Karnataka High Court
Sri C Pushpa Kumar vs Smt Madhavi on 22 October, 2024
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MFA No. 7403 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. 7403 OF 2019 (FC)
BETWEEN:
SRI.C. PUSHPA KUMAR,
S/O. LATE. CHALUVAIAH,
AGED ABOUT 51 YEARS,
R/AT. NO.44, 3RD FLOOR,
10TH CROSS, 9TH MAIN,
HARI LAYOUT,
JNANAJYOTHINAGAR,
ULLALU MAIN ROAD,
BENGALURU-560 056.
...APPELLANT
(BY SRI. H.V. HARISH, ADVOCATE)
AND:
SMT. MADHAVI
D/O. LATE MADAIAH,
AGED ABOUT 53 YEARS,
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
R/A NO.14, "JANANI",
Location: HIGH COURT OF
KARNATAKA 11TH MAIN, 2ND CROSS,
HANUMANTHANAGAR,
BENGALURU-560 019.
...RESPONDENT
(BY SRI. SHARATH CHIDARAVALLI, ADVOCATE (ABSENT))
THIS MFA IS FILED U/S 19(1) OF FAMILY COURT ACT,
AGAINST THE JUDGEMENT AND DECREE DATED 02.07.2019 PASSED
IN M.C.NO. 723/2013 ON THE FILE OF THE IV ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE
PETITION FILED UNDER SECTION 13(1)(ia) OF THE HINDU
MARRIAGE ACT.
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MFA No. 7403 of 2019
THIS APPEAL, HAVING BEEN RESERVED FOR JUDGEMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, UMESH M. ADIGA,
J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR JUSTICE UMESH M ADIGA
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE UMESH M ADIGA)
Petitioner in M.C.No.723/2013 has preferred this
appeal, challenging the judgment and decree dated
02.07.2019 passed by the IV Additional Principal Judge,
Family court, Bengaluru (for short 'trial court'), dismissing
the petition filed by him under Section 13(1)(ia) of Hindu
Marriage Act, 1955.
2. For the sake of convenience, we refer to the
parties as per their ranks before the trial court.
3. It is the case of the petitioner that his marriage
was solemnized with respondent on 23.01.2003 at SBN Hall,
Near Doddaganesha Temple, Bengaluru as per the Hindu
rites and customs prevailing in their community. Prior to
marriage with the respondent, petitioner had a wife but that
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marriage had been dissolved by a decree of divorce. He
informed these facts to the respondent prior to his marriage
with respondent. Respondent was elder to him. At the time
of marriage, petitioner was working in PWD as Engineer.
Respondent was also working in Kidwai Cancer Institute,
Bengaluru, as Assistant Social Welfare Officer. After
marriage, respondent joined the petitioner and both of them
were residing in a house situated at Bannerghatta road;
thereafter, at the instance of respondent, they took a house
at Hanumanthanagara and started residing in the said house.
The relationship between them were cordial and they lead a
happy matrimonial life.
4. It is the further case of the petitioner that a few
days after the marriage, respondent used to nag the
petitioner in a rude manner saying that it was his second
marriage and she sympathetically considered his case and
married him. She was insisting the petitioner not to talk
with his parents as well as any of his relatives. She never
allowed the petitioner to bring his parents as well as his
relatives to his house. She was suspecting the character of
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the petitioner for untenable reasons. Because of her
suspicious character, she was suspecting that petitioner had
illicit relationship with his colleagues and friends working in
his office. Even she did not allow the petitioner to have a
physical relationship with her. She was not allowing him to
sleep peacefully during night and she was picking up quarrels
in the night for one or the other reasons and many times she
assaulted the petitioner and used to abuse him in filthy
language. She was not cooking food at home. She was
talking to her friends during night over telephone for a long
durations. Whenever petitioner was advising her to behave
properly, she was threatening him that she would file a false
complaint on him in the police station. Even her brothers
used to call the petitioner on phone and threaten him with
dire consequences to follow the directions of respondent.
Petitioner requested the elders of the family of respondent to
advice her to lead happy and peaceful marital life with him.
Inspite of their advice, the respondent did not correct herself
and continued her misbehavior with the petitioner.
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5. It is further case of the petitioner that respondent
had lodged the complaint against him and his family
members with a false allegations that they were harassing
her for dowry. On the said complaint, police registered a
case, which forced petitioner and members of his family to
obtain anticipatory bail from the competent court. When
respondent came to know that the petitioner had obtained
anticipatory bail from competent court, again she threatened
petitioner that she would file complaint against him and his
family members and once again lodged complaint before the
police station and on that basis police again registered an
FIR for the offences punishable under Sections 415, 495,
107, 116, 114 read with Section 34 of IPC. Because of
which, once again, petitioner and members of his family
approached the competent court for grant of anticipatory bail
and obtained anticipatory bail from the competent court on
21.01.2013. Thereafter, respondent forcefully threw the
petitioner out of the matrimonial house and thereafter the
petitioner has been residing in one of his friends house. The
petitioner tried his level best to settle the dispute and live
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peacefully with respondent. However, due to non co-
operation of the respondent, he could not continue his
marital life. With these reasons, the petitioner prayed for
granting decree of divorce, dissolving the marriage between
him and the respondent held on 23.01.2003 at SBN Hall,
Near Doddaganesha Temple, Bull temple road, Bengaluru.
6. Respondent denied the contentions of the
petitioner in respect of allegations made against her. She
admitted her relationship with the petitioner and the
marriage between them. She has contended that till the
filing of this petition, she was unaware of the first marriage
of petitioner with another woman and obtaining of divorce by
the petitioner from the said marriage. She denied that it
was intimated to her prior to marriage with petitioner. She
has further contended that both were leading happy marital
life till December, 2012. In the month of December 2012,
petitioner left the matrimonial house without informing the
respondent. Thereafter, petitioner completely neglected the
respondent and failed to discharge his marital duties and
changed his behaviour towards respondent. He mentally
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harassed her and manhandled her and when situation
reached the extreme, she gave complaint to the jurisdictional
police. The respondent never persuaded the said complaint
filed against the petitioner. She has never come out from
the matrimonial house and on the contrary, petitioner
himself left the matrimonial house without any reasonable
cause. Respondent tried to settle the dispute and requested
the family members to advise the petitioner so that she can
lead a happy marital life with petitioner and inspite of said
advice, the petitioner did not agree. With these reasons, she
prayed to dismiss the petition.
7. The petitioner examined himself as PW-1 and got
marked 3 documents as per Exs.P-1 to P-3. The respondent
examined RWs.1 to 3 and got marked documents as per
Exs.R1 to R11.
8. We have heard the arguments of learned counsel
for appellant. The learned counsel for respondent did not
argue the matter.
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9. The learned counsel for appellant submits that
this petition is filed on the ground of cruelty of wife seeking
divorce. The petitioner was examined as PW-1 and in his
evidence has narrated the entire facts of the case. During
his cross-examination nothing was brought out to discard his
evidence. Marriage of petitioner and respondent had taken
place during the year 2003. With all these difficulties, up to
December, 2012 nearly for a period of 9 years, petitioner has
tolerated all the harassment of the respondent. Respondent
was harassing him on the ground that it was his second
marriage. It is stated in the petition as well as in the
evidence of PW-1 that prior to his marriage with the
respondent, he has disclosed these facts to respondent and
there was no reason for him to suppress it. It is also
pertinent to note that in age, respondent was elder to the
petitioner. But still he agreed to marry her with an intention
to lead happy and peaceful marital life. Due to adamant
behavior of respondent, she could not lead normal marital
life. Respondent never allowed the petitioner to bring his
parents to his house and even she did not like his relatives
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coming to his house. Absolutely, the relationship between
petitioner with his relatives were cut off after the marriage
with respondent. She did not comply matrimonial
obligations. She did not cook food for petitioner, on the
contrary, forcing him to wash her clothes. As a dutiful
husband, he insured his life and made her a nominee. He
purchased site in a joint name though entire amount of sale
consideration was paid by him. He obtained a house
property on lease by paying advance amount from his salary.
He took maximum care of her health and she was unable to
conceive because of health issues. Even he has consented
for infertility treatment. Even though she was unable to
conceive, he did not make any grievance about the same. In
spite of all these co-operation from the petitioner,
respondent was harassing him and even she was not
permitting him to have a physical relationship with her. She
did not allow him to have a peaceful sleep during the night
and use to quarrel on one or other reasons during the night.
By all these reasons, she made his life miserable. In
addition to that, she was suspecting that he was having illicit
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relationship with his colleagues working in his office and
suddenly use to visit his office to know the same. On the
basis of some alleged messages, she even lodged complaint
against him alleging that he married illegally one Ashwini
and a criminal case was registered against the petitioner and
his relatives and he has been facing trial in the said case.
Even prior to that, she lodged complaint against the
petitioner and his relatives alleging that they had demanded
dowry from her. All these reasons, clearly show that she had
treated the petitioner cruelly and made his life miserable and
it was difficult for the petitioner to lead marital life with her.
The learned trial Judge has not at all considered these facts
and held that it was natural wear and tear of the family and
on that basis divorce cannot be granted and it does not
amount to cruelty. The said findings of the learned trial
judge is erroneous.
10. The learned advocate for appellant further
submits that the learned trial Judge has dismissed both the
petitions filed under Section 13 as well as Section 9 of the
Hindu Marriage Act. The petitioner has filed the petition
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under Section 13(1)(ia) of Hindu Marriage Act, for divorce on
the ground of cruelty and it was also dismissed. The learned
trial Judge observed that in view of the marriage of the
petitioner for the second time during the life time of first wife
as alleged by respondent, it was not a fit case to allow the
relief of restitution of conjugal rights and hence petition filed
by respondent under Section 9 of Hindu Marriage Act was
also dismissed. That discloses the perversity of the learned
trial Judge in passing the impugned judgment.
11. The learned counsel for the appellant has further
submitted that respondent threw the petitioner out of
matrimonial house during the year 2012. The fact of living
separately from the year 2012 is not in dispute. It is not in
dispute that the appellant has tried his level best to settle
the issues. However, it is not materialized and respondent is
adamant and illegally and falsely she had filed complaint
against the appellant before the higher authority, because of
which enquiry was held against him. In the said
departmental enquiry, the disciplinary authority found that
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the allegation against the petitioner that he remarried
another woman during the lifetime of his first wife was not
proved. Similarly, she had lodged several complaint against
the petitioner and his relatives. The marital relationship
between the petitioner and respondent has irretrievably
broken down, therefore, it is a fit case for grant of decree of
divorce. The learned trial Judge has not at all considered
these facts and erroneously dismissed the petition.
Therefore, prayed to allow the appeal and grant the decree
of dissolving the marriage of the petitioner with respondent.
12. The respondent's counsel was absent through out
and after reserving the matter for judgment, he filed a
memo to provide him an opportunity to argue the matter.
To give an opportunity to him, the case was taken up and on
that day also the learned counsel for respondent did not
appear to argue the matter.
13. The following questions emerges for our
determination:
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i. Whether the learned trial Judge is justified in
dismissing the petition filed under Section
13(1)(ia) of the Hindu Marriage Act, 1955?
14. Our answer to the above question is in the
Negative for the following reasons:
Both the side parties have led evidence and counter
evidence. PW-1 in his evidence has reiterated the petition
averments. According to him, respondent was not allowing
him to talk to his parents or his relatives and even she was
not allowing him to invite his parents as well as his relatives
to his house. Respondent was hating his relatives and
therefore, she never used to have contact with them. In the
cross-examination of RW-1, she has stated that the
petitioner has got a big family, he has five brothers and one
sister. All the brothers of the petitioner were residing
separately and at the time of her marriage with the
petitioner, parents of the petitioner were alive and her in-
laws were residing in a village by name Kuppe of Kunigal
Taluk. She has further stated that she visited house of her
in-laws whenever petitioner used to take her. She had not
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attended any functions of petitioner's family. She had not
visited the house of any of his relatives. She justifies the
same that the petitioner did not take her along with him.
Therefore, she had not visited any of the relatives house of
the petitioner. From the answers given by respondent stated
above, one can infer that the contention of the petitioner is
probable.
15. It is not in dispute that they married in the year
2003 and till December, 2012, both were living together in
Bengaluru. Nearly, about 9 years, they resided together. It
is also not in dispute that none of the relatives of petitioner
had visited their house. These facts probabilise the
contention of the petitioner that due to attitude of
respondent, his relationship with his parents, brother and
sisters was cut off, definitely it amounts to cruelty.
16. The appellant in his pleadings as well as in his
evidence has stated regarding the torture given by the
respondent. He has stated that respondent was not cooking
food at home. He was not allowed to sleep peacefully during
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night. He was not allowed to have physical relationship with
respondent, on the ground he has extra marital affairs.
Respondent had filed criminal cases against him and his
relatives. She was forcing him to wash his clothes etc. It
appears he was denied basic necessaries. Said conduct of
respondent also amounts to cruelty. Respondent in her
pleadings and evidence has categorically admitted that the
petitioner was looking after her very well; he took insurance
policy and nominated her to receive benefits. He purchased
the site in the joint name of himself and respondent. He
took her to treatment for infertility. He has taken her to
different places on tour for which she has produced the
photographs. When such is the facts the contention of
respondent that petitioner was not taking care of her is not
believable. If petitioner was residing very happily with
respondent then why he would suddenly neglect or discard
her from December, 2012 and leave the matrimonial house ?
There is no proper explanation in this regard by the
respondent. It indicates that the respondent is suppressing
true facts from the court.
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17. It is the contention of the petitioner that
respondent was all the while threatening him that she would
file complaint against him and members of his family and
would see that they would be kept behind the bars. With the
said threat, she was directing him to follow all her directions.
Petitioner has stated that respondent had filed complaints
against him and members of his family i.e. about 2½ months
prior to he was thrown out off the matrimonial house and on
that basis, a case was registered against him and members
of his family for the offences punishable under Section 498A
and 506 read with Section 34 of the IPC and Section 3 and 4
of Dowry Prohibition Act. Filing of the complaint is not denied
by the respondent. According to her, petitioner harassed
her, therefore for the purpose of threatening him, she lodged
a complaint and she did not pursue the said case and she did
not pursue to file a charge sheet against the petitioner. It is
pertinent to note that it was a criminal case and no question
of persuasion is required for investigation of the matter.
Petitioner is a Government servant and working in PWD as a
engineer. Filing a criminal case against the petitioner
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definitely affects his service carrier. Respondent is also a
Government servant. She must know that if any criminal
case is registered or if a government servant is arrested and
detained in custody for more than 48 hours, there is every
likelihood of keeping such a Government servant under
suspension and holding a departmental enquiry, if it is
proved, he could be removed from service. Knowing fully
well about these facts, she lodged a complaint and says that
she did not pursue the said complaint. The said conduct of
respondent definitely amounts to cruelty. Every human
being has a self respect and he has every right to maintain
his self respect. If he did not demand dowry and harassed
her for purpose of dowry, then why she should complain
casually against him and the members his family? It is
abuse of process of law. Theses facts were not considered by
the learned trial Judge.
18. It is the contention of the petitioner that
respondent was always suspecting him and alleging that he
had extra marital relationship with one of the colleague
working in his office. The petitioner in the cross-examination
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of respondent has suggested that respondent frequently
visited the office of the petitioner to verify his presence in
the office. This fact was denied by the respondent but from
the facts of the present case, the said suggestions cannot be
ruled out. It is allegation of the respondent that petitioner
had married a lady by name Ashwini during the year 2013
and at the abetment of brother of Ashwini by name
Narayana, he married the said Ashwini. It is also stated by
the respondent that the said Ashwini and Narayana used to
send vulgar messages to her and abusing her through
messages and insisting her not to live with the said
petitioner since Ashwini had married him. A criminal case
was also registered against the petitioner herein and others
and the case is pending before the competent court. Since
the matter is pending before the criminal court, it is burden
on the prosecution to prove as to whether petitioner had
married another lady during the subsistence of marriage with
respondent.
19. RW-1 to 3 in their evidence have stated that on
the basis of the messages sent by Smt. Ashwini and the said
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Narayana, she lodged the complaint and she has not
witnessed the marriage of petitioner with Ashwini. It has
also come in the evidence that respondent has filed original
suit seeking a relief of declaration to declare that the said
Ashwini is not a legally wedded life and the said marriage is
void. It is pertinent to note that respondent did not examine
any of the witnesses to the said marriage. During the course
of the arguments in appeal, the learned counsel for appellant
has produced memo along with the copy of the enquiry
report submitted by the enquiry officer in the Departmental
enquiry held against the appellant-petitioner. In the said
case, the Disciplinary Authority, after appreciating the
evidence held that respondent herein was unable to prove
that petitioner has married for second time during the
subsistence of his marriage with respondent. Hence, he was
exonerated from the said departmental proceedings.
20. Respondent contends that she wants to continue
matrimonial relationship with petitioner. If the petitioner had
already married to Ashwini, then it is difficult to believe that
respondent would share bed with the petitioner who is said
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to be married another lady during subsistence of his
marriage with her. The contention of respondent is that
petitioner filed this application with an intention to regularize
his marriage with Ashwini if the divorce is granted. The said
contention appears to be not tenable. A criminal case was
registered and it appears to be on trial. If marriage of Smt.
Ashwini with petitioner is proved then as on the date of the
said marriage, he was not a divorcee and divorce given to
any spouse is not a retrospective effect and it has
prospective effect. Even if he had committed an offence
punishable under Section 494 of IPC, i.e marrying another
lady during subsistence of the earlier marriage then he is
liable for punishment. Therefore, the said contention that if
he gets divorce from respondent then he could regularize his
marriage with Ashwini is not legally tenable contention.
21. The petitioner has proved that due to unbearable
torture and cruelty, he could not lead marital life with the
respondent. Under such circumstances, the learned trial
Judge has not considered these facts properly and on the
basis of law laid down by the Hon'ble Apex court, it was held
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that it is a natural wear and tear of the family and it is not
sufficient ground to grant divorce. It is true that the
allegation made by the petitioner that respondent was not
preparing food at home and etc., may be a wear and tear of
the family and that cannot be considered seriously by the
court to grant divorce. But as already discussed in above
paragraphs, the allegations alleged against the respondent
by the petitioner are different. They cannot be considered as
natural wear and tear in the family. The grounds stated
above certainly amounts to cruelty and it is proved by the
petitioner. Therefore, petitioner was entitled for the decree
of dissolving the marriage with respondent.
22. In the objections, repeatedly it is stated that she
could not conceive and once she had conceived but it was
aborted due to some medical reasons. Even she tried for
infertility treatment but was not successful. Probably this
might be one of the reasons for her depression. This might
have resulted in often dispute between the petitioner and
respondent. These factors must have created some problem
in the relationship between the petitioner and respondent.
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Cumulative effect of the same was the disharmony in the
family, which resulted in treating petitioner with cruelty.
Petitioner reached such a situation, as he found that there
was no other go but to seek for divorce and he filed a
petition for divorce. For the aforesaid discussions, the
petitioner is entitled for dissolving of his marriage with
respondent.
23. If we consider the case on practical view then
even if the appeal is dismissed the status of parties may not
change. It is not in dispute that from December, 2012
onwards, both petitioner and respondent are residing
separately. Their relationship was strained and has broken
down. After he left the matrimonial home, it was alleged
against him that the he married for second time with a lady
by name Ashwini for which a complaint was given by
respondent against the petitioner and the investigating
officer after recording the statement of witnesses, has
charge sheeted the petitioner along with some others for the
said offences. When such is the case, it is difficult to believe
that she would accept the petitioner even though he married
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for the second time during the subsistence of his marriage
with her. Therefore, it appears, she did not challenge the
order passed by the family court, filed under Section 9 of
the Hindu Marriage Act. Looking to these situation, the
relationship between petitioner and respondent became
irretrievably broke down. Therefore, it is a fit case to grant
relief of divorce. For the above said discussions, we pass the
following:
ORDER
i. The appeal is allowed.
ii. The judgment and decree passed in
M.C.No.723/2013 dated 02.07.2019 by IV
Additional Principal Judge, Family Court, Bengaluru
is set aside.
iii. The marriage solemnized between the
petitioner and respondent on 23.01.2003 at SBN
Hall, Near Doddaganesha temple, Bengaluru is
dissolved by decree of divorce.
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iv. All the pending applications stand disposed
off as it do not survive for consideration.
Registry is directed to send back the records along with
the copy of the judgment to the trial court.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
AG
