Rama M. Acharya vs Mukund V. Acharya

A.V. Chandrashekara, J.—This appeal is filed under Section 19(1) of the Family Courts Act challenging the order passed in M.C. No. 3352/2011 dated 18.7.2013 by the IV Prl. Addl. Judge and IV Addl. Family Court, Bangalore in so far as it relates to non-granting of decree of divorce on the ground of cruelty. The learned Judge of the Family Court has granted judicial separation under Section 10(1) of Hindu Marriage Act by way of judicial separation in a petition under Section 13(1)(ia) of Hindu Marriage Act instead of granting a decree of divorce.

The appellant was the petitioner and respondent was the respondent in the said petition. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

The facts leading to the present appeal are as follows:

The parties are Hindus and their marriage was solemnized on 20.11.1974 at Vasavi Kalyana Mantapa, Malleshwaram, Bangalore according to the customs of the community. The petitioner/wife was an employee in the Accountant General Office, Bangalore prior to marriage and respondent/husband was working in Crompton Greaves Ltd. Mumbai. After the marriage, the petitioner got transferred to Mumbai in September 1975 and started living there and she was working at Mumbai in different post and later returned to Bangalore in the year 2005 on deputation to the Office of the Principal Accountant General and worked till 2010. She retired in the month of May 2010 and respondent retired from the service in the year 2002. They were living together since 2005 till the date of filing this petition. A male child was born out of the wed lock between the petitioner and the respondent in the year 1976 and later it died in the month of October 1976.

According to the petitioner, respondent was behaving in a arrogant manner and used to harass her and abuse her for trivial matters. She is stated to have tolerated this torture hoping that he would mend himself and would be a dutiful husband. In the year 1989, when she was discussing the matter in relation to change of flat, he became wild and hit on her right eye and as a result of which, her eye sight has been lost to some extent, then she took treatment upto 1992 and the said problem still remains is her averment. Since the child died, she wanted to take a child in adoption, but respondent did not consent for the same. Though, she was suffering from cancer and hospitalized, the respondent did not show any sympathy and continued to behave in a rude manner. On 31.10.2010, he picked up quarrel with her and hit on her face, as a result of which, she fell down and later she recovered. She did not lodge any complaint in order to avoid him being put behind the bars. According to her, she had filed a petition seeking decree of divorce on the ground of cruelty in order to save herself from the respondent''s ill treatment and cruelty. It is her case that she could somehow tolerate the pain of cancer but not the cruelty meted out to her both physically and mentally in the hands of the respondent.

Respondent had appeared before the Trial Court and filed detailed objections. All allegations have been specifically denied and he has called upon the petitioner to prove the same strictly. According to him, the petitioner was not co-operating for some reasons best know to her. She always tried to avoid conciliation efforts of the elders. It is his case that he is ready and willing to live with her and lead a happy marital life.

On the basis of the above pleadings, following issues came to be framed by the court below:

a) Whether the petitioner has proved that respondent after solemnization of marriage treated the petitioner with cruelty?

b) What order?

The petitioner herself is examined as PW-1 and one more witness has been examined as PW-2 and 5 documents have been got marked as Ex.P-1 to 5. The respondent himself is examined as RW-1 and as many as 38 documents have been got marked as Ex.R-1 to 38.

After hearing the learned counsel for the parties, the learned Judge of the Family Court has answered issue No. 1 in the affirmative and has chosen to allow the petition in part by granting relief of judicial separation by moulding the relief under Section 10 of the Hindu Marriage Act 1955 and thus the relief of decree of divorce is rejected. Several grounds have been urged in the memorandum of petition.

After hearing the learned counsel for the parties following points arise for our consideration:

a) Whether the Trial Court is justified in rejecting the relief of decree of divorce on the ground of cruelty?

b) Whether the learned Judge on evaluation of oral and documentary evidence has come to the conclusion that the petitioner has successfully proved cruelty meted out to her at the hands of the respondent.

The learned Judge has also come to the conclusion that the respondent is more after properties rather than welfare of the wife. Such a discussion is based on Exs.P-3 to 5 order sheet maintained in O.S.79/2003, suit filed by the respondent against the petitioner. Even in the absence of documentary evidence in regard to physical assault made on the petitioner, the learned Judge has come to the conclusion that the evidence of PW-2 is corroborative in nature. Ultimately the learned Judge has summarized the whole evidence in paragraph 22 of pages 27 and 28 of his judgment and the same is extracted herein below:

"22. This Court at point No. 1 above categorically held that the petitioner suffered mental cruelty at the hands of respondent. No. doubt the ordinary wear and tear of family life is not a ground to grant a decree of divorce but in the instant case the petitioner is suffering from old aged ailments. In the circumstances if the respondent is permitted to continue such physical and mental cruelty then the possibility of danger to the life of petitioner cannot be over ruled. However considering the fact that petitioner and respondent being highly educated and led matrimonial life nearly forty years and now both are aged more than 60 years. This apart the record also discloses that previously the respondent was accompanying the petitioner to provide her treatment. The petitioner now also is having similar attitude towards her husband/respondent not to put him in trouble by giving complaint but to save her life from the hands of respondent she has filed the instant petition. Therefore in the facts and circumstances of the case it is just to exercise the discretion contemplated under Sec. 10 of the Hindu Marriage Act, 1955. Hence instead of giving divorce it is just to grant a decree for Judicial Separation by moulding the relief in the instant case than decree of divorce."

Inspite of unequivocal finding that the petitioner has suffered cruelty at the hands of the petitioner, the learned Single Judge has not granted decree of divorce. The reasons assigned for non-granting of decree of divorce and granting relief of judicial separation is found in the paragraph 22 of the judgment stated above.

What is argued by the learned counsel for the appellant/petitioner is that at times respondent had also accompanied the petitioner in order to provide treatment and petitioner had not lodged any complaint in order to avoid police arresting her husband. Inspite of overwhelming evidence of cruelty being meted out to her on several occasions, the learned Judge has taken a very lenient approach.

Section 10 of Hindu Marriage Act is as follows:

"10. Judicial separation:

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so."

On reading the commentary relating to Section 10 of Hindu Marriage Act, it appears that Court had moulded relief in the petition filed for divorce on the ground of desertion.

It is not the case that petitioner has virtually condoned all instances of violence and chose to file a petition at a belated stage. She tried to save the dignity of the family by not taking coercive steps. Section 10 of Hindu Marriage Act provides for grounds for which judicial separation can be claimed by the party. The learned Judge himself has come to the conclusion that the respondent has led evidence contrary to the objections filed by him in the Trial Court. Apart from this, the learned Judge has come to the conclusion that if respondent is permitted to continue such physical and mental cruelty, then there will be possibility of danger to the life of the petitioner. The categorical finding is that the respondent has treated the petitioner with cruelty both physically and mentally and that there is danger to her life. Then the Trial Court could not have granted relief of judicial separation. This is a fit case in which the decree of divorce could be granted on the ground of cruelty. The Trial Court has adopted wrong approach to the real state of affairs inspite of unequivocal finding in respect of answering point No. 1. Hence, the appeal is liable to be allowed in its entirety and relief sought for in the petition has to be granted instead of relief of judicial separation granted by the Trial Court.

ORDER

The appeal is allowed in its entirety. The order passed in M.C. No. 3352/2011 dated 18.7.2013 by the IV Prl. Addl. Judge and IV Addl. Family Court, Bangalore granting relief of judicial separation is set aside.

Relief of decree of divorce under Section 13(1)(ia) of Hindu Marriage Act is granted. Consequently, marriage solemnized between the petitioner and respondent on 2.11.1974 at Vasavi Kalyana Mantapa, Malleshwaram, Bangalore stands dissolved with immediate effect. Parties to bear their costs.