Laxman Krishna Gadekar vs Suvarna

P.D. Waingankar, J.—By judgment and order dated 19.08.2011, the petition filed by the appellant-husband under Sections 10 and 13 of the Hindu Marriage Act 1955 for dissolution of marriage by a decree of divorce in M.C. No. 4/2006 on the file of the Senior Civil Judge, Kumta, came to be dismissed. Aggrieved by the dismissal of the petition, the appellant-husband has filed this appeal.

The brief facts which gave rise to this appeal are as under:

The respondent-Smt. Suvarna is the legally wedded wife of the appellant-Laxman Krishna Gadekar. Their marriage was solemnized on 06.07.1997 at Daivajna Kalyan Mantap Agasebagilu, Sirsi, as per the Hindu rites and rituals. On the same day, the marriage of the sister of the appellant-Smt. Vatsala was performed with the brother of the respondent-Gopalkrishna Gundu. Thus, the marriage of the appellant with the respondent was exchange marriage. The appellant is working as a teacher at Lower Primary School, Shokanmakki near Walgalli village, Kumta Taluk. It is the case of the appellant that after marriage, the respondent led happy married life with the appellant hardly for a period of four months. Thereafter, the respondent started to disturb the mental peace and harmony in the matrimonial house. She developed altogether different attitude and mental imbalance. She turned deaf ears to the best advice of the elders of the family members including the appellant. She developed uncompromising nature at all levels in her day to day life. Due to her conduct and attitude, the appellant was forced to take food in the hotel months together. She never reposed faith in her husband-appellant which required to be maintained by any wife for that matter. Because of her adamant attitude, the appellant even could not entertain his kith and km in the family house. The appellant even took the respondent-wife and gave her best treatment from best Gynecologist at Kumta and even at KMC Hospital, Manipal and at Sirsi, though she never cooperated with the appellant. On 04.04.2000, without the knowledge of the appellant, while he was away on duty, the respondent simply handed over the key of the house with the neighbour and took all her belongings including cloths, ornaments, household articles with a clear intention not to return the matrimonial house. But to the surprise of the appellant, on 15.11.2000, Wednesday at about 11.00 a.m., she entered the school premises where the appellant is working and started abusing, scolding the appellant and she virtually behaved like a mad woman. Ugly scene created by her was witnessed by other teachers and some senior students who pacified the appellant. Fortunately for the appellant the Vice-President, Betterment Committee of the School, Sri Ambroj Fernandes interfered and advised the respondent to leave the public school immediately and advised her to ventilate and redress her grievance within four walls of her house and not in the school premises. Thus, in short, the appellant was subjected to mental cruelty for a prolonged period of time by the respondent-wife and thereby it became completely impossible for the appellant to reside in the company of the respondent and to lead his future marital life which made him to take a sad decision to seek dissolution of marriage by decree of divorce on the ground of cruelty meted out to him under Sections 10 and 13 of the Hindu Marriage Act, 1955 in M.C. No. 4/2006 against his wife.

The respondent-wife opposed the petition. In her reply though she admitted the relationship of the appellant as her husband and that the marriage was solemnized on 06.07.1997 at Daivajna Kalyan Man tap Agasebagilu, Sirsi, she has categorically denied all the allegations made against her by the appellant and that the appellant was subjected to mental cruelty by her. It is the case of the respondent-wife that she was treated by the appellant as his wife hardly for a period of four months and thereafter he started giving all types of pinpricks and made her life miserable. He used to abuse her in front of his sisters stating that the respondent is looking very ugly. He used to humiliate her by stating that he would have got a better and fair looking girl as he is in better employment. It is further contended that when she became pregnant and was bleeding, her brother took her to the hospital instead of her husband. It is also stated that the appellant used to quarrel with her demanding dowry within short period of her marriage. He was demanding Rs. 50,000/- cash and whenever there used to be quarrel, he used to assault her with chappals. In the beginning, she did not inform this matter to her parents or brother with a fond hope that her husband would improve one day or the other and realise his mistakes. The appellant, in fact, driven her out of the house without any fault on the part of the respondent. It is contended that all the allegations levelled against her by the appellant are baseless, fictitious and created only with an intention to get a decree of divorce. For all these reasons, the respondent sought for dismissal of the petition.

In view of the statement of objections filed by the respondent-wife, the appellant in order to prove his case got himself examined as PW. 1 apart from examining three other witnesses as PWs. 2 to 4. The appellant relied upon as many as 29 documents which were marked as Exs. P-1 to P-29. The respondent got herself examined as RW. 1 apart from examining one Mohkia Ranga Vaidya as RW. 2. The learned Civil Judge (Sr. Dn.) upon hearing the submissions made by both the learned counsel appearing for the parties and on appreciation of the evidence, came to the conclusion that the appellant failed to prove that the respondent deserted him with an intention to put an end to the matrimonial relationship and that the appellant failed to prove that the respondent has been living away from the appellant since from two years prior to the filing of the petition for divorce which ultimately resulted in dismissal of the petition. Hence, the appellant-husband is before this Court.

We have heard the submission made by both the learned counsel appearing for the appellant-husband and respondent-wife. Perused the records and the judgment of the Court below.

Upon hearing the submissions made by both the learned counsel and upon perusal of the entire material on record, the only point that would arise for our determination is as under:

"Whether the Court below is justified in dismissing the petition filed by the appellant under Sections 10 and 13 of the Hindu Marriage Act, 1955?"

Before going into the merits of this appeal, it is better to state some of the admitted facts of this case. The relationship between the appellant and respondent as husband and wife is not in dispute that their marriage was solemnized on 06.07.1997 at Daivajna Kalyan Mantap Agasebagilu, Sirsi, as per Hindu rites and rituals is also not in dispute. It is also not in dispute that the appellant is working as a primary school teacher at Lower Primary School at Shokanmakki near Walgalli village, Kumta Taluk.

Though the appellant filed a petition for decree of divorce under Sections 10 and 13 of the Hindu Marriage Act, 1955, he has not seriously pressed his petition under Section 10 of the Hindu Marriage Act i.e., decree of judicial separation on the ground of desertion by the wife. Moreover, the Court below has come to the conclusion that the appellant-husband failed to prove the necessary ingredients which are required to be proved for a decree of judicial separation under Section 10 of the Hindu Marriage Act, 1955. Then what remains behind for consideration is the petition filed by the appellant under Section 13(1)(ia) of the Hindu Marriage Act, 1955 for a decree of divorce on the ground of cruelty. The ocular evidence of appellant would reveal that the respondent/his wife led a happy married life hardly for a period of four months in the company of the appellant and thereafter she developed a totally, different attitude and mental imbalance, she developed uncompromising nature at all levels even in their day to day life, the appellant was forced to take food in the hotel due to her attitude, she never reposed faith or confidence in her husband, she was not permitting the appellant even to entertain his kith and km in the family house, on 04.04.2000 without the knowledge of the appellant and while he was away on his duty, she simply handed over the key with the neighbour and she took all her belongings including clothes, ornaments and household articles and left the matrimonial house at Kumta, all of a sudden she came down to Kumta on 15.11.2000 at about 10.00 a.m. and entered the school compound where the appellant was working and she abused, scolded and behaved like a mad woman and created scene in the school premises in the presence of other teachers and the students and thereby the appellant was subjected to mental cruelty and degree of cruelty meted out to him to such an extent that it became impossible for him to carry on matrimonial life with the respondent which forced him to file a petition for decree of divorce.

The appellant also examined one Ambroj Costanv Fernandes, stated to be the Vice-President of School Betterment Committee, where the appellant was working, who in turn has spoken that on one fine morning, the respondent-wife came to the school and abused, scolded the appellant-husband and created a scene in his presence and the presence of other teachers and students. He advised her to ventilate her grievance with the appellant, if any, within four walls of her residence without coming to the school premises.

The appellant also examined one Ratnakar Subray Naik, neighbour of the appellant as PW. 3, who in turn has spoken in his evidence that the appellant and the respondent led a happy-married life only for a period of three to four months from the date of their marriage. Thereafter, the respondent-wife used to quarrel with her husband, she used to quarrel with the husband whenever some third person used to come to their house, on 04.04.2000, she quarreled with the husband and left matrimonial house when the appellant had been to the school by informing him. He has also deposed that even though the appellant went to bring her back four times, she did not turn up. His evidence would also go to show that the respondent-wife used to quarrel with her husband whenever his sisters used to come to their house and at that time PW. 3 used to go there and advice her.

The evidence of PW. 4-Nagaraj Babu Gadekar, yet another witness examined on behalf of the appellant-husband is that he is an advocate by profession, appellant is his paternal uncle, the respondent used to quarrel with the appellant constantly on petty matters and she used to behave in a strange manner and thereby the appellant was subjected to mental cruelty, he developed high blood pressure and sugar. He has also deposed that she used to lead a carefree life and always used to behave against the will of her husband, she used to go to her parents'' house without informing the appellant. In the cross-examination, he has admitted that he had his education in Sirsi, though the house wherein the appellant is residing at Kumta stands in the name of his father. It is also borne out from his evidence in the cross-examination that from 2000 to 2006 he was practicing as an advocate at Sirsi. If he was practicing as an advocate from 2000 onwards, he must be doing his law degree from 1997 onwards in Sirsi and therefore his evidence as to the relationship of the appellant and respondent and their personal life cannot be given much importance inasmuch as he is an interested witness being the son of elder brother of the appellant.

Coming to the ocular evidence of respondent who has been examined as RW. 1, she has reiterated whatever she has spelt out in her statement of objections. She has denied that because of her behavior the appellant/her husband was subjected to cruelty. On the other hand, she has stated that she was treated by her husband as his wife hardly for a period of three to four months. He used to tell her that she is looking ugly and thereby he was ill-treating her, he also used to tell her that he would have got a better and fair looking girl, since he was in better employment. She tolerated all these pinpricks given by her husband with a hope that one day or the other the appellant would realize the mistake committed by him. Further, she has stated that in the first week of April 2000, he told her that it is impossible for him to lead a life with the respondent and that he would go for another marriage and thereafter she was driven out of the matrimonial house and locked the house, went to the school. Further, she has deposed that after about 2 to 3 days, his mother, elder brother and his wife brought her to the matrimonial house at Kumta. The appellant by seeing them abused them and did not allow to enter into the house. When he was questioned by her mother and elder brother as to what she should do, the answer was let her go anywhere and die. Even then, she did not lodge a complaint to the police so as to preserve the relationship of husband and wife. She has denied having gone to the school premises and abused or scolded the appellant. She has also denied that on 04.04.2000, without informing the appellant, she left the house and again came back on 15.11.2000 to the school and created a scene.

The other witness examined on behalf of respondent-wife is one Mohan Ranga Vaidya, a retired school teacher at Kumta as RW-2. His evidence is that respondent is his sister-in-law i.e., sister of his wife. He has also deposed that respondent was subjected to ill-treatment and harassment by the appellant/her husband and was driven out of the matrimonial house. Even then, he advised both of them to lead a happy married life. The evidence of RW. 2 is also not of much importance for the reason that respondent and wife of RW. 2 are direct sisters. Needless to say that RW. 2 is interested witness and therefore, his evidence will have to be scrutinized with great care.

(Apart from the ocular testimony, the appellant produced as many as 29 documents which were marked as Exs. P-1 to P-29. Exs. P-1 to P-27 are all documents pertaining to the treatment of respondent including the X-ray. From all these documents, it appears that she was treated by Gynecologist. Ex. P-28 is the office copy of the legal notice dated 20.11.2000 issued to the respondent on behalf of appellant to mind her behavior. These documents are of no use for the appellant to establish the cruelty as pleaded by him. Thus, we are left with the oral evidence of the appellant and respondent. On appreciation of oral evidence placed on record by the parties, learned Senior Civil Judge has arrived at a conclusion that all these allegations made by the husband against the wife, even if they are held to be proved, they are nothing but wear and tear of a married life. It is also observed that they are bound to be there in the life of any husband and wife. On re-appreciation of entire evidence, we are of the view that the allegations levelled against the wife by the husband are not proved since the wife has categorically denied all those allegations. Even, if they are presumed to be true and proved, they are nothing but wear and tear of a married life. Petty quarrels, difference of opinion, bickerings are bound to be there in the life of a married couple though the degree may differ. Even, if it amounts to cruelty as alleged by the appellant-husband, the degree of cruelty is not such so as to go for dissolution of marriage by a decree of divorce. After all, life is for adjustment. The wife is still willing and ready to live in the company of the husband and lead a happy married life.

In the decision reported in Yashoda Bai Vs. Krishnamoorthy Bhimappa Katavkar, AIR 1992 Kar 368 : (1992) 1 DMC 442 : (1991) 2 KarLJ 265 , it is observed as under:

"HINDU MARRIAGE ACT, 1955 (Central Act No. 25 of 1955) - Section 13(1)(ia) - Cruelty: purport - Cruelty such as to cause mental anguish affecting heath that would constitute threat to person and life - No cruelty much less mental cruelty if element of threat to life or person absent."

In the decision reported in Smt. Mayadevi Vs. Jagdish Prasad, AIR 2007 SC 1426 : (2007) 2 CompCas 24 : (2007) 1 DMC 325 : (2007) 4 JT 65 : (2007) 146 PLR 506 : (2007) 3 SCALE 392 : (2007) 3 SCC 136 : (2007) 2 SCR 1040 : (2007) AIRSCW 1803 : (2007) 2 Supreme 498 , it has been observed by the Supreme Court as under:

"Hindu Marriage Act, 1955 - Section 13 - Mental cruelty - Divorce petition - Mere trivial irritations, quarrels between spouses which happen to day to day married life may not amount to cruelty - Conduct must touch a certain pitch of severity - Conduct may be of unfounded variety which can be subtle and brutal - It may be words, gestures or by mere silence, violent or nonviolent."

In the light of the observations made by this Court and the Supreme Court in the aforesaid decisions, we have re-appreciated the entire evidence and we are of the view that all the allegations levelled against the respondent-wife by the appellant-husband are trivial irritations, quarrels between the spouses which happen to day to day marriage life which do not amount to cruelty. In order to call it as a cruelty the conduct must touch a certain pitch of severity. It should cause mental anguish affecting the health of the person which ultimately would constitute a threat to a person and life. All these factors are totally absent in the case on hand. Thus, the Court below on proper appreciation of the evidence has rightly declined to dissolve the marriage by decree of divorce. On re-appreciation of the evidence, we do not find any illegality committed by the Court below. The appeal is bereft of merits. Hence, we pass the following

ORDER

The appeal is dismissed.