R. Rajesh vs S. Lakshmishree

A.V. Chandrashekara, J.—Being aggrieved by the dismissal of this petition for divorce, the petitioner has approached this Court by filing an appeal u/s 19 of Family Courts Act.

Respondent herein is the legally wedded wife and their marriage was solemnized on 03.11.2006 in Bangalore as per Hindu customs. Initially the appellant had filed petition seeking divorce mainly on the ground of desertion and subsequently he got it amended to include the ground of cruelty also. The said petition has been dismissed after contest vide order dated 12.12.2012. It is this order which is called in question on various grounds as set out in the appeal memo. Several grounds have been urged in the appeal memo.

We have heard the learned counsel appearing for the parties.

After going through the records and hearing the arguments, following points arise for our consideration:

Whether the Trial Court is justified in dismissing the petition filed for divorce on the grounds of desertion and cruelty?

Whether any interference is called for by this Court and if so, to what extent?

Re. Point No. 1:

Parties are Hindus and their marriage was solemnized on 03.11.2006 as per Hindu customs in a choultry at Bangalore. Initially the petition was filed mainly on the ground of desertion. Subsequently, petition was got amended to include the ground of cruelty also.

Parties lived as husband and wife in the matrimonial home for sometime and later on, she started quarreling with him for trivial matters. Though the respondent is a Post Graduate in Commerce, she is stated to have not taken up any employment and has remained as a housewife. Petitioner is stated to be engaged in the film industry and did not have flourishing business. According to him, his wife was not feeling comfortable with him from the date of marriage and was stated to be abusing him on the ground of insufficiency of income. His parents were looking after them comfortably and inspite of the same, respondent was often visiting her parents house and she used to spend most of her time outside the matrimonial home. Inspite of several panchayats being held and suitable advise being given, the respondent did not mend her attitude and continued to be away from the matrimonial home for most of the time.

In the amended petition, it is alleged that she has several diseases and she had not disclosed the same prior to the marriage and he came to know after sometime when she had concealed packets of medicines in their cupboard. It is his allegation that she had even refused to have a child on the ground that she had to look after her ailing mother. It is his case that she had even told him that she was not interested in having any child for a period of four years. It is alleged that she was not at all assisting his mother in household works though she is well versed with household work including cooking. She was demanding him to pay a sum of Rs. 10,000/- p.m. for keeping up her beauty and was insisting him to take her to movies every now and then.

In the month of December 2007, she started demanding him to stay away from his house and to be with her in her parents house. When he refused to do so, she started quarreling with him without any valid reason. Later on 12.01.2007 his mother fell down on the floor by slipping due to the oil spilt on the floor. On questioning her, she is stated to have given evasive answers. She had even threatened to lodge a complaint before the police on the ground of demand for dowry and would send him to the jail.

She left the house on the ground that she had to attend to her mother who was hospitalized in Manipal Hospital. As a result of her adamant attitude, it is impossible for him to live with her. Her attitude is one of cruelty, is his averment.

Respondent-wife has specifically denied all the material averments and has called upon the petitioner to prove the contents of the petition strictly. It is her case that the petitioner had ill-treated her in his matrimonial home and she was forced to cook breakfast, lunch and dinner for atleast more than 15 people everyday that too, without the help of any servant. According to her, the petitioner used to come home late in the night in a drunken state and demand money from her father to produce films.

According to her, he (never bothered to care her and to take the responsibility as dutiful husband. Her in-laws restricted he from visiting her parents house atleast once in a month. In view of ill-treatment meted out to her, she had become sick and depressed. Even when she was unable to work, she was asked to look after the regular household work. According to her, both the petitioner and his parents were making derogatory remarks against her. Petitioner himself is guilty of treating her with cruelty and hence she has prayed for dismissal of the petition.

The petitioner himself has been examined as PW1. Two witnesses have been examined on his behalf. Respondent is examined as RW1. Three exhibits have been got marked on behalf of the petitioner and one exhibit is marked on behalf of the respondent.

PW2 who is the paternal Aunt of the petitioner and PW3 is stated to be a neighbourer of the petitioner house. Petitioner had filed the petition mainly on the ground of desertion. After the lapse of almost two years he got it amended to include several instances of cruelty so as to bring the petition one u/s 13(1)(ia) of Hindu Marriage Act. The marriage of the parties was solemnized on 03.11.2006 and the petition was filed on 13.04.2010 i.e., after the lapse of about 3 1/2 years. Whoever takes up a plea of desertion, burden is always upon that person to prove that the other spouse has left the matrimonial home with an unequivocal intention to sever the matrimonial tie.

Admittedly, mother of the respondent was suffering from cancer and was a patient for several years. Though respondent was married, still it was her responsibility to look after her mother who was critically ill and being hospitalized several times in a big hospital. Evidence placed on record would disclose that marriage had consummated and that the respondent had cooperated with the petitioner as a wife for all practical purposes.

On careful analysis of the evidence of the parties, we find that the differences between the parties cannot be considered as very big in order to hold that they were irreconcilable. Admittedly, they were petty squabbles and they have been blown out of proportion. Initially, the petitioner did not make any serious allegation of cruelty against the respondent, except stating that she was not comfortable with him and that she used to frequently visit the house of her parents.

These allegations definitely do not provide ground for the petitioner to seek the dissolution of the marriage especially, in view of the admitted fact that her mother was suffering from serious ovarian cancer. Mother of the respondent died after the performance of the marriage of her daughter with the petitioner and in view of her serious ailment, respondent was expected to visit her mother''s house every now and then.

Therefore, the act of the respondent leaving the matrimonial house in order to go to her mother''s house often to look after her ailing mother cannot be considered as an aspect of cruelty. As rightly pointed by the Trial Court instead of feeling sympathy for the respondent, the petitioner has chosen to initiate divorce proceedings on the ground that she used to go to her mother''s house often. Though PW1 has deposed that she was going to her mother''s house in disregard to the petitioner and his parents, PW2 Pramilakumar and PW3 Ganesh have stated that they used to frequently visit the house of the petitioner and at that time they found the respondent never used to speak to them.

Their evidence would go to show that most of the time, she used to be in the house of the petitioner. If the evidence of PWs. 1 and 2 were to be believed, it would go to show that for more than 1 1/2 years the respondent was living in the house of the petitioner and it is during her stay, PWs. 2 and 3 were visiting the house of the petitioner. The evidence of these two witnesses is contrary to the stand taken by the petitioner. In fact the evidence of PWs. 2 and 3 stares at the evidence of PW1.

Petition has been got amended substantially making several instances of allegation of cruelty. As already stated, the said amendment came to be incorporated almost two years after the petition was filed and therefore, the Trial Court has held that it is an afterthought. This aspect of the matter cannot be found fault with. If the case of the petitioner is that she lived with him for only one month and he was treated with cruelty, it appears to be improbable and unbelievable.

If really she had treated him with cruelty, such circumstances of cruelty would have definitely found a place in the notice got issued by him on 29.06.2006 through his advocate vide Ex. R1. What is mentioned in Ex. R1 is that respondent did not return to the matrimonial home after she left the house to look after her mother who was suffering from cancer. This documentary evidence can only be taken to the limited extent of his earnestness to get her back to his matrimonial home and nothing more than that. If really she had not returned even after the service of notice vide Ex. R1, he should have taken some steps to file a petition for restitution of conjugal rights u/s 9 of Hindu Marriage Act, 1955. When the evidence of PWs. 2 and 3 is not helpful to the case of the petitioner then remains oath against oath. Initial burden casts upon the petitioner has not been effectively discharged either in regard to the allegation of desertion or in regard to the allegation of cruelty.

Evidence in civil cases will always be assessed on the touchstone of intrinsic probabilities and the Trial Court has done so. Taking into consideration overall circumstances of the case in the evidence adduced by the parties, more particularly, in the light of Ex. R1, the Trial Court has come to the conclusion that petitioner has thoroughly failed not only to prove the allegation of desertion but also the allegation of cruelty. Unless the initial burden is effectively discharged, more particularly, in a petition filed for divorce on the ground of cruelty and desertion the onus does not shift on the other side. The Trial Court has adopted right approach to the real state of affairs. It has considered the entire evidence in right perspective by assessing the same on the touchstone of intrinsic probabilities. Accordingly, point No. 1 is answered in the affirmative.

Suffice to state that there are no merits in the present case and hence, the appeal is liable to be dismissed.

ORDER

Appeal is dismissed by upholding the judgment dated 12.12.2012 passed by the Prl. Judge, Family Court, Bangalore in M.C. No. 1154/2010. There is no order as to costs.