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 HINDUMARRIAGE ACT. THIS APPEAL COMING ON FOR FINAL DISPOSAL THIS DAY,
ARAVIND KUMAR J, MADE THE FOLLOWING: ORDERRespondent-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?
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.
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.
