Sri.G.Srinivas vs Smt.S. Anuradha
2023 Latest Caselaw 1768 Kant

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                                     M.F.A.No.7554 of 2015




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.7554 OF 2015 (FC)

BETWEEN:

SRI. G. SRINIVAS
S/O GANAPATHI
AGED ABOUT 50 YEARS
OCCUPATION:
WORKING AS ASST.ELECTRICAL
ENGINEER AT CEE OFFICE, RWF,
RESIDING AT NO.438 EAST COLONY,
RAIL WHEEL FACTORY QUARTERS,
YELAHANKA,
BENGALURU-560064.
                                             ...APPELLANT

(BY SRI S.V.DESAI, ADVOCATE)

AND:

SMT. S. ANURADHA
D/O. D. SHIVANANDAN,
AGED ABOUT 49 YEARS
OCCUPATION: TEACHER AT
VIDYA SAGAR SCHOOL AT ATTUR,

RESIDING AT NO.532,
SAI NILAYAM
ATTUR LAYOUT, 5TH MAIN, YELAHANKA,
BENGALURU - 560064.
                                           ...RESPONDENT

(BY SRI. A.R.HOLLA, ADVOCATE )
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                                             M.F.A.No.7554 of 2015




      THIS M.F.A IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED
30.07.2015 PASSED ON M.C.NO.3032/2012 ON THE FILE OF
THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT,
BANGALORE, DISMISSING THE PETITION FILED U/S 13 (1) (ia)
& (ib) OF HINDU MARRIAGE ACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
22.02.2023,  COMING    ON  FOR  PRONOUNCEMENT      OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:

                           JUDGMENT

This appeal under Section 19(1) of the Family Courts

Act, 1984, has been filed by the appellant/husband against

the judgment and decree dated 30.07.2015 in

M.C.No.3032/2012 passed by the Principal Judge, Family

Court, Bangalore, by which the petition filed under Section

13 of the Hindu Marriage Act, 1955 (for short 'the Act'),

seeking dissolution of marriage, has been dismissed.

2. Facts leading to filing of this appeal in a nutshell are

that marriage between the parties was solemnized on

24.06.1991 at Bangalore as per Hindu rites and customs.

Out of wedlock they were blessed with a baby girl. It was

averred that the relationship between the

appellant/husband and respondent/wife was cordial

M.F.A.No.7554 of 2015

initially for about 2 to 3 years and thereafter, respondent/

wife started dominating, always used to quarrel and abuse

the appellant/husband with filthy words. It was further

averred that respondent/wife used to dislike the

appellant's relatives and tried to avoid all family functions.

It was averred that approximately 23 times she quarreled

with him and voluntarily left the matrimonial home without

informing him and she is not willing to rejoin him. It was

further averred that several attempts to bring the

respondent/wife back to matrimonial home, went in vain.

3. It was further averred that respondent/wife

voluntarily left the matrimonial home on 18.05.2008 along

with daughter with an intention to permanently reside with

her parents. It was further averred that appellant/husband

and his family members have made efforts to bring the

wife to matrimonial home, but she has not agreed. It was

further averred that respondent/wife is interested in

money hence she filed O.S.No.4/2011 claiming

maintenance of Rs.20,000/- per month, which is pending

adjudication. It was further averred that respondent/wife

M.F.A.No.7554 of 2015

filed complaint to the Commissioner of Police, Bangalore

on 29.09.2010. It was further averred that on 20.10.2010

Family Counselling Centre Bangalore, issued notice to the

appellant based on the complaint of respondent/wife and

the same was replied. It was further averred that

respondent filed another complaint on 12.02.2012 before

the General Manager, Rail Wheel Factory (Indian Railways)

Yelahanka Bangalore, and the said authority issued notice

to him, which was replied by the appellant husband. It

was further averred that respondent/wife tried maximum

to harass the appellant/husband even at his work place to

spoil his reputation. It was further averred that on

account of misbehaviour and non co-operation of the

respondent/wife they are living separately for the last

many years. The marriage has broken down irretrievably

and therefore, the appellant/husband sought for a decree

of divorce.

4. The respondent/wife entered appearance before the

Family Court and filed statement of objections, opposing

the petition by denying the averments made in the

M.F.A.No.7554 of 2015

petition. The respondent/wife has admitted the

relationship between the parties, however, she specifically

denies the averment that she used to dictate terms to the

appellant/husband and she denied the averment of

cruelty. The respondent/wife averred that it is the

appellant who used to harass the respondent by picking up

quarrel. It was further averred that on 18.05.2008, after

quarrelling with the respondent/wife the

appellant/husband has driven the respondent/wife and her

daughter out of the house. Since then they are staying

with her parents. It was further submitted that she filed

O.S.No.4/2011 seeking maintenance, she has admitted

that she has filed the complaint to the various authorities

against the appellant/husband. It was further averred

that said complaints are filed with an intention to get

justice and not to harass the appellant/husband and she

denied that she is not responsible for the health

issues of the appellant/husband and sought for dismissal

of the appeal.

M.F.A.No.7554 of 2015

5. The Family Court recorded evidence of the parties.

The appellant/husband examined himself as PW.1 and got

marked documents Exs.P.1 to P13. The respondent/wife

examined herself as RW.1 but no documents were

marked. The Family Court by judgment dated 30.07.2015

inter alia held that appellant/husband failed to prove the

grounds of cruelty and desertion. Accordingly, the petition

was dismissed in the aforesaid factual matrix, hence this

appeal.

6. Learned counsel for the appellant/husband submits

that marriage between the parties was solemnized on

24.06.1991 at Bangalore and they led a happily married

life for about 2 to 3 years and out of wedlock they were

blessed with a baby girl. It is submitted that the

appellant/husband used to take care of his wife and

daughter in a decent and dignified manner, however, the

respondent used to quarrel with him, used to create

scenes without bothering the neighbourhood and used to

abuse the appellant/husband in filthy and unparliamentary

language. It is further submitted that with the

M.F.A.No.7554 of 2015

intervention of well wishers, the respondent wife used to

act normally for few days and again she used to quarrel

with the appellant without any reasons. It was further

submitted that respondent/wife used to avoid family

functions and approximately 23 times she has quarreled

with the appellant and abruptly left matrimonial home on

18.05.2008 along with daughter voluntarily and without

informing the appellant. Despite all efforts made by the

appellant/husband to bring her back, she has blatantly

refused the same. It was further submitted that she

initiated various proceedings and filed complaints before

various authorities with an intention to harass the

appellant/husband, hence the act of the respondent/wife

amounts to mental cruelty and desertion.

7. Learned counsel for the appellant has relied on the

following decisions :-

a. K. SRINIVAS RAO v.D.A. DEEPA (AIR 2013 SC 2176;)

b. SUMAN KAPUR v.SUDHIR KAPUR (AIR 2009 SC 589;)

c. SUJATA UDAY PATIL v.UDAY MADHUKAR PATIL (2007 AIR SCW 896;)

d. GEETA JAGDISH MANGTANI v. JAGDISH MANTANI (AIR 2005 SC 3508;)

M.F.A.No.7554 of 2015

e. SMT SAVITHRI Vs. SRI S. RAVINDRA REDDY (ILR 2018 KAR 1368;)

There is no dispute with regard to the law laid down by the

Hon'ble Supreme Court and this Court referred supra. We

need to examine the case on hand, based on the

pleadings, evidence on record by applying the ratio laid

down by the Hon'ble Courts.

8. Learned counsel for the respondent reiterated the

averments made in the statement of objections. He

admits the relationship between the parties, however, he

has specifically denied the averments of cruelty. He

submits that it is the appellant/husband, who caused

cruelty on the respondent/wife and deserted her. He

further submits that initiation of proceedings by the

respondent/wife and filing of the complaint is for the

purpose of getting justice and not with an intention to

harass the appellant and therefore, prayed for dismissal of

the appeal.

9. We have considered the submissions made by the

parties and have perused the materials on record.

M.F.A.No.7554 of 2015

10. The appellant/husband has deposed that his wife

treated him with cruelty and he has narrated some of the

incidents, that the respondent/wife used to quarrel with

him, used to behave rudely, refused to participate in

family functions, she used to abuse him in

unparliamentary words and used pick up quarrel without

any reason and she quarrelled approximately 23 times

with the appellant. It was further deposed that because of

such act of the respondent, the appellant suffered from

blood pressure and diabetes. It was further deposed that

respondent/wife has initiated false legal proceedings and

filed false complaints alleging domestic violence against

the appellant/husband before the General Manager, Rail

Wheel Factory (Indian Railways) and before the other

authorities.

11. On meticulous examination of the petition

averments, evidence of PW.1 and on perusal of Exs.P1 to

P13, we are of the opinion, that the allegations are vague.

The appellant/husband has not stated any specific

instances of cruelty in his evidence. The initiation of legal

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M.F.A.No.7554 of 2015

proceedings and filing of the complaint by the respondent/

wife before the various authorities, ipso facto does not

amount to mental cruelty unless the proceedings results in

causing damage to the reputation and affect progress of

the appellant/husband in his employment, hence it cannot

amount to mental cruelty. On careful examination of

evidence on record, it is evident that, based on the

complaints and initiation of legal proceedings, no action is

taken against the appellant/husband, and in none of the

proceedings a finding is recorded that the proceedings are

malicious and false. In the absence of any finding by

those authorities, mere filing of complaint and initiation of

legal proceedings for maintenance, which she is entitled

under law otherwise, and mere filing of complaint with the

employer of husband cannot be termed as mental cruelty

against appellant/husband. Therefore, in our view, the

Family Court was justified in appreciating the evidence on

record insofar as ground for cruelty is concerned and we

do not find any infirmity in the find of the Court below.

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M.F.A.No.7554 of 2015

12. The Hon'ble Supreme Court in the case of JOYDEEP

MAJUMDAR Vs. BHARTI JAISWAL MAJUMDAR [(2021)3

SCC 742] has held at paragraphs 10 and 12 as follows:-

10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh, this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts.

11........................................................................................

12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be

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M.F.A.No.7554 of 2015

prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wife's allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue."

And in RANI NARASIMHA SASTRY Vs. RANI SUNEELA

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

follows:-

"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 15:

"15.....Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the

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M.F.A.No.7554 of 2015

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 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."

13. Insofar as ground for desertion the appellant

specifically averred at paras 8, 10 and 15 of the petition

filed before the Family Court that the respondent/wife

voluntarily left the appellant/husband's house on

18.05.2008 with an intention to reside in her parents

house and started living with them. The respondent/wife

has denied the averment of desertion in her counter, it

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M.F.A.No.7554 of 2015

was averred that it is the appellant/husband who has

driven her away from the house on 18.05.2008. The

factum of leaving the matrimonial home by the

respondent/wife on 18.05.2008 has not been disputed by

both the parties in their respective evidence.

14. On careful examination of the evidence on record,

now this Court is required to appreciate the evidence as to

whether the respondent/wife has left the matrimonial

home voluntarily or the appellant/husband has forcefully

driven her out from the matrimonial home on 18.05.2008.

PW.1 in his evidence has clearly stated that on 18.05.2008

the respondent/wife along with daughter has left the

matrimonial home and started living with her parents. The

evidence of PW.1 further disclose that appellant has made

efforts to convince her and her parents to get her back to

the matrimonial home, at that time, the respondent's

parents warned the appellant/husband not to come to

their house and not to talk to her. The respondent/wife

has failed to get any contrary admission while cross

examining PW.1. The respondent/wife has neither pleaded

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M.F.A.No.7554 of 2015

nor adduced any evidence to establish the fact that she

made efforts to rejoin the matrimonial home after

18.05.2008 by sending legal notice to the

appellant/husband asking him to take her back to

matrimonial home or by filing the petition for restitution of

conjugal rights, till date. Hence inference can be drawn

that the respondent/wife left the matrimonial home

voluntarily on 18.05.2008 with an intention of end the

cohabitation permanently. The petition for dissolution of

marriage was filed on 17.08.2012. In the instant case, the

respondent/wife voluntarily deserted the appellant

husband for more than four years prior to the filing of the

petition for dissolution of marriage clearly established the

fact that the ground for desertion is made out. The

Family Court has not appreciated the evidence of PW.1

insofar as ground for desertion in its proper prospective,

hence the finding of the trial Court in arriving at the

conclusion that appellant failed to prove the ground of

desertion is perverse and contrary to the evidence on

record. Hence calls for interference.

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M.F.A.No.7554 of 2015

15. Thus it is very clear that the respondent/wife has left

the matrimonial home with an intention to end the marital

relationship with the appellant/husband on 18.05.2008

and it is an admitted fact that the spouse are living

separately for more than 14 years as of now and it is likely

that there is no possibility for the couple to live together at

this stretch of time. The appellant husband has proved

the ground of desertion. It will be useful to refer to the

decision of the Hon'ble Supreme Court in the case of

DEBANANDA TAMULI Vs. KAKUMONI KATAKY (2022) 5

SCC 459 has held at para 7 as follows :-

"7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in Lachman Utamchand Kirpalani which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the international abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a

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M.F.A.No.7554 of 2015

factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act 68 of 1976. The said Explanation reads thus:

Explanation : In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly".

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M.F.A.No.7554 of 2015

And in the decision of SAVITRI PANDEY Vs. PREM

CHANDRA PANDEY [(2002) 2 SCC 73] at paragraphs 9,

10 and 11, it is held as follows:-

"9.Following the decision in Bipinchandra's case (supra) this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (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. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.

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M.F.A.No.7554 of 2015

10. To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof.

Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.

11. There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without

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previous cohabitation by the parties. The basis for this theory is built upon the recognised position of law in matrimonial matters that no-one can desert who does not actively or wilfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case. However, the party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong."

14. For the aforementioned reasons the instant appeal is

allowed and impugned judgment dated 30.07.2015 passed

in M.C.No.3032/2012 on the file of the Principal Judge,

Family Court, Bangalore, is hereby set aside and the

marriage between the parties is dissolved by a decree of

divorce on the ground of desertion.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: SV