Girigowda vs Gajalakshmi

N. Kumar, J.—This is the husband''s appeal against the order passed by the Family Court dismissing the petition for divorce on the ground of cruelty and desertion.

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

Petitioner Sri T. Girigowda married Smt. Gajalakshmi the respondent on 26.5.1985 at Ankanahalli village of Nagamangala Taluk, as per the customs prevailing in their community. At the time of marriage he was working as Pharmacist in E.S.I. Department at K.G.F., Kolar. After the marriage the wife joined him in his matrimonial home at K.G.F., Kolar and started living together by leading a happy married life. They lived happily together only for about six months. Thereafter, the respondent started behaving in a peculiar manner and showing hostile attitude towards him and though he was treating her very well by giving her all comforts of life, she started teasing him without any of his faults and also started criticizing him that the salary he is getting is not sufficient to meet her basic necessities and thereby she started ignoring him.

She became pregnant, but she was not happy with her pregnancy and started abusing him by teasing him that the salary he is getting is not sufficient to meet her maintenance and it is not possible to look after the child. This upset him and he suffered mental agony. Though she was advised to take bed rest and to take proper medicine, she never bothered to take that advice seriously. When she was about 4-5 months pregnant, she traveled from K.G.F. to Hesaraghatta in order to attend the marriage of her sister and because of the strain she suffered she underwent abortion. This also caused mental agony to the petitioner. She suffered abortion due to her negligence and reckless attitude. Again she became pregnant for the second time. This time when she was going to Devalapura of Nagamangala Taluk to attend a social function, during her 4th month of pregnancy, because of the strained journey she again underwent abortion at Lakkegowdana Koppalu. This also caused physical and mental agony to the petitioner. Thereafter she was not co-operating with him in sharing the bed. There is no physical contact between him and the respondent till today. He tried to persuade her, tried to convince her to submit herself for sexual activities. Despite his efforts, she never bothered to share bed with him and refused to have sex with him without any valid reason. This again caused physical and mental agony to the petitioner. After three years of marital life at K.G.F. he was transferred to Bangalore and they started living together at Adugodi in Bangalore, but still there was no change in the attitude of the respondent. She totally became aversed towards the sexual relationship with him.

He used to leave the house at 8.00 a.m. to attend to his duty and used to return by about 7.00 p.m. She never bothered even to prepare a coffee for him. She was totally indifferent. After six years of stay in Bangalore he was transferred to Mysore in the year 1993. At Mysore they stayed together up to September 2002. From there he was transferred to Chamaraja Nagar. The relationship between him and his wife in all these years was not cordial. When his mother had a fall and sustained injuries in the village, he brought his mother to Mysore in order to provide her necessary medical care, but the respondent restrained him from going to his native village to bring his mother for treatment. When his mother came to Mysore, she did not allow her to stay with them and hence his mother was forced to take shelter in the house of one of his relatives by name Thimmaiah, in order to undergo eye surgery. When the father of the respondent came to Mysore in the year 2002, he started residing in their house. He started to interfere in his day to day activities. After his father-in-law started residing with them in their house, the family atmosphere has become worse and he stalled instigating his daughter to give unnecessary harassment to him. She and her father assaulted him physically on several occasions. Her father also has not shown minimum courtesy towards him. His father-in-law has behaved like a rowdy element. They started saying him that if he dies, she would get pension and also appointment on compassionate grounds. Unable to bear this torture, he took house for rent in August 2002 and started residing separately.

The respondent having undergone abortion on two occasions, would not get child. Hence, they adopted a girl child and started bringing up the said child as their own daughter. She is refusing to send his foster daughter with him when he visited the house to see the daughter. The respondent and her father assaulted him in the house. Then he has referred to two incidents said to have been occurred on 12.2.2003 near T.B. Circle, Nagamangala and another on 24.5.2003 which took place at Bellur Cross, where the father-in-law assaulted him which resulted in filing a police complaint in Crime Nos. 25/2003 and 61/2003 respectively. In the meanwhile, the wife respondent filed a petition for maintenance. Thus, the respondent has treated the petitioner with cruelty and she has withdrawn from the company of the petitioner and therefore he is entitled to a decree of divorce on the ground of cruelty as well as desertion.

After service of notice, respondent entered appearance, filed a detailed statement of objections, contesting the claim. She has denied all the allegations made by him in the petition. It is her specific case that the petitioner who was known to their family, started extorting money from her father even before the marriage and continued the same even after the marriage. He used to demand her father for payment of money by writing letters to him while her father was working in Haryana State. After they shifted to Mysore, her father purchased a house, but got it registered in the joint name of her and her husband and taking advantage of the same, petitioner is trying to drive the respondent out of the house. Her father after retirement came to Mysore, started residing in the house and opened a Cool Drinks Shop in order to eke out livelihood. The petitioner did not tolerate his presence in Mysore, assaulted him breaking his leg thereby he subjected his father-in-law to physically abuse.

When she filed a petition for maintenance as a counter blast, the petitioner has filed the petition for divorce at Mandya only to harass the respondent. She has moved the Hon''ble High Court of Karnataka to get the case transferred from Mandya to Mysore. She has categorically stated that she never became pregnant and therefore the question of abortion did not arise. On account of inherent difficulty attributable to the petitioner he could not get a child having waited for quite some time, both of them together reached an understanding to take a child in adoption. Accordingly, they adopted a girl child when the child was one day baby. Both of them started looking after the said child as their daughter. The child as on the date of the petitioner filing this petition was aged about 12 years, studying in 7th standard at Lions School, Gokulam, Mysore and was studying in C.B.S.E. and doing very well academically. However, the petitioner failed and neglected to take care of the respondent and her child. In those circumstances, she has no option except to approach the Court for maintenance. It is on record that the petitioner himself has filed a suit for partition in O.S. No. 638/2006 on the file of 4th Additional Civil Judge (Sr. Dn.), Mysore, seeking half share in the house property. Therefore, she submits, on a complaint lodged by her father, the police registered a case against the petitioner for assault and he was prosecuted. Therefore, she submits the cruelty is on the part of the petitioner and it is he who has deserted the respondent without any just or sufficient cause. Therefore, she sought for dismissal of the petition.

On the aforesaid pleadings, the Family Court framed the following issues:

i) Whether the petitioner/husband proves that, the respondent/wife treated him with cruelty and hence he is entitled for a decree of divorce from his wife, on the ground of cruelty?

ii) Whether the petitioner/husband has further proved that, the respondent/wife having withdrawn herself from his society, staying away from him by deserting him without any justifiable cause or reason and hence she has committed matrimonial offence of desertion and hence he is entitled for a decree of divorce even on the ground of desertion?

The petitioner in order to substantiate his claim examined himself as PW 1 and produced 5 documents which were marked as Exs. P1 to P5. Respondent examined herself as RW 1 and she also produced 6 documents which were marked as Exs. R1 to R6. The Family Court on appreciation of the aforesaid oral and documentary evidence on record held the petitioner husband has miserably failed to prove the case of cruelty. He also miserably failed to prove the case of desertion and therefore his petition for divorce came to be dismissed. Aggrieved by the said order of the Family Court, the petitioner husband is before this Court.

Learned counsel appearing for the appellant assailing the impugned order contended, the material on record fairly establishes there is no co-habitation between the parties for more than 12 years. There are complaints and counter complaints between the parties. Similarly, legal proceedings are initiated for maintenance. The suit for partition is filed, criminal case is also registered. The findings on record further establishes parties have not led happy married life. There are frequent quarrels, they are unable to get on and therefore no purpose would be served in keeping this marriage in fact and therefore he submits the Family Court committed a serious error in not properly appreciating the evidence on record and not granting a decree of divorce.

Per contra, the learned counsel for the respondent wife supported the impugned order.

In the light of the aforesaid facts and the rival contentions, the point that arises for our consideration is;

"Whether the case for interference with the order passed by the Family Court declining granting of decree for divorce on the ground of cruelty and desertion is made out?"

The facts are not in dispute. The petitioner knew the respondent''s parents 27 years earlier to his marriage. In fact, the documents produced and marked in the case show even before the marriage he was demanding money from the father of the respondent. The step mother of the respondent is the aunt of the petitioner. It is because of the said relationship the marriage took place between them according to Hindu rites. According to the petitioner he had a happy married life at K.G.F. for a period of six months. If his case is to be believed, the respondent conceived twice, but unfortunately the pregnancy was aborted because of recklessness and negligence on the part of the respondent. When the said fact is specifically denied, absolutely no material is placed on record to prove the factum of pregnancy and the abortion by producing any medical records. On the contrary it is the specific case of the wife that the petitioner is suffering from less sperm counts and hence she could not conceive due to the inherent difficulty of the petitioner.

The evidence on record shows he was transferred from K.G.F. to Bangalore, from Bangalore to Mysore and from Mysore to Chamrajanagar. The marriage took place on 26.5.1985. Admittedly, till August 2002 they lived together. On being convinced, there is no chance of begetting a child, by agreement they adopted a female child. The respondent''s father was working at Haryana. After his retirement came to Mysore, purchased the property for a daughter and the sale deed was'' obtained in the joint names of the petitioner and the respondent. The letters which are produced in the case clearly show the petitioner was in the habit of demanding money from the father of the respondent prior to the marriage and also subsequent to the marriage, which demand has been acceded to by the father of the respondent. This undisputed evidence on record shows the marriage was consummated, they co-operated for nearly more than 18 years, they have taken a child on adoption, they are well settled in the house purchased by the father of the respondent at Mysore. The petitioner recently took a rented premises and started living separately. Thereafter, he failed and neglected to take care of his wife, the respondent and the child which is adopted by them. His case that his wife told that the salary which was getting is not sufficient to meet the family commitments has remained as a plea without any supporting evidence. In fact, he has stated that his father-in-law assaulted him on two occasions which resulted in police complaint being lodged and according to him he withdrew both the complaints, but no material is produced to substantiate this case when the respondent has specifically denied the same.

On the contrary, when the petitioner assaulted his father-in-law he lodged a complaint. The charge sheet was filed, he was prosecuted, but he was acquitted on the ground that the prosecution has failed to prove the guilt beyond reasonable doubt. The certified copy of the judgment and order passed by the Magistrate Court in this regard is produced and marked which shows the incident where the father-in-law of the petitioner suffered injuries when the petitioner left the company of the respondent, started living separately and when he neglected to maintain the respondent and his daughter, she was forced to file a petition for maintenance. It is that action of the respondent which has provoked the petitioner to come up with this petition for divorce. This petition for divorce was filed in Mandya with the sole intention of harassing the respondent who is a resident of Mysore. In the cause-title to the divorce petition he has clearly mentioned that respondent is residing at Mysore, but he files the petition at Mandya which shows the real intention of the respondent. In addition to that, he also files a suit for partition and separate possession of his half share in the Mysore property which the respondent''s father has purchased for him. His case is it is he who has purchased the property in the name of his wife. He is decently employed, he is a salaried man, when the wife specifically denied these allegations, not a scrap of paper is produced before the Court to show that the said property was purchased out of his income. From this evidence on record it is clear, the case of cruelty pleaded in the petition has no substance. On the contrary, the evidence on record shows that the petitioner has failed and neglected to maintain his wife and daughter. The trial Court has rightly held the case of cruelty pleaded is not proved.

Learned counsel for the appellant in support of his contention relied on the judgment of the Apex Court in the case of Savitri Pandey Vs. Prem Chandra Pandey, AIR 2002 SC 591 : (2002) 1 DMC 177 : (2002) 1 JT 25 : (2002) 1 SCALE 33 : (2002) 2 SCC 73 : (2002) 1 SCR 50 : (2002) 1 UJ 273 : (2002) AIRSCW 182 : (2002) 1 Supreme 90 and G.V.N. Kameswara Rao Vs. G. Jabilli, AIR 2002 SC 576 : (2002) 1 DMC 266 : (2002) 1 JT 89 : (2002) 1 SCALE 111 : (2002) 2 SCC 296 : (2002) 1 SCR 153 : (2002) 1 UJ 583 : (2002) AIRSCW 162 : (2002) 1 Supreme 123 to contend ''cruelty need not be of such nature as causing reasonable apprehension that it would be harmful for petitioner to live with other party. Act committed with intention to cause suffering to other party is cruelty.'' There is no quarrel about the legal preposition laid down by the Apex Court in the aforesaid two judgments, but ultimately the case has to be decided on the basis of the facts of a case.

When we keep these principles in mind and look at the facts of this case, after living with the wife for more than 18 years, after taking a child in adoption, the petitioner voluntarily abandons his wife and child and tarts residing in a rented premises. He is a Government employee, drawing decent salary, after staying separately, he fails and neglects to take care of his wife and child. As the child is grown up, going to a school when the mother is unable to maintain her, she files a petition for maintenance. There is nothing wrong in that conduct of the wife. There is a right conferred under the Statute to the wife and child. The exercise of the statutory right, does not give the cause of action for the petitioner to come up with a divorce petition. The grounds sought to be made out in the petition are not proved. If the case of the wife is to be believed, the petitioner suffers from some basic inherent physical difficulty which is a cause for her not conceiving for a child. To cover up this difficulty, he comes up with a case of wife conceiving twice which resulted in abortion because of her negligence without any proof. At any rate, both of them were convinced that they will not be able to have a child and therefore they adopted a female child. If that is the understanding and the co-operation between the husband and wife, it is very difficult to believe the case of cruelty, which he has pleaded. The father of respondent comes to her rescue, purchased the property at Mysore in the joint names of both husband and wife, he was assaulted Because of the complaints of assault by the father-in-law, the petitioner is said to have lodged two complaints, which he has withdrawn. Absolutely there is no scrap of paper to substantiate this fact. He goes to the extent of filing a suit for partition against the wife. Therefore, the trial Court committed no illegality in holding that the cruelty is not proved. Therefore, no case for interference is made out.

Insofar as the case of desertion is concerned, the evidence on record is, it is the petitioner who went out of the family and started living in a rented premises. He used to visit the petitioner to see the foster child, which was not objected to by the respondent. Therefore, the case of desertion is without any substance. Under these circumstances, the trial Court committed no error in dismissing the petition on the basis of legal evidence available on record.

We do not see any merit in this appeal. No case for interference is made out. Hence, the appeal is dismissed.