Mahesh Kumar V. vs M. Nandini

N. Kumar, J.

There is a delay of 21 days in filing the appeal. The application is not opposed. The delay of 21 days in filing the appeals is condoned. I.A. No. 1/2015 filed in both the appeals are allowed.

The appeals are taken up for hearing with the consent of both the parties and heard.

These two appeals are preferred by the husband challenging the order passed by the Family Court, dismissing the petition for divorce and allowing the petition filed by the wife for restitution of conjugal rights.

For the purpose of convenience, the parties are referred to as they are referred to in M.C. No. 3853/2011, filed by the petitioner-husband.

Petitioner Mahesh Kumar V. married the first respondent Smt. M. Nandini on 28.1.2010, as per the Hindu Rights and Customs prevailing in their community. Marriage was solemnised in Sree Raja Hamsa Convention Hall, No. 10/1, 1st main road, Industrial Town, WOC Road, Rajajinagar, Bangalore-560 044. After the marriage on 31.1.2010, the petitioner''s parents have arranged Beegara Oota at Mangala Kalyana Mantapa, Koramangala, Bangalore-560 034. On 5.2.2010, the nuptial ceremony has been conducted at the residence of respondent''s parents house and first night between the petitioner and respondent has been successful and thereby marriage dated 28.1.2010 is consummated between the petitioner and the respondent. After first night, the petitioner took the respondent for honeymoon to Kerala by spending more than Rs. 50,000/- for a period of one week and the petitioner and respondent returned to Bangalore on 20.2.2010. From the date of marriage till coming down from Kerala to Bangalore after finishing honeymoon, the respondent was very delight, cordial, humble and affectionate with the petitioner and his parents. After they returned from Kerala, the respondent demanded the petitioner to take her to her parents'' house at Basaveshwaranagar to explain her view which she had experienced during the tenure of honeymoon at Kerala and thereby the petitioner took the respondent to her parents'' house on 22.2.2010. The respondent did not return with the petitioner immediately thereto to her matrimonial home. On 25.2.2010, since the petitioner and respondent did not return to their matrimonial home and thereby the father of the petitioner made a phone call to the respondent''s senior uncle Mallikarjuna, requesting him to send newly wedded couple to the matrimonial abode to perform certain poojas. On coming to know the same, the respondent became very furious and immediately asked the petitioner and also his parents to come to petitioner''s house on the same day. When they came, she started abusing her father-law that why they have telephoned to her senior uncle. She stated that she is the daughter of ACF officer. Thereafter, she started living with the petitioner on full time basis, i.e. from Monday to Thursday of every week and used to leave her matrimonial home and lived in her parents house from Friday to Sunday. During these days, she used to dictate terms with the petitioner that the petitioner shall take her to roam here and there around Bangalore City. Whenever the petitioner showed his inability, she used to insult the petitioner in front of his parents stating that the petitioner has no mind to take her to places which she liked and also questioned the petitioner why should he got married with her, if he is not in a position to maintain her with all status. But the petitioner could not stop her frog jumping game from her matrimonial home to parental home continuously every week and thereby the petitioner and his parents had fed up mentally and socially as their relatives started taunting here and there that their daughter in law brought by the father of the petitioner, even though he is a retired police inspector, he brought a Gaati Sose and thus the petitioner''s mother Sakamma virtually lost her image in their relatives and thereby the said social stigma has resulted in leading the petitioner''s mother to admit in Mallya Hospital for various other ailments including cardiac pain and accordingly, she was admitted on 10.5.2010 at Mallya Hospital. When the petitioner and the respondent were in hospital, by that time, the respondent received a phone call from her parents and abruptly she left the company of the petitioner and went away to her parents'' house without intimating the respondent. She never bothered to come down to her matrimonial home inspite of petitioner''s requests and phone calls. She came back on 11.10.2010. On 22.1.2011, the petitioner and respondent joined in respondent''s parents house at Basavashwarnagar and on the same night, the respondent, her father and her mother have discussed with the petitioner that they will provide a separate residence for them in the same nearby vicinity of Basaveshwarnagar. He opposed to the said proposal made by the respondent and her parents, but the petitioner agreed to stay with the respondent along with respondent''s parents.

Then, they would refer to an incident on Mahashivarathri festival. When the petitioner informed the respondent that he wanted to go back and see his mother, the respondent became very furious and started abusing the petitioner in a filthy language and she called him in singular words and she also hit the petitioner on his chest and head. Her parents and her brother misunderstood the situation and thereby attacked the petitioner and assaulted him and finally put the petitioner under lock and key in a room of her parents house and thus the petitioner was homely arrested at about 1.40 P.M. on 2.3.2011. Thereafter, he called his parents over mobile phone and in the meanwhile, his family advisor namely, Sri Sudham Das also came immediately and thereafter the petitioner was released from custody. Thereafter, they have not lived together. Several meetings to sort out the issue did not yield any result. Therefore, the petitioner filed a divorce petition on the ground of cruelty.

Respondent, after service of notice entered appearance and filed the statement of objections, denying all the allegation made in the petition. She has stated in categorical terms that she is ready and willing to join the petitioner. It is the petitioner who is ill mannered, ill tempered and has unreasonable attitude. He is not willing to live with her. She has stated that she is open minded she is willing to join the petitioner. All that she wants is a little care, little respect and little concern from the petitioner and her in-laws. The attitude of the mother-in-law is reflected in that the respondent has to deposit gold equal in its weight to the Mangalasuthra that she was wearing in her in-laws'' place before leaving to reside with her parents. She has been caring, comforting as a dutiful wife to the petitioner, as also a respectful and loving daughter-in-law to her in-laws and unfortunately, the respondent was never given an opportunity to smoothly merge into the family. She was always treated as an outsider, never invited to family discussions, she was confined to her room and her job was only to do daily chores. The petitioner and in-laws were in the habit of confining themselves for long hours ignoring the very presence of the respondent in the marital home.

The respondent has been well brought up, well mannered and polite and fully aware and conscious of her marital and social obligations. Conditions were imposed on her that the respondent should surrender her freedom and hand over her personal jewelry to the custody of her mother-in-law and what had to be worn and when was only as per the directions of mother-in-law. As the respondent did not acceptable to part with the jewelry, she was ill-treated. She is a double graduate. She has sacrificed excellent job opportunities for the welfare of the family and these past years of marital life she has lost and at her age, it is practically impossible for her to get a job. Petitioner is gainfully employed and he is working as an Assistant Manager in EXL company. He is earning around Rs. 60,000/- per month. The respondent is willing to join the petitioner and she will duly discharge her marital obligation.

The respondent has also filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights reiterating the allegations made in the statement of objections. The petitioner has filed the statement of objections reiterating the allegations made in the petition.

On the aforesaid pleadings, the Family Court framed the following points for consideration:

"1. Does the petitioner prove that after solemnization of marriage, the respondent has treated the petitioner with cruelty?

Does the petitioner prove that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition?

Does the respondent prove that the petitioner has withdrawn from the society of the respondent without any reasonable cause?

Does the respondent prove that the statements made in the petition are true?

If the question of reasonable excuse arises, does the petitioner prove the reasonable excuse for withdrawing from the society of the respondent?

What Order?"

The petitioner-husband is examined himself as P.W.1 and his father as P.W.2 and he has produced six documents which are marked as Exs. P1 to P6. On behalf of the respondent, she was examined as R.W.1 and she also produced two documents which are marked as Exs. R1 and R2.

The Family Court on appreciation of the aforesaid oral and documentary evidence on record held that the petitioner has miserably failed to prove that respondent has treated him with cruelty. The ground of desertion was also not proved. It is further held that the respondent has proved that the petitioner has withdrawn from the association of respondent without any reasonable cause. She further has proved all that she has stated in her petition for restitution of conjugal rights. The petitioner has failed to prove that the respondent has withdrawn from his company without a reasonable cause. Therefore, the Family Court has proceeded to dismiss the petition for divorce and allowed the petition for restitution of conjugal rights. Aggrieved by the said judgment and order, the husband has preferred these two appeals.

Learned Counsel for the appellant-husband assailing the impugned order contends that the material on record clearly establishes the insult, ill-treatment and assault on the petitioner by the respondent and her parents. She has refused to leave with the petitioner. She is going to her parents'' house frequently, even without informing the petitioner. She is insulting the petitioner''s parents. She did not attend to her mother-in-law when she was admitted in the hospital and therefore, she submits that all these facts would go to show that the case of cruelty pleaded by the petitioner is established. The trial Court without appreciation of the evidence on record, erred in dismissing the petition for divorce.

When the respondent is at fault, when she is not interested in living with the husband, when she insults him, wants to live with her parents, she is not entitled to the relief of restitution of conjugal rights. Therefore, she submits that the impugned order requires to be set-aside and the petition for divorce has to be allowed and the petition for restitution of conjugal rights has to be dismissed.

Per contra, learned Counsel for the respondent supported the impugned order. She submits that the wife is willing to join the petitioner. She is very much interested in leading a married life with the petitioner. In fact, in the mediation proceedings, she was prepared to apologize to the petitioner and his parents unconditionally. Even now, she is willing to do the same. Hence, no case is made out for interference.

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

"Whether the petitioner has made out a case for grant of a decree for divorce? Similarly, whether the petitioner has made out a case for setting aside the decree for restitution of conjugal rights?"

We have gone through the entire order and material on record. From the material on record, it is clear that both the parties are coming from well to do educated families. It was an arranged marriage. Both of them are highly qualified. The marriage was performed and Beegara Oota was conducted in a big choultry in Bangalore. After the marriage, the petitioner took the respondent to Kerala for honeymoon for a week. It is clear that the wife was extremely happy after returning from Kerala and she wanted her husband to accompany him to her parents'' house to explain to her parents how she felt in honeymoon. The wife happens to be the only daughter of an ACF Officer. She is a master graduate. All that she appears to have done is to frequently go and see her parents. Though, initially, the husband also accompanied her, because in his family circle his mother was taunted by saying that they have brought a Ghati Sose, it has affected their reputation. A stigma is attached and therefore, their attitude changed. They started putting unreasonable restrictions on the movements of the respondent. Even the dress she has to wear on the occasions has to be decided by her mother-in-law. She had no freedom to wear jewels given by her parents at the time of marriage. A girl who is uprooted from her parents'' house takes some time to adjust to the new environment in which she stays. Here it is the responsibility of husband and in-laws to understand this fact and their conduct assumes importance. Though there is nothing wrong in their attitude in expecting respect from their daughter-in-law, the respect is to be commanded and not demanded. They also should treat her as daughter and give her love and affection without expecting any return and make her to feel comfortable in the new matrimonial house and have patience. During the initial period, there is bound to be some pickups. Unfortunately, though both the parties are highly educated, appears to have lost sight of some of these elementary things. The evidence on record shows that in spite of these differences, the petitioner used to visit respondent''s house. In fact they also stayed there for considerable time. The respondent assured him of independent house near their house so that for some time they could live independently with his wife. He was invited to Mahashivarathri. After going there, he wanted to get back to his parents'' house which has resulted in some altercations. The fact that the petitioner was attacked, locked and detained in a room as a criminal only shows that as the petitioner has no other ground to urge, he is trying to make a ground of cruelty for a petition for divorce. All these evidence shows that the wife is very possessive about the husband. She wants her husband beside her all the times. She does not want any interference from outsiders.

It has to be seen that the father of the petitioner comes from a police department, whereas the respondent''s father is a man from Forest Department. Both are high officers and each one of them are trying to show their authorities in the home which they were showing in the office. It appears to be the cause for problem in the house.

We do not see any serious uncompromising problem in this case. It is a clash of egos. Probably they are ill-advised. The languages employed in the petition, the instances which are set out in the petition, if all of them are accepted to be true, then it would not constitute a case of cruelty but it is only an attempt to make out a case of cruelty. Therefore, the trial Court which had the advantage of watching the demeanor of witnesses while recording the evidence on record, has recorded a finding that a case of cruelty is not made out. There is no legal evidence justifying the finding of cruelty, so as to dissolve the marriage by a decree of divorce. The fact that the husband and wife are living together and each one wants the other and in particular wife is very much possessive about her husband and that she is ready to do any thing for him, is a sufficient ground to allow the petition for restitution of conjugal rights. There is no error committed by the Family Court in allowing the petition for restitution of conjugal rights and in dismissing the petition for divorce. We are sure if parents of both the parties, if they are really interested in their children, allow them to leave independently for a period of two years, so that they will understand each other better and they will come to know shortcomings of each of them. Because of their education, we are sure, they would like to live together and probably, they will come to know the importance of their parents better. At any rate, the facts set out in the petition and the evidence adduced cannot be a ground for dissolving the marriage. In that view of the matter, we do not find any merit in this appeal. Hence, we pass the following order:

Both the appeals are dismissed. Parties to bear their own costs.

In view of dismissal of the appeals, I.A. No. 1/2014 for stay also stands dismissed.