Mahesha vs Smt. L. Suma

Arali Nagaraj, J.—The present MFA is by the husband challenging the correctness of the judgment and Decree dated 24.1.2007 passed in MC No. 1397/2004 by the Principal Judge, Family Court at Bangalore, (hereinafter referred to as ''Family Court'') dismissing the petition of this Appellant filed u/s 13(1)(ia)(ib) of Hindu Marriage Act, seeking divorce from his wife Smt. L. Suma who is the Respondent before the Family Court and also in the present appeal.

Stated in brief, the case of the Petitioner -husband as pleaded in the petition for divorce is as under:

(i) The marriage of the Petitioner with the Respondent was performed on 18.5.1992 as per Hindu rights and customs at Bangalore. The said marriage was simple and No. dowry was demanded either by the Petitioner or from his relatives and as such, No. dowry was given either by the Respondent or by her relatives.

(ii) After her marriage with the Petitioner, the Respondent stayed with him for 3 days only from 18.05.1992 to 22.05.1992 and then she left for her parental village Konnapura on 22.05.1992. Thereafter, she did not return to the Petitioner.

(iii) The Petitioner, being a Graduate in Engineering (Civil) secured a job in PWD Department, Government of Karnataka in the month of March 1993. While the Respondent -wife stayed with the Petitioner for 3 days as stated supra, there was No. physical contact between the Petitioner and the Respondent.

(iv) The Respondent is a lady of a doubtful character. The Petitioner had received some letters about her character even before his marriage with her and also after the marriage. When he confronted the said letters to the Respondent and her parents, they put forward the explanation as an eye wash saying that persons inimical to them might have written such letters and therefore the same should be ignored. The Petitioner bonafidely believed the said explanation.

(v) The Petitioner, with a fond hope that the Respondent would come and join him waited for a long time. But she did not joint him. Thus, the Respondent virtually deserted the Petitioner since 22.5.1992. This caused great anguish and mental agony to the Petitioner. This conduct of the Respondent amounts to mental cruelty to the Petitioner.

(vi) Though, there was No. physical contact between the Petitioner and the Respondent, the Petitioner was surprised and shocked to know that the Respondent gave birth to a child. On the ill-advise of her parents and Ors. the Respondent - wife went to the extent of lodging false and frivolous complaint with the police of J.P. Nagar P.S. Bangalore implicating the Petitioner and also his relatives for the alleged offences u/s 498A Indian Penal Code and under Sections 3 and 4 of Dowry Prohibition Act. She also filed O.S. No. 226/1998 before the learned 1st Additional Principal Judge, Family Court, Bangalore seeking maintenance from the Petitioner.

(vii) The police of J.P. Nagar P.S. filed charge sheet against the Petitioner and members of his family in CC. No. 4070/1997 in the Court of the learned ACMM, Bangalore, for the said offences. The Petitioner and his relatives advised and also requested the Respondent to join the Petitioner and lead happy married life but she did not heed the same. Thus she is guilty of deserting the Petitioner without any sufficient cause. She showed her least care to lead happy married life with the Petitioner. With the result, the relation between the Petitioner and the Respondent is irretrievably broken. Therefore, the Petitioner has sought for dissolution of his marriage with the Respondent.

In response to the summons issued, the Respondent - wife appeared before the Family Court and contested the divorce petition by filing her written objections to it wherein, while admitting her relationship with the Petitioner by reason of her marriage with him on 18th May 1992, she has denied all the averments of the Petitioner insofar as they relate to her character, alleged desertion cruelty etc. She has contended further in her objections as under:

(a) During January 1992, when negotiations were held in respect of her marriage with the Petitioner, demand for wrist watch, gold neck chain, pair of suit, shirts, shoes, all worth of Rs. 40,000/- and also cash of Rs. 50,000/-and costly gift items to the members of the family of the Petitioner was putforth by the Petitioner and his relatives. The Respondent''s parents agreed to the same and performed her marriage with him very pompously in a big choultry at Bangalore. Still the Petitioner and ins parents were not satisfied and therefore, within the short period after the marriage they started ill-treating the Respondent, in connection with their demand and lust for further dowry.

(b) The Petitioner and his parents demanded from the Respondent and her parents a sum of Rs. 5,00,000/- on the ground that the same was required by the Petitioner for getting a Govt. Job. But the parents of the Respondent expressed their inability to meet his said demand. Therefore, the Petitioner started abusing vulgarly and beating the Respondent. Her status in the family of the Petitioner was nothing more than a maid-servant. She was not given proper food and she was being given only the left over food to eat.

(c) The Petitioner has made reckless allegation against her saying that she is a women of doubtful character. This allegation itself amounts to mental cruelty to the Respondent. When the Respondent became pregnant, the Petitioner and his parents attempted to forcibly abort, but they failed in their attempt. Therefore, the poor Respondent, having left with No. alternative, joined her parents at Jayanagar in Bangalore City and gave birth to her daughter Hema in her parental house on 25.5.1994. The allegation of the Petitioner that this child was not born to him also amounts to mental cruelty to the Respondent.

(d) On 25.5.1994 the Petitioner and his parents came to the parental house of the Petitioner and again demanded from the Respondent and her parents transfer of the site in the name of the Petitioner, which was standing in the name of the mother of the Respondent. When the said demand was not accepted, they all said that the Respondent has to live in her parental house through out her lifetime. They warned the Respondent that she should not make any attempt to step in to her matrimonial home through out of her lift time.

(e) The Petitioner has abandoned the Respondent without any just or sufficient cause. Since the Respondent could not tolerate the ill-treatment given to her by the Petitioner and his parents in connection with their unlawful demand for dowry, money and site, she was forced to initiate the said criminal proceedings against them for the offences u/s 498A Indian Penal Code and under Sections 3 and 4 of Dowry Probationary Act. Since, the Petitioner neglected to maintain the Respondent and the child, she was forced to file O.S. No. 226/1998 in Family Court and obtain a Decree against him for maintenance.

(f) Real fact being that, the Petitioner is having illicit relationship with another women and therefore, in order to irradiate the Respondent out of their unlawful way, the Petitioner is seeking dissolution of his marriage with the Respondent.

(g) The allegation that there was No. cohabitation between the Petitioner and the Respondent is totally false and baseless. The present petition deserves to be dismissed as being devoid of merits.

On appreciation of the oral evidence of the Petitioner - husband (PW1) and the Respondent - wife (RW1) and after considering the document at Ex.P1 to P13 produced by the Petitioner - husband and the document at Ex.R1 produced by the Respondent - wife, the Family Court, by its impugned judgment and Decree dismissed the petition of the Petitioner seeking dissolution of his marriage with the Respondent.

We have heard the arguments of Sri. P.S. Manjunath, learned Counsel for the Appellant -husband and Sri. C.V. Nagesh, learned Counsel for the Respondent - wife. Perused the impugned judgment and Decree and the entire material placed on the record by both the parties.

Having heard the argument of learned Counsel for both the sides the only point that arise for our determination is.

Whether the Family Court is not justified in dismissing the petition of the Appellant (Petitioner before the Family Court) filed u/s 13(1)(ia)(ib) of Hindu Marriage Act, 1955.

Learned Counsel for the Petitioner (hereinafter parties are referred to as per their rank before the Family Court) strongly contended that the Family Court has committed serious error in not accepting the oral evidence of the Petitioner (PW1) and also the documents at Exs.P11 to P13 and therefore the finding recorded that the Petitioner failed to prove his case of cruelty and desertion against the Respondent - wife deserves to be set aside. He further contended that according to the Respondent herself she lead happy married life with the Petitioner till she became pregnant and that shortly after the child was born, she instead of joining the Petitioner, filed her complaint before the J.P. Nagar P.S., against the Petitioner and his parents for the offences u/s 498A Indian Penal Code and under Sections 3 and 4 of Dowry Probationary Act, in which case, the Petitioner and his parents came to be acquitted by the Criminal Court. He also contended that this conduct of the Respondent is itself sufficient to hold that she is guilty of desertion as against the Petitioner and therefore the impugned judgment and Decree deserves to be set aside and the marriage of the Petitioner with the Respondent deserves to be dissolved by allowing this petition on the ground of desertion alone. Learned Counsel for the Petitioner (Appellant) further contended very strongly that the fact that the Respondent - wife dragged the Petitioner and his parents to the Criminal Court by filing false complaint against them without any material to substantiate the offences alleged against them amounts to mental cruelty entitling in the Petitioner to seek dissolution of his marriage with her, but the Family Court lost sight of this aspect of the case in dismissing Petitioner''s petition.

Per Contra Sri. C.V. Nagesh, learned Counsel for the Respondent. - wife strongly contended that during all these years right from the birth of the child in the year 1994, the Petitioner husband has not made any sincere effort to get the Respondent - wife back to his house and therefore he cannot take the benefit of his own wrong and say that the Respondent has deserted him. He further contended that, it is not the Respondent who treated the Petitioner with cruelty, but it is the Petitioner who treated the responded with cruelty by making reckless allegations doubting her character and therefore, the Family Court rightly dismissed the petition of the Petitioner (Appellant). Hence, the impugned judgment and decree does not call for any interference to this appeal.

From the material on record it could be seen that following facts are not in dispute.

i) Marriage of the Petitioner with the Respondent took place on 18.5.1392 and the same was performed by the parents of the Respondent. The Respondent gave birth to her daughter Hema on 25.5.1994 while she was staying with her parents in her parental house.

ii) Ever since the birth of the child Hema i.e. since more than 10 years as on the date of the divorce petition, (more than 16 years as on this date), the Petitioner and the Respondent have been leaving separately from each other.

iii) About a year after the birth of the child, the Respondent filed criminal complaint (Ex.P5 dated 9.5.1995) against the Petitioner and his parents alleging that she was treated with cruelty by them in connection with their unlawful demand for dowry, cash and site and thus committed the offences u/s 498A Indian Penal Code and under Sections 3 and 4 of Dowry Prohibition Act. On the basis of the said complaint charge sheet came to be filed against the Petitioner and his parents for the said offences but they came to be acquitted of all the said offences.

iv) The Petitioner did not pay anything towards maintenance of the Respondent and also the child and therefore, they filed against him O.S No. 226/1998 and obtained a decree for maintenance. The Petitioner has been paying maintenance to them in compliance with the said decree.

If it is the case of the Petitioner that the Respondent went to her parental home shortly after the marriage and did not return to her matrimonial home and that all the efforts made by him in bringing back to the Petitioner to his home did not yield any result, the case of the Respondent is that she stayed happily with the Petitioner till she became pregnant, and thereafter, the Petitioner and his parents started ill-treating her in connection with their unlawful demand for money & site which is standing in the name of her mother and that as she could nor tolerate the ill-treatment, she did not join the Petitioner after the birth of the child.

On careful reading of the impugned judgment it could be seen that at para No. 11 therein the learned Judge, Family Court, has extracted relevant evidence of the Respondent given by her as PW1 in the criminal case which reads as: "it is true that during my stay at Konnapura accused persons were taking care of me well" and "it is true that till completion of shastra the accused persons took care of my daughter very well". In view of this evidence of the Respondent-wife in the said criminal case that was filed by her against the Petitioner and her parents, the family Court rightly negatived the case of the Respondent that while she was pregnant the Petitioner and his parents treated her with cruelty and therefore she did not join the Petitioner after the birth of the child. We do not find any reason to interfere with this finding. When it is her own say that she was treated by the Petitioner and his parents with properly while she was in her matrimonial home and that they took care of her daughter also, there could be No. occasion for the Petitioner and his parents to treat the Respondent with cruelty in connection with their alleged demand for money, site etc., It is pertinent to note that the Respondent has not produced any material on record to show that her mother was owning any site so as to give an opportunity to the Petitioner and his parents to demand from the Respondent and his parents transfer of the said site in his name. Further, though it is the specific case of the Respondent-wife that marriage negotiations took place prior to her marriage with the Petitioner and that during the said negotiations the Petitioner and his parents demanded from her parents gold ornaments, cash etc., and that after the marriage they made further demand for Rs. 5,00,000/- saying that the same was required by the Petitioner for securing Govt. Job for him, the Respondent has not chosen to get either of his parents or any other member of her family examined as witness to substantiate the same.

It is not the case of the Respondent that during this long period she ever made any attempt to join the Petitioner for leading married life with him. It is also not her case that she is ready and willing to join him. In her affidavit sworn to as her examination-in-chief she has stated that ''it is not safe for her to join the Petitioner as she was ill-treated by him and he had been persistently making attempts to suspect her character and that in the best interest of her child she wants the Petitioner to remain as her husband, otherwise her child will be subjected to humiliation''. In her evidence she has also alleged against the Petitioner-husband that he is having illicit relationship with another women therefore with a view to avoid (Respondent) he has filed the present petition for divorce.

Further, the records disclose that even during mediation the Respondent stated that she would not join the Petitioner. Thus it is clear that it is the Respondent -wife who deserted the Petitioner husband for No. valid reason inasmuch as she failed to substantiate her case of alleged cruelty against her by the Petitioner and his parents in connection with their alleged demand for dowry, cash, site etc. This being so, we are of the opinion that the Family Court lost sight of this aspect of the case of the Petitioner and erroneously dismissed his petition for dissolution of marriage sought for on the ground of desertion.

Whenever both the spouses stay separately from each other during subsistence of their marriage, both of them undergo mental agony, anguish and sufferings whatever be the reason for such separate leaving. In the instant case the Respondent - wife deserted her husband for No. valid reason and therefore he deserves the grant of divorce oil the ground of desertion.

Learned Counsel for the Respondent - wife contended that the daughter of the Petitioner and Respondent viz, Kumari Hema who was born in the year 1994 is now aged about 17 years and she needs better education and her marriage has to be performed by the Petitioner being her father and therefore, if the marriage between the Petitioner and Respondent is dissolved, her career and the prospects of her marriage would be adversely affected and it would also be difficult for the Respondent to perform her marriage. This apprehension of learned Counsel for the Respondent deserves due consideration by us. We feel that this apprehension may be met with by imposing suitable conditions on the Petitioner in respect of her maintenance, education and marriage. If the girl is given better education, the factum of divorce between the Petitioner and the Respondent would not come in the way of her marriage.

For the reasons aforesaid, we are of the considered opinion that the present appeal of the Petitioner - husband deserves to be allowed and his petition for dissolution of his marriage with the Respondent deserves to be allowed on the ground of desertion, if not on the ground of cruelty also. Hence, we pass the following

ORDER

(i) The present appeal is hereby allowed. The impugned judgment and decree dated 24.1.2007 passed in MC No. 1397/2004 by the Principal Judge, Family Court at Bangalore, dismissing the petition of the Petitioner therein (Appellant herein) is hereby set aside. The said petition is allowed on the ground of desertion only and the marriage of the Petitioner with the Respondent solemnized on 18.5.1992 at Bangalore shall stand dissolved.

ii) The Petitioner shall go on paying to the Respondent maintenance as per the judgment and decree passed in OS No. 226/1998 by the learned 1st Addl. Principal Judge, Family Court, Bangalore. However, the Respondent wife shall be at liberty to seek enhancement in the amount of maintenance on proof of changed circumstances, if any. The Petitioner shall take care of the education of his daughter Kum. Hema.

iii) The Petitioner shall deposit with the Family Court, within 3 months from the date of decree passed in this appeal, a sum of Rs. 10,00,000/- through Demand Draft. After the said amount is deposited, the Family Court shall cause the same invested in Fixed Deposit Account in the joint names of the Petitioner and his daughter Kum. Hema with any Nationalized/Schedule Bank of his (Petitioner''s) choice for a period of 10 years towards marriage expenses of the said daughter of the Petitioner and the Banker shall be directed that the said amount of deposit or any part thereof shall not he permitted to be withdrawn by the Petitioner and the said daughter except with the permission of the Family Court for meeting the expenses of marriage of the Petitioner''s said daughter. The Banker shall further directed that No. loan shall be permitted to be raised on the said deposit and that interest accrued thereon shall not be paid either to the Petitioner or to his said daughter and that, after the said amount of deposit is accepted by the banker the Deposit Receipt shall be given to the custody of the Family Court and a Photostat copy of the same shall be given to the Petitioner and also his said daughter for the purpose of keeping the same as the record of the said deposit.