Smt. B. Manjula vs M. Krishnamurthy

C.R. Kumaraswamy, J.—This appeal is filed u/s 19(1) of Family Court Act read with Section 28 of the Hindu Marriage Act against the Judgment dated 24.7.2009 passed in M.C. No. 406/2006 on the file of the I Addl. Prl. Judge, Family Court, Bangalore allowing the petition filed u/s 13(1)(ia) & (ib) of the Hindu Marriage Act for dissolution of the marriage. Parties will be referred with reference to the status in the Trial Court.

The case of the petitioner - husband in the Trial Court is as under:

- Petitioner states that the respondent is the legally wedded wife of the petitioner. Petitioner and the respondent are Hindus by religion and their marriage was solemnized on 1.5.1994 in accordance with the Hindu rites and customs at Chowdeshwari Kalyana Mantapa, Bangalore. Thereafter, a female child by name Kumari was born to the respondent during her stay with the petitioner. The respondent left the house of the petitioner in the month of December 1996 without informing the petitioner. She left the house without taking the consent of the petitioner. Petitioner states that later on he came to know that one more female child was born to the respondent after the respondent deserted the petitioner. Petitioner states that subsequent to their marriage, they started their marital life in the petitioner''s parents'' house. Petitioner states that his father was the only earning member of the family. It is contended that the respondent during her stay with the petitioner always used to demand the petitioner to live separately from his parents. Petitioner states that since he is the only child of his parents, he refused to make a separate house for the respondent. Thereafter, petitioner noticed that the respondent started behaving in a very strange manner and used to pick up quarrel with him and his parents and that she used to pick up quarrel for negligible issues. He also states that she was not doing any house hold work.

- Petitioner further states that inspite of the above behaviour of the respondent, he had a hope that respondent will change her attitude and live with him and his family members as a dutiful wife. It is stated that the respondent gave birth to a female child on 17.9.1995 at Shobha Nursing Home, Bangalore. The respondent went to her parents house and stayed there for nine months and thereafter, she returned to the petitioner''s house. However, the petitioner felt that the respondent''s behaviour had not changed. Petitioner further states that respondent after staying with the petitioner for a few months, left the matrimonial house of the petitioner alongwith the child during December 1996 without informing him. She is staying separately from the petitioner since then and there is no cohabitation between the petitioner and the respondent. Petitioner states that the respondent since December 1996 has deserted him.

- Petitioner states that once the respondent left the matrimonial house of the petitioner, she lodged a Police complaint against the petitioner and his parents stating that they harassed the respondent for dowry. Consequently, the petitioner and his parents were kept in Police custody for about 10 days and a trial was held and petitioner and his parents were acquitted of offences charged. Filing of such frivolous complaints amounts to cruelty against the petitioner and his parents. Petitioner states that even after the respondent deserted and lodged a false complaint against him and his parents, he made efforts to save his marriage but it was futile; Petitioner states that due to desertion and cruelty meted out by the respondent to the petitioner, it is very clear that marriage between the petitioner and the respondent has irretrievably broken down and also incompatibility between them has grown so wide and intense that the respondent seeks for divorce. Petitioner further states that divorce has become indispensable and formal continuation of such union could only be a source of misery to the petitioner as well as to his family members. Petitioner further states that respondent had filed a suit for maintenance in O.S. No. 182/1999 and the petitioner has filed a divorce petition bearing M.C. No. 454/99. It is stated that in O.S. No. 182/99, interim maintenance of Rs. 1,500/- was awarded in favour of the respondent and as the petitioner stated that he could not pay the maintenance amount, divorce petition was dismissed and the maintenance suit was partly decreed and Rs. 1,500/- was awarded to the respondent and Rs. 500/- for two daughters. Petitioner states that he is ready and willing to pay the arrears of maintenance.

- The cause of action for the petition arose during December 1996 when the respondent deserted the petitioner and filed a complaint and subsequently lived away from the petitioner''s matrimonial home. The cause of action for the above petition arose on 3.8.2005 when MC No. 454/1999 was dismissed on technical grounds.

The respondent - wife in the Court below has filed the following objections:

- The respondent admits that a daughter by name Kumari was born to the parties. She denies that she left the house of the petitioner in December 1996 without informing the petitioner but, it is her case that it is the petitioner and his family members who drove away the respondent out of the matrimonial home demanding dowry. The petitioner knew very well that the respondent was pregnant when she was sent out of the matrimonial home. Further, this aspect had already been agitated before the Family Court in OS No. 182/99. It is admitted that second daughter is also the daughter of the petitioner by name Pooja. All efforts were made by this respondent and her family members and elders to unite the couple which went in vain. The respondent states that the complaint filed by her alleging dowry harassment was not false and frivolous one. The respondent was subsequently driven out of the matrimonial home. It is true that the petitioner filed a Police complaint and a case was also registered and the criminal case has ended in acquittal of the petitioner and his parents, in turn an appeal is preferred against the order of acquittal in Crl. A. No. 1424/2002 which is pending before this Court. An inventory was drawn in the original proceedings. List of articles given at the time of marriage were all noted in the inventory. A request to the statutory authority made by the respondent to take action against the petitioner and his family members for demand of dowry and subsequent failure in not proving the case comes within the meaning of Section 13(1)(a) of the Hindu Marriage Act. The conduct of the parties and other circumstances should also be looked into while deciding whether there is any cruelty meted out on the part of the respondent. It is this respondent who tried her level best to join the petitioner and lead a happy married life but all the efforts made by the respondents and other elders in OS No. 184/99 did not yield fruitful results and when previous case M.C. No. 454/99 filed by the petitioner, this respondent states in the Open Court that she was willing to join the petitioner. There is no desertion on the part of the respondent as she was always ready and willing to join the petitioner. There is no irretrievable break down of the marriage. There is huge arrears of maintenance amount due to the tune of Rs. 1,56,603/-, The respondent further states that previous matrimonial case was not dismissed on technical grounds but the same was dismissed based on the conduct of the petitioner. None-the-less the remedy to file an appeal was always available to the petitioner and having not obeyed the orders, the petitioner cannot maintain this petition. The dismissal of the previous case bars the petitioner for any relief in this case.

Sri. M. Krishnamurthy, petitioner has sworn to an affidavit by way of chief examination in the Court below as under:

He states that respondent-wife has left his house without taking his consent since then she is living separately from him. He came to know that one more female child was born to the respondent after she deserted him. He submitted that respondent had suppressed the fact that she was pregnant with the second child when she left the house. He also states that during her stay with him, respondent always used to demand that they should live separately from his parents and since he is the only son of his parents, he refused to make separate house for her. Further he noticed that respondent started behaving in a very strange manner in the house and often she used to pick up quarrel with him over negligible issues infront of relatives and friends. He also states that, respondent gave birth to a female child on 17.9.1995 at Shobha Nursing Home, Bangalore, then she went to her parents'' house and stayed there for 9 months and thereafter, returned to his house. However, he felt that her behavior had not changed and she continued to pick up quarrel with him and his parents. He states that respondent stayed with him for few months and left the matrimonial house alongwith the child during December 1996 without informing him. Since then she is residing separately from him. There is no cohabitation between them and she has deserted him since December 1996. He further states that based on the complaint lodged by the respondent, they were kept in Police custody for about 10 days, trial was held against them and they were acquitted from the said case in CC No. 6328/1997 and the act of the respondent in lodging a frivolous complaint against them amounts to cruelty by the respondent against him. He also states that after the respondent deserted and lodged a complaint against them, he made efforts to salvage his marriage, but all those efforts were in futile. Further, he states that, thereafter, respondent got filed a frivolous partition suit through minor daughters in O.S. No. 8826/1997 before the Civil Court, Bangalore, He also states that respondent acting as guardian has filed the said suit only to harass him. She has not allowed him to meet his children from 1996 even once from last 11 years. He states that respondent treated him cruelly in every possible way. He also stated that the marriage between them has irretrievably broken down and also the incompatibility between them and there is no collusion between them in filing the petition. He also states that, respondent had filed a suit for maintenance in O.S. No. 182/1999 and he had filed a divorce petition in M.C. No. 454/1999 and both the matters were clubbed and tried together. He stated that in O.S. No. 182/1999 an interim maintenance of Rs. 1,500/- per month was awarded in favour of respondent and as he could not pay maintenance since August 2003, the divorce petition was dismissed and the maintenance suit was partly decreed and Rs. 1,500/- per month was awarded to the respondent and Rs. 500/- each for two daughters. He states that though he is unemployed, he paid all the arrears of maintenance till that date.

During his cross examination, he states that he got only one daughter by name Sushmitha Kumari. There is another child by name Pooja and he does not know whose child it is. He did not issue any legal notice to the respondent calling upon her to come and join him saying that she has left the matrimonial house on her own accord. He has not written any letter to his wife asking her to come and join him alleging that she has left the matrimonial house on her own accord without his knowledge. He has not filed any petition against his wife seeking the relief of restitution of conjugal rights against her in any Court of law. During the counselling proceedings, he offer to take her back to her matrimonial fold and it may be held in P. Misc. No. 10/1997. In para-7 of the affidavit filed in P. Misc. No. 10/1997 he has stated that he has two children and he is desirous of taking them into his custody and maintain and educate them. Further it is stated that, he has not mentioned in para-7 of his affidavit filed in P. Misc. No. 10/1997 that Pooja is his daughter. He states that the birth of Pooja has not come to his knowledge. He has not initiated any proceedings saying that Pooja is not his daughter and not issued any legal notice to the respondent stating that she has falsely alleged in the petition filed by her that Pooja is her daughter through him. He admits that, it is true that P. Misc. No. 10/1997 initiated by respondent was converted into original suit i.e., O.S. No. 182/1999 and it is also true that he has filed M.C. No. 454/1999 against the respondent after O.S. No. 182/1999 came to be registered, for the relief of divorce on the ground of cruelty and desertion. It is also true that O.S. No. 182/1999 and M.C. No. 454/1999 were clubbed together and common evidence was led in and in that proceedings he gave his evidence first. He also stated that he suffered loss in his business. He is unemployed. He did not want to file the petition for restitution of conjugal rights, since respondent did not show any interest to come to him. After respondent left the matrimonial house, he tried to get her back for about two years. It is true that in the month of December 1996 respondent has filed a petition for maintenance and for the return of jewellaries before the Court in P. Misc. No. 10/1997 which was converted into O.S. No. 182/1999, he agreed for the settlement held in the house of Puttaraju, Ex-Deputy Mayor and accordingly, he took her back. Thereafter, on the next day itself she left the house. Further, he states that, the reasons for filing the said petition are: (1) her behaviour is not good; (2) for silly reason she used to quarrel in the house and (3) she was not preparing food in the house. Further he states that he did not prefer any appeal against the order passed for maintenance. He also states that within 5 or 6 months after the marriage they went to Simla and he told her to be social with his friend, but it was not agreed by her. While they were quarrelling his friend and his wife came and pacified and then they advised. He also stated that because of the quarrel between them at Simla they cut short their tour and returned to Bangalore. One Prasad was a common friend to them and he tried to advise her through him and he has not examined Prasad and his father. Further he states that after two or three months of the marriage almost every day she used to quarrel and he has not filed any petition for custody of the children or for visitation rights. He slates that in the writ appeal they were called to the Chambers of the Hon''ble Judges and they were advised to forget the differences and live together and though he agreed for it, she did not agreed to come.

The respondent has sworn to an affidavit by way of chief examination in the Court below as under:

Petitioner is avaricious and more so her parents-in-law. They were after money and they wanted everything in luxurious way. They used to pin prick and harass her regarding demand for dowry. She further states that after she conceived for the first time, she was sent to her parents house for delivery, after delivery, when she wanted to return to her matrimonial home, the petitioner and his parents insisted that the naming ceremony should be performed in grand scale and in a choultry, which is not normal for a middle class family. After return to her matrimonial home day-in and day-out, they used to demand for more and more money and she was virtually driven out of the family being harassed, she was pregnant then for her second daughter. She further states that, it is just a natural thing for any lady, who is harassed day-in and day-out, ultimately beaten up and sent home to give a complaint to the Police, Further she states that the petitioner had condoned the lapses if any (there are no lapses on her part) and the same cannot amounts to cruelty. Even before the Division Bench of this Court, the petitioner had agreed to take her back, but her father-in-law came in the way of the union. Further, she states that the petition is bad as anything, it does not contain any factual averments, which could constitute the ground of cruelty. The petition is barred by principles of constructive res judicata and he cannot have a second trial on the same grounds. The ground of sending out a wife without any reasons is as much a final finding and the same thing cannot be re-agitated in this petition. It is the petitioner who has driven out her of the matrimonial home without any reason.

In the cross examination, she admits that, she is the only daughter. It is true that, her father owns three storeyed building at Dasarahalli, he owns lodge and restaurant at Sunkadakatte. She admits that she was taken to Simla within 6 or 7 months after the marriage by the petitioner. Alongwith them, his friend Dr. Ranganath and his wife had come to Simla. She did not lodge any complaint before the Police after the incident that had happened in Simla. After the delivery of her first child, she stayed in her mother''s house for 9 months and thereafter, returned to her husband''s house. She denied that, since her husband did not establish a separate house, she left the matrimonial house in the month of December 1996. It is true that, from that date, she left her husband for about 12 years. On 19.1.1997, in a weekly called Police News, a report has come in a head note '' dowry harassment and the husband who driven out his wife to her parents house''. She denied the suggestion put to her that she furnished the information to publish the said news in that weekly. She admits that, after she left the matrimonial house, she lodged a Police complaint before the Magadi P.S. against her husband and in-laws alleging dowry harassment which has been registered as C.C. No. 6236/1997, which has ended in an acquittal. She only persuaded to prefer an appeal and gave her representation to the Director of the Prosecution to prefer an appeal, this amounts to adding insult to injury. She admits that she has filed a suit through her children against her husband and in--laws in O.S. No. 8826/1997 for partition. She has not issued any notice to her husband calling upon him to take her back and she has filed a case for restitution of conjugal rights against her husband. The second child was born on 8.8.1997 and when she left the matrimonial house in the month of December 1996, she was 1 1/2 months pregnant and denied that the M.C. No. 454/1999 was dismissed as the petitioner did not pay the maintenance amount.

In the Trial Court, the petitioner was examined as PW1 and Exs. P.1 to P. II was marked. The respondent-wife was examined as RW1 and Exs. R.1 to R.4 were marked.

The Trial Court framed the following points for consideration:

(1) Whether the petitioner proves that the respondent has treated him with cruelty?

(2) Whether the petitioner proves that the respondent has deserted him for a continuous period of not less than 2 years immediately proceeding the presentation of the petition?

(3) Whether the respondent proves that the petition is barred by principles of res judicata?

The Trial Court answered the above points as under:

(1) Point No. 1 : Affirmative

(2) Point No. 2 : Affirmative

(3) Point No. 3 : Negative for the following reasons

The Trial Court has observed that the respondent -wife behaved in a strange manner and used to pick up quarrel before his friends and relatives and she stopped doing household work. She deserted him in December 1996. She filed a complaint with the Police against the petitioner and his parents on the ground that there was dowry harassment. She stated that after marriage they had gone to North India tour and at that time the petitioner asked her to give company to his friend which is ridiculous. Petitioner and his family members were required in Criminal Case No. 6328/97 which ended in acquittal. She filed an application to prefer an appeal against the judgment of acquittal. These things indicate that she intended to harass the petitioner and his family members. These materials produced also show that the petitioner was subjected to cruelty. When the respondent alleges constant harassment of dowry, she ought to have examined her parents. Non-examination of the parents and kith and kin creates a doubt. Allegation of beating her severely and admitting her to the hospital for medical treatment are stated for the first time in the Court. There is improvement in the evidence of the respondent. There is inconsistency in the evidence pertaining to the naming ceremony. The marriage has irretrievably broken down. Parties are living separately since more than 12 years. C.C. No. 6328/97 was registered at the instance of her. The suit for partition was filed. The respondent started demanding for separate residence and when the petitioner refused, she started behaving strangely and ultimately, she left the house of the petitioner and this constitutes desertion. I.A. 6 was filed under Order VII Rule 11(a) & (d) of CPC praying to reject the petition as it is barred by principles of res judicata. The principles of res judicata is not applicable to the facts of this case. It is an interlocutory order and at the time of final hearing, all these things can be considered. It is a finding given on a particular contention. The concept of interlocutory order is to give some relief to the parties during the pendency of the case like the temporary injunction etc. Therefore, the Trial Court was of the opinion that at the time of passing the interlocutory order, this order cannot be binding on the Court. The Trial Court passed the order dissolving the marriage and granted a decree of divorce.

Feeling aggrieved by the same, the respondent-wife has preferred this appeal.

We have heard the Learned Counsel for the appellant-wife as well as the Learned Counsel for the respondent-husband and perused the Trial Court records.

Learned Counsel for the appellant submits that, the Learned Judge failed to note that Interim Order on I.A. No. 1 cannot be a final order in the case. Learned Judge failed to note that, for a considerable period of time, the earlier M.C. was kept alive to enable the husband if he desired to restore the same, but he chooses not to restore the same. The Learned Judge failed to take note that when a party had an opportunity to contest a case by making good the deficiency and he does not choose to do so and it amounts to res judicata. Learned Judge failed to note that there was no cruelty whatsoever in the case and the facts appearing in the case point out that wife lived for less than a year in the husband''s house. Learned Judge failed to note that soon after the marriage, when they went for a trip to Simla, the behaviour of the husband is one for which there cannot be any corroboration.

It is further submitted by the Learned Counsel for the appellant that the question put to the wife that she did not complain the said incident to others or to the Police is quite unnatural and no lady with honour could make such a complaint and loose her own dignity and that of her husband. When after return to the matrimonial house with a child, within six months thereafter, she went out of the house except for torture due to dowry harassment. The fact that she was admitted to Gayatri Nursing Home is not disputed. It is also contended that though this Court attempted to compromise and at every stage attempt to compromise was done, but it was rejected by the parents of the husband and this aspect of the matter has been ignored and not even dealt with this by the Learned Judge. It is admitted by the husband that he had condoned whatever the lapses of the lady at the time when the compromise took place before the writ appeal Bench, The degree of proof required in a matrimonial case is quite different from the criminal case. The Learned Judge observed that wife has not made out a ground of cruelty. Learned Judge has ignored the rulings relied on by the party. The husband was never arrested and he was not in custody. There is no whisper about any demand for any money either in the pleadings or in the evidence of the husband. He further submits that no ground was urged either in the petition or stated in his chief examination, but he comes out with a suggestion to the respondent in M.C. No. 406/2006 that at the stage of writ appeal, he was prepared to pay Rs. 7,00,000/-, but the appellant demanded Rs. 10,00,000/-, This ground was urged at the stage of writ appeal before this Court. This clearly indicates that the husband wanted to drive away his wife by paying her some money. There is no irretrievable break down of marriage which the husband was very much insisting, Further, it is submitted that, when M.C. No. 454/1999 was dismissed, he did not prefer any appeal and in the companion original suit O.S. No. 182/1999 for maintenance, he did not file an appeal against the same contending that the said judgment is wrong. The Family Court had clearly says that she is driven out of the family and she is entitled to maintenance which is affirmed by this Court in M.F.A. No. 10037/2005 and as such the judgment in O.S. No. 182/1999 and M.F.A. No. 10037/2005 acts as res judicata to consider the ground of cruelty or her going away from the house voluntarily. The husband cannot approbate and reprobate.

Learned Counsel for the appellant has relied on the following rulings:

(i) Dr. N.G. Dastane Vs. Mrs. S. Dastane,

Head Note--F:

Hindu Marriage Act (1955), Sections. 23(1)(b) and 10(1) (b) - Judicial Separation-Cruelty-Condonation-Meaning of Condonation not pleaded-Duty of Court.

Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of S. 23(1) (b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the Court to consider the question of condonation, and obligation which has to be discharged ever in undefended cases. The relief prayed for can be decreed only if we are satisfied "but not otherwise", that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant has condoned the cruelty.

Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty.

The evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty.

(ii) Shobha Rani Vs. Madhukar Reddi,

Head Note:

Hindu Marriage Act (25 of 1955), S. 13(1) (I-A) -Penal Code (45 of 1860), S. 498-A -Divorce on ground of cruelty-- "Cruelty"- It may be unintentional-Demand of dowry by husband or his parents - It amounts to cruelty- It can be proved as in civil cases-Cruelty under S. 498-A is distinct. Decision of (Andhra Pradesh) High Court Reversed. (Dowry Prohibition Act (28 of 1961) S. 4).

(iii) J.L. Nanda Vs. Smt. Veena Nanda

Head Note:

Hindu Marriage Act(25 of 1955), S. 13(1)(ia) -Cruelty- Spouses having differences in early period of their marriage - After birth of son, however, no serious incidents or problems deserving consideration-Husband seeking divorce on ground of cruelty - Held, could not be granted - Temperament of spouses not conducive to each other resulting in petty quarrels - Not a ground though might have resulted in physical or mental ailments.

(iv) Shivakumar Vs. Premavathi,

Head Note B:

Hindu Marriage Act (25 of 1955), S. 13(1)(ib)-Divorce-Desertion-Petition for divorce by husband on ground that wife was living separately for more than 20 years-Mere physical separation would not amount to desertion -"Animus deserendi" on the intention to bring co-habitation permanently to an end should exist-It is necessary for husband to establish prima facie that the separation of the wife did constitute desertion by establishing that he did not neglect his wife.-Allegation of desertion supported by only self interested testimony of husband. - No independent corroboration-Husband not entitled for divorce.

Head Note C:

Hindu Marriage Act (25 of 1955), S. 13(1)(ia) -Divorce-Cruelty-Any imputation against the character of any spouse without any foundation-Amounts to mental cruelty and will constitute a valid and sufficient justification for the spouse to stay away from the other. - Husband making allegations of cruelty against wife. - Said allegations not supported by evidence of independent witnesses,-It is the husband who is really responsible for the break down of the marriage-Husband, not entitled for divorce.

(v) Smt. Nalini Sunder Vs. Sri G.V. Sunder,

Head Note-A:

Hindu Marriage Act (25 of 1955), S. 13(1)(ia) -Divorce - Petition by husband-Ground of cruelty -Allegation that wife quarrelled with husband on trivial matter such as shortage of water after they returned from honeymoon - No basis to dissolve marriage on a petition filed after three years of incident - More so when the couple continued cohabitation thereafter.

Head Note B:

Hindu Marriage Act (25 of 1955), S. 13(1)(ia) - Divorce - Petition by husband-Ground of cruelty - Allegation that wife threatened to commit suicide and implicate husband - Wife at no stage hurting herself- Mere threat cannot be viewed in isolation as causing mental cruelty unless entire genesis of quarrel is placed before Court - Spouse at receiving end of intolerable conduct of other spouse can threaten to commit suicide out of desperation - Unless threat was given without any provocation persistently and for flimsiest reason it would not constitute mental cruelty.

Head Note C:

Civil P.C.(5 of 1908), 0.6, R.2-Pleadings-Lack of-Case cannot be made out on basis of evidence of party when it was not set up in pleadings.

(vi) Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi,

Hindu Marriage Act (25 of 1995), S. 13(1)(ib), 10 - Divorce petition - Grounds of desertion by wife - Seperation in fact and animus deserendi which means intention to bring cohabitation permanently to an end on part of wife, deserting spouse is an essential element - Wife had gone to parents'' house for birth of child - Did not return, but laid down conditions for returning that husband should live in separate house from his parents taking plea that father-in-law had attempted to molest her - Absence of evidence in support of her plea of alleged indecent behaviour by father-in-law - Expiry of father-in-law during pendency of petition - Wife there after not expressing her desire to join her husband - Husband satisfactorily proved that wife is guilty of having deserted him for continuous period of more than 2 years - Husband entitled to decree for judicial separation under S. 10

(vii) S. Hanumantha Rao Vs. S. Ramani,

Head Note -A:

Hindu Marriage Act (25 of 1995), S. 13(1)(ia) -"Mental cruelty" - Removal of Mangalsutra by wife at instance of her husband - Does not constitute mental cruelty.

Head Note - B:

Hindu Marriage Act (25 of 1995), S. 13(1)(ia) - "Mental cruelty" - Wife sent letters to her husband - No reply received by her from husband - Preservation of copies of said fetters by wife - Wife did not have any intention to use the copies of those letters as evidence - Husband, instead, had filed all letters sent to him by his wife in the Court - Retention of letters by wife - Does not amount to mental cruelty.

Head Note - C:

Hindu Marriage Act (25 of 1995), S. 13(1)(ia) -"Mental cruelty" - Representation made by parents of wife to Women''s Protection Cell for reconciliation of estranged spouses - Does not amount to mental cruelty upon husband - Particularly, in absence of evidence to show that neither husband nor his family were harassed by the Cell.

(viii) Laxmi Raj Shetty and Another Vs. State of Tamil Nadu,

Head Note-B:

Evidence Act (1872), Ss. 78(2), 81, 57 -Newspaper-Facts stated therein - Hearsay in nature - Inadmissible unless maker of statement is examined-Judicial notice of facts stated in newspaper cannot also be taken.

(ix) A. Jayachandra Vs. Aneel Kaur,

Head Note-A:

Hindu Marriage Act, 1955-S. 13(1)(I-a) -Grounds for divorce- Cruelty -Meaning of ''Mental Cruelty''- determination of- Relevant factors to be taken into account - Held, mental cruelty has to be considered in the light of the social status of parties, their education, physical and mental conditions, customs and traditions - Court to draw inference and decide on the basis of the probabilities of the case having regard to the effect on the mind of the complainant spouse because of the acts or omissions of the other spouse - However, where the conduct complained of itself is bad enough and per se unlawful or illegal, the impact or injurious effect on the other spouse need not be considered - In such cases, cruelty will be established if the conduct itself is proved or admitted - To constitute cruelty, the conduct complained of should be ''grave and weighty'' whereupon it can be concluded 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''. - Filing of divorce petition by husband - Both husband and wife were professional Doctors - Wife suspecting husband''s fidelity, character and reputation (though such allegations denied by her) - She admitting to have advised her husband to follow five things, most of which were related to ladies working in the hospital like, not to call female staff members for work in hospital during off-duty hours and not to work behind closed doors with certain members of staff - She using abusive language against her husband and alleging extramarital relationship with another married lady (denied by her, but evidence establishing the contrary) - Held, the so called advices were nothing but casting doubt on the reputation, character and fidelity of her husband - Constant nagging on those aspects amounted to causing indelible mental agony and amounted to cruelty - That apart, wife''s conduct subsequent to filing of divorce petition indicating irretrievable breakdown of marriage -. Held, husband entitled to decree of divorce - Words and Phrases- ''Cruelty''.

Head Note-B:

Family Law- Matrimonial dispute-Appreciation of evidence - Post - Petition conduct of parties - Held relevant to substantiate allegation of cruelty in as much as it is also used to infer condonation-Hindu Marriage Act, 1955-S. 13(1)(i-a)-Cruelty

(x) Balbir Singh Vs. Smt. Bholi,

Hindu Marriage Act (25 of 1955), S. 13 -Petition for divorce by husband after 21 years of marriage on ground of cruelty by wife - No suggestion by husband that wife treated him with such cruelty which would give cause of action to seek divorce -Record suggesting that husband filed petition to create defence to proceedings under S. 406, 498-A Indian Penal Code filed by wife and also to avoid maintenance granted to wife u/s 125 Cr.P.C.- Dismissal of petition by Trial Court, held proper.

(xi) Ravi Kumar Vs. Julmi Devi,

Head Note-A:

Hindu Marriage Act, 1955-Ss. 13(1)(I-B) and (ia) - Desertion - Proof- Pleadings and particulars necessary in respect of ground of cruelty - Divorce granted on grounds of cruelty and desertion -Sustainability - Party alleging desertion must not only prove that the other spouse was living separately but also animus deserendi on its part, and spouse claiming desertion must prove that it has not conducted itself in a manner which furnishes reasonable cause for the other spouse to stay away from matrimonial home -Respondent wife was found to have sufficient ground to stay separately - Their daughter denied that her mother abused her father but repeatedly deposed that her father beat her mother for known reasons - Further, no specific allegations of cruelty with material particulars pleaded against wife - Held, in such circumstances it cannot be said that wife was guilty of either cruelty or desertion.

Head Note-C:

Hindu Marriage Act, 1955-Section 13(1)(i-a) -Cruelty - Meaning - Held, cruelty in matrimonial behaviour defies any definition and can be of infinite variety, categories wherefor can never be closed - Cruelty has to be judged taking into account entire facts and circumstances of case and not by any predetermined rigid formula-In matrimonial relationship cruelty mean absence of mutual respect and understanding between spouses which embitters relationship - Sometimes it may take form of violence, or at times may just be an attitude or approach - Silence in some situations may also amount to cruelty.

Head Note -D:

Hindu Marriage Act, 1955 -Ss. 9 and 28 -Restitution of conjugal rights - Whether appellant husband condoned all alleged acts of cruelty of wife - Held, condonation is basically a question of fact - On Facts, Held, appellant had condoned earlier alleged acts of cruelty of respondent wife.

Head Note-E:

Civil Procedure Code, 1908- Or. 41 R. 33 -Object of-Held, empowers Appellate Court to do complete justice between parties, except where there is a legal interdict.

(xii) Parameshwari Bai Vs. Muthojirao Scindia,

Head Note-A:

Evidence Act- (1 of 1872), Ss. 114, 101 -Marriage - Man and woman lived as husband and wife for fairly long time - Presumption - Rebutted -Burden of.

(xiii) Mr. Madhav Bhalachandra Mangalorkar Vs. Mrs. Malti Mangalorkar,

Head Note-A:

Hindu Marriage Act, 1955, Section 13(1)(i-b) -Wife living separately from her husband - Petition for divorce filed by husband on ground of desertion by -Wife leaving matrimonial home after incident of assault on her by husband, which traumatised her completely - Her attempts to get back to her matrimonial home, made through relatives, going without response/reciprocation by husband - Wife living separately from husband, though for long period, is by itself, not desertion, when she has reasonable cause to live separately from husband - Mere separation is not enough - Such separation must be with animus deserendi i.e., intention to being end to marital tie permanently -Burden is on petitioning spouse - Decree of divorce cannot be granted to petitioning spouse who has failed to discharge burden.

Head Note-B:

Hindu Marriage Act, 1955, Section 13(1) -Irretrievable marriage-No such ground enumerated in Act, for grant of decree of divorce - Language of Section cannot be extended by adding new grounds not enumerated in Section.

(xiv) A. Jayachandra Vs. Aneel Kaur,

Head Note-A:

Hindu Marriage Act (25 of 1955), S. 13 -Divorce-Cruelty-Expression ''cruelty'' has been used in relation to human conduct or human behaviour - To constitute cruelty, conduct complained of should be grave and weighty for arriving at conclusion that petitioner spouse cannot be reasonably expected to live with other spouse.

Head Note-B:

Hindu Marriage Act (25 of 1955), S. 13 -Divorce-Cruelty-Evidence showing that respondent wife asked husband to do certain things casting doubt on reputation, character and fidelity of her husband- It cannot be termed as simple advice but amounts to cruelty- Even after filing of divorce petition respondent wife went to extent seeking detention of her husband for alleged disobedience of injunction order-Irretrievable breaking of marriage though not a ground for dissolution of marriage - However, in extreme cases Supreme Court with a view to do complete justice and shorten agony of parties directed dissolution of marriage - Appellant entitle to decree of divorce.

(xv) Narendra Kumar Gupta Vs. Smt. Indu,

Hindu Marriage Act (25 of 1955) - S. 13(1)(a) Dissolution of marriage - Petition filed by husband on ground of cruelty - Institution of FIR by wife against husband under S. 498-A of penal Code for subjecting her to cruelty, which after investigation was found false -Amounts to cruelty -Husband entitled to decree of dissolution.

(xvi) S. Prasanna Kumar Vs. R. Saraswathi,

This Court has held that:

''By making one sentence of allegation that respondent has deserted him, no Court can grant a decree of divorce on the ground of desertion without an attempt has not been made by the husband to secure his wife to the matrimonial home''.

(xvii) Gurbux Singh Vs. Harminder Kaur,

Head Note-B:

Hindu Marriage Act (25 of 1955), S. 13(1)(l-a) - Divorce -Cruelty - Petitioner and respondent both highly qualified - Petitioner husband alleging that respondent expressed displeasure about conduct of his parents on festival day in presence of others - Such isolated frictions on some occasions -Does not amount to cruelty - Act of respondent of beating her child and not feeding him - Condoned by petitioner husband -Petitioner not entitled to divorce -Allegations made by respondent against petitioner in reply - No issue framed by Trial Court - No evidence was adduced -Such allegations cannot basis for granting divorce.

(xviii) Shankar Sitaram Sontakke and Another Vs. Balkrishna Sitaram Sontakke and Others,

The obvious effect of the finding is that the plaintiff is barred by the principle of ''res judicata'' from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum.. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of ''res judicata''.

We are also of opinion that the plaintiff''s claim is barred by the provisions of Order II, Rule 2(3) of the Code of Civil Procedure. The plaintiff by confining his claim to account up to March 31, 1946, only, implicitly if not explicitly, relinquished his claim to the account for the subsequent period. Sub-Rule 3 clearly lays down that if a person omits, except with the leave of the Court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted. We do not agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit. The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property. That suit embraced the entire property without any reservation and was compromised, the plaintiff having abandoned his claim to account in respect of the motor business subsequent to March 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, Rule 2(3) of the Civil Procedure Code.

Learned Counsel for the respondent supports the impugned judgment and decree. There is sufficient evidence to show that there is cruelty. Learned Counsel for the respondent also submits that the suit filed by the wife for partition was dismissed by the Court below. Further, he submits that upto date maintenance amount has been paid by the respondent.

Learned Counsel for the respondent has relied on the following rulings:

(i) Narendra Kumar Gupta vs. Indu (supra)

Hindu Marriage Act (25 of 1955) S. 13(1)(a) Dissolution of marriage - Petition filed by husband on ground of cruelty - Institution of FIR by wife against husband under S. 498-A of penal code for subjecting her to cruelty, which after investigation was found false - Amounts to cruelty - Husband entitled to decree of dissolution.

(ii) Surjeet Singh Vs. Smt. Paramjit Kaur,

Hindu Marriage Act (25 of 1955) S. 13(1)(I-a) -Divorce-Cruelty by wife- Wife lodging FIR against husband and his family members for offences punishable under Ss. 498-A, 506/ 406/ 34 of Penal Code -Husband and his parents had to surrender and get themselves bailed out - It can be said that wife treated husband with cruelty - Husband entitled to decree of divorce,

(iii) Samar Ghosh Vs. Jaya Ghosh,

Head Note-A:

Hindu Marriage Act, 1955-S. 13(1)(I-a) -"Mental cruelty" as ground of divorce- Nature and scope-Irretrievable breakdown of marriage-Refusing to sever the marriage tie despite the irretrievable period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair-The marriage becomes a fiction though supported by a legal tie- By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty- In present, case, Trial Court had rightly concluded that the various instances in their matrimonial life, had led to grave mental cruelty to the appellant husband-Further, the High Court failed to take into consideration the most important aspect of the case that the parties had admittedly been living separately for more than 16 1/2 years- The entire substratum of marriage had already disappeared- Even when the appellant was seriously ill and had to undergo a heart by-pass surgery, neither the respondent wife nor any member of her family bothered to enquire as to appellant''s health even on the telephone-Hence the parties had no feelings or emotions towards each other-The irresistible conclusion would be that the matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the respondent-This was a clear case of irretrievable breakdown of marriage- Any further effort to keep it alive would prove to be totally counterproductive-Even in the Supreme Court, the parties being present in Court, the appellant was not even prepared to speak with the respondent despite a request from the Court-In this view of the matter, the parties could not be compelled to live together-Divorce decree restored-Family Law-Special Marriage Act, 1954-S. 27(1)(d)-Family Law-Divorce.

Head Note-B:

Hindu Marriage Act, 1955- S. 13(1)(i-a) -"Mental cruelty" as ground of divorce- Nature and scope- Non-susceptibility to comprehensive definition-Approach to be followed by Court in determining question of mental cruelty-Held, there cannot be any comprehensive definition of "mental cruelty" within which all kinds of cases of mental cruelty can be covered- No Court should even attempt to give a comprehensive definition of mental cruelty- Reasons therefor, discussed- There can never be any straitjacket formula or fixed parameters for determining mental

(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

The Trial Court has not considered the aspect pertaining to Order II Rule 2 of Civil Procedure Code. It has overlooked this aspect.

Earlier, the petitioner had filed a petition seeking divorce on the ground of cruelty and desertion. Even the present petition filed by petitioner is on the same ground. The cause of action for the earlier petition as well as the present petition is one and the same.

So far as evidence of PW1 is concerned, he has clearly admitted during cross examination that, he has filed M.C. No. 454/1999 against the respondent herein for the relief of divorce on the ground of cruelty and desertion. It is true that M.C. No. 454/1999 was clubbed together with O.S. No. 182/99 and common evidence was led. It is true that in the proceedings, he gave his evidence first. From these, it is clear there is positive evidence to the effect that the earlier petition filed and the present petition is on the same cause of action. Though the Trial Court has examined the aspect pertaining to res judicata, it has not examined the aspect pertaining to Order II Rule 2 of Civil Procedure Code, it has not given any finding as to whether the present petition and the earlier petition were filed on the same cause of action or on different cause of action. Therefore, the Trial Court has not properly appreciated the evidence and the material placed on record in a proper perspective. The finding in so far as this aspect is concerned, in our view, calls for interference. Though the earlier petition for divorce and the present petition were filed on the same cause of action, the petitioner not taking any step to revive the petition intentionally, indicates that he wanted to file a fresh petition on the same ground and on the same cause of action.

The next point that we have to consider is, whether the finding recorded by the Trial Court in respect of the petitioner establishing his case regarding cruelty calls for interference?

In this regard, there is positive evidence to the effect that the respondent had lodged a case before the Police and after investigation, the Police have laid the charge sheet and the entire family members were implicated in the criminal case and this case ended in acquittal. After the criminal case ended in acquittal, the respondent-wife moved a petition before the Director of Prosecution, to prefer an appeal. All these things clearly indicate that the respondent, due to frustration or for other cause or with an intention to harass the petitioner-husband might have lodged this complaint. There is sufficient evidence on record to establish that the respondent acted cruelly in so far as the petitioner is concerned. Therefore the finding recorded insofar as point No. 1 in the Court below is sound and proper and hence, does not call for interference.

The next point that we have to consider is, whether the petitioner establishes his case about the desertion. It is undisputed fact that the petitioner husband and respondent/wife are living separately. There is no exchange of legal notice for restitution of conjugal rights nor the husband asking the wife to join him. Even the respondent has not issued any legal notice to the petitioner asking him to take her back to the matrimonial house. It is also undisputed fact that the respondent has got two daughters, both minors at present. But, there is positive evidence to the effect that the respondent - wife intended to live with the husband and there is also evidence to the effect that she is ready to live with her husband.

It is also the contention of the Learned Counsel for the appellant that the ground about the irretrievable breakdown is not incorporated in the Hindu Marriage Act. There is no evidence to the effect that they cannot live together, especially, when the respondent - wife utters that she is ready and willing to live with her husband. It is the contention of the Learned Counsel for the respondent-husband that both husband and wife are not living together and that they are living separately for the past 15 years.

The burden lies on the petitioner- husband to establish factum of separation as well as the intention throughout such period. Desertion can be gathered from the facts and circumstances of each case. Even if the marriage has not been able to recovered or repaired no decree can be passed on the ground of desertion. Desertion is not to be tested by merely ascertaining which party left the house first. If one spouse is forced by the conduct of the other to leave the home, it may be that the spouse responsible for driving out is guilty of desertion. Smt. Rohini Kumari Vs. Narendra Singh, Sufficient cause exit when the husband refused to take back his wife, when the wife is ready to live with him.

In this case, the husband has to establish the conduct of his wife pointing out that the separation was without his consent. Spouse responsible for creating the situation responsible is guilty of constructive desertion. In this case, the wife asserted to live with her husband and the husband refused to take her back, cannot be allowed to take advantage of his own fault. There is no aim or design to live separately by the wife. Therefore it is difficult to infer that the wife abandoned her husband without intending to return. Therefore this point is answered as stated herein above.

It is well settled that non-compliance of order for payment of maintenance amount, the Court can strike out of the defence or stop the matrimonial action or prohibit the defaulting spouse from conducting the case in order to implement the order.

In the case of C. Sarala Vs. K. Nalinakshan, , the Kerala High Court has held as under:

Head Notes:

(A) - Civil P.C. (5 of 1908), S. 11 -Res judicata - Difference in reliefs in previous and later proceedings is immaterial - Suit for restitution of conjugal rights Finding therein that wife was turned out of house - Subsequent suit for divorce by husband on ground of desertion - Trial of issue whether wife had deserted husband - Barred by res judicata.

(B) - Civil P.C. (5 of 1908), O. 9, R. 9 -Applicability - Provision under O. 9, R. 9 is applicable to proceedings under Hindu Marriage Act.

(C) - Civil P.C. (5 of 1908), S. 96 -Appeal - Abuse of process of Court -Divorce petition - Filing of- Ground of desertion by wife - Rejected earlier in suit for restitution of conjugal rights - Husband can be said to have abused process of by filing successive proceedings and agitating the point rejected earlier.

In the case of Smt. Malti Vs. Ramesh Kumar, the Delhi High Court has held as under:

Head Note - "Civil P.C. (5 of 1908) O.9, R.9 - Hindu Marriage Act (25 of 1955) S. 13(1)(i) -Applicability of O.9, R.9 - Divorce petition dismissed in default and non prosecution - O.9, R.9 would be applicable - No application for setting aside or restoration ever filed - Subsequent application for divorce under S. 13 on basis of same cause of action - would be barred.

In the case of M. Ramachandra Rao Vs. M.S. Kowsalya, the Division Bench of this High Court has held as under:

Hindu Marriage Act (1955) Ss. 24, 9 -Application by husband for restitution of conjugal rights under S. 9 - Husband directed to pay maintenance -Maintenance falling in arrears - Court can stop further proceedings under S. 9 to enforce obedience to order of maintenance in its inherent power - Civil P.C. (1908) S. 151. Smt. Malkan Rani Vs. Krishan Kumar, & Anita Karmokar and Another Vs. Birendra Chandra Karmokar, and Bhuneshwar Prasad Vs. Dropta Bai,

In M.C. No. 454/1999, the Order sheet dated 22.03.2005 indicates that the interim maintenance granted in O.S. No. 182/1999 was not paid to the wife. Time was granted to deposit the interim maintenance amount, but he did not deposit the amount. Therefore, the Trial Court passed an order that the petitioner-husband has lost his right to prosecute the case. The petitioner - husband filed a divorce petition i.e., M. C. No. 454/99. This divorce petition was dismissed. Wife filed an original suit bearing O.S. No. 182/1999 for grant of maintenance and the said suit was partly decreed. The divorce petition was dismissed on the improper management of the case. Subsequent case i.e., M.C. No. 406/2006 is instituted seeking for divorce on the ground of cruelty and desertion. Both the petitions i.e., M.C. No. 406/2006 and M.C. No. 454/1999 are filed u/s 13 (1) (i-a) & (i-b) of the Hindu Marriage Act, 1955. The cause of action in M.C. No. 406/2006 and M.C, No. 454/1999 is one and the same. The petitioner - husband did not take step to restore M.C. No. 454/1999 when it was dismissed. Inspite of failing to pay the maintenance amount to the respondent -wife, the petitioner -husband filing a fresh divorce petition on the same cause of action to evade payment of maintenance amount to the respondent -wife is adversely affected by the principles of res judicata and also provisions of Order 2 Rule 2, Order 9 Rule 9 of the CPC and also in view of settled legal position of striking out the defence for non-payment of maintenance amount. There are two daughters born of this wedlock, she is ready and willing to join with her husband. Taking everything into account and also following the principles of law laid down in Shankar Sitaram Sontakke and Another vs. Balkrishna Sitaram Sontakke and Others (supra) Vol. 41 C. N. 85 (cited supra), we are of the considered view that, when the petitioner does not seek restoration of the divorce petition in M.C. No. 454/1999 at the earliest point of time and later on filing another divorce petition on the same cause of action, is not proper. The finding recorded by the Court below is not sound and proper. Therefore, the impugned judgment is not sustainable in law and the same is liable to be set-aside.

In view of the above discussion, we pass the following:

ORDER

This Miscellaneous First Appeal is allowed in part

The judgment and decree passed by the I Additional Principal Judge, Family Court, Bangalore, in M.C. No. 406/2006 on 24th July 2009, dissolving the marriage between the petitioner and respondent, solemnized on 1st May 1994, is hereby set-aside.

Petition filed by the husband - respondent is liable to be rejected.

No costs.