Nithin Shetty vs Manjula N. Shetty

B. Veerappa, J.—This is an unsuccessful husband''s appeal filed against the judgment and decree dated 16th June, 2014 passed in M.C. No. 246/2012 by the Principal Judge, Family Court, Dakshina Kannada, Mangalore dismissing the petition filed under the provisions of Section 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955 (for short hereinafter referred to as ''the Act'') and allowing the counter claim filed by the wife under the provisions of Section 9 r/w. Section 23-A of the Act.

The appellant/husband filed a petition under the provisions of Section 13(ia) and (iii) of the Act seeking dissolution of the marriage against the respondent alleging that he and the respondent got married on 16.2.2006 at Shesha Shayana Hall, Hotel Kidiyoor, Udupi as per the Hindu rites and customs prevailing in their community and out of their wedlock, a child by name Manish was born, who is aged about 5 years; that from the first day of the marriage itself, the respondent was very indifferent and silent; that she was found consuming tablets very often; that when he enquired with her about her abnormal consumption of medicine, she had given evasive answer; that she was showing indifferent behavior and used to sit locked herself in a room and refused to come out and she started behaving as a psycho which caused much worry to the him about the respondent''s mental condition and very often she would fall asleep under the influence of drugs she had consumed and due to which he became very much disappointed and she never showed any interest of having sex or to lead marital life; that when he enquired with the family members of the respondent for the reason of her behavior, they brushed aside the matter and did not give any responsive answer. Day by day, the respondent''s behavior became worse. She never did any house hold work. She used to sit in one position for hours together staring in one direction and suddenly used to walk to and fro briskly and used to look up and start laughing and cover her face with her hands and all of a sudden, she would start weeping. As such, he and his family members were flabbergasted with the behavior of the respondent and also contended that the respondent used to pick up quarrel with him and his family members without any reason and used to abuse and assault him. After fighting with everyone, she used to lock herself in the room and threaten to commit suicide making him and his family members live in fear. It was alleged that the respondent was not at all interested in having any physical relationship with him and used to lie down like a log without any emotions, due to which though the marriage was consummated there was never any feelings involved in the consummation. He also contended that he took her to KMC Hospital, Manipal where she had taken treatment earlier. In spite of his best efforts to get the respondent back to normal and the doctor prescribed medicines, but the respondent used to throw the tablets and that she was suffering from fear psychosis and used to have doubts about everyone. He also alleged that the mother of the respondent had committed suicide in the year 2002 as she was suffering from severe depression and her grandfather also committed suicide and there is no matrimonial relationship between him and the respondent, etc., and therefore, filed a petition for divorce.

The respondent filed objections before the Family Court admitting the marriage and birth of a male child by name Manisha, who is in custody of her and denied all the allegations made against her specifically stating that she is well educated having completed her M.A. Degree in the year 2005. After knowing each other''s family background, marriage was arranged by the elders. The appellant had demanded dowry of Rs. 5 lakhs on 20.11.2005 on the date of engagement itself. Even thereafter, before the marriage, the parents of the appellant visited her house 3 to 4 times and dowry was taken and the entire marriage expenses were borne by her parents. She also stated that on the date of the marriage itself, the appellant had told her that he was not interested in marriage but due to the force of his parents, he had married her and because of the greedy of dowry, he was torturing her mentally and the respondent had broken all her hopes from the appellant. She also alleged that the appellant had taken her to home for 2 to 3 days and after some days, the appellant''s father used to propose her to sleep with him and he had guarded that the appellant would not stop him and she need not worry for that. The appellant''s father used to threaten her not to disclose the matter with the appellant. The appellant''s father used to say that his wife does not have femininity so, he used ask her to sleep with him. The respondent had reported the said matter to the appellant and his mother, but they said that they are helpless since he is the head of the family and there is no use in speaking about the matter. Her mother-in-law told that her husband is a characterless person and he had got relationship with other ladies and he has got one child out of the wedlock. Thus the life of the respondent had become totally miserable, etc.

On the basis of the pleadings, the family Court framed the following issues:

"i) Whether the petitioner proves that he was subjected to cruelty and harassment due to the willful conduct of the respondent and thereby committed the matrimonial offence of cruelty and on that ground he is entitled for a decree of divorce?

ii) Whether the petitioner proves that respondent is suffering from incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that he cannot reasonably be expected to live with her, as such entitled to get divorce Sec. 13(1)(iii) of the Hindu Marriage Act?

iii) Whether the respondent proves that she is entitled to get the relief of restitution of conjugal rights under Sec. 23A of the Hindu Marriage Act as claimed in the counter claim?

iv) What Order?"

In order to prove his case, the appellant examined himself as P.W. 1 and marked the documents as Exs. P. 1 to 5. The respondent got herself examined as R.W. 1 and one witness as R.W. 2 and no documents were produced.

The family Court on appreciation of the oral and documentary evidence on record has recorded a finding that the appellant has not proved that he was subjected to cruelty and harassment due to willful conduct of the respondent thereby committed the matrimonial offence of cruelty and the appellant had also failed to prove that the respondent is suffering from incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that he cannot reasonable be expected to live with her and the respondent has proved that she is entitled to get a relief of restitution of conjugal rights under the provisions of Section 23A of the Act as claimed in the counter claim. Accordingly, the family Court dismissed the petition for divorce and allowed the counter claim filed by the respondent for restitution of conjugal rights against which the present appeal is filed.

We have heard the learned Counsel for the appellant.

Learned Counsel Miss Farah Fathima for M/s. Shetty and Hegde Associates appearing for the appellant contended that the impugned judgment and decree passed by the family Court is wholly erroneous, contrary to the facts and evidence on record and also to the law laid down by the Hon''ble Supreme Court. She also contended that family Court failed to appreciate the fact that the reconciliation held as per Section 9 of the Act irrevocably failed and despite the same, the Court below without appreciating the documents of the case has allowed the application filed by the respondent for restitution of conjugal rights and also contended that the respondent is suffering from depression and mental disorder and peculiar kind of unsoundness of mind which is incurable and has been continuously suffering from frequent attacks of such disease and that the respondent and her family has suppressed the fact that she is suffering from mental disorder and since the day one of her marriage, she had showed peculiar behavior against the appellant and his family members and relatives, etc., and prayed for setting aside of the impugned judgment and decree passed by the family Court.

We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the appellant and perused the entire material on record.

It is an admitted fact that the marriage between the appellant and respondent was solemnized on 16.2.2006 and out of their wedlock a child by name Manish was born in the year 2007 and the appellant sought for divorce on the ground of cruelty and on the ground that the respondent was of incurable of unsound mind and has been suffering continuously, etc., but admittedly the appellant has not examined the doctor, who treated her at the instance of the appellant. No medical records are produced to prove the said allegations and it is the case of the appellant that the mother of the respondent Smt. Varija Shetty and her grand father Sri Mahabala Shetty also committed suicide from the same element in the year 2002, but no medical records are produced in support of the said allegation. If the case of the appellant is accepted that, from the day one, she was not cooperating with the him either physically or mentally and she is not giving any cooperation for marital relationship, how can the child be born out of their wedlock and the appellant, who is examined as P.W. 1 has made allegations against R.W. 1 -- respondent, who has specifically denied and has set up a defence that it is P.W. 1 is not a person having free mind, he is suffering from inferiority complex and on the first night itself, he refused to sleep with her stating one or the other reason and after lot of persuasion by the wife several days, thereafter, he was prepared to have physical relationship with her and she has further stated that the appellant''s father used to propose her to sleep with him. Though it was brought to the notice of the appellant, he himself told her that he being the head of the family, there is no use to speak about the matter which creates mental agony to her and even her father-in-law threatened her not to disclose it to her husband. R.W. 1 has also stated that she brought the said fact to her mother-in-law as she became helpless. Then her mother-in-law told her that her husband is a characterless person and he has got relationship with other ladies and begotten the child out of the said wedlock. It is also not in dispute that the respondent is a well educated lady having completed her Master Degree in the year 2005 and by knowing each other family background, the marriage was solemnized by the elders of both sides.

Respondent also denied Ex. P. 2. She has given clarification under what circumstances she took treatment between 20.3.2006 and 30.3.2006 in para 3 of her cross examination that, because of the insistence of her father-in-law to keep physical relationship with him, she declined to oblige him and she brought it to the notice of her husband and also at the instance of his parents, the appellant forcibly took her to the hospital on 27.3.2006 but she has made it clear that she never got treatment for mental problem and at no point of time she was admitted to the hospital at the relevant point of time. She admits that on 26.9.2005 her father took her to the hospital. Merely because she was taken to the hospital prior to the marriage on 26.9.2005 and as per the noting made at that time she was having some depression, might be she took treatment and was medicated, does not mean that she is suffering from incurable mental disorder. The allegation that she was found consuming tablets, always sleeping in her bed room is not proved and it is expected on the part of the appellant to prove the same by producing any material document and having completed marital life for about 7 years till September, 2012 and having a child and after 7 years now he is making such allegations against his wife, who lived with him very cordial for a period of 7 years. Therefore, the appeal filed by the appellant has no merit.

The provisions of Section 13(1)(ia) and (iii) of the Act reads as follows:

"13. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;

(ib) xxxxx

(ii) xxxxx

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.--In this clause,--

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or"

By conjoined reading of the above said provisions makes it clear that the appellant has to establish before the Court based on the material evidence that the respondent has treated him cruelly and also has to establish that based on the material evidence both oral and documentary that the respondent is suffering from incurably of unsound mind or has been suffering continuously or intermittently from mental disorder. Admittedly in the present case, the appellant has not proved the said fact by producing any material document for grant of divorce.

The Hon''ble Supreme Court while considering the provisions of Section 13(1)(ia) of the Act in the case Naveen Kohli Vs. Neelu Kohli, has held as under:

"66. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner-spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining-spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse''s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life, livery matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other''s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court."

The married couples should bear in mind that the institution of marriage occupies an important place and the role to play. Solitary instances of cruelty would not constitute cruelty and the provisions of Section 13 of the Act does not envisage luxury, the provisions are meant to preserve the meaning of life and divorce as a matter of fact is a last resort and the evidence on record clearly indicates that it is on the part of the appellant and not on the part of the respondent and he cannot take advantage of his own wrong and file a petition for divorce and he has not made out any ground for divorce.

The allegation of the appellant in the petition as well as in the evidence that the respondent, her mother and her grandfather also were suffering from depression and have committed suicide is again without any basis. No evidence is adduced to prove the said facts.

The family Court while considering the entire material on record has recorded a categorical finding that as per the evidence of R.W. 2, the respondent is a good caring educated lady having good name and the appellant has taken dowry both in cash, gold and other lands from the respondents parents during the marriage and the appellant himself has stated that the marriage is like a business for him and his family especially to his father, who wants to make money in the name of marriage. The only intention of the appellant is to get divorce from the respondent and get married for the second time and extort dowry from the second marriage. Therefore, an elderly person came before the Court to depose that what was the intention of the appellant and his father in filing this divorce petition against the respondent. Though the appellant wanted to highlight the conduct and behavior of the respondent that it was not feasible for him to continue the marital tie, but R.W. 1/respondent herself has given evidence before the Court and withstood the cross-examination. It is noticed by the Court that the say of the appellant that he has suffered mental cruelty because of her mental illness is far from truth. A person may suffer depression at any point of time in the life depending on the circumstances in which she was placed and for that purpose she might have taken counseling or treatment by psychiatrist and that by itself is not a sufficient ground that she is suffering from mental disorder of the kind which the appellant alleges. Therefore, what R.W. 1 has pleaded that how she gets great stress of anxiety because of the circumstances in which she was placed. She is a Post Graduate and with an intention to lead marital life only, she has come to the house of the appellant, has led the marital life for 7 years and they begotten a child. Therefore, her explanation and clarification that, why she started residing separately and went out of the matrimonial home from September 2012 can very well be gathered and she has made out that she is having justifiable cause and reason for taking shelter in her parents'' house. The appellant has not made any effort to take them back. No doubt, he has stated that after they started residing separately, he has sent money. For that he has produced nine bank receipts as per Ex. P. 9 and the respondent has not denied and whatever that is sent has been received by her. But in this case, she has not made a claim seeking maintenance. On the contrary, the respondent has sought restitution of conjugal rights. The say of the respondent that financial assistance was given by her parents for herself and her child, the petitioner is having sufficient means and now he is not maintaining his wife and child but she is not hankering after the maintenance, but she want restitution of conjugal rights. Therefore, under the circumstances, the appellant has failed to prove the ingredients of the provisions of Section 13(1)(ia) and (iii) of the Act. The respondent is certainly entitled for the relief as claimed in the counter claim under Section 9 r/w. Section 23A of the Act. Therefore, while dismissing the claim of the appellant for divorce, the counter claim filed by the respondents is allowed.

The said finding of the family Court is based on the oral and legal evidence on record and the same does not call for any interference by us for exercising the powers under the provisions of Section 19(1) of the Family Court Act, 1984. Hence, we see no ground to interfere with the impugned judgment and decree passed by the family Court. Accordingly, the appeal is dismissed.

Since the appeal is dismissed, the question of considering the delay in filing the appeal does not arise. Consequently, I.A.I/2015 is also dismissed.