Manish M. Guthedar vs Deepa S.

N. Kumar, J.

This is a husband''s petition challenging the order passed by the Family Court dismissing his petition for divorce and allowing the petition of the wife for restitution of conjugal rights. As petitions were clubbed together and common evidence was recorded and common order came to be passed, they are taken up for consideration together and disposed of by this common Judgment.

For the purpose of convenience, the parties are referred to as they are referred to in the petition filed by the husband for divorce.

The marriage of the petitioner and the respondent was solemnized on 11.05.2006 in Arya Samaj "Swamy Shraddhananda Bhavan", Visweswarapuram, Bengaluru and a male child was born after the marriage. Petitioner belongs to Ediga community whereas, respondent belongs to Gowda community.

The case of the petitioner is that the marriage was performed forcibly, it was not performed as per Hindu rites and customs. Therefore, the said marriage is not a valid marriage in the eye of law and as such, respondent is not a legally wedded wife. The respondent is in the habit of participating in the horse-race with a gambler friend. Since respondent gave birth to a child within seven months from the date of marriage, it creates suspicion in the mind of the petitioner. When he questioned the fidelity of the respondent, she left the matrimonial home without the consent of the petitioner. Thereafter, the petitioner had stopped cohabitation with the respondent and subsequently, the respondent deserted the petitioner and started to reside with her mother. Hence, he was constrained to file the petition for dissolution of marriage on the ground of desertion as well as on the ground of cruelty.

The respondent filed a statement of objection contending that, prior to the solemnization of their marriage, the petitioner sought to persuade and lure the respondent to have sexual intercourse with him by stating that he would be extremely happy if she gives birth to a male child due to which the respondent conceived. The petitioner is father of a male child Master Dhyan. After the marriage, the petitioner used to abuse and quarrel with the respondent for no fault of her. He used to suspect her fidelity and started torturing and humiliating her by saying that she had sexual contact with various other men before the marriage and child was a resultant of such an illegal relationship. The petitioner started harassing the respondent by saying that he wanted to get married another girl. On 13.8.2010 the petitioner had beaten the respondent black and blue and assaulted her. Without reasonable cause and excuse, the petitioner himself has withdrawn from her company. Inspite of repeated requests made by her to come back to the conjugal folds, the petitioner refused to join her. The respondent fearing for life and limb in the hands of the petitioner, is staying in a hotel. The petitioner has neglected to perform his part of conjugal duties. The respondent even today is ready and willing to join the petitioner. Therefore, she sought for dismissal of the divorce petition.

On the same allegations, she preferred a petition for restitution of conjugal rights. The petitioner herein has filed statement of objection reiterating what he has stated in the petition for divorce. Therefore, both the petitions were clubbed. The petitioner was examined as PW. 1 and got marked a CD relating to conversation of petitioner and respondent as Ex. P1. On the other hand, the respondent has examined herself as RW.1 and she has produced five documents which were marked as Exs. R1 to R5.

After hearing the learned counsel for the parties, the family Court framed the following points for consideration:

"1. Whether the petitioner proves that after the solemnization of the marriage the respondent has treated him with cruelty?

Whether the petitioner proves that without reasonable and justifiable cause and without his consent the respondent has deserted him?

Whether the petitioner is entitled to get decree of divorce?

Whether the respondent proves that without reasonable excuse the petitioner has withdrawn from her company?

Whether the respondent is entitled for decree for Restitution of Conjugal Rights?

What decree or order?"

On appreciation of oral and documentary evidence on record and taking note of the submissions of the learned counsel, it held that the petitioner has failed to prove that after solemnization of the marriage, the respondent has treated him with cruelty. Similarly it held that the petitioner failed to prove that without reasonable or justifiable cause and without his consent the respondent has deserted him. Therefore, it held that the petitioner is not entitled for a decree of divorce. On the contrary, it held that respondent has proved that without reasonable excuses, the petitioner has withdrawn from her company and therefore she is entitled for a decree for restitution of conjugal rights. Accordingly, petition filed by the petitioner for decree of divorce was dismissed and the petition filed by the respondent for restitution of conjugal rights was allowed.

Aggrieved by those two orders, the husband has preferred these two appeals. Learned counsel for the appellant-petitioner assailing the impugned order contends that the wife has withdrawn from the company of the petitioner and in fact she is staying in a hotel room in terms of the order passed in the proceedings initiated by her under the provisions of the Domestic Violence Act against the petitioner. The respondent herself left the house and staying in a hotel with her mother and child and stopped the child from attending the school and she has disobeyed the interim order passed by the Family Court with regard to visiting rights of the petitioner once in a week. He has not co-habited with the wife. It is in the month of January 2007, the wife has deserted the petitioner, she refused to join him and therefore, a case for dissolution of marriage on the ground of desertion was not properly appreciated by the Family Court.

He further urged that, the company of wife is atrocious. She is only interested in money from the petitioner and harassed him. In fact, she has sent SMS saying that she will not attend to Court and he can walk away with decree for divorce. In fact, marriage performed is not in accordance with Hindu rites and customs, is a nullity, she was pregnant as on the date the marriage took place. All these aspects have not been properly appreciated by the Family Court while dismissing the petition filed by the petitioner and therefore, he urged genuine cause is made out to interfere with the order passed by the Family Court.

We have heard the learned counsel for the appellant. We do not find any merit in all these contentions urged by the appellant.

The material on record shows it is a love marriage. Even before marriage, both petitioner and respondent were seen together and had physical contact. If the case of the petitioner has to be believed, they both were meeting in the race-course at Bangalore. It only shows status of both the parties and kind of life they were living. Thereafter, the marriage took place according to Arya Samaj custom. According to the petitioner, it is a forced marriage. Absolutely no iota of evidence is placed on record to prove the factum of ''force''. If both of them knew each other and loved each other, we fail to understand how it could be a forced marriage. The child was born seven months thereafter. It is not in dispute that the petitioner lived with his wife under a common roof. It is only after birth of child according to the petitioner, she deserted him but the evidence on record runs counter to his submission. The Family Court, on careful scrutiny of the evidence of the petitioner, has held that in the course of cross-examination recorded on 2.4.2012, the petitioner has stated, in the month of December 2010, the respondent left the matrimonial home.

The material on record reveal that the petitioner himself has provided a rented house to the respondent in which the respondent and her child were residing. The petitioner frequently visited the respondent''s house. One month prior to her leaving the house, the petitioner visited her house. If she has deserted the petitioner on December 2010, the petition for divorce was filed on 03.11.2010. If the respondent left the matrimonial home in the month of December 2010, the petitioner has no cause of action to file the petition seeking divorce on the ground of desertion in the month of November 2010. Therefore, the Family Court, on appreciation of evidence on record has rightly held before expiry of two years period from the alleged date of desertion of the petitioner, the petition for divorce on the ground of desertion is not maintainable.

In so far as ground of cruelty is concerned, absolutely there is no material on record to establish the same. On the contrary, having lived with the wife for one month after to the marriage and after the child was born, he cannot question the fidelity of the wife. She protested and it appears thereafter, the relationship was strained in throwing away the wife from the house, she had to take shelter in a hotel, as it was a love marriage, probably against the wishes of her parents. The fact that she did not join her parent''s house would clearly demonstrates her helpless situation in which she was placed. It is thereafter, she has taken recourse of law to initiate proceedings which forced the petitioner to provide her an apartment for her residence and some amount for her maintenance. It is the duty of the husband to take care of his wife, instead, he has made her to fight litigation in the Court. It is in these circumstances, the Family Court was justified in recording a finding that the case of cruelty is not established.

In so far as granting relief of restitution of conjugal rights is concerned, the Family Court Judge was justified in granting the said relief. The material on record discloses, the marriage between the parties is a love marriage. They knew each other two years prior to their marriage. The petitioner had developed intimacy with the respondent, had physical relationship prior to the marriage, because of that, the respondent conceived prior to the marriage. The evidence on record clearly demonstrates, prior to solemnization of marriage, the petitioner used to persuade and lure the respondent to have sexual intercourse with him due to which, respondent conceived, on the date of marriage she was two months pregnant and within seven months from the date of marriage, she gave birth to a male child.

The evidence further discloses, petitioner himself provided rented house to the respondent wherein the respondent and her child are residing. Petitioner frequently used to visit the respondent. Thereafter, he himself has stopped from visiting the respondent and cohabitating with the respondent. The respondent has not failed to discharge her marital obligation, on the contrary, she is eager to join the respondent and perform her marital obligations. She is not at fault. It is the petitioner who, without justification and reasonable excuse, has deserted the respondent. Under those circumstances, we do not see any justification to deny the relief of restitution of conjugal rights to the respondent wife. Therefore, the Family Court was justified in granting the relief of restitution of conjugal rights. In that view of the matter, we do not see any merit in these appeals.

Accordingly, both the appeals are dismissed. The delay caused in filing the appeal by the husband would show that he reconciled with the Judgment. However he has moved the Court probably on the ill-advise and wanted to take a chance before this Court. As we do not find any merit in these appeals, they are liable to be dismissed.

Accordingly, the appeals are dismissed.