Mrs. Edna Adeline vs Renold Praveen Kumar

B. Manohar, J.—Appellant is the Defendant before the court below, being aggrieved by the judgment and decree dated 8-7-2010 made in MC. No. 72/2008 passed by the Additional Senior Civil Judge, Udupi preferred this appeal.

The brief facts of the case are as follows:

The Respondent/Petitioner filed a petition in M.C. No. 72/2008 u/s 10(1)(ix) and (x) of Indian Divorce Act, 1869 seeking for dissolution of marriage solemnized on 2-11-1997. The Petitioner has contended that the Respondent is the legally wedded wife of the Petitioner. Their marriage was solemnized on 2-11-1997 at U.B.M. Jubilee Church, Udupi as per their Customs and rituals. After the marriage, the Respondent started her marital life in the matrimonial house. Out of their wedlock, a male child was born on 4-9-1999. According to the Petitioner, ever since the marriage, the attitude and behaviour of the Respondent was indifferent towards the Petitioner, his ailing mother, sister and other inmates of the house. The Respondent used to insult the Petitioner and other family members. The Respondent is having a violative and suspicious nature and she is extremely stubborn towards the Petitioner and his family members. The Respondent did not cooperate to discharge the matrimonial obligations. It is alleged that within a few months after the marriage, the Respondent started quarreling with the Petitioner. She used to stop talking with him for several days. The Respondent, is always adopting disrespectful attitude towards the Petitioner. She used to get up very late in the morning and was not doing any household work, and used to pick up quarrels with other inmates of the house without any reason. The Respondent did not cooperate for naming ceremony of newly born child held on 10-10-1999 at CSI Jubilee Church, Udupi. She left the matrimonial house on 1-1-2000 without consent of the Petitioner and stayed in her foster father''s house. She used to visit her foster parent''s house very frequently without the consent of the Petitioner. When the Respondent came to her foster father''s house on 1-1-2000, the Petitioner went to the foster father''s house on 2.1.2000 and requested her to come back to the marital house. The Respondent told that if the Petitioner arranges a separate house, then only she would come back to marital house. On 7-4-2000, some people assaulted the Petitioner and he was hospitalised at Manipal, but the Respondent did not turn up to the hospital to see the ailing Petitioner. The behavior of the Respondent is adamant, quarrelsome and cruel. She has no love and affection towards the Petitioner. Thereafter, the Petitioner issued legal notice to the Respondent on 12-2-2002 calling upon the Respondent to return to the marital house otherwise, legal action will be taken against her through the court. In pursuance to the legal notice, the Respondent returned to the marital house along with the child on 21-2-2002. However, she left the marital house permanently on 17-2-2005 and deserted the Petitioner without any reasonable cause. The Petitioner alleges that the Respondent behaved indifferently and insulted the Petitioner in the presence of his client and friends on 1-5-2004, when he called upon the Respondent to prepare the lemon juice. Even on 17-2-2005 also she behaved rudely in front of his friends. Further, without the knowledge and consent of the Petitioner, the Respondent had anti-pregnancy arrangement. The Respondent was having the habit of sending objectionable messages during the odd hours and it will be a mental cruelty on the Petitioner. When the son of the Petitioner was admitted to the hospital, for the transient synovities of the left hip, the Respondent has not come to the hospital to see her child. She has no love and affection towards her son. She is cruel in nature and she has given physical and mental cruelty to the Petitioner and deserted him from 17-2-2005. An effort made to bring back the Respondent to the marital house was failed. In view of that, the Petitioner filed a petition seeking for divorce u/s 10(1)(ix)(x) of the Indian Divorce Act.

In pursuance to the notice issued by the Civil Judge, the Respondent put her appearance and filed objections and denied the allegations made in the petition regarding desertion and cruelty. She admitted the marriage solemnized on 2-11-1997 and giving birth to the male child on 4-9-1999. The Respondent has contended that due to the behaviour of the Petitioner she was compelled to leave the marital house. She has no intention to put an end to the matrimonial relations and she is ready and willing to lead a happy marital life with the Petitioner provided he assures safe and peaceful environment. She alleges that Petitioner has ill-treated her and physically assaulted at the instances of his sister and housemaid servant. She further alleges that the Petitioner is having the habit of consuming alcohol under the influence of alcohol he used to assault and abuse the Respondent. She was not allowed to speak with the child in the house of the Petitioner. She states that the Petitioner has no concern or affection towards her. She further alleges that the Petitioner and his sister who have compelled the Respondent to undergo anti-pregnancy arrangement against the medical advise and against the wish of the Respondent. She is always cooperative in discharging the matrimonial obligations. On the other hand, the Petitioner has completely neglected the Respondent. She has not given any mental and physical cruelty on the Petitioner and sought for dismissal of the petition.

On the basis of the pleadings of the parties, the court below has framed the following issues:

(i) Whether the Petitioner proves that he has been subjected into cruelty by the Respondent?

(ii) Whether the Petitioner proves that the Respondent has deserted him for atleast 2 years immediately preceding the presentation of the petition?

(iii) What order or decree?

The Petitioner in order to prove his contention, examined himself as P.W. i and examined two other witnesses as P.W.2 and P.W.3 to support his contention and got marked the documents Ex.P.1 to Ex.P.30. The Respondent examined herself as RW 1 and examined her fostered father as R.W.2. and got marked the documents as Ex.R.1 to R.4

The court below considering the oral and documentary evidence let in by the parties held issue Nos. 1 and 2 in the affirmative consequently allowed the petition and declared that the marriage solemnized between the Petitioner and Respondent on 2-11-1997 is hereby dissolved with effect from the date of judgment and decree dated 8-7-2010.

The Appellant being aggrieved by the judgment and decree passed by the court below filed this appeal.

Sri. S.N. Bhat, learned Counsel appearing for the Appellant contended that the judgment and decree passed by the court below is contrary to law and evidence on record. The Respondent has not produced any material to show that the Appellant has deserted the Respondent. On the other hand, due to the assault on the Appellant, the Appellant was forced to leave the marital house. Further adopting the anti-pregnancy device for a temporary period cannot be treated as cruelty and no evidence has been let in by the Respondent to prove the physical and mental cruelty on him. Further sending SMS to the Respondent cannot be treated as mental cruelty on the Respondent and sought for setting aside, the judgment and decree passed by the court below by allowing the appeal.

On the other hand, Sri. A. Ananda Shetty, learned Counsel appearing for the Respondent contended that the court below after considering the oral and documentary evidence found that the conduct of the Appellant amounts to cruelty on the Respondent and passed the order. Further the Appellant had pointed out in his evidence 11 incidents in which, the conduct of the Appellant had caused mental cruelty oh the Respondent. During the course of evidence, the Appellant has made reckless allegation against the Respondent husband alleging that the Respondent had extramarital relation before their marriage. Further she has alleged that he had illicit relation with his sister''s daughter and the maidservant though no such allegations have been made in the objections statement. Hence, the conduct of the Respondent causes mental cruelty on the Respondent Taking into consideration all these aspects of the matter, the court below has passed the judgment and decree and the same is not liable to be interfered with by this Hon''ble Court and sought for dismissal of the appeal

We have carefully gone through the arguments of the parties and perused the oral and documentary evidence led by the parties.

It is not in dispute that the marriage of the Appellant and Respondent was solemnized on 2-11-1997 and due to the wedlock a male child was born 4-9-1999. The allegation of the Petitioner before the court below is that the Appellant is quarrelsome, violative and suspicious nature. She is extremely stubborn towards the Petitioner and his family members and insulted the Petitioner and his family members without any cause. She was not cooperative during the naming ceremony of her son on 10-10-1999. The Respondent was a Vice-President of Udupi City Corporation. When he was admitted to the hospital due to the assault by somebody on 7.4.2000, the Appellant never visited the hospital to see him and she has no respect and regard for the Respondent and she was frequently leaving the marital house. Further she has permanently left the marital house on 17-2-2005. Even when her child was admitted to the hospital for treatment, she never visited the hospital to see her son. From 17-2-2005, she has deserted the Petitioner and there is no cohabitation since then. The conduct of the Appellant amounts to physical and mental Cruelty on the Respondent.

On the other hand, the Appellant denied each of the allegations made against her by the Respondent and she made allegations against the Respondent stating that he is in the habit of consuming alcohol and under the influence of alcohol he used to assault and abuse the Respondent. She has contended that if the Respondent provides a separate house, she is ready and willing to lead a happy marital life with the Respondent.

The Respondent in his evidence pointed out 11 incidents showing the conduct of the Appellant, which amounts to physical and mental cruelty on him. Further, he has examined two other witnesses in support of his contention. P.W.2 speaks about the incident took place on 1-5-2004 and P.W.3 speaks about the incident took place on 17-2-2005. He has produced the notice issued to the Appellant as Ex.P.3 and the SMS sent to the Appellant to cause physical and mental cruelty as Ex.P.7(a) and Ex.P.7(b). He has also produced the discharge summary to show that he was admitted to the

On the other hand, the Appellant in her evidence denied the allegations made against her and contended that the Respondent did not show any curtsey to invite her foster father to the naming ceremony of her son and that is the reason for not cooperating in the naming ceremony of her son. Though in her objections she has stated that at the instance of the Petitioner and his sister, she has undergone anti-pregnancy arrangement, in her evidence she has admitted that in order to avoid the second child she has undergone anti-pregnancy and had adopted the Copper T in the year 2000. After three years, she got removed the Copper T and this has not been informed to the Petitioner. She has further deposed that alter removal of the Copper T, she has adopted the Loop, for which also she has not obtained permission from the Petitioner. On coming to know the said fact, the Petitioner has sent his sister to the hospital along with the Respondent for the purpose of removing the loop and in the hospital loop has been removed. Further, she alleges that due to the assault on her by the Petitioner, she has undergone abortion for three times. But, no material has been produced in that regard. Admittedly, the first child was born on 4-9-1999. In the year 2000 itself she has undergone anti-pregnancy arrangement using Copper T for a period of three years and thereafter she has adopted loop. During the period of anti-pregnancy, getting aborted for three times does not arise. Hence, the evidence of R.W.1 cannot be relied on. Further, she has made baseless allegations against the Respondent. The Appellant in her evidence admitted that in the year 2005 sne has permanently left the marital house and she is working as a teacher at Mumbai. Further in some of the objectionable SMS she demanded Rs. 45.00 lakhs from the Petitioner allowing him to have a second wife. All these circumstances clearly show that there was mental and physical cruelty on the Respondent/husband.

The Hon''ble Supreme Court in a judgment reported in G.V.N. Kameswara Rao Vs. G. Jabilli, while dealing with ''Cruelty'', has held that-

While considering the mental cruelty, the Court has to consider whether the conduct of the Respondent is such that it has become intolerable for the Petitioner to suffer any longer and to live together has become impossible

It is further observed that

traumatic experiences by the complainant spouse as a result of the persistent non-cooperation and hostile attitude of the Respondent spouse, can concluded, in the expression of "cruelty".

The case pleaded by the Petitioner before the court below comes within the parameters of the law laid down by the Hon''ble Supreme Court referred to above. The specific allegations of the Respondent is that unless the Petitioner arranges a separate residence, she will not come back to the marital house. She did not cooperate in the naming ceremony of her son and she insulted the Petitioner and his family members in front of others and sending SMS during the odd hours, all these will clearly cause cruelty on the Respondent.

The Hon''ble Supreme Court in another judgment reported in V. Bhagat Vs. Mrs. D. Bhagat, , has observed that

allegations by wife in her written statement and question put by her counsel to husband and all members of his family are lunatics and streak, of insanity run through his entire family constitutes mental cruelty husband in circumstances cannot be asked to live with wife.

In the instant case, during course of evidence the Respondent made allegations that the Petitioner had extramarital relationship with one lady before their marriage and they had stayed in a hotel at Manipal. She has also alleged that the husband had illicit relation with the maidservant of the house and daughter of his sister. But, the Respondent has not disclosed the name of the lady with whom the Petitioner had stayed in a hotel at Manipal before their marriage and when he stayed in the Manipal was also not disclosed. Further she has not disclosed as to how she got the information. That apart the daughters of the Petitioner''s sister are aged about 12 years and 4 years, further the maidservants are aged about 60 and 65 years. It is difficult to believe the allegations of the Respondent. Without regard for any truth, baseless allegations have been made against the husband. Hence, it will be cruelty on the Petitioner. The Petitioner is a practicing advocate and in the public life. The Supreme Court judgment referred to above is applicable to the facts and circumstances of the case. The court below after considering the oral and documentary evidence led by the parties, allowed the petition and declared that the marriage solemnized between the Petitioner and Respondent as dissolved. We find no error or irregularity in the judgment and decree passed by the court below. The material on record clearly disclose that the Respondent has deserted the Petitioner from the year 2005 and petition has been filed three years thereafter.

The Hon''ble Supreme Court in a judgment reported in Suman Kapur Vs. Sudhir Kapur, has held that wife calling the parents of the husband as ghost and making serious allegations against the husband that he had married an American woman would amount to mental cruelty on the husband. In the instant case, the Appellant has made allegations that the husband had extramarital relation with some other woman and illicit relation with the maidservants and sister''s daughter. This allegation amounts to mental cruelty on the Petitioner. That the court below after considering oral and documentary evidence led by the parties found that Petitioner is entitled for decree of divorce u/s 10(1)(ix) and (x) of the Divorce Act There is no irregularity in the said order.

We find that the Appellant has not made out any case to interfere with the well-considered order passed by the court below. Hence, we pass the following:

ORDER

The appeal filed by the Appellant is dismissed.