R. Sureka vs G. Jayakumar

A.V. Chandrashekara, J.—The present appeal is directed against the decree of divorce granted in favour of the respondent herein by the learned V Addl. Judge, Principal Family Court, Bangalore, in M.C. No. 909/2007 dated 10.03.2011. Petition filed by the respondent-husband on the ground of cruelty under Sections 13(1)(ia) and 13(1-A)(i) of Hindu Marriage Act, 1955, has been allowed. The appellant herein was the respondent and the respondent herein was the respondent in the said case. The parties will be referred to as the petitioner and the respondent as per their ranking before the Trial Court. The marriage of the parties was solemnized on 29.01.2001 at Sri Muniganga Kalyana Mantap at Bangalore. From 25.04.2001 both the parties have been residing separately. The respondent-wife is residing in the house of her parents at Prakash Nagar, Bangalore. On 25.08.2001 the respondent had filed a petition u/s 10(1)(B) of Hindu Marriage Act, seeking judicial separation for a period of three years and an order was passed on 22.11.2003 granting judicial separation for three years. She had filed execution petitions to recover the interim maintenance and also had made an attempt to get the maintenance enhanced by filing Misc. Case No. 50/2005. She had also preferred Criminal Revision Petition Nos. 1742/2006 and 1189/2005. On a complaint lodged by her petitioner-husband had to face a trial in a criminal case bearing C.C. No. 876/2001.

The case of the petitioner-husband in brief is that, the respondent had tried to stop the marriage somehow or the other and she had made an attempt the previous day of the marriage. According to him, she never joined him as a wife in a short span of three months. She was always insisting him to give divorce and hence she was constantly refusing co-habitation. She was insisting him to take his share of the properties from his parents and to set up a separate house. According to him, the respondent and her family members chose to lodge a complaint against him and his family members and as a result of the same, he and his father had to spend two days in Central Prison. As a result of the same, he had suffered mental agony and this amounts to cruelty. Apart from that, she is stated to have deserted him without any valid reason.

Respondent-wife had resisted the petition by filing detailed objections stating that she was not in a mood to disturb the marriage as it was arranged by her parents after obtaining her consent. According to her, the marriage was solemnized by spending more than Rs. 6 lakhs and by giving many items as dowry to the petitioner. Though she had adjusted with him and was always ready to lead a happy married life, petitioner started harassing him along with his family members. Therefore, she had to file a petition for judicial separation and not with an intention to severe the marital relationship. According to her, she is ready to live with him. It is further averred that as the cruelty and harassment meted out to her was unbearable, she had to file a complaint to the police and hence a case came to be registered against the petitioner and his family members. In spite of writing letters to him expressing her willingness to join him, he did not come forward. Petitioner did not make any provision in paying the maintenance and caused cruelty and mental agony. When she was present in the I Addl. Family Court Bangalore, in a maintenance case, she was served with the notice of divorce petition and she was shocked. She is stated to have obtained a LIC policy in the name of the petitioner for Rs. 2 lakhs. In order to get rid of her and to marry a woman from a rich family, the present petition came to be filed. Hence, she had requested the Court to dismiss the petition.

Petitioner has been examined as PW 1 and he has relied upon 10 documents. On the other hand, respondent has been examined as RW 1 and has relied upon 15 documents.

After hearing the arguments and perusing the records, the learned V Addl. Prl. Judge has allowed the petition and thereby has granted a decree of divorce by framing following five points for consideration:

Whether the petitioner proves that the respondent being his legally wedded wife subjected him to cruelty during her stay with him and also thereafter as alleged?

Whether the petitioner further proves that the respondent deserted him voluntarily on 25.4.2001?

Whether the petitioner proves that from 25.4.2001, the respondent never cohabited with him even after the order of judicial separation petition filed by her till now?

Whether the petitioner is entitled for the decree of divorce as prayed for?

To what order, the petitioner is entitled to?

Points 1 to 4 have been held in the affirmative and consequently, the decree of divorce has been granted. It is this order which is called in question on various grounds as set out in the appeal memo.

It is contended that the learned Judge has not properly analysed the oral and documentary evidence in right perspective. It is further contended that the factum of filing a petition for judicial separation was not to severe the marital relationship, but to keep the same alive so that the petitioner would mend himself. It is further contended that the cruelty meted out to her by the petitioner in not maintaining her, itself is a cruelty and this has been lost sight of. The Trial Court is stated to have not properly appreciated the evidence placed on record and the reasoning is stated to be based on mere surmises and conjectures.

According to the respondent, decisions relied upon by the Trial Court are not at all applicable to the facts of the case. It is further contended that though the criminal case has ended in acquittal of the accused therein, it cannot be considered as a honourable acquittal. On the other hand, it is contended that the contents of the complaint cannot be considered as utterly false. The observation of the Court that the respondent should have filed a petition for conjugal rights is not proper when the petitioner himself had come with a petition for divorce without any basis. It is further contended that the willingness of the respondent to join him in order to lead a happy married life has been lightly ignored. The Trial Court is stated to have adopted a wrong approach to the real state of affairs. The judgment of the Trial Court is stated to be opposed to law, facts and probabilities.

On analyzing the grounds raised in the appeal memo, the learned counsel for the appellant-respondent has argued at length and has requested the Court to set aside the impugned order and thereby dismiss the petition filed for divorce in the Trial Court.

Per contra, the learned counsel for the petitioner has vehemently argued that the judgment of the Trial Court is based on sound reasoning and is based on proper appreciation of oral and documentary evidence. It is contended that the instances of filing false complaints and making unnecessary allegations and insisting for maintenance without any basis itself amounts to cruelty and hence, impugned order is sustainable in law and on facts. He has requested for dismissal of the appeal.

After going through the records and after hearing the learned counsel the following points arise for our consideration:

Whether the Trial court is justified in coming to the conclusion that the respondent-wife has treated the petitioner with cruelty?

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

Point No. 1:

Divorce has been granted by the learned V Addl. Prl. Judge, Family Court, Bangalore, invoking Sections 13(1)(ia)(ib) and (1-A) of Hindu Marriage Act. Point No. 3 has been taken into consideration by the learned Trial Judge for consideration first. According to the petitioner, though the marriage took place, there was no co-habitation. Petitioner has deposed that she never allowed him to develop physical relationship with her and as such, she started residing separately from 25.04.2001. Subsequently, she chose to file a petition on 25.08.2001 seeking judicial separation. Though the petitioner had contested the said petition filed for judicial separation, he ultimately consented for granting judicial separation for a period of three years. The order of judicial separation came to be passed on 22.11.2003 permitting them to live separately for three years. Anyhow, the parties did not re-unite. Though three years expired on 22.11.2006, petition came to be filed seeking divorce on 16.04.2007 i.e., before the completion of stipulated period of one year. Nowhere the parties have stated that they reunited together and started living jointly. Therefore, the evidence placed on record would go to show that the marriage did not consummate in any manner and the parties never cohabitate.

So far as cruelty is concerned, petitioner has stated that she started harassing him mentally and lodged a false complaint to the police alleging dowry harassment against him and his family members. RW 1 has specifically admitted that she gave complaint to the police on 26.04.2001 against the family members including the petitioner, his sisters brothers and brothers-in-law and as a result of the same, the petitioner and his father had to be in jail in for three days. After conclusion of the investigation, chargesheet came to be filed in C.C. No. 14876/2001 before the VI Addl. CMM Court, Bangalore. Of course, all the accused were ultimately acquitted. The certified copy of the judgment of acquittal passed in C.C. No. 14876/2001 on 08.04.2009 is placed on record. Of course the said document has not been got marked as an exhibit. But there is no inhibition for this Court to look into, as it is certified copy of the judicial proceedings relating to a criminal case which is in ink-page No. 221 of the file. As per the certified copy of the acquittal order, the date of offence is stated to be 04.06.2001. Petition seeking judicial separation u/s 10(1)(B) of Hindu Marriage Act, came to be filed by the appellant herein on 25.08.2001. Ex. P1 is the certified copy of the order sheet and Ex. P2 is the certified copy of the order passed on 22.11.2003. The order marked as Ex. P2 would clearly disclose that the husband had made his stand clear that it was not possible to continue the marriage. Though wife had been examined as PW 1 in M.C. No. 1158/2001, husband did not cross-examine her and on the other hand, he consented for an order of judicial separation for a period of three years. Even while cross-examining PW 1, it had been made clear by putting suggestions that no demand had been made for dowry and that nothing had been received as dowry in connection with the marriage. Of course the suggestions had been emphatically denied. It is also made clear in Ex. P2 that if the parties did not join together within a period of three years they can apply and obtain a divorce.

The case registered in C.C. No. 14876/2001 was for offences punishable under Sections 498(A) of IPC and Sections 3 and 4 of Dowry Prohibition Act. This was in regard to the allegation of demand for dowry, receipt of dowry and the cruelty meted out to the wife in connection with the dowry.

After carefully examining all the materials placed on record inclusive of the evidence of wife and her family members, the VI Addl. CMM has come to the conclusion that the alleged demand for dowry and receipt of dowry and alleged harassment are false. According to her, she had been assaulted on 04.06.2001 and that was the cause for lodging complaint. In page No. 15 of the acquittal judgment the learned Magistrate has held it as impossible to accept the theory put forth before the Court that on 04.06.2001 her husband being accompanied by few persons, entered her house and assaulted her. On the other hand, the learned Magistrate has specifically held that on 25.04.2001 the accused had come to the house of the father of PW 1 with some elderly persons to take back PW 1 i.e., his wife and that he had assured to send his daughter provided he would look after his daughter well.

On perusing the certified copy of the judgment of acquittal, it can be said that the case has not ended in acquittal because of lack of proof beyond reasonable doubt, but the learned Judge has categorically held that the complainant and her family members have failed to prove all the allegations and they are all not well-founded. The following is the ultimate opinion arrived at by the learned VI Addl. CMM, Bangalore, and the same is found in paragraph-10. For proper appreciation of the facts of the case, the same is extracted below:

So, I am of the opinion that the evidence placed on record by the prosecution against the accused for the offences punishable U/s. 4 of Dowry Prohibition Act and also for the offence punishable U/s. 498(A) of IPC is neither sufficient nor convincing. Hence, considering all these aspects, I am of the opinion that prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Consequently accused are entitled for acquittal.

From a plain reading of this judgment, it is evident that the complaint was ill-founded and she prosecuted them, as a result of which, her husband and her father-in-law had been in jail for three days. All the members of the family who were not residing in the house of the petitioner were also roped in and they had to obtain anticipatory bail. Apart from this, they had to attend the Criminal Court on all the hearing dates. This could be definitely mental cruelty within the purview of Section 13(1)(ia) of Hindu Marriage Act.

She has not placed on record as to the steps taken by her to go back to the matrimonial home or to call upon the petitioner that is her husband to take her back. In fact, maintenance had been granted while ordering judicial separation which had been ordered at Rs. 2,800/- p.m. She chose to file a petition for review to enhance it to Rs. 14,000/- and the same came to be dismissed on 07.09.2002. The maintenance was reduced to Rs. 2,000/- as is evidence from the certified copy of the order marked as Ex. P9. Successive applications were filed by her not only to seek maintenance, but also to enhance it.

On the other hand, PW 1 has admitted in her cross-examination that she voluntarily filed all applications against the petitioner without there being any force from anybody. It is not stated as to why she remained absent and made submissions through her Advocate and as to why she did not file a petition u/s 9 of Hindu-Marriage Act at a later stage. In the light of husband consenting for judicial separation for three years, nothing would have come in her way to seek restitution of conjugal rights. On the other hand, she chose to file a police complaint and take extreme step of getting them arrested and sent to jail. She chose to file a review petition against the orders passed in Misc. Case No. 50/2005 for enhancing maintenance of Rs. 14,000/- p.m. Instead of taking steps to file restitution of conjugal rights petition, she chose to file execution petition after execution petition to recover the amount and to seek enhancement.

If the intention of the appellant was really to save the marriage, she would not have chosen to file a complaint against her husband and family members to the police and she would not have pursued the matter.

She has admitted in her cross-examination conducted on 15.11.2010 that as on the date of filing of the complaint to the police she was physically and mentally healthy and that she was healthy even during the course of investigation conducted by the police. It is her case that she had no differences between the investigating agency and herself. She chose to file a petition for judicial separation two months after filing the complaint to the police. Further, she has admitted that she had made a claim for enhancement of the maintenance to Rs. 14,000/- p.m. by filing Misc. No. 50/2005 and the same was dismissed. Taking all these into consideration the Trial Court has come to the conclusion that these acts amount to cruelty.

In fact, the Trial Court has relied upon the decision reported in Praveen Mehta Vs. Inderjit Mehta, . In the said decision, it is held that if the behavior of one spouse towards the other spouse which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other, the same would be a ground for seeking divorce. As per the facts of the said case, parties were not living together for more than ten years.

In the present case also, parties have been living for more than twelve years separately. There are no chances of re-union. It will not be out of place to mention that the marriage has virtually broken down irretrievably. The conduct of the wife approaching the police complaining against her own husband and all the family members of her husband and inability to prove her allegation before the Court is nothing but a mental cruelty attributable to the wife. The cumulative effect of all these events and instances is that respondent-wife has treated the petitioner with cruelty.

The Trial Court has granted decree of divorce on the ground of desertion also. The wife had three years time for joining her husband. Because of judicial separation order she did not join her husband. On the other hand, she went on prosecuting the case filed before the police. The intention of living separately is virtually, to protect the matrimonial tie. Therefore, this also amounts to desertion within the purview of Section 13(1)(ib) of Hindu Marriage Act and the learned Judge has properly analysed the oral and documentary evidence in the right perspective keeping in mind the principles enunciated by the Hon''ble Supreme Court in the decisions referred to and discussed in the judgment. Accordingly, we answer point No. 1 in the affirmative. In view of our affirmative finding on point No. 1, no interference is absolutely called for. Hence, we do not find any reason to interfere with the judgment of the Trial Court and the appeal is liable to be dismissed by upholding the order of granting divorce.

ORDER

Appeal is dismissed. Consequently, the impugned order dated 10.03.2011 passed in M.C. No. 909/2007 by the V Addl. Judge, Principal Family Court, Bangalore, is affirmed. In view of the relationship of the parties, we pass no order as to costs.