IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD MISCELENEOUS FIRST APPEAL NO.9788 OF 2006 (FC) BETWEEN:
B. THIRUNAVUKARASAN SON OF LATE N. BHUPALAN AGED ABOUT 48 YRS RESIDING AT NO.315, 1ST FLOOR 8TH A MAIN ROAD, H. R. B. R LAYOUT 1ST BLOCK KALYAN NAGAR, BENGALURU – 560 043.
(BY SRI. B. C. THIRUVENGADAM, ADVOCATE) AND:
PREMA T.
DAUGHTER OF R. KANNAN WIFE OF B. THIRUNAVUKARASAN AGED ABOUT 49 YEARS RESIDING AT NO.13/1 MSRB-3 GROUND FLOOR, SION EAST, MUMBAI – 22.
(By SMT. K. M. ROHINI, ADVOCATE) ... APPELLANT ... RESPONDENT THIS MISCELENEOUS FIRST APPEAL FILED UNDER SECTION 15 OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 02/08/2006 PASSED INM.C.NO.1316 OF 2000 ON THE FILE OF THE I ADDL. PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE APPLICATION FILED UNDER SECTION 13(1)(ia)(ib) OF THE HINDU MARRIAGE ACT FOR A DECREE OF DIVORCE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 31.01.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.SHYAM PRASAD J., PASSED THE FOLLOWING:
JUDGMENT This appeal is filed by the husband challenging the judgment dated 2.8.2006 passed in M.C.No.1316/2000 on the file of the I Additional Principal Judge, Family Court, Bengaluru (for short ‘family Court’). The family Court by this impugned judgment dated 2.8.2006 dismissed the petition filed by the husband for dissolution of marriage on the ground of ‘Desertion’ and ‘Cruelty’ under Section 13 (1)(1-a) and (1-b) of the Hindu Marriage Act, 1955 (for short, ‘H M Act’). This Court on 19.3.2012, allowed the appeal setting aside the judgment of the family Court dissolving the marriage solemnized with the respondent on 7.9.1988. This Court’s judgment dated 19.3.2012 was challenged before the Hon’ble Supreme Court in Civil Petition No.1122/2016. The Hon’ble Supreme Court set aside the judgment and remitted the appeal for reconsideration on merits.
2. The husband has filed his petition in M.C.No.1316/2000 for dissolution of marriage contending that the wife and he were employed as of the date of their marriage. He was employed with State Bank of India in Bengaluru as a clerk, and the wife was employed as an Officer with Bank of India at Pune. They, being distantly related, were acquainted with each other even before the marriage. They were in love with each other, and they got married with the blessings of their family members. The marriage was solemnized in Bengaluru, and the wedding reception was held in Mumbai, the wife’s permanent residence at the time of marriage. The wife, within three months from the date of marriage, secured transfer from Pune to Bengaluru and they started living together in Bengaluru in a rented accommodation. They resided together for a decade until October 1998. They did not have any children. However, the wife was in the family way on a number of occasions, but she suffered miscarriage, and a child born, died within a few days of its birth.
3. The wife was disrespectful and arrogant in her conduct with him from the initial days of marriage because she was an officer with a Bank whereas he was only a clerk. The wife would not share the household expenses, and he had to meet all the expenses. His love and affection for her did not have any impact on her, and she would behave arrogantly and in a manner unbecoming of a married woman. She would dress very inappropriately to her work, and she would move around freely with one of her male colleagues, a certain Sri Raghavan. Her association with this person was inappropriate for a married woman, and he tried to dissuade her. However, she took offence, and over a period of time, she developed a very hostile attitude towards him. She stopped cooking for him, and he had to eat outside. She avoided all physical intimacy with him. She would frequently threaten him with false complaints and action by the police. They lived like strangers for over three years. This was despite the fact that he would meet all the household expenses and also discharge some of her dues. In fact, he had invested substantially in her name in National Savings Certificate to woo her.
4. However, the wife continued with her constant berating, abuses and threats. His life with her became very miserable, and he could not suffer the humiliation, harassment and ignominy. Therefore, he was compelled to walk out of the residence on 1.10.1998. His father-in-law always encouraged his daughter, and the father-in-law was also present on 1.10.1998 when he, compelled to leave, had to sign an acknowledgment. He was forced to sign such an acknowledgment. He was also compelled to hand over multiple cheques to the wife, each for a sum of Rs.2,000/-. The wife encashed these cheques. The wife shifted to Mumbai later, and he was not even informed about the same. As such, he is entitled for dissolution of marriage both on the grounds of Desertion and Cruelty.
5. The wife, in her Objection Statement, defended the allegations against her with her own counter version, but without denying both were Bank Employees as stated by the husband. She also did not deny that they were acquainted with each other even before the marriage, and they were in love with each other but got married with the blessings of their family members. Nor did she deny that she, who was working in Pune at the time of the wedding, had to secure transfer to Bengaluru and that they started living together in Bengaluru in a rented accommodation. She contended that the husband was given to wayward ways, and she suffered and tolerated the husband’s difficult conduct as a dutiful wife. However, he continued to be derisive and put her down. He suffered from an inferiority complex. She suffered all the humiliations and insults for the sake of preserving the marriage. She over a period of time suffered eight miscarriages, and her health deteriorated with each day.
6. The husband could not have made unfounded, and hurting, allegations of dressing inappropriately and harboring affections for her colleague. The husband walked out on her in October 1998 deserting her. The husband surrendered the premises taken on lease, and she had to request the landlord to permit her to stay for a while until she could find an alternative accommodation. The landlord, who took pity on her, permitted her to stay in such premises for sometime. She waited for her husband to return, but he did not. Her health was deteriorating, and therefore, she requested for a transfer to Mumbai. Her employers, the Bank of India, accepting her request for transfer for domestic and health reasons, transferred her to Mumbai. She has been living with her brother. Her health has worsened over a period of time, and she incurs huge medical expenses.
7. The couple have examined themselves as witnesses in support of their respective cases. The wife has not produced any document, but the husband, while producing the Marriage Invitation Card/Photograph, has produced the acknowledgement signed by him and the wife on 1.10.1998 (Ex.P8) and the Bank Statements (Ex.P9) to establish that the wife encashed the cheques, which he says he was compelled to handover on 1.10.1998. He has also produced a Letter (Ex.P10) written by the wife to him thanking him for the support extended by him to her and also regretting she causing him tension.
8. The family court, in the light of the rival submissions, formulated the following points for consideration:
"Whether the petitioner is entitled for a decree of divorce against the respondent for the reasons pleaded.
What decree or order"
The family Court has concluded that the husband is not able to prove either the case of Desertion or the case of Cruelty. In fact, the Family Court has concluded that the husband’s allegation against the wife are imaginary. The couple have lived together for over ten years, and the husband has caused mental cruelty to the wife with his unsubstantiated allegations of intimacy with a colleague. The husband is not entitled for dissolution of marriage because he has walked out of the matrimonial home on 1.10.1998 without any justification and after subjecting the wife to cruelty. The family Court has also concluded that there is no reason to disbelieve the statement by the wife that she is willing to resume cohabitation.
9. The points for consideration in this appeal would be:
i) Whether the family Court's finding that, the husband has not made out a case for dissolution of marriage on the ground of Cruelty is based on evidence, and whether any interference is called for in this appeal on that ground.
ii) Whether the family Court's finding that the husband has walked out of the matrimonial home on 1.10.1998 without any reasonable cause and therefore is not entitled for dissolution of marriage on the grounds of Desertion is based on the proper appreciation of the evidence on record and in accordance with law.
(iii) Whether the husband has made out a case for dissolution of marriage solemnised on 7.9.1988 either on the ground of Desertion or on the ground of Cruelty.
10. The undisputed facts are that the couple, who were acquainted with each other being distantly related, decided to marry, and their marriage was solemnized with the blessings of elders from both the families. The husband, at the time of the marriage, was working as a Clerk with State Bank of India. The wife, who was working as an officer with Bank of India at Pune, secured transfer from Pune to Bangalore to commence marital life. The couple lived together for over a decade in Bangalore in a rented premises until 1.10.1998. The rented premises was secured in the name of the husband’s employer because he was entitled to such accommodation as part of his employment benefits. The wife suffered as much as eight miscarriages and the couple also lost a new born child within a few days of its birth. The wife kept indifferent health. The couple started living separately from 1.10.1998, and while separating signed acknowledgement dated 1.10.1998 that comprises of (i) a list of furniture that they agreed to take individually, (ii) a settlement of accounts of what they owed each other and (iii) an appendix stating that they were separating because of irreconcilable differences. It is also recorded that the husband would set up a separate residence from himself. It is in these circumstances that the evidence on record will have to be appreciated to the assess whether the husband has made out a case for dissolution of marriage the either on the ground of Desertion or Cruelty, or on both the grounds.
11. The husband, who has examined himself as PW1, has reiterated his case about the wife being avaricious and having affair with one of her colleagues. He has stated about lack of physical intimacy between them, and has also listed about eight disparaging statements/ abuses that she would repeatedly use. These are threats of ruining his life, involving him in litigations, engaging Goondas to beat him up, and abusing calling him a bastard. In the cross-examination he has stated that his father-in-law was opposed to the relationship, and has also stated that there was no physical intimacy with the wife from 1994-95. However, admits that his sister, after she was estranged from her husband, resided with the couple during this time for over a period of two years. However, he has denied all suggestions about objecting to the wife's minor expenses, refusing to have food at home and suffering from inferiority complex. As regards Desertion, he has stated that the wife intentionally with the requisite animus forced him out of the matrimonial home from 1.10.1998, and as of the date of the petition, she had deserted him for over two years. He has been elaborately cross examined on the allegations of Cruelty, but there is no cross examination on his case in support of Desertion.
12. The wife, who has examined herself as RW1, has stated in her evidence that that the marital discord between them is because the husband suffers from inferiority complex. She has stated that she had to meet all the household expenses because the husband would state he would invest in real estate. She does not know about the investments made by him, and he has deliberately kept all information about investments away from her. She has spoken about the repeated miscarriages that she has suffered, and the lack of empathy by the husband. She has also spoken about putting up with her husband's conduct to save her marriage. She states that the husband walked out of the matrimonial home when she was seriously sick and under medical treatment, and he surrendering the lease of the premises compelling her to request the landlord for time to continue in the premises until she made alternative arrangements. She has lastly stated she continued to wait for the husband, but when she became increasingly weak, she had to seek transfer to Mumbai. In her cross-examination, she has denied all suggestions made about her alleged wrongdoings. But, she has admitted Exhibit P 10 and Exhibit P8.
13. The letter as per Exhibit P 10 is dated 2.3.19 94 in which she regrets causing tension to the husband while expressing gratitude to him for standing by her. But, in her cross-examination she says she was compelled to sign the letter. As regards the Endorsement, [Exhibit P8], receiving Cheques for a total sum of Rs. 32,000/- as mentioned therein and encashing such cheques, she states that she was compelled to sign Exhibit P8. But, she admits encashing the cheques and receiving the money.
14. The Cruelty, according to the husband, is because of the wife’s conduct. He alleges that the wife looked down upon him because he was only a clerk. She was abusive, and he faced constant threats of being implicated in false criminal cases. The wife developed hostile attitude because he advised her to dress appropriately to work and to conduct herself in a manner befitting a married woman. The wife however had affections for a male colleague, who he identifies alternatively as Mr. Raghavan (in the pleadings) and Mr. Ranganathan (in the evidence). He has also asserted that there was no physical intimacy between them and that he had to live as a stranger with her under one roof fending for himself. This was despite the fact that he did his best to discharge the different loans availed by the wife and also invest in her name.
15. However, the husband has only examined himself in support of these allegations, and he has only repeated the allegations in the evidence without furnishing the details that could probablise his case of Cruelty. The allegations that the wife had affections for a male colleague, and she would dress inappropriately to work are wholly unsubstantiated. He is also not consistent. He has only spoken about abuses hurled at him by the wife, but again without the necessary details to lend any sense of credibility to such allegations. Even the wife, who has not only denied the allegations against her but has also made specific allegations against the husband that he was ill-treating her because he suffered from inferiority complex, has also relied upon her own ocular evidence that is lacking in details. In the absence of the necessary details to substantiate such allegations, the family Court has not rightly inferred an attitude or approach that would have made the husband's life with the wife unbearable justifying dissolution of marriage on the ground of Cruelty. Therefore, there is no justification for interference with the family Court's finding on Cruelty, and the husband is not entitled for dissolution of marriage on the ground of Cruelty.
16. It is settled law that a spouse to succeed on the ground of Desertion will have to establish separation for a continuous period of not less than two years immediately preceding the date of petition for divorce, and the deserter spouse has forsaken the company without consent, or a reasonable cause, or against the wishes of the complaining spouse. The animus to abandon the relationship permanently must also be established. In the present case there is no dispute that the couple has been living separately ever since 1.10.1998, and that is for over two decades. They were, as of 1.10.1998, residing in a rented accommodation, and on that date the husband walked out of the residence and set up his own residence. They have signed an acknowledgement in this regard, which is marked as Exhibit P.8. The husband to corroborate that both of them have acted upon Exhibit P.8 has also relied upon his Bank Statement for the relevant period, which is marked as Exhibit P.9, and it is also admitted by the wife that she has encashed the cheques and received a sum of Rs.25,000/-.
17. The acknowledgment, Ex.P.8 is drawn on the wife's Letter Head. The couple has drawn up an exhaustive list of the household appliances and furniture that they agreed to take separately. They have also drawn up a detailed statement of the amounts payable by one to the other. Additionally, they have appended an acknowledgement, which reads as follows:
“Consequent upon the irreconcilable differences in our married life, we have mutually settled the things and cash mentioned overleaf after which Thiruvankarasan has set up a separate house.
Received cheque Nos.041447 to 041450 and cheque Nos.044451 to 044462 of Rs.2000/- (Rs. Two Thousand only) each totaling to Rs.32,000/- (Rs. Thirty Two Thousand only) dated 1.11.1998 to 1.2.2000 on monthly wise.”
The appendix which is signed by both the husband and the wife demonstrate that they agreed to live separately after due deliberations and negotiations because of irreconcilable differences. Thus, it is borne out by evidence that the couple agreed to separate on 1.10.1998, and there is no dispute that they have lived separately from 1.10.1998 without any communication. The husband has filed the petition for divorce on 19.10.2008. As such, the first requirement for dissolution of marriage on the ground of Cruelty viz., that there is no cohabitation between the spouses for a continuous period of 2 (two) years preceding the date of petition is established.
18. The husband, who wants dissolution of the marriage on the grounds of Desertion, has to next establish that the wife has forsaken his company without his consent or a reasonable cause or against his wishes with the intent to permanently end the relationship. The husband's case in this regard is examined in the light of the following circumstances. The couple, at the time of separation as discussed supra, have recorded that they were separating because of irreconcilable differences. The wife has contended that she was residing in the same premises for a year in anticipation of the husband returning, and she later shifted to Mumbai on transfer. But, she has not furnished any material to establish the same. She has not stated when she received her transfer orders, and when she vacated the premises. She admits she has not filed any petition for restitution of conjugal rights, nor made any attempt to resume cohabitation. Further, the couple have drawn up a statement of accounts, as part of the acknowledgement (Ex.P8), of the amounts payable to the other. In terms of which, the wife had to receive Rs.11,000/- but it is recorded that a sum of Rs.32,500/- is due from the husband. The husband has issued 16 number of Cheques drawn in favour of the wife, and each cheque is for a sum of Rs.2,000/-.
19. The learned counsel for the husband contends that the husband was compelled to make over these cheques under duress by the wife and her father, and he had to make over the cheques because he could not have continued to reside with the wife. The wife, in her cross examination, admits receipt of the cheques and encashment thereof, but says she was compelled to sign acknowledgment - Ex. P 8. It is seen from Exhibit P.9 that these cheques have been encahsed. She denies that she compelled the husband to hand over the cheques under threat and duress. She has not offered any explanation why the husband made over the aforesaid cheques if he was walking out on her. If these circumstances are examined in the background of the admitted fact that she did not inform the husband before shifting to Mumbai as discussed supra, this Court is of the considered opinion that the husband is able to establish that he was under duress to set up separate residence and that the wife intended to permanently end the relationship. Thus, the husband is able to establish the second requirement viz., the animus in the wife to permanently end the relationship.
For the foregoing, we are of the considered view that the family Court has erred in not considering the admitted facts and the documents on record for the purpose of testing the husband’s case for dissolution of marriage on the ground of ‘Desertion’. The family Court has also erred in failing to examine whether the husband has established the necessary ingredients for dissolution of marriage on the ground of ‘Desertion’. Further, for the reasons discussed, we are of the considered view that the husband, who has established the twin requirements for dissolution of marriage on the ground of ‘Desertion‘ would succeed in the petition insofar as the prayer for dissolution of marriage under Section 13(1)(1-b) of the H.M. Act. Therefore, the following:
ORDER The appeal is allowed. The judgment and decree dated 2.8.2006 passed in M.C..No.1316/2000 on the file of the I Additional Principal Judge, Family Court, Bangalore is set side. The petition in M.C.No.1316/2000 for dissolution of marriage on the ground of ‘Cruelty’ under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 stands dismissed, but the petition for dissolution of marriage on the ground of ‘Desertion’ under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 is allowed. Consequentially, the marriage solemnized between the appellant and the respondent on 7.9.1988 is dissolved on the ground of desertion.
The office to draw decree accordingly. No Costs.
Sd/- Sd/-
JUDGE JUDGE nv* ct:sr