Dr Neetha S vs Dr Mahesh P S
2023 Latest Caselaw 1946 Kant

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                                   MFA No.7606 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 21ST 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.7606 OF 2016 (FC)

BETWEEN:

DR. NEETHA S
W/O DR. P. S. MAHESH,
AGED ABOUT 41 YEARS,
R/AT NO.2087, 9TH CROSS,
3RD MAIN, R.P.C.LAYOUT,
VIJAYANAGAR,
BANGALORE-560040.

ALSO AT: NO.37,
NAVARATHNA MANOR,
SUBBARAMA CHETTY ROAD,
BASAVANAGUDI,
BENGALURU-560004.
                                           ...APPELLANT
(BY SMT.BHUSHANI KUMAR, ADV. FOR
    SRI C.V.KUMAR, ADV.)

AND:

DR. MAHESH P S
S/O SUBASH CHANDRA BOSE,
AGED ABOUT 45 YEARS,
WORKING AT: DIRECTOR
TYPE-5, NO.1, CPDO RESIDENTIAL QUARTERS,
(CENTRAL POULTRY DEVELOPMENT
ORGANISATION)
HESARAGHATTA, BANGALORE-560088.
                                       ...RESPONDENT
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                                          MFA No.7606 of 2016




(BY SRI K.RAGHAVENDRA, ADV.)

     THIS M.F.A IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE
DATED 03.10.2016 PASSED IN MC NO.1019/2010 ON THE FILE
OF THE PRL. JUDGE, FAMILY COURT, BENGALURU, ALLOWING
THE PETITION FILED U/SEC. 13(1) (1a) & (1b) OF THE HINDU
MARRIAGE ACT, FOR DECREE OF DIVORCE.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
16.03.2023,   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 03.10.2016 passed in M.C.No.1019/2010 by the

Principal Judge, Family Court, Bangalore, by which the

petition filed by the respondent seeking dissolution of

marriage, was allowed.

2. Brief facts giving rise to filing of this appeal are that

the marriage between the appellant and respondent was

solemnized on 26.04.1999 at Sri Chowdeshwari Kalyana

Mantapa, Vijayanagar, Bangalore as per the customs and

MFA No.7606 of 2016

rituals. It is averred that the couple led happy married life

for some days and thereafter the appellant started

showing her colours. She used to prefer luxurious life

which was not acceptable in the traditional family of the

respondent and she never used to respect or wish the

friends, relatives or guests. It is further averred that

appellant used to disrespect the elders and refused to join

the respondent at Bagepalli, the work place of the

respondent. Hence he was constrained to set up a

residence at Bangalore and he used to travel every day to

Bagepalli.

3. It is pleaded that out of the wedlock a female child

was born on 03.04.2000. It is pleaded that appellant has

locked the respondent's mother in the room and went to

her parental house. She has threatened to commit suicide

by consuming poison, she also started black-mailing the

respondent and expected to act as per her wish. It is

further pleaded that appellant has attempted to commit

suicide by hanging over the ceiling fan in the bedroom and

on hearing the cry of the child, the respondent broke open

MFA No.7606 of 2016

the door, thus such act has caused mental cruelty to the

respondent. It is also pleaded that appellant left the

matrimonial home in the month of December 2003 and

since then there is no conjugal relationship between the

couple. It is averred that appellant was arrogant, career

oriented and she had refused to join the matrimonial

home, which made the life of the respondent miserable.

4. The appellant has entered appearance and filed

statement of objections by admitting relationship between

the parties and birth of the child. It is averred that

allegations of ill treatment, harassment and cruelty are

false and without any basis. It is the mother and brother

of the respondent, who were harassing the appellant and

tried to bring the difference of opinion between the couple.

It is further averred that respondent never treated the

appellant and the child with love and affection, he used to

treat the appellant as a maid servant and the family

members have caused mental harassment to the

appellant. It is also averred that appellant and respondent

were meeting in different places and have also visited

MFA No.7606 of 2016

Goa, Chennai and Mysore, even though they were not

living under one roof, the appellant had fulfilled all the

desires of the respondent as a dutiful wife. It is pleaded

that appellant had never refused to lead marital life with

the respondent and the allegations of cruelty and

desertion are created for the purpose of filing the petition.

5. The Family Court has recorded the evidence. The

respondent examined himself as PW.1 and other four

witnesses as PWs.2 to 5 and got marked Exs.P1 and P2.

The appellant examined herself as RW.1 and another

witness as RW.2 and got marked Exs.R1 and R2. The

Family Court on the basis of evidence adduced by the

parties vide common judgment dated 03.10.2016 allowed

the petition filed by the respondent/husband seeking

dissolution of marriage and dismissed the petition filed by

the appellant seeking restitution of conjugal rights.

6. With the consent of learned counsel for the parties

both the appeals are heard together.

MFA No.7606 of 2016

7. Learned counsel for the appellant submits that

Family Court has erred in appreciating the evidence on

record and has come to erroneous conclusion that the

respondent has proved the grounds of cruelty and

desertion and granted decree of divorce. It is submitted

that the Family Court has not at all considered the various

SMS communication between the couple for the last many

years, which clearly establishes that there was no

intention of ending cohabitation, even though they lived

separately. The Family Court has also erred in

appreciating the evidence on record as the respondent has

not examined the father, mother and brother, whose

evidence was vital. It is further submitted that Family

Court has erred in considering the evidence of PWs.2 to 5,

who are the strangers to the Family and they have no

personal knowledge about the alleged incidents. It is also

submitted that only vague and false allegations are made

against the appellant about the cruelty, the allegation that

the appellant had locked the mother of the respondent is

false and without any basis. It is submitted that there is

MFA No.7606 of 2016

no proof to substantiate the allegation of an attempt to

commit suicide by the appellant and she has not voluntary

deserted the respondent with an intention to end

cohabitation, these aspects are not at all considered by the

Family Court, which has resulted in giving incorrect

finding. It is further submitted that there were minor

differences between the parties, as they were very cordial,

the said fact is evident from bunch of SMS's placed before

the Court. These aspects have not been properly

appreciated by the Family Court.

8. Per contra, learned counsel for the respondent

supports the impugned judgment and submits that there is

no dispute with regard to the relationship between the

parties, the birth of the female child and it is also not in

dispute that both the couple are well qualified. It is

submitted that the appellant has initially led happy

married life with the respondent, she was in the habit of

leading luxurious life, however, the respondent's family

being orthodox have requested the appellant to adjust

with the customs and practices, however, she has refused

MFA No.7606 of 2016

to do so. It is submitted that the appellant was having

suicidal tendency and attempted to commit suicide thrice.

It is further submitted that the appellant has deserted the

respondent in the month of December 2003 and thereafter

she started living separately and which has been admitted

by her in her evidence. It is also submitted that the

appellant has purposefully locked the mother of the

respondent in the house and left along with the child to

her parents' house. It is submitted that the appellant has

caused mental cruelty on the respondent and also

deserted him without any reasons and the respondent has

proved both the ground of cruelty and desertion, hence

the Family Court has rightly granted the decree of divorce,

which does not call for interference by this Court.

9. We have considered the submissions made by the

learned counsel for the parties and have perused the

records.

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

Supreme Court :

MFA No.7606 of 2016

a. SAMARGOSH Vs. JAYAGOSH (2007) 4 SCC 511

wherein at paragraph 101 it is held as follows :-

"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

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MFA No.7606 of 2016

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

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MFA No.7606 of 2016

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The

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MFA No.7606 of 2016

marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."

b. SUMAN SINGH Vs. SANJAY SINGH (2017) 4 SCC 85 at paras 14 and 17 it is held as follows:-

"14. This we hold for more than one reason. First,

almost all the grounds taken by the respondent in his petition were stale or/and isolated and did not subsist to enable the respondent to seek a decree for dissolution of marriage. In other words, the incidents of cruelty alleged had taken place even, according to the respondent, immediately after marriage. They were solitary incidents relating to the behavior of the appellant. Second, assuming that one or more grounds constituted an act of cruelty, yet we find that the acts complained of were condoned by the parties due to their subsequent conduct inasmuch as admittedly both lived together till 2006 and the appellant gave birth to their second daughter in 2006. Third, most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to

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MFA No.7606 of 2016

have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the appellant actually said etc

17) Few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Section 13 (1)(ia)of the Act."

c. N.G. DASTANE (Dr.) Vs. S. DASTANE AIR (1975) SC

1534 wherein it is held at paragraph 72 as follows:-

"72. It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival and in cases of cruelty, "very slight fresh evidence is needed to show a resumption of the cruelty, for cruelty of character is bound to show itself in conduct and behavior, day in and day out, night in and night out". But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. Condonation is conditional forgiveness but the grant of such forgiveness does not give to the

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MFA No.7606 of 2016

condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutely to submit to the cruelty of the other spouse without relief or remedy. The respondent ought not to have described the appellant's parents as "wicked" but that perhaps is the only allegation in the letter Ex. 318 to which exception may be taken. We find ourselves unable to rely on that solitary circumstance to allow the revival of condoned cruelty".

d. DEBANANDA TAMULI V. 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/husband relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. 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

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MFA No.7606 of 2016

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."

11. Keeping in mind the legal position and the ratio laid

down by the Hon'ble Supreme Court, now we advert to the

case on hand.

12. The respondent has alleged that the appellant was

having dominating attitude and always demanded for

luxurious life and abused the respondent and his parents

in unparliamentary words. The respondent has failed to

establish specific instances of such allegations before the

Family Court by adducing proper and acceptable evidence.

The averments pertaining to cruelty are only self serving

statement of the respondent without substantiating the

same. Insofar as allegation that the appellant in the

month of March 2001 has locked the mother of the

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MFA No.7606 of 2016

respondent in the house and went to parental house with

the child, on scrutiny of evidence of PW.1 and RW.1 it is

evident that there was separate lock for the main door and

the adjoining room, where the appellant was separately

residing from the main house. RW.1 has clearly deposed

that she has locked the room where she was separately

residing and after informing the respondent only she left

the matrimonial home to her parents house with the child.

The said evidence has not been appreciated by the Family

Court in its proper perspective, which has resulted in

erroneous finding.

13. The respondent has asserted that the appellant has

suicidal tendency and attempted to commit suicide on

three occasions. The said statement has been

emphatically denied by the appellant in her evidence. On

perusal of the evidence of PW.1 to PW.5, it is axiomatic

that all the witnesses have spoken that the appellant has

attempted to commit suicide and on one occasion she has

consumed poison and was taken to Primary Health Centre,

Hesaraghatta. It is clear that PWs.2 to 5 are neither the

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MFA No.7606 of 2016

relatives of the appellant nor they were physically present

during the said incidents. They deposed that they came to

know about the incidents from PW.1. The respondent has

neither placed any medical records nor examined any

Doctor. Therefore, in the absence of any such evidence, it

would be difficult to believe oral testimony of PWs.1 to 5.

The Family Court has erred in its finding relating to

suicide.

14. Insofar as the second instance of alleged attempt to

suicide by the appellant in November 2003 by hanging

over the ceiling Fan in the quarters, the respondent has

neither examined any independent witnesses nor

examined his parents to substantiate the said allegation.

The finding of the Family Court that the Director of his

organization and his wife and others have visited their

house and counselled the appellant is erroneous. The

respondent has failed to examine the persons who have

counselled the appellant, and in the absence of testimony

of independent witness it cannot be held that the appellant

has attempted for suicide. The assertion of the

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MFA No.7606 of 2016

respondent that she was in habit of attempting to commit

suicide is unfounded, in the absence of any cogent and

acceptable evidence. It is admitted that the respondent

has neither given any police complaint, nor has taken the

appellant to any hospital for providing treatment and in

the absence of any such evidence to substantiate the

allegation of attempt to commit suicide, it can be fairly

said that the respondent failed to prove the ground of

cruelty.

15. The respondent has asserted that the appellant has

deserted the respondent in the month of December 2003

and there is no conjugal relationship between them. It is

not disputed that the appellant has left the matrimonial

home in the month of December 2003, however, in her

evidence she has clearly stated that it is respondent who

has requested the appellant to stay with her parents and

he has dropped her. RW.1 in her evidence has clearly

deposed that the respondent used to visit the appellant

and her child constantly and the respondent has taken the

appellant and the child to Goa, Chennai and Mysore, and

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MFA No.7606 of 2016

they used to meet frequently. The said statement is

supported by contents of the text messages produced and

marked as Ex.R1. The respondent has neither cross-

examined the appellant on this statement nor denied the

contents of Ex.R1. The oral testimony of the respondent

and the contents of the Ex.R1 clearly demonstrates that

they were not residing together under the one roof and

used to meet frequently and there was no intention of the

parties to end the co-habitation permanently. The Family

Court has not considered these aspects in its proper

perspective resulting in erroneous finding. To prove the

ground of cruelty, party is required to lay proper

foundation by way of pleading and substantiate the same

by cogent and acceptable evidence. To constitute cruelty

the conduct of party should be 'grave and weighty' so as

to come to the definite conclusion that a spouse cannot be

reasonably expected to live with other spouse. In the

instant case the respondent has made vague assertion of

cruelty and desertion without substantiating the same.

The allegations are nothing but instances of usual wear

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MFA No.7606 of 2016

and tear in matrimonial life. The mere allegations of

mental cruelty do not establish the factum of cruelty, as it

is not supported with admissible evidence. In the absence

of any such material we are of the opinion that the

respondent has failed to prove the ground of cruelty and

desertion to seek decree of dissolution of marriage.

16. For the aforementioned reasons the impugned

judgment and decree dated 3.10.2016 is set aside.

In the result the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: DMN