Sri Y.V. Raghuveer vs Smt S. Sumana

A.V. Chandrashekara, J.—This is an appeal filed by the husband against the dismissal of his petition filed u/s 13(1)(ia) and (ib) and (1-A)(ii) of Hindu Marriage Act, 1955. He had sought for the decree of divorce on the ground of cruelty desertion and non-restitution of conjugal rights. The said petition has been dismissed by a considered order dated 24.11.2009. It is this order which is called in question on various grounds as set out in the appeal memo. The appellant was the petitioner and the respondent herein was the respondent in M.C. No. 309/2003 which was pending on the file of III Addl. Prl. Judge, Family Court, Bangalore. The impugned order is dated 24.11.2009. The parties will be referred to as the petitioner and respondent as per their ranking in the Trial Court.

The marriage between the parties was solemnized on 30.06.1999 as per their custom and thereafter both the parties led their martial life at Bangalore. According to him, ever since the marriage, the respondent had the habit of intermittently visiting her mothers house and residing therein without his permission and thereby she was not properly responding to the matrimonial obligations. According to him, he persuaded her to come back and join him. Her behaviour was stated to be adamant and she used to put unnecessary conditions to him stating that he should not interfere with her affairs and her movements. According to him, she was asserting that she had all the liberty to go to any place at any point of time and that she should not be questioned by him in any manner. Since he did not want any conflict with the respondent, he was adjusting with her somehow. The respondent gave birth to a male child on 26.03.2000 and thereafter did not return from her parents house to the matrimonial home and inspite of his best efforts he could not get her back.

Thereafter he chose to file a petition u/s 9 of Hindu Marriage Act in M.C. No. 230/2001 seeking restitution of conjugal rights. During the pendency of the said petition, the matter was compromised as the respondent had agreed to join him along with the child. Hence the said petition was disposed of on 19.01.2002. Thereafter the respondent went back to her house and did not join the petitioner to lead normal marital life. Though the petitioner tried his best to get her back, the decree obtained in M.C. No. 230/2001 was not executed. Her conduct is stated to be cruel and she is stated to have deserted him for more than a period of two years without any cause.

The respondent had filed detailed objections denying all the material averments in regard to desertion and cruelty. It is her case that the petitioner was never interested to lead happy marital life with her and that he never performed his marital obligations towards her. According to her, the petitioner and his parents were also bent upon living on her salary since she is a Government employee. They were demanding money from her and were insisting that she should handover the entire salary to them, is her case. On failure to do so, the petitioner and his parents used to abuse her in foul language and ultimately threw her out of the matrimonial home. Being left with no other avenue, she went to her parent''s house and started living with her mother. Later on, the petitioner got issued a legal notice on 20.12.2000 and thereafter chose to file a petition u/s 9 of the Hindu Marriage Act in M.C. No. 230/2001. Filing of this petition, according to her, was a clear conspiracy hatched by him and his parents. Inspite of the same, she was ready to go back and lead a marital life with him but the petitioner did not allow her to join him.

The legal notice got issued by him was suitably replied. The said legal notice is said to be ruse for filing the present petition. The various allegations made against her are unfounded and hence she had prayed for dismissal of the petition.

Ultimately, petitioner is examined as PW 1 and seven exhibits have been got marked and respondent is examined as R.W. 1 and two exhibits have been got marked on her behalf.

After hearing the arguments, the learned Judge has dismissed the petition by formulating the following two points:

Whether the petitioner is entitled for decree of divorce on the ground of cruelty and desertion?

What order?

Several grounds have been urged in the appeal memo contending that the Trial Court has not properly analysed the oral and documentary evidence in right perspective and that it has adopted a wrong approach to the real state of affairs without looking to the circumstances under which he had got the petition filed in M.C. No. 230/2001 dismissed.

It is further contended that the respondent not only humiliated him, but also his old aged parents and that she was responsible for the problems in the family. According to him, she had been causing cruelty by going to criminal courts for the last five years and pursuing the same. ''Marriage is stated to have been irretrievably broken down and there are no chances of living together. She is stated to have deserted him without any reason. Hence it is prayed to allow the appeal and set aside the order of dismissal of his petition.

We have heard the arguments of the learned counsel appearing for the respondent at length and he has supported the impugned order. After going through the records and hearing the arguments, the following points arise for our consideration:

Whether the learned Judge of the Family Court is justified in holding that the petitioner has failed to prove the allegation of cruelty and desertion?

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

After the marriage both of them led a marital life at Bangalore and a male child was born to them. These facts are not disputed. Respondent is working as Assistant Employment Officer at Bangalore and drawing handsome salary. Ever since their marriage there was one difference or the oilier between the two and as a result of the same, there was incompatibility. What is argued before this Court is that M.C. No. 230/2001 was got dismissed by the petitioner in collusion with his parents and later on, he did not allow her to join him. Petitioner had made his effort by filing petition u/s 9 of Hindu Marriage Act seeking restitution of conjugal rights on 12.02.2001. She had contested the same and it was dismissed, as parties had reconciled between themselves. The petition came to be dismissed on 19.01.2002 i.e., almost after a lapse of 11 months from the date of filing of the petition and getting the petition dismissed by the petitioner cannot be found fault with because there was reconciliation. But she did not join him inspite the petition having got dismissed. Hence he got issued a notice on 18.02.2002 the copy of which is marked as Ex. P3 calling upon her to find out a positive solution in respect) of the matrimonial differences. He had brought to her notice that inspite of the reconciliation being reported to the Court, she did not join the matrimonial home. In fact, he had called upon her to talk to him without any second thought about the marital life. The said notice was got replied on 27.02.2002 making all unnecessary allegations against him stating that she was cruelly treated by him and his family members. Ex. P4 is another notice got issued by the petitioner on 22.02.2003 stating that he is interested in getting a decree of divorce as she had not responded to his call. He had called upon her to cooperate with him to obtain a decree of divorce by filing a mutual petition. Ex. P5 is the reply dated 29.01.2003 stating that if he were to take any action the same will be resisted.

During the time when the notices were got exchanged between the parties the respondent-wife was not at all living with him in his house. She was living separately with her son.

It is curious to note that on 06.06.2003 she chose to file a complaint before the Basavanagudi Police Station against the petitioner and his parents for offences punishable u/s 498(A) of IPC and a case was registered in C.R. No. 7/2003 dated 09.05.2003. The accused were arrested by the police and produced before the jurisdictional Magistrate and all of them were remanded to judicial custody. The bail application was allowed on the next day after considering the objections filed by the learned Asst. Public Prosecutor. It is very unfortunate that the petitioner chose to lodge a complaint to the police seven years after the marriage. She even went to the extent of getting them arrested and remanded to judicial custody. The copy of the complaint lodged to the police is also part of the FIR registered in Cr. No. 7/2003. This can only be considered as a counterblast to his notice. Ex. P7 is the certified copy of the remand application submitted by the jurisdictional police.

Many a times it so happens that the wife may be persuaded to file a complaint so that the husband could mend himself and lead a marital life. In the present case, she pursued the complaint to its logical end and chargesheet was filed after concluding the investigation. Petitioner was convicted on 03.07.2007 for offence punishable u/s 498(A) of IPC to undergo S.I. for two years and to pay Rs. 25,000/-. Parents of PW-1 have been acquitted in this case and this acquittal is because of there being no incriminating evidence at all.

I have gone through the certified copy of the judgment marked as Ex. P8 relating to C.C. No. 13708/2003 registered for offence punishable u/s 498(A) of IPC. On reading the entire judgment it appears that the petitioner did not take care of her when she had delivered a baby and that she had been advised by the Doctors to be careful. Inspite of asking him to be with her, he did not stay back but went on a tour to Andaman. Of course this has been considered as the main cruelty to convict the petitioner. The petitioner has filed an appeal before the Sessions Court against the said judgment of conviction and sentence. So far as the allegations of cruelty meted out by her in-laws, the learned Addl. Chief Metropolitan Magistrate, has come to the conclusion that there was absolutely no material to substantiate such allegation.

During the period in which she was allegedly harassed by her husband, her in-laws were not in Bangalore. She has admitted in her cross-examination that her father-in-law retired from service on 31.03.2000 and thereafter both her in-laws came from Shimoga to Bangalore and joined their son. She has specifically deposed that at that time, she was residing in the house of her mother and that her father-in-law joined a different duty at Mysore. That portion of the cross-examination which is relevant to hold that there was no allegation of cruelty against in-laws, has been reproduced in paragraph-23 of the judgment of the criminal Court.

It is curious to note that she has challenged the order of acquittal passed against her in laws. She has admitted to that effect in page-13 of her cross-examination. This would go to show that she is very much bent upon taking revenge not only against her husband but also against her in-laws though they are not connected with the alleged cruelty in any manner. She has admitted that on the very day of her appearance before the Family Court in M.C. No. 230/2001, she had stated that she was ready to go with her husband. When she came out of the Court haft her husband was not to be found and therefore she went straight away to mother''s house.

She has denied the suggestion put to her that she was trying to send her in-laws and her husband to the jail and has not shown any interest to live with her husband. But in the very next sentence she has admitted the suggestion as true that even today she has been praying before the Criminal Court that her in-laws and her husband should be sent to jail. It is not as though the differences started between them many years after the marriage. She has admitted the suggestion as to that difference of opinion increased after she came to her mother''s house for delivery. She has relied upon Ex. R1, a letter stated to have been written to her. If that had been really sent to her, she should be the custodian of the original. The original of Ex. R1 has not been produced. Therefore, a suggestion is put to her that it is concocted to suit her purpose. Of course she has denied the suggestion. Hence much credence cannot be attached to Ex. R1 since it is a Xerox copy and Xerox copy is inadmissible in evidence. At one breath she says that she could live with her husband but in another breath she has made it clear that she wanted her husband and in-laws to be convicted at any cost. The relevant portion of her evidence is as follows:

I have not stated with my husband after the disposal of the criminal case that I am ready and willing to join him. It is true that I have preferred an appeal challenging the acquittal of the parents of my husband in the criminal case. It is true that after filing the criminal case my husband and my in-laws were arrested by the police. It is incorrect to say that because of that reason there cannot be any cordiality between me and my husband. It is false to say that in the criminal case I was trying to send my in-laws and husband to jail and not shown any interest to live with my husband. It is true that even to-day I am praying before the Criminal Court that my in laws and my husband should be sent to jail.

The learned Judge of the Family Court has brushed aside all these important admissions which go to the very root of the case. The respondent not only filed a case but also pursued it to its logical end. Even after the acquittal of her in-laws she was very much bent upon to file an appeal and get them convicted. In fact the order of convicting accused No. 1 and acquitting accused Nos. 2 and 3 is dated 30.06.2007. But her further cross-examination was done on 26.06.2009 and even on that day she had asserted that she had filed a petition challenging acquittal order of her in-laws and that she would pray the criminal court to send her husband and in-laws to jail.

What is observed by the Family Court is that the conduct of the respondent cannot be termed as an act of cruelty within the meaning of provisions of Hindu Marriage Act. We are unable to accept that reasoning. The learned Judge has not properly evaluated the evidence in right perspective keeping in mind the various events that have taken place after the marriage. She denies the suggestion put to her that as a result of the criminal case she has no intention to live with the petitioner. But her own conduct in the court that she wants them to be convicted speaks otherwise.

During the course of hearing, the parties were present and we made honest efforts to know whether there is any scope for reconciliation. Both the parties are firm on their respective stand. They have been living apart from 2000 and three years have already elapsed. Both the parties are highly educated and well placed in life. They know the consequences of the legal battle. In fact there has been long period of continuous separation. It would be proper to summarise that the matrimonial bond is beyond repair and the marriage has only become a fiction though supported by a legal tie. Both the parties have reached a point of no return. A workable solution is certainly not possible and parties cannot reconcile themselves by forgetting their past as a bad dream. The marriage has virtually broken down irretrievably. Whatever little chances she had to join the matrimonial home and lead a marital life has been lost. She chose to file a criminal case only after filing the divorce petition and it took the same to the logical end. She is bent upon getting their in-laws also convicted.

Under such circumstances, we cannot accept the petitioner to live with her as a husband and continue the marital tie. In fact the conduct of the respondent amounts to cruelty apart from the marriage having irretrievably broken down. Hence, the learned Judge is not justified in dismissing the petition. On reassessment of the evidence and the hard realities of the case, the petition will have to be allowed by granting the decree of divorce. Hence, we answer point No. 1 in the negative.

Point No. 2

In view of our finding on point No. 1, the appeal will have to be allowed and the judgment of dismissal of petition filed in M.C. No. 309/2003 will have to be allowed. Consequently, the divorce will have to be granted.

ORDER

Appeal filed challenging the impugned order dated 24.11.2009 passed in M.C. No. 309/2003 by the III Addl. Prl. Judge, Family Court, Bangalore, is allowed. Consequently, the petition filed in M.C. No. 309/2003 is allowed and the marriage solemnized between the parties on 30.06.1999 at Bangalore, has been dissolved with immediate effect.