Karnataka High Court
Mr Vimalanathan Sigamani T vs Mrs Melo Kamalam on 22 October, 2024
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MFA No. 5891 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 5891 OF 2019 (IDA)
Between:
Mr Vimalanathan Sigamani T,
S/o Mr. S. Thiagaraj, Aged about 49 years
R/at. Prakruthi Ganga Apartment,
R.T. Nagar, Bangalore 560032
Also at: Microsoft India (R&D) Pvt. Ltd.,
Global Technical Support Centre,
Prestige Ferns Galaxy, Sixth floor, Survey No.7/1,
7/2 & 8/1A, Ambalipura Village, Varthur Hobli,
Outer Ring Road, Bengaluru 560103.
- Appellant
(By Sri. Abhinav R, Advocate)
Digitally signed by
VEERENDRA And:
KUMAR K M
Location: HIGH
COURT OF Mrs. Melo Kamalam W/o Mr. Vimalanathan
KARNATAKA D/o Joseph Kamalam, Aged about 47 years
R/a.312, B No.8, 1st Floor, Golden Nagar,
K.P. Nagar, Parvathipuram,
Nagercoil Post Office 629003
Kanya Kumari Dist., Tamil Nadu.
Also at: No.19/1, 1st Floor, 2nd Main,
IV Cross, Ganganagar Extension
R.T. Nagar Post, Bengaluru 560032
- Respondent
(Smt. Melo Kamalam, respondent, appearing as
party-in-person)
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MFA No. 5891 of 2019
This MFA is filed under section 55(1) of Indian Divorce
Act, against the judgment and decree dated 11.06.2019 passed
in MC No.3492/2011 on the file of the IV Additional Principal
Judge, Family Court, Bengaluru, dismissing the petition filed
under section 10(x) of Divorce Act & etc.
Date on which the appeal was
reserved for judgment 12.09.2024
Date on which the judgment was
22.10.2024
pronounced
This appeal, pertaining to Bengaluru Bench, having been
heard and reserved, coming on for pronouncement this day at
Dharwad Bench, judgment was delivered therein as under:
HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
CORAM: and
HON'BLE MR JUSTICE UMESH M ADIGA
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MFA No. 5891 of 2019
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)
This appeal is by the petitioner in M.C.3492/2011 on
the file of IV Additional Principal Judge, Family Court,
Bengaluru, who initiated action for dissolution of his
marriage with respondent/wife, by invoking section 10(x)
of Indian Divorce Act. Since the Family Court by its
judgment dated 11.6.2019 dismissed the petition, he has
filed this appeal.
2. The appellant and the respondent are Christians,
their marriage was solemnized on 04.01.2002 at Church of
South India (CSI), Karungal, Tamil Nadu. In the wedlock,
they begot two sons. The appellant was doing business in
Computers at Chennai at the time when he married the
respondent, and in the year 2004, he and the respondent
shifted their residence to Bengaluru as he secured an
employment in Bengaluru.
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3. The appellant, in his petition, has narrated
several instances to seek divorce on the ground of cruelty.
The main allegations are that in the course of time, the
respondent started harassing him, and sometime in the
year of 2005, she poured hot water on him consequent to
which he sustained burn injuries and could not walk
properly. She refused to prepare food for him and the
child, and she was not taking care of the child also. She
along with her kith and kins tried to take away all his
earnings. She was going out of the house without
informing him the place where she was going, and she
refused to divulge information as to the place where she
had gone. This made him opt for nightshift work so that
he could take care of the children during day time. As he
was working in a software concern, he had to leave
headquarter whenever his employer asked him to go out
on office work, and on one such occasion he had to go out
of Bengaluru on 05.03.2011. When he returned home on
07.03.2011, he was shocked to see many things including
his computers, utensils, gas stove, etc., missing. On
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enquiry with the security of the apartment where he was
living, he came to know that on 06.03.2011 itself she was
found boarding a vehicle. As he could not trace her
whereabouts despite enquiry with his relatives and friends,
he had to make missing complaint at R.T.Nagar Police
Station. Because leaving Bengaluru abruptly, his son who
was attending annual examination, could not appear for
examination in all subjects and thereby he lost one year.
The respondent filed false complaints against him alleging
that he harassed her for dowry. He was harassed by the
police and this made him obtain anticipatory bail. She
also filed a complaint against him at Nagarcoil on
10.03.2011, and another petition before the Judicial
Magistrate at Nagarcoil under Protection of Women from
Domestic Violence Act.
3.1. Her behaviour with children was not good. On
one occasion she tried to hit her first son with a knife as
the son disclosed that his mother was lying. Without
bringing to his knowledge, she sent the children to the
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house of her relative at Nagarcoil, and with much efforts
he could locate the children. When he went there to bring
back children, his wife's relative demanded for substantial
money to give the children to his custody and this made
him approach the police. Like this, the petitioner alleges
cruelty on him by his wife.
4. The respondent out rightly denied all the
allegations made against her by the petitioner and counter
blasted by stating that after the marriage, the petitioner
and his sister mortgaged all her jewelleries with a bank
where the petitioner's sister was working; that she was
demanded to bring dowry; that at the time of marriage,
the petitioner's business was sinking and therefore she
was compelled to borrow money from her relatives and
friends. She stated that she too worked with the
petitioner even during her pregnancy, and because of her
contribution, physically and financially, the petitioner was
able to regain his business. When she had gone to her
parents house, he closed down his business without
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informing her although there was investment of
Rs.12,00,000/- from her side. The petitioner was only
interested in money; she was always a dutiful wife; the
petitioner had no intention to lead peaceful married life.
Another allegation against the appellant was that he
mortgaged most of jewelleries with the help of her sister,
Mahil Kamaraj. The money of Rs.2,82,000/- obtained
after mortgage was deposited by her sister in the bank
account and the appellant withdrew all the money using
the ATM card. He compelled her to surrender her UTI
savings and thus he used Rs.1,50,000/-. He stopped
buying provisions required for household; and he did not
care for her medical requirements. He only opted to work
in night shifts and he was beating the children if they
spoke to him during daytime. On 05.03.2011, the
appellant dashed her head against a wall. On 06.03.2011
she found a sharp weapon in one of the shelves of the hall
and frightened by this she had to leave the husband and
went to her parents' house with children. She has given
details of cases which she was compelled to initiate
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because of harassment on her. At last she prayed for
dismissing the petition for divorce.
5. The appellant and the respondent themselves
adduced evidence before the Family Court as PW1 and
RW1 respectively. Upon considering the oral and
documentary evidence, the Family Court arrived at a
conclusion that the appellant failed to prove cruelty meted
out to him by the respondent and dismissed the petition.
One conclusion is that except a stray incident said to have
occurred during the year 2005, there is no evidence
indicative of respondent's aggressive behaviour. Placing
reliance on a judgment of this court in B.Gangadhara vs
M.Nagarathnamma [MFA No. 2276/2013], it has been
held that such kind of evidence as would appear to be
grave and weighty so that a spouse would find it difficult
to live with another partner, is absent. And all the
allegations appear like general statements.
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6. The appellant has filed an application as per
I.A.1/2019, under Order 41 Rule 27 of CPC seeking to
produce certified copy of order in C.C.36006/2011.
7. We have heard Sri Abhinav Ramanand, learned
counsel for the appellant. The respondent appeared in
person and put forth her contentions. They also filed their
written arguments.
8. The points arising for discussion are :
(i) Has the Family Court erred in drawing a
conclusion that the appellant has failed to
establish the allegations amounting to cruelty
meted out to him by the respondent?
(ii) Whether application under Order 41 Rule
27 of CPC can be allowed?
9. Before reappraisal of the case, it may be stated
that in matrimonial cases, where suppression and
exaggeration of events is common place, evidence cannot
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be appreciated in the way it is appreciated in other civil
cases; Euclid formula cannot be applied; there is nothing
wrong in traversing beyond pleadings. Comprehensive
approach is needed, documents for every allegation
cannot be expected, in fact it is impossible to produce
document for every allegation. The Family Court has
observed that in regard to allegation of pouring hot water
on the appellant, he should have produced some materials
to substantiate that allegation. It is observed that medical
documents could have been produced. It is to be stated
here that the respondent does not dispute the fact of
appellant sustaining burns, what she has said is that hot
water fell on him when he was bringing it in a bucket.
This is one instance how an incident would be blown out of
proportion when relationship between spouses strain.
10. Sri Abhinav Ramanand argued by referring to
each document produced on behalf of the appellant and
mainly contended that, it is not in dispute that the
respondent initiated numerous cases against the appellant,
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and she withdrew every case after the appellant filed
objection statement. This shows that all cases initiated by
her were false, and she dared not to pursue the litigations
once appellant contested. Therefore continual litigations,
that too in criminal courts, was nothing but cruelty on the
appellant. Referring to certified copy of the judgment in a
criminal case produced along with application under Order
41 Rule 27 of CPC, he argued that it has been clearly
observed there that the evidence of PW3 i.e., the
respondent in this appeal is untrustworthy. The judgment
in criminal case is a reflection of respondent's conduct. He
also contended that the two sons of the parties are now
living in United States of America and the appellant is also
in United States of America. The children do not want to
see their mother. These being the state of affairs, there is
no meaning if they are asked to live together. The trial
court has failed to appreciate the evidence properly. The
same grounds are urged in the written arguments.
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11. On the other hand, the respondent contended
that the appellant is guilty of contempt in as much as he
failed to pay maintenance. The appellant took away the
children from her without her consent. She had to
withdraw the cases filed by her on a false promise made
by the appellant that he would take her back. Keeping the
children away from her would amount to cruelty. Her ATM
card was taken away by the appellant to withdraw money
from her account. Ex.R3 does not indicate that she
withdrew her allegations. She was subjected to ill
treatment and torture by the appellant. In the written
arguments submitted by the respondent, she states that
she was subjected to cruelty by the appellant in different
ways, and alleges that the appellant has committed
contempt of court.
12. If the oral testimonies of PW1 and RW1 in cross-
examination are perused, both side advocates could do
nothing more than giving suggestions, which are almost
denied. It is quite obvious that in cases where there are
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mutual allegations, only suggestions could be given.
However, RW1 admits many cases being initiated by her
against PW1-i.e., the appellant.
13. Out of 68 documents produced by the appellant,
all need not be considered. There is no dispute that
respondent instituted many cases. This is evidenced by
Ex.P5, Ex.P12, Ex.P25, Ex.P26, Ex.P28, Ex.P29, 29A,
Ex.P32, Ex.P36. It is undisputed fact that the respondent
withdrew the cases filed by her after the appellant
contested the same. As to the cases withdrawn by her,
she has an explanation that she had to do so believing the
assurance given by the appellant. This explanation is not
believable on the face of it because it was not only one
case that was withdrawn. If the appellant did not take her
back after she withdrew one case, that should have
alerted her while withdrawing the next case. Therefore
the inference that can be drawn is that withdrawal of cases
was her voluntary decision. Ex.P16, Ex.P17, Ex.P27 and
Ex.P34 evidence this aspect. And it also indicates her
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intention to constantly keep the appellant on tenterhooks.
It is needless to state that this kind of a situation creates
mental turmoil.
14. It is very pertinent to mention here that as
evidenced by Ex.P16 and Ex.P17, when the respondent
withdrew GWOP 181/2012, the appellant insisted on costs
to be paid to him making it very clear that respondent was
in the habit of filing case after case and she would
withdraw the cases no sooner the appellant chose to
contest. Accepting this submission, cost of Rs.1,500/- was
imposed on the respondent. Imposition of costs falsifies
respondent's stand that she believed the appellant's words
that he would take her back.
15. Ex.P18 depicts the respondent's another kind of
conduct towards her husband, she alleges that husband is
sexually handicapped. The words used are "sexually
handicapped cannot lead a happy married life!
Commonsense and legally too". If Ex.P18 is considered,
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appellant is justified in alleging that he was put to mental
agony.
16. Respondent mainly alleges that the appellant
took away the children with him in her absence. She
refers to Ex.R12. It is true that the appellant addressed a
letter to Mr.P.Kamaraj stating that he had taken the
custody of two children when the respondent had come
over to Bengaluru to attend an examination. The
appellant states that he had to write so because he was
compelled to write like that. Whatever it is, Ex.P9, the
order dated 24.05.2012 passed by Madurai Bench of
Madras High Court in MP(MD) 1/2012 IN CRL OP(MD)
6604/2012] shows that two children expressed their
desire to live with their father, and the respondent did not
appear before Madras High Court at that time. If really
the respondent has love and affection towards her
children, as she has submitted before this court, she
should have appeared before Madurai Bench and made her
submissions. Respondent is not illiterate, she has many
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degrees beside her name. If she states that she simply
believed her husband's assurance, it is difficult to accept
her explanation. Therefore Ex.R12 is not helpful to the
respondent. Ex.R36 is a copy of the letter produced by
respondent. She addressed that letter to Senior Director
of Microsoft where the appellant was working making
certain allegations against him. According to appellant
this letter was defamatory and it was written by the
respondent with a view to harassing him.
17. Many documents that the respondent got
marked throw light on some financial transactions, and
pledging of jewelleries, but no inference can be drawn
from them that the appellant used to harass her.
18. I.A.1/2019 filed by the appellant under Order 41
Rule 27 of CPC may be allowed for the reason that it is
copy of judgment in a criminal case initiated at the
instance of the respondent. The appellant could have
produced it during trial. But in the affidavit filed along
with application, it is stated that by the time judgment
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was pronounced by the Criminal Court, recording of the
evidence of appellant i.e., PW1 was over and therefore he
could not produce it. Order 41 Rule 27 of CPC envisages
that additional evidence can be received for any other
substantial cause. This judgment copy throws light on the
conduct of respondent. Therefore it can be received in
evidence and it can be looked into directly without there
being need for recording oral evidence on it, for
respondent cannot deny judgment in C.C.36006/2011.
19. Perusal of judgment in C.C.36006/2011 shows
that the respondent alleged harassment on her by the
appellant and therefore he was tried for the offence under
section 498A of IPC. In that case respondent adduced
evidence as PW3 and deposed in examination chief that
there was demand for dowry. In the cross examination
she was confronted with a letter written by her to the
investigating officer that her husband had not demanded
for dowry. Adverting to this letter and other evidence, the
criminal court found the respondent an untrustworthy
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witness and thereby acquitted the appellant. This
judgment reflects more on the conduct and attitude of the
respondent than any other document.
20. Out of many decisions cited by the appellant's
counsel, only one judgment may be referred here as it
suffices the situation. In A.Jayachandra vs Aneel Kaur
[(2005) 2 SCC 22 : 2004 SCC Online SC 1523], the
meaning of the word 'cruelty' is explained. It is held.
"10. The expression "cruelty" has not been defined in
the Act. Cruelty can be physical or mental. Cruelty
which is a ground for dissolution of marriage may 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 a danger. The question of mental
cruelty has to be considered in the light of the norms
of marital ties of the particular society to which the
parties belong, their social values, status, environment
in which they live. Cruelty, as noted above, includes
mental cruelty, which falls within the purview of a
matrimonial wrong. Cruelty need not be physical. If
from the conduct of his spouse same is established
and/or an inference can be legitimately drawn that the
treatment of the spouse is such that it causes an
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apprehension in the mind of the other spouse, about
his or her mental welfare then this conduct amounts to
cruelty. In a delicate human relationship like
matrimony, one has to see the probabilities of the
case. The concept, proof beyond the shadow of doubt,
is to be applied to criminal trials and not to civil
matters and certainly not to matters of such delicate
personal relationship as those of husband and wife.
Therefore, one has to see what are the probabilities in
a case and legal cruelty has to be found out, not
merely as a matter of fact, but as the effect on the
mind of the complainant spouse because of the acts or
omissions of the other. Cruelty may be physical or
corporeal or may be mental. In physical cruelty, there
can be tangible and direct evidence, but in the case of
mental cruelty there may not at the same time be
direct evidence. In cases where there is no direct
evidence, Courts are required to probe into the mental
process and mental effect of incidents that are brought
out in evidence. It is in this view that one has to
consider the evidence in matrimonial disputes.
12 & 13 ............
14. The foundation of a sound marriage is tolerance,
adjustment and respecting one another. Tolerance to
each other's fault to a certain bearable extent has to
be inherent in every marriage. Petty quibbles, trifling
differences should not be exaggerated and magnified
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to destroy what is said to have been made in heaven.
All quarrels must be weighed from that point of view in
determining what constitutes cruelty in each particular
case and as noted above, always keeping in view the
physical and mental conditions of the parties, their
character and social status. A too technical and hyper-
sensitive approach would be counter- productive to the
institution of marriage. The Courts do not have to deal
with ideal husbands and ideal wives. It has to deal
with particular man and woman before it. The ideal
couple or a mere ideal one will probably have no
occasion to go to Matrimonial Court. (See Dastane v.
Dastane, AIR 1975 SC 1534)."
21. Therefore if this case is put to analysis there is
probability in the case put forth by the appellant that he
was a subject of mental cruelty perpetrated on him by
respondent. They separated long back. Their marriage
has broken down to a point of no return. Children also do
not want their mother. These aspects should have
weighed with the Family Court. Its findings are therefore
not sustainable. Here is a case for dissolution of marriage.
Points (i) and (ii) are accordingly answered.
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22. So far as alimony is concerned it was argued by
the appellant's counsel that the respondent is a practising
advocate besides being a owner of wind mill and she has
independent source of income. Though this argument was
not controverted by the respondent, this issue is kept
open. If alimony is to be provided for, enquiry requires to
be held. Therefore liberty is given to respondent to initiate
separate proceedings if she is interested in claiming
alimony.
23. Now the following order from the above
discussion :
(i) Appeal is allowed.
(ii) Judgment of Family Court in
M.C.3492/2011 is set aside.
(iii) Petition filed under section 10(x) of Indian
Divorce Act is allowed. The marriage of the
appellant with respondent solemnized on
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04.01.2002 is dissolved and decree of divorce is
granted.
(iv) There is no order as to costs.
(v) All pending applications are disposed of.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
CKL/bvv
