Smt. Drakshayini vs K.R. Nagaraju

A.V. Chandrashekara, JJ.—This appeal is filed against the decree of divorce granted by the learned Civil Judge (Sr.Dn.) & CJM, Chamarajanagar, in M.C. No. 12/2005 on 14.12.2009. The appellant was the legally wedded wife of the respondent herein and their marriage was solemnized in accordance with the customary rites. Wife has filed this appeal. The appellant was the respondent in the said case. Parties will be referred to as petitioner and respondent as per their status in the cause title of the Trial Court.

Their marriage was solemnized on 23.03.2000 in Vasavi Mahali, Chamarajanagar. Petitioner and respondent lived for about eight months and the case of the respondent is that she did not want to live with her in-laws and hence wanted him to make a separate house and to live with her. Petitioner did not agree and in this regard, respondent used to go to her parents house without telling him. Since the respondent deserted the petitioner for more than two years and since she made reckless allegation imputing his character and insisting for a separate house without any rhyme, he had filed a petition for divorce on the ground of desertion and cruelty. Petitioner is a Conductor, in KSRTC, Mysore Depot.

Respondent appeared before the Trial Court and filed objections denying all the material averments made against her. It is her case that at the time of marriage, a sum of Rs. 25,000/- in cash, 30 gms. of gold and watch and clothes worth Rs. 5,000/- had been given as dowry. According to her, she lived with him for about 3-4 years. Initially he took care of her and later on started harassing her. Petitioner is stated to have demanded her to bring a sum of Rs. 25,000/- as agreed at the time of marriage and in view of her inability to pay the same, he started ill-treating her both physically and mentally. Petitioner is stated to have driven out her out of his house. Inspite of convening panchayat, petitioner did not take her back. It is her case that he has illegal connection with his sister-in-law i.e., the wife of his elder brother. Therefore he is guilty of cruelty. Hence she had requested to dismiss the petition.

Petitioner himself has been examined as PW1. Apart from him, his mother has been examined as PW2 and one Srinivasanaika, as PW3 and three exhibits have been got marked. Respondent has been examined as RW1 and her father has been examined as RW2 and one exhibit has been got marked.

After going through the records and hearing the arguments, the learned Judge has chosen to allow the petition on the ground of cruelty and consequently dissolved the marriage. It is this order which is called in question on various grounds.

We have heard the arguments of the learned Advocates and we have perused the records. After going through the records, the following points arise for our consideration:

1) Whether the learned Judge is justified in granting the decree on the ground of decree of divorce on the ground of cruelty?

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

Reasons:

Word ''Cruelty'' is not defined in the Hindu Marriage Act. Even mental torture can also be considered as cruelty as per the decision reported in V. Bhagat Vs. Mrs. D. Bhagat, . The grounds alleged in regard to cruelty are as follows:

Wife insisted him to make a separate house.

She made reckless allegations imputing his character and alleging that he has illicit connection with his sister-in-law Smt. Pappanni.

Filing a false case for demand and receipt of dowry and pursuing the same.

So far as the first allegation for insisting for a separate house is concerned, petitioner has deposed to that effect. The respondent has emphatically denied the same. Therefore, there is an allegation and counter-allegation with regard to the same and there is no substantial allegation to prove that she insisted for a separate house.

So far as the allegation of imputing adulterous life is concerned, the respondent has taken up a specific stand in her objections statement filed before the Trial Court. In paragraph-10 of the written statement she has specifically pleaded that petitioner has illegal connection with Smt. Papanni, the wife of his elder brother and on being questioned about his illegal intimacy with her, he started harassing her both physically and mentally. This is the foundation for the said allegation. She has not stopped there. Many a times allegations would be made in the pleadings but that will not be pursued by the parties and under such circumstances, it can be ignored.

PW3 Srinivasanaika, is from Kellamballi Village where the petitioner resides. He is the brother of lady Smt. Papanni, who is the sister-in-law of the petitioner. He has admitted that the name of his brother-in-law as Swamysundar. Suggestion put to him that his brother-in-law Swamysundar is not living with her at Kellamballi Village and that he is residing separately at Mysore has been specifically denied. Suggestion put to him that Swamysundar deserted his wife Papanni about ten years ago has been specifically denied. It is admitted by him that petitioner and respondent and his brother Narayananaika and his wife and their mother are residing in the house situated in their garden. The suggestion put to him that Papanni and her children are residing separately in a house in the same Village has been specifically denied.

The respondent-wife has asserted in her examination-in-chief as found in paragraph-8 that he has illegal contact with his sister-in-law and that she i.e., the respondent has been driven out of her house because of this. In her cross-examination, she has deposed that she came to know of this illegal contact one year after her marriage. She is stated to have told her parents about this illegal intimacy of her husband with Papanni. This would go to show that she is trying to assert this serious allegation of adulterous life. She has even gone to the extent of stating that the petitioner''s mother tried to mix sleeping tablets in her food and was coming in her way of cohabitating with her husband. This is also reckless allegation without any basis.

On the other hand, even Siddanaika, the father of the respondent has also asserted on oath in his examination-in-chief at paragraph-4, that his daughter told him about the petitioner having illicit contact with Papanni that is his sister-in-law.

Not only an admission is made to plead adulterous life, a serious attempt is made to prove, but no acceptable evidence is placed on record. Under these circumstances, it has to be considered as an unsubstantiated allegation imputing chastity of the petitioner.

Insofar as the criminal case is concerned, we have Ex. D1 the certified copy of the charge sheet filed against the petitioner and his mother and Papanni for the offences punishable under Sections 498A, 506 IPC and Sections 3 and 4 of Dowry Prohibition Act read with Section 34 of IPC. This chargesheet was filed by the Chamarajnagar Rural Police Station.

Admittedly, a complaint came to be filed after the petition was filed by the petitioner seeking divorce. Petition came to be filed on 16.04.2005 and this complaint came to be filed after the petition.

If really the petitioner had demanded for dowry and received dowry in connection with the marriage which was solemnized in the year 2000, the respondent would not have kept quite for such a long time. The fact of filing of police complaint and getting a chargesheet filed after the petitioner chose to file a petition for divorce would speak volumes against her. These aspects have been assessed on the basis of preponderance of probabilities.

The learned Judge has taken in consideration all these facts and while evaluating the oral and documentary evidence and these acts, according to the learned Judge, amount to cruelty.

The learned Judge has relied upon the decision reported in V. Bhagat Vs. Mrs. D. Bhagat, and A. Jayachandra Vs. Aneel Kaur, . Section 13(1)(ia) of Hindu Marriage Act can be broadly defined as that conduct which inflicts upon the other party such mental pain and sufferings as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that parties cannot reasonably be accepted to live together.

In the light of the principles enunciated by the Hon''ble Supreme Court in the above two decisions and in the light of the evidence place on record and after re- assessing the evidence, we are of the considered opinion that the learned Trial Judge is justified in granting decree of divorce on the ground of cruelty. Hence, we answer Point No. 1 in the affirmative. In view of our affirmative finding on point No. 1, no interference is called for and the appeal is liable to be dismissed by confirming the order of granting the decree of divorce.

ORDER

Appeal filed by the respondent-wife is dismissed.

Consequently, the impugned order dated 14.12.2009 passed by the Civil Judge (Sr.Dn.) & CJM, Chamarajanagar, in M.C. No. 12/2005 granting decree of divorce, is upheld.

Taking into consideration the facts and circumstances of the case and the relationship of the parties, we pass no order as to costs.