Karnataka High Court
Smt.Shilpa @ Shaila W/O. Shambhuling vs Sri.Shambhuling S/O. Fakkirappa ... on 21 October, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
-1-
NC: 2024:KHC-D:15011-DB
MFA No. 104375 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 104375 OF 2018 (FC)
BETWEEN:
SMT. SHILPA @ SHAILA
W/O. SHAMBHULING BHUSAD,
AGED ABOUT 25 YEARS,
OCC: HOUSEHOLD WORK,
R/O. C/O. CHANNAPPA SANGOLLI,
BETAGERI ONI, HEBBALLI AGASI, DHARWAD,
DIST: DHARWAD, PINCODE-580030.
...APPELLANT
(BY SRI. G. I. GACHCHINAMATH, ADVOCATE)
AND:
SRI. SHAMBHULING S/O. FAKKIRAPPA BHUSAD,
AGED ABOUT 32 YEARS, OCC: ELECTRICIAN,
Digitally signed
by JAGADISH T R/O. HUGAR ONI, HUBBALLI,
R
Location: High TQ: HUBBALLI, DIST: DHARWAD.
Court of
Karnataka, ...RESPONDENT
Dharwad Bench
(NOTICE TO RESPONDENT HELD SUFFICIENT)
THIS MFA IS FILED U/SEC.19(1) OF FAMILY COURT ACT,
PRAYING TO CALL FOR RECORDS IN RESPECT OF THE IMPUGNED
JUDGMENT AND DECREE MADE IN M.C. NO.110/2017 ON THE FILE
OF THE PRINCIPAL JUDGE, FAMILY COURT, DHARWAD AND SET
ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 22.10.2018
MADE IN M.C. NO.110/2017 PASSED BY THE PRINCIPAL JUDGE,
FAMILY COURT, DHARWAD AND FURTHER DECREE THE PETITION BY
GRANTING THE DECREE OF DIVORCE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-2-
NC: 2024:KHC-D:15011-DB
MFA No. 104375 of 2018
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
This appeal is filed challenging the judgment and decree
dated 22.10.2018 passed in M.C.No.110/2017 by learned
Principal Judge, Family Court, Dharwad, dismissing the petition
filed by the appellant under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955 ('the Act' for short).
2. The appellant was the petitioner and the respondent
herein was the respondent in M.C.No.110/2017 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 09.06.2010 at Shirakol Village, Dharwad Taluk.
The parties are Hindus and governed by the Act. After the
marriage, the appellant and the respondent started their
marital life at the residence of the respondent and their
NC: 2024:KHC-D:15011-DB
relationship was cordial for a couple of years. Thereafter, the
appellant came to know that the respondent had
misrepresented her about his avocation. Prior to the marriage,
the respondent represented himself as an Electrical Contractor.
However, after the marriage, the appellant came to know that
he is not doing contract work but he is a mason and doing
electrical repair work, thereby the respondent committed fraud
on her. The respondent used to sit idle in the home without
doing any work and was insisting the appellant to bring money
from her parents' house and he was addicted to bad vices. As
the respondent neglected to maintain the appellant, she left the
company of the respondent and has been residing in her
parental house. Thus, the appellant has lost all hopes of the
respondent changing himself and to lead happy marital life with
the appellant. Hence, she filed petition under Section 13(1)
(i-a) of the Act seeking decree for dissolution of marriage on
the ground of cruelty.
4. The respondent was served with notice before the
Family Court, he appeared in-person but he did not file any
objections nor led any evidence.
NC: 2024:KHC-D:15011-DB
5. The appellant in order to prove her case got
examined herself as PW-1 and got marked two documents as
per Exs-P1 & P2. The appellant also examined Sri. Kariyappa
Hampannavar as PW2.
6. The Family Court after conclusion of the trial held
that the appellant-wife failed to prove the requirements of
Section 13(1)(i-a) of the Act and thus dismissed the petition.
Being aggrieved by the dismissal of the petition for divorce, the
appellant has filed this appeal.
7. Sri. G.I. Gachchinamath, learned counsel for
appellant vehemently contended that the Family Court
committed an error without appreciating the facts that the
respondent was unnecessarily quarrelling with the appellant, he
addicted to bad vices, he was not maintaining the appellant and
thereby neglected her and as such, the appellant left the
company of the respondent. These facts would constitute the
ingredient of cruelty & desertion.
8. It is further contended that the respondent has
committed fraud upon the appellant. The respondent before
the marriage misrepresented the appellant that, he was
NC: 2024:KHC-D:15011-DB
working as an Electrical Contractor, but he was working as
electrical mason and this fact was realized by the appellant only
after marriage. Further, the respondent was in the habit of
consuming alcohol and all the while, he sits at home idly
consuming alcohol and whenever, he needs money to consume
alcohol, he used to go for work and thereby he was completely
neglecting to maintain the appellant. The marriage is not
consummated and that the respondent is interested only in
drinking and not in any other aspect of marital life. This
amounts severe cruelty on the appellant.
9. It is contended that the Family Court without
appreciating the facts that, the appellant put to mental agony
and harassment due to the conduct of the respondent has
dismissed the petition filed by the appellant. Hence, the
judgment of Family Court is contrary to the facts and evidence
placed on record and therefore, it is liable to be set aside.
10. Despite granting sufficient opportunity, the
respondent-husband did not turn up to lead any evidence
before the Family Court. Considering the submissions of
learned counsel for the appellant and on careful perusal of the
NC: 2024:KHC-D:15011-DB
material on record, the following point arises for consideration
of this Court:-
''Whether the judgment and decree passed
by the Family Court dismissing the petition of the
appellant filed under Section 13(1)(ia) of the
Hindu Marriage Act is sustainable or calls for
interference?''
11. There is no dispute with regard to the fact that the
marriage of the appellant and the respondent was solemnized
on 9.6.2010. In this case, the appellant/wife has filed this
appeal challenging the judgment and decree of the Family
Court, wherein her petition for divorce was dismissed on the
ground of failure to prove the ingredients of cruelty.
12. 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."
NC: 2024:KHC-D:15011-DB
13. 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/cruelty 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.
14. 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.
15. 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
husband or the wife, be dissolved by a decree of
divorce on the ground that the other party--
NC: 2024:KHC-D:15011-DB
(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
16. 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."
17. 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 setting, educational
qualification(s), financial status, employment, caste,
community, age and place.
NC: 2024:KHC-D:15011-DB
18. 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.
19. 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 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."
20. 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
- 10 -
NC: 2024:KHC-D:15011-DB
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 circumstances while
taking aforementioned factors in consideration.''
(emphasis supplied)
21. 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
- 11 -
NC: 2024:KHC-D:15011-DB
contours and rigours for grant of divorce at the instance of the
parties.
22. In order to prove the requirement of cruelty, the
appellant must prove that the respondent caused cruelty to her
and thus, seeks for divorce. The proof required from the
appellant in a petition for divorce on the ground of cruelty 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.
24. In the instant case, the burden is on the appellant
to prove that respondent caused cruelty to her. Cruelty means
and includes behavior that deliberately causes pain or distress
to a person. Cruelty for the 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. Further, frequent rudeness of language, petulance,
- 12 -
NC: 2024:KHC-D:15011-DB
indifference, sustained abusive and humiliating treatment
calculated to torture or render miserable the life of spouse.
25. In the instant case, the appellant requires to prove
the element of cruelty. Under such circumstances, the learned
counsel has argued that if at all this Court found the want of
requisite evidence; the proper course is to exercise the power
of remand under the provisions of Order XLI Rule 23-A CPC.
The learned counsel has contended that this Court being the
first Court of Appeal, must give an opportunity to the parties to
adduce proper additional evidence.
26. The procedure relating to appeals from original
decrees (usually referred to as 'regular first appeal') is provided
in Order XLI of the Code of Civil Procedure, 1908 and therein,
various provisions relating to hearing of an appeal, remand of
case, remitting of issues for trial, production of additional
evidence in Appellate Court etc. are contained in Rules 16 to 29
under the sub-heading 'Procedure on hearing'.
27. A conjoint reading of Rules 23, 23A and 24 of Order
XLI brings forth the scope as also contours of the powers of
remand that when the available evidence is sufficient to dispose
- 13 -
NC: 2024:KHC-D:15011-DB
of the matter, the proper course for an Appellate Court is to
follow the mandate of Rule 24 of Order XLI CPC and to
determine the real questions in controversy between the
parties finally.
28. It is only in such cases where the decree/award in
challenge is reversed in appeal and a re-trial is considered
necessary that the Appellate Court shall adopt the course of
remanding the case.
29. Under the aforesaid circumstances, we are of the
considered view that this matter requires to be remanded to
the Family Court for consideration afresh after affording
reasonable opportunity of hearing to both the parties to adduce
their respective evidence. Hence, the following:
ORDER
i. Appeal is allowed.
ii. The impugned Judgment and Decree of the
Family Court is hereby set-aside.
iii. The matter is remitted back to the Family Court
for fresh consideration, with a direction to
provide reasonable opportunity to both the
parties to adduce their evidence and then
- 14 -
NC: 2024:KHC-D:15011-DB
dispose off the matter in accordance with law
expeditiously.
iv. Parties are directed to appear before the Trial
Court on 19.11.2024 without awaiting any
further notice from the Family Court.
v. The Registry to send a copy of this judgment to
the Family Court, along with Trial Court
records.
vi. All the contentions of the parties are kept open.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
JTR/ct-an
