Karnataka High Court
Shiva Kumar R vs Smt Savitha Rani M N on 19 April, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MFA NO.2062 OF 2021 (FC)
BETWEEN:
SHIVA KUMAR R,
NOW AGED ABOUT 42 YEARS,
S/O LATE G RUDRAPPA,
NOW RESIDING AT NO.930,
JSS STAFF QUARTERS,
SS NAGAR, MYSURU - 570 015
...APPELLANT
(BY SRI KRISHNAMURTHY G HASYAGAR, ADVOCATE)
AND:
SMT SAVITHA RANI M N,
D/O N NATARAJA,
NOW AGED ABOUT 38 YEARS
R/O NO.14, 1ST MAIN, 1ST CROSS,
ASHRITHA LAYOUT, MANASI NAGARA,
MYSURU - 570 019.
OFFICE ADDRESS:
SDA, JSS MAHAVIDYAPEETHA,
RAJENDRA CIRCLE, NEAR GUN HOUSE,
MYSURU - 570 004.
...RESPONDENT
(RESPONDENT IS SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, 1984 AGAINST THE JUDGMENT AND
AWARD DATED 22.01.2021 PASSED IN MC NO. 760/2019 ON
THE FILE OF THE III ADDITIONAL PRL. JUDGE, FAMILY COURT,
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MYSURU, DISMISSING THE PETITION FILED UNDER SECTION
13(1)(ia) OF HINDU MARRIAGE ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16TH APRIL, 2024 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, ANANT RAMANATH HEGDE J.,
PRONOUNCED THE FOLLOWING:
JUDGMENT
1. This appeal is by the petitioner/husband in M.C.
No.760/2019 on the file of III Additional Principal Judge,
Family Court at Mysore. His petition seeking dissolution of
marriage on the grounds of cruelty is dismissed by the
Family Court.
2. Admittedly, the marriage between the
appellant/husband and respondent/wife was solemnised
on 28.01.2007. On 26.01.2010, a son was born to the
couple.
3. The allegations levelled against the respondent
in the petition can be summarised as under.-
With an intention to give a good education to the son,
the appellant admitted his son to Crescent Castle Public
School at Ooty, the native place of the appellant where his
parents lived. The appellant states that the son was
under the care of his mother at Ooty as his father is a
differently abled person.
4. The respondent was not willing to shift from
Mysore to Ooty, and the respondent started harassing and
torturing the appellant and insisted that the son be
admitted to a school in Mysore. At the insistence of the
respondent, the son of the appellant was admitted to the
school in Mysore.
5. The respondent had thyroid problem before her
marriage and the same was suppressed. The respondent
used to abuse appellant's mother in filthy language and
often threatened to commit suicide. The respondent
mentally tortured the appellant by not allowing his mother
in the house. Four years prior to the filing of the petition,
the respondent did not cook the food and he was made to
eat the food outside his home.
6. A criminal case in criminal case No.216/2014
was filed against the appellant making false allegations
against him and the appellant had to obtain anticipatory
bail and later the police filed a B report. The respondent
used to visit his workplace and abuse the appellant in the
presence of the other employees and made false
complaints against the appellant to his higher officials. The
appellant alleged that the act of the respondent lowered
his reputation in the estimation of his colleagues in his
workplace.
7. It is further stated that the appellant had filed
a petition seeking dissolution of marriage and when the
petition went for trial and evidence was partly recorded,
the well-wishers intervened and asked the appellant to
wait for a few days before proceeding with the petition.
Said petition was dismissed for non-prosecution on
27.02.2018. After the dismissal of the petition, the
respondent continued with her old habits and the appellant
was harassed and neglected. The appellant further alleged
that he heard from his acquaintances that the respondent
was moving with one of her male colleagues and he has
reasons to suspect her fidelity. He also claimed that he had
paid Rs.3 lakhs to one Dinesh towards discharge of loan
availed by his father-in-law from said Dinesh. The father of
the respondent later returned Rs. 3 lakhs to the appellant
and the respondent filed a complaint stating that the
appellant had demanded Rs. 3 lakhs from her father and
after investigation, the police filed a B report.
8. It is further stated that the appellant is not in a
position to lead a life with the respondent and is not in a
position to bear the mental cruelty inflicted by the
respondent. The appellant further states that he has
complied with the order for maintenance passed in the
petitions filed on behalf of his son and he is not in arrears
of maintenance ordered in favour of his son.
9. The respondent has contested the petition. The
respondent claims that the appellant has failed to
discharge his marital obligations and he's not taking care
of the respondent and her son. The petition is filed only to
harass the respondent and to escape from his obligations
arising from the matrimonial relationship. The appellant
and respondent led a happy married life for seven years
after the marriage and thereafter the appellant started
harassing the respondent both mentally and physically and
he ignored the needs of the respondent and her son. He is
addicted to alcohol. The appellant is having an illicit
relationship with a person by name Padma who is working
as a staff nurse at a college for which the petitioner is
working. On being enquired by the respondent, about his
relationship with her, the appellant has turned violent and
is threatening the respondent with dire consequences.
10. The respondent alleged that the appellant in
collusion with the landlady under whom he was a tenant
ensured that a petition was filed for eviction and the said
petition ended in a compromise and in terms of the
compromise the appellant and respondent were required
to vacate the premises before 4th July 2018. It is further
contention that the respondent had to look for some other
residence which made her to incur expenses. The
appellant has failed to pay Rs. 5000 per month awarded
as the maintenance and the respondent had to file
petitions to recover the arrears of maintenance. It is
stated that the respondent has challenged the B report on
her complaint. It is also the contention that the
respondent filed criminal miscellaneous No.258/2018
seeking maintenance and the said petition was referred to
Lok adalat and the respondent waived her claim for
maintenance subject to the condition that the appellant
will bear half of the educational expenses of the son. It is
alleged that the appellant is a defaulter.
11. Before the Family Court, the appellant is
examined as PW-1 and the respondent examined as RW-
1. The Family Court has dismissed the petition.
12. Aggrieved by the aforementioned judgment and
decree the petitioner is in appeal.
13. Respondent, though served is not represented
in this appeal.
14. It is the submission of the learned counsel
appearing for the appellant that the Family Court failed to
take note of the serious allegation of illicit relationship by
appellant. It is a submission that the allegation is baseless
and this itself is sufficient to hold that the wife has inflicted
cruelty on the husband. He would further submit that the
allegation is levelled in a police complaint and the police
have filed B report. The allegation is not established and
the Family Court ought to have held that the appellant has
made out a case for dissolution of marriage on the ground
of cruelty as the baseless allegation relating to the
character of the appellant amounts to cruelty.
15. It is further submitted that the respondent has
neglected the appellant and she has kept the appellant's
son away from him and appellant is deprived of his son's
company.
16. It is also submitted that the appellant has got
all the concern for his son and he has been paying the
educational expenses and the maintenance ordered even
though the appellant and the son are not allowed to meet
each other. It is further urged that the appellant has also
filed an affidavit before this Court where the appellant has
undertaken to bear the educational expenses and has also
narrated how much amount he has paid towards the
educational expenses of his son who is not staying with
him. It is also his contention that the marriage between
the parties has irretrievably broken down and the parties
have been staying apart since 2015 and there is no chance
of reunion and he is not expected to live with the
respondent given the fact that the respondent is
suspecting his fidelity.
17. This Court has considered the contentions
raised at the bar and also produced the judgment at the
records.
18. The following point arises for consideration:
i. Whether the appellant has made out
the case for dissolution of marriage under
Section 13(1)(ia) of the Hindu Marriage Act,
1955.
19. It is seen from the judgment and decree that
the Family Court has concluded that the appellant has not
proved his allegation relating to cruelty. However, it has
come in evidence that the parties have been residing
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separately since 2015. It is also borne out from the
complaint lodged by the respondent which is marked as
Exhibit P7 that the respondent has alleged that her
husband is having an illicit relationship with one lady by
the name of Poornima who is said to be working in the
office where the appellant is working. However, this
allegation is not established. The police filed a B report on
the complaint filed by the respondent/wife. The
respondent claims that she has filed an objection to the
said report and it is admitted by the appellant in the cross-
examination that the objection to the B report is still
pending consideration. Since the respondent is not
presented before this Court, it is not forthcoming from the
records as to whether the said objection to the B report is
still pending consideration by the Court.
20. This Court is conscious of the fact that the
appellant has also suspected the character of his wife in
his petition. However, prior to the petition, no such
allegation is made. The allegation made in the petition
suspecting the fidelity of his wife without naming any
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person. The allegation made by the appellant against his
wife if not proved may also constitute a ground for the
respondent wife to seek dissolution of marriage. However
that by itself will not neutralise the allegation made in the
complaint against the husband and the cause of action to
seek dissolution of marriage on the ground of cruelty is
not extinguished. The false allegation in the police
complaint certainly may constitute a ground for cruelty.
21. It is evident from the evidence placed before
the Court that the allegation levelled against the husband
is not established. The complaint is lodged prior to the
filing of the petition seeking dissolution of marriage. The
allegation levelled is a serious allegation on the character
of the husband. The allegation is that the husband is
having an illicit relationship with his colleague. The
appellant has stated in his examination-in-chief that the
wife visits his workplace and insults him in the presence of
colleagues and that she complains about the husband
before his higher officials. This evidence in the
examination-in-chief is not disputed in the cross-
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examination. This being the position this Court is of the
view that the claim of the appellant that he is subjected to
mental cruelty on account of the false allegation of illicit
relationship against him is established. This aspect of the
matter is completely overlooked by the Family Court.
22. It is further forthcoming from evidence on
record that the appellant has undergone a piles surgery.
The respondent/wife has pleaded ignorance about the
surgery and admission of the appellant to the hospital. The
fact that the appellant has undergone surgery and was
admitted to the hospital is borne out from the records.
This also would lead to the conclusion that the respondent
has no concern for the husband's health even when he was
not keeping well and needed the wife's attention. The
claim of the respondent that she is totally ignorant of the
surgery undergone by the appellant itself would indicate a
big rift between the husband and the respondent and the
respondent was not with the appellant when he needed
her company and assistance.
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23. It is also forthcoming from the records that the
appellant's son was admitted to the school in Ooty.
Admittedly, Ooty is the appellant's native place. Within a
month after his admission, the son is admitted to a school
in Mysore. Thus, it is apparent that the respondent is not
willing to stay in Ooty where the appellant wanted to
reside along with his parents. It is also forthcoming that
the appellant's father is a differently abled person. This is
one of the reasons why the appellant wanted to stay in
Ooty. The respondent who is employed in Mysore is not
interested in joining the appellant in Ooty.
24. On overall appreciation of the materials on
record by applying the test of preponderance of probability
that the appellant is insisting on settling in Ooty with his
parents and the respondent who was born and raised in
Mysore is not willing to stay in Ooty after giving up her
job.
25. These are the aspects that have been
completely ignored by the Family Court. The Family Court
has concluded that the appellant has received financial
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assistance from the father of the respondent and the
appellant has neglected his son. Although it is evident that
the son is now staying with the mother/respondent it is
also forthcoming that the father had filed a petition
seeking custody of his son and that petition ended in a
compromise. From the terms of the settlement, it is
apparent that the appellant and the respondent agreed
that the respondent will have custody and the appellant
will share the educational expenses of the son till he
attains majority.
26. Thus, it is apparent that the issue relating to
the maintenance and the decision on the custody of the
son is mutually agreed upon by the appellant and the
respondent. Even if it is assumed that the appellant has
failed to discharge his obligation towards the son that
cannot be a ground to deny the relief of divorce if the
husband is able to establish the ground of cruelty against
his wife. The Family Court by holding that the appellant
has neglected his son has concluded that the appellant is
not entitled to the relief of dissolution of marriage. This
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Court is of the view that the approach of the Family Court
is untenable.
27. It is also noticed that the Family Court has
taken exception to the conduct of the appellant filing a
petition seeking divorce after one and half years of
dismissal of his earlier petition which was dismissed for
non-prosecution. The Family Court has observed that the
appellant could have sought for restoration of the petition
dismissed for non-prosecution. The cause of action for
dissolution of marriage on the ground of cruelty is a
recurring cause of action. There is no legal bar for filing
another petition seeking dissolution of marriage if the
earlier petition is dismissed for non-prosecution.
28. The learned counsel has filed an affidavit of the
appellant. In the said affidavit dated 16.04.2024 the
appellant has undertaken to pay the maintenance towards
his son till he attains majority and has also undertaken to
bear 50% of the educational expenses. The affidavit is
placed on record and the appellant is bound by the
undertaking.
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29. Since this Court has concluded that the
appellant has made out a case for dissolution of marriage
on the ground of cruelty, the impugned judgment and
decree passed by the Family Court are set aside.
30. Hence, the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree dated 22.01.2021
passed by the III Additional Principal Judge,
Family Court at Mysuru are set aside.
(iii) The petition seeking dissolution of marriage filed
by the husband under Section 13(1)(ia) of Hindu
Marriage Act, 1955 is allowed.
(iv) The marriage of the appellant and the
respondent solemnised on 28.01.2007 is
dissolved by a decree of divorce.
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(v) The appellant is bound by the undertaking
submitted before this Court in terms of the
affidavit dated 16.04.2024.
(vi) The undertaking given by the appellant should
not be construed as the finding of this Court on
the entitlement of his son Vibhav S Kumar. In
case the son Vaibhav S Kumar or anyone on his
behalf seeks a higher maintenance same shall be
considered in accordance with law without being
influenced by the observations made by this
Court on the said affidavit.
Sd/-
JUDGE
Sd/-
JUDGE
GVP
