Sri Santhosh Nagammanavar vs Smt. M.S. Vanithashree

K.L. Manjunath, J.—These two appeals are preferred by the appellant, being aggrieved by the common judgment and decree dated 20-3-2011 passed in MC Nos. 259 and 258 of 2008, on the file of I Additional Principal Judge, Family Court, Bangalore. The appellant herein filed MC No 258 of 2008 against the respondent-wife u/s 13(1)(ia) of the Hindu Marriage Act, 1955 [for short, the Act], seeking a decree of divorce to dissolve the marriage solemnized between the parties at Bangalore on 8-5-2006. MC No 259 of 2008 was filed by the respondent-wife against the appellant herein u/s 9 of the Act for restitution of conjugal rights. The family court clubbed both matters together and disposed by the common judgment and decree.

Admitted facts in these appeals are that: The marriage between the parties was solemnized on 8-5-2006 at Krishnapriya convention hall, Kengeri, Bangalore. At the time of marriage, the appellant-husband was working as a doctor in United Kingdom and the respondent-wife, being a BE graduate, was a resident of Channapatna. After the marriage they lived together at Bangalore for a week or so. In the marriage, there are no issues.

Appellant-husband filed the petition for grant of a decree of divorce on the ground that the wife was not at all cooperative with him. According to him, on account of pressure of her mother, the respondent married the appellant and she was not at all interested to marry him. A few days later, both of them went to United Kingdom. In United Kingdom also, she did not cooperate with him and she was always used to sleep in a room and always picking up quarrel without any rhyme or reason. Even after the marriage, she was not willing to apply for passport and visa. On account of the pressure of the appellant-husband, she was coerced to apply for passport and thereafter they left to UK and lived there for a few months.

The appellant-husband has narrated a few instances in the petition, which, according to him, amount to causing mental cruelty. They are She would always sleep in a room all the time, except coming out for food, bath and to watch TV. She never cared for him. Once they went for a shopping in a supermarket, she picked up an almond oil bottle meant for cooking and kept in the trolley, saying that she wanted that for her hair. When the appellant-husband suggested to buy a hair product, she lost total control of her emotion and picked up quarrel in the presence of others. It is also the case of appellant-husband that the respondent-wife was always an adamant and argumentative-type lady. Every now and then, she used to threaten the appellant-husband stating that she would take divorce. On these grounds, the appellant-husband filed the petition for grant of a decree of divorce.

The petition filed by the husband was opposed by the respondent-wife. According to her, she was always cooperating with the husband and that she denied the allegations made against her that she never used to come out of the room when she was in UK and she denied all other allegations against her as false and frivolous.

The respondent herein has filed the other petition u/s 9 of the Act for restitution of conjugal rights, stating that she is ready and willing to join her husband.

Both petitions were heard together and common evidence was recorded. Appellant-husband examined himself as PW1 and got marked Ex. P1 to 16. The respondent-wife examined herself as RW1 and produced documentary evidence at Ex. R1 to 4. The learned judge of the Family Court, after hearing the parties, formulated the following points for his consideration:

1) Whether the husband is entitled for a decree of divorce on the ground of cruelty?

2) Whether the wife is entitled for a decree for restitution of conjugal rights?

After considering the evidence let in by the parties, the Family Court answered the first point in the negative and the second point in the affirmative. In the result, the petition filed by the appellant husband for grant of a decree of divorce came to be dismissed and the petition filed by the respondent-wife for restitution of conjugal rights came to be allowed. Challenging this common order, the present appeals are filed.

Reiterating the grounds urged in the appeals, learned counsel for the appellant contends that the family court did not consider that the respondent is a loose-character lady and she was addicted to liquor and that she had many boy friends prior to the marriage and that she was also in the habit of watching blue films. The trial court did not consider the evidence let in by the parties. According to him, due to incompatibility, the appellant-husband cannot stay together with the respondent. In the circumstances, he requests the court to allow the appeals.

Per contra, learned counsel for the respondent-wife submits that the family court, after appreciating the evidence let in by both parties, more particularly as discussed from paragraphs 22 to 26 of the judgment, opined that for the first time, without there being any pleadings, in the evidence an attempt is made by the husband to make all sorts of allegations against the wife as if she had many boy friends before the marriage and that she used to watch blue films along with her boy friends. These allegations are nothing but a cruelty meted out to the wife by the husband. On this ground alone, the appellant is not entitled to get a decree of divorce. He further submits that a false allegation is also made by the appellant as if the respondent-wife was consuming wine and vodka. He further submits that even if it is held that on some occasions respondent has lost her temper, it is only after knowing character of the appellant on seeing Ex. R1 and Ex. R2 photographs, wherein the appellant-husband is found with a UK lady hugging each other, sleeping on the bed in a compromise position, which shows that he had an affair with the said lady. When the same was questioned, the appellant-husband filed the petition with such false and frivolous allegations.

Having heard the learned counsel for the parties, the points that arise for our consideration in these appeals are as under:

i) Whether the appellant-husband has made out a case for grant of a decree of divorce, on the ground of cruelty?

ii) Whether the judgment and decree passed by the family court, granting restitution of conjugal rights in favour of the respondent-wife requires to be interfered with?

As stated supra, the relationship between the parties is not in dispute. The appellant-husband is working in UK as a doctor. The respondent is an engineering graduate. The marriage is an arranged one, solemnized in 2006. The petitions were filed in the year 2008 i.e. within two years from the date of marriage. The allegations made in the petition filed by the appellant-husband are trivial in nature. On the contrary, forgetting his own pleadings, the husband has made wild allegations against his wife describing her as a loose-character lady and that she had boy friends prior to the marriage and that she was watching blue films along with her boy friends. It is also alleged that the wife was addicted to alcohol In order to prove that she was addicted to alcohol, the husband has relied upon Ex. P12 to 15, photographs, which show the respondent in the company of friends of the appellant. If some of the friends of the appellant and members of their families were found in a group wherein a glass of beer was kept on the teapoy, it cannot be inferred by any court that the respondent-wife is addicted to drinking. Moreover, the said allegation is not averred in the petition by the appellant. Any amount of evidence without there being a pleading is of no consequence. Based on such evidence, court cannot grant a decree of divorce in favour of the appellant-husband. When the appellant, without there being any material, is doubting the conduct of his wife, the same amounts to a cruelty to the respondent-wife. As rightly pointed out by the learned judge of the family court, and as discussed in paragraphs 24 to 27, it is clear to us that in order to make out a false case against the wife, the petition is filed by the husband with false and frivolous grounds. In view of Ex. R1 and 2, even if the wife has questioned the appellant-husband about his relationship with a UK lady found along with the him at Ex. R1 and 2 in a compromise position in a bed and on account of seeing such photographs has lost her temper, this court cannot hold that the same could be a ground for the court to grant a decree of divorce. Naturally, if a wife comes across a photograph of such nature, would certainly entertain a doubt and that itself cannot be a ground for us to hold that the respondent-wife is a ill-tempered lady. Therefore, we do not see any merits in the petition filed by the appellant-husband for grant of a decree of divorce.

Having held so, if the family court, based on the evidence let in by the parties, has come to the conclusion that the respondent-wife is entitled for a decree of restitution of conjugal rights, this court cannot allow the appeal filed by the husband challenging the said decree. in the result, both appeals are dismissed and the judgment and decree passed by the family court is upheld.