IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2017 PRESENT THE HON’BLE MR.JUSTICE JAYANT PATEL AND THE HON’BLE MRS.JUSTICE S.SUJATHA M.F.A.No.219/2016 (MC) BETWEEN :
T.R.SHIVADAS S/O RAMAKRISHNA, AGED ABOUT 49 YEARS, WORKING AS CLASS I PWD, CONTRACTOR, R/AT NALVATHACRE, NELLIAHUDIKERI VILLAGE & POST, SOMWARPET TALUK-571 236, KODAGU DISTRICT. ... APPELLANT (BY SRI V.SRINIVAS, ADV.) AND :
SMT.P.GEETHA D/O PUTHUKUDI NANU, W/O T.R.SHIVADAS, AGED ABOUT 41 YEARS, R/AT PRAJITH HOUSE, ERUVATTY P.O. VIA KADHIRUR, NEAR BY CRAFT MAN’S BANIAN CO., KANNUR DISTRICT, KERALA STATE-670 647. …RESPONDENT (BY SRI H.S.CHANDRAMOULI, ADV.) THIS MFA FILED UNDER SECTION 28(1) OF HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 17.11.2015 PASSED ON M.C.NO.34/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKEREI, DISMISSING THE PETITION FILED UNDER SECTION 13(1)(i)(i-a) OF HINDU MARRIAGE ACT.
THIS APPEAL HAVING BEEN RESERVED FOR ORDERS ON 24.07.2017, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, S. SUJATHA, J., PASSED THE FOLLOWING:
O R D E R This appeal is directed against the Judgment and order passed by the Senior Civil Judge, Madikeri (‘Family Court’ for short ) in M.C.No.34/2010.
2. The appellant – husband had filed a petition under Section 13 (1) (i) (i-a) of the Hindu Marriage Act, 1955, seeking dissolution of marriage on the ground of cruelty. The couple were married on 23.05.2002 and were blessed with two children. The husband-appellant was doing contract work. It is the allegation of the appellant-husband that at the time of marriage, the parents of the respondent misguided him that the respondent was a post graduate girl. However, the truth came to light only after the marriage that, she is a graduate. Certain other allegations made against the wife were that the respondent was taking the money from the pocket of the appellant when they were living together and deposited the same in DCC Bank, Siddapur; the respondent was not co-operating for the physical relationship; the respondent had illicit relationship with other persons. On the said grounds, cruelty was complained and decree of divorce was sought by the husband. On issuance of process, the respondent-wife appeared and filed objections denying the petition averments in as much as the allegations of cruelty made by the husband.
3. The appellant examined himself as PW-1 and produced 15 documents marked as Ex.P1 to Ex.P15. On behalf of the respondent, respondent herself was examined as RW-1 and produced 12 documents marked as Ex.R1 to Ex.R12. Considering the pleadings and the arguments advanced by the learned counsel for the parties, the Family Court framed the following points for consideration:
1. Whether the petitioner has made out grounds to allow the petition?
2. What order?
Accordingly, answered point No.1 in the Negative and as per the final order, dismissed the petition. Being aggrieved by the same, the appellant-husband is in appeal.
4. Learned counsel Sri.Srinivas.V, appearing for the appellant has contended that the wife was living separately from 20.04.2010 deserting the appellant, which would be suffice to presume that there is cruelty inflicted on the appellant. Ex.P3, the complaint filed by one Sri.P.K.Sunil Kumar against the appellant on behalf of the respondent indicates the illicit relationship of the respondent with other persons. Despite these material evidence prima facie available on record, the Family Court ignored the same while dismissing the petition, which is illegal and warrants interference by this Court.
5. Learned counsel Sri.H.S.Chandramouli, appearing for the respondent-wife contended that the Family Court passed an order on I.A.No.I filed by the wife directing the appellant to pay Rs.3,000/- per month to the respondent and Rs.1,000/- each, per month, to the children towards maintenance besides the payment of Rs.10,000/- towards expenses of the proceedings. Though this order was passed on 15.03.2013, no amount was paid by the appellant towards the maintenance of the wife and children. This order dated 15.03.2013 is made absolute by the Family Court while passing the final order. It was submitted that the accusations made against the respondent being mere allegations, not proved, do not inspire any credence. Moreover, the parties living together and blessed with two children itself would indicate the nature of baseless allegations made by the appellant. The material evidence placed on record was extensively considered and analysed by the Family Court while rejecting the petition. Hence, he prays for dismissal of the appeal directing the appellant to pay the maintenance amount awarded by the Family Court. Learned counsel has also filed memo of calculations, according to which the appellant is liable to pay a sum of Rs.4,20,000/- towards the maintenance of wife and children as directed by the Court below.
6. We have carefully considered arguments advanced at the bar and perused the material on record.
7. It is evident that the allegations made by the appellant against the respondent are baseless and trivial in nature. It is trite that the marital tie is sacrosanct and the same cannot be severed on the trivial issues which are common in the family life. To dissolve the marriage, the cruelty aspect on which ground the petition was filed requires to be established. The phrase ‘cruelty’ though not defined in the Act, catena of judgments rendered by the Hon’ble Apex Court and this Court clearly throws light to understand the concept of cruelty. The conduct of the party against whom the cruelty is alleged should be so grave, serious and weighty. Mere living separate for some time from a spouse would not constitute desertion or amount to cruelty by the act of desertion. There must be animus deserendi i.e., intention to put an end to a marital life which requires to be established which is lacking in the present case. In the modern days, a female having a friendship with a male cannot be understood as having illicit relationship unless the same is proved with concrete evidence. There is no legal impediment in law to lodge a complaint on behalf of the woman who is harassed by her husband through any of her friends or family members. That itself cannot be construed as a relationship, not approved in law. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. The conduct should be so serious that it should cause threat to the life of the complaining spouse in continuing the marital relationship. As could be seen, the appellant failed to establish cruelty to which he was subjected to by the respondent.
8. For the reasons aforesaid, no error could be found in the judgment and order of the Family Court.
9. As regards the maintenance aspect is concerned, it is discerned from the records that I.A.No.I filed by the respondent-wife under Section 24 of the Act was disposed of by a detailed order passed by the Family Court directing the appellant to pay Rs.3,000/-
per month to the respondent and Rs.1,000/- each per month to children towards maintenance along with litigation expenses of the proceedings of Rs.10,000/-, we are not impressed by the arguments advanced at the hands of the learned counsel appearing for the respondent that the said maintenance amount has to be computed from the date of filing of the petition i.e., 31.01.2010, in the absence of such specific direction issued by the Court below. However, as the appeal was pending before this Court, we find it appropriate to direct the appellant to make the payment towards the maintenance amount as directed by the Court below from 15.03.2013 till the disposal of the present appeal.
10. However, the respondent is at liberty to take recourse to the legal remedies available under law by filing the petition for future maintenance and if such petition is filed, the rights and contentions of both the parties are left open to be considered in accordance with law.
Subject to the aforesaid, appeal stands disposed of.
Sd/- JUDGE Sd/- JUDGE ln.