Sri B.N. Girish Babu vs Smt. Brunda

A.V. Chandrashekara, J.—The husband, who is the petitioner had filed a petition for grant of divorce on the ground of cruelty u/s 13(1)(ia) of the Hindu Marriage Act against his wife in M.C. No. 607/2004 pending on the file of 3rd Additional Judge, Family Court, Bangalore which has been dismissed by considered order dated 17.2.2010. It is this order, which is called in question in this appeal. The appellant herein was the petitioner and respondent herein was the respondent in the Trial Court. They will be referred to as petitioner and respondent as per their ranking in the Trial Court.

The marriage of the parties was solemnized on 24.8.1989 at Venkateshwara Temple, Vasanthpura, Bangalore according to Hindu Rites and Customs. The respondent is elder to the petitioner. There was opposition from the family members of both the parties and inspite of that they got married as they had known each other while working in the same branch of the Bank. Both the parties led happy marital life and after 6 months, the petitioner underwent a small surgery.

It is the case of the petitioner that after 1999, respondent started suspecting his fidelity stating that he has an illicit contact with a girl by name Babitha and in this regard, she started harassing him. She started ill treating him alleging that she could not conceive as a result of the operation undergone by him. She was not allowing him to cohabitate with her is another allegation. she also attempted to kill him by using a pillow and pressing it against his face while he was asleep. When he expressed his desire to have divorce and when the same was communicated through his common friend Thimmaiah, she demanded a sum of Rs. 4,00,000/-. The petitioner is stated to have given her a sum of Rs. 1,50,000/- in the year 2003. Inspite of having received the same, the respondent has not come forward to sign the joint petition. According to him, the respondent meted out cruelty to him and therefore, he wanted the petition to be allowed.

The respondent chose to appear before the Trial Court and filed detailed objections admitting the marriage and relationship. It is her case that from 1999, the petitioner started having intimacy with Babitha and started neglecting her. The present petition is stated to have been filed with an oblique motive to obtain divorce and thereby legalize the illicit contact with Babitha. The averment that she consented to sign the joint petition of divorce and in this regard, she had received a sum of Rs. 1,50,000/- has been specifically denied. According to her, a sum of Rs. 1,50,000/- received by her was towards amount given by her to the petitioner in the year 2003 to purchase the car. She has emphatically denied the allegations of cruelty. Hence, she had requested for dismissal of the petition.

The petitioner himself is examined as PW-1 and two other witnesses were examined on his behalf as PW-1 and 2 and has got marked 14 exhibits. Respondent has examined herself as RW-1 and one more witness as RW-2 and has got marked 21 exhibits.

After hearing the arguments, the learned Judge has chosen to dismiss the petition holding that the petitioner is not entitled for divorce on the ground of cruelty. It is this order which is called in question in this appeal.

It is contended that the Trial Court has not properly analyzed the oral and documentary evidence in right perspective and has adopted wrong approach to the real state of affairs, moreso, when serious allegations has been made by the respondent-wife imputing adultery to the petitioner. It is further contended that the respondent has even gone to the extent of filing a false criminal case and prosecuting him without any valid reasons. This important points have been lightly ignored by the Trial Court is his contention. It is further contended that the initial burden cast upon him to prove the ground of cruelty has been effectively discharged and the same has not been properly considered. It is further contended that attempt made by her to kill him has also been lightly ignored on the ground that the same has not been effectively proved. The judgment and decree is stated have be opposed to law, facts and probabilities and it is prayed to allow the appeal.

We have heard the arguments of the parties at length. The learned counsel for the respondent has supported the impugned judgment contending that the Trial Court has analyzed all the facts in right perspective and the impugned order is un-assignable. He requested the court to dismiss the appeal.

After hearing the arguments and perusing the records, following issues are framed for consideration:--

a) Whether the Trial Court is justified in holding that the petitioner has not proved cruelty?

b) Whether any inference is called for and if so to what extent?

Reasons:

The marriage of the parties was solemnized on 24.8.1989 at Venkateshwara Temple, Vasanthpura, Bangalore according to Hindu Rites and Customs. Admittedly, the marriage between the parties is an inter-caste marriage. The parents of both the parties were not in favour of the marriage. The petitioner belongs to Idiga community and respondent belongs to Schedule Caste. Since both of them were working in State Bank of India, GKVK, Bangalore, they had loved each other and agreed to marry. Subsequent to the marriage, parties lived in Srinagar, Bangalore in a rented house for a period of 6 months. Since the petitioner had developed health problems, he underwent an operation of the testis at Yellamma Dasappa Hospital. It was a major surgery due to which the left side of his testis was removed. The petitioner had to undergo an operation as the doctor had informed that if the same was not removed, there was every possibility of it leading to cancer. Being left with no avenue, he had to undergo operation. Somehow, they managed till 1999 inspite of certain differences. But the problems arose after 1999 when the respondent wife started suspecting his character on the ground that he was having illicit relationship with Babitha. The petitioner tried his level best to convince her that he did not have any such affair with any lady much less with Babitha.

The further allegation made in the petition is that she started cursing him on the ground that she could not conceive because of the major operation undergone by him. It is further alleged that she had been cursing him for not allowing her to beget any child because of the operation. It is further averred that in the first week of November 2003, when the petitioner was asleep in the hall of the house around 1:30 a.m., the respondent came there and made an attempt to kill him by thrusting a pillow on his face and pressing it. Immediately the petitioner woke up and resisted her attempt to kill him and cried for help. All the members of the petitioner''s family woke up and saved him. According to him, there is threat to his life from her. With these allegations, the petition was filed.

But in the objection statement, the respondent has denied all the allegations made against her in regard to cruelty and an attempt made to kill him. She has specifically admitted in her written statement that the petitioner has illicit relationship with a girl by name Babitha and this has been reflected in the registered notice sent to the petitioner by her. Till 2003, both of them lived together cordially and unfortunately differences arose because of his alleged association with the girl by name Babitha, who is a native of Bihar studying in RV Engineering College, Bangalore. It is further alleged that the said Babitha used to contact him in his branch on the pretext of encashing DD and other works. According to her, intimacy with Babitha started getting more and more stronger and when she objected to the same, the petitioner himself asserted that he would get Babitha and live with her in the same house. From 2003 onwards, he is stated to have completely changed his behaviour towards her and used to fight with her on one pretext or the other. In this regard, he used to beat her and mother has also supported him. According to him, the petitioner himself is guilty of cruelty and therefore, she wanted the petition to be dismissed.

Ex. P-1 is the copy of the legal notice got issued to the respondent-wife by the petitioner and his mother on 4.3.2004. The contents of the petition are virtually reiterated. It is mentioned that respondent has humiliated her and her son before family members, public and colleagues. She had been asked to mend herself and lead a happy life with Girish Babu.

Ex. P-2 is the copy of the reply notice got issued by the respondent on 20.3.2004. Her allegation was that he had developed hatredness towards her as he could not beget any child with her. According to her, his behaviour was indifferent and arrogant. Infact, she had requested him to sign a joint petition for divorce so that she can live happily for the rest of her life. Infact she also wanted a divorce. Taking into consideration the contents of Exs. P-1 and 2, the differences were irreconcilable.

One more notice was got issued by the respondent through, her lawyer to the petitioner on 29.3.2004, copy of which is marked at Ex. P-3. In that notice, it is clearly mentioned that petitioner has developed illegal intimacy with Engineering College Student Miss. Babitha and that she had objected to the same and opposed to the said contact. She had even seen both of them going together. It is alleged that he was going to Mangalore and Hyderabad on false pretext along with her. It is her case that when she had gone to the college campus of Babitha, she had threatened her with filthy languages. The entire contents of the said notice would focus about the illicit affair with Babitha.

On 21.7.2008, the respondent approached the police of Hanumanthanagar, Bangalore and filed a complaint, on the basis of which, a case came to be registered in Cr. No. 183/2008 for the offence punishable under Sections 454 and 380 of IPC on the ground that Girish Babu and Sudhesh Babu, her husband and brother in law respectively had committed theft. They appeared before the Court and they were released on bail by 1st Addl. CMM, Bangalore. Later on, she filed another complaint on 24.7.2008 for offence punishable u/s 498A r/w Section 34 of IPC and Section 3(x) of Prevention of Atrocities Act, 1989, on the basis of which, a case came to be registered in Crime No. 200/2008. The complaint was filed against the husband and family members. On 30.6.2008, Sarala, the mother of the petitioner gifts a site measuring 25 x 63 feet situated in Sy. No. 16/2, 5th cross, Ashoknagar, Corporation Ward No. 51, BSK I stage, Bangalore in favour of Sudheshraj B.N.

This would reflect that she was not willing to stay with him restituting conjugal rights. Not only she makes allegation about the illegal affair with Babitha, she pursues the same in her objections filed before Trial Court and also while cross examining PW-1 and examining herself. But she has not been able to substantiate the said serious allegation in any manner. In the cross examination also she has admitted about making allegation against her husband in regard to his roaming with the girl Babitha in car and going outside Bangalore during holidays. Inspite of putting suggestion to her that he did not have any connection with any girl much less Babitha, she has asserted time and again that he has connection with Babitha. Whereas in page 21 of her deposition, she has deposed that she does not know anything about Babitha. It is her case that she did not instruct her counsel while drafting objection statement and her affidavit of the petitioner having illicit relationship with Babitha. Admittedly RW-1 knows how to write and speak English and she has signed the pleadings only after understanding its contents. If her pleadings contain allegation against her husband in regard to his affair with Babitha, she could not turn around and say that she did not instruct her counsel while drafting objections. If that is so, she would not touch that aspect while examining herself or cross examining PW-1.

Taking into consideration that she chose to file false complaint against her husband and family members, as a result of which they had to face trial and ignominy and that she chose to make false and baseless allegation imputing his chastity, we can safely conclude that they are acts which amount to cruelty. When serious allegation is made against the husband imputing illicit relationship or extra marital affair in the written statement and evidence and inability even to probabilize the same, it constitutes mental cruelty. Initiating false criminal proceedings also amounts to cruelty within the purview of Section 13(1a) of Hindu Marriage Act. In the case of G.V.N. Kameswara Rao Vs. G. Jabilli, , it is held that that persistent non-cooperation and hostile attitude of one of the spouse to the another amounts to cruelty. It is further held that initiating false complaint and consequent loss of reputation and standing in. the society at the instances of one''s own spouse would amount to cruelty. On consideration of the circumstances and the evidence placed on record, we are of the considered opinion that respondent-wife has treated the petitioner with cruelty and petitioner was able to substantiate the same. The learned Judge has not properly evaluated the evidence in right perspective. Hence interference is absolutely required by us. Hence, we answer point No. 1 in the negative.

ORDER

Appeal is allowed.

The petition filed for decree of divorce on the ground of cruelty is allowed.

The marriage solemnized between the parties on 28.4.1989 at Venkateshwara Temple stands dissolved with immediate effect.

Parties to bear their own costs.