C.K. Somashekar vs D.R. Mamatha

B. Veerappa, J.—The unsuccessful husband has filed the above appeal against the judgment and decree dated 14th September, 2011 made in M.C. No. 102/2009 on the file of the Additional Senior Civil Judge and JMFC, Chickamagalur allowing the petition filed by the respondent/wife under the provisions of Section 13(1)(i) (a) of the Hindu Marriage Act, 1955 and dissolving the marriage between the appellant and the respondent solemnized on 19.2.2006 at Doddanahalli.

It is the case of the respondent/wife before the Family Court that the marriage between the appellant and the respondent was performed on 19.2.2006 at Doddenahalli village. At the time of the marriage, the appellant was given a two wheeler, ornaments and expenses incurred for the performance of marriage as well as the house hold articles. Since the date of marriage, the appellant was unemployed and used to demand the amount from the respondent by pressurizing her to bring the amount from her parental house. He used to inflict physical and mental cruelty to the respondent and drove her out of the matrimonial house. The respondent appeared for the examination to the post of ''Police Constable'' and ultimately succeeded and got a job as a ''Police Constable''. The appellant used to abuse the respondent with filthy language alleging that she had illicit relationship with her colleague officials. He also came to the training centre at Mysore, where the respondent was undergoing police training and behaved in an uncivilized manner.

It was further case of the respondent that after training, when the respondent was working at Banakal Police Station, the appellant used to visit there and pick up quarrels with her and used to give intolerable physical and mental torture to her. He used to threaten her through telephone and abused her with filthy language. Due to all the said acts of the appellant, the respondent''s father''s health condition deteriorated. When the respondent became pregnant, the appellant was treating her cruelly; that when she had been to her parental house, the appellant came there and assaulted her and dragged her ''Tali'' because of which, the respondent was admitted to the hospital. The matter was referred to the Arasikere Police, who tried to settle the dispute between the appellant and the respondent. After coming out of the police station, the appellant abused the respondent and threatened that he would take the child forcibly. It is impossible for the respondent to continue the matrimonial relationship with him. Therefore, she filed a petition seeking decree of divorce by dissolving the marriage between them.

The appellant, who was the respondent before the trial Court filed objections admitting the relationship between them and denying the other averments. He also denied the physical and mental torture as alleged contending that the respondent used to insult him by saying that he had no government job and there are no grounds for granting the decree of divorce and therefore, prayed for dismissal of the petition.

Based on the pleadings, the trial Court framed the following issues for consideration:

"i) Whether the petitioner proves the alleged cruelty inflicted by the respondent and her entitlement for the decree for divorce against the respondent?

ii) What order or decree?"

To establish her case, the respondent is examined as P.W.1 and her father P.W.2 and marked the document - Ex.P.1. The appellant/husband examined himself as R.W.1. After hearing both the parties, the Trial Court has recorded a specific finding that the respondent-wife has proved the cruelty inflicted by the appellant and that she is entitled for decree of divorce against the appellant. Accordingly, the petition for divorce came to be decreed by the impugned judgment and decree dated 14th September, 2011. The petition filed by the wife under the provisions of Section 13(1)(i)(a) of the Hindu Marriage Act is allowed and the marriage between the parties is ordered to be dissolved. Against the said judgment and decree, the present appeal is filed.

We have heard the learned Counsel for the parties to the lis and perused the entire material on record.

Sri Ashwin S. Halady, learned Counsel for the appellant vehemently contended that the trial Court has erred in decreeing the petition without considering the evidence adduced by the appellant and the trial Court failed to notice that the respondent-wife has not adduced any documentary evidence nor has examined any independent witness in proof of her pleadings of cruelty. Therefore, he contended that the trial Court was not justified in decreeing the petition. He also contended that the trial Court has erroneously shifted the burden of proof on the appellant holding that it is for the husband to disprove the case of the respondent, when there is no pleading with regard to the alleged cruelty by the respondent and no corroborative evidence to prove the allegation of cruelty. Therefore, he sought for setting aside the judgment and decree of the trial Court by allowing the appeal.

Per contra, Sri Girish Baladare, learned Counsel for the respondent/wife sought to justify the impugned judgment and decree passed by the trial Court contending that the appellant/husband has suspected his wife by making allegations regarding the modesty of the respondent alleging that she had illicit relationship with others, which itself is a mental cruelty and a ground for divorce. Therefore, he sought for dismissal of the appeal.

We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties to the lis and perused the entire material including the original records.

It is an undisputed fact that the marriage between the appellant and the respondent was solemnized on 19.2.2006 at Doddenahalli village and out of their wedlock, a child was born and thereafter, dispute started between the husband and the wife when the wife joined the police force as a Police Constable. The wife, who examined herself as P.W.1, has specifically stated on oath that the appellant used to give mental and physical torture and was forcing to give her gold ornaments. He was also asking her to quit the job. For the said reason, he used to beat her in the house. Even he used to abuse her in front of her office staff and some times, he used to call her on mobile and used to come to the police station by abusing her in filthy language. She tolerated all his misbehaviors thinking that one or the other day, he may mend his ways and behavior, which was of no use. Even her parents tried to console the respondent. In spite of the same, the appellant used to call her parents and threaten them stating that he would teach a lesson and used to give mental cruelty. The appellant used to quarrel with the respondent/wife constantly and used to assault her without any reason. She tolerated all these. At the time of pregnancy, she was suffering from measles and high fever. When her parents had come to their house, the appellant had scolded them and had snatched her ''mangala sutra'' from her neck and assaulted her. Instead of taking her to the hospital, the appellant had neglected her without providing proper treatment and her parents were forced to leave the house. She further deposed that during her pregnancy, he made her to suffer by not providing proper nutrition and ultimately, she gave birth to a male child by name Vijeth'' on 9.10.2009. Thereafter, the appellant has totally neglected her and the child completely. She has further stated that the Dy.S.P. of Arasikere Police Station also held conciliation between them and had advised the appellant to take care of the respondent. After conciliation, the appellant came out and started abusing her in filthy language. Therefore, she is not in a position to tolerate harassment from the appellant.

Nothing has been elicited in the cross-examination of P.W.1. The father of the respondent (P.W.2) has stated on oath about the relationship between the appellant and the respondent; the ill-treatment of the appellant against the respondent after her marriage by abusing, threatening, inflicting mental and physical torture. He has specifically stated that there was no cordial relationship between the appellant and the respondent; that there is a danger to the life of the respondent from the appellant; that the matrimonial relationship between them has been irretrievably broken and there are no chances of co-habitation between them. P.Ws. 1 and 2 have specifically stated that the physical and mental harassment is meted out to her by the appellant, by abusing in filthy language, assaulting and also going to the place of training and working place and behaving in an uncivilized manner, doubting her conduct by alleging that she has developed illicit relationship with her colleague officials. The said oral testimony of P.Ws. 1 and 2 has not been discredited in the cross-examination of the appellant. The appellant has not at all taken any specific plea/defence against the respondent/wife except denying the petition averments. He has not made out as to why his wife is making false allegations against him. The trial Court considering the entire material on record has recorded a finding that making allegations against the respondent by the appellant doubting the modesty of the respondent/wife and her illicit relationship with others make it clear that he had no intention to continue the matrimonial relationship with the respondent. Therefore, it decreed the matrimonial petition.

The marriage is necessarily a basis for a social organization and the foundation of important legal rights and obligations. The importance and imperative character of institution of the marriage needs no comment. In Hindu Law, the marriage is treated as ''Samskara'' or a ''sacrament''.

By a reading of the provisions of Section 13(1)(ia) of the Hindu Marriage Act makes it clear that after the marriage, the person who files a petition for divorce has to establish that he was treated cruelty by the respondent. The cruelty must be of such a character as to cause danger to life, limb, or health, or as to give rise to a reasonable apprehension of such a danger though of course, harm or injury to health, reputation or working character or the like would an important consideration in determining whether the conduct of the respondent amounts to cruelty or not.

In the present case, both P.Ws. 1 and 2 i.e., respondent/wife and father-in-law of the present appellant have specifically stated on oath that, the appellant not only suspected the fidelity of the respondent, but also suspected her modesty and abused her in front of her colleagues/police staff and has gone to an extent of making allegations against her that she had illicit relationship with her colleague officials. The records reveal that the appellant used to go to the work place/training place and to the police station to abuse her, who is working as a police constable. Necessarily she will have to go to public place along with colleagues to discharge her duty, if in each and every public place, the appellant starts to suspect the fidelity of the respondent/wife, who is police constable, she cannot discharge her duty as a dutiful police constable to the general public which amounts to mental and physical torture amounting to cruelty. Therefore, the impugned judgment passed by the trial Court is sound and proper and no contra material is produced by the husband to disbelieve the evidence of P.Ws. 1 and 2.

The ''Mental cruelty'' as ground of divorce where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair and the marriage becomes a fiction though supported by a legal tie; by refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situation, it may lead to mental cruelty. In the present case, trial Court had rightly concluded that the various instances in their matrimonial life, had led to grave mental cruelty to the respondent/wife as the husband had gone to an extent of suspecting her fidelity and modesty both in the house and in public places. The entire substratum of marriage has already disappeared. Therefore, the trial Court is justified in granting the decree of divorce in favour of the wife.

The Hon''ble Supreme Court while considering the provisions of Section 13(1)(i-a) of the Hindu Marriage Act, 1955 in the case of K. Srinivas Rao Vs. D.A. Deepa, has specifically held at paragraphs-30 to 35 as under:

"30. It is also to be noted that the appellant-husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, if we refuse to sever the tie, it may lead to mental cruelty.

We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court''s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court''s decree.

In V. Bhagat this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty this Court observed that irretrievable breakdown of marriage is not a ground by itself, but, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted the said circumstance can certainly be borne in mind.

In Naveen Kohli, where husband and wife had been living separately for more than 10 years and a large number of criminal proceedings had been initiated by the wife against the husband, this Court observed that the marriage had been wrecked beyond the hope of salvage and public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. It is important to note that in Naveen Kohli''s case this Court made a recommendation to the Union of India that the Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.

In the ultimate analysis, we hold that the respondent-wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant-husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent-wife.

In Vijay Kumar, it was submitted that if the decree of divorce is set aside, there may be fresh avenues and scope for reconciliation between parties. This court observed that judged in the background of all surrounding circumstances, the claim appeared to be too desolate, merely born out of despair rather than based upon any real, concrete or genuine purpose or aim. In the facts of this case we feel the same."

Admittedly, the appellant has not made out any case to disbelieve the specific averments made in pleadings of the petition and specific statements made on oath by P.Ws. 1 and 2. It is relevant to state at this stage that, it is not in dispute that both the appellant and the respondent are residing separately since the year 2010 i.e., for more than 5 years. The number of attempts made by both the parents to compromise and for continuation of the married life have failed. The matrimonial relationship between the parties to the lis has been irretrievably broken down. There are no chances of cohabitation between them in future to lead a happy married life. There is no possibility of settlement between the parties to lead a happy married life. Therefore, we are of the considered opinion that the impugned judgment and decree passed by the trial Court is perfectly just and proper and no interference is called for in this appeal while exercising the powers under the provisions of Section 28 of the Hindus Marriage Act.

Accordingly, the appeal is dismissed. The judgment and decree passed by the trial Court is confirmed.