Smt. Prabhavathi vs Lakshmeesha M.C.

K.L. Manjunath, J.—The legality and correctness of the judgment and decree passed in M.C. No. 615/2002 dated 21.02.2011 passed by the II Addl. Prl. Judge, Family Court, Bangalore, is called in question in this appeal. The appellant-wife was the respondent before the Court below. The respondent-husband filed a petition for grant of decree of divorce u/s 13(1)(ia) of the Hindu Marriage Act, seeking decree of divorce on the ground of cruelty.

The admitted facts are as hereunder:

The marriage between the parties was solemnized on 10.11.1991 at Bangalore. After the marriage, the husband was staying with the appellant-wife in his father-in-law''s house. One fine day, the landlord of the house, pursuant to an order passed in Execution Petition, all the belongings of the husband were thrown out along with other members of the family. According to him, it was a torture and mental cruelty caused to him, since he was working as a Deputy Manager in KSFC. It is also his case that after he was thrown out of the house, wherein his father-in-law was a tenant, he helped his father-in-law for rehabilitating the entire family. According to him, eviction order was passed against his father-in-law for non-payment of rent and he was also misrepresented before the marriage stating that the appellant herein was a Graduate even though she had not passed the PUC.

It is also the case of the respondent-husband that after the said incident, husband and wife lived for some time at Tumkur and the appellant used to pick up quarrels frequently and threaten him stating that she would commit suicide. In the circumstances, the husband was compelled to purchase an immovable property in the name of his wife. Even then she did not stop ill-treating him. She gave birth to a son on 20.08.1992, thereafter she never joined the husband. According to him, he was humiliated while he was going in the office Jeep in front of Varalakshmi Nursing Home, she did not allow his vehicle to move further and on several occasions, the appellant created scene in the office of the husband. Therefore, he filed a petition for grant of decree of divorce.

The appellant denied all the averments made in the petition and contended that she is ready and willing to live with him.

On an earlier occasion, a decree of divorce was granted on the ground that an opportunity was not given to the wife. She had filed an appeal before this Court in MFA No. 9624/2006 which appeal came to be allowed on 26.08.2010. The judgment and decree of divorce granted by the Family Court was set aside and the matter was remanded to the Trial Court for fresh consideration in order to provide an opportunity to the wife.

After remand, the appellant-wife was examined as RW1. She was not cross-examined by the respondent''s Counsel. Still the Court has allowed the decree of divorce granted earlier and the same has been confirmed. Therefore, the present appeal is filed.

The learned Counsel for the appellant contends that the Trial Court has committed serious error in decreeing the petition filed by the respondent. According to him, when the evidence of the appellant was examined as RW1, the same has not been challenged by the respondent. When the evidence of the appellant was closed on account of non-cross examination by the respondent, the Trial Court was required to accept the examination-in-chief of the appellant and considering her evidence, the Trial Court was required to dismiss the petition filed for grant of decree of divorce.

According to the learned counsel for the appellant, without considering the evidence of the appellant, solely on the ground that the parties are living separately and there is an irretrievable break down of the marriage, could not have granted a decree of divorce because u/s 13 of the Hindu Marriage Act, no ground is available for a husband to file a petition to obtain a decree of divorce on the ground of irretrievable break down of the marriage.

Having heard the learned Counsel for the parties and on perusal of the Trial Court records, we are of the view that the Trial Court has committed an error in allowing the divorce petition without considering the evidence of the parties. It may be true that the marriage between the parties is irretrievably broken, but the same cannot be a ground for the Family Judge to grant a decree of divorce. Even if the marriage is irretrievably broken, it is for the Court to find out whether it is broken down at the instance of the husband or at the instance of the wife. Merely because a spouse does not like the other spouse and are living separately on the ground that the marriage is irretrievably broken down cannot be considered. In the circumstances, we are of the opinion that the judgment and decree passed by the Trial Court has to be set aside. The matter has to be reconsidered by the Trial Court afresh by giving an opportunity to the respondent herein to cross-examine RW1 and thereafter to consider the case on merits in accordance with law.

Accordingly, the appeal is allowed.