Karnataka High Court

Sri Dr Ravikumar S vs Smt Somya S O on 15 March, 2023

Bench: Alok Aradhe, Vijaykumar A Patil

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                                      MFA No.6981 of 2014




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 15TH 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.6981 OF 2014 (FC)

BETWEEN:

SRI DR. RAVIKUMAR S.,
S/O SURENDRA NAIK,
AGE 38 YEARS,
R/O GURUKRUPA,
1ST STAGE, 4TH CROSS,
60 FEET ROAD, VINOBHANAGARA,
SHIVOMOGA,
SHIVAMOGA DISTRICT-577201.
                                             ...APPELLANT
(BY SRI PRASAD B. S., ADV.)

AND:

SMT. SOMYA S.O.
W/O DR. RAVIKUMAR
D/O ONKARAPPA,
AGED 32 YEARS,
R/O #1946/3, RENUKA NILAYA,
5TH MAIN, 15TH CROSS,
VIDYANAGARA,
DAVANAGERE DIST.-577100.
                                           ...RESPONDENT
(BY SRI JOSEPH ANTHONY, ADV.)

       THIS M.F.A IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED
26.09.2014, PASSED IN MC NO.109/2012 ON THE FILE OF THE
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                                          MFA No.6981 of 2014




JUDGE,   FAMILY   COURT,    DAVANGERE,     DISMISSING     THE
PETITION FILED U/S 13(1) (ia) AND (ib) (iii) OF HINDU
MARRIAGE ACT.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
06.03.2023,   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 against the judgment dated

26.09.2014 passed by the Family Court, by which the

petition filed by the appellant/husband under Section 13

(1) (ia) (ib) and (iii) of the Hindu Marriage Act, 1955 (for

short 'the Act') seeking dissolution of the marriage on the

grounds of cruelty, desertion as well as unsoundness of

mind, has been dismissed.

2. Facts giving rise to filing of this appeal briefly stated

are that appellant/husband and respondent/wife were

married as per Hindu Rites and Customs on 13.10.2010 at

Bapuji Samudaya Bhavana, Davanagere. After the

marriage, the parties stayed together and from out of the

MFA No.6981 of 2014

wedlock a daughter viz., Lavanya was born on

25.03.2012. The relationship between the

appellant/husband and the respondent/wife was not

cordial. On 02.10.2011 the appellant/husband filed a

petition seeking dissolution of marriage on the ground of

physical and mental cruelty, desertion and incurable

disease of unsound mind.

3. It is pleaded that after the marriage the

appellant/husband and respondent/wife have separately

resided in a rented house at Davangere. It is further

pleaded that the respondent/wife used to abuse the

appellant in filthy language, tease him before relatives and

friends, and the respondent/wife has failed to discharge

her marital obligations.

4. It is pleaded that the appellant's parents are aged

and dependent on their only son. Prior to the marriage

they were living along with the appellant/husband and

after the marriage the appellant/husband used to visit

Shivamogga in order to look after his parents. It is stated

MFA No.6981 of 2014

that the respondent/wife used to interfere with his work

and also torment him stating the appellant/husband has

abnormal behaviour and attitude. As it went beyond the

tolerable limit, the appellant took the respondent/wife to

psychiatrist in the year 2010, and the appellant/husband

came to know that respondent/wife is suffering from

hypothyroid as well as depressive disorder. It is pleaded

that respondent/wife was not aware of disease at the time

of the marriage and when treatment was provided she

neglected the medications prescribed by the doctor. On

the contrary, she continued with her aggressive attitude

towards the appellant/husband and his parents.

5. It is averred that when the appellant/husband tried

to advise, she threatened him stating that she would

commit suicide by consuming tablet, by jumping out of the

car running car, setting fire etc., which was all brought to

the notice of the respondent's parents. It is also averred

that the respondent/wife used to threaten him stating that

she would lodge a false complaint before the police as

against the appellant/husband and his parents.

MFA No.6981 of 2014

6. It is pleaded that the appellant/husband was a

surgeon, he could not carry on his profession peacefully

because of mental harassment by the respondent/wife

which made him to resign the job on 22.08.2011, in

Davangere as well as in Shivamoga. It is pleaded that

after filing the divorce petition, the respondent/wife has

also filed frivolous criminal complaint against his parents,

sisters and brother-in-law.

7. The respondent/wife appeared before the Family

Court and filed objections. The respondent/wife has

specifically denied the allegations and has pleaded that

appellant/husband has failed to discharge marital

obligations. It is further pleaded that it is the

appellant/husband who was suspecting the

respondent/wife, and got the first child aborted against

her wishes.

8. The Family Court on the basis of the pleadings of the

parties recorded evidence. The appellant examined himself

as PW1 and marked Exs.P1 to Exs.P19. The

MFA No.6981 of 2014

respondent/wife examined herself as RW.1 and marked

Exs.R1 to Ex.R36. The Family Court on the basis of the

evidence adduced by the parties vide judgment dated

26.09.2014 inter alia held that appellant/husband has

failed to prove the ground of physical, mental cruelty,

desertion and incurable unsoundness of mind, against the

respondent/wife, hence dismissed the petition. In the

aforesaid factual background, this appeal has been filed.

9. Learned counsel for the appellant/husband submitted

that behaviour of the respondent/wife during her stay with

the appellant/husband was cruel as she was suffering from

hypothyroid leading to unsoundness of mind. It is further

submitted that Family Court has failed to properly

appreciate the evidence adduced by the

appellant/husband, therefore, seeks to set aside

judgment and decree passed by the Family Court.

10. Learned counsel for the appellant/husband relies on

the following decisions :-

MFA No.6981 of 2014

a. V BHAGATH Vs. B. BHAGATH, AIR 1994 SC 710

b. JOYDEEP MAJUMDAR Vs. BHARATHI, AIR 2021 SC

c. M UDAYAKUMAR VS. RAJESHWARI MFA No.

10111/2013

There is no dispute with regard to legal preposition

canvassed by the learned counsel for the

appellant/husband. This Court is required to consider the

instant appeal based on the pleading, evidence and

material on record.

11. Per contra, learned counsel for the respondent/wife

justifies the judgment and decree of the Family Court and

submits that allegations of cruelty, unsoundness of mind

and desertion are made without any basis. The appellant

has failed to prove those grounds before the Family Court

by adducing proper evidence and therefore, seeks to

dismiss the present appeal.

11. Having considered the submission made by learned

counsel for the appellant and on perusal of material on the

record, it is pertinent to note that the standard of proof in

MFA No.6981 of 2014

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, parties to the

dispute are required to describe the measure and standard

of cruelty and lead cogent evidence to succeed in the plea

of dissolution of marriage on the ground of cruelty.

12. In the light of the test for cruelty which has been

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

case of N.G. DASTANE V. S. DASTANE, (1975)2 SCC 326

at Para 30 it is held as follows :-

"30. ..................The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent...."

13. In MAYADEVI V. JAGDISH PRASAD, (2007) 3 SCC 136 the Hon'ble Supreme Court has explained "Certain Pitch of Severity" which amounts to cruelty and quarrels in day to day marital life shall not amount to cruelty. In para 9 it is held as follows :-

MFA No.6981 of 2014

"9. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent."

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MFA No.6981 of 2014

14. On careful perusal of the oral and documentary

evidence placed on record it is evident that both

appellant/husband and the respondent/wife are qualified

enough to weigh the outcome of their actions, the

appellant/husband has not chosen to examine any one to

substantiate his stand making the allegations vague. Mere

use of filthy language, teasing the appellant/husband in

front of friends and family shall not be a ground of cruelty,

unless they are proved by valid reasoning. The appellant/

husband deposed that due to harassment by the

respondent/wife by filing false cases, he was required to

obtain anticipatory bail. It is admitted fact that criminal

case is still pending against the appellant/husband, hence

mere filing of a complaint cannot be construed as cruelty.

The appellant/husband has placed reliance on the CD

conversation as per Ex.P16a. The Family Court has

recorded specific finding about the conversation found in

the CD and held that nothing can be found out from the

conversation recorded in the CD and by such conversation

it cannot be said that respondent/wife has caused cruelty

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MFA No.6981 of 2014

on the appellant/husband. The Family Court has rightly

discarded the evidence Ex.P16a-CD for the reason that

appellant/husband has failed to produce the certificate as

required under Section 65B (4) of the Indian Evidence Act,

1872.

15. The appellant/husband has pleaded that

respondent/wife is suffering from unsoundness of mind.

However, the appellant/husband has failed to examine any

Doctor to support the said ground. The allegations of

unsoundness of mind cannot be accepted only on the basis

of pleading, the same is required to be supported by an

expert's opinion. In the instant case the appellant/

husband has not produced an iota of evidence to prove the

ground of unsoundness of mind.

16. It will be useful to refer the decision of KOLLAM

CHANDRA SEKHAR V. KOLLAM PADMA LATHA, (2014) 1

SCC 225 the Hon'ble Supreme Court has extensively

illustrated the meaning of mental illness at para 22, which

reads as follows :-

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MFA No.6981 of 2014

"22............regarding "unsound mind" or "mental disorder" and the application of the same as grounds for dissolution of marriage. This Court cautioned that Section 13 (1) (iii) of the Act does not make a mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of marriage."

17. In the light of the above discussion, we are of the

opinion that appellant/husband has made vague

allegations against the respondent/wife without justifiable

reasoning.

18. The appellant/husband has raised the plea of

desertion and on meticulous appreciation of evidence on

record, the Family Court has recorded a finding that

appellant/husband has failed to prove the ground of

desertion. The appellant/husband has not specifically

pleaded nor adduced evidence as to when the

respondent/wife has left the matrimonial home. The

appellant/husband is required to establish the fact that the

respondent/wife has voluntarily deserted the

appellant/husband without any reason two years prior to

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MFA No.6981 of 2014

the filing of the petition. In the absence of any such plea

supporting the evidence, we do not find any perversity in

the finding recorded by the Family Court, hence the

appellant/husband has failed to prove the ground of

desertion.

19. In the case of DEBANANDA TAMULI V. KAKUMONI

KATAKY, (2022) 5 SCC 459 the Hon'ble Supreme Court

has elaborated the factum of separation at para 7 which

reads as follows :-

"7. The law consistently laid down by this Court is that desertion means the intentional 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 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