In this detailed judgement, the Karnataka High Court, almost refuses alimony to a well educated Dr wife, who has been very cruel to her husband…
In addition to affirming the divorce degree by Lower Court, the high court grants 15 lakhs the kids, and a very paltry sum of rs 5 lakhs to the wife
The cruel conduct of the wife is very well exposed in this case !!!
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATE THIS THE 16TH DAY OF SEPTEMBER, 2016
THE HON'BLE DR. JUSTICE VINEET KOTHARI
THE HON'BLE MR. JUSTICE B. VEERAPPA
MFA NO. 200536 OF 2015 (FC) Between: Dr. Geetha W/o Dr. Mahantesh Patil Aged about 33 years, Occ: Doctor R/o Plot No. 49, Sector - III, Mal Maruti Extension, Shivabasavanagar District: Belagavi, Now residing temporarily in House No. 10-2, Sangameshwara Colony, S.B.Temple Road, Kalaburagi - 585 103.....Appellant (By Sri S.P.Shankar, Senior Counsel for Sri Kumar M.H. and Sri Sudarshan, Advocates) And: Dr. Mahantesh Patil S/o Dr. V.D.Patil Aged about 38 years, Occ: Doctor R/o No. 48/49, "Shivakrupa" Hindwadi, Belagavi ...Respondent (By Smt. Prameela Nesargi, Senior Counsel for Sri P.S.Malipatil, Advocate ) This MFA is filed under Section 19 (1) of Family Court act against the judgment and decree dated 21.02.2015 passed in M.C.No. 47/2013 on the file of the District Judge, Family Court at Kalaburagi, wherein partly allowing the petition filed u/s 13(1) (ia) (ib) of Hindu Marriage Act 1955.
This appeal having been heard and reserved on 26.08.2016 for pronouncement of Judgment, this day, B.VEERAPPA. J, delivered the following:
The wife has filed this appeal against the judgment and divorce decree dated 21.02.2015 made in M.C.No.47/2013 on the file of the District Judge and Family Court, Kalaburagi, allowing the petition in part filed by the respondent-husband under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act 1955, and dissolved the marriage between the appellant and respondent solemnized on 25.12.2005 at Millenium Garden, Tilakwadi, Belgaum, and the prayer of the husband for custody of the minor child was rejected.
2. The respondent-husband filed the petition under Section 13(i-a) and (i-b) of the Hindu Marriage Act against the appellant-wife for divorce contending that the marriage between the appellant and the respondent was arranged by the family elders and their marriage was solemnized as per Hindu rites and customs on 25.12.2005 at Millenium Garden, Tilakwadi, Belgaum. On the eve of marriage, the respondent’s family had arranged for the appellant to get her bridal make- up done at a beauty parlour run by a relative of the respondent. The appellant behaved very badly with the beautician and had an argument. As a result, the said beautician did not attend the marriage and the same was known to the respondent much later.
3. It is further contended by the respondent-husband that after their marriage, the couple left for their honeymoon to Goa on 26.12.2005 for few days. Even during the honeymoon period, the appellant-wife was getting phone calls from her mother constantly who used to instigate fights and quarrels between the appellant and the respondent. The appellant’s mother started poisoning the appellant’s mind against the parents of the respondent without any rhyme or reason. After returning from the honeymoon, the appellant was frequently going back to her parents’ place and at the drop of a pin, she was picking up the quarrels and fights over phone. Vinayak.WordPress.com
4. The respondent-husband further contended that in January, 2006, the respondent was studying for his exams of Fellowship in Pediatric Nephrology at Banglaore and the appellant was also supposed to study for the PG entrance in medicine. The appellant was constantly picking up quarrels and was harassing the respondent-husband leaving him with no peace of mind to concentrate on his studies. The respondent and his family members had extended all help and support both financially and morally to the appellant to pursue her PG studies and study for exams. But the appellant showed her total lack of interest towards her studies and instead was only picking up quarrels and keep going to her maternal home.
5. In February 2006, the respondent and the appellant had gone for a short trip to Munnar, Kerala State for few days. As usual, the appellant was picking up fights and after one such fight, even threatened to commit suicide. This came as a rude shock to the respondent-husband. Thereafter, it became a regular feature for the appellant to threaten the respondent by herself committing the suicide. As a result of which, the respondent began to feel very insecure about the appellant’s actions and behaviour. The respondent’s mother was taking care of the household chores and cooking as she did not want that to come in the way of appellant preparing for her PG entrance. However, the appellant used to humiliate the aged parents of the respondent for no rhyme or reason. The appellant ignored her studies and was frequently going to Gulbarga to her parent’s house. The appellant was constantly quarreling with the respondent and was threatening to commit suicide if the respondent did not accede to her wishes. On one such occasion, the appellant and respondent were going to a temple in the car, when theappellant picked up a fight and got out of the car and started walking on the road and the respondent with a great difficulty followed her and got her back in the car. The respondent tried to make the appellant seen reason and even family elders tried to advise her but all efforts to make the appellant to mend her behavior were in vain.
6. It is further contented by the respondent-husband that the appellant reluctantly attended the PG entrance exam in January 2007 but there was no change in the appellant’s behaviour. In March 2007, appellant’s father suffered heart problem and the respondent and his family members advised her to get her father to Belgaum for treatment. The respondent’s father was the Principal of JN Medical College Belgaum and under the supervision and with the help of his father, the appellant’s father under-went Angioplasty at KLE Hospital, Belgaum and the respondent even went ahead and cancelled the pre-arranged trip to North India at a great financial loss, so that he could be with the appellant’s father at the time when her father was ill. All the necessary care and attention was taken by the respondent and his parents.
7. Meanwhile, in the last week of May 2007, the appellant was confirmed to be pregnant. However, despite the advice of the obstetrician who had advised the appellant not to travel in the initial months of pregnancy, the appellant constantly travelled to Gulbarga and wilfully ignored all the advice and instructions of the Doctor causing untold trauma to the respondent. At one point, the respondent and his family members went to Gulbarga and requested the appellant to return back to their home but the appellant was adamant and started abusing the respondent of neglecting her parents and even made false accusations against the respondent and his parents. The respondent had also purchased a Maruti 800 car for the daily use of the appellant to make her comfortable.
8. The respondent-husband further contended that he was able to convince his wife-appellant to return back to his home with great difficulty. The appellant’s mother came and started staying with the appellant 15 days before the delivery and was constantly instigating the appellant to quarrel and pickup fights with the respondent. The respondent used to be calm as he was concerned about the appellant being towards the last stage of pregnancy and quietly put up with all the harassment, taunts and insults. The appellant gave birth to a baby girl on 24.02.2008 and all the expenses of the delivery were met by the respondent and his family members. The girl was named as Gauri and the birth of the child was an occasion of great joy for the respondent and his family as the child was the first grand child since sibling brother was a spastic child and even the respondent’s parents were happy and exited about the birth of the child. It is further contended that after 10 days of the delivery, the appellant had returned to Gulbarga with the infant. The respondent used to go to Gulbarga once in a fortnight to meet the appellant and child. The respondent and his parents used to travel frequently to Gulbarga with the necessary immunizations to be given to the child as the appellant was exhibiting a total lack of care and concern. The respondent and his parents went to Gulbarga to attend the child naming ceremony arranged by the appellant’s parents and returned to Belgaum with the appellant and child in the last week of June, 2008. The appellant’s mother also started staying with the respondent and the appellant and a maid servant was arranged to look after the child.
9. The appellant was picking up fights with the female maid servant and the appellant on her own selected a maid servant with whom also she was picking up fights. The appellant started behaving peculiarly and obsessively and was not allowing the respondent’s parents to touch or look after the baby Gauri and was creating unpleasant scenes, if the respondent’s parents even touched the baby. Added to the appellant’s behaviour was the unnecessary intervention of the appellant’s mother who was instigating the appellant to pick up quarrels with the respondent and his family. Theappellant accused the respondent’s parents of wanting to kill the baby. This hurted the respondent’s parents immensely.
10. The appellant then started insisting the respondent to set up a separate house. The appellant started abusing the respondent and his mother with abusive language and the appellant even went to the extent of slapping the respondent. Even after making a separate house, the behaviour of the appellant did not change. The appellant was not having enough attendance and ignored the warning of the college and the appellant even went to the extent of demanding the respondent’s father to misuse his official position in the medical college and waive her short attendance and ensure that she was given pass marks in the exams.
11. The appellant was constantly calling the respondent while he was in the clinic and used to demand that he should return home immediately even though he was in the midst of looking after patients or insurgical operations on the operation theatres. The appellant was going and creating ascene at the respondent’s father office causing him humiliation and insult in the society and the college/hospital campus.
12. The respondent had decided to celebrate the first birthday of child in Belgaum on 24.02.2009, and had even made all arrangements and invited family members and friends. However, the appellant without informing and without the consent of the respondent, took the child to Gulbarga on 17.02.2009 and did not return for the first year birthday celebration causing untold anguish and humiliation to the respondent and his family members. The respondent’s father had paid PG course fee of the appellant. The appellant once again demanded that she wanted to stay separately in another house. The respondent made a separate house for the appellant but she made it clear that she did not want the respondent or his parents coming over there. Vinayak.WordPress.com
13. The appellant since February 2009 has been staying separately and expressed clear indication that she does not want the respondent. That apart, the appellant has left the minor child in the care of her parents in Gulbarga. The marriage has irretrievably broken down. The respondent is entitled to the permanent custody of the minor child as the appellant is negligent in the care and welfare of the child. The appellant has deprived the respondent of meeting and bonding with the minor child in the child’s growing years causing untold and mental anguish trauma to the respondent. Therefore he filed the petition for divorce.
14. The appellant-Geetha who was the respondent before the Family Court filed her objections admitting the averments made in the paragraph No.3 and denied the allegations made in paragraph No.4 of the plaint and admitted that the respondent-husband was studying for his examinations of Fellowship in Pediatric Nephrology in Bangalore in January 2006 and the appellant-wife before the Family Court was alsostudying for her PG entrance in medicine and admitted the short trip to Munnar, Kerala and denied the fights between her and husband as alleged. She has also admitted that her father suffered from heart problem and the respondent and his family members advised her to get her father to Belgaum and also admitted that the respondent’s father being a Principal in JN Medical College used his official position and with the help of respondent’s father, the appellant’s father underwent for Angioplasty at KLE Belgaum and she has also admitted that the husband had cancelled the pre-arranged trip to North India as the father of the appellant was ill.
15. She has also admitted that in March 2007 she was pregnant and also admitted that the respondent had purchased Maruti Car 800 for daily use but not for the comforts of the appellant but it was purchased for comforts of all the family members. The birth of the female child Gauri on 24.02.2008 is admitted and also admitted that all the expenses of child was met by the respondent and his family members and also admitted that the birth of the child was an occasion for great joy for the respondent and his parents. She has further admitted that after one month of delivery, the appellant went to Gulbarga with the child and the parents of the respondent had also went for attending the naming ceremony and returned to Belgaum in June, 2008.
16. The appellant further denied that she was abusing the respondent and his mother and even going to the extent of slapping the respondent and contended that the entire story built up and cooked up one is far from truth. It is also denied that the respondent has setup a separate house at the instance of the appellant and appointed a maid servant to look after the child. It is also denied that she was advised by the college authorities and she was not having enough attendance and she has ignored the warnings of the college. She never demanded the respondent’s father to misuse his official position in the medical college and to waive her attendance and ensure that she was given pass marks in her examinations. She further contended that she was meritorious student and has attended the classes punctually. Hence, the question of shortage of attendance and influence of misuse of official capacity of the respondent’s father does not arise.
17. She further admitted that the respondent and appellant both had decided to celebrate the first year birthday of the child at Belgaum and made all the arrangements and invited family friends. But the allegation that the appellant without informing and without consent of the respondent took the child to Gulbarga on 17.02.2009 and did not return for the first year celebration is denied. She further admitted that the appellant returned to Belgaum in March 2009 and contends that she never left the child in the house of the parents at Gulbarga and also admitted that the entire college fee of Rs.7.5 Lakhs was paid by the respondent’s father and the appellant used to request her father to give them helping hand for other expenses. The appellant’s father has provided substantial amount to keep his daughter happy. She has further contended that the grounds alleged in the divorce petition against the appellant are all very flimsy grounds and are not cogent and the parties resided together till March 2010 and not till February 2009. The respondent left for Singapore and thereafter, his parents started picking up quarrels with the appellant and started to hate the appellant and poisoned the mind of the respondent and the appellant has no grudge against the respondent even now she loves the respondent and she is ready to reside with the respondent to lead happy and peaceful life.
18. She has further contended that the father of the appellant to keep his daughter happy had given 60 tolas of gold and other household and valuable articles and 12 Kgs., of silver articles in the marriage and has spent more than Rs.5,00,000/- in the marriage. The respondent and his parents started demanding the additional dowry of Rs.10,00,000/- from the appellant’s parents alleging that they have spent huge amount for PG course of the appellant etc. Hence, she prayed for dismissal of the divorce petition.
19. Based on the aforesaid pleadings, the Family Court framed the following points for consideration:
1. Whether petitioner proves that the respondent has subjected cruelty to the petitioner?
2. Whether petitioner proves that respondent has voluntarily deserted the petitioner continuously for a period of not less than 2 years, immediately proceeding the presentation of the present petition?
3. Whether the petitioner is entitled for custody of minor child?
4. What order or decree?
20. To substantiate his claim, the respondent-husband examined as PW.1 and marked the documents Exs.P1 and P2. The appellant-wife was examined as DW.1.
21. After hearing both the parties, the learned Judge of the Family Court has recorded a finding that the respondent- husband has proved that the appellant has subjected the respondent to cruelty and he has proved that the appellant has voluntarily deserted the respondent continuously for a period not less than of two years immediately preceding the presentation of the petition and the respondent-husband is not entitled to the custody of the child. Accordingly, by the impugned judgment and decree dated 21.02.2015 allowed the petition filed under Section 13(i-a) and (i-b) of the Hindu Marriage Act in part and the marriage dated 25.12.2005 dissolved and the prayer of the husband for custody of the minor child is rejected. Hence, the present appeal is filed by the wife.
22. The respondent-husband has not filed any appeal against the rejection of the custody of the minor child.
23. We have heard the learned counsel for the parties to the lis.
24. Sri S.P.Shankar, the learned Senior counsel for the appellant- wife has vehemently contended that the impugned judgment and decree passed by the Family Court is without any basis and the same is illegal for allowing claim for divorce on the ground of cruelty pleaded are vague wanting particulars and tailor made to file the petition. The respondent-husband filed a divorce petition on the ground of cruelty. The husband filed an affidavit of evidence prepared by an advocate and produced Ex.P1-Wedding Card and Ex.P2 the judgment and decree in O.S.NO.35/2012. An attempt is made to substantiate the alleged grounds of cruelty knowing fully well the oral evidence and material documents would hardly measure up to legal evidence. He further contended that the entire evidence on record would not point out that there was any misbehavior or cruelty committed by the appellant on the respondent which would make the respondent impossible to live with the appellant. The extent and the degree of the cruelty meted out entitling the respondent for decree of divorce is missing. The Family Court has failed to notice that the appellant-wife has made it very clear that she was ready and willing to reside with the respondent and to lead a happy married life. The decree passed by the Family Court based on the flimsy ground does not constitute a cruelty. Therefore, he sought to set aside the judgment and decree passed by the Family Court. The learned counsel for the appellant also filed written arguments reiterating the arguments advanced by the counsel for the appellant and sought to rely on the following judgments;
(a) Neelam Kumar Vs Dayarani reported in AIR 2011 SC 193 (1).
(b) Vishwanath Agarwal Vs Sarala Vishwanath Agarwal, reported in (2012) 7 SCC 288.
(c) K. Srinivasa Rao Vs D.A. Deepa, reported in (2013) 5 SCC 226.
25. Per contra, Smt. Pramila Nesargi, the learned Senior counsel for the respondent-husband sought to justify the decree passed by the Family Court and strenuously contended that the divorce sought by the respondent- husband is firstly on the ground of cruelty and contended that the appellant exhibited her rude behavior causing the beautician, a family relative of respondent not attending the marriage causing social embarrassment to the respondent. Even during Honeymoon the appellant picked up fights after receiving the calls from her mother and constantly harassed the respondent by picking up fights and in the month of February, 2006 at Munnar, Kerala, the appellant picked up fight and threatened of committing suicide and appellant picked up fight with the respondent and insulted him. On one instance, while going in a car to the temple along with the respondent, the appellant picked up fight and suddenly got down from the car and respondent had followed her to get her back. She got maternity leave from February 2008 to May 2008 by the college but she started to go to the medical college in February 2009. After post delivery the appellant stayed in Gulbarga till June 2008 and refused to come to Belgaum. The appellant has prevented the respondent and his family members from coming and meeting the child. She has further contended that the appellant was warned regarding the shortage of attendance and appellant has created scene in the office of respondent’s father who is Principal of JN Medical College, Belgaum, by forcing him to waive the attendance shortage. The appellant was constantly humiliating the respondent’s father and tried to misuse the official position and causing untold social embarrassment and she has also admitted in the cross-examination the help and support extended by the respondent and his family members both financially and morally. The appellant never allowed the respondent or his parents to touch the child and the appellant has made the father-in-law to arrange a separate rented accommodation to herself, child and her husband and entire college fees about 7.5 lakhs was paid by the respondent’s father and the same was admitted by the appellant in the cross-examination. She has also filed a suit against the respondent restraining the husband from taking second marriage and the said suit came to be dismissed as per Ex.P2. Therefore, she contends that all these grounds constitute cruelty. Therefore the Family Court was justified in decreeing the suit. Hence, she prays for dismissal of the present appeal.
26. The counsel for respondent also filed written arguments reiterating the arguments advanced by the learned Senior counsel for the respondent. The learned Senior counsel in support of her contentions sought to rely on the following judgments;
(a) Samar Ghosh Vs Jaya Ghosh reported in (2007) 4 SCC 511.
(b) K. Srinivas Rao Vs D.A.Deepa, reported in (2013) 5 SCC 226.
(c) Pankaj Mahajan Vs Dimple Alias Kajal, reported in (2011) 12 SCC 1.
(d) A. Jayachandra Vs Aneel Kumar, reported in (2005) 2 SCC 22.
(e) Ravikumar Vs Julmidevi, reported in (2010) 4 SCC 476.
(f) Praveen Mehta Vs Inderjit Mehta, reported in (2002) 5 SCC 706.
(g) Vijaykumar Ramchandra Bhate Vs Neela Vijaykumar, reported in (2003) 6 SCC 334.
(h) Malathi Ravi M.D. Vs B.V.Ravi M.D., reported in (2014) 7 SCC 640.
27. In view of the rival contentions urged by the learned counsel for the parties to the lis, the only point that arises for our consideration in the present appeal is; "Whether the appellant has made out any ground for interference with the impugned judgment and decree passed by the Family Court?
28. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the original records carefully.
29. Admittedly, in the present case, both the parties are highly qualified doctors, while the husband Dr Mahantesh Patil holds a Masters Degree in Pediatric Nephrology, the wife Dr Geetha holds a Masters Degree in Medicine which Masters Degree she, of course, completed after the marriage of the parties on 25.12.2005 from the college, where the husband’s father Dr V D Patil was the Principal of that college. From the Affidavit filed by the husband Dr Mahantesh Patil as Examination-in-Chief and who was subjected to detailed cross examination by the opposite counsel, the facts stated are glaring in as much as, right from the point of time of marriage of the parties, the quarrel and dispute seems to have started between them. The ill-treatment meted out to the lady of beauty parlor who was the relative of the husband, by the wife about her bridal make up and consequently the said relative even not attending the marriage itself was the beginning point and thereafter, during their honeymoon trip to Goa commencing from the very next date of marriage on 26.12.2005, and a visit to Munnar in Kerala shortly afterwards in February 2006, the parties do not seem to have been on a peaceful and enjoyable path of marriage but were rather quarelling from day one. The threats to commit suicide by the wife Geetha on small issues , her deliberately not pursuing her PG studies funded and financed by the husband’s family, her frequent visits to her parents home in Gulbarga from Belgaum where the husband was settled and living with his parents family, her child’s birth also at Belgaum taken care by the in-laws family and insulting and humiliating the aged parents of the husband and not allowing them even to touch the baby girl ‘Gauri’ born to her on 24.2.2008, her walking away from the car when both were going together and then the husband getting out of the car and virtually begging her to come with him in the public areas when they were going to a Temple, the Angioplasty surgery of the father of the wife performed in KLE Hospital, Belgaum under the supervision and help of father of the husband, providing a Maruti 800 car to her by the in-law’s family for pursuing her studies, the wife not allowing the first birthday of the child to be celebrated at Belgaum and taking away the child with her a few days prior to her birthday and not returning, though the Invitation cards had gone out to friends and relatives and as alleged by the husband in para 21 of the Affidavit, the respondent wife even going to the extent of slapping the petitioner husband, are serious acts which except with a bald denial from the side of the wife without any further positive assertions on her part to show any positive acts on her part, in our opinion, constitute mental cruelty looking to the high and respectable standard of family in which the husband’s family lives and enjoys a particular high level of reputation in Belgaum.
30. There are allegations and counter allegations against each other who are highly educated couple. It is the specific case of the respondent-husband to file the petition for divorce that the appellant is not cooperating from the date of marriage and she used to talk to her mother frequently in cell phone which caused much humiliation to the respondent. It is further case of the respondent-husband that in the short trip to Goa and Munnar, the appellant used to pickup quarrel with the respondent and in one of the incident, she threatened of committing suicide which caused the mental shock to the respondent and it became a regular feature for the appellant to threaten committing suicide as a result of which he began to feel very insecure about the appellant’s actions and behavior and one of the instance of the appellant- wife with regard to cruelty was that when they were going to temple in a car, the appellant suddenly picked up fight with the respondent and suddenly, the appellant got down from the car and started walking on the road which caused much humiliation and social embarrassment to him.
31. It is also admitted by the appellant that when her father was suffering from heart disease, angioplasty was made at Belgaum Hospital at the instance of respondent’s father which clearly indicates that they have not demanded any additional dowry as alleged. The appellant who is examined as DW.1 had admitted in her cross-examination that "child examination is commenced at Gulbarga and it is continued" it clearly indicates that the appellant has not allowed the respondent to look after the minor child" and it is also the fact that the respondent and appellant had decided to celebrate first year birthday of child Gauri at Belgaum and respondent had invited all his family members and friends but the appellant had gone to Gulbarga along with minor child which was cause much humiliation to the respondent and his parents and social embarrassment. Though the appellant has contended that the first year birthday of minor child was celebrated at Belgaum but no material produced before the Court to show that the same was celebrated in Belgaum. Even in another instance, when the appellant had been to Coimbatore for a period of one and half year for fellowship and she use to stay in the hostel accommodation during the said period and the minor child of the appellant was with the parents of the appellant and they had not allowed the parents of the respondent or the respondent to take the custody of the minor child which amounts to cruelty.
32. The respondent has produced Ex.P2 the judgment and decree made in O.S.No.35/2012 wherein the appellant has made allegations against the parents of the respondent that they had given ill-treatment and they had decided to perform second marriage to the respondent and demanded additional dowry. On the categorical statement made by DW.1 that the parents and himself have never made such efforts for second marriage and the said suit came to be dismissed, which is final and conclusive. The aforesaid circumstances would constitute cruelty by the appellant wife on the respondent husband.
33. We have carefully seen the cross-examination of the husband by the counsel for wife as also the Affidavit of the wife Geetha herself but to our dismay, we find that except bald denials of assertions made by the husband, the facts and events are all admitted by her, as narrated in the Affidavit filed by the husband. While admitting the events, dates and facts, whatever stated in the Affidavit went adverse to her, except making a bald denial thereof, she has failed to assert anything on her own which could persuade us to take a view that she positively tried to save the marriage and did not heap insults, humiliations, threats of suicide and mental cruelty which all assertions, facts and events taken together, in our opinion constitutes sufficient mental cruelty to hold that the husband could not have still kept on bearing with her and continue the marriage for which he appears to have made all efforts throughout except when finally breaking off in the year 2009 after the delivery of the baby girl born to her. It is not a normal wear and tear in the marriage held for a long period but a series of serious acts of deliberate mental cruelty heaped upon the husband. Such a ill treatment by a highly qualified person like a MD Doctor cannot be expected. It is absolutely unbecoming of her to behave in such a shabby manner with the highly qualified husband and other respected elder members of his family.
34. The provisions of Section 13(1a) and (1b) of the Hindu Marriage Act reads as under;
"13. Divorce. – (1) Any marriage solemnized, whether before or after the commencement of this Act, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind expected to live with the respondent.
Explanation. – In this clause,- (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment" or);
35. The plain reading of the provisions makes it clear that after the marriage, a person to file a petition for divorce has to establish that he was treated with cruelty by the wife and there must be a desertion not less than two years immediately preceding the presentation of the petition. The cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger through, of course, harm or injury to health, reputation or working character or the like would be an important consideration in determining whether the contention of the respondent wife amounts to cruelty or not were required for the husband must prove that the wife has treated him with such cruelty as to cause reasonable apprehension in the mind of the husband that it will be harmful or injuries for him to live with the wife. To prove desertion, the essential ingredients, in order to that it may furnish a ground for relief, (1) the factum of separation; (2) the intention to bring cohabitation permanently to an en – animus deserendi; (3) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period. The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period not less than two years immediately preceding the presentation of the petition.
36. Admittedly, in the present case, both oral and documentary evidence clearly indicates that from the beginning of the marriage, i.e., 25.12.2005, there is no co- operation between the appellant/wife and respondent/husband. From the date of marriage, the appellant used to cause much humiliation to the respondent. When they went for a short trip to Goa and Munnar, the appellant used to pick up quarrel with the respondent and used to threaten the respondent that she would commit suicide which caused mental shock to the respondent and it became a regular threatening to the respondent. Due to this attitude of the appellant, the respondent became to feel very insecure. One day, when both appellant and respondent were going in the car, the appellant got down from the car and started walking on the road which caused much humiliation to the respondent and social embarrassment. Another incident is that both the appellant and respondent decided to celebrate the first year birthday of their daughter Gauri at Belgaum. Respondent invited all the family members and friends to the occasion. But the appellant went to Gulbarga alongwith minor child Gauri which caused much humiliation to the respondent and his parents and social embarrassment. Definitely such an attitude of the appellant will cause a great mental harassment and agony which gives rise to a reasonable apprehension of harm or injury to health, reputation or professional working of husband and his friends. Such acts of the wife amounts to "cruelty" as to cause of reasonable apprehension in the mind of the husband. Admittedly, according to the husband, they last resided together on 17th February 2009 and the petition filed for divorce on 01.04.2011. It amounts to the factum of separation, the intention to bring co-habitation permanently to an end- animus deserendi, continued not less than two years immediately preceding the presentation of the petition. It is also not in dispute that the appellant/wife has been living separately from the respondent/husband for the past more than seven years and her attitude is well established that at no point of time, she has taken steps to join her husband and it is not her case that she had filed any petition under Section 9 of the Hindu Marriage Act for restitution of Conjugal Rights against the respondent/husband from the date she has separated from her husband or went out from the matrimonial home. Therefore, said conduct of the appellant amounts to desertion.
37. The legal position about the cruelty constituting a ground of divorce under S.13(1) (1a) of the Hindu Marriage Act, 1955 including mental cruelty was succinctly discussed by the Hon’ble Supreme Court in the case of Vishwanath Agarwal Vs Sarala Vishwanath Agarwal (2012) 7 SCC 288 and the Hon’ble Court held that the ground of divorce on cruelty has an inseparable nexus with human conduct and is always dependent on social strata or mileu to which the parties belong, their way of life, relationship, temperaments and omissions that are conditioned by their social status and in the facts of the case before the Court, where the wife published in newspapers that her husband was a womanizer and drunkard and wild allegations about the extra marital relationships were made in such newspapers, the Court held that it amounted to mental cruelty sufficient for award of a divorce decree to the aggrieved husband.
38. The Hon’ble Supreme Court in the case in K Srinivasa Rao Vs D A Deepa (2013) 5 SCC 226, held that filing of false complaints in criminal proceedings and making of indecent/defamatory statements in the complaints which ultimately result in acquittal of the spouse or/his relatives and filing of such repeated false complaints or cases in the courts or issuing notices or news items which may have an adverse impact on the business prospects or job of spouse are illustrative cases of mental cruelty which would warrant grant of divorce decree.
39. In Pankaj Mahajan Vs Dimple @ Kajal (2011) 12 SCC 1, in yet another case, the Hon’ble Supreme Court upheld the divorce decree on the ground that giving of repeated threats to commit suicide by the wife amounts to mental cruelty and when such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. Cruelty postulates a treatment of a spouse which creates a reasonable apprehension in the mind that it would be harmful or injurious for him to live with the other party. In the case before the Court, the respondent wife was suffering from a mental disorder i.e., schizophrenia and despite treatments funded by the side of the appellant husband through various doctors, it was found that the said disease was incurable in the case of the wife and therefore, the Court granted the divorce decree.
40. In U Sree Vs U Srinivas (2013) 2 SCC 114, the Hon’ble Supreme Court upheld the ground of mental cruelty, where it found that the wife was making wild allegations about conspiracy in the family of her husband to get him remarried for the greed of dowry without any evidence and showed no concern for public image of her husband and putting him in embarrassing situations leading to humiliation including his father and Guru with whom the son/husband took the music lessons and the wife showed immense dislike towards ‘Sadhana’ of music by her husband and exhibiting indifference and contempt to the traditions of teacher and disciple. Even in the said spectrum of these facts , the Court upheld the decree of dissolution of marriage on the ground of mental cruelty.
41. The Hon’ble Supreme Court, while considering the provisions of Section 13(1)(a) of the Hindu Marriage Act, in the case of Suman Kapur vs. Sudhir Kapur reported in (2009)1 SCC 422, at paragraphs 24 to 35, held as under: 24. It was further submitted that even otherwise, the wife is entitled to an appropriate relief from this Court inasmuch as from the evidence, it is clearly established that the High Court confirmed the decree passed by the trial Court on January 29, 2007 and before the period of filing Special Leave to Appeal to this Court expires, the respondent- husband entered into re-marriage with a third party and from the said wedlock, he is having an issue. It was, therefore, submitted that the husband has created a situation which had seriously prejudiced the appellant and the Court may not allow the respondent-husband to take undue advantage of the situation created by him.
25. The learned counsel for the respondent- husband, on the other hand, supported the decree passed by the trial Court and confirmed by the High Court. It was urged that the trial Court on the basis of evidence adduced by the parties recorded a finding of fact that the conduct and behaviour of the wife was in the nature of mental cruelty and accordingly allowed the petition filed by the husband. The High Court, though convinced on all grounds, did not think it fit to enter into correctness or otherwise of the finding recorded with regard to illegal termination of pregnancy by wife without the knowledge and consent of the husband since it was convinced that even otherwise on the basis of evidence on record, mental cruelty of the wife was established. It was not necessary for the High Court to consider and to record a finding as to illegal termination of pregnancy by wife since the decree passed by the trial Court could be confirmed. As far as mental cruelty is concerned, on the basis of other evidence and material on record, a finding had been recorded by the trial Court. The said finding was a finding of fact which was confirmed by the High Court. In exercise of jurisdiction under Article 136of the Constitution, this Court will not interfere with the said finding and hence the appeal deserves to be dismissed.
26. Regarding re-marriage by the husband, it was stated that after the decree of divorce passed by the trial Court, the husband did not re-marry. But the decree of divorce was confirmed by the High Court. The husband thereafter had taken the action which cannot be said to be illegal or otherwise unlawful. The wife, therefore, cannot take a technical contention that the husband should have waited till the period of filing Special Leave to Appeal to this Court would expire. It was, therefore, submitted that the appeal deserves to be dismissed.
27. Having heard the learned counsel for the parties, on the facts and in the circumstances of the case, in our opinion, it cannot be said that by recording a finding as to mental cruelty by the wife against the husband, the Courts below had committed any illegality.
28. Section 13 of the Hindu Marriage Act provides for grant of divorce in certain cases. It enacts that any marriage solemnized whether before or after the commencement of the Act may be dissolved on a petition presented either by the husband or by the wife on any of the grounds specified therein. Clause (ia) of sub- section (1) of Section 13 declares that a decree of divorce may be passed by a Court on the ground that after the solemnization of marriage, the opposite party has treated the petitioner with cruelty.
29. Now, it is well-settled that the expression `cruelty’ includes both (i) physical cruelty; and (ii) mental cruelty. The parties in this connection, invited our attention to English as well as Indian authorities. We will refer to some of them. Mental Cruelty
30. The concept of cruelty has been dealt with in Halsbury’s Laws of England [Vol.13, 4th Edition Para 1269] as under;
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaintof cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse".
31. In Gollins V. Gollins 1964 AC 644: (1963)2 All ER 966, Lord Reid stated: "No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weakness of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health".
32. Lord Pearce also made similar observations; "It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from normal standards of conjugal kindness causes injury to health or an apprehension of it, is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would considered that the conduct complained of is such that this spouse should not be called on to endure it". [see also Russell v. Russell, (1897) AC 395 : (1895- 99) All ER Rep 1].
33. The test of cruelty has been laid down by this court in the leading case of N.G. Dastane v. S. Dastane, (1975)2 SCC 326 thus: "The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent…."
34. In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr., (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. It was further stated that to establish legal cruelty, it is not necessary that physical violence should be used. Continuous cessation of marital intercourse or total indifference on the part of the husband towards marital obligations would lead to legal cruelty.
35. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, this Court examined the concept of cruelty. It was observed that the term `cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(ia) of the Act in the context of human conduct and behavior in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one spouse which adversely affects the other spouse. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of degree which is relevant. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
42. The Hon’ble Supreme Court, while considering cruelty in the case of Praveen Mehta vs. Inderjit Mehta reported in (2002)5 SCC 706, at paragraph 21, held as under: "21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other".
43. The different case laws stated supra in different facts and circumstances, therefore, we have to put alive and aware of the facts and circumstances of each and every individual case, while deciding the cases of divorce petitions on the ground of cruelty, especially mental cruelty under the provisions of Section 13(1(1a) of the Act which term is neither defined in the said law nor is capable of defined or couched in any statutory definitions.
44. In the present case, though only the two parties to the marriage were examined by the learned Family Court below, and no other relatives or witnesses appeared in the witness box before the Family Court nor any documentary evidence has been led except the invitation card and some photographs of marriage and therefore, we have to very carefully analyze the oral evidence led by the parties to the dispute itself before us and that makes our job more difficult. For the reasons stated supra, the point raised in the present appeal has to be answered in the negative holding that the appellant has not made out any grounds for interference with the impugned judgment and decree passed by the Family court. Vinayak.WordPress.com
45. In these circumstances while we uphold the decree of divorce granted by the Family Court below, we are not able to persuade ourselves to award custody of the child Gauri to the husband even though claimed by him, as we are of the opinion that the said child since her birth has remained not only in the custody of the wife Geetha , but she never had the benefit of love, affection and care of her father in her tender age until now and therefore, changing her custody from mother to father even though she has crossed the age of 5 years by now, may cause her severe mental jolt and set back which for maintaining and upholding the good welfare of the child concerned, we are not inclined to grant even though we are of the opinion that perhaps the father and his family can take better care of the child looking to her future educational and marriage requirements. We are of the opinion on account of the fact that even the wife Geetha is also a highly qualified Doctor and is employed in a government job and therefore, her financial security and ability to bring up her child properly, cannot be much doubted.
46. Before parting, we would like to touch the issue of permanent alimony on the application filed by the appellant wife. In view of her high qualifications & already secure Govt job and in view of already extended much financial support during her PG studies, we would not have awarded any permanent alimony in her favour but at the same time, we are alive to the existence of a minor girl child out of the wedlock. Therefore looking to the overall facts & circumstances of the case, we award a sum of Rs.20 lakhs (Twenty Lakhs Only) towards permanent alimony for both the appellant wife & the minor child as a one-time settlement to be made by the respondent-husband within six months. We further direct that out of the sum of Rs. 20 lakhs (Twenty Lakhs Only), a Fixed Deposit of Rs. 15 lakhs (Fifteen Lakhs Only) in the joint name of minor girl Gauri & her mother Dr.Geetha shall be made by respondent-husband for a period of ten years payable to the first name holder Ms. GAURI upon her attaining the majority. The remaining amount of Rs.5 lakhs (Five Lakhs Only) shall be given to the appellant-wife by the respondent-husband by way of cheque.
47. In view of the aforesaid reasons, we find no ground to interfere with the impugned judgment and decree passed by the Family Court under the appellate jurisdiction of this Court. Accordingly, the appeal is dismissed.