Karnataka High Court

Sri Chandrashekara B T vs Smt. Rajini H J on 26 July, 2024

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                                                          MFA No.98/2021
                                                      C/W MFA No.96/2021


                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 26TH DAY OF JULY, 2024
                                           PRESENT
                        THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                             AND
                     THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
                    MISCELLANEOUS FIRST APPEAL NO.98/2021 (FC)
                                      C/W
                    MISCELLANEOUS FIRST APPEAL NO.96/2021 (FC)

                 BETWEEN:

                 SRI CHANDRASHEKARA B T
                 S/O LATE SRI THIMMAPPA B T
                 AGED ABOUT 37 YEARS
                 R/AT NO.109, PURPLE GARDEN
                 APTS, VENKATESHPURA, JAKKUR POST
                 BENGALURU - 560 077                           ...APPELLANT
                                                                (COMMON)
                 (BY SRI.AKARSH KANADE ADVOCATE A/W
                     SMT.BIRI MARY, ADVOCATE)

                 AND:

                 SMT RAJINI H J
Digitally        D/O JAYASHEELA H
signed by K S
RENUKAMBA        AGED ABOUT 34 YEARS
Location: High   R/AT NO.32, 4TH FLOOR
Court of         KEMPAIAH BLOCK
Karnataka        1ST CROSS, ARAMANENAGAR
                 BENGALURU - 560 003                         ...RESPONDENT
                                                               (COMMON)
                 (PARTY-IN-PERSON)

                      M.F.A. NO.98/2021 IS FILED UNDER SECTION 19(1) OF THE
                 FAMILY COURTS ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
                 DECREE DATED 28.09.2020 PASSED IN MC NO.4772/2016 ON THE
                 FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, BENGALURU,
                 ALLOWING THE PETITION FILED UNDER SECTION 9 OF THE HINDU
                 MARRIAGE ACT, 1955.
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                                                MFA No.98/2021
                                            C/W MFA No.96/2021


      M.F.A. NO.96/2021 IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 28.09.2020 PASSED IN MC NO.1100/2015 ON THE
FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, BENGALURU,
DISMISSING THE PETITION FILED UNDER SECTION 13(1)(ia) OF THE
HINDU MARRIAGE ACT, 1955.

     THESE MISCELLANEOUS FIRST APPEALS HAVING BEEN
RESERVED FOR JUDGMENT ON 03.07.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, K.S.MUDAGAL. J., DELIVERED THE
FOLLOWING:


CORAM:    HON'BLE MRS JUSTICE K.S.MUDAGAL
          AND
          HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL


                        CAV JUDGMENT

(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

These two appeals arise out of the common judgment and

order/decree dated 28.09.2020 in M.C.Nos.1100/2015 and

4772/2016 passed by the Prl. Judge, Family Court, Bengaluru.

2. The appellant in these cases was the petitioner in

M.C.No.1100/2015 and respondent in M.C.No.4772/2016. The

respondent in these cases was the respondent in

M.C.No.1100/2015 and petitioner in M.C.No.4772/2016.

M.C.No.1100/2015 was filed by the appellant against the

respondent under Section 13(1)(ia) of Hindu Marriage Act,

1955 (for short 'the Act') seeking decree for dissolution of

marriage on the ground of cruelty. The present respondent

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filed MC No.4772/2016 against the appellant under Section 9 of

the Act seeking decree for restitution of conjugal rights.

3. The marriage of the appellant and respondent was

solemnized on 13.11.2011 at Unity Hall, Thirthahalli as per the

Hindu rights. The marriage was subsequently registered before

the Sub Registrar of Marriages, Sagar. During their conjugal

life the couple were blessed with a son by name Vihan on

19.02.2013. Appellant is a Mechanical Engineer and at the

time of marriage was employed at Bengaluru. Subsequently he

is working in Pune. Respondent is a civil engineer. At the time

of marriage, she was also employed in Bengaluru.

4. In M.C.No.1100/2015 decree for dissolution of

marriage was sought alleging following acts of cruelty:

i) That the respondent was abuser since the beginning

of the marriage itself. Being the eldest son, the appellant had

the duty to help his parents and family. However, that was

disliked by the respondent. Whenever he helped his parents,

she used to become violent and assault him, abuse him, his

parents and family members in vulgar language. During nights

she used to shout at him hit, pinch and punch him.

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ii) In June 2012 he lost his father. Therefore, he used

to visit his mother regularly at Thirthahalli. That was also

objected by the respondent. She wanted the appellant to cut

all his connection with his mother and younger brother.

iii) After postnatal care respondent refused to return to

matrimonial home. However, after some time, she returned to

their house in Bengaluru posing several conditions. On the

request of his mother on 21.11.2013 the appellant rendered

financial assistance of Rs.2,00,000/- to his mother. On

learning about the same on 23.11.2013 during night the

respondent abused the appellant, in the fit of anger she

assaulted him with kitchen knife and fork on his head, shoulder

and back causing him severe injuries. On taking treatment in

K.C.General hospital, Bengaluru he filed complaint against her.

As a counter blast to the same, she filed complaint against him,

his brother and friend before the Vyalikaval Police Station.

Further she filed a false dowry harassment complaint before the

Halasurugate Women Police Station against the appellant, his

parents and relatives. She never treated him gracefully as a

spouse. Her conduct has subjected him to immense cruelty

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making it impossible to continue the marital life. Hence he be

granted decree for dissolution of marriage.

5. The respondent contested the petition denying the

allegations of cruelty and the instances alleged by him. She

claimed that at the time of marriage, cash of Rs.5,00,000/-,

gold chain, gold ring and bracelet were given to the appellant

as dowry. During her pregnancy also the appellant despite

having sufficient means neglected to take care of her. Four to

five months after marriage, the appellant at the instigation of

his brother, mother and maternal uncle subjected her to

physical and mental cruelty in connection with demand for

additional dowry. The appellant did not even meet the

domestic exigencies. The advise of elders did not yield any

result. The allegation of assault of 23.11.2013 was denied. It

was contended that when she did not yield to the demand of

the appellant for dowry of Rs.10,00,000/- the appellant himself

at the instigation of his mother and brother assaulted her

seriously. Since the child was sleeping she could not file the

complaint immediately. To overcome his misdeeds he filed the

complaint against her. After the incident he left home and did

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not return and deserted her and the child without any

reasonable cause. Hence she sought dismissal of the petition.

6. On the same grounds she filed MC No.4772/2016

seeking decree for restitution of conjugal rights and that

petition was opposed by the appellant reiterating the grounds

taken in M.C.No.1100/2015.

7. The Trial Court consolidated both the matters and

recorded common evidence in M.C.No.1100/2015. The

appellant was examined as PW.1 and on his behalf Exs.P1 to

P11 were marked. The respondent was examined as RW.1. On

her behalf Ex.R1 to R23 were marked. The trial Court on

hearing the parties by the impugned judgment and order

dismissed M.C.No.1100/2015 holding that the cruelty alleged

was not proved, allowed M.C.No.4772/2016 and ordered for

restitution of conjugal rights holding that the respondent has

proved that the appellant without reasonable excuse has

deserted her. Challenging the said judgment and decree, the

above appeals are filed.

8. Before this Court the parties have filed several

interim applications. Particulars of the pending applications are

as follows:

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Sl. IA No. Filed by Relief In MFA No.

1. IA Appellant/husband Grant of stay No.1/2020 of operation

judgment and decree

2. IA Respondent/wife Permanent No.1/2024 alimony of Rs.3.5 crore

3. IA Appellant/husband To summon No.2/2024 the Manager & HR of BBR Common India Pvt Ltd (MFA No.

4. IA Appellant/husband To summon C/W MFA No.3/2024 the Manager, No.96/2021) ICICI Bank to furnish the entire bank statement

Submissions of Sri Akarsh Kanade, learned counsel

for the appellant:

9. The Trial Court in appreciating the evidence

adopted the standard of proof of fact beyond reasonable doubt

expected of in criminal trial, whereas in civil cases the proof

required is preponderance of probability. The respondent in her

pleading itself admitted the injuries suffered by the appellant in

the incident dated 23.11.2013. But the Trial Court disbelieved

the injuries solely on the ground that wound certificate was not

proved. The Trial Court failed to note that the respondent

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claimed that they were self inflicted injuries. To overcome her

overt acts she filed complaint after 2 days against the

appellant, his brother and friend claiming that they were the

assailants. On trial they were acquitted. The Trial Court failed

to note that after filing such false complaint, the respondent

further implicated the appellant and his family members in

dowry harassment case, though her evidence itself shows that

the appellant had funded her and her family members on

several occasions. Such cases filed against the appellant and

his family members are being prolonged. Similarly, the Trial

Court committed error in finding loopholes in payment of

Rs.2,00,000/- to his mother just on the ground that the

account extracts etc were not produced. The tenor of the

defence of respondent itself shows that she alleged that the

appellant's brother was squandering money in serial

productions etc. The Trial Court's finding on condonation of

cruelty based on Exs.R1 to R10 is erroneous. Such photos were

taken for the sake of the son, that does not amount to

condonation of cruelty. So far as application for permanent

alimony, the respondent though gainfully employed has

suppressed her employment in the affidavit filed in support of

her claim. That goes to show that she stoops to any extent to

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make wrongful gain. To show that she is gainfully employed

the appellant has produced bank statement by way of

additional evidence. If the employer of the respondent and the

concerned bank are summoned, the truth comes to light. For

that purpose, the appellant has filed IA Nos.2 and 3 of 2024.

Such additional evidence is required for complete adjudication

of the matter. As the appellant had no access to those

documents and came to know about them during the pendency

of the appeal, those applications be allowed. With an intention

to harass the appellant, the respondent is approaching several

forums, viz., under the Protection of Women from Domestic

Violence Act, 2005 ('DV Act' for short), under Section 125

Cr.PC; by way of applications under Sections 24 and 25 of the

Act etc., though she could make all such claims in the

proceedings under Sections 24 and 25 of the Act. In different

courts different interim orders were passed. Based on that she

is filing execution petitions before several Courts driving him to

attend the Courts, hence his work is also being disrupted. If the

petition for divorce is dismissed, then permanent alimony

cannot be granted.

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10. In support of his submissions, he relies on the

following judgments:

         i)      Jayachandra vs. Aneel Kaur1

         ii)     Badri Prasad vs. Urmila Mahobiy2

Submissions of respondent/party in person:

11. The appellant failed to prove the grounds of cruelty

set up by him. Exs. R1 to R10 admitted by him show that even

during the pendency of the proceedings he was meeting her

and spending time with her. Therefore, the trial court was

justified in holding that he has condoned the cruelty. The

appellant, despite having sufficient means, has failed to pay

maintenance to the child and herself. She has no source of

income as she has given up her employment to look after the

child and to attend to all these cases. Despite she filing Ex.Case

No.111/2020 to execute the decree for restitution of conjugal

rights, he has not complied the same. But he challenges before

this court the interim maintenance awarded. Of late it is

discovered that the appellant's brother has conspired with some

other persons to commit her murder. Now it has become

(2005)2 SCC 22

AIR 2001 MP 106

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unsafe for her to live with the appellant. Thus she seeks

permanent alimony of Rs.3.5 crores. She opposes the

documents produced by way of additional evidence and

summoning of the witnesses.

12. On hearing both side and on examining the

materials on record, the questions that arise for consideration

are:

i) Whether the impugned judgment and order of

dismissal of the petition of the appellant for divorce and

granting decree to the respondent for restitution of conjugal

rights is sustainable?

ii) Whether the respondent is entitled to permanent

alimony of Rs.3.5 crores as claimed in IA No.1/2024?

iii) Whether IA Nos.2 and 3 of 2024 filed by the

appellant for adducing additional evidence deserve to be

allowed?

Analysis

13. There is no dispute that the marriage of the

appellant and respondent was solemnized on 13.11.2011

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according to the Hindu rights and they have a son born on

19.02.2013. It is also not disputed that in the year 2012, after

the marriage of the parties, the father of the appellant passed

away and the appellant has a widowed mother and younger

brother who reside in the village. It is also not disputed that on

24.11.2013 the appellant filed complaint as per Ex.P3 against

the respondent before Vyalikaval police alleging that on

23.11.2013 at 3.00 p.m. taking objection to payment of money

by him to his mother, respondent assaulted him with knife, fork

and caused injuries. Based on the said complaint, FIR Ex.P4

was registered for the offences punishable under Sections 324

and 506 of IPC. It is not disputed that after investigation, said

Police have filed chargesheet against the respondent for the

offences punishable under Sections 324 and 506 of IPC which is

pending in C.C No.32133/2014 before the VIII Additional Chief

Metropolitan Magistrate, Bangalore and she is facing trial in the

said case.

14. After the appellant filing the said complaint against

her, on 26.11.2013 i.e., after two days, the respondent filed

complaint as per Ex.P6 against the appellant, his younger

brother and friend before Vyalikaval Police. Based on the said

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complaint, said police registered FIR as per Ex.P7 and on

investigation filed charge sheet as per Ex.P8 against them for

the offences punishable under Sections 341, 323, 504, 506

read with Section 34 IPC. Learned VIII Additional Chief

Metropolitan Magistrate on taking cognizance registered the

said case in C.C. No.32150/2014 and on trial, by the judgment

dated 29.09.2022 acquitted the accused.

15. Soon after filing of the complaint Ex.P6, the

respondent on 18.12.2013 filed another complaint as per Ex.P9

against the appellant, his mother, younger brother, uncle and

his wife alleging dowry harassment. Based on the said

complaint, Halasurugate police registered FIR as per Ex.P10

against them and on investigation filed chargesheet as per

Ex.P11 for the offences punishable under Sections 498A and

506 of IPC and Sections 3 and 4 of the Dowry Prohibition Act,

1961. The said case was registered in C.C.No.20754/2014.

Both C.C.No.32133/2014 and C.C. No.20754/2014 are still

pending and appellant, his family members and friend are

facing trial in the said cases.

16. Further, respondent has filed complaint in Crl. Misc.

No.23/2014 before MMTC-II, Bengaluru against appellant under

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the provisions of the DV Act. In the said case Magistrate

awarded interim maintenance of Rs.5,000/-. Respondent

challenged that order before Fast Track Court, Bangalore City in

Crl.A.No.581/2014. The said appeal was allowed in part on

05.03.2015 enhancing the interim maintenance to Rs.20,000/-

per month. In M.C.No.1100/2015 on the application of the

respondent by order dated 21.03.2019, the Trial Court awarded

interim alimony of Rs.25,000/- per month in addition to

Rs.20,000/- awarded in the DV Act proceedings. That order was

confirmed by this Court on 24.07.2019 in W.P.No.15952/2019

filed by the appellant.

17. In addition to the above proceedings, on

18.12.2020 the respondent filed Crl.Misc.No.480/2020 against

the appellant under Section 125 Cr.PC before the Family Court

claiming maintenance of Rs.1,50,000/- per month for her and

litigation expenses of Rs.1,00,000/-. Respondent has filed

Execution Petition Nos.197/2023, 111/2020 before the Family

Court alleging that the arrears of maintenance is not paid. She

also filed Ex.Case No.213/2023 before the MMTC-II, Bengaluru

claiming that the interim maintenance awarded in DV Act

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proceedings is not paid. In the execution case, the warrants for

attachment of salary, non bailable warrants are being issued.

18. The above facts and circumstances go to show that

the parties are entrapped in a web of litigations. The appellant

sought decree of divorce on the ground that respondent has

subjected him to physical and mental cruelty, therefore it is

impossible for him to continue the marital life. The following

were the acts of cruelty alleged:

i) Respondent was contemptuous towards appellant,

his widowed mother and brother. She wanted to separate him

from them.

ii) She did not tolerate he lending financial assistance

to his mother, brother and on that ground she was employing

abusive language against them.

iii) Whenever he lends money to his mother, she was

assaulting him inside, outside house and in front of his

relatives.

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iv) She subjected him to cruelty by filing multiple

cases, false dowry harassment case and criminal cases against

him and his family members.

19. Respondent denied the same. Though the judgment

of the Trial Court runs into 70 pages, up to page No.44, it

consists of only repetition of the pleadings, arguments of the

Counsel on both sides and the judicial precedents referred to by

them. The reasoning of the Trial Court starts from page No.44

Para 22 of the judgment. The Trial Court has considered only

two grounds of cruelty alleged by the appellant. First one is

regarding respondent's reaction for the appellant transferring

Rs.2,00,000/- to his mother. Second one is regarding allegation

of assault by the respondent on 23.11.2013. The Trial Court

disbelieved the contention regarding transfer of the amount on

the ground that, at one breath appellant states that he

transferred the money to his mother and at another breath he

stated that he transferred money to the account of his younger

brother, but he has not produced any records like bank

statement or transfer details and in his complaint Ex.P3, he has

not stated about transfer of Rs.2,00,000/-.

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20. Trial Court disbelieved the incident dated

23.11.2013 on the ground that there was delay of 26 hours in

appellant filing the complaint, he had suffered simple injuries,

he did not produce the wound certificate and only produced the

photographs Ex.P5 (a to f), the Doctor who treated the

appellant has not registered the MLC case and FIR was not

registered on the medico legal intimation of the doctor. The

Trial Court further says that the appellant has not examined his

friend to corroborate his evidence. The Trial Court further

states that bloodstained clothes of the appellant and the photos

produced in this case were not seized by the Investigating

Officer.

21. The reading of the entire judgment shows that the

Trial Court proceeded with the matter as if it is sitting in trial in

CC No.32133/2014. In doing so, the Trial Court failed to note

that such observations prejudice the trial of the case in

C.C.No.32133/2014. Strangely, the Trial Court says that the

contents of the charge sheet have not been proved before it.

The Trial Court lost sight of the fact that degree of burden of

proof in civil cases and criminal cases are different. In criminal

case, prosecution is required to prove the charges beyond all

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reasonable doubts and burden of proof is heavy. Whereas in

the civil case, the party asserting certain facts has to lead

evidence to probabalise his contention and the evidence has to

be weighed on the principle of preponderance of probability.

Therefore, the Trial Court was required to see whether the

appellant had suffered such injuries at the given date, time and

place and whether he probabilised his case that such injuries

were inflicted by the respondent.

22. Respondent in para 36 of her statement of

objections itself contended that the appellant first assaulted her

and thereafter he inflicted injuries himself on his body and filed

a false complaint. She further claimed that due to the injuries

suffered by her, sensing threat to the life and limb of herself

and the child, she filed complaint in Crime No.224/2013. It is

settled position of law that admission in pleading has higher

evidentiary value. In the light of such admission in the pleading

about the appellant suffering injuries, the Trial Court was not

justified in disbelieving such injuries only on the ground that

MLC intimation was not given, the bloodstained clothes were

not seized etc. In such cases, burden shifted to the respondent

to prove that they were self inflicted injuries. But, there was

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not even any suggestion to PW.1 in his cross examination

stating that he inflicted those injuries on himself.

23. In para 36 of the objections, she claimed that the

appellant assaulted her. In her complaint Ex.P6, she implicated

the appellant, his brother and friend. Admittedly based on such

complaint, chargesheet was filed in the said case. The

appellant, his brother and friend were tried in CC

No.32150/2014 based on such charge sheet and acquitted on

29.09.2022. The copy of the said judgment is produced before

this Court. Since the same is between the parties interse and

not disputed, having regard to Sections 57 and 58 of the Indian

Evidence Act, 1872, the said document can be looked into.

Reading of the said judgment shows that the said Court held

that complaint was filed by the respondent as a counter blast to

the complaint of the appellant. Learned Magistrate even

disbelieved her version regarding dowry harassment, accused

Nos.2 and 3 criminally intimidating her and the appellant

assaulting her. In view of her admission regarding suffering

injuries, the photographs Ex.P5 (a to f) can be looked into.

Many of the injuries are found on the back of the shoulder and

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neck, it goes hard to accept that he could have inflicted those

injuries on himself.

24. So far as observation of the Trial Court that the

appellant has not proved the monetary transaction between

him and his mother, all along the case of the respondent is that

the appellant was harassing her at the instigation of his brother

and mother and secondly that all of them subjected her to

cruelty demanding dowry. In the cross examination of PW.1,

she suggests that his younger brother was spending huge

amount for making TV serial. That itself indicates that she was

watching the financial affairs of the appellant, his brother and

his parental family. In para 16 of the cross examination dated

07.02.2020 the respondent herself suggested to PW.1 that he

transferred Rs.2,00,000/- to his mother through the account of

his brother. She herself suggests that differences between

himself and the respondent started after transferring the said

amount. He denied that suggestion and volunteered that

differences were there from the beginning. She suggests to him

that he was suffering from Obsessive compulsive disorder

without any attempt to prove that, though those suggestions

were denied by him. Probably to overcome the incident of

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assault, she herself suggested to PW.1 that she has the

disorder of walking in the night. Under such circumstance,

conclusions of the Trial Court that clashes between the couple

due to transfer of money by the appellant for the benefit of his

mother was not proved, is contrary to respondent's own

suggestions.

25. The contention of the appellant is that the

respondent was always avaricious and expecting lavishness and

he gave her and her family members, money and jewellery,

etc., despite that she filed false dowry harassment case against

him and his family members. To substantiate that, he has

produced before this Court the depositions of the respondent in

Crl. Misc No.23/2014. Since said proceeding is between same

parties and not disputed, that can be looked into more

particularly as per Section 14 of the Family Courts Act the

Court can adopt its own procedure. In Page 18 of the said

deposition, to the suggestion that she was spending her salary

for her own purpose, respondent stated that she was depositing

that to her RD account and remaining amount she was

spending for the household. She admits that RD was of

Rs.2,00,000/-. To the suggestion that the appellant was

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depositing the amount in the RD account, she says sometimes

he used to deposit. She admitted the suggestion that the

appellant deposited Rs.1,60,000/- in the account of her elder

sister, but claimed that the appellant withdrew the said

amount. She did not prove the said contention. In pages 18

and 19 of the said deposition, she admitted that on 03.10.2012

the appellant deposited Rs.1,00,000/- to her account and on

10.11.2012 he deposited Rs.20,000/-. Though she claimed

that he took that back, there was no proof for the same. She

admitted that the appellant deposited in all Rs.6,16,500/- to

the accounts of herself, her elder sister and grandfather. But

claimed that such remittances were made for paying the site

value, tractor hiring charges, rent, water and electricity bill,

again without any proof for such contention. When she was

confronted with the bank statement to the effect that amounts

were transferred from the account of the appellant to her

account, though she admitted her name in such entries, later

evaded saying that unless she cross checks that with her

account, she cannot admit that. In page 22 and 23 of the

deposition when she was confronted with several payments,

she did not deny that but she evaded saying that she has to

cross verify. However, she admitted that on 03.10.2011 the

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appellant transmitted Rs.50,000/- and again Rs.50,000/-

through NEFT to her account. In her deposition dated

29.06.2022 she admits that the appellant has opened a

company in her name. In para 7 of the cross examination of

PW.1 in MC No.1100/2015 before the Trial Court, respondent

suggested to PW.1 that appellant voluntarily and happily paid

jewellery worth Rs.5,00,000/- to her. Such

payments/suggestions create doubt about the respondent's

allegation that the appellant and his family members subjected

her to cruelty, demanding dowry or additional dowry.

26. The appellant has also produced the order sheet

dated 02.11.2014 in Crl. Misc. No.23/2014. In that learned

MMTC II observed about the conduct of the respondent as

follows:

"When the petitioner was cross examined, she argued before the Court and she shouted at the Court in the board and after repeated warning, she continued to shout in the open Court. Hence, case was adjourned. She even refused to sign the cross examination. The same was witnessed by advocate by name Sri Devi Prasad. The signature is obtained in the order sheet. For further cross examination of

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PW.1 and memo of calculation from the respondent side, call on 26.12.2023."

If such is the conduct of the respondent before a Court of law,

one can imagine how she would have conducted with the

appellant within four walls of the house.

27. The above facts and circumstances go to show that

the respondent implicated the appellant, his brother and friend

in a case of assault by making false allegations. The above

discussed evidence further probabilizes the contention of the

appellant that the respondent has implicated him and his family

members in different cases, to derive sadistic pleasure. The

finding of the Trial Court that the allegations of cruelty were not

proved is totally unsustainable.

28. Another ground of rejection of petition for

dissolution of marriage is that the appellant has condoned the

cruelty, if any, by taking the respondent to several places as

shown in the photographs, Exs.R1 to R10. The basis for such

opinion of the Trial Court regarding condonation of cruelty is

deposition of PW.1. In para 20 of the cross examination, the

photos Exs.R1 to R8 were confronted to PW.1 and he admitted

that he is depicted in the said photographs with the respondent

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and his son, but he denied that he had taken respondent to

Ooty and Mysore for a trip. Though in para 21 of his cross

examination he admitted the photographs in Exs.R9 and R10,

he clearly stated that those photographs were taken soon after

the marriage of himself and the respondent. In para 20 and 21

of the cross examination he clearly denied the suggestion that

though he is interested to live with the respondent, at the

instigation of some other persons he has filed false case against

her.

29. It is to be noted that in none of the photographs in

Exs.R1 to R8 the appellant is found exclusively with the

respondent. It is the contention of the appellant that to spend

time with his child, he had to call the respondent and she used

to accompany the child. Therefore, those photographs cannot

be called as condonation of cruelty. Ex.R21 the call detail

records were produced to contend that the appellant was

frequently calling the respondent, therefore, there is

condonation of cruelty. Even in that regard in the cross

examination of RW.1 dated 13.03.2020 the appellant suggested

that he used to call the respondent to speak to the child. She

does not dispute the said suggestion, but she added that

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appellant also spoke to her. Respondent herself produced the

deposition of the appellant recorded in CC No.32133/2014

(Ex.R.22) which was recorded on 10.08.2018, 06.10.2018 and

23.11.2018. It is also not disputed that the appellant has not

withdrawn any of the criminal cases filed on his complaint. The

deposition Ex.R22 nowhere indicates that the appellant in any

way condoned the cruelty. Admittedly, the appellant has filed G

& WC No. 271/2023 before the Principal Judge, Family Court,

Bangalore seeking custody of the child. The aforesaid facts and

circumstances show that the appellant had the compulsion of

permitting the respondent to accompany him and the child for

the sake of facilitating his meeting with his son. Such acts

cannot be called condonation. An act of condonation, should be

out of freewill and intelligible acceptance. But the facts of this

case show that under the urge of meeting his son, he was

forced to permit the respondent to accompany them. The Trial

Court without appreciating the evidence holistically, jumped to

the conclusion that the photographs show the condonation of

cruelty as required under Section 23(1)(b) of the Act.

Condonation of cruelty presupposes that there was cruelty. The

Trial Court first holds that cruelty was not proved, then holds

that cruelty is condoned which is mutually contradictory.

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30. It is material to note that, if at all the respondent

wanted interim or permanent alimony, since the matrimonial

proceedings were pending, she could have sought consolidated

claim in the same case. But she goes on filing multiple

proceedings like under the DV Act, seeking maintenance and

execution petitions before different Courts etc. It is no doubt

true that when the law provides, the parties have the right to

seek remedies, but that should be bonafide. Approaching

multiple Courts for maintenance though there was scope to

seek maintenance in a consolidated way in the matrimonial

case itself, obviously shows that she wanted to drive the

appellant to run around several Courts at the cost of his

profession and personal life and that is the calculated acts of

cruelty. It is no doubt true that generally Courts are

compassionate towards women considering the fact that they

are more prone to exploitation. However, the Courts should

also take cognizance of the fact that good number of times pro-

woman laws are being misused to harass not only their spouses

but even their family members. In the light of the aforesaid

facts and circumstances, this Court has no hesitation to hold

that the respondent has subjected the appellant to cruelty

entitling him decree for divorce. Consequently, the decree of

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restitution does not sustain as appellant has sufficient reasons

to stay separately from the respondent on the ground of

cruelty.

31. The above discussed evidence goes to show that

within two years of marriage the appellant has faced great

turbulence in his life due to conduct of the respondent. The

appellant and his family members are dragged to the Court in

multiple cases, in one of which they were apparently acquitted.

Before this Court, the respondent produced certain records to

claim that the appellant and his brother conspired with other

persons to commit her murder and therefore criminal case is

registered. Though she claims that chargesheet is filed in that

case, only the copy of the FIR of Aldur Police Station,

Chikmagalur District is produced. Even in that FIR, the

appellant is not shown as the accused. Therefore, at this

stage, this Court only on the basis of respondent's contention

and FIR cannot jump to the conclusion that they are guilty of

such offences.

32. The Trial Court to grant decree of restitution of

conjugal rights states that appellant did not whisper anything in

his evidence to counter the allegations made in the said petition

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namely, MC No.4772/ 2016. The Trial Court itself consolidated

both the petitions and recorded the common evidence in MC

No.1100/2015. The allegations and counter allegations in both

the cases were common and they were addressed in the

affidavit in lieu of his chief examination. Therefore, the Trial

Court was patently incorrect in saying that the appellant did not

meet the allegations made in MC No.4772/2016 in his

evidence.

33. The Hon'ble Supreme Court in Jayachandra's case

referred to supra has held that the cruelty, a ground for

dissolution of marriage, though not defined in the Act, can be

defined as willful and unjustifiable conduct of such character as

to cause danger to life, limb or health, bodily or mental or as to

give rise to a reasonable apprehension of such danger. It was

also held that the question of mental cruelty has to be decided

in the light of the norms of marital ties of the particular society

to which the parties belong, their social values, status and

environment in which they live. It was held that cruelty is a

course or conduct of one, which is adversely affecting the

other. The cruelty may be mental or physical, intentional or

unintentional. It was further held that the enquiry must begin

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as to the nature of cruel treatment and impact of such

treatment in the mind of the spouse whether caused reasonable

apprehension that it would be harmful or injurious to live with

the other and ultimately it is a matter of inference to be drawn

by taking into account the nature of the conduct and its effect

on the complaining spouse. Therefore, the said judgment is

aptly applicable.

34. For the aforesaid reasons the impugned

judgment/order/decree of dismissal of the petition of the

appellant for divorce and allowing the petition for restitution of

conjugal rights are liable to be set aside.

Reg. Permanent Alimony (IA.Nos.1/2024/ 2/2024 and 3/2024).

35. IA No.1/2020 is for stay of the impugned judgment

and decree. Since the main matters are being disposed of, that

does not survive for consideration. IA No.1/2024 is filed by

respondent/wife claiming permanent alimony of Rs.3.5 crores

from the appellant. The appellant has filed IA No.2/2024 to

summon the Manager and HR of BBR India Pvt. Ltd. Company

to furnish the employment particulars of the respondent in the

said company and bank details to which her salary is being

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credited. IA No.3/2024 is filed to summon the Manager of ICICI

Bank, Vyalikaval Branch to furnish statement of account of

respondent bearing No.272601509109 for the period from

01.04.2021 to 31.12.2023.

36. The applications are opposed by the parties. In the

affidavit of assets and liabilities filed by the respondent in

support of IA No.1/2024 she claimed that she is unemployed.

In clause (F) of her affidavit regarding her assets and liabilities

in terms of the judgment of the Hon'ble Supreme Court in

Rajnesh vs. Neha3 the respondent has claimed that she is not

employed, she has no other source of income and she has

mentioned those columns as 'nil', 'not applicable' etc. She

claimed that her father is dependent on her and she has no

other income. She has produced statement of account

pertaining to Account No.007801529255 with ICICI Bank from

01.01.2021 to 30.12.2021 and SBI Bank Account particulars.

Whereas in the affidavits of the appellant filed in support of IA

Nos.2/2024 and 3/2024 and in his statement of objections to IA

No.1/2024 he contends that respondent is a BE graduate and

she is employed with the Company called BBR India Pvt. Ltd. as

(2021)2 SCC 324

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Design Engineer and drawing salary of Rs.40,000/- per month.

He further contends that the respondent has another Account

No.272601509109 in ICICI Bank, Vyalikaval Branch and her

salary is credited to the said account. He claims that the

respondent has deliberately suppressed the said fact which

amounts to perjury and playing fraud on the Court. Therefore,

he seeks to summon that employer and the Bank Manager to

produce the particulars of employment and bank account

respectively. Respondent filed counter to those applications

alleging the said evidence is irrelevant and applications are

dilatory tactics to cause hardship to her etc. But in the entire

statement of objection, nowhere she has denied such

employment.

37. Section 25 of the Act requires the Court to have

regard to the income and property of the respondent, conduct

of the parties and other circumstances of the case to arrive at

the quantum of alimony to be granted. Needless to say that

while granting permanent alimony, the Court has to take into

consideration the affidavit filed by both the parties regarding

the assets and liabilities and the documents filed in support of

them. The appellant in para 13 of his statement of objection to

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IA No.1/2024 in terms of the judgment of the Hon'ble Supreme

Court in Rajnesh's case referred to supra, states that the

respondent is a graduate in BE Civil engineering, she is

employed with BBR India Pvt. Ltd. as design engineer and

earning Rs.40,000/- per month. The respondent claims that she

was employed with the said company, but she has resigned in

2012. Thereby her employment in the said company was

established and the burden was on her to prove that she is no

more in the employment of the said company. Except for

producing copy of the email alleged to be her resignation letter

dated 23.07.2012, she did not examine the said employer to

show that she is no more in the said employment. Whereas the

appellant has produced summary of statement of Account

No.272601509109 said to be standing in the name of the

respondent with ICICI Bank. The same pertains to the period

between 01.04.2021 to 03.11.2022. As per the said document

in each month a sum ranging between Rs.36,604/- to

Rs.36,309/- is periodically credited from the account of BBR

India Pvt. Ltd.

38. Having regard to the material on record, it cannot

be said that the contention of the appellant with regard to

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employment and income of the respondent is totally vexatious.

This Court is satisfied that the enquiry needs to be conducted

on the same and for that purpose the matter needs to be

remanded to the Trial Court to decide on the permanent

alimony on recording the evidence.

39. Admittedly, the award of interim maintenance of

Rs.20,000/- in the DV Act proceedings and interim maintenance

of Rs.25,000/- awarded by the Family Court have attained

finality. The appellant shall go on paying the said sum every

month till issue of permanent alimony is decided by the Trial

Court. To avoid multiple execution petitions before different

Courts and dispute with regard to sum due, the appellant shall

deposit the interim alimony before the Trial Court on or before

10th of each calendar month. The applications are being

disposed of accordingly. Hence the following:

ORDER

i) MFA.No.98/2021 and MFA.No.96/2021 are allowed.

ii) The impugned common judgment and order/decree

dated 28.09.2020 in MC Nos.1100/2015 and

4772/2016 on the file of Principal Judge, Family

Court, Bangalore are hereby set aside.

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iii) The petition in MC No.4772/2016 is hereby

dismissed.

iv) The petition in MC No.1100/2015 filed under

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

hereby allowed.

v) The marriage of the appellant/petitioner and

respondent solemnized on 13.11.2011 in Unity Hall,

Thirthahalli is hereby dissolved.

vi) IA Nos.2/2024 and 3/2024 filed by the appellant to

summon the witnesses/documents are hereby

allowed.

vii) IA No.1/2024 filed by the respondent for

permanent alimony is hereby remanded to the Trial

Court.

viii) The parties are permitted to lead evidence on IA

No.1/2024 in addition to summoning of the

witnesses/documents sought in IA Nos.2/2024 and

3/2024.

ix) Till the disposal of IA No.1/2024 by the Trial Court,

appellant/petitioner shall go on paying Rs.45,000/-

        per   month        towards        the    maintenance     of   the
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respondent and son of the couple. The said sum is

inclusive of the maintenance awarded in DV Act

proceedings and her claim under Section 125

Cr.P.C. if any.

x) The appellant shall deposit the arrears of

maintenance, if any, at the above rate before the

Trial Court within four weeks from the date of this

order.

xi) To avoid filing of multiple execution petitions before

multiple forums, the appellant shall go on

depositing the interim alimony at the above rate

before the trial Court on or before 10th of each