Sri Damodar Raju B K vs Smt Saritha
2023 Latest Caselaw 2916 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6th DAY OF JUNE, 2023

                      PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                        AND

  THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

            MFA NO. 7506 OF 2016 (FC)
                      C/W
            MFA NO.7507 OF 2016 (FC)

IN MFA NO.7506/2016:

BETWEEN:

SRI DAMODAR RAJU B. K,
S/O LATE B. K. KANNAIAH RAJU,
AGED ABOUT 42 YEARS,
R/AT NO.E-31, E-BLOCK,
DIAMOND DISTRICT,
AIRPORT ROAD,
BANGLAORE-560 008.                     ... APPELLANT

(BY SRI RAAM PRASAD B.S., ADVOCATE)

AND:

SMT SARITHA,
W/O DAMODAR RAJU B. K.,
AGED ABOUT 33 YEARS,
R/AT NO.45, CHOLNAYAKANAHALLI,
KEMPAYYA LAYOUT,
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R. T. NAGAR POST,
BANGALORE-560 032.                    ... RESPONDENT

(BY SMT.R.THEAN MOLI, ADVOCATE)

  THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT,
1984 R/W SEC 28 OF THE HINDU MARRIAGE ACT AGAINST
THE JUDGMENT AND DECREE DATED 23.8.2016 PASSED
IN MVC NO.2747/2007 ON THE FILE OF THE 5 TH
ADDITIONAL       PRINCIPAL     JUDGE,   FAMILY  COURT,
BENGALURU, DISMISSING THE PETITION FILED UNDER
SEC 13(1)(ia)(iii) (a) & (b) OF HINDU MARRIAGE ACT.

IN MFA NO.7507/2016:

BETWEEN:

SRI DAMODAR RAJU B. K.,
S/O LATE B. K. KANNAIAH RAJU,
AGED ABOUT 42 YEARS
R/AT NO.E-31, E-BLOCK
DIAMOND DISTRICT,
AIRPORT ROAD,
BANGLAORE-560 008.                       ... APPELLANT

(BY SRI RAAM PRASAD B.S., ADVOCATE)

AND:

SMT. SARITHA,
W/O DAMODAR RAJU B. K.,
AGED ABOUT 33 YEARS,
R/AT NO.45, CHOLNAYAKANAHALLI,
KEMPAYYA LAYOUT,
R T NAGAR POST,
BANGALORE-560 032.                     ...RESPONDENT
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(BY SMT.R THEAN MOLI, ADVOCATE)

     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 23.08.2016
PASSED IN M.C.NO.3231/2013 ON THE FILE OF THE V
ADDITIONAL    PRINCIPAL  JUDGE,   FAMILY  COURT,
BENGALURU, ALLOWING THE PETITION FILED UNDER
SECTION 9 OF THE HINDU MARRIAGE ACT.

     THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 30.05.2023, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANANT
RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

                          ORDER

These two appeals under Section 19(1) of the Family

Courts Act, 1984 arise from the judgment and decree

dated 23.8.2016 in M.C. No.2747/2007 clubbed with M.C.

No.3231/2013 on the file of V Additional Family Court at

Bengaluru. In terms of the impugned judgment and decree

the Family Court has dismissed the husband's petition in

M.C.No.2747/2007 seeking dissolution of marriage and

allowed M.C.No.3231/2013 filed by the wife seeking

restitution of conjugal rights.

2. In terms of the impugned judgment and decree

dated 23.8.2016, the suit in O.S.No.200/2009 filed by the

wife seeking partition and separate possession was also

decided by the Family Court and the suit is dismissed. The

said judgment and decree dismissing the suit has attained

finality.

3. The parties to the proceedings, hereinafter are

referred to as husband and wife.

4. The other facts necessary for adjudication of

the cases are summarized as under:

The petition in M.C.No.2747/2007 referred to above

was filed by the husband seeking dissolution of marriage

which was solemnised on 7.12.2005. The husband sought

the dissolution on the ground of cruelty and mental

disorder of the wife. Later, the application was filed

seeking amendment of the petition seeking dissolution of

the marriage on the ground of cruelty.

5. It is the case of the husband that the wife

displayed weird behaviour and she used to live in her

world. The wife started saying that she and her husband

can never be happy and the mother of the husband keeps

talking to herself. It is the further contention of the

husband that he never went to bed in peace on account of

the ill-treatment of the wife. The husband further states

that he thought that the wife is unable to live comfortably

in the company of his mother and other family members

and as such, he thought of setting up a separate

residential house for the benefit of his wife. Accordingly, he

submits that a separate house was taken on rent in the

first week of June 2007 and he shifted to a separate

house. It is also his contention that the situation did not

improve even after shifting to a new house. He had further

alleged that the wife used to pick-up quarrels for no reason

with the husband and one day she picked up a kitchen

knife and tried to harm herself.

6. The husband has further alleged that on most

occasions, his wife used to be untidy, messy and badly

dressed. On many occasions, she woke up late and was

not having bath till late afternoon. It is also his contention

that she used to run the fan at full speed throughout the

night without bothering about the discomfort of her

husband. It is also alleged that on most of the days when

the husband returned home from work had to face

frowning behaviour from the wife. It is also his contention

that on his return from work, the wife used to demand a

detailed explanation as to what the husband has done and

he had to report on a minute-to-minute basis the whole

day's work. It is also his contention that the wife never

bothered to keep the house clean and tidy and on most of

the time the house used to be unkempt and dirty. It is

further alleged that the respondent used to utter obscene

language against the husband.

7. It is also his contention that on one occasion

the wife raised a quarrel, went to the kitchen, brought a

knife and in the scuffle, the husband's right hand, middle

finger and thigh got severely wounded and he had to rush

to the hospital to get the wounds stitched. It is further

alleged by the husband that the wife did not allow him to

meet his mother. Whenever she came to know that he has

visited his mother the wife used to get violent and would

create a scene.

8. It is further alleged by the husband that the

wife used to constantly threaten the husband that she

would commit suicide and on many occasions, had gone to

the matrimonial home without informing him about her

whereabouts. It is also his case that on one occasion she

had left the house without revealing where she had gone

and hoping that she will be there in the maternal home, he

went to her maternal home and she was not found there.

The wife returned to the home late in the day and even

after her return did not disclose where she had gone.

9. It is the further contention of the husband that

the wife's behaviour did not improve and the situation

turned to worse. As suggested to him, he took his wife to a

psychiatrist to get her counselled. It is also his contention

that the psychiatrist after examining the wife prescribed

certain medicines. The wife though started taking

medicines, later, abruptly stopped taking the medicines

saying that it is not required. She insisted on buying

gemstones and the husband purchased several gemstones

and rings. However, there was no improvement in her

behaviour and she made an attempt to commit suicide by

consuming alcohol and some tablets. It is alleged that she

was admitted to Sri Shirdi Sai Hospital as an inpatient for a

day. It is also the contention of the husband that even

after the discharge wife did not continue with the

medication and she used to abuse the husband in obscene

language and she had no control over her moods. She

often used to lock herself up in the bedroom and did not

allow the husband to enter the room. And she used to

threaten the husband stating that she would commit

suicide by tying dupatta around her neck.

10. According to the husband, the wife is suffering

from a mental disorder and split personality syndrome and

her mental condition is incurable. He would submit that on

account of her behaviour he suffered mental as well as

physical cruelty. The husband also alleged that since

November 2007, the husband and wife never resided

together and as such she has deserted the husband

without any reasonable cause. Against the backdrop of the

aforementioned allegations, the respondent sought

dissolution of marriage on the ground of cruelty, desertion

and mental disorder.

11. The wife opposed the petition and denied all

allegations levelled against her. The wife contends that the

husband has filed a petition without there being any cause

of action or any basis to seek dissolution of marriage. It is

also her contention that the wife was treated cruelly by the

husband and the husband has not made any arrangements

for the well-being of the wife. It is also her contention that

the husband has failed to maintain her and used to insist

the wife to bring dowry, from her parents' house. It is also

her contention that the husband used to ill-treat her at the

instance of his mother who treated the wife as a servant.

12. It is also her contention that the husband's

mother is not having a good reputation and this aspect is

known to the relatives as well as the neighbours. It is her

further allegation that her husband did not stand by her

when the mother-in-law ill-treated her. It is also alleged

that the husband used to consume alcohol and abuse her.

It is also her contention that the husband used to torture

the wife by saying that he wants property from her

maternal home. It is also the contention that she has

allowed the husband to stay for two days in a week with

his mother in his mother's house and denied the allegation

that she did not allow the husband to meet his mother.

13. It is also the contention of the wife that all the

family members of her husband are suffering from a

mental disorder and have split personality syndrome.

14. In her petition seeking restitution of conjugal

rights, the wife has alleged that her parents have spent

Rs.12 lakhs to perform her marriage. It is her case that

after the marriage, the parties resided at Sanjay Nagar in

Bangalore, where the mother and the brother of her

husband resided. It is also contended that the husband's

brother has deserted his wife and the child and the

matrimonial dispute in this regard is pending. It is further

contended that 2 to 3 months after the marriage, her life

became pathetic and miserable in the matrimonial home.

It is alleged that the husband's mother used to ask the

wife to sleep in the hall and the husband used to sleep in

the bedroom alone. The mother-in-law never allowed the

wife to visit her parent's house or to have outings with her

husband. It is also alleged that the husband started

pressurising the wife to bring money from her parents.

When the parents of the wife could not meet the demand

of the husband, the wife pleaded with the husband to

permit her to do some job. However, she was not allowed

to do.

15. It is also the contention that in June 2007, the

husband asked the wife to come to R.T. Nagar and stay in

the house which the husband had taken on rent. It is her

case that her parents had provided all the furniture,

groceries and utensils for the newly rented house. It is also

alleged that the husband has withdrawn from the

matrimonial society of the wife for six months from June to

November 2007. It is also the contention that whenever

the husband came to the flat, he was in an inebriated

condition and used to quarrel with the wife for no fault and

used to tell her not to depend on him and used to ask her

to go to the parent's house. It is also her contention that

the husband was talking to a lady by name of Sandya and

when she made enquiries about her, he made an attempt

to commit suicide and the wife admitted him to Columbia

Asia hospital.

16. It is also the case of the wife that the husband

has deserted the wife at the instigation of family members

and it is also her case that she does need the company of

the husband and accordingly, she has filed the petition

seeking restitution of conjugal rights.

17. The husband has contested the petition

seeking restitution of conjugal rights and denied the

allegations made against him. It is also his case that he

had filed a petition seeking dissolution of marriage in the

year 2007. Since then the parties are living separately and

the wife has stayed away from the company of the

husband, there is no cause of action for the wife to file the

petition seeking restitution of conjugal rights.

18. During the course of the trial the husband has

examined himself as P.W.1 and a doctor is examined as

P.W.2. 38 documents are produced on behalf of the

husband and marked as Exs.P1 to P38. The wife has

examined herself as R.W.1 and two documents are marked

on her behalf as Ex. R1 and R2. It is relevant to state that

both cases are clubbed and common evidence is recorded.

19. The Family Court after considering the materials

on record has concluded that the husband has not proved

his case and accordingly dismissed the petition seeking

dissolution of marriage. At the same time, the Family Court

has also concluded that the wife made out a case for

restitution of conjugal rights and accordingly her petition

seeking the restitution of conjugal rights is allowed. The

aforementioned judgement and decree passed by the

Family Court are called in question by the husband.

20. The learned counsel appearing for the husband

would submit that the husband has established his plea

relating to cruelty. He contends that enough material is

placed before the Court to show that the wife has treated

the husband with cruelty. Unfortunately, the Family Court

has not considered all these aspects from a proper

perspective and has erroneously held that cruelty is not

established. In support of his contention, the counsel for

the husband would refer to the copies of the email

messages sent by the wife where she has given a threat of

suicide and made her intentions by saying that she has no

intention to reside with the husband. Thus, it is urged, the

fact that the wife is not interested in marriage and that she

was threatening and was harassing him is established and

as such the Family Court ought to have granted a decree

for dissolution of marriage.

21. It is also his contention that the wife is

suffering from mental disorder and it is not reasonable to

expect him to live with her and it is not possible for

continuing the marital relationship. It is also his contention

that since 2007, the parties are living separately and as

such the plea of desertion is also established and the

Family Court erred in dismissing the petition and granting

the decree for the dissolution of conjugal rights.

22. The learned counsel for the wife contended that

the grounds relating to cruelty are not pleaded. It is also

her contention that the pleading of desertion is also not

made out in the petition as the husband himself has

pleaded that the husband and wife lived together till

November 2007 and the petition is filed in 2007 itself. It is

also her contention that the plea leading to mental

disorder is also not established. The Doctor who is

examined on behalf of the husband as P.W.2 has not

turned-up before the Court for cross-examination and

there is no evidence to substantiate the said plea. It is

further contended that the Family Court has analysed all

the materials on record and has rightly dismissed the

petition by following the ratio laid down in the case cited

on behalf of the wife. It is further submitted that the

petition seeking restitution of conjugal rights filed by the

wife is rightly allowed by the Family Court by assigning

valid reasons. It is also contended by the wife that the

husband has withdrawn from the company of the wife

without there being any reasonable cause. It is also her

case that she is ready and willing to live with the husband

and the judgement relating to restitution of conjugal rights

must be upheld.

23. This Court has considered the contentions

raised the bar and perused the impugned judgement and

decree and the judgments cited at the bar.

24. There is no dispute over the fact that the

marriage between the parties took place in the year 2007.

It is also not in dispute that the husband and wife stayed

together in the house where the mother and his brother.

Later the husband rented a house and stayed with the wife

till November 2007 and thereafter the wife left the

company of the husband without any reasonable cause and

she never returned. It is also required to be noticed that

the petition is filed in the year 2007 itself.

25. The provision of the Hindu marriage Act

relating to desertion is very clear. Under section 13(1)(ib)

of the Hindu Marriage Act, 1955, a person seeking

dissolution of marriage on the ground of desertion has to

plead and prove that there was no cohabitation between

the husband and wife two years immediately before the

presentation of the petition. On bare perusal of the

averment, it is apparent that no such pleading is found. On

the other hand. It is so forthcoming from the pleading that

husband and wife stayed together only till 2007. The

petition is filed in the year 2007. Under the circumstances,

a decree for dissolution of marriage on the ground of

desertion cannot be granted.

26. As far as the plea relating to the mental disorder

of the wife is concerned the husband apart from leading

his evidence, led the evidence of P.W.2 who is a doctor said

to have treated the wife. The records would reveal that

Doctor who is examined as P.W.2 appeared before the

Court for cross-examination. Sufficient opportunity was

given to the wife to cross-examine the doctor. However,

the wife has not cross-examined the doctor and as such

the Court passed an order that there is no cross-

examination to P.W.2. Later an application is filed by the

wife to recall the said order in seeking permission to

cross-examine the doctor. The application was allowed.

However, the doctor did not turn-up to give evidence. The

Family Court has passed an order that the evidence of the

doctor is to be expunged from the records.

27. As already noticed apart from examining

himself and producing few prescriptions to show that the

wife was under medication no other material evidence is

placed for the court to give a finding that wife is suffering

from a mental disorder. This being the position this Court is

of the view that the petition seeking dissolution of

marriage on the ground of mental disorder is not tenable

as mental disorder is not established. Accordingly, the

judgement and decree passed by the Family Court,

refusing to grant the decree for dissolution of marriage on

the ground that the respondent-wife is suffering from a

mental disorder must be sustained.

28. Now this Court has to consider whether the plea

of cruelty is established by the husband. This Court has

already noticed that plea relating to cruelty in the petition.

Paragraphs No. 5 to 10 in the petition are pertaining to the

alleged cruelty by the wife. To substantiate his contention

relating to cruelty the husband has produced 31

documents. The documents at Exs.P.1 to P.20 are the

photographs produced by the husband to show that his

wife never kept the household things clean and in order

and that she was messy. These documents by themselves

are not sufficient to hold that the husband is subjected

resulted to cruelty. However, the learned counsel for the

husband has drawn the attention of this Court to Ex.P.34 -

series of messages sent by the wife to the husband

between November 2007 to February 2008. Some of the

messages found in Ex. P-34 are extracted here for easy

reference.

The SMS dated 12.01.2008 sent at 3:23 pm would read as

under:

Pls arrange 45000 im very much need of it pls try 2 understd vr not made 4 each other once im settld i'll cum and give u divorce once u hav given d money i'll never even sms pls i have mental and physical pain every body cheatd me I dnt want 2 live in dis blore dnt think dis is natak pls I beg once 4 all let us end it if i stay here i cant control my self pls i beg u and i dnt want 2 disturb u anymore pls arrange 4 d money

The SMS dated 02.09.2007 sent at 03:49:32pm would read as under:

Let us depart v r not getg along with each other u need not live with me 4 others day by

day im losing my temper check with legal formalities im damn serious neither ur family vil inte'fere nor mine?

The SMS dated 02.09.2007 sent at 04:54:46pm

would read as under:

Better v depart rather hurtg each other and v r not able 2 get along im losing my temper getg depressed pls check with legal formalities as sun as possible ok?

The SMS dated 02.09.2007 sent at 04:59:45pm would

read as under:

U hav dun so much pls do me a last favour v'll go and c d lawyer first 2mrw morng ok?

The SMS dated 02.09.2007 sent at 09:36:07pm would

read as under:

As sun as possible and there is nothing 2 talk only 2 take decision

The SMS dated 02.09.2007 sent at 09:55:34pm would read as under:

Ok anyways no need of talkg v'll start fiting v both r egoistic people and v hav hurtd eachother a lot atleast in this v'll make things faster

The SMS dated 02.09.2007 sent at 09:59:03pm would

read as under:

Pls i want 2 go 2mrw only i cant i dnt know wat i'll do 4 myself ok?

The SMS dated 02.09.2007 sent at 10:07:47pm would read as under:

V'ii meet 2mrw r u hav other option get me sum slow poisiong tablts frm doctor friend I can end myself on d spot but im scared that i'll scared that i'll escape and ur name v'll be spoilt

The SMS dated 02.09.2007 sent at 10:22:18pm would read as under:

Dis is my last sms 2mrw im leavg i want sum money i'll talk 2 u morng

The SMS dated 03.09.2007 sent at 06:40:22am would read as under:

I need only 2000 i'll b going 4ever dis time im not even going 2 take clothes just drop me on d way.

The SMS dated 03.09.2007 sent at 10:32:04 pm would

read as under:

Im so sorry b coz of me ur bearing so much pain i do everything and ask u sorry. Sorry has

bcum meaningless 4 me I dont want 2 hurt sum or d other way hurt u im so sorry gudnite

The SMS dated 10.09.2007 sent at 08:56:04pm would

read as under:

Pls i want d reply 2mrw morng itself ok?

The SMS dated 10.09.2007 sent at 09:12:21pm would

read as under:

(the letter/s after the word 'of' and after the word 'get' is not visible)

Pls 2mrw i want a firm decision and realistic ones dnt think abt others u not even 1 sec thought of.....always u did everything 2 everybody 4 everyting i cant force u, i'll giv u one more option u get ... slow poisioning tablts i go off gradually u can live happily with ur people but 2mrw i want a decision ok?

The SMS dated 29.10.2007 sent at 10:22:17am reads

as under:

2mrw i want b cumg 2 ajith bhide no more counsellg 4 me I can c"ontrol myself

The SMS dated 07.01.2008 sent at 07:43:12pm would

read as under:

Pls check d rings in my blue bag which ur havg with u

The SMS dated 14.01.2008 sent at 06:42:09pm would

read as under:

Thanks a lot and sorry 4 d tension caused by me bye

The SMS dated ../08/2007 reads as under:

(the date is not visible in the document)

...u taken back tat notice? Pls reply if u want i'l giv divorce (the word before the letter 'u' is not visible in the document)

The SMS dated 17.02.2008 sent at 09:31:57am reads

as under:

Why did u cal up when ur at home? Let us not interfere in each others life?

The SMS dated 18.02.2008 sent at 05:31:55pm would

read as under:

This is d last time and i wont talk 2 u mu mom wants 2 talk 2 u?

The SMS dated 18.12.2008 sent at 05:50:09pm reads

as under:

+919886522556 C finally im askg u as u told tat ur takg back tat notice so pls send acknowledgmt tat u hav taken back frm lawyer ok? pls reply

29. When these documents are produced and

marked on behalf of the husband, no objection was raised

on any grounds, as to the admissibility of the documents.

In the cross-examination, the wife admitted that mobile

number from which the messages are sent belongs to her.

Though she denied the messages there is no explanation

as to how the messages are sent from her cell phone. In

the absence of any other objection as to the admissibility

of the messages, the Court must consider the messages.

From the messages it is apparent that there is a serious

dispute and tension between the husband and wife. The

messages referred to above would lead to the conclusion

that the wife has in clear terms stated that she does not

want to continue with the martial relationship with the

husband. She has also asked the husband to poison her

so that she can end her life. It is also forth coming from

those messages that she had insisted the husband to go

for mutual divorce. The messages would also suggest that

she was insisting the husband to buy some gemstones at

the instance of astrologers to set right the rift between the

husband and wife. It is also forth coming that the husband

has arranged for gemstones and unfortunately, the normal

relationship between the husband and wife was not

resumed. Though these messages also indicate that there

was an attempt by the husband and wife to resolve the

issues between them, same was not resolved.

30. The violent behaviour of the wife and the

hatred towards the husband is evident from the messages.

Wife has also admitted in the cross examination, that from

2007, there is no cohabitation between the two and she is

residing separately. The wife has admitted in the cross

examination that she was not comfortable living with her

husband, his mother and the brother. The evidence on

record would also clearly suggest that at the instance of

the wife, the husband arranged a separate rented house

and started living away from his mother. She further

admits that only for 2-3 months after shifting to a separate

residence, there was harmony and later there were

frequent quarrels. It is also required to be noticed that

the husband in his petition at paragraphs No.5 to 9 has

given the particulars of alleged acts of cruelty on the part

of the wife. However in the written statement the wife has

not traversed those allegations.

31. It is also required to be noticed that the Family

Court has given a finding that the wife in her cross-

examination has admitted that she has once left the

matrimonial house without informing the husband. Though

the witnesses are not examined on behalf of the husband,

or merely because the husband has not examined his

mother or brother to prove the instances of cruelty it

cannot be said that cruelty is not established. The

exchange of messages referred to above and also the

scuffle and other circumstances brought in the evidence

would definitely lead to the conclusion that the husband is

subjected to cruelty by the wife.

32. Though the learned counsel for the wife

contended that the plea of cruelty was later introduced by

way of an amendment as such, the plea of cruelty should

be treated as afterthought as the same was introduced on

realising that the husband would not succeed on the plea

of mental disorder and desertion. No doubt the

amendment was introduced during the pendency of the

petition. However, the settled position of law is the

amendment will take effect from the date of the original

petition, unless ordered otherwise. This being the position,

the finding of the Family Court that cruelty is not

established has to be set aside as the pleading relating to

cruelty is substantially established by producing

corroborative evidence.

33. The evidence in the cross-examination of the

parties again indicates that the medicine was prescribed by

the psychiatrist to the wife as well as husband. Though the

documents are not sufficient to conclude the allegation and

counter allegation relating to the mental disorder of the

husband and wife, it can be inferred that there used to be

frequent quarrel and tension between the husband and

wife. The evidence extracted above from Ex.P.34 again

gives a strong inference that the wife has hurt the

emotions and feelings of the husband. The message dated

02.09.2007 sent at 09.55 p.m. by the wife to the husband

is to the effect that both husband and wife are egoistic and

have hurt each other, same can certainly be construed as

an admission of the allegation by the husband that he is

deeply hurt on account of the acts and omissions on the

part of the wife. The message dated 03.09.2007 sent at

10.32 p.m. would also disclose that the husband is bearing

lot of pain and the wife is confessing that she saying sorry

to the husband has become meaningless. On considering

these evidence on record and overall appreciation of

circumstances brought before the Court, this Court is of

the view that the husband has established the ground of

cruelty, if not the ground of desertion and mental disorder.

34. It is required to be noticed that the Family

Court has not analysed the oral and documentary evidence

in the proper perspective. The evidence at Ex.P34 referred

to above is completely overruled by the Family Court.

When this evidence is not disputed, the Court has to

analyse the same to ascertain whether the said document

supports the case of either of the parties. For the reasons

already discussed, this Court is of the view that the

evidence produced by the husband supports the plea of

cruelty.

35. The learned counsel for the wife in support of

her contention has placed reliance on the following

judgments:

1. Ajay singh vs. Anubala reported in AIR 2016 (NOC) 300 (H.P.)

2. Sanjay Kumar vs. Pratima Devi reported in AIR 2010 PATNA 96.

      3.        Chandramohan                 Khurana        vs.
                Smt.Neeta Khurana reported in AIR
                2006 Uttaranchal 47
      4.        Jitendra           Choudhury                vs.
                Smt.Sangeetha Muhapatra reported in
                AIR 2011 Orissa 133

36. This Court has perused the judgments referred

to above. The facts of the case in the case of Ajay Singh

supra are not forthcoming in the citation submitted before

the Court. As far as other judgments are concerned,

suffice it to say that the facts obtained in the

aforementioned judgments are different from the facts of

the present case. This being the position, the ratio in the

said judgments cannot be made applicable to consider the

ground of cruelty alleged in the present case. As far as

ratio pertaining to desertion and mental disorder is

concerned, this Court has already held that the desertion

and mental disorder alleged are not proved. Hence, the

contention of the wife that the Family Court is justified in

dismissing the petition seeking dissolution of marriage by

following aforementioned judgments cannot be accepted.

37. For the aforementioned reasons, this Court is

of the view that the petition seeking dissolution of

marriage on the ground of cruelty has to be allowed by

setting aside the judgment and decree of the Family Court.

38. Though the husband is entitled to a decree for

dissolution of marriage, the obligation to pay the alimony

to the wife subsists. The learned counsel for the

appellant/husband on instructions made a statement

before the Court that six months before the husband had

offered to pay Rs.37.5 lakhs to the wife as permanent

alimony and the wife rejected the offer demanding

Rs.50.00 lakhs.

39. This Court has perused the records. In the

cross-examination a suggestion was put to the husband

stating that the house in Sanjaynagar, Bangalore which is

purchased by the husband is worth Rs.3 crores. The

husband has denied the suggestion and has stated that the

value of the property is worth Rs.1 crore. The said

evidence was recorded in the year 2014. Nine years have

elapsed since then. Husband has admitted the ownership

of the said property. Needless to say that the property

price has shot-up since then. This being the position this

Court is of the view that the wife is entitled to a permanent

alimony of Rs. 45.lakhs.

40. Hence the following:

ORDER

(i) The impugned judgment and decree dated

23.08.2016 in M.C.No.2747/2007 on the file of

V Additional Family Court, Bengaluru are set

aside and consequently M.C.No.2747/2007 on

the file of V Additional Family Court, Bengaluru

is allowed. The marriage solemnised on

07.12.2005 between the petitioner and

respondent in the aforementioned proceeding

is dissolved by a decree of divorce.

(ii) The respondent in M.C.No.2747/2007 on the

file of V Additional Family Court, Bengaluru is

entitled to permanent alimony of Rs.45 lakhs.

(iii) The permanent alimony of Rs.45 lakhs shall

carry interest at the rate of 6% per annum in

case the said amount is not paid within three

months from this date.

(iv) The impugned judgment and decree dated

23.08.2016 in M.C.No.3231/2013 on the file of

V Additional Family Court, Bengaluru are set

aside. Consequently, petition in

M.C.No.3231/2013 on the file of V Additional

Family Court, Bengaluru seeking restitution of

conjugal rights is dismissed.

(v) MFA No. 7506/2016 and MFA No.7507/2016

are allowed.

Sd/-

JUDGE

Sd/-

JUDGE

BRN