Capt.Rohith C G vs Smt Indira C.R
2023 Latest Caselaw 2337 Kant

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                                     M.F.A.No.4851 of 2017




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 21ST DAY OF APRIL, 2023
                       PRESENT
      THE HON'BLE MR JUSTICE ALOK ARADHE
                         AND
  THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
           M.F.A. NO.4851 OF 2017 (MV-I)
BETWEEN

CAPT. ROHITH C.G.
S/O GANAPATHY C.M.
AGED 39 YEARS
R/AT. HOUSE NO.251, MIG COLONY I,
KHB COLONY, BELAVADI POST,
MYSORE-570018.
PRESENTLY AT:
NO.9, "SAMRUDDHI",
SILVER SPRINGS LAYOUT,
NEAR HOUSE RIDING ACADEMY,
GADDIGE ROAD, MYSORE-570026.
                                             ...APPELLANT
(BY SRI. B.V.VIDYULATHA, ADVOCATE)

AND

SMT. INDIRA C.R.
D/O P.S.SOMAIAH,
AGED ABOUT 37 YEARS,
R/A. MUKKODLU VILLAGE,
MADIKERI TALUK, KODAGU DIST.-580011.
PRESENTLY AT:
C/O RAVINDRANATH G
NO.453, 15TH MAIN, 13TH CROSS,
D-BLOCK, 3RD STAGE,
VIJAYANAGAR, MYSORE-570017.
                                           ...RESPONDENT
(BY SRI VINAYAK KULKARNI, ADV.)
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                                           M.F.A.No.4851 of 2017




     THIS MFA IS FILED U/S.28(1) OF THE HINDU MARRIAGE
ACT, AGAINST THE JUDGMENT AND DECREE DATED
16.03.2017 PASSED IN M.C.NO.67/2013 ON THE FILE OF THE
SENIOR CIVIL JUDGE, MADIKERI, DISMISSING THE PETITION
FILED U/S.13(1) (ia) AND (ib) OF HINDU MARRIAGE ACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
20.04.2023,  COMING    ON  FOR  PRONOUNCEMENT      OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:

                          JUDGMENT

This appeal under Section 28(1) of the Hindu

Marriage Act, 1955, has been filed against the judgment

and decree dated 16.03.2017 passed in M.C.No.67/2013

by the Senior Civil Judge, Madikeri, 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 25.05.2006 as per the Kodava Customs. At

the time of marriage the appellant was serving in Indian

Army and was posted in the State of Assam. It is averred

that after the marriage, the couple started living in

Mysuru, with the parents of the appellant. The parties

lived together for a period of 1 ½ months. Thereafter, the

M.F.A.No.4851 of 2017

appellant resumed his duty and after six months the

respondent joined him. It is further averred that during

the stay of the respondent, she could not adjust with the

appellant and his aged parents; when the appellant took

the respondent to his work place she was unable to adjust

and refused to lead the married life as a life partner. It is

also averred that from day one of the marriage, the

respondent was not happy to be his life partner. It is also

averred after sometime the respondent again joined with

the appellant at his place of posting. However, even after

long gap, she did not change her attitude and continued to

behave in a harsh and unkind manner, even though the

appellant tried to advised her. The appellant was unable

to bear her uncontrolled temperament and she used to

create scene by insulting the appellant and left the house

in the year 2008.

3. It is pleaded that the respondent came back to

the matrimonial home with her family members by

apologizing for her misdeeds and by giving a written

undertaking. However, after sometime the respondent has

M.F.A.No.4851 of 2017

again started creating scenes condemning the parents of

the appellant frequently by using un-parliamentary words.

It is averred that the respondent has no respect to the

status of the appellant and she has not allowed the

appellant to have cordial relationship with his parents and

she has refused to lead marrital life. On 09.02.2012 the

respondent gave birth to a female child, thereafter, the

appellant performed naming ceremony in a hotel at

Mysuru in his own expenditure and went back to his place

of posting leaving the respondent with his parents at

Mysuru. It is further pleaded that the appellant had called

the respondent several times, she has not responded and

not allowed the appellant to see the child and despite

request to rejoin the residence with his parents, she has

refused to do so. Hence the legal notice dated 18.10.2012

was sent. However, instead of replying to notice or joining

matrimonial home, the respondent has sent a letter to the

higher authorities in Army seeking to grant maintenance.

Accordingly, a petition was filed seeking decree for divorce

on the ground of cruelty and desertion.

M.F.A.No.4851 of 2017

4. The respondent has entered appearance before

the Family Court and filed the statement of objections.

The respondent has admitted the facts pertaining to

relationship, birth of daughter, as well as the fact that

appellant is an Army Officer and the fact that parties had

resided at Mysuru with the parents of the appellant,

however, she has specifically denied the allegations of

cruelty pleaded in the petition. It is submitted that the

appellant was not having sufficient money and he was in

debt; it is the respondent who has paid money to him.

5. It is also specifically denied that the respondent

used to leave the house without informing the appellant.

It is further denied that the relationship between the

respondent and appellant is not good. It is further averred

that the appellant has made defamatory statements

against the respondent in the petition, which affects her

morale, and the same have been made with an intention

to obtain the decree of divorce. It was denied that

respondent has either created any ugly scenes or insulted

the appellant as pleaded in the petition. It is also averred

M.F.A.No.4851 of 2017

that initially the appellant and his family members were

looking after her properly, later they started ill-treating

her, causing mental and physical cruelty. It was pleaded

that the mother of the appellant has demanded dowry and

used to inflict cruelty and torture on the respondent and

when this fact was brought to the notice of the appellant,

the appellant took the respondent to Nagpur, where he

was posted and the respondent was subjected to abortion.

6. It is pleaded that in the month of March 2007

the appellant took the respondent at Savangi, Wardha,

and thereafter when the appellant was in training he took

the respondent back to Mysuru and left her with his

parents. It is averred that during that period the mother

of the appellant has tortured the respondent and

demanded more dowry and even tried to poison the

drinking water. It is pleaded that with the intervention of

the elders they have arrived at a compromise and the

appellant took the respondent to Ranchi, when she

became pregnant and during pregnancy also the family

members of the appellant caused physical and mental

M.F.A.No.4851 of 2017

cruelty on the respondent hence, she has filed the

complaint with the senior officials and they have warned

the appellant to take care of the respondent and they sent

back the parents of the appellant to Mysuru.

7. It is further pleaded that the appellant was

posted to Kashmir, and the respondent and her mother

were living in Secundarabad in army quarters, she was

pregnant, however, the child was not properly developed

and the same was removed later. Thereafter, the appellant

took the respondent and her mother to Kashmir in May

2011 where the respondent again became pregnant and

she was brought back to Mysuru and she was living in a

rented house along with her mother and delivered baby

girl on 09.02.2012 at Mysuru and the appellant came to

Mysuru and lived with the respondent for 15 days and the

respondent sent her mother to Kodagu after 15 days of

delivery and thereafter the naming ceremony was

conducted and the appellant neglected the respondent and

her child and inspite of making several requests to the

M.F.A.No.4851 of 2017

appellant, he did not take her to his work place. Hence,

she wrote letter seeking maintenance.

8. The Family Court on the basis of pleadings of

parties and evidence on record, framed the issues and

recorded the evidence. The appellant examined himself as

PW.1 and another witness and produced Exs.P1 to P6.

The respondent examined herself as RW.1. The Family

Court based on the evidence adduced by the parties vide

judgment dated 16.03.2017 dismissed the petition. In the

aforesaid factual matrix, the present appeal has been filed.

9. Learned counsel for the appellant submits that

there is no dispute with regard to the relationship between

the parties and the birth of the child. It is submitted that

the respondent was in the habit of quarreling with the

appellant and his parents without any reason, she was

adamant, the parents of the appellant are aged and

suffering from different ailments without keeping this in

mind the respondent used to harass the appellant and his

parents. It is further submitted that the appellant has

M.F.A.No.4851 of 2017

made his best efforts to take the respondent to his work

place wherever he was posted and there also the

respondent has caused mental harassment to the

appellant and his parents, the appellant tried to give his

best to the respondent, however, she has failed to

cooperate with the appellant and she used to create

scenes in the present of his colleagues and filed complaint

before the senior officers which has caused the

embarrassment to the appellant. It is also submitted that

the respondent was having a certain health issues relating

conceiving and caused abortions, the appellant has taken

care of the respondent however, she has failed to perform

her duties as a dutiful wife and always insisted that the

appellant should desert his parents and he should live with

the respondent, which has caused mental cruelty to the

appellant and the appellant has deserted the respondent in

the year 2012 despite making all the efforts she has not

rejoined the matrimonial home. It is submitted that the

appellant has got issued the legal notice dated

02.06.2009, 18.10.2012, however, the respondent failed

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M.F.A.No.4851 of 2017

to rejoin the matrimonial home, on the contrary she has

sent a vague reply and also filed complaint to the

commanding officer of the appellant, which has caused

mental cruelty on the appellant.

10. Per contra learned counsel for the respondent

supports the impugned judgment of the Family Court and

contends that the allegations of cruelty is not properly

pleaded nor adduced any evidence to support the said

ground. It is submitted that the respondent has tolerated

the harassment of the appellant and his mother for

demand of dowry, the respondent has never refused to

join the matrimonial home however, the appellant has

never allowed the respondent to stay with him but he has

insisted that the respondent should stay with his parents

at Mysuru. It is further submitted that the appellant has

neglected the respondent and her child and deserted the

appellant and made her to stay with her parents at

Madikeri. It is also submitted that when the petitioner has

neglected the respondent, she was compelled to file a

complaint with the senior officers of the Army seeking for

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M.F.A.No.4851 of 2017

maintenance, the appellant has not paid any maintenance

to the respondent and her child without any reason. It is

submitted that whenever the respondent has accompanied

the appellant to his workplace and during the stay at

Mysuru the parents of the appellant used to harass and

cause mental cruelty on the respondent. He contend that

the Family Court has rightly considered the evidence and

dismissed the petition and the same does not call for any

interference in the present appeal.

11. We have heard learned counsel for the

appellant and the respondent and perused the material on

record. The relationship between the parties and birth of

the child is not disputed. The appellant has pleaded that

they have lived together for 1 ½ month in mysuru and

thereafter he has joined his duty, the respondent could not

adjust with the parents of the appellant, the parents of the

appellant are aged and suffering from ailment, the

respondent was dishonest and refused to lead marital life

with the appellant. From day one the respondent was not

happy with the appellant, when the respondent rejoined

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M.F.A.No.4851 of 2017

the appellant after long gap in his work place, she has not

changed her attitude, however, she has continued to her

rude behavior with the appellant and his parents, she has

caused embarrassment at work place, she used to shout

on top of her voice creating ugly scene, he has conducted

naming ceremony of the daughter, she does not have a

good understanding of the family life and finally she has

refused to rejoin the appellant, hence he has sent legal

notice to the respondent. The aforesaid allegations are

pleaded in the petition and the same are reiterated in the

evidence of PW.1. It would be useful to refer the decision

of the Hon'ble Supreme Court in the case of Mayadevi vs.

Jagdish Prasad reported in (2007) 3 SCC 136.

"12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social

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M.F.A.No.4851 of 2017

status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party."

In the present case, the allegations of cruelty are

very vague and bald made without substantiating the

same with cogent and acceptable evidence. The

allegations of cruelty are nothing but self serving

statements of the appellant-husband, the appellant has

not examined any independent witness, who were present

or witnessed the alleged cruelty and in the absence of any

such testimony, the allegations of cruelty can be termed

as usual wear and tear of the marital life. The appellant

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M.F.A.No.4851 of 2017

has failed to discharge the burden of proving the ground of

cruelty before the Family Court by proper pleading and

acceptable evidence, the Family Court has rightly

disbelieved the version of the appellant the same does not

call for any interference by this Court.

12. The appellant in paragraph No.18 of the

petition has pleaded that the respondent without anyone's

knowledge and notice of the appellant shifted her to

parents place and the appellant has requested several

times to join him at Mysuru with his parents, the

respondent never responded to his request instead she

has shifted to her sister's house. The said pleading is not

sufficient to prove the ground of desertion. The appellant

has failed to plead and prove that the respondent has

deserted the appellant with an intention to end

cohabitation permanently with the appellant. The

assertion of the appellant is vague, the appellant failed to

prove that the respondent has left the matrimonial home

voluntarily with an intention to end the cohabitation

permanently.

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M.F.A.No.4851 of 2017

13. The Family Court, on meticulous appreciation of

evidence on record, has recorded the finding that the

appellant has failed to prove the grounds for dissolution of

marriage on the ground of cruelty and desertion. The

aforesaid findings do not suffer from any infirmity

warranting interference by this Court in the present

appeal.

For the aforementioned reasons, we do not find any

merit in this appeal. The appeal fails and is hereby

dismissed.

Consequently, the pending interlocutory applications

are also dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

BSR CT:DMN