B.R. Honneshagowda vs M.A. Manjula

N. Kumar, J.

This is husband''s appeal challenging the order of the Family Court dismissing the petition filed under Section 13(1)(1a)(1b) of Hindu Marriage Act.

For the purpose of convenience, the parties are referred to as they are referred to in the petition.

The petitioner- Sri Honnesh Gowda married the respondent-Smt. M.A. Manjula on 16.09.2007. After their marriage, respondent lived with the petitioner at P. Byadigere, Hagali Mandal, Madaksira Taluk, Ananthapura District, Andhra Pradesh for about one and a half month. During her stay, she used to quarrel with the petitioner and his parents and also demanded to get a separate house in a town or city. She was not co-operating with the petitioner in any respect. Petitioner is having old-age parents who are suffering from chronic ill-health. The respondent abused the petitioner and his parents in filthy language. She used to threaten the petitioner and his parents stating that she will commit suicide by writing a note stating that petitioner and his family members are the cause for her death. She also threatened them that she will file a dowry harassment case against the petitioner as well his family members. She gravely misbehaved with him and his parents and she has not shown any love and affection to the petitioner. The petitioner was tolerating the same in order to lead a good marital life and he made all efforts to correct her but everything went in vain. The respondent was dictating terms arbitrarily and made his life pitiable and miserable.

Further, he has stated the respondent subjected him to great mental cruelty and she has withdrawn from the society of the petitioner without any reasonable cause within one and a half month from the marriage. The petitioner convened many Panchayats with his parents and friends at the residence of respondent''s parents. But, she refused to lead marital life with the petitioner. He got issued legal notice on 18.3.2008. No reply was sent. Respondent got registered a false case against the petitioner and his father, brother and his brother''s wife as per the advise of her father before the JMFC Court at Sira in CC No. 1124/09 for the offence punishable under Section 498(a) of IPC R/w. Sections 3 and 4 of DP Act. She also filed a frivolous petition u/s. 125 of Cr.PC in Crl.Misc. No. 285/09 with an intention to cause unnecessary harassment to the petitioner and his age-old parents. He is not aware of the birth of a child to the respondent and he submits, he is not the cause for the birth of that child since there is no access between the petitioner and the respondent at any point of time.

The respondent deserted the petitioner from two years without discharging her marital obligations and never joined at any point of time. The petitioner is under the apprehension of danger to his life at the hands of the respondent and her father. They are threatening the petitioner with the help of rowdy elements who are strangers to the petitioner. Even recently, the respondent and her father trespassed the house of petitioner''s brother at Sira during the absence of petitioner and threatened the mother of the petitioner like anything. Hence, his mother was very much afraid due to their act and she fell ill about fifteen days. She had requested the petitioner not to give any complaint since the respondent and her father are wild people. He contends, he hails from remote village and he is a mild man having old age ill health parents. His family is a reputed family in their village and in the Society. The petitioner''s father is ''Yajamana'' of deity of a sub-caste and he was also demand like anything at the hands of the respondent and her father. The resumption of marital life is not possible under any circumstances and the restitution is not at all possible due to vital differences which cannot be bridged. Therefore, he prayed for dissolution of marriage.

After service of notice, the wife entered appearance. She filed statement of objections denying all the allegations. She admitted the marriage. She contends, after her marriage, she lead marital life with petitioner at his place Byadagere and out of their wedlock, a female child was born by name Latha. At the time of marriage, respondent''s parents gave Rs. 1,00,000/- cash and 50 grams of gold ornaments and 50 grams of silver as dowry to the petitioner. At that time, the brother of the petitioner and his wife instigated the petitioner to demand more dowry from the parents of respondent and they are giving mental harassment as well as physical harassment to the respondent. The petitioner also came in an intoxication condition and used to abuse her in filthy language by rising dispute with respect to demand of dowry. Even the petitioner is not able to maintain the respondent and her daughter by providing proper food and clothes and residence. Even he has not paid for their treatment. In those circumstances, the respondent filed a complaint before Sira Police which was registered in CC No. 313/2009 for the offence under Section 498(A) of IPC. She also filed a criminal Misc. 285/2009 for maintenance. At no point of time, she has tortured the petitioner nor his parents. In fact she was looking after them with love and affection. She is ready to lead marital life with the petitioner and she never left the house of petitioner at any point of time. Today also she is ready to lead happy life with petitioner but, the only condition is that, the petitioner should take care of her and her daughter by providing all requirements for leading better life. Therefore, she sought for dismissal of the petition.

On the basis of the above facts, the Trial Court framed the following points for consideration:

"1. Whether the petitioner made out a ground of divorce of cruelty against the respondent for granting decree of divorce.?

What order?"

The petitioner in order to substantiate his case, examined himself as P.W. 1 and four witnesses as PW.2 to 5 and produced 22 documents as Ex. P1 to P22. Wedding card and photos as Ex. P1 and Ex. P2. The respondent examined herself as RW.1 and no documents were produced on her behalf.

The Court below, on appreciation of the aforesaid oral and documentary evidence on record, held that, absolutely no evidence is adduced to substantiate his plea of cruelty except oral assertion by the petitioner and his parents in their evidence. It also recorded a finding that petitioner has not taken care of his wife and daughter on the contrary, his issuing notice regarding filing of case by the respondent would not constitute cruelty in the eye of law and therefore, dismissed the petition.

Aggrieved by the said order passed by the Family Court, instead of filing an appeal before this Court under the provisions of the Family Courts Act, the husband-petitioner has preferred RA and got an order saying the same is not maintainable. Thus, he preferred this appeal with an application for condonation of delay of 1008 days in preferring this appeal.

We have heard the learned counsel for the petitioner. The material on record discloses that marriage in question is an arranged marriage. After the marriage, both husband and wife lived together. Now a daughter is born to them whose name is Latha. It is the case of the petitioner that the respondent left his company within one and a half months. If they lived together for one and a half month in the matrimonial home, we do not see any semblance of material in the case of cruelty which is pleaded. On the contrary, the evidence on record shows, the petitioner appears to be a pan in his parents and elder brother''s hands. Petitioner is not concerned about his child and wife. Admittedly, he has not taken care of them. It is submitted that petitioner is employed in Bangalore Metropolitan Transport Corporation as Driver-cum-Conductor. The accusation by the petitioner against his wife is, she demanded a separate residence. His parents are aged and who are suffering from BP and Diabetes. It is on record that his elder brother after marriage, left his parents and residing separately. If the evidence of the wife has to be believed, after the marriage, they were living with the brother and not with their parents and brother and his wife have instigated the petitioner to get dowry from respondent''s parents house. It is because of either inability or refusal to pay the dowry, she has been thrown out of the house.

Unmistakably, in her evidence, the respondent has stated that even now she is ready and willing to live with the petitioner. Her only condition is that, her husband should take care of her and her daughter. That cannot be construed as desertion at all. The duty is cast upon the husband to take care of his wife and daughter. Therefore, the petitioner has not performed his matrimonial obligation. He has not discharged his responsibility. His refusal to take care of his wife without any cause, the worst part of it is, now he has pleaded ignorance of a child born to him because he had no access to his wife because they were not living together and his wife left her matrimonial home immediately after the marriage clearly shows how irresponsible he is. If, after the marriage they lived together for one and a half month, child is born thereafter, his contention that he had no access to his wife is unbelievable. Therefore, the trial Court after, observing demeanor of witnesses after looking into the evidence on record, conduct of the parties has rightly held the case of cruelty is not made out. The said finding is based on legal evidence. Therefore, we do not find any justification to interfere with the finding of fact.

In so far as the case of desertion is concerned, if the wife is thrown out of the house for non-payment of dowry, she cannot be blamed for desertion of her husband. On the other hand, the husband has not taken any steps to get back her wife. It is he who has deserted his wife. The conduct of the petitioner clearly establishes the desertion on his part. He has failed to make out ground of dissolution of marriage. Therefore, order passed by the trial Court is legal and valid and it does not suffer from infirmity.

The petitioner preferred an appeal to a Court which has no jurisdiction to entertain and after dismissal of case, slept over the matter for nearly three years and approached this Court thereafter. This conduct of the petitioner also shows, he has failed to maintain his wife and neglected her and presented a non-maintainable appeal before a Court. Thus, for these reasons, we do not find any sufficient cause to condone the delay and there is no merit in the application filed for condonation of delay. Hence, IA is dismissed. Neither the ground of desertion nor cruelty is proved and consequently, the appeal is also dismissed on merits.