Karnataka High Court

Smt G K Bhavani vs Sri G C Naveen Kumar on 15 December, 2023

                                     MFA No.1965/2012




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 15TH DAY OF DECEMBER, 2023

                           PRESENT

       THE HON'BLE MRS. JUSTICE K.S. MUDAGAL
                            AND
       THE HON'BLE MR. JUSTICE K. V. ARAVIND

MISCELLANEOUS FIRST APPEAL No.1965/2012(FC)

BETWEEN:

SMT. G.K. BHAVANI,
W/O G.C. NAVEEN KUMAR,
D/O N. KRISHNAPPA,
AGED ABOUT 36 YEARS,
R/ AT 'SAMRUDDI',
BEML LAYOUT,
KOLAR-BANGARPET ROAD,
KOLAR.

PRESENT ADDRESS:
R/AT 'MATHRUSRI NILAYA',
1ST MAIN, C. BYRAGOWDA NAGAR,
KOLAR, KOLAR DISTRICT.
                                         ...APPELLANT
(BY SRI B.V. ANANDA, ADVOCATE)

AND:

SRI G.C. NAVEEN KUMAR,
S/O G.S. CHANDRAPPA,
AGED ABOUT 40 YEARS,
RESIDING AT No.515,
14TH MAIN, BSK II STAGE,
BANGALORE-560070.
                                       ...RESPONDENT
(BY SRI LAKSHMISH G., ADVOCATE)
                                                  MFA No.1965/2012

                              2


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF THE FAMILY COURTS ACT READ WITH
SECTION 20 OF THE HINDU MARRIAGE ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 28.10.2011
PASSED BY THE COURT OF THE I ADDITIONAL PRINCIPAL
JUDGE, FAMILY COURT, AT BANGALORE IN M.C.No.1511/2003
BY ALLOWING THE ABOVE APPEAL WITH COST IN THE
INTEREST OF JUSTICE AND EQUITY.

     THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 08.11.2023, THIS
DAY K.V. ARAVIND J., PRONOUNCED THE FOLLOWING:

                      JUDGMENT

The present appeal is preferred challenging the

judgment and decree dated 28.10.2011 in

M.C.No.1511/2003 passed by the I Additional Principal

Judge, Family Court at Bengaluru.

2. Respondent was petitioner and appellant was

respondent in M.C.No.1511/2003 before the Trial Court.

The ranks of the parties in M.C.No.1511/2003 before the

Family Court are referred to henceforth for convenience.

3. The brief facts leading to the case are as under:-

The petitioner/husband filed petition in

M.C.No.1511/2003 under Section 13(1)(i)(ia) of the Hindu

Marriage Act, 1955, seeking dissolution of his marriage

with the respondent/wife solemnized on 12.05.1999.

4. It is the case of petitioner that his marriage with

respondent was solemnized on 12.05.1999 at Sri Shanthi

Kalyana Mantap, Kondarajanahalli, Bangalore Road, Kolar.

The respondent gave an impression that she was not

interested in marrying the petitioner and due to

compulsion she is living with the petitioner. The

respondent quarreled frequently on trivial matters and

used to leave the matrimonial home very often and stay

with her parents atleast for 15 days in a month. After a

month of marriage, a boy came to the house of the

petitioner at Bengaluru and placed an envelop addressed

to the petitioner. As the petitioner was in a hurry to move

out of the house, he placed the said envelop at the hands

of the respondent. The respondent avoided any discussion

on that issue. In the month of June 1999, when the

petitioner returned home for lunch, he saw an unknown

person coming out of the bed room in an unusual manner.

5. It is further alleged that the petitioner consumed

some food and his health was upset, hence he suspected

administration of drug. The respondent was cutting his

hair at the middle of the scalp for the purpose of black

magic. The petitioner was avoiding cohabitation during

certain period in order to prevent early pregnancy of the

respondent. Still she became pregnant though the

petitioner had no physical relationship, therefore she

underwent abortion. In the month of October 1999, when

the petitioner had been to Tirupathi, respondent again

administered some drug which resulted in vomiting and

loose motion. From November 1999, petitioner started

living in his village and respondent used to stay in her

parents' house for 15 days in a month without the consent

of the petitioner.

6. It is further alleged that when petitioner returned

home earlier to the scheduled time, he found that the door

of the house was closed from inside and when opened, a

stranger came out of the house and respondent being

questioned, no explanation was offered. The respondent

was not respecting petitioner's parents. Despite the family

planning measures taken by the petitioner, respondent

became pregnant. The petitioner suspected the paternity

of the child.

7. The respondent has filed a complaint before the

Karnataka State Women's Commission, Bengaluru and also

filed a complaint before the Police Station at Malur for the

offences punishable under Sections 498A, 506 read with

34 of IPC and under Sections 3 and 4 of the Dowry

Prohibition Act, 1961. The complaint was registered and

after the trial, petitioner has been acquitted by judgment

dated 30.12.2010 in C.C.No.269/2004 by the Principal

Judge (Jr.Dn.,) & JMFC at Malur.

8. The respondent filed statement of objections

admitting the relationship and denying the allegations

leveled against her. The petitioner is guilty of cruelty and

demand for dowry. The petitioner is a suspicious person.

At the time of marriage, dowry was given in the form of

cash and after two years of marriage, again the petitioner

demanded dowry of Rs.5,00,000/- for construction of a

building which could not be fulfilled by the respondent's

parents and hence, the petitioner indulged in character

assassination. Therefore, she sought for dismissal of the

petition.

9. The petitioner got examined himself as PW.1 and his

father Sri G.S.Chandrappa was examined as PW.2.

Petitioner got marked Exs.P.1 to P.15. The respondent

subjected herself for examination as RW.1 and got marked

Ex.R.1.

10. The Family Court on recording the evidence and on

hearing the parties, formulated the following points for

determination:-

"i) Whether the petitioner has established that subsequent to his marriage with the respondent, the respondent had voluntary sexual intercourse with another person other than him?

ii) Whether the petitioner has established that subsequent to the marriage with the respondent he was subjected to cruelty by the respondent?

iii) What order?"

11. Insofar as the first point relating to adultery, the

Family Court answered the same in 'Negative'. However,

the issue regarding cruelty has been answered in the

'Affirmative'.

12. The Family Court, after examining the evidence on

record, recorded findings rejecting the contention of the

petitioner on the following allegations;

a) envelop being handed over by a person;

      b)     boy present in the bed room;

      c)     when petitioner was adopting family planning,

             respondent became pregnant;

      d)     DNA Test conforms with the paternity of the

             child; and

      e)     The ground of adultery.

However, the Family Court proceeded to grant

decree of divorce on the ground of cruelty. To arrive at the

conclusion on cruelty, the Family Court has considered that

the respondent was staying in her parents' house for 15

days in a month. The respondent cutting his hair and

indulging in black magic has been accepted. In view of

the brother of the respondent being a Pharmacist, the

administration of drug is inferred. Insofar as payment of

dowry in a sum of Rs.2,00,000/-, the Family Court has

recorded a finding that the father of the respondent being

a Government servant had no financial capacity to pay

such amount. For the above reasons, the Family Court

arrived at a conclusion that the petitioner was subjected to

cruelty by the respondent.

13. Sri B.V. Ananda, learned counsel for the

appellant/respondent submits that the allegation of

administration of drug has been accepted by the Family

Court without any blood test report or forensic evidence.

He would submit that no evidence has been adduced to

prove regarding black magic by the wife. He further

submits that cruelty needs to be proved by the petitioner

and in support of the contention of the husband, no

evidence has been placed on record. Hence, the finding

recorded by the Family Court is without any basis.

14. Sri Lakshmish G, learned counsel for the

respondent/petitioner submits that the husband and wife

are living separately since 2003 and no purpose would

serve, if marriage is not dissolved. He submits that the

petitioner and respondent have a son aged 21 years. In

view of the petitioner and respondent living separately

since 2003, the marriage has irretrievably broken down.

Hence, prays for dismissal of the appeal.

15. We have heard learned counsels for the petitioner

and the respondent. Perused the pleadings, impugned

judgment and decree and re-examined the oral and

documentary evidence on record.

Point for consideration:

16. On re-examination, the following point would arise

for consideration in the present case;

(i) Whether the Family Court was justified in

holding that petitioner was subjected to

cruelty by the respondent?

17. The respondent in her objection statement has

denied that she used to stay for 15 days in a month in her

parents' house. In her cross-examination, nothing has

been elicited to support the case of the petitioner. The

respondent in her cross-examination has admitted that she

used to visit her parents' house once in three months. It

is natural that a married woman visiting her parents' house

once in three months to inquire the well being of her

parents, siblings and other family members. This is

normal practice in all families. Also in view of the

demands made by the petitioner for dowry, visit of the

respondent to her parents' house once in three months

cannot be faulted. The Family Court, without considering

the above aspect, without any evidence and basis has

incorrectly arrived at a conclusion that respondent stays

for 15 days in a month in her parents' house and the same

would be inflicting of cruelty.

18. The Family Court merely on acceptance of the fact

that the elder brother of the respondent is a Druggist at

Kolar has arrived at a conclusion that the petitioner was

administered drugs, impaired the normal physical condition

of the petitioner, which would amount to inflicting mental

cruelty. Burden to prove administration of drug is on the

petitioner. Exs.P.2 to P.11, bills, prescription slips and Lab

reports would not indicate or refer to administration of

drug. The finding of Family Court is without any basis.

19. The burden of proving the allegation that respondent

subjected him to black magic was on him. Except making

oral allegation regarding black magic, neither the evidence

of PW.1 nor PW.2 proves black magic being indulged by

the respondent. Though DW.1 has been subjected to

cross-examination, nothing was elicited to prove the

allegation of black magic. The Family Court without any

material evidence, merely on the allegation that the

respondent was indulged in black magic by cutting his hair,

arrived at a conclusion that the respondent indulged in

black magic. Hence, the Family Court erred in arriving at a

conclusion against the respondent.

20. The Hon'ble Supreme Court in the case Samar

Ghosh vs. Jaya Ghosh1, has held that the Court while

considering the case of mental cruelty has to consider

acute mental pain, agony and suffering of the parties to

live with each other. The feeling of deep anguish,

disappointment, frustration in one spouse caused by the

conduct of other for long time may lead to mental cruelty

affecting physical and mental health of other spouse

resulting in grave and substantial danger or apprehension.

21. The Hon'ble Supreme Court in the case of Suman

Singh vs. Sanjay Singh 2 while examining dissolution of

marriage on the ground of cruelty has held that petition

(2007) 4 SCC 511

(2017) 4 SCC 85

seeking divorce on some isolated instances alleged to have

occurred few years prior to filing of the petition cannot be

considered unless the instances alleged should be of

recurring nature or continuing one and there should be

near proximity with the filing of petition.

22. Applying the principle of law laid down by the

Hon'ble Supreme Court in the above referred judgments,

unsubstantiated allegations of mental cruelty that

respondent used to stay with her parents for 15 days in

the month, adopted black magic by cutting the hair of the

petitioner, administered drugs, alleging adultery and

doubting her paternity would not satisfy the parameters

laid down by the Hon'ble Supreme Court in the judgments

referred to supra.

23. The unsubstantiated allegations of the husband

relating to adultery of wife, suspicion on the character of

wife, doubting the paternity of the child compelling the

wife and son to undergo DNA test amount to the petitioner

self-inflicting mental cruelty to wife. Therefore, even if

stayed in her parental house such conduct/cruelty of

petitioner constitutes sufficient cause for her to withdraw

from his society. He cannot be permitted to reap the

benefit of his own wrong. On overall examination of the

case, we are of the view that it is a case of mere

accusations. The conduct charged as cruelty by the

petitioner would not cause reasonable apprehension that it

will be harmful or injurious for him to live with the

respondent. Unless the partner alleging cruelty establishes

the same, irretrievable breakdown of marriage is not a

ground for granting divorce. On overall appreciation of

the evidence on record, we are of the view that it is the

petitioner who caused mental cruelty to his wife and by

abusing the process of law filed the petition seeking

divorce alleging cruelty. Therefore his conduct warrants

imposition of heavy costs.

24. In view of the above discussion, the Family Court

was not justified in granting decree of divorce, Hence, the

following:

Order

i) The appeal is allowed with costs.

ii) The judgment and decree in

M.C.No.1511/2003, dated 28.10.2011 passed

by the I Additional Principal Judge, Family

Court at Bengaluru, is hereby set aside.