Smt T Thirumala vs Sri Venkata Subbaiah
2023 Latest Caselaw 6890 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 03RD DAY OF OCTOBER, 2023
                       PRESENT
         THE HON'BLE MR. JUSTICE G.NARENDAR
                          AND
      THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
              M.F.A. NO.1957 OF 2019 (FC)

BETWEEN

SMT. T. THIRUMALA
W/O VENKATA SUBBAIAH
AGED ABOUT 45 YEARS
RESIDING AT QUARTERS # C-175
NOTE MUDRAN NAGAR
MYSORES.
                                             ...APPELLANT
(BY SRI. SREERANGA SWAMY C, ADV.,)

AND

SRI. VENKATA SUBBAIAH
S/O LATE T. SUBBAIAH
AGED ABOUT 46 YEARS
WORKING AT I.W. GRADE-5
BRBNMPL, MYSORE.
                                            ...RESPONDENT

(BY SRI. RAMAKRISHNA HEGDE, ADV., FOR C/R)

     THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, 1984 READ WITH SECTION 28 OF THE
HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND
DECREE DATED 01/02/2019, PASSED IN MC. NO.240/2016,
ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE,
FAMILY COURT, MYSURU, PARTLY ALLOWING THE PETITION
FILED U/SEC.13(1)(ia) OF HINDU MARRIAGE ACT.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
20.09.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:
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                         JUDGMENT

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

Courts Act, 1984 by the appellant - wife against the

judgment and decree dated 01.02.2019 passed in

M.C.No.240/2016 by the II Addl. Prl. Family Court, Mysore

wherein the petition filed by respondent - husband under

Section 13(1)(ia) of the Hindu Marriage Act, 1955 was

allowed.

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

the marriage between the appellant and the respondent was

solemnized on 20.03.1998 at Kadapa, Andhra Pradesh.

Thereafter, the appellant started living with the respondent

at Mysore and out of the wedlock, two sons were born. It is

averred that the appellant was not cordial with the

respondent from the beginning and she used to take the

entire salary of the appellant - husband and used to send

the said amount to her brother O.Venkatasubbaiah on

assurance that the said O.Venkatasubbaiah will provide a

site to appellant at her native place. It is averred that

whenever the respondent questions about the money, she

used to quarrel with him and she used to threaten him with

dire consequences on the strength of her brother. It is

further averred that the appellant used to ill-treat the

respondent, never showed love and affection towards the

respondent and children, the appellant has spoiled the

reputation of the respondent by quarrelling with the

neighbours and by indulging in money lending business, the

appellant has lodged false complaint against one of the

neighbours before the Metagalli police and similar 5-6

complaints have been filed against the respondent. It is also

submitted that the appellant has failed to provide food at

home and she has conspired with her brother on 10.02.2016

and threatened the respondent over the phone to kill him.

On questioning the act of the appellant, the appellant has

thrown out the respondent from official quarters which was

allotted to him by lodging false complaint against him of

alleged assault. It is pleaded that the appellant and the

respondent are residing separately since the said incident

and the respondent is paying monthly maintenance to the

appellant and rent of the official quarters. It is pleaded that

on 23.03.2016 he got issued legal notice calling upon the

appellant to give consent divorce, she refused to receive the

said notice. Hence, the appellant filed petition on the

ground of cruelty and desertion.

3. The appellant has entered appearance before the

Family Court and filed statement of objections by admitting

the solemnization of marriage and birth of two children.

However, she has denied the allegation of ill-treatment and

cruelty. It is submitted that the appellant has discharged

her marital obligation for 3 years and after her complaint

dated 10.02.2016, a panchayat was convened on 11.02.2016

in the presence of elders wherein the respondent agreed to

pay maintenance of Rs.15,000/- to the appellant and the

petitioner has been residing separately. However, he has

paid maintenance only for a period of two months. Hence,

she has filed another complaint on 23.04.2016 which is

registered as Crime No.71/2016 for the offences under

Section 498A and 307 of Indian Penal Code. It is further

submitted that the respondent used to harass the appellant

and during the second pregnancy in May 2000, she had

been to her parents house, the respondent humiliated the

appellant by writing letter to her parents abusing her in

filthy language and in November 2003, the respondent

leaked LPG with a view to kill her and the respondent's

neighbour Subramanya assaulted the appellant's children

on 07.12.2014 and even for such act, the respondent and

his mother have threatened the appellant with dire

consequences which has compelled her to compromise the

matter. It is also averred that when the appellant went for

summer holidays along with children to her parents' house,

on their return to quarters the respondent made them to

stand outside for long which caused mental agony and

humiliation at the hands of the respondent. It is pleaded

that in the month of May 2008, the respondent has picked

up a quarrel with the appellant, poked his right thumb into

her eye and similar incident had taken place when they were

traveling to Bangalore by train, the respondent left the

appellant and children on the railway platform and went

away which has humiliated the appellant and was compelled

to pay a fine of Rs.1,500/- to the ticket collector. It is

further pleaded that similar incident has taken place on

18.05.2015 when the respondent has abused the children

without any reason. It is also pleaded that on 04.01.2016

the respondent bit her fingers in an attempt to kill her and

on 18.01.2016 the respondent has tried to throttle her neck,

on 20.01.2016 when the appellant was sleeping, he tried to

smoother her with a pillow and on 28.03.2016 respondent

left quarters No.175 with all his belongings. On trying to

contact the respondent over the phone, he has abused the

appellant in filthy language and used to threaten her to kill.

4. The Family Court, based on pleadings, framed the

issues and recorded the evidence of the parties. The

appellant examined herself as RW-1 and exhibited, Ex.R1 to

R8. The respondent examined himself as PW-1 and

exhibited Ex.P1 to P43. The Family Court, by judgment

dated 01.02.2019, inter alia held that the petitioner has

proved the grounds of cruelty and he has failed to prove the

grounds of desertion and dissolved the marriage between the

parties. In the aforesaid factual background, this appeal

has been filed.

5. Sri.Sreeranga Swamy C., learned counsel for the

appellant submits that the Family Court has committed

grave error in allowing the petition filed by the respondent-

husband on the ground of cruelty. It is submitted that the

Family Court has not considered the evidence adduced by

the appellant in its proper perspective nor it has appreciated

the documentary evidence placed before it. The Family Court

has failed to consider the allegations of cruelty made by the

appellant against the respondent, the respondent has failed

to adduce the evidence of his mother who was staying with

the respondent and non-adducing the evidence of the

mother clearly establishes that the allegations of cruelty

pleaded by the respondent-husband are without any basis.

The Family Court ought to have appreciated the fact that the

specific instance of cruelty is pleaded by the appellant that

when the appellant, respondent and children were traveling

from Mysuru to Bengaluru and the respondent left the

appellant and the children on the railway platform without

giving them ticket, which has humiliated the appellant and

made her to pay fine of Rs.1,500/- to the railway authorities,

these acts of the respondent have not been properly

appreciated by the Family Court. It is further submitted that

the respondent used to lend money on interest to his

colleagues and friends and when the dispute arose on the

issue of interest and recovery, the respondent used to put

blame on the appellant stating that she used to do the

finance business, which has been clearly deposed by the

appellant in her evidence, however the Family Court has not

considered the same.

6. It is also pleaded that the misunderstanding

between the parties arose when the appellant filed complaint

at Metagalli police wherein the respondent has agreed to pay

monthly maintenance of Rs.15,000/- as he is drawing salary

of Rs.85,295/-. However, the respondent has stopped paying

the maintenance after two months. The respondent has

insisted for fee receipts of the children for reimbursement

and always in the habit of saying that he does not have any

money. These aspects have not been properly appreciated by

the Family Court which resulted in allowing the petition.

Learned counsel for the appellant submits that he has filed

an application under Order XLI Rule 27(aa) of CPC seeking

to produce additional documents in the appeal by

contending that those documents were not in the custody of

the appellant at the time of filing the appeal nor at the time

of filing the written statement before the Family Court.

Hence, he seeks to allow the said application by taking the

documents on record. It is submitted that the additional

documents are the wound certificate of the appellant dated

04.01.2016, 14.05.2017, complaint dated 06.12.2004, copy

of the charge sheet dated 22.12.2004, certified copy of the

deposition of the respondent in STC No.89/2005 on the file

of Addl. Judicial Magistrate of I Class, Kadapa and certified

copy of the judgment in STC No.89/2005 and submits that

these are the documents which clearly establishes that the

respondent has inflicted cruelty on the appellant. Learned

counsel for the appellant - wife submits that the Trial Court

has committed error in not granting permanent alimony to

the appellant while allowing the petition filed by respondent

for dissolution of marriage. Hence, he seeks to allow the

appeal filed by the appellant-wife.

7. Per contra, Sri.Ramakrishna Hegde, learned counsel

appearing for the respondent-husband supports the

impugned judgment and decree and submits that the

appellant has led married life with the respondent few years

only and the appellant was in the habit of grabbing the

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entire salary of the respondent and used to send the said

amount to her brother and her brother has collected more

than Rs.19.00 lakhs from the respondent stating that he

would get residential site at his native place and when the

respondent questioned the appellant about the money, the

appellant and her brother used to threaten the respondent

with dire consequences. It is submitted that the appellant

was in the habit of quarreling with neighbours and she has

filed numerous false complaints against the neighbours

which has resulted in humiliation to the respondent. The

appellant has not performed her duties as dutiful wife and

on 10.02.2016 the appellant made a telephonic conversation

with her brother and both have planned to kill the

respondent for getting the financial benefits and to get rid of

him.

8. It is further submitted that the appellant has lodged

false complaint against the respondent alleging that the

respondent has assaulted the appellant and as per the

advice of the police, the respondent has started living

separately from the appellant and agreed to pay the

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maintenance which he is paying regularly. It is also

submitted that due to illegal treatment of the appellant, the

respondent has suffered mental agony, caused frustration

and damaged his reputation in the public and the appellant

has not allowed the respondent to visit the children, she has

not only spoiled reputation of respondent but the future of

the children. It is submitted that the appellant has not

sought any permanent alimony before the Family Court

however, granting the same in this appeal would not arise.

It is pleaded that the respondent has placed the cogent and

acceptable evidence before the Family Court to prove the

cruelty which has been properly appreciated and the decree

of divorce has been granted on the ground of cruelty which

does not call for any interference in the present appeal.

9. We have heard learned counsel for the appellant,

learned counsel for the respondent, perused the appeal

papers and the trial Court records.

10. The parties to the proceedings do not dispute that

their marriage was solemnized on 20.03.1998 in Kadapa,

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Andhra Pradesh and they have two children. It is not in

dispute that the respondent - husband is working as an

employee in Reserve Bank of India and parties have started

residing separately from February 2016. The appellant is

residing in the official quarters allotted to the respondent -

husband. The allegations of cruelty alleged by the

respondent - husband are that the brother of the appellant

had filed complaint against the respondent's colleague

Satyanarayana for dishonour of Cheque which has resulted

in conviction. The said act of the appellant has caused

humiliation. The appellant - wife has transferred money to

her brother from time to time as per Ex.P20 without the

consent of the respondent - husband. The allegation that

the appellant had filed a complaint with the superior officers

of RBI with a request to stall the respondent's promotion,

the appellant had an habit of filing false and vexatious

complaint against the neighbour alleging that he has tried to

outrage her modesty and later the said complaint was

withdrawn and the allegation that appellant has not

performed the duties as a dutiful wife and never taken care

of the respondent - husband and children by providing food

to them. It is averred that the appellant has started living

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separately from February 2016. However, on 14.05.2017,

the appellant along with the children went to the house of

the respondent and quarreled with him and assaulted his

aged mother which has caused mental cruelty on the

respondent. Ex.P5 eviction notice issued by the employer of

the respondent dated 15.12.2004 makes a reference of the

incident occurred on 06.12.2004 at the residential quarters

and directed the respondent to vacate the possession of the

quarters within one month failing which they would initiate

disciplinary proceedings for misconduct. The respondent

has replied to the said notice at Ex.P6 expressing his

apologies to the employer for the incident occurred on

06.11.2004 and requested to withdraw the eviction notice.

The employer of the respondent has issued the notice to the

respondent as the appellant had quarreled and created

ruckus with the neighbours. Ex.P7 is a warning notice

issued by the employer of the respondent informing him that

they have accepted the apology on the assurance that there

will not be any prejudicial act to affect the interest of the

neighbours.

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11. On close scrutiny of the pleadings, evidence and

the exhibits referred supra, it is evident that the appellant

was indulged in money lending business with the

neighbours, and she used to pick up quarrel with regard to

collection of interest which has resulted in filing of

complaint against the neighbours falsely alleging that

neighbour has attempted to outrage her modesty. The said

act of the appellant has caused severe damage to the

reputation of the respondent in his work place and in the

RBI township. This Court is of the considered view, such an

act of the appellant amounts to mental cruelty on the

respondent. The appellant has admitted that she has filed

complaints against the respondent on 10.02.2016 and

23.04.2016. Admittedly the respondent has left the official

quarters and started living separately along with his mother

from 11.02.2016. The said complaints are frivolous which

has ended without taking any action against the respondent

- husband. The evidence on record clearly establishes that

the appellant was a quarrelsome woman and she used to

pick up quarrel with the neighbours and also with the

respondent - husband and was of the habit of filing false

and vexatious complaint against them in the police station.

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

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

'K.SRINIVAS RAO v. D.A.DEEPA' (2013) 5 SCC 226 has

held as under:

"Thus, to the instances illustrative of mental cruelty noted in Samar 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."

The Hon'ble Supreme Court in 'JOYDEEP MAJUMDAR

v. BHARTI JAISWAL MAJUMDAR' (2021) 3 SCC 742 has

held as under:

"Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnisation of the marriage,

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treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term "cruelty". Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental."

13. Keeping in mind the enunciation of law laid down

by the Hon'ble Supreme Court, in the case on hand, the

appellant has caused mental cruelty to the respondent -

husband, by making reckless allegation against him, that he

has attempted to kill her, which has caused mental cruelty

to her. The allegations are not substantiated with any

evidence before the Family Court. Making the reckless

allegation without substantiating the same would amount to

mental cruelty to the respondent - husband. It is admitted

that the appellant - wife has initiated criminal proceedings

against the respondent - husband on 23.04.2016 alleging

the offences punishable under Sections 498A and 307 of

IPC. Admittedly, the said complaint is filed after the

respondent - husband started living separately. The said act

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of filing the complaint subsequently alleging the cruelty, and

alleging the attempt to murder are the serious allegations

which has caused humiliation and mental harassment to

the respondent - husband. The appellant has further

specifically asserted that the respondent - husband is living

with one Sumathi by marrying her. However, the appellant

has not substantiated the said allegation by placing proper

evidence before the Family Court. The allegation of marrying

Sumathi is a serious allegation made with an intention to

harm the reputation of the respondent - husband knowing

fully well that the respondent - husband is working in West

Bengal and residing there along with his aged mother. The

appellant has initiated proceedings under the provisions of

Domestic Violence Act against the respondent - husband,

his mother and one Sumathi by making reckless allegation

against them. The aforesaid acts of the appellant clearly

demonstrates that the appellant has inflicted mental cruelty

on the respondent - husband continuously by initiating

various proceedings against him. The appellant has made

an attempt of producing the additional evidence in this

proceedings. On careful scrutiny of the documents enclosed

along with the application filed under Order XLI Rule 27(aa)

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of the Code of Civil Procedure, 1908 and the averments

made therein. It appears that the appellant is trying to

improve her case by way of additional evidence. The

documents enclosed along with the application were very

much available to be placed before the Family Court and no

explanation whatsoever is forthcoming from the affidavit

accompanying the application for non-production of the

documents before the Family Court. Hence, the said

application is devoid of merit. Accordingly, it is rejected.

14. The contention of the learned counsel for the

appellant that Family Court has committed an error in not

granting permanent alimony has no merit consideration, as

no claim for permanent alimony was made by the appellant

before the Family Court. The prayer of the appellant to

grant permanent alimony to the appellant in the present

appeal is also required to be rejected on the sole ground that

the appellant has not placed any material evidence to

determine permanent alimony. It is open for the appellant

to initiate appropriate proceeding seeking for permanent

alimony if so advised.

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15. The Family Court has recorded a detailed finding

on the allegations of cruelty after appreciating the evidence

on record, has come to the conclusion that the respondent -

husband has proved the grounds of cruelty and proceeded to

dissolve the marriage. This Court do not find any error or

infirmity in the finding recorded by the Family Court calling

for interference in this appeal.

16. For the aforementioned reasons, we do not find any

merit in this appeal.

Accordingly, the appeal is rejected.

17. In view of dismissal of the appeal, the pending

interlocutory applications do not survive for consideration

and are accordingly disposed of.

Sd/-

JUDGE

Sd/-

JUDGE RV/BSR