G. Premakumar vs G.T. Roopashri

A.V. Chandrashekara, J.—This appeal is filed u/s 19 of Hindu Marriage Act. challenging the final order passed by the learned Addl. Senior Civil Judge, Chitradurga, in case No. M.C. No. 39/2010 dated 31.03.2011. Petition filed u/s 13(1)(ia) and (ib) of the Hindu Marriage Act, on behalf of the petitioner seeking divorce against his wife-respondent herein has been dismissed by a considered order and this order is called in question on various grounds as set out in the appeal memo.

The appellant was the petitioner and respondent herein was the respondent in the said case. Hence the parties will be referred to as the petitioner and respondent herein as per their ranking in me Trial Court.

Petitioner is an agriculturist and also a businessman and is a resident of Huliyar Town. The marriage of the parties was solemnized on 06.02.2003 in Hiriyur and they lived as husband and wife for sometime. She has given birth to two children one female and one male. Daughter Niveditha is stated to be in his custody and son Madhusudhana is stated to be in the custody of the respondent. Petitioner has studied upto P.U.C. and respondent is a Post-Graduate in Science and was working as part-time lecturer in a Private College. It is averred that though he tried to live with her, she did not allow him to lead a happy marital life and that she started humiliating him on the ground that she was highly qualified and educated. In this regard, several panchayats were held and inspite of advice given by the panchayatdars she did not pay heed and deserted him in the year 2007.

The respondent had filed a case in C. Misc. No. 135/2009 in JMFC Court, for maintenance and the Court has ordered him to pay a Rs. 3,200/- p.m. as maintenance. According to him, respondent does not have good character and she will be often coming to the School in which he has admitted his daughter and is giving unnecessary pinpricks. She is stated to have deserted him without any rhyme or reason and hence, he had filed a petition seeking divorce both on the ground of cruelty and desertion.

Respondent had appeared before the Trial Court and filed detailed objections denying all the material averments. According to her, she was sent to her parental house for the second delivery and she had assured that she would be taken back few months after the delivery and that he did not come and take her at all. Inspite of words being sent through the elders to take her back, he did not pay heed and as such, she had filed a petition seeking maintenance for herself and her child. According to her, there are no major differences between them and that she is ready and willing to join him. Inspite of her willingness to join him, petitioner has not taken her back and on the other hand, has made unnecessary and untenable allegations.

Petitioner has been examined as PW1 and respondent has been examined as RW1. In all four exhibits have been got marked on behalf of the petitioner. After hearing the arguments of the learned counsel appearing for the parties, the learned Judge has dismissed the petition by formulating the following four points. The points so formulated are in Kannada and they have been translated to English and the same reads as hereunder:

Whether the petitioner proves that the respondent has ill-treated him with cruelty?

Whether the petitioner proves that she has deserted him intentionally?

Whether the petitioner proves the reasons for divorce?

What order?

On appreciating the evidence placed on record, points 1 to 3 have been answered in negative and ultimately petition has been dismissed.

It is contended that the Trial Court has not properly analysed the oral and documentary evidence in right perspective and that it has adopted a wrong approach to the real state of affairs. It is further contended that initial burden cast upon him to effectively prove the grounds of cruelty and desertion have been discharged and that onus has shifted on the other side. The order in question is stated to be opposed to law, facts and probabilities.

After hearing the arguments from the learned counsel appearing for the parties, the following points arise for our consideration:

Whether the Trial Court is justified in dismissing the petition filed u/s 13(1)(ia)(ib) of Hindu Marriage Act?

Whether any interference is called for by this Court and if so, to what extent?

Re. Point No. 1:

We have perused the oral and documentary evidence placed on record. Of course, the word ''cruelty'' is not defined in Hindu Marriage Act. Even mental cruelty also comes within the purview of the cruelty u/s 13(ia). The fact that marriage was solemnized between the parties according to Hindu rites is not in dispute. The fact that the respondent has given birth to two children is also not in dispute. The second child was born on 20.08.2008 in a Government Hospital. Prior to the delivery she had been sent to the house of her parents and it was quite but natural. Therefore, the fact of respondent going to her maternal house for the purpose of delivery cannot be found fault with. That date cannot be considered as a date of deserting the petitioner.

The burden is upon the person who takes the plea of desertion to effectively prove the same. Unless the initial burden cast upon the petitioner is effectively discharged onus does not shift on the other side. What is deposed by PW1 is that he had sent words to his wife through elders and she did not respond to his words. It is further deposed that he had to convene several panchayats and in the panchayat, advice was given to her to come back. Except an assertion to that effect in the examination-in-chief, no material is placed to substantiate the assertion that he had sent words through elders and that he had conveyed panchayat. If he had really convened panchayat, nothing would have come in his way to examine one of the panchayatdars who had participated in such a panchayat. Even otherwise, he did not take any steps to file a petition u/s 9 of Hindu Marriage Act, seeking restitution of conjugal rights. He did not take any steps to get a notice issued so as to call upon her to come back.

On the other hand, there are enough material to show that the respondent had to file a petition under Sections 12, 18, 19, 20 and 22 of The Protection of Women from Domestic Violence Act, 2005 seeking protection orders. Ex. P3 is the certified copy of the petition filed by her in C. Misc. No. 135/2009. Ex. P4 13 the copy of the order passed by the learned Sessions Judge modifying the order vide Crl.A. No. 58/2009. In fact he had been directed to pay a sum of Rs. 4,500/- p.m. in all as maintenance. Ultimately the appeal was allowed restricting the maintenance to a sum of Rs. 3,200/- p.m. If the petitioner had not neglected her and had not refused to maintain her and her son, there would not have been any petition under the provisions of Domestic Violence Act. The order so passed in C. Misc. No. 135/2009 and the modification made in Crl.A. No. 58/2009 speaks in volumes against him.

Evidence includes cross-examination. Though he has deposed in his examination-in-chief that the respondent was suspecting his fidelity and was suspecting his movements, he has not been able to withstand the rigor of the cross-examination. In fact, suggestions had been made to him during the course of cross-examination that she was ready and willing to join him and lead a happy marital life. The evidence placed on record would disclose that after 2007, he had not even taken care to see his son. There may be differences between the husband and wife. But there cannot be any differences between the children and the parents.

He has admitted that he had not gone to see his son at all. Whatever he has deposed in his examination-in-chief cannot be construed as cruelty by any stretch of imagination. There will be ups and downs in every family and they can be at best termed as usual family wear and tear. They have been blown out of proportion by filing a case seeking divorce on the ground of cruelty and desertion. In fact, respondent who has been examined as RW1 has categorically deposed that she is ready and willing to join him and to lead happy marital life with him and her two children. Though she has been cross-examined at length by the learned counsel for the petitioner, nothing useful has been culled out from her mouth to discredit her deposition. Suggestions put to her that she had been torturing him both physically and mentally ever since the marriage, have been specifically denied. Further suggestion put to her that she has deserted him without any rhyme or reason has also been specifically denied.

On re-assessing the whole evidence, we do not find anything to support the case of the petitioner-appellant. On the other hand, the probabilities are more in favour of the respondent. The learned Judge has analysed the entire evidence in right perspective. We do not find anything wrong in the process of evaluation of evidence made by the learned Judge. Hence, we are of the considered opinion that the petitioner has thoroughly failed to prove the allegations of cruelty as well as desertion. Hence, we answer point No. 1 in the affirmative.

Re. Point No. 2:

In view of our affirmative finding on point No. 1, no interference is absolutely called for and the appeal is liable to be dismissed.

ORDER

Appeal is dismissed. The order dated 31.03.2011 passed in M.C. No. 39/2010 by the II Addl. Senior Civil Judge, Chitradurga, is confirmed. In view of the relationship of the parties, we pass no order as to costs.