Sasidharan Nair vs L. Ambika

B. Veerappa, J.—Though the matter is listed for orders regarding condonation of delay in filing the appeal, the matter is heard on merits and disposed of.

The unsuccessful appellant/husband has filed the above appeal challenging judgment and decree dated 9.4.2013 passed in MVC No. 3525/2011 on the file of the II Additional Principal Judge, Family Court, Bengaluru dismissing his petition under the provisions of Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (for short hereinafter referred to as ''the Act'') holding that the appellant/husband has not established that he was subjected to cruelty by the respondent/wife and also not established that the respondent/wife has deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition.

It is the case of the appellant that his marriage with the respondent was solemnized on 26.5.1976 at Sri Padmanabha Swamy Temple Kalyana Mantapa, Thiruvananthapura, Kerala State. Out of their wedlock one son by name Praveen, aged 32 years and one daughter by name Pavithra, aged 29 years were born and the said two children are married. In the initial stage, the appellant and the respondent were cordial. Of late the respondent developed hatred towards the appellant and ultimately the said hatred became worse. The appellant was serving in military and the children are supporting the respondent which also caused mental agony to the appellant. The respondent is of suspicion in nature and she used to criticize the appellant stating that he is sitting alone, consuming food, sleeping and walking. These criticisms also caused mental cruelty to the appellant and the same reached climax which could not be tolerated by him. The respondent also used to neglect the appellant, abuse him in foul language and confine him in the house and after about 6 months, he came out from the matrimonial home and started to reside in a rented premises bearing No. 33, 3rd ''B'' Cross, Vishweshwaraiah Layout, M.B. Nagar, Kalkari Road, Bangalore, etc and therefore, he sought for divorce.

The respondent/wife filed objections admitting the relationship and the marriage and denying the allegations leveled against her contended that till the year 2011, the relationship was cordial. Thereafter, the appellant has developed illicit relationship with a lady. On 1.5.2011, the appellant was missing and therefore, she lodged a complaint with the jurisdictional police and subsequently, on the efforts made by the police, the appellant was traced and was found living with a lady by name Raji and the appellant was not ready to return to the house of the respondent. On 2.5.2011, the respondent along with her children went to the house of that lady by name Raji and brought back the appellant to the house of her sister and three days thereafter, the appellant left the house of the sister of the respondent and joined the other lady and continued illicit relationship. Thus, according to the respondent, the appellant is guilty of laches and absolutely there is no cruelty as alleged by him, etc., and prayed for dismissal of the petition.

Based on the pleadings, the Family Court framed the following issues:

"1. Whether the petitioner has established that subsequent to his marriage with the respondent, he was subjected to cruelty by the respondent and if so, he is entitled to the relief under Section 13(1)(ia) of the Act?

Whether the petitioner has established that subsequent to his marriage with the respondent, the respondent deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition?

What order?"

In order to establish his case, the appellant examined himself as P.W.1 and marked the documents as Exs.P.1 to P.7. The respondent has not led any evidence.

After hearing both the parties, the Family Court dismissed the petition holding that the appellant/husband has not established that he was subjected to cruelty and deserted by the respondent for continuous period of not less than two years. Therefore, the provisions of Section 13(1)(ia) and (ib) of the Act is not attracted, against the said judgment and decree, the present appeal is filed by the appellant/husband.

The learned Counsel Sri Prakash H.C., appearing on behalf of the appellant contended that the Family Court has not properly appreciated the evidence adduced by the appellant and has not taken into consideration that the appellant had served in Military; after the retirement, he has worked in BEL, Bengaluru; that the appellant wanted to live a peaceful and calm life and is unable to tolerate the cruel attitude of the respondent, etc., and therefore, sought for setting aside of the impugned judgment and decreed passed by the Family Court.

Per contra, learned Counsel Smt. Beena P.K., appearing for the respondent sought to justify the impugned judgment and decree.

We have given our thoughtful consideration to the arguments advanced by the Counsel for the parties and perused the entire material on record.

It is not in dispute that the marriage between the appellant and the respondent was held on 26.5.1976 and out of their wedlock two children viz., Praveen and Pavithra were born and are major and also married and the relationship between the appellant and the respondent was cordial about 35 years and the trouble started in the family only after the retirement of the appellant from the Military. It is also not in dispute that earlier the appellant was missing from the house of the respondent and thereafter, on the complaint lodged by the respondent/wife about missing of her husband and on the efforts made by the police, he was traced and was found living with a lady by name Raji and thereafter, he had returned to the house of the sister of the respondent and having lived as husband and wife for more than 35 years and necessarily there will be usual wear and tear in the family and in order to protect the family prestige and to protect her husband, the respondent might have advised the appellant to mend his ways which cannot be a ground and the said act and abuse is not an act of inflicting mental cruelty. It is also not in dispute that the respondent is with her son. The material documents produced by the appellant Exs.P.1 to 7 clearly depicts that the marriage is proved and out of their wedlock two children are also born and they are also married and living separately and the petition is filed by the appellant at the age of 63 years and the respondent''s age is about 60 years as on the date of the petition which clearly indicate that the appellant himself has deserted the respondent as per his own pleadings in the petition that he has left the matrimonial home six months prior to the filing of the petition before the Family Court and he was residing in a rented premises bearing No. 33, 3rd ''B'' Cross, Visweshwaraiah Layout, M.B. Nagar, Kalkan Road, Bangalore.

The Family Court has recorded a finding that though the appellant states during his evidence that the respondent used to suspect and shout at him, mere suspicion is not an act of inflicting mental cruelty. Suspicion in the case on hand is nothing but usual wear and tear in the family. During cross-examination, he has stated that till November, 2011 the respondent stayed with him at Dommalure of Bangalore. This portion of the evidence in the cross-examination shows that he had condoned the alleged acts within the scope and ambit of Section 23(1)(b) of the Act. It is in his cross-examination that in the matter of money and property, the respondent was abusing him. On appreciating the said portion of his evidence, the Family Court found that the act of abuse is not an act of inflicting mental cruelty. It further recorded a finding that during cross-examination of the appellant, he has stated that he was taking food in a mess run by a lady by name Raji, and when appreciating this, the defence of the respondent touching the alleged illicit relationship with Raji appears to be more probable. The said finding is based on the pleadings and legal evidence and the same is in accordance with law.

The marriage is necessarily a basis for social organization and the foundation of important legal rights and obligations. The importance and imperative character of institution of the marriage needs no comment. In Hindu Law, marriage is treated as ''Samskara'' or a sacrament.

The appellant has filed the divorce petition mainly on the ground of cruelty and desertion. The provisions of Section 13(1)(ia) and (1)(ib) of the Act read as follows:

"13. Divorce.--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party----

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;"

A reading of the said provisions makes it clear that after the marriage, the person who files a petition for divorce has to establish that he was treated with cruelty by the respondent and there must be desertion not less than two years immediately preceding the presentation of the petition. The cruelty must be of such a character as to cause danger to life, limb, or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation or working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. What was required was that the appellant must prove that the respondent has treated him with such cruelty as to cause a reasonable apprehension in the mind of the appellant that it will be harmful or injurious for him to live with the respondent. To prove desertion, the essential ingredients of this offence, in order that it may furnish a ground for relief, are:

"i) the factum of separation; and

ii) the intention to bring cohabitation permanently to an end - animus deserendi;

iii) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period."

The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition.

The Apex Court while considering the provisions of Section 13(1)(ia) of the Act in the case of Naveen Kohli Vs. Neelu Kohli, has held as under:

"66. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner-spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining-spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the phychological changes in a spouse''s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as apart of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other''s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court."

The Hon''ble Apex Court considering the nature of proof that is required to prove the ground of desertion in the case of Lachman Utamchand Kirpalani Vs. Meena alias Mota, has held that:

"Heavy burden lies upon a petitioner who seeks relief on the ground of desertion to prove four essential conditions namely, i) the factum of separation; ii) animus deserendi; iii) absence of his or her consent; and iv) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence, the evidence of the petitioner shall be corroborated. In short the proof required in a matrimonial case is to be equated to that in a criminal case."

Admittedly in the present case, the appellant has not established any ground either cruelty or desertion by the respondent. We must keep in mind that the institution of marriage occupies an important place and role to play. Solitary instances of cruelty would not constitute cruelty. Section 13 of the Act does not envisage luxury, the provisions are meant to preserve the meaning of life. Divorce is a matter of last resort and the appellant being husband cannot take advantage of his own wrong and the marriage is a mutual adjustment and reconciliation. Having completed the cordial relationship of more than 35 years, now at this stage of 63 years, the appellant cannot make baseless allegations against his own dutiful wife, who served him for more than 35 years. Therefore, the appellant has not established any grave and weighty conduct on the part of the respondent to constitute cruelty. We are of the considered opinion, that the Family Court was justified in passing the impugned judgment and decree. No ground is made out to interfere with the same. Accordingly, the appeal is dismissed.

In view of the dismissal of the case on merits, question of considering the delay does not arise. Consequently, the application - I.A. 1/2013 is also dismissed.