Smt. Kumuda vs Sri. Srinath S
2023 Latest Caselaw 139 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF JANUARY 2023

                      PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

  THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY

             M.F.A. No.9525 OF 2013 (FC)
BETWEEN:

SMT. KUMUDA
AGED ABOUT 33 YEARS
W/O SRI. SRINATH .S
D/O SRI. PRABHAKAR RAO
R/AT NO.42, A 1ST MAIN
2ND CROSS, MUTHYALANAGARA LAYOUT
BANGALORE-560054.
                                ... APPELLANT
(BY MR. K.N. NITISH, ADV., FOR
    MR. K.V. NARASIMHAN, ADV.,)

AND:

SRI. SRINATH .S
S/O H.L. SUBRAMANYA
AGED ABOUT 36 YEARS
R/AT NO.76, 3RD BLOCK, II MAIN
II CROSS, THYAGARAJANAGAR
BANGALORE-560028.
                                     ... RESPONDENT
(BY MRS. BHUSHANI KUMAR, ADV.,)
                       ---

     THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS
ACT, R/W SEC.28 OF THE HINDU MARRIAGE ACT, AGAINST
THE JUDGMENT AND DECREE DATED:25.04.2013 PASSED
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IN M.C.NO.3/2009 ON THE FILE OF THE VI ADDITIONAL
PRINCIPAL      JUDGE,   FAMILY    COURT, BANGALORE,
REJECTING THE PETITION FILED U/S 12 OF HINDU
MARRIAGE ACT, AND ALLOWING THE PETITION FILED U/S
13(1)(i-a) OF HINDU MARRIAGE ACT.

     THIS M.F.A. COMING ON FOR FINAL 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 judgment dated

25.04.2013 passed by the family court by which the

marriage performed between the parties on 24.10.2007

has been dissolved by a decree of divorce on the ground of

cruelty.

2. Facts leading to filing of this appeal briefly

stated are that the marriage between the parties was an

arranged marriage which was performed on 24.10.2007.

After the marriage, appellant and the respondent went to

Ooty, Kodaikanal and Mysore. On or about 01.01.2009,

the respondent filed a petition under Section 12 and

13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter

referred to as 'the Act' for short). It was averred in the

petition that appellant never behaved like a newly wed girl

and never evinced any interest in being with the

respondent. It was further averred that appellant kept

herself away from the respondent and never allowed the

respondent to have physical contact. It was further

averred that appellant did not wear mangalsutra and used

to behave violently.

3. It is the case of the respondent that the

appellant never took the responsibility of cooking the food

at home and she used to lock herself inside a room for 4 to

5 hours and used to shout. It was pleaded that appellant

broke a big mirror, which was fixed on the door and

another plastic chair. It is the case of the respondent that

appellant used to shout continuously to 2.5 hours to 5

hours. It was averred that on 17.06.2008, the appellant

got up early and started shouting continuously for 5 hours

and threw all the vessels in the kitchen and spoiled food

items. On 24.07.2008, the appellant broke the remote of

the television. It was also pleaded that appellant used to

sleep for long hours and was not even interested to have

food in time. It is also averred that the marriage between

the parties has not been consummated. Accordingly, a

decree under Section 12 as well as Section 13(1)(i-a) of the

Act was sought.

4. The respondent filed his statement of objection,

in which factum of marriage was admitted. However, the

remaining averments made in the petition were denied.

5. The family court on the basis of pleading of

parties, framed issues. The respondent examined himself

and his father viz., H.L.Subramanya as PW2 and exhibited

documents viz., Ex.P1 to Ex.P25. The appellant examined

herself. The family court vide judgment dated 25.04.2013

inter alia held that ground for dissolution of marriage

under Section 12 of the Act is not established. However,

the family court held that the appellant has treated the

respondent with cruelty accordingly, the marriage between

them was dissolved under Section 13(1)(i-a) of the Act.

6. Learned counsel for the appellant submitted

that the respondent ought to have tendered an evidence of

an expert viz., a Doctor about the mental health of her

health as well as her capability to lead marital life. It is

further submitted that no medical evidence was led by the

respondent to prove the fact that the appellant was

suffering from schizophrenia. It is also urged that after the

parties had led evidence, the appellant had filed an

interlocutory application seeking an appointment of court

commissioner viz., a Doctor to examine the parties.

However, the aforesaid application was erroneously

rejected by the family court. In support of his

submissions, learned counsel for the appellant has placed

reliance on decisions of the Hon'ble Supreme Court in

'RAM NARAIN GUPTA VS. SMT. RAMEHWARI GUPTA',

(1988) 4 SCC 247, 'KOLLAM CHANDRA SEKHAR VS.

KOLLAM PADMA LATHA', (2014) 1 SCC 225.

7. On the other hand, learned counsel for the

respondent while supporting the judgment passed by the

family court has invited the attention of this court to the

cross examination of the appellant.

8. We have considered the submissions made on

both sides and have perused the record. It is trite law that

standard of proof in a case of matrimonial dispute

pertaining to cruelty cannot be said to be applicable as is

applicable in case of trial in the Code of Criminal

Procedure. However, the parties to the dispute is required

to describe the measure and standard of cruelty and to

lead cogent evidence to succeed in the plea of dissolution

of marriage on the ground of cruelty. [See: 'MAYADEVI vs.

JAGDISH PRASAD, AIR 2007 SC 1426].

9. 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.

10. In BHAGAT VS. D.BHAGAT (MRS.)', (1994) 1

SCC 337, it has been held that mental cruelty in Section

13(1)(i-a) can broadly be defined as that conduct which

inflicts upon the other party such mental pain and

suffering as would make it not possible for that party to

live with the other. In other words, mental cruelty must be

of such a nature that the parties cannot reasonably be

expected to live together. The situation must be such that

the wronged party cannot reasonably be asked to put up

with such conduct and continue to live with the other

party. It is not necessary to prove that the mental cruelty

is such as to cause injury to the health of the petitioner.

11. Whether a ground for dissolution of marriage

on the ground of cruelty is made out, has to be

determined on the basis of facts and circumstances of

each case. The respondent has reiterated the averments

made in the petition in his examination in chief. However,

it is pertinent to advert to the cross examination of the

appellant. In her cross examination, the appellant has

admitted that she was not interested in marrying the

respondent and disliked him as he was not fair looking.

She has further admitted that she was very dull at the

time of engagement and an enquiry in this regard at the

time of engagement was made by the respondent and his

members of family. She has further admitted that there

has been no physical relationship between her and the

respondent and the appellant has further admitted that

she had destroyed the food while cooking. She has further

admitted that she has not worn mangalasutra and broken

the remote of the TV. The appellant has further admitted

the fact that she has broken the mirror and had removed

the plaster of the wall as she was under depression. She

has further admitted that she had heard the sound of

talking by someone and observed nobody and therefore,

broke the glass by pelting stone. She has further admitted

that she used to stay alone in the room for two days and

used to scream.

12. The aforesaid admission made by the appellant

herself in the cross examination is sufficient to arrive at

the conclusion that the appellant treated the respondent

with cruelty. Admittedly, the marriage between the parties

was not consummated. The respondent under mental

pain, agony and suffering and in the facts of the case, it is

not possible for the parties to live together. Therefore, the

family court in the state of evidence on record has rightly

concluded that ground for dissolution of marriage on the

ground of cruelty is made out.

13. The judgment passed by the family court is

based on meticulous appreciation of evidence on record.

The decisions of the Hon'ble Supreme Court in 'RAM

NARAIN GUPTA and 'KOLLAM CHANDRA SEKHAR do

not have application to the facts of the case as in the

aforesaid decisions, divorce was sought on the ground of

mental disorder. In the instant case, the respondent had

sought dissolution of marriage on the ground of cruelty,

which has been duly proved by him.

In the result, we do not find any merit in this appeal.

Needless to state that the appellant shall be at liberty to

seek permanent alimony in an appropriate proceeding.

In the result, the appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

SS