Karnataka High Court

S Kumara Swamy vs Smt P Mala on 10 March, 2023

Bench: Alok Aradhe, Vijaykumar A Patil

                            1
                                     MFA No.7867 of 2014




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    DATED THIS THE 10TH DAY OF MARCH, 2023
                       PRESENT
       THE HON'BLE MR JUSTICE ALOK ARADHE
                           AND
  THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.7867 OF 2014 (MC)

BETWEEN:

S KUMARA SWAMY
S/O SEETHARAMU
AGED ABOUT 33 YEARS,
R/A U-99, 7TH CROSS,
SWATANTRA NAGAR,
SRIRAMAPURAM,
BENGALURU-560021.
                                             ...APPELLANT
(BY SRI K.R.ANANTHA MURTHY, ADV. - ABSENT)

AND:

SMT. P MALA
W/O S KUMARA SWAMY
D/O LATE PONNUSWAMY
AGED ABOUT 30 YEARS
R/A NO.21, MASJID STREET
MARIYAPPANAPALYA
BANGALORE-560036
                                         ...RESPONDENT
(BY SMT. B.V.VIDYALATHA, AMICUS CURIAE - ABSENT)

      THIS M.F.A IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED
10.10.2014, PASSED ON MC NO.1043/2012 ON THE FILE OF
THE V ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BANGALORE, DISMISSING THE PETITION FILED U/S 13(1) (ia)
(ib) OF HINDU MARRIAGE ACT.
                                2
                                            MFA No.7867 of 2014




     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
07.03.2023,  COMING    ON  FOR  PRONOUNCEMENT      OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:

                         JUDGMENT

This appeal is filed under Section 19(1) of the Family

Courts Act, 1984 against the judgment and decree dated

10.10.2014 passed in M.C.No.1043/2012 by the V Addl.

Judge, Family Court, Bangalore, 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 appellant and respondent got married on 17.01.2005

as per Hindu customs in Bangalore. After the marriage

respondent joined the matrimonial home. The

respondent's mother used to interfere with the marital life.

The respondent gave birth to a female child on 31.10.2005

and thereafter, the respondent started living with her

parents. It is averred that the appellant requested the

respondent to join the matrimonial home, however, she

refused to join the matrimonial home. It is further

MFA No.7867 of 2014

averred that the respondent has requested the appellant

to transfer the house property in her name, when the said

demand was not complied with, she refused to join the

matrimonial home and started harassing him. It is

pleaded that respondent has filed police complaint against

the appellant and his family members for the offences

punishable under Sections 498A, 323, 324 325, 506 r/w

Section 34 of IPC. The said criminal case is pending. The

said act of respondent filing false case has caused mental

cruelty to the appellant. It is further averred that the

respondent has deserted the appellant from 20.02.2006

without any reasonable cause. Accordingly, the appellant

sought dissolution of marriage on the ground of cruelty

and desertion.

3. The respondent has filed statement of objections

opposing the averments made in the petition. The

respondent has admitted the factum of marriage and birth

of female child out of the wedlock, however, she denies

other averments of cruelty and desertion. It is further

averred that appellant has not treated the respondent

MFA No.7867 of 2014

well, it is the appellant and his family members who have

harassed her and used to demand dowry from her. It is

further averred that due to cruelty and demand of dowry

by the appellant and his family members, she has filed

complaint with jurisdictional police. It is further averred

that she was unable to live in such an atmosphere, hence,

she was forced to leave the matrimonial home along with

the child.

4. The appellant in order to prove his case has

examined himself as PW.1 and marked the documents

Exs.P1 to P3 and the respondent examined herself as

RW.1, however no documents were marked. The Family

Court vide judgment 10.01.2014 inter alia held that the

appellant has failed to prove the grounds of cruelty and

desertion for grant of decree of divorce and dismissed the

petition.

5. The appellant's case is that the marriage between

the parties was solemnized on 17.01.2005 and out of the

wedlock a female child was born on 31.10.2005. Despite

MFA No.7867 of 2014

providing all the comforts, the respondent has caused

cruelty on the appellant. It is his case that she has filed

false criminal case against the appellant with an intention

to harass him. It is averred that without any reason the

respondent voluntarily deserted the appellant on

20.02.2006, hence the petition is filed seeking dissolution

of marriage. The Family Court has failed to appreciate the

material on record and erroneously came to the conclusion

that the appellant has failed to prove the case for grant of

decree of divorce on the ground of cruelty and desertion

and dismissed the petition, hence, the present appeal.

6. The respondent supports the judgment and decree of

the Family Court. It is the case of respondent that the

appellant has failed to prove the case before the Family

Court, hence, Family Court has rightly dismissed the

petition.

7. We have considered the contentions of both the sides

and have perused the material on record. The parties

have not disputed the factum of marriage and the birth of

the child. On meticulous examination of pleading and

MFA No.7867 of 2014

evidence of PW.1, it is admitted that the respondent has

filed a police complaint on 20.02.2006. The jurisdictional

police have filed charge sheet and it is pending

adjudication before the jurisdictional Court. The

contention of the appellant that the respondent has filed a

false case against the appellant, which has caused mental

cruelty, cannot be accepted for the simple reason that the

jurisdictional police have filed charge sheet on collection of

evidence, which prima facie establishes the commission of

alleged offences unless contrary is established in pending

trial. Mere filing of a criminal case cannot be construed as

mental cruelty unless the jurisdictional court gives the

finding that the initiation of case is malicious and false

one. In the absence of any such finding we are of the

opinion, that mere filing of police complaint ipso facto does

not amount to mental cruelty. In that regard it will be

useful to refer to the decision of the Hon'ble Supreme

Court in RANI NARASIMHA SASTRY Vs. RANI SUNEELA

RANI (2020 18 SCC 247) wherein at para 13 it is held as

follows :-

MFA No.7867 of 2014

"13. In the present case the prosecution is launched by the respondent against the appellant under Section 498-A of IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A of IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. With regard to proceeding initiated by respondent under Section 498-A of IPC, the High Court made following observation in paragraph 14:

14.....Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A of IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty."

The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of offence

MFA No.7867 of 2014

under Section 498-A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005, they lived together only 18 months and thereafter they are separately living for more than a decade now."

(THE UNDERLINED PORTION - EMPHASIS APPLIED)

And in the decision of Hon'ble Supreme Court in

RAJ TALREJA Vs. KAVITA TALREJA [(2017) 14 SCC 194)

it is held at paras 9 to 11 :-

"9. This Court in Para 16 of K. Srinivas Rao v. D.A. Deepa[1] has held as follows:

"16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh v. Jaya Ghosh, 2007 (4) SCC 511, we could add a few more.

Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse." In Ravi Kumar v. Julmidevi[2], this Court while

MFA No.7867 of 2014

dealing with the definition of cruelty held as follows:

"19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety--it may be subtle or even brutal and may be by gestures and words. That

MFA No.7867 of 2014

possibly explains why Lord Denning in Sheldon v. Sheldon, (1966) 2 WLR 993 held that categories of cruelty in matrimonial cases are never closed."

10. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 (for short 'the Act'). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the

MFA No.7867 of 2014

allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of IPC.

11. We have perused the judgment of the High Court. The High Court while dealing with the plea of false complaints held that there was no reason to hold that the criminal complaint filed by the respondent-wife was false and mala fide. We are unable to agree with this finding of the High Court and the court below. Both the courts below relied upon the statement of the wife that her husband had often visited her house and she fulfilled her marital obligations. These observations are not based on any reliable or cogent evidence on record. It is not disputed before us that the wife continues to live in the house which belongs to the mother of the husband whereas the husband lives along with his parents in a separate house and the son and daughter-in-law of the parties live with the

MFA No.7867 of 2014

wife. The son is working with the husband. We may note that Ms. Makhija has very fairly stated before us that the husband had always fulfilled his paternal obligations to his son and is continuing to pay maintenance to his wife as fixed by the court."

(THE UNDERLINED PORTION - EMPHASIS APPLIED)

8. Keeping in mind the well settled legal position we are

of the opinion, that initiation of criminal prosecution

making certain acquisition against the accused itself is not

a cruelty. The matter is seized before the Criminal Court

and no finding is recorded by the said Court in favour of

the appellant stating that the alleged acquisitions are false

and malicious one. Hence we are of the opinion, that

appellant has failed to prove the ground of cruelty for

grant of decree of divorce.

9. The appellant has pleaded and adduced evidence in

support of his case the ground of desertion before the

Family Court. It is contended that respondent has

deserted the appellant from 20.02.2006 without any

reason or cause. The respondent has denied the said

MFA No.7867 of 2014

allegation and pleaded that the appellant has physically

thrown her out from his house. The respondent in her

cross-examination volunteers that she was and is always

ready to join the appellant, but the appellant has not

taken her back. On meticulous scrutiny of evidence on

record, it is evident that the respondent has filed a

criminal case against the appellant for demand of dowry

and assault. The harassment and demand of dowry was

the reason for the respondent to leave the matrimonial

home. The respondent in her cross-examination has

admitted that the appellant and her daughter are in cordial

terms and once in a month or two the appellant takes the

child for a day or two and thereafter sends her back to the

respondent. It is evident that the respondent has left the

matrimonial home for the reason that there was

harassment and cruelty by the appellant and desertion is a

not voluntary one. The appellant has failed to establish

the factum of separation of the respondent with him, with

an intention to bring cohabitation permanently to an end

in his pleading or evidence.

MFA No.7867 of 2014

10. It will be useful to refer the decision of the Hon'ble

Supreme Court in ADHYATMA BHATTAR ALWAR Vs.

ADHYATMA BHATTAR SRI DEVI [(2002) 1 SCC 308]

wherein at para 7 it is held as follows :-

"7. Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are :

1. The factum of separation;

2. The intention to bring cohabitation permanently to an end animus deserendi;

3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period; The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include willful neglect of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must

MFA No.7867 of 2014

be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period."

11. The appellant seeking dissolution of marriage on the

ground of desertion has failed to prove that the

respondent has deserted him voluntarily with an intention

to bring the co-habitation permanently to an end - animus

deserendi.

MFA No.7867 of 2014

12. The Family Court on meticulous appreciation of

evidence on record, has recorded a 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