respondent left the matrimonial

home, hence, the allegation can be termed as cruelty.

14. The respondent in her cross-examination has

admitted that all the necessary household articles and

facilities were available while she was staying with him

which is sufficient to lead normal life, she has also

admitted there was sufficient water facility available in the

house, she has further admitted that her husband was

cordial with her and other family members were looking

after her properly with love and affection, however, she

states that her mother-in-law used to ill-treat and harass

her for money. She also admits that baby shower

ceremony was performed by the appellant and the

appellant has allowed her to complete higher education

and supported her.

15. She further admitted that her parents have visited

Bangalore, where the couple were residing for more than 4

to 5 times during 13 months stay, however in her reply to

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MFA No.2403 of 2012

the notice at Ex.P5, and statement of objections she has

stated that she was harassed by the appellant. The said

statements are contradictory to each other.

16. The appellant has sent legal notice at Ex.P3

requesting the respondent to rejoin the matrimonial home,

he has made attempt to bring her back to the matrimonial

home by approaching the Sahayavani, the complaint at

Ex.P6. Per contra, the respondent/wife has not taken any

steps to rejoin the matrimonial home despite the best

efforts of the appellant. The respondent has made

reckless allegations and contradictory assertion in the

statement of objections, reply notice and cross-

examination. This Court can fairly infer that the

respondent has left the matrimonial home without any

justifiable reason and despite efforts made by the

appellant, she failed to rejoin him. The respondent has

made serious allegations in her cross-examination without

substantiating the same, which amounts to mental cruelty

to the appellant.

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MFA No.2403 of 2012

17. These aspects have not been properly appreciated by

the Family Court, therefore, has resulted in giving

erroneous findings. The Family Court has failed to

appreciate that the respondent has left the matrimonial

home for a sufficient length of time and despite an

attempt by the appellant to bring her back, she has not

rejoined the matrimonial home. The respondent in her

statement of objections, reply to the legal notice and in

the cross-examination has made reckless allegations,

which are of such a nature that it damages the reputation

of the appellant and his family members. The allegations

made by the respondent are weighty, grave and

unfounded, it can be fairly inferred that the respondent

has caused the mental cruelty to the appellant. The

assertions of the respondent are wholly unwarranted and

made with an intention to cause harm to the reputation of

the appellant.

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MFA No.2403 of 2012

18. Having regard to the peculiar facts and

circumstances of the case and the fact that the respondent

is living separately for more than 14 years, we are of the

opinion, that it is a fit case to grant the decree of divorce.

19. For the aforementioned reasons, the impugned

judgment and decree is set aside and marriage between

the parties is dissolved by a decree of divorce on the

ground of cruelty as stipulated under Section 13(1)(ia) of

the Hindu Marriage Act, 1955.

In the result the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: DMN