Sri. Vasanth Kumar. P vs Smt. Mamaths. G.M.

N. Kumar J.

This appeal is filed by the husband challenging the judgment and decree passed by the Family Court dismissing the petition for divorce on the ground of the petitioner failing to make out a case of desertion, a case of cruelty and also u/s 13(e).

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The petitioner/husband married the respondent/with on 19.06.1994 at Channarayapatna taluk according to the custom governing the parties. Two children are born from the said marriage. Accusing the petitioner of not maintaining herself and her children, the respondent filed a petition in C Mis.256/2002 for maintenance. The petition came to be allowed and a sum of Rs. 3,500/- was awarded as maintenance. Thereafter, the respondent filed a CC.No.45/2002 accusing the petitioner complaining of ill-treatment, cruelty u/s 498A of the Indian Penal Code. The petitioner was arrested. After trial, the petitioner came to be acquitted. Thereafter the petitioner got issued a legal notice calling upon the respondent to give consent for divorce. At she did sot agree, the petition was filed u/s 13(1)(ia) and (ib) and Section 13(c) for dissolution of the marriage. The grievance of the petitioner was that the respondent without just or any reasonable cause harrased the petitioner suspected him, acted cruelly, and deserted him and living separately for over 4 years. There is no possibility of co-habitation between the parties. The matrimonial bondage has broken having no chance to retrieve leading to irretrievable breakdown of matrimonial bondage. Therefore, there is no option except to end by divorce of the marriage. He further submitted that the respondent denied even visiting rights of children and never allowed to meet them, talk to them and outing with them by ill advising to add to the situation of no return point The right of the petitioner to visit the children and express his love and affection to them was never allowed by the respondent except seeking maintenance. A legal notice came to be issued. Thereafter a petition came to be filed for divorce.

After service of notion, the respondent entered appearance and filed her statement of objections. She stated that the petitioner has no night whatsoever to seek for divorce as he has not complied with an order passed in C.Mis.No. 256/2002 for payment of maintenance. The petitioner has not paid up to date maintenance as such the relief sought by the petitioner cannot be granted. She admits the marriage. She admits the birth of two sons V. Suman, aged about 10 years and V. Sagar, aged about 7 years. She also admits the filing of the petition for maintenance. It is her specific case that the petitioner started picking quarrels with her, ill-treated her and sent her out of the house along with minor sons. She is said to have taken shelter with her parents and got a complaint lodged at Nelamangala Police Station complaining of ill-treatment, cruelty under Section. 498(A) of the Indian Penal Code. The mental torture caused to the respondent by the petitioner had resulted her to approach the jurisdictional police. The petitioner had ill-treated the respondent on Several occasions and used to pick up quarrels for nothing. The petitioner himself has deserted the respondent without there being any reason or cause and further also the respondent was not at all looked after well during her stay at matrimonial home. All these acts of the petitioner amounted to cruelty of the petitioner. The respondent in order to stop the mental torture had to lodge a police complaint against the petitioner. Because of the intolerable conduct of the petitioner, the respondent was forced to leave the matrimonial home on account of rescuing herself and her two children. The respondent had never informed police with regard to the mental torture she faced during her stay and thereafter she came back to her parental home and resided there for time being. Later on she was forced to set up separate house for better future of her children. At no point of time the petitioner bad visited the respondent for the sake of co-habiting the matrimonial obligation. She denied that she denied the visiting rights of the petitioner to visit her children. She contends the petitioner has not made any effort to look after the welfare of his children and their education. When the children were admitted to hospital and treated for so many months, inspite of having knowledge, the petitioner failed to make any visit of his own children. The petitioner having taken second marriage never admitted to speak to his own children. From the above attitude of the petitioner, it is clear that the petitioner alone is responsible for all the consequences which he himself narrated above. The petitioner at no point of time made any efforts to express his love and affection to his own children, except making appearance before Court regularly. She is striving hard to lead her life in view of the intolerable conduct of the petitioner. The petitioner being & lecturer used to harass the impendent in all possible ways. This resulted to leave the matrimonial house. The petitioner has not made out any sincere efforts to reunite the matrimonial house. The respondent has undergone tare surgery for removing of kidney stones for which she has spent nearly Rs. 30,000/-. Having regard to non-payment of monthly maintenance, she is unable to maintain herself and her two sons, Further, the unable to lead her life. Therefore, she sought for dismissal of the petition.

On the aforesaid pleadings, the Trial Court framed the following points for its consideration:

The petitioner was examined as PW.1, He has produced two documents which are marked as Exs.P1 & P2. The respondent was examined as RW.1. She has produced 3 documents which are marked as Exs.R1 to R3.

The Trial Court on appreciation of the aforesaid oral and documentary evidence on record held that a case of cruelty, the case of desertion is not substantiated by the evidence on record. It also held that it is the petitioner who treated the respondent cruelly which resulted in a police complaint. The petitioner was acquitted in the said proceedings. It is because the respondent and the parents did not adduce evidence. That does not show that the compliant is false. It also held that the petitioner is responsible for the respondent withdrawing from his company. Petitioner made no efforts get back his wife and children. On the contrary as is clear from the legal notice he wanted her to give consent for divorce by mutual consent. In those circumstances, it held no case of cruelty of desertion is made out and the petition is liable to be dismissed. Accordingly, it dismissed the petition. Aggrieved by the said judgment and decree of the Family Court, the petitioner has preferred this appeal.

Learned counsel for the appellant assailing the impugned judgment and dacree contended that the respondent lodged a police complaint in pursuance of which he was arrested and ultimately when he was acquitted It shows that the allegations made against the petitioner are all false. When he was arrested, he was humiliated. He is working as a Lecturer. That apart the respondent has not joined him and performed her matrimonial obligation. When he was arrested, she has taken away all her belongings and she has stayed with her parents. Admittedly now for the last 9 years they have been living separately. Therefore, the matrimonial bondage is broken, there is no chance of getting them together and therefore, as held by the Apax Court in the case of Naveen Kohil vs. Nasla Kohil reported at AIR 2006 SCW 1550, a case for divorce is made out The Trial Court has not property appreciated the evidence on record and therefore, case for interference is made out.

We have gone through the petition filed for divorce, we have gone through the statement of objections, the legal notice issued prior to the filing of the petition which is the only notice issued shows the petitioner wanted the wife to give her consent for divorce. Because she did not give consent, he has filed this petition for divorce on the ground of desertion and cruelly. The word ''desertion'' is now defined under the Act Explanation to Section 13 reads as under:

Explanation.- In this sub-section, the expression ''desertion'' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

The material on record discloses that the petitioner/husband ill-treated the respondent. In those circumstance, she was forced out of the petitioners family. He did not maintain the wife and children. She has to file a petition for maintenance. It was contested and an order came to be passed for maintenance. It is the specific case of the respondent that she was ill-treated, he assaulted her cruelly. It is only when it became intolerable for her she was forced to lodge a police complaint. Acting on the police complaint, the petitioner was arrested. Therefore, this evidence on record which is not shown to be wrong by any acceptable evidence demonstrates the reason for the respondent withdrawing from the company of the petitioner is the conduct of the petitioner, ill-treating the respondent, acting cruelly. Therefore, it cannot be said there is no reasonable cause and the person who is the cause for the wife withdrawing from his company cannot be blessed with a decree for divorce, because he is the party who is resporaible for desertion. It is only when the deserting spouse deserts the other spouse without any reasonable cause it amounts to desertion which is a ground for divorce. In the instant case, as rightly held by the Family Court Judge the cause for withdrawal of the respondent/ wife from the company of the petitioner, is the conduct of the petitioner, Therefore, the rightly said the case for desertion is not made out.

Insofar as the case of cruelly is concerned, learned counsel relying on the aforesaid judgment in particular to the following passage:

To constitute cruelty, the conduct complained of should be ''grave and weighty'' so as to come to the conclusion 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''. The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law, Conduct has to be considered, in the background of several factors such as social status of parties, their education, physical and mentai conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent cruelty. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse''s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severing. it is for the Court to weigh the gravity It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty.

In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.

The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not a grant a decree of divorce would be disasirous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.

Unfortunately the law laid down in the aforesaid judgment does not apply to the facts of this case. In this case the petitioner inflicted cruelty on the wife and therefore, wife was compelled to lodges a police complaint because cruelty became intolerable. That is a right which is vested in a wife. She has not done anything which is illegal. She has exercised her lawful right and has not taken law into her hands. When the complaint was lodged against the petitioner, the police investigated and arrested the petitioner. He cannot hold the wife responsible for all this. He is the cause for this sorry state of affairs. When a criminal Court acquits the accused, the standard of proof that is required in a Criminal Court is proof beyond reasonable doubt and that is not a standard which is required in a civil matter, Therefore, there is nothing to indicate on record to hold that it is the respondent who has treated the petitioner cruelly. On the contrary merely because the criminal Court acquitted the petitioner, it cannot be said the case of cruelty pleaded by the respondent is not proved. In fact the acquittal in the criminal Court was because the complainant/wife did not step into the witness box and her parents have also not stepped into the witness box. Therefore, the learned Family Court Judge has carefully scrutinized the entire evidence on record, kept the settled legal position in mind, kept the statutory provisions applicable to the case and by reasoned order has held the case of cruelty is not proved. Therefore, it cannot be found fault with.

In the facts of this case we are satisfied that they are living separately. it is the petitioner who is the cause. He is the cause for respondent separating from him. He has net taken care of his wife, he has not taken care of his children when they were admitted to the Hospital. He never even bothered to go and look at them. He has ill-treated them. He did not make any attempt to get back to hit wife and children, go back and reside with them. On the contrary he seems to have demanded his wife to give consent for divorce. Similarly, it is abundantly clear the conduct of the petitioner disentitles him to any relief much less relief for divorce on the ground of cruelty, desertion, which he has miserably failed to make out. The case of the Apex. Court has no application to the facts of this case. According, appeal is dismissed. Consequently, application for direction is also dismissed.