ASHOK S/O NINGAREDDI KENCHAREDDI vs SMT.SHAMALA, W/O ASHOK KENCHAREDDI

The appellant-husband has filed this appeal

under Section 28 of the Hindu Marriage Act, 1955,

challenging the order and decree dated 26.09.2014

passed by the Addl. Senior Civil Judge, Gadag, sitting at

Laxmeshwar (hereinafter referred to as the ''Court

below'', for short), in M.C.No.26/2011, dismissing the

petition filed under Section 13(1) of the Hindu Marriage

Act, 1955 (hereinafter referred to as ''the Act'', for short),

seeking dissolution of marriage with the respondent -

wife.

The present appellant - husband was the

petitioner in the Court below, who had filed a petition

under Section 13(1) of the Act, seeking a decree of

divorce by dissolving his marriage said to have been

performed with the respondent on 02.07.1998. In his

memorandum of appeal, the appellant - husband has

taken a contention that the Court below erred in

disbelieving the evidence of PW1 to PW4, who had

supported the case of the petitioner. It also erred in

arriving at a conclusion that there was no sufficient

evidence on record to hold that the respondent had

deserted him. The appellant has further stated that the

finding of the Court below that the respondent had an

intention to lead marital life and it was the appellant

who had driven her out of her matrimonial home was

also unfounded one. With this, he has prayed for setting

aside the order and decree under appeal.

On notice being issued, respondent - wife has

appeared through her counsel Sri. Sachin S. Magadum.

The records of Court below were called for and the same

are placed before us.

Heard the arguments from both sides and

perused the memorandum of appeal, impugned

judgment and the entire materials placed before this

Court.

The point that arises for our consideration is:

"Whether the appellant - husband has

made out grounds for setting aside

the order and decree of the Court

below?

For the sake of convenience, the parties would

be referred to with the ranks they were holding

respectively in the Court below.

The summary of the case of the petitioner in the

Court below is that, he married the respondent on

02.07.1998 at Magod village as per the customs

prevailing in their community. After marriage, they led

marital life and begot a female child by name Apeksha.

Because of his avocation, the petitioner was living at

Bengaluru with the respondent. After the marriage, the

respondent started to harass the petitioner despite of

love and affection shown towards her by him. She was

considering that the petitioner was not a suitable match

for her and was exhibiting her superiority complex. The

respondent was tolerating all these acts and cruelty

meted out to him by the respondent. The act of the

respondent meeting cruelty was even extended to their

daughter, to whom she was beating quite often. The

respondent used to abuse the petitioner in front of the

neighbors. When mother of the respondent had visited

their house, the respondent joined her mother and

returned to her matrimonial home at Laxmeshwar,

without even informing to the petitioner. The request

of the petitioner calling her back to the marital home

went in vain. On the contrary, both the respondent and

her parental family members abused him in filthy

language. With this, on the ground of cruelty and

desertion, he has prayed for dissolution of marriage by a

decree of divorce.

The respondent appeared in the Court below and

has filed her statement of objection. In the said

statement of objection, though she admitted that her

marriage with the petitioner was solemnized on

02.07.1998, but denied all other allegations that she

was subjecting her husband to mental cruelty and her

child to physical cruelty and also the allegation that she

willfully deserted her husband. She further stated that,

out of their wedlock, she has given birth to two children,

incidentally both were daughters. It is her contention

that, since both the children were daughters, she was

subjected to cruelty by her husband. She went to the

extent of alleging that her husband drove her out from

his house and as such, she was compelled to file

maintenance case against him in Criminal

Misc.No.41/2005. She has further alleged that her

husband demanded her to bring Rs.1,00,000/- and other

valuables from her parents'' house. She specifically

alleged that in February 2005, when she went to her

matrimonial home, her husband, stating that she should

enter his house with a cash of Rs.1,00,000/- and other

valuables, refused to admit her to the house and sent

her back to Laxmeshwar. He did not accede to the

advice of elders. It is for this reason, she has filed the

maintenance petition against her husband. With this,

she prayed for dismissal of the petition.

Based on the pleadings of the parties, the Court

below framed the following issues:

i. Whether the petitioner proves that the

respondent has subjected him to cruelty

and withdrawn his society without

reasonable cause?

ii. What order?

In support of his case, the petitioner got examined

himself as PW1 and got examined 3 other witnesses as

PWs. 2, 3 and 4 respectively. He got produced a copy of

legal notice, postal receipt and reply notice, and marked

them as Exs.P1, P2 and P3 respectively. On behalf of

the respondent, the respondent got herself examined as

RW1 and examined one more witness from her side as

RW2 and got produced copy of the order sheet and

petition sheet in P.C.No.44/2009 as Exs.R1 and R2, a

copy of marriage invitation card as Ex.R3 and copies of

statements as Exs. R4 and R5.

After hearing both sides, the Court below by its

order and decree dated 26.09.2014, dismissed the

petition filed by the petitioner - husband. It is the said

order and decree, the petitioner - husband has

challenged in this appeal.

Even though the petition in the Court below has

been filed under Section 13(1) of the Act, but the main

grounds canvassed by the petitioner - husband in his

petition as the grounds for seeking divorce are that, the

respondent - wife has, after solemnization of marriage,

treated the petitioner with cruelty and that she deserted

him. The said two grounds were the grounds available

under Section 13(1)(i)(ia)(ib), which are reproduced

hereinbelow:

Divorce-

(1) Any marriage solemnized, whether

before or after the commencement of

the 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-

(i) xxxxxxxxxxxxxx

(ia) has, after the solemnization of the

marriage, treated the petitioner with

cruelty; or

(ib) has deserted the petitioner for a

continuous period of not less than two years

immediately preceding the presentation of

the petition; or

ii)xxxxxxxxxxxxxxxxxx

Either the word ''cruelty'' or the word ''desertion'' has

not been defined in the said Act. However, their

meaning and parameters can be understood in the light

of judicial interpretation given in various judgments by

the Hon''ble Supreme Court of India.

In Vinita Saxena Vs. Pankaj Pandit , reported in

(2006) 3 SCC 778 , the Hon''ble Apex Court was

pleased to make the following observations in para 32 to

36 of its judgment:

"32. The word ''cruelty'' has not been defined

and it has been used in relation to human

conduct or human behaviour. It is the

conduct in relation to or in respect of

matrimonial duties and obligations. It is a

course of conduct and one which is adversely

affecting the other. The cruelty may be

mental or physical, intentional or

unintentional. There may be cases where the

conduct complained of itself is bad enough

and per se unlawful or illegal. Then the

impact or the injurious effect on the other

spouse need not be enquired into or

considered. In such cases, the cruelty will be

established if the conduct itself is proved or

admitted.

The cruelty alleged may largely depend

upon the type of life the parties are

accustomed to or their economic and social

conditions, their culture and human values to

which they attach importance. Judged by

standard of modern civilization in the

background of the cultural heritage and

traditions of our society, a young and well

educated woman like the appellant herein is

not expected to endure the harassment in

domestic life whether mental, physical,

intentional or unintentional. Her sentiments

have to be respected, her ambition and

aspiration taken into account in making

adjustment and her basic needs provided,

though grievances arising from

temperamental disharmony are irrelevant.

This view was taken by the Kerala High Court

in Rajani V. Subramonian , reported in AIR 1990 Ker 1.

In 1993 (2) Hindu LR 637(sic), the Court

had gone to the further extent of observing

as follows:

"Sometime even a gesture, the angry

look, a sugar coated joke, an ironic overlook

may be more cruel than actual beating"

Each case depends on its own facts and

must be judged on these facts. The concept

of cruelty has varied from time to time, from

place to place and from individual to

individual in its application according to social

status of the persons involved and their

economic conditions and other matters. The

question whether the act complained of was a

cruel act is to be determined from the whole

facts and the matrimonial relations between

the parties. In this connection, the culture,

temperament and status in life and many

other things are the factors which have to be

considered.

The legal concept of cruelty which is not

defined by statute is generally described as

conduct of such character as to have caused

danger to life, limb or health (bodily and

mental) or to give rise to reasonable

apprehension of such danger. The general

rule in all questions of cruelty is that the

whole matrimonial relations must be

considered, that rule is of a special value

when the cruelty consists not of violent act

but of injurious reproaches, complains,

accusations or taunts. It may be mental such

as indifference and frigidity towards wife,

denial of a company to her, hatred and

abhorrence for wife or physical, like acts of

violence and abstinence from sexual

intercourse without reasonable cause. It must

be proved that one partner in the marriage

however mindless of the consequences has

behaved in a way which the other spouse

could not in the circumstances be called upon

to endure, and that misconduct has caused

injury to health or a reasonable apprehension

of such injury. There are two sides to be

considered in case of cruelty. From the

appellant''s side, ought this appellant to be

called on to endure the conduct? From the

respondent''s side, was this conduct

excusable? The court has then to decide

whether the sum total of the reprehensible

conduct was cruel. That depends on whether

the cumulative conduct was sufficiently

serious to say that from a reasonable

person''s point of view after a consideration of

any excuse which the respondent might have

in the circumstances, the conduct is such that

the petitioner ought not be called upon to

endure."

In Vishwanath Agrawal Vs. Sarla Vishwanath

Agrawal , reported in ( 2012) 7 SCC 288 , the Hon''ble

Apex Court after referring to some of its earlier

judgments was pleased to observe as;

"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 are

conditioned by their social status. The facts

and circumstances are to be assessed

emerging from the evidence on record and

thereafter, a fair inference has to be drawn

whether the petitioner in the divorce petition

has been subjected to mental cruelty due to

the conduct of the other."

With respect to ''desertion'', the Hon''ble Supreme

Court in Savitri Pandey Vs. Prem Chandra Pandey

reported in (2002) 2 SCC 73 at para 8 of its judgment

was pleased to observe as below:

"Desertion", for the purpose of seeking

divorce under the Act, means the

intentional permanent forsaking and

abandonment of one spouse by the other

without that other''s consent and without

reasonable cause. In other words it is a

total repudiation of the obligations of

marriage. Desertion, is not the withdrawal

from a place but from a state of things.

Desertion, therefore, means withdrawing

from the matrimonial obligations i.e., not

permitting or allowing and facilitating

cohabitation between the parties. The proof

of desertion has to be considered by taking

into consideration the concept of marriage

which in law legalises the sexual

relationship between man and woman in the

society for the perpetuation of race,

permitting lawful indulgence in passion to

prevent licentiousness and for procreation

of children. Desertion is not a single act

complete in itself, it is a continuous course

of conduct to be determined under the facts

and circumstances of each case."

It is in the light of the above decisions, the

evidence placed before the Court below is to be

analysed.

The petitioner - husband as PW1, in his

examination-in-chief has reproduced the contents of his

petition in the Court below. He has stated that many

times the respondent was telling him that he was not a

suitable match for her and exhibited her superiority over

him by saying that she was the daughter of an

advocate. She was also not giving respect to the

brothers, sisters and relatives who were visiting their

house. He has further stated that, she used to squeeze

their daughter Apeksha, thereby used to beat the child.

She was also not preparing food for them. He has

further stated, after birth of Apeksha, the respondent

refused to return to her matrimonial home. His personal

request asking her to return also went in futile. It is his

further case that, neither the respondent nor her

parental family members informed him about the

delivery of second child by the respondent. He has

further stated that, he issued a legal notice on

06.06.2005 through his advocate calling upon the

respondent to join him. Instead of returning home, the

respondent replied to the notice making false

allegations.

Denial suggestions were made in the cross-

examination of PW1, which he did not admit as true.

Since categorical denial suggestions were made to PW1

in his cross-examination, the mere evidence of PW1 in

his examination-in-chief itself about the alleged

desertion and cruelty are not sufficient and those

statements require further corroboration. In this regard,

the petitioner examined PWs. 2 to 4 in his support.

PW2 to PW4 claimed themselves to be the persons

knowing the petitioner. PW2 - Sri. Basavaraj R. Beleri,

in his examination-in-chief has stated that the

respondent, whom also he knows, was mentally

harassing the petitioner since the date of their marriage.

Intentionally she has deserted her husband. However,

in his cross-examination, he has stated that it is only the

elder brother of the petitioner who is known to him since

his house and their house were adjoining houses in

Haliyal, Karwar in U.K. District. Interestingly, in his

cross-examination, this witness has stated that, from

the year 1994 to 2006, he was at Haliyal, but he has

further stated that the petitioner and respondent, after

their marriage were living at Bengaluru, it is only the

petitioner on his visit to Haliyal, when stated about the

alleged differences between himself and his wife, he

came to know about it. This witness has further stated

that he does not know at present where the petitioner

is.

In this way, the statement made by this witness in

his examination-in-chief was thoroughly shaken and

dismantled in his cross-examination by the respondent''s

side. It was brought in his cross-examination that PW2

had no personal knowledge or information about the

family and living of the parties to the petition. He was

only a hearsay witness with certain assumptions on his

part. As such, his evidence would in no way strengthen

the case of the petitioner.

PW3 - L. M. Koppad, whose examination-in-

chief in the form of affidavit evidence is nothing but a

copy of the affidavit evidence of PW2. In his cross-

examination, it was elicited that many of the details of

the family of the parties to the petition are not to the

knowledge of this witness. Neither he knows the

address of the residence of the parties nor the details of

their children, nor even the area of parental home of the

respondent. On the contrary, he claims that he had

visited the parental house of the respondent. Had it

really been true, he would have at least remembered

the name of the area in Laxmeshwar town, where the

parental house of the respondent - wife was said to be

situated. Therefore, even after claiming that he has

knowledge of the family of the parties to the petition,

when this witness was unable to answer many of the

basic and primary questions regarding the details of the

family of the parties to the petition, the evidence of this

witness does not inspire any confidence to believe.

The evidence of PW4 - Hanumantappa Bellahalli, is

also not an exception to the evidence of PWs. 2 and 3.

The examination-in-chief of this witness is also nothing

but one more copy of affidavit evidence of PWs. 2 and 3.

This witness in his cross-examination has clearly stated

that he does not know as to on what matter the dispute

arouse between the husband and wife. He has also

stated that he does not know what is written in his

affidavit evidence in the form of examination-in-chief.

In this way, the evidence of none of the witnesses from

PW2 to PW4 can be taken as a trustworthy and

corroborating evidence of PW1.

The respondent Smt.Shamala got herself

examined as RW1. In her examination-in-chief, she has

reiterated the contention taken up by her in her

statement of objection filed to the main petition. She

has reiterated that she has not deserted her husband,

but she was thrown out from the house from his

husband himself for the reason that she has given birth

to two female children and that she did not fulfill the

demand of her husband in getting Rs.1,00,000/- cash and

other valuable articles from her father. She has also

stated about she filing a Criminal Misc.No.41/2005

against her husband claiming maintenance from him and

categorically stated that her husband had undergone

second marriage with one Ms. Shanta on 17.10.2009 at

Shri. Shiddeshwara Kalyan Mantap, Ranebennur.

Challenging this act of bigamy by her husband, she has

filed a criminal case in the Court of JMFC at Laxmeshwar

in C.C.No.249/2013, which is still pending.

In her cross-examination, the suggestions made to

her to the effect that it was she who practiced cruelty

against her husband has not been admitted as true by

her. Except making some denial suggestions, nothing

could be elicited in her cross-examination form the

petitioner side. On the other hand, she has given some

more details about the maintenance case and bigamy

case said to have been filed by her. She got produced

and marked as exhibits the certified copies of

P.C.No.44/2009 as Exs.R1 and R2.

The respondent-wife in support of her evidence got

examined one Sri. Bharmappa Shirahatti as RW2. The

said witness, stating that he knows the complete details

of the family of the parties to the petition, has stated in

his examination-in-chief that it is the petitioner-

husband, who has deserted his wife and prior to which,

had subjected her to cruelty both physically and

mentally. Interestingly, in spite of granting sufficient

time, this witness was not cross-examined from the

petitioner - husband''s side.

Therefore, from the analysis of the above

evidence, of both the parties, it clearly go to show that,

after making certain allegations, the petitioner -

husband has failed to establish them viz., when the

respondent-wife was staying with him, she had

subjected him to cruelty in any manner, and further she

herself has deserted him and left for her parental home.

On the contrary, the respondent - wife through her

detailed and elaborative evidence, supported by Exs.R1

and R2 and more importantly through undisputed

evidence of PW2, has been able to establish that she has

not deserted her husband and not subjected him to

cruelty. On the contrary, she has made those

allegations against her husband including an allegation

of bigamy against him, which is still under trial before

the competent Court.

The above analysis go to show that the

petitioner - husband might have been of the nature of

expecting some extra high respect to him and his family

members from his wife and her parents and he was not

satisfied with what actually he was getting. It can be

further gathered from the evidence that, he wanted that

his wife should praise him even in front of their

neighbors and other people, which she did not do. By

such an act itself, it cannot be concluded that the

petitioner-husband was insulted by his wife or that he

was ill-treated. Therefore, it cannot be said that he was

subjected to cruelty by his wife. Similarly, the

respondent-wife, apart from dismantling the evidence of

PW1, insofar as the allegation of alleged desertion is

concerned, has further able to present her case to show

that she was deserted by her husband, which compelled

her to file a petition seeking maintenance from him.

These aspects have been appropriately analysed by the

Court below and the Court below has come to a right

conclusion holding that the petitioner before it has failed

to make out grounds entitling him for the relief of

dissolution of marriage with the respondent. As such,

we do not find any convincing ground to interfere in the

said observation made by the Court below in its order of

dismissal of the petition filed before it by the present

appellant.

Accordingly, we proceed to pass the following

order:

ORDER

The appeal is dismissed. No order as to costs.