IN
THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A. NO.1625/2016
BETWEEN:
SMT. B.G. HEMALATHA
W/O D.S. KUMARASWAMY
D/O SRI. GANGADHARAMURTHY
AGED ABOUT 34 YEARS
WRONGLY SHOWN AS R/O KURUPETE
KANAKAPURA, RAMANAGARA DISTRICT
R/O NO.42, NEAR OLD CHECK POST
MAGADI MAIN ROAD, MEENAKASHINAGAR
KAMAKASHIPALYA, BANGALORE - 560 079.
...APPELLANT
(BY SRI. Y.S. SHIVAPRASAD, ADVOCATE)
AND:
1. D.S. KUMARASWAMY
S/O SHIVANNA
AGED ABOUT 39 YEARS
ADVOCATE
R/O DODDANARAVANGALA VILLAGE
BELLAVI HOBLI, TUMKUR DISTRICT - 572 107
PRESENTLY RESIDING AT NO.34
MARUTHI KRUPA, 5TH MAIN ROAD
KAMAKSHIPALYA BANGALORE - 560 079.
2. SMT. JAYALAKSHMI
W/O D.S. KUMARSWAMY
MAJOR
NO.36, MARUTHI KRUPA
5TH MAIN ROAD
KAMAKSHIPALYA BANGALORE - 560 079.
...RESPONDENTS
(BY SRI. SIDDHARTH B MUCHANDI, ADVOATE FOR
R-1 AND R-2 )
THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE
DATED: 31.10.2014 PASSED IN M.C. NO.41/2014 ON THE
FILE OF THE SENIOR CIVIL JUDGE, KANAKAPURA,
ALLOWING THE PETITION FILED U/S 13(A)(1A) OF HINDU
MARRIAGE ACT.
THIS APPEAL COMING ON FOR FINAL DISPOSAL THIS DAY,
ARAVIND KUMAR J, MADE THE FOLLOWING:
ORDER
Respondent-wife
has filed this appeal challenging the judgment and decree passed in
M.C.No.41/2014 (old No.88/2013), whereunder petition filed by the
husband under Section 13 (1)(ia) of Hindu
Marriage Act, 1955 (hereinafter referred to as 'Act' for short)
for dissolution of the marriage dated 12.06.2009 came to be allowed.
2.
Facts in brief which has been lead to filing of this appeal can be
crystallized as under:
There
is no dispute to the fact that appellant and respondent are husband
and wife and their marriage came to be solemnized on 12.06.2009 and
registered in the office of Registrar of Marriages, Kanakapura. A
female child who was later named Ishanvi was born out of the said
marital relationship. On account of certain disputes having been
arisen, it resulted in a petition being filed by the
petitioner-husband in M.C.No.41/2014. On registration of the petition
notice came to be ordered and respondent-wife came to be placed
exparte. Husband got himself examined as P.W.1 and got marked two
documents as Exs.P.1 and P.2. After evaluating the evidence available
on record, learned trial Judge has arrived at a conclusion that
evidence of the petitioner had stood unrebutted and as such has
arrived at a conclusion that respondent-wife had no intention to
discharge her marital obligation and also on the ground that she has
not appeared and contested the matter. In other words, trial Judge
has accepted the theory put forth by the husband and has allowed the
petition. Hence, this appeal.
3.
Second respondent herein (second wife of first respondent) came to be
impleaded by order dated 29.06.2016 and it was observed by the
Coordinate Bench to the following effect:
"Statement
of objections is filed. However, considering the facts and
circumstances and more particularly the aspect that as per the
appellant, exparte decree was obtained, wherein correct address was
not given, we find that a lenient view deserves to be taken, more
particularly because, the appellant is the wife. The additional
aspect is that the respondent after decree has remarried on
26.02.2016. In the circumstances, we find that the delay deserves to
be condoned. Hence, condoned. I.A.No.1/2016 is disposed of
accordingly."
4.
We have heard the arguments of Sriyuths Y.S.Shivaprasad, learned
counsel appearing for appellant and Siddharth B.Muchandi, learned
counsel appearing for respondent Nos.1 and 2. Perused the records
secured from the jurisdictional Court.
5.
It is the contention of Sri.Y.S.Shivaprasad, learned counsel
appearing for appellant that address of the appellant which has been
furnished before the trial Judge by husband is an incorrect address
and with an intention of obtaining exparte decree respondent played
fraud not only on the appellant but also on the Court. He would also
contend that appellant was unable to bear the torture meted out by
respondent-husband and on being thrown out from the matrimonial home,
had to live in a rented premise at Kamakshipalya, Bengaluru which
respondent was well aware of and yet, he had furnished erroneous
address.
5(1).
He would submit that even otherwise the order passed by the trial
Judge is liable to be set aside on account of ingredients of Section
13(1)(ia) of the Act having not been made out by the
respondent-husband. He would also submit that at no point of time,
appellant was residing in the address furnished before the trial
Court and said address is furnished by husband only because marriage
came to be solemnized at a temple in Kanakapura. Hence, he prays for
order passed by the trial Judge being set aside.
6.
Per contra, Sri. Siddharth B.Muchandi, learned counsel appearing for
respondent Nos.1 and 2 supports the impugned order and contends that
Marriage Certificate-Ex.P.1 would clearly indicate that the address
of appellant-wife as Kanakapura, Kurupet and as such said address was
furnished by husband. He would also contend that appellant had
refused to receive the notice and as such trial Judge was perforced
to place her exparte and in the light of unrebutted evidence that was
available before the trial Court, the same evidence tendered by the
husband came to be accepted and petition has been allowed rightly.
7.
Having heard the learned Advocates appearing for parties and on
perusal of the records, we are of the considered view that following
points would arise for our consideration:
(i)
Whether trial Judge was right in placing the appellant-wife exparte
and proceed to adjudicate the matter on merits?
(ii)
Whether respondent-husband had proved the ingredients of Section
13(1)(ia) of the Hindu Marriage Act, 1955 entitling him for grant
of divorce?
(iii)
What order?
RE:
POINT No.1:
8.
At the outset, it requires to be noticed that the respondent-husband
is a practicing advocate at Bengaluru and he is well conservant with
all nuances of manner, method and mode in which the service of notice
requires to be effected on respondents/defendants and, that too, in
matrimonial cases. This Court and Hon'ble Apex Court have
consistently held that in matrimonial matters Family Courts/trial
Courts should be slow in accepting the service report where postal
shara or shara of the bailiff is to the effect "refused".
9.
It is in this background, the purport of Order V Rule 19 of CPC will
have to be noticed and it reads:
"19.
Examination of serving officer:- Where a summons is returned under
Rule 17, the Court shall, if the return under that rule has not been
verified by the affidavit of the serving officer, and may, if it has
been so verified, examine the serving officer on oath, or cause him
to be so examined by another Court, touching his proceedings, and may
make such further enquiry in the matter as it thinks fit; and shall
either declare that the summons has been duly served or order such
service as it thinks fit."
(emphasis
supplied by us)
10.
A plain reading of above Rule would clearly indicate that it is
mandatory in nature or in other words, it is mandatory on the part of
the process server to have filed an affidavit and in case serving
officer has so verified, then it is obligatory on the part of the
Court to examine the said process server.
11.
The records of the trial Court which has been secured, has been
perused by us and shara by the bailiff reads as under:
12.
Based on the said report, the learned trial Judge has held service of
notice as sufficient. Neither the bailiff was examined by the Court
nor the affidavit of bailiff was filed before the trial Judge. On the
short ground that service of notice has not been effected, in
compliance of Order V Rule 17 read with Rule 19 CPC, it has to be
necessarily held there is non-compliance of Order V Rule 19 CPC by
the trial Court and as such, order of the trial Court placing
appellant herein exparte by order dated 31.10.2014, is liable to be
set aside.
13.
Even otherwise, as rightly pointed out by the learned counsel
appearing for the appellant, the parties to the petition after
marriage, which came to be registered at Kanakapura were living
together at No.32, C/o Nanjaiah, Gadi Muddanna road, Kamakshipalya,
Bengaluru-79. It is claimed by the wife that on account of she having
been thrown out from her matrimonial home, she was residing at
premises No.42, near old check post, Meenakshinagar, Kamakshipalya,
Bengaluru-79. It is her assertion in the appeal memorandum that she
was residing in that address even when petition for divorce was
filed. No doubt there is no material placed on record by the
appellant in proof of her residence and it was in the know-how of her
husband- respondent herein. Whereas, husband has relied upon Marriage
Certificate-Ex.P-1 to contend, appellant was residing in said
address.
14.
Be that as it may. The claim of the parties with regard to the place
of residence is a statement made by each of them or it is an oath
against oath, which cannot be gone into by this Court. As observed by
us herein above, on the ground of there being no effective service of
notice of the petition filed for divorce on the respondent-wife,
order of trial Judge has to be set aside. Accordingly, point No.1 is
answered in favour of the appellant-wife and against
respondent-husband. RE: POINT No.2:
15.
The learned trial Judge has allowed the petition filed by the husband
under Section
13(1)(ia) of the Act. The necessary ingredient which requires to
be proved under Section
13(1)(ia) is that after marriage the petitioner having been
treated with cruelty. On the one hand, husband has contended that his
wife from the date of marriage has been very irresponsible, arrogant
and not taking care of petitioner in any manner. There is a bald
assertion that she started treating petitioner with cruelty and had
abused him in vulgar language and on being advised by him and his
relatives, she developed ill- will and grudge against petitioner
without any valid and rational reason and he has specifically pleaded
in paragraph 7 to the following effect:
"7.
It is submitted that xxx with timely action. The petitioner tolerated
all the pin pricks and ill-treatment given by the respondent, with
fond of that the respondent will mend her ways in the future.
Instead, she continued to start giving trouble as she is giving
trouble earlier, and there are several instances to drive away the
petitioner out of his house. The respondent is not prepared to
reunite to lead a happy matrimonial life and therefore, the
petitioner was forced to file a petition for divorce on the ground of
cruelty and there was no possibility of reunion with the respondent
due to her incorrigible attitude. The behaviour of the respondent
towards the petitioner is so grave which cause a genuine and
reasonable apprehension in the mind of the petitioner that it is not
safe for him to continue the wedlock relationship with the
respondent."
16.
These assertions of the husband were self assertions without there
being any rebuttal or repudiation of the same by the respondent. On
the other hand, in the appeal memorandum, appellant-wife has asserted
that she was subjected to physical and mental harassment by her
husband and mother-in-law and her husband used to assault her at the
instance of her mother. She has further contended, when she conceived
in the year 2009, respondent and her mother-in-law were not happy and
they had forcibly administered medicine to get her pregnancy
terminated, which resulted in complications and it affected her
health and as such, she was forced to take treatment at Chandana
Nursing Home, Nagarabhavi, Bengaluru. She has further asserted, she
had to undergo D & C on account of compilations and after about
one year she once again conceived and gave birth to a female child on
28.06.2011. She has further contended that on the ground that she did
not give birth to a male child, which was expected of her by her
husband and her mother-in- law, they started physically assaulting
and verbally abusing her. She has further alleged that her husband
used to come home after consuming alcohol and used to assault her
even during mid-night.
17.
She has further alleged that along with her minor daughter she was
thrown out of matrimonial home in the month of January' 2013 and
since there was a threat to her life and also her minor child, she
had to leave to her parental home and thereafter she started residing
at Kamakshipalya from 19.06.2013 which is near-by to the house of her
husband. She has specifically denied that she was residing at
Kurupet, Tumkuru.
18.
Even on the basis of above referred bald assertions made by the
husband in the petition, it cannot be held that respondent-husband
had proved the ingredients of Section
13(1)(ia) of the Act. Hon'ble Apex Court in the case of
VISHWANATH SITARAM AGRAWAL vs. SAU. SARLA VISHWANATH AGRAWAL reported
in AIR 2012 SC 2586 has held that there can never be any straight
jacket formula or fixed parameters for determining the mental cruelty
in matrimonial matters. It has been held:
"17.
The expression 'cruelty' has an inseparable nexus with human conduct
or human behaviour. It is always dependent upon the social strata or
the milieu to which the parties belong, their ways of life,
relationship, temperaments and emotions that have been conditioned by
their social status. In
Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan and another,
a two-Judge Bench approved the concept of legal cruelty as expounded
in Smt. Pancho v. Ram
Prasad wherein it was stated thus: -
"Conception
of legal cruelty undergoes changes according to the changes and
advancement of social concept and standards of living. With the
advancement of our social conceptions, this feature has obtained
legislative recognition that a second marriage is a sufficient ground
for separate residence and separate maintenance. Moreover, to
establish legal cruelty, it is not necessary that physical violence
should be used.
Continuous ill-treatment,
cessation of marital intercourse,
studied
neglect, indifference on the part of the husband, and an assertion on
the part of the husband that the wife is unchaste are all factors
which may undermine the health of a wife." It is apt to note
here that the said observations were made while dealing with the
Hindu Married Women's Right to Separate Residence and Maintenance
Act (19 of 1946). This Court, after reproducing the passage, has
observed that the learned Judge has put his finger on the correct
aspect and object of mental cruelty.
18.
In Shobha Rani v.
Madhukar Reddi, while dealing with 'cruelty' under Section
13(1)(ia) of the Act, this Court observed that the said provision
does not define 'cruelty' and the same could not be defined. The
'cruelty' may be mental or physical, intentional or unintentional. If
it is physical, the court will have no problem to determine it. It is
a question of fact and degree. If it is mental, the problem presents
difficulty. Thereafter, the Bench proceeded to state as follows: -
"First,
the enquiry must begin as to the nature of the cruel treatment.
Second, the impact of such treatment on the mind of the spouse.
Whether it caused reasonable apprehension that it would be harmful or
injurious to live with the other. Ultimately, it is a matter of
inference to be drawn by taking into account the nature of the
conduct and its effect on the complaining spouse. There may, however,
be cases where the conduct complained of itself is bad enough and per
se unlawful or illegal. Then the impact or the injurious effect on
the other spouse need not be enquired into or considered. In such
cases, the cruelty will be established if the conduct itself is
proved or admitted."
19.
After so stating, this Court observed about the marked change in life
in modern times and the sea change in matrimonial duties and
responsibilities. It has been observed that when a spouse makes a
complaint about treatment of cruelty by the partner in life or
relations, the court should not search for standard in life. A set of
facts stigmatized as cruelty in one case may not be so in another
case. The cruelty alleged may largely depend upon the type of life
the parties are accustomed to or their economic and social
conditions. It may also depend upon their culture and human values to
which they attach importance. Their Lordships referred to the
observations made in Sheldon v. Sheldon wherein Lord Denning stated,
"the categories of cruelty are not closed". Thereafter, the
Bench proceeded to state thus: -
"Each
case may be different. We deal with the conduct of human beings who
are not generally similar. Among the human beings there is no limit
to the kind of conduct which may constitute cruelty. New type of
cruelty may crop up in any case depending upon the human behaviour,
capacity or incapability to tolerate the conduct complained of. Such
is the wonderful (sic) realm of cruelty.
These
preliminary observations are intended to emphasise that the court in
matrimonial cases is not concerned with ideals in family life. The
court has only to understand the spouses concerned as nature made
them, and consider their particular grievance. As Lord Ried observed
in Gollins v.
Gollins:
In
matrimonial affairs we are not dealing with objective standards, it
is not a matrimonial offence to fall below the standard of the
reasonable man (or the reasonable woman). We are dealing with this
man or this woman."
20.
In V. Bhagat v. D.
Bhagat (Mrs.), a two-Judge Bench referred to the amendment that
had taken place in Sections
10 and 13(1)(ia)
after the Hindu
Marriage Laws (Amendment) Act, 1976 and proceeded to hold that
the earlier requirement that such cruelty has caused a reasonable
apprehension in the mind of a spouse that it would be harmful or
injurious for him/her to live with the other one is no longer the
requirement. Thereafter, this Court proceeded to deal with what
constitutes mental cruelty as contemplated in Section
13(1)(ia) and observed that mental cruelty in the said provision
can broadly be defined as that conduct which inflicts upon the other
party such mental pain and suffering as would make it not possible
for that party to live with the other. To put it differently, the
mental cruelty must be of such a nature that the parties cannot
reasonably be expected to live together. The situation must be such
that the wronged party cannot reasonably be asked to put up with such
conduct and continue to live with the other party. It was further
observed, while arriving at such conclusion, that regard must be had
to the social status, educational level of the parties, the society
they move in, the possibility or otherwise of the parties ever living
together in case they are already living apart and all other relevant
facts and circumstances. What is cruelty in one case may not amount
to cruelty in another case and it has to be determined in each case
keeping in view the facts and circumstances of that case. That apart,
the accusations and allegations have to be scrutinized in the context
in which they are made. Be it noted, in the said case, this Court
quoted extensively from the allegations made in the written statement
and the evidence brought on record and came to hold that the said
allegations and counter allegations were not in the realm of ordinary
plea of defence and did amount to mental cruelty.
21.
In Praveen Mehta v.
Inderjit Mehta, it has been held that mental cruelty is a state
of mind and feeling with one of the spouses due to behaviour or
behavioural pattern by the other. Mental cruelty cannot be
established by direct evidence and 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 facts and
circumstances are to be assessed emerging from the evidence on record
and thereafter, a fair inference has to be drawn whether the
petitioner in the divorce petition has been subjected to mental
cruelty due to the conduct of the other.
22.
In Vijaykumar
Ramchandra Bhate v. Neela Vijaykumar Bhate[8], it has been opined
that a conscious and deliberate statement levelled with pungency and
that too placed on record, through the written statement, cannot be
so lightly ignored or brushed aside.
23.
In A. Jayachandra v.
Aneel Kaur, it has been ruled that the question of mental cruelty
has to be considered in the light of the norms of marital ties of the
particular society to which the parties belong, their social values,
status and environment in which they live. If from the conduct of the
spouse, it is established and/or an inference can legitimately be
drawn that the treatment of the spouse is such that it causes an
apprehension in the mind of the other spouse about his or her mental
welfare, then the same would amount to cruelty. While dealing with
the concept of mental cruelty, enquiry must begin as to the nature of
cruel treatment and the impact of such treatment in the mind of the
spouse. It has to be seen whether the conduct is such that no
reasonable person would tolerate it.
24.
In Vinita Saxena v.
Pankaj Pandit, it has been ruled that as to what constitutes
mental cruelty for the purposes of Section
13(1)(ia) will not depend upon the numerical count of such
incident or only on the continuous course of such conduct but one has
to really go by the intensity, gravity and stigmatic impact of it
when meted out even once and the deleterious effect of it on the
mental attitude necessary for maintaining a conducive matrimonial
home.
25.
In Samar Ghosh v. Jaya
Ghosh, this Court, after surveying the previous decisions and
referring to the concept of cruelty, which includes mental cruelty,
in English, American, Canadian and Australian cases, has observed
that the human mind is extremely complex and human behaviour is
equally complicated.
Similarly,
human ingenuity has no bound, therefore, to assimilate the entire
human behaviour in one definition is almost impossible. What is
cruelty in one case may not amount to cruelty in the other case. The
concept of cruelty differs from person to person depending upon his
upbringing, level of sensitivity, educational, family and cultural
background, financial position, social status, customs, traditions,
religious belief, human values and their value system. Apart from
this, the concept of mental cruelty cannot remain static; it is bound
to change with the passage of time, impact of modern culture through
print and electronic media and value system, etc. etc. What may be
mental cruelty now may not remain mental cruelty after a passage of
time or vice versa. There can never be any straitjacket formula or
fixed parameters for determining mental cruelty in matrimonial
matters. The prudent and appropriate way to adjudicate the case would
be to evaluate it on its peculiar facts and circumstances."
19.
Thus, keeping in mind the above laid authoritative principles of
Hon'ble Apex Court in mind when evidence on record is perused, it
cannot be construed or held that ingredients of Section
13(1)(ia) of the Act were attracted. Based on unrebutted evidence
also, it cannot be held that irresponsibility on the part of wife
would amount to cruelty. Even exhibiting of arrogance cannot be
construed as cruelty being meted out by wife on husband or his family
members. Thus, even on merits, the judgment of trial Court cannot be
sustained. Accordingly, point No.2 is answered in favour of appellant
and against the respondent herein. RE.POINT No.3:
20.
During the pendency of the present proceedings, respondent claimed to
have married on 26.02.2016 i.e., on account of exparte decree
obtained by him on 31.10.2014 and interestingly, it requires to be
noticed that present appeal came to be filed on 27.02.2016 and if at
all respondent-husband intended to marry, he would have married much
earlier or atleast immediately after the appeal period was over. He
need not have waited for more than 1½ years from the date of grant
of decree for divorce to get remarried. Thus, the consequences which
would arise on account of exparte judgment and decree now being set
aside, would follow and necessarily respondent-husband has to reap
the result of it.
21.
It is also noticed from the proceedings of this appeal that
respondent-husband has paid certain amounts and now on account of
exparte decree being set aside and matter being remitted back to the
trial Court, it would be open for the appellant to seek for payment
of necessary maintenance to herself and her minor child and payments
made in this proceedings would be subject to result of the order that
may be passed by the jurisdictional trial Judge.
For
the reasons aforestated, we proceed to pass the following;
JUDGEMENT
(1) Miscellaneous First Appeal is allowed.
(2) Judgment and decree dated
31.10.2014 passed in
M.C.No.41/2014
(old No.88/2013) by Senior Civil Judge, Kanakapura, is set aside and
matter is remitted back to the Senior Civil Judge, Kanakapura, Family
Court for disposal of the proceedings in accordance with law.
(3)
On account of both parties having been represented before this Court,
there would not be any necessity for fresh summons or notice being
issued as we are fixing the date of hearing after consulting the
learned Advocates appearing for parties, which would be on
21.09.2020.
(4)
Both parties shall appear before the jurisdictional Court as per the
extant Standard Operating Procedure as applicable to said Court and
we make it clear that there is no need or necessity for fresh
notice/summons being issued to the parties.
(5)
Trial court shall make endeavour to dispose of the petition,
expeditiously and at any rate within an outer limit of eight (8)
months from the first date of hearing, subject to both parties
cooperating with the trial Court. We also make it clear that if for
any reason, unnecessary and unwarranted adjournments are sought for
by either of the parties, trial Court would be at liberty to regulate
its proceedings by imposing such costs as it deems fit on such of the
parties who seek adjournment. (6) Respondent-husband shall pay a sum
of `10,000/- as litigation expenses to the appellant by next date of
hearing failing which appellant-wife would be at liberty to recover
the said amount by filing execution petition.
Registry
is directed to transmit the lower court records to the jurisdictional
Court forthwith.
All
pending applications stands consigned to records.
SD/-
JUDGE
SD/-
JUDGE
RU
