R. Radhika vs L. Narendra Babu

Rathnakala, J—Aggrieved by the decree of dissolution of marriage granted by the Principal Judge, Family Court at Bangalore, on his file in M.C. No. 758/2006 vide judgment dated 20.4.2011, the wife is in appeal before us.

The husband filed a petition on the ground of cruelty and desertion before the court below. His case was, the parties were married as per Hindu rites and customs. They have a girl child from the said wedlock born on 29.2.2000. There used to be frequent quarrels between the couple due to misunderstanding and they could not reconcile their differences. The wife was creating lot of problem to him and was not willing to stay with him. She was insisting him to stay in her parents'' house and same was refused by him. After one year three months of the marriage, she left the marital home for her parents'' home and refused to return. Being a milk vendor having limited income, he could not arrange a separate residence away from his parents. Wife had threatened of involving him in a dowry harassment case along with his parents, unless he establishes a separate house. On her complaint, the Police registered the criminal case against him and his parents and the criminal case ended in acquittal of the accused persons vide order dated 31.3.2006. She has caused mental agony and it is impossible for him to lead marital life.

The wife contested the petition; denied all the allegations leveled against her in the petition. Her defence was, the petitioner and his parents were demanding dowry of Rs. 50,000/-, harassed and ill-treated her; they were sending her to her parents'' house to get the dowry amount; after the birth of the child, the husband refused to take her and the child back to the matrimonial home without the dowry amount. Finally she was thrown out of matrimonial home on 14.3.2002 at 8.30 p.m. Since then, she is living with her parents. He is running a milk booth and earns more than Rs. 20,000/- from his business. She is eager to join the husband and lead marital life. She has obtained order of maintenance from III Additional Family Court.

After completion of the evidence, parties entered into trial. On overall consideration of the matter, learned Family Court Judge has allowed the petition thereby dissolving the marriage between the parties.

Sri. B. Ravindra, learned Counsel appearing for the appellant/wife submits that, mere acquittal of the accused persons in a criminal case from the charge of offense under Section 498A of IPC and Sections 3 and 4 of the Dowry Prohibition Act, is not sufficient to hold that the accused are innocent. In fact, the husband during his evidence before the Trial Court had admitted that in the year 2002, Hebbal Police secured him to the Police Station and cautioned him not to harass and look after his wife and child, well. Two months thereafter, she filed the complaint, since inspite of caution and advice of the Police, he did not mend his ways. Further he admitted that the Police arrested his mother and at her instance, thus seized gold jewels belonging to the appellant from the Pawnbroker''s shop. Despite above evidence, the court below holds that there was cruelty from the wife to the husband. This view is taken by the court below on three counts i.e., she did not choose to file petition for restitution of conjugal right; filed a complaint against husband and in-laws and did not examine her parents. She is an uneducated lady, due to financial constraint, it was not possible for her to file case after case. She is disbelieved for not examining her parents, but her father was already dead and mother, a flower vendor was aged and, a rustic lady was hesitant to appear before the Court. The judgment of the court below is arbitrary not on proper appreciation of evidence and is liable to be set aside.

In reply, Sri. L. Harish Kumar, learned Counsel appearing for the respondent/husband submits that the wife used to voluntarily pick up quarrel with her husband and had walked out of the matrimonial home. The Criminal case registered on her complaint against him and his aged parents ended up in acquittal. Not satisfied with the false complaint, she filed application for maintenance under Section 125 of Cr.P.C. before the Family Court, without resolving to file petition for restitution of conjugal rights, which exposes her intention to stay away from him. Till date, she has not made any effort to join him. In fact, she challenged the judgment of acquittal passed in C.C. No. 356/2002 before this Court in Criminal Revision Petition No. 1166/2006, which also came to be dismissed by confirming the judgment of the trial court. She has alleged during the cross-examination of the husband that he has married again; that again discloses that she is not interested in joining the husband. The parties are separated for more than 13 years. The marriage irretrievably broken and there is no chance of re-union. The appellant cannot use the court proceeding to settle her personal score and the appeal lacks merit.

In the light of the above submission and on perusal of the impugned judgment, the point that arise for our consideration are:

"Whether the husband has made out a case for desertion and cruelty against the wife?"

From the impugned judgment, it is evident that the Trial Court aligned its reasoning as below:--

"The wife filed complaint against her husband and in-laws due to which they were charge sheeted for the offence punishable under Section 498A read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. They were acquitted from the criminal case. Still she persisted to harass them by filing Criminal Revision Petition before this Court which also came to be dismissed. She has not made any attempt to join the husband by filing petition for restitution of conjugal rights. She has not examined either her parents or any other witnesses in support of the cruelty she alleges to have been inflicted on her".

While holding as above, the learned Judge is unmindful of the fact that he was not adjudicating a property case or a criminal case; while the civil case proceeds on the principles of preponderance of probabilities, ''proof beyond reasonable doubt'' is the mantra in a criminal case. While observing that the wife has not examined any witnesses on her behalf, the learned Judge lost sight of the fact that the father of the wife was not alive by the time of the trial. It has come in the evidence that the mother of the wife is a flower vendor. If a mother being an illiterate and rustic, hesitates to appear and to give evidence before the Court, how can the court look for supporting evidence of parents? At the same time the Court did not look for corroboration for the case of the husband. It is satisfied with the two judgments of the Criminal Court whereby the husband and his parents are given clean chit by the court. The learned Judge while placing his reliance on these judgments did not advert to the admission coming from the evidence of the husband that two months prior to filing of the complaint, the wife had lodged another complaint to the jurisdictional police and the Police called the parties to the Police Station and had advised the husband to conduct himself properly. During the investigation in the criminal case, the Investigating Officer had seized the ornaments of the wife from a pawnbroker''s shop. It was the allegation in her criminal case that at the time of her marriage, her parents had given ornaments. Her mother-in-law snatched ole, jhumki, watch and ring and her thali from her and she was thrown out of the matrimonial home, on demand of dowry of Rs. 50,000/-. The husband was very well aware of these allegations while facing the criminal trial. Still he does not plead anything about her allegation of exhorting her ornaments; for the first time during cross-examination of the wife he attempts to make out a case that she had voluntarily given her ornaments through her brother-in-law to the brother-in-law of the husband for his business purpose. How can such an improvement brought out in the middle of the trial without the basis of the pleading could have skipped the attention of the court? Regarding the observation that the wife has not filed petition for restitution of conjugal rights, we would like place our displeasure on the above observation of the Court. The Court has been unmindful of the elementary principles of the Evidence Act that the party, who asserts a fact, shall prove the same. Instead of looking for cogent evidence from the side of husband on the allegation of cruelty, conversely burden is let on the wife for showing her readiness to join the husband.

We have gone through the judgment of the Criminal Court on which much reliance is placed. In the said case, two independent witnesses had turned hostile and the evidence of the complainant/wife and her family members - (PWs-2 to 4) was not believed since their evidence was not corroborated by the evidence of the independent witnesses. There was some contradiction between the evidence of the wife and the Investigating Officer about the time when the wife went to the Police Station to lodge the complaint. On these counts, the accused were acquitted of the charges. The acquittal from a criminal case is due to the fact that the prosecution failed to prove the charge. The Family Court adjudicating the matrimonial case has the onerous responsibility of viewing things beyond acquittal or conviction order of a criminal case. Its view shall reach beyond the evidence adduced and meet that sensitive area where parties themselves are unable to give direct evidence or express themselves in a clear tone. The Court cannot function as a dumb umpire, it has to be sensitive to the multiple facets of human problem. The court below without tracing as to who was the actual perpetuator, has reached the conclusion only for the reason that the husband and in-laws were dragged into criminal case. In our considered opinion, this finding is arrived on insufficient evidence and on insensitive approach to the controversy. Hence, the judgment of the court below cannot be sustained and requires reconsideration.

Accordingly, the appeal is allowed.

The judgment and decree dated 20.4.2011 in M.C. No. 758/2006 passed by the Principal Judge, Family Court at Bangalore, is hereby set aside.

The matter stands remanded back to the Family Court for fresh adjudication. The Family Court is directed to permit the appellant/wife to adduce further evidence, if so requested by filing necessary application, with liberty to the husband to lead rebuttal evidence.

The parties are directed to appear before the Court below on 10th August 2015 at 11.00 a.m. either personally or through their Counsel.

All the contentions of the parties are left open.

Office is directed to return the entire original records to the jurisdictional Tribunal, forthwith.