Basawaraj vs Sujata

M.G.S. Kamal, J

This appeal under Section 19(1) of the Family Courts Act filed by appellant-husband aggrieved by the Judgment and Order dated 07.10.2014 passed

in M.C.No.71/2013 on the file of the Judge, Family Court, Bijapur, dismissing his petition seeking dissolution of marriage.

Brief facts of the case are that marriage of the appellant with the respondent was solemnized on 28.06.2004 at KEB Mangal Karyalaya of Bijapur

town as per the Hindu rights and customs. After the marriage, appellant and respondent lived as husband and wife happily only for a period of six

months. That thereafter, the respondent was quarreling with the appellant and his parents demanding a separate accommodation and luxurious life.

That the appellant was unable to cater to the demands of the respondent- wife. The appellant had no regular source of income. That the respondent

was abusing the appellant and his parents and expressing her superiority complex and abused them in the presence of the neighbours, friends and

relatives of the appellant. The respondent had developed hatredness towards the appellant and his parents. That the respondent being the only

daughter of her parents, she left the company of the appellant during the year 2006 and went to her parental house and filed a false complaint before

the Police against the appellant and his parents. That after the trial, the appellant and his parents were acquitted. That there was no justifiable reason

for the respondent to have left the company of the appellant. Consequently, the appellant had filed a petition under Section 9 of the Hindu Marriage

Act, seeking relief of restitution of conjugal rights in M.C.No.110/2011 which was allowed. Despite the aforesaid order directing the respondent to join

the marital life with the appellant, the respondent refused. Finding no other alternate, the appellant filed the petition under Section 13(1)(ia)(iii)(a) of the

Hindu Marriage Act, 1955, seeking grant of decree of divorce.

On service of summons, the respondent appeared and filed statement of objection, admitted the relationship, denied all the averments and allegations

in the petition. It is the specific case of the respondent that she had led marital life with the petitioner upto 2012 and that she is ready and willing to

lead marital life with the petitioner. That out of the marriage, male child was born who is studying in 1st standard. That it was the appellant who had

deserted the respondent and the son without providing for maintenance for their livelihood. That the appellant at the instigation of his parents and sister

was torturing the respondent physically and mentally. That the respondent tried her level best to adjust and live with her parents and his parents, but in

vein. The petition for restitution of conjugal rights was filed with an intention to create grounds for the petitioner for divorce. It is her case that she is

ready and willing to join the appellant and lead marital life for the sake of their son. Hence, sought for dismissal of the petition.

Upon the pleadings, the Family Court framed the following points for consideration and recorded the evidence:

i) Whether the petitioner proves that the respondent has caused him cruelty both physically and mentally and thereby a decree of divorce be granted in

favour of the petitioner as sought?

ii) Whether the petitioner proves that the respondent is staying away from him since more than one year even after the passing of the decree of the

restitution of the conjugal rights against the respondent as alleged?

iii) Whether the petitioner proves that he is entitled for the relief of the decree of divorce against the respondent as claimed?

iv) What order?

The appellant examined himself as P.W.1 and produced two documents-ExP1 and P2 while respondent-wife examined herself as D.W.1 and did

not produce any document. The Family Court dismissed the petition filed by the appellant negating all the points. Being aggrieved by the aforesaid

Judgment and Order, the appellant is before this Court.

Heard the learned counsel for the appellant.

It is necessary at this juncture to mention that the counsel who represented respondent was elevated as Hon'ble Judge of this High Court.

Consequently, this Court issued notice to the respondent. The said notice was served on the respondent through the office of Principal District and

Sessions Judge, Vijayapura. Despite the service of notice, respondent has remained unrepresented.

Perused the records.

The marriage is of the year 2004. According to the appellant, the respondent has been living separately from the year 2006. The appellant/husband

has reiterated the petition averments in his evidence. The respondent-wife has deposed that the appellant and his parents used to abuse, assault and ill-

treat the respondent both physically and mentally constraining her to file complaint against the respondent and her parents in C.C.No.377/2011 on the

file of III Addl. Senior Civil Judge and JMFC, Bijapur. The appellant has been acquitted in the said case.

The Family Court referring to the said filing of the complaint by the respondent, has opined that ""As on the date of filing of the said complaint,

respondent must have been subjected to cruelty by the appellant and his parents and has further opined that after filing the complaint at the advice of

the elders and in order to save her husband, she had given false evidence against the appellant to acquit him from the case.

The respondent has further deposed that her father-in-law had tried to snatch her saree with an intention to outrage her modesty. On this

allegation, the Family Court has reasoned as under:

In this regard when a father-in-law of the respondent, who has to give more love and affection towards his daughter-in-law as his own daughter, he

cannot snatch the saree of the respondent. Therefore, even if the said allegation has not been proved by the respondent against her father-in-law, it is

sufficient that when the respondent makes such grave allegation more particularly, she filed a complaint before the police against her father-in-law, it

is sufficient that when the respondent makes such grave allegation more particularly, she filed a complaint before the police against her father-in-law

and the petitioner, this itself fortifies the fact that the petitioner and his parents must have been caused cruelty to the respondent both physically and

mentally.

Based on the aforesaid reasoning, the Family Court has declined to accept the case of the appellant that the respondent was causing cruelty to the

petitioner and his parents. This in our considered view, is incorrect approach by the Family court. The averments and allegation if any made should be

proved with the probable evidence and the same cannot be lent for presumption and surmises. In the instant case, it is clear that the complaint filed by

the respondent in C.C.No.377/2011 before III Addl. Senior Civil Judge and JMFC, Bijapur against the appellant and his parents has resulted in their

acquittal. The Family Court has taken this to be grace shown by the respondent in having her husband acquitted without there being any material in

this regard. It is another matter of justification for above reasonings if the matter had resulted in compromise or compounding of the offence. In the

absence of such material, the reasoning given by the Family Court cannot be accepted.

As regards the grounds of desertion, the appellant had earlier filed a petition under Section 9 of the Hindu Marriage Act in M.C.No.110/2001

seeking order of restitution of conjugal rights. The said application was allowed directing the respondent to join the appellant. Despite decree of

restitution of conjugal rights in M.C.No.110/2011, the respondent did not join the appellant. This constrained the appellant to file the present petition for

divorce on the ground of desertion. The Family Court has referred to the deposition of the respondent wherein she has stated that if in the event of

appellant arranging a separate accommodation near and around Ashrama in Bijapur, she is ready and willing to join him and lead the life. Taking this

answer of the respondent, the Family Court has concluded that the respondent was still ready and willing to lead marital life with the petitioner if he

arranged a separate residence for her stay and that the said conduct of the respondent would not amount to desertion as there was no ""animus

decedendi"". The Family Court has further referred to the allegation of the respondent against the father of the appellant allegedly trying to snatch her

saree and trying to outrage her modesty and alleged abuse and assault to be the acceptable the reasons and circumstances for respondent to justify

her refusal to reside with the appellant along with father-in-law and mother-in-law. It has concluded that the respondent was not at wrong path when

she pleaded that she wanted to lead a marital life with the appellant by staying away from the parents-in-law. On these observations, the Family Court

has concluded that the appellant failed to prove the cruelty and the desertion resulting in dismissal of the petition.

Admittedly, marriage is of the year 2004 and the respondent has been living with her parents after the year 2012. The child which is born of the

marriage is aged 7 years. The respondent despite service of notice, has not contested the matter. It was mentioned at the bar that efforts were made

for reconciliation even during pendency of the present appeal, however, the respondent has not shown any interest in reconciling the matter. The

respondent being aware of the pendency of the appeal and despite service of court notice as stated above, has remained absent. That apart we do not

find the reasons assigned by the Family Court in dismissing the petition filed by the appellant are sound and proper.

The family court could not have negated the case of cruelty merely accepting the allegation of respondent that the father-in-law had tried to

outrage her modesty, without there being cogent evidence in this regard. The very fact that the respondent-wife has been residing separately even

prior to initiation of the proceedings refusing to join the appellant on a condition of he arranging a house near or around Ashrama at Bijapur cannot be

countenanced as sufficient cause. The respondent-wife has not led any independent evidence to prove her allegation against her father-in-law, except

her self-serving statement. Filing of complaint against the appellant and his parents resulting their acquittal and making unsubstantiated serious

allegations against the father of the appellant would definitely amount to cruelty. Based on the material and evidence on record, we conclude that the

appellant-husband has proved cruelty and desertion against respondent-wife.

In the facts and circumstances of the above matter, we are of the considered view that the appeal deserves to be allowed and the order dated

07.10.2014 passed by the Family Court in M.C.No.71/2013 on the file of the Judge, Family Court, Bijapur is liable to be set aside.

We are present to the fact that the minor child is with the respondent. Appellant is bound to provide financial support. Therefore, we deem it

appropriate to make suitable provision in this regard. Accordingly, the petitioner is directed to deposit a sum of Rs.5,00,000/- in the joint name of the

respondent and the minor child till he attains the age of majority. In addition, the appellant is directed to pay a sum of Rs.3,000/- p.m., towards the

maintenance of the minor child. It is however, made clear that the respondent will be entitled to seek permanent alimony if she is suitably advised and

if she is entitled to in accordance with law. This would meet the ends of justice in the facts and circumstances of the case.

For the aforesaid reasons, Appeal is allowed and the Judgment and Order dated 07.10.2014 in M.C.No.71/2013 on the file of the Judge, Family

Court, Bijapur, is set aside. Consequently, M.C.No.71/2013 is allowed and marriage solemnized between appellant and respondent on 28.06.2004 is

dissolved and decree of divorce is granted.

Appellant is directed to deposit Rs.5,00,000/- within four weeks from today in the joint names of the minor child and the respondent till the minor

attaining the age of majority. It is made clear that withdrawal of the said amount shall be with the prior permission of this Court. Appellant shall pay

Rs.3,000/- every month towards maintenance of the minor child.