Karnataka High Court
Smt Radha W/O Veeresh Baragundi vs Veeresh S/O Basavaraj Baragundi on 7 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 102065 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 102065 OF 2023 (FC)
BETWEEN:
SMT. RADHA W/O. VEERESH BARAGUNDI,
AGED ABOUT 22 YEARS, OCC. STUDENT,
R/O. SECTOR NO. 57, NAVANAGAR,
BAGALKOTE-587101.
...APPELLANT
(BY SRI. RAJA RAGHAVENDRA V.NAIK,
SMT. SOUMYA S. GUJAMADI AND
SRI. MAHANTESH HIREMATH, ADVOCATES)
AND:
VEERESH S/O. BASAVARAJ BARAGUNDI,
AGED ABOUT 29 YEARS, OCC. AUTO DRIVER,
R/O. RAJIV GANDHI, ASHRAYA COLONY,
NAVANGAR-BAGALKOTE-587101.
...RESPONDENT
Digitally signed
by JAGADISH T (BY SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE)
R
Location: High
Court of
Karnataka, THIS MFA IS FILED U/S.19(1) OF FAMILY COURT ACT, 1955,
Dharwad Bench
PRAYING TO CALL FOR THE RECORDS AND ALLOW THE APPEAL, AND
SET ASIDE THE JUDGMENT AND AWARD DATED 07.03.2023 IN M.C.
NO.53/2022 PASSED BY THE LEARNED PRINCIPAL JUDGE, FAMILY
COURT, AT: BAGALKOTE, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
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MFA No. 102065 of 2023
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
This appeal is filed challenging the judgment and
decree dated 7.3.2023 passed in M.C.No.53/2022 by
learned Principal Judge, Family Court, Bagalakote,
dismissing the petition filed by the appellant under Section
13(1)(i-a) (i-b) of the Hindu Marriage Act, 1955 ('the Act'
for short).
2. The appellant was the petitioner and the
respondent herein was the respondent before the Family
Court. For the sake of convenience, the parties are
referred to according to their ranks before the Family
Court henceforth.
3. Brief facts of the case:
The marriage of the appellant and the respondent
was solemnized on 20.11.2019 at Chikkasangam temple of
Bilagi Taluk. After the marriage, their relationship was
cordial for a couple of days. Thereafter the respondent
and his family members used to abuse and harass the
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appellant physically and mentally and also forced her to
bring gold, cash and share of property from her parents'
house and thus, evicted her from matrimonial home. In
this regard, she left the matrimonial home within two
months of the marriage and has been residing in her
parental house. Therefore, she filed petition for grant of
divorce.
4. After institution of petition before the Family
Court, the respondent appeared and filed objections
denying the allegations of the appellant, however, he
admitted the marriage. The respondent took contention
that he is ready and willing to join the company of the
appellant, but the appellant herself made cruelty to him
and deserted him without any lawful cause. Hence,
prayed to dismiss the petition.
5. The appellant in order to prove her case got
examined herself as PW-1, however, she did not mark any
document. The respondent examined himself as RW1 and
got marked two documents as Ex.R1 and R2. Ultimately,
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the Family Court dismissed the petition filed by the
appellant.
6. Having heard the learned counsel for the
appellant and respondent and on careful perusal of the
material on record, the following point arises for our
consideration in this appeal:-
''Whether the appellant has made out
sufficient ground to interfere with the judgment of
the Family Court?''
7. From the perusal of the judgment of the Family
Court and the evidence placed on record, the appellant has
taken contention that her marriage was solemnized on
20.11.2029 at Chikkasangam temple of Bilagi Taluk,
thereafter her marriage was registered in Sub-Registrar
Office, Bagalkot. The respondent harassed the appellant
and evicted her from the matrimonial home within two
months of the marriage. Hence, she filed petition for
divorce, on the ground of cruelty and desertion.
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8. 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 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 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.
9. Therefore, it is just and necessary to analyse
the explanation added to sub-section (1) of Section 13 by
Act 68 of 1976. The said Explanation reads thus:
"Divorce.--(1) * * *
Explanation.--In this sub-section, the
expression "desertion" means the desertion of the
appellant by the other party to the marriage
without reasonable cause and without the consent
or against the wish of such party, and includes the
wilful neglect of the appellant by the other party to
the marriage, and its grammatical variations and
cognate expressions shall be construed
accordingly."
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10. Thus, it appears that, the reasons for a dispute
between husband and wife are always very complex. Every
matrimonial dispute is different from another. Whether a
case of desertion is established or not will depend on the
peculiar facts of each case. It is a matter of drawing an
inference based on the facts brought on record by way of
evidence.
11. Some factors to be considered before
determining whether a marriage is irretrievably broken
down are:
1. Duration of cohabitation after marriage;
2. Last time the parties cohabited;
3. Nature of allegations made by the parties
against each other;
4. Attempts to settle disputes between the
parties;
5. A sufficiently long period of separation.
12. In the light of the aforesaid factors, now,
coming to the facts of the case, there is no dispute that
the marriage between the parties was solemnised on
20.11.2019 and they stayed together for a period of two
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months and thereafter, the respondent had withdrawn
from the matrimonial house, without assigning any reason,
on the pretext that she should bring gold, cash and share
of the property. Even after repeated request and
beseeches, the respondent did not heed to the request of
the appellant. Accordingly, he threw her out from the
matrimonial home, as contended by the appellant.
Hence, she filed petition for divorce.
13. On the contrary, the respondent has taken
contention that he is ready to join the company of the
appellant. Accordingly, so many conciliations were held
and went in vain. Even this Court, on 13.12.2023, at the
request of the parties, referred the matter to the Mediation
Centre, Dharwad, but the same has been failed.
14. In order to ascertain the grounds for divorce
under the Act, it is just and necessary to analyse Section
13(1)(i-a) of the Act:
"13. Divorce.--(1) Any marriage solemnized,
whether before or after the commencement of this
Act, may, on a petition presented by either the
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husband or the wife, be dissolved by a decree of
divorce on the ground that the other party--
(i) has, after the solemnization of the
marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or
(ia) has, after the solemnization of the
marriage, treated the appellant with cruelty; or
15. The Amending Act of 1976 (Act 68 of 1976) had
introduced clauses (ia) and (ib) to Section 13 and Section
13A etc. to liberalize grant of divorce. The Statement of
Objects and Reasons, when the Bill was introduced, clearly
spells out the reasons in the following words:
"Statement of Objects and Reasons for the Marriage
Laws(Amendment) Bill, 1976:
"(1) To liberalise the provisions relating to divorce;
(2) to enable expeditious disposal of proceedings
under the Act; and
(3) to remove certain anomalies and handicaps that
have come to light after the passing of the Acts."
16. While applying the sub-clauses to Section 13(1)
of the Act, one needs to have a proper understanding of
the position of the spouse opposing the petition for grant
of divorce as the consequences and impact may differ
from person to person, based upon factors such as social
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setting, educational qualification(s), financial status,
employment, caste, community, age and place.
17. The word 'cruelty' under Section 13(1)(i-a) of
the Act has got no fixed meaning, and therefore, gives a
very wide discretion to the Court to apply it liberally and
contextually. What is cruelty in one case may not be the
same for another and it depends upon the attending
circumstances.
18. In the case of VISHWANATH AGRAWAL
v. SARLA VISHWANATH AGRAWAL reported in (2012)
7 SCC 288, the Hon'ble Apex Court at para Nos.22 and
25.5 held as under:
"22. The expression "cruelty" has an inseparable
nexus with human conduct or human behaviour. It
is always dependent upon the social strata or the
milieu to which the parties belong, their ways of
life, relationship, temperaments and emotions that
have been conditioned by their social status.
xxx xxx xxx
25.5. ... when a spouse makes a complaint about
the treatment of cruelty by the partner in life or
relations, the court should not search for standard
in life. A set of facts stigmatised as cruelty in one
case may not be so in another case. The cruelty
alleged may largely depend upon the type of life the
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parties are accustomed to or their economic and
social conditions. It may also depend upon their
culture and human values to which they attach
importance."
19. In SAMAR GHOSH v. JAYA GHOSH reported
in (2007) 4 SCC 511, the Hon'ble Apex Court, while
referring to the concept of cruelty, which includes mental
cruelty, in English, American, Canadian and Australian
cases, at para Nos.99 and 100 it is observed as under:
"99. ... Human mind is extremely complex and
human behaviour is equally complicated. Similarly
human ingenuity has no bound, therefore, to
assimilate the entire human behaviour in one
definition is almost impossible. What is cruelty in
one case may not amount to cruelty in other case.
The concept of cruelty differs from person to person
depending upon his upbringing, level of sensitivity,
educational, family and cultural background,
financial position, social status, customs, traditions,
religious beliefs, human values and their value
system.
100. Apart from this, the concept of mental cruelty
cannot remain static; it is bound to change with the
passage of time, impact of modern culture through
print and electronic media and value system, etc.
etc. What may be mental cruelty now may not
remain a mental cruelty after a passage of time or
vice versa. There can never be any straitjacket
formula or fixed parameters for determining mental
cruelty in matrimonial matters. The prudent and
appropriate way to adjudicate the case would be
to evaluate it on its peculiar facts and
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circumstances while taking aforementioned factors
in consideration.''
(emphasis supplied)
20. We would like to emphasize that an element of
subjectivity has to be applied, albeit, what constitutes
cruelty is objective. Therefore, what is cruelty for a person
in a given case may not be cruelty for another person, a
relatively more elastic and broad approach is required
when we examine a case in which a spouse seeks divorce.
Section 13(1) of the Act sets contours and rigours for
grant of divorce at the instance of the parties.
21. In the case of DR. N.G. DASTANE v.
MRS. S. DASTANE reported in (1975) 2 SCC 326, the
Hon'ble Apex Court at para Nos. 25, 26 and 27 held as
under:
"25. Proof beyond reasonable doubt is proof by a
higher standard which generally governs criminal
trials or trials involving inquiry into issues of a
quasi-criminal nature. A criminal trial involves the
liberty of the subject which may not be taken away
on a mere preponderance of probabilities. If the
probabilities are so nicely balanced that a
reasonable, not a vacillating, mind cannot find
where the preponderance lies, a doubt arises
regarding the existence of the fact to be proved and
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the benefit of such reasonable doubt goes to the
accused. It is wrong to import such
considerations in trials of a purely civil nature.
26. Neither Section 10 of the Act which enumerates
the grounds on which a petition for judicial
separation may be presented nor Section 23 which
governs the jurisdiction of the court to pass a
decree in any proceeding under the Act requires
that the appellant must prove his case beyond a
reasonable doubt. Section 23 confers on the court
the power to pass a decree if it is "satisfied" on
matters mentioned in clauses (a) to (e) of the
section. Considering that proceedings under the Act
are essentially of a civil nature, the word "satisfied"
must mean "satisfied on a preponderance of
probabilities" and not "satisfied beyond a
reasonable doubt". Section 23 does not alter the
standard of proof in civil cases.
27. The misconception regarding the standard of
proof in matrimonial cases arises perhaps from a
loose description of the respondent's conduct in
such cases as constituting a "matrimonial
offence". Acts of a spouse which are calculated to
impair the integrity of a marital union have a
social significance. To marry or not to marry and
if so whom, may well be a private affair but the
freedom to break a matrimonial tie is not. The
society has a stake in the institution of marriage
and therefore the erring spouse is treated not as
a mere defaulter but as an offender. But this
social philosophy, though it may have a bearing
on the need to have the clearest proof of an
allegation before it is accepted as a ground for
the dissolution of a marriage, has no bearing on
the standard of proof in matrimonial cases."
22. From the aforesaid judgment, it becomes clear
that in order to prove the requirement of cruelty, the
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appellant must prove that the respondent caused cruelty
to her and hence, she left the company of the respondent
and thus, seeks for divorce. The proof required from the
appellant in a petition for divorce on the ground of cruelty
and desertion is not beyond reasonable doubt, but of
preponderance of probability.
23. Secondly, the Court must also keep in mind
that the home which is meant to be a happy and loveable
place to live, becomes a source of misery and agony
where the partners fight. Whereas in the instant case,
the appellant herself left the company of the respondent
on the pretext that she is interested in prosecuting the
education. As per contention of the learned counsel for
the appellant, she is prosecuting her Degree in SDM
College, Dharwad.
24. In the instant case, the burden is on the
appellant to prove that respondent caused cruelty to him.
Cruelty means and includes behavior that deliberately
causes pain or distress to a person. Cruelty for the
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purpose of Section 13(1) (i-a) of the Act is to be taken as
behavior by one spouse towards the other, which causes
reasonable apprehension in the mind of the Court.
25. From the perusal of the evidence on record, it
appears that the appellant herself examined on oath as
PW1. But, she failed to prove the ingredients of cruelty
and desertion from her evidence. The evidence discloses
only general and omnibus allegations against the
appellant. Thus, it clearly establishes that the allegations
made in the petition and evidence do not constitute any
ingredient of Section 13(1)(i-a)(i-b) of the Act.
26. Hence, the Family Court has rightly declined to
grant the decree of divorce. For the reasons aforesaid, we
are inclined to affirm the judgment of the Family Court in
M.C.No.53/2022.
27. Hence, we proceed to pass the following:
ORDER
i) The appeal is dismissed.
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ii) The impugned judgment and decree
dated 7.3.2023 passed in
M.C.No.53/2022 by learned Principal
Judge, Family Court, Bagalakote, is
hereby confirmed.
iii) In view of the disposal of the appeal,
pending IAs', if any, stand disposed of.
Costs made easy.
iv) The Registry to send copy of this
judgment to the Family Court, along with
Trial Court records.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
JTR/ct-an
