N. Manjunath vs C. Vimalakshi

N. Kumar, J.

This is a husband''s appeal challenging the order passed by the Family Court dismissing his petition filed for divorce on the ground of desertion and cruelty.

For the sake of convenience, the parties are referred to as per their ranking before the Family Court.

The petitioner N. Manjunath married respondent Smt. Vimalakshi on 5.12.1996 as per Hindu rites and customs. After the marriage, they lead a happy married life at B.R. Project since the petitioner was working as Watchman in Kuvempu University, Shankara Ghatta at that time for one year. Two daughters were born by name Chandana Koti and Sinchana Koti.

The case of the petitioner is, after lapse of one year, attitude of the respondent fully changed and she was pressurizing the petitioner to shift the residence to Shivamogga City and she was pestering him to present her with valuable jewels, costly clothes and to provide her luxurious life and he being a watchman and getting meager salary could not meet her demands and when he did not satisfy her demands, she started abusing him in filthy language and started giving pinpricks to him and some times she also had assaulted him with stick and slipper and since he could not tolerate her torture he requested the authorities to transfer him to Shimoga and accordingly, he was transferred to Sahyadri Arts and Commerce College at Shivamogga and he made a house at Vidya Nagara and he along with his wife and children stayed in the said house.

It is the further case of the petitioner that, respondent without informing him and with the help of third persons, secured a job as Computer Operator and Instructor at Benaka Associates and is earning monthly salary of Rs. 3,000/- and when she started earning, she was not ready to give any respect to the petitioner and she has also purchased a mobile hand set and she started talking on the mobile always and she did not allow petitioner even to touch it and when petitioner questioned her acts, she assaulted him with slipper and therefore, petitioner got cut and removed all his hair and respondent started coming home late in the night. Even the brother of the respondent assaulted him on one occasion and in August 2007 respondent and her brother drove the petitioner out of the house and therefore, petitioner is residing in a room in the college campus itself. Petitioner got issued legal notice calling upon the respondent to join him in filing a joint petition for divorce. Inspite of petitioner trying to adjust with the respondent, respondent had not co-operated and hence, he is entitled for a decree of divorce on the ground of cruelty and desertion.

After service of notice, the respondent entered appearance and filed statement of objections. She admitted the marriage and birth of two daughters. However, she has denied entire allegations made against her alleging cruelty and desertion. It is her specific case that it is the petitioner who has treated cruelly and several Panchayaths were held and petitioner was advised to look after the respondent and her children properly and the petitioner is not a watchman and he is Second Division Assistant and he is earning a handsome salary. After filing the statement of objections, the appellant was made to reconcile the dispute. Though the respondent wife was willing to join the petitioner, he was not prepared to take back his wife.

The Family Court framed the following issues for its consideration:

"1. Whether the petitioner has proved that respondent has subjected him to physical and mental cruelty and thus he is entitled for a decree of divorce u/s. 13(1)(ia) of Hindu Marriage Act, 1955?

Whether the petitioner has proved that the respondent has deserted him for a continuous period of 2 years immediately preceding the presentation of petition and thus, he is entitled for a decree of divorce u/s. 13(1)(ib) of Hindu Marriage Act, 1955?

To what order?"

The petitioner in order to substantiate his case, examined himself as PW.1 and has produced seven documents which were marked as Ex. P1 to P7. Respondent was examined as RW.1. Six documents were produced which were marked as R1 to R6.

On appreciation of the aforesaid oral and documentary evidence on record, the Family Court held, the petitioner has miserably failed to establish cruelty on the contrary, the evidence on record shows, the petitioner has charged the respondent by reckless and baseless allegations against her character. It also held, within seven months from the date of so called desertion, the petition is filed which is not maintainable. Even on merits, it was found it is the petitioner who has deserted his wife and children and not the other way and therefore, the petition came to be dismissed.

Aggrieved by the said order of the Family Court, the petitioner is before this Court.

The learned counsel for the petitioner assailing the impugned order contended, the Family Court has not properly appreciated the evidence on record. The petitioner is working as Watchman getting meager salary, he is unable to satisfy the demands of the respondent for leading luxurious life and therefore, the case of cruelty is proved and petitioner is entitled to decree for dissolution of marriage.

Per contra, the learned counsel for the respondent supported the impugned order.

In the light of the aforesaid submissions and rival contentions, the points that arise for our consideration in this appeal are:

"1. Whether the finding, particularly, that the petitioner has failed to establish cruelty calls for any interference?

Whether the petition for divorce on the ground of desertion is maintainable within seven months from the date of separation?"

Re-Point No. 1:

The material on record establishes both the petitioner and the respondent are educated. It was an arranged marriage. They lived happily in the beginning. It is reflected in the birth of two daughters. It appears thereafter the differences have arisen. The petitioner was working in the University campus far away from the Shivamogga City. The respondent secured employment in Shivamogga city and therefore, she demanded a residence in Shivamogga city. That has been considered by the petitioner and he has set up a house in Shivamogga.

It is his specific case that she was putting forth unreasonable demands for jewellery and other costly items. As rightly pointed by the Family Court Judge, absolutely there is no material on record to substantiate such a plea. The evidence on record shows, that she obtained employment with the help of others, petitioner has started suspecting her character. When she purchased a mobile and did not allow him to touch it, things got aggravated. There is no evidence on record to show that she hit him with a slipper and stick. The evidence on record shows, she has given birth to two daughters. The petitioner wanted a male child. He put forth his demand with the parents- in-laws to give their another daughter in marriage to which they declined and thereafter, he appears to have quit the house and started living separately. Respondent is living with her two daughters aged 14 years and 12 years respectively. At all times, she was ready and willing to join him but, it is the petitioner who has deserted her without any just and sufficient cause. It is the petitioner who made reckless and baseless allegations and caused cruelty. The appellant seems to have thought by mere filing a petition for divorce on the ground of cruelty and desertion, he would get decree of divorce and later he could marry another girl. The Family Court, on proper appreciation of the material evidence on record has rightly held the case of cruelty pleaded by the petitioner is not proved. On the contrary, evidence on record shows, he is torturing his wife for no fault of her by suspecting her character without any basis. Therefore, the said finding does not suffer from any infirmity which calls for our interference.

Re-Point No. 2:

In August 2007, petitioner deserted his wife. The petition is filed on 11.2.2008 within seven months. As rightly held by the Family Court, the petition is not maintainable. Even on merits, the finding that it is the petitioner who deserted the respondent is supported by material on record. It does not call for our interference. For the aforesaid reasons, we pass the following:

The appeal is dismissed.