R. Janaki vs Bhakta Bisto

P.S. Dinesh Kumar, J—This appeal is filed by the appellant - wife challenging the judgment and decree dated 7.8.2013 in M.C. No. 1949/2012 on the file of VI Addl. Principal Judge, Family Court, Bengaluru rejecting her petition filed under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (''Act'' for short) for dissolution of her marriage with respondent solemnized on 22.6.2003.

We have heard Sri Viswanath Sabarad, learned Counsel for the appellant.

Learned Counsel for the appellant submits that the appellant was married with the respondent on 22.6.2003 and lived with him till 20.11.2011. The couple have a female child born on 21.1.2005. The respondent was working as a Security Guard. He was taken to drinking habit. He used to return home in inebriated condition and misbehave with the appellant and assault her. Appellant''s efforts to reform the respondent did not yield any results. In addition to his drinking habit, he had also started demanding money from appellant and her father. Appellant''s father gave a sum of Rs. 67,600/- during September 2009, a sum of Rs. 53,000/- during September 2010 and Rs. 94,000/- during October 2010. Thus, in all appellant''s father paid a sum of Rs. 2,50,000/- to the respondent as per his demands only with a fond hope to see that the family life of his daughter got settled. However, though his demands were fulfilled by the appellant and her father, the attitude and behaviour of the respondent did not change. However, appellant was enduring the cruelty and ill treatment inflicted upon her. As things stood thus, all of a sudden on 20.11.2011, respondent forcibly sent appellant and the child to her parents'' house. Efforts made by the appellant and her father to bring in an amicable settlement did not yield any results. Therefore, she was compelled to file the instant petition.

Learned Counsel for the appellant further submits that, despite service of notice, respondent did not appear before the Family Court and he was placed ex-parte. The appellant got herself examined as P.W.1 and produced 5 documents Exs. P1 to P5 to prove her case. The learned Family Court without properly appreciating the pleadings and evidence on record, rejected the petition.

Assailing the correctness of the impugned judgment and decree of the Family Court, learned Counsel for the appellant vehemently contends that the pleadings and oral testimony to the effect that respondent - husband was an alcoholic and inflicting cruelty on the appellant has remained un-controverted. Similarly, the evidence with regard to demand for dowry and payment of Rs. 2,50,000/- by the appellant''s father has also remained unchallenged. Though the appellant endured the misdeeds of the respondent, she was finally thrown out of the house. She is an young lady, aged 26 years with a daughter aged 7 years as on the date of filing of the petition. She has no avocation and depending completely on her father. Her father is also a poor man and not able to support her. Despite such stark evidence which has remained unchallenged, the learned family Court was incorrect in rejecting the petition.

In the light of the submissions made on behalf of the appellant and perusal of the material papers including the trial Court records, question that needs to be examined in this appeal is as to Whether in the facts and circumstances, the family Court was correct in rejecting the petition?''

The pleadings on record reveal that the respondent was inflicting cruelty upon the appellant. He used to come home in inebriated condition and assault her. Admittedly, she has lived in the matrimonial home from the date of her marriage in 2003 till she was forcibly sent back to her parents'' house in November 2011. Respondent was served in accordance with law before the trial Court. He remained absent and the family Court proceeded against him ex-parte. Even in this appeal respondent, despite service through news paper publication has chosen to remain absent. Procedural law has its own sanctity. This defiant approach and attitude of the respondent towards the commands of both Family Court and this Court to appear compels us to infer that the respondent has willfully chosen to remain absent in both Courts.

The family Court has rejected the petition on two grounds namely, that the appellant has not placed any material with regard to cruelty and not substantiated the claim of her father having paid large sums of money to the respondent. Thus, the family Court has held that the claim of cruelty and payment of money were not proved and accordingly rejected the petition.

A careful perusal of the trial Court records discloses that an attempt was made by the appellant to file an application under Order 7 Rule 14 CPC to produce certain documents before the family Court, which included an FIR registered in Crime No. 264/2012 on 12.5.2012 against the respondent alleging that the appellant''s father had given large sums of money on various dates and that the respondent was missing from 8.5.2012. The complaint is concluded with a request to the police to arrest the respondent to protect other innocent women who may fall prey to the respondent.

This is one of the several pathetic cases coming before the Courts seeking liberation from the Institution of Marriage when it runs into rough weather. The complaint to the police dated 12.5.2012 followed by the instant petition before the family Court presented on 5.6.2012 and presentation of this appeal indicates the perseverance with which the lady is seeking to obtain a decree of divorce. It is held by this Court in the case of Huvakka Vs. Vishwanath, (2010) 1 DMC 610 : (2009) ILR (Kar) 3351 : (2010) 1 KCCR 726 , as follows:--

"16. If the spouses are living separately for considerable time, and there is no love lost between them, the marriage is dead, emotionally and practically there is no chance of it being retrieved, continuance of marital relationship for name sake itself constitutes cruelty of mind. In such circumstances, trying to find out who is the cause for such sorry state of affairs would be an exercise in futility. The only purpose which it may serve is to compensate the wronged spouse monetarily by way of damages for agony and suffering underwent for no fault of that spouse. That is the price one spouse has to pay to the other for wrong done. It will also be a consideration for the freedom, the spouse would enjoy after severance of the matrimonial bondage."

As on the date of presentation of petition, appellant was aged 26 years. She is 29 years old as on date. The police complaint discloses that the respondent has been missing. Appellant has been wandering to the police station and to the Courts complaining against her husband and sought for divorce. However, the husband has remained absent before the family Court as also this Court. Time and circumstances have changed. While adjudicating similar cases, we have held that it is time to recognise personal space of individuals to live with dignity as enshrined in Article 21 of the Constitution of India. Thus, in view of above discussion, we are of the considered view that it would be appropriate to grant a decree of divorce to the appellant to enable her to live a life of her own.

In the circumstances, we pass the following:--

ORDER

"(i) Appeal is allowed.

(ii) Judgment and Decree dated 7.8.2013 passed by the VI Addl. Principal Judge, Family Court, Bengaluru in M.C. No. 1949/2012, is set aside;

(iii) Marriage solemnized between the appellant and respondent on 22.6.2003 at Bengaluru, stands dissolved;

No costs."