Sri Ajay Marar vs Smt Bivra
2023 Latest Caselaw 1888 Kant

                             -1-
                                   MFA No.6956 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 16TH 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.6956 OF 2016 (FC)

BETWEEN:

SRI AJAY MARAR
S/O GOPALAKRISHNA MARAR,
AGED ABOUT 34 YEARS,
R/AT "JAYA" P.O.,
PODUVACHERI, VIA KADACHIRA,
KANNUR,
KERALA-670621.

PRESENTLY R/AT: AJAY MARAR
UNIVERSITY HOSTEL
UNIVERSITY OF WASHINGTON
SEATTLE, WA-98195
                                            ...APPELLANT
(BY MISS SIMRAN SINGH, ADV. FOR
    SRI SIJI MALAYIL, ADV.)

AND:

SMT. BIVRA
AGED ABOUT 33 YEARS,
W/O AJAY MARAR
R/AT NO.31, XAVIER LAYOUT,
Y.G.PALYA, 2ND CROSS,
BEHIND LIFE STYLE
BENGALURU-560047.
                                       ...RESPONDENT
(BY SRI MAHABALESHWAR CHITRIGEMATH, ADV.)
                                  -2-
                                                MFA No.6956 of 2016




        THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED
16.06.2016, PASSED IN MC NO.2918/2010 ON THE FILE OF
THE     V    ADDITIONAL   PRINCIPAL      JUDGE,    FAMILY   COURT,
BENGALURU, DISMISSING THE PETITION FILED U/S 13(1) (ia)
(iii)   OF   HINDU   MARRIAGE     ACT     FOR     DISSOLUTION   OF
MARRIAGE.


        THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
13.03.2023,      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 and decree

dated 16.06.2016 passed in M.C.No.2918/2010 by which

the petition filed by the appellant seeking dissolution of

marriage on the ground of cruelty and unsoundness of

mind has been dismissed.

2. Facts leading to filing of this appeal briefly stated are

that marriage of the appellant and respondent was

solemnized on 20.08.2005 at Sri Krishna Temple Kadalayi

Kannur, Kerala and the same was registered in the Office

MFA No.6956 of 2016

of the Registrar of Marriages, Chairakkal, Kerala. It is

averred that the couple started living in Bangalore, and a

child is born out of the wedlock on 28.03.2010. It is

further averred that appellant is working in Indian Army

was posted at Jammu and Kashmir, Democratic Republic

of Congo and Bhuj from August 2005 till July 2009. It is

pleaded that appellant used to visit respondent during the

said period, the appellant has noticed that respondent's

behavior was abnormal and sensed that she is suffering

from mental disorder. It is also pleaded that appellant

was posted to Bangalore and thereafter, they have shifted

to the Official Quarters.

3. It is averred that respondent's behavior was

abnormal and it was aggravated, she used to quarrel with

the appellant and beat him mercilessly with the available

objects and injured him. It is also averred that

respondent was not eating food properly, never used to

sleep properly and the entire household chores was on the

shoulders of the appellant. It is pleaded that appellant has

contacted the Doctor, explained him the conduct of the

MFA No.6956 of 2016

respondent and the Doctor opined that respondent is

suffering from mental disorder, which includes

schizophrenia and split personality. It is further pleaded

that respondent was staying with her parents during the

post natal care and on 02.08.2010, the respondent

abruptly entered the appellant's house and started

quarrelling by abusing in filthy language, threatening to

kill him and the child, and also to commit suicide.

Immediately he called the respondent's mother and sister

and requested them to take the respondent back. It is

also pleaded that the behavior of the respondent was to

threaten the appellant and cause mental cruelty by

disrespecting him in front of his family members and

relatives.

4. The respondent has filed statement of objections

denying the averments made in the petition except the

factum of marriage and birth of the child. It is averred

that appellant was on United Nations Congo Mission and

hardly stayed with the respondent. Hence the allegation

that the appellant had noticed mental disorders etc., are

MFA No.6956 of 2016

false and concocted. It is further averred that appellant

and respondent have jointly purchased immovable

property at Bangalore. It is the appellant, who used to

beat the respondent mercilessly at the insistence of his

parents. It is also averred that respondent is ever ready

to undergo medical test for alleged mental illness. It is

pleaded that her In-laws have threatened the respondent

to sell the immovable property which was refused by the

respondent. It is the root cause for making reckless

allegation against the respondent. It is further pleaded

that act of the appellant and his family members amounts

to mental cruelty on the respondent. It is also pleaded

that respondent was sent back to her parental house on

27.04.2010 with the child without any reason.

5. The Family Court has recorded evidence of the

parties. The appellant examined himself as PW.1 and

produced Exs.P1 to P50. The respondent examined herself

as RW.1 and produced documents as Exs.R.1 to R15. The

Family Court by judgment dated 16.06.2016 inter alia held

that appellant has failed to prove the ground of cruelty

MFA No.6956 of 2016

and unsoundness of mind. Accordingly, the petition filed

by the appellant was dismissed. In the aforesaid factual

matrix the present appeal is filed.

6. Learned counsel for the appellant submits that there

is no dispute with regard to marriage and birth of the

child. It is further submitted that respondent has caused

mental cruelty on the appellant by abusing him in filthy

language, respondent has beaten the appellant and caused

injury and she used to quarrel with the appellant, never

respected the appellant and his family members as she

was suffering from psychopathic disorder and

schizophrenia. Despite insistence for treatment, she

refused to undergo any medical test and on 02.08.2010

the respondent came abruptly to the appellant's house

during the post natal nursing care and started quarrelling

with the appellant by abusing him in filthy language,

threatening to kill him and the child and thereafter, to

commit suicide.

MFA No.6956 of 2016

7. It is submitted that appellant had called the mother

and sister of the respondent and requested them to take

the respondent to parental house. It is further submitted

that he consulted the Doctor and came to know that the

respondent is suffering from mental disorder. It is also

submitted that Family Court has not considered the

pleading and evidence in its proper perspective and

dismissed the petition.

8. Per contra, learned counsel for the respondent

supports the judgment and decree of the Family Court and

submits that it is the appellant, who has caused mental

cruelty on the respondent and seeks to dismiss the appeal.

9. We have considered the rival submissions and have

perused the record. The marriage between the parties

and the birth of the child is not in dispute. It is also not

disputed that the appellant was working in Indian Army

was posted in different places, and during the said posting

he used to visit the respondent. Later he has been posted

to Bangalore and thereafter they started living in Official

MFA No.6956 of 2016

Quarters. The appellant has made allegation of cruelty by

the respondent in his pleading and the same is reiterated

in his evidence. On meticulous examination of oral as well

as documentary evidence, it is evident that appellant has

pointed out some of the instances of cruelty, however,

those instances took place during the stay of the

respondent in the matrimonial home and such instances

are not supported by cogent and acceptable evidence of

cruelty. The appellant has pointed out that respondent

used to abuse him, assault him, threatened to kill him and

his new born child and also threatened to commit suicide.

In support of such serious allegations, the appellant has

not placed any acceptable evidence. The appellant has

neither examined any independent witnesses nor produced

any documentary evidence with regard to filing of criminal

cases alleging attempt to commit suicide. The Family

Court has rightly disbelieved the oral testimony of PW.1 in

holding that appellant has failed to prove the ground of

cruelty. The plea of cruelty is very vague and without

MFA No.6956 of 2016

substantive evidence. Hence, we do not find any error in

the finding recorded by the Family Court.

10. The petition was filed on another ground i.e.

unsoundness of mind of the respondent and in support of

the said ground, has made averment in his pleading that

respondent/wife's behaviour was abnormal and he noticed

aggressiveness, therefore, he had consulted the Doctor

and the Doctor has explained to the appellant that the

respondent is suffering from mental disorder, which

includes schizophrenia and having split personality, which

made the life of the appellant miserable. On meticulous

scrutiny of evidence of PW.1, RW.1 and exhibits, the

appellant has made serious allegation of mental

unsoundness of mind of the respondent/wife in support of

the ground raised in the petition. The appellant is

required to prove that the mental disorder, is incurable or

of such kind to an extent that the appellant cannot

reasonably be expected to live with the respondent.

Keeping this legal principle in mind it is evident that

appellant has made only bald statements about

- 10 -

MFA No.6956 of 2016

unsoundness of mind in his pleading and evidence. The

appellant has not examined the expert Doctor nor

produced any documentary evidence to come to the

conclusion that respondent is suffering from unsoundness

of mind, to such an extent that appellant is unable to live

with the respondent. The respondent in her evidence has

stated that she is ready for any medical test, but the

appellant has not made any attempt to get her examined

by the expert Doctor, hence a clear inference can be

drawn that allegation of unsoundness of mind by the

appellant are unfounded vague and without any basis.

The Family Court has rightly disbelieved the evidence of

appellant insofar as unsoundness of mind is concerned.

We do not find any error in the finding recorded by the

Family Court. The Family Court has recorded a finding

that appellant has produced CD and its transcript

messages, however, the same is not supported by the

certificate as required under Section 65B of the Indian

Evidence Act, 1872. We do not find any error in the said

finding.

- 11 -

MFA No.6956 of 2016

11. The appellant has failed to prove the ground of

cruelty and unsoundness of mind to dissolve the marriage

between the parties. Therefore, the Family Court is

justified in rejecting the petition.

12. The Family Court has recorded a finding that

appellant has failed to prove the grounds for dissolution of

marriage on the ground of cruelty and unsoundness of

mind. The aforesaid finding of the Family Court does not

suffer from any infirmity warranting interference by this

Court in the present appeal.

13. For the aforesaid reasons we do not find any merit in

this appeal, the same fails and is hereby dismissed.

No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: DMN