Date of Judgement:
14rd March 2022
Coram/judge:
Hon'ble Mr. Justice Alok Aradhe
Hon'ble Mr. Justice S. Vishwajith Shetty
Parties to the Case:
Appellant - S. Shyamala @ Kathyayani
Respondents- B.N. Mallikarjunaiah
Legal Provisions
- Section 19 of Family courts act – which deals with provisions regarding appeal in Family law matters
- Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955- which deals with divorce on ground of cruelty and desertion respectively
Overview
- The respondent and Appellant were validly married as per the provisions of Hindu Marriage act. The respondent had approached the Family Court, seeking dissolution of the marriage. It was contended that the appellant was demanding for setting up a separate house immediately after the marriage. The wife was in a habit of quarrelling for no reason and she used to leave the matrimonial house and go to her sister’s house and mother’s house without informing anyone
- In January 2007, the appellant without informing him left the matrimonial home and did not return. The respondent issued a legal notice but the appellant issued an untenable reply to the same. Subsequently she lodged a criminal complaint against him and his relatives for various offences under IPC and Dowry Prohibition Act, 1961. The respondent was acquitted in the said case.
- In the divorce petition, his case was that the wife had no intention to live with him and perform her matrimonial obligation. There were no possibilities of reconciliation and accordingly he had sought for dissolution of the marriage on the ground of cruelty as well as desertion.
- The appellant had filed her statement of objections in the family court admitting the relationship but denied all other allegations. She had contended that her husband used to ill-treat her for dowry. Though several panchayats were convened by her parents, all such efforts were also in vain and then she had to lodge a police complaint against her husband and his relatives.
- To establish the ground of cruelty, in addition to his oral statement, the husband had mainly relied upon the testimony and judgment of the case wherein he and his relatives were tried and acquitted. He submitted that the said criminal proceedings were on a false complaint lodged by his wife and therefore, the same would amount to cruelty.
- The learned Judge while adjudicating on the basis of facts of the matter vide the impugned judgement and decree had allowed the petition filed by the respondent.
Arguments Advanced by The Appellant
- Learned counsel for the appellant submitted that Learned Judge of the Family Court had erred in granting a decree of divorce. The husband had failed to prove the ground of cruelty and desertion against the wife.
- The Family Court had proceeded to allow the petition mainly for the reason that the wife had filed a criminal case against the husband and his relatives. Mere filing of a criminal case itself did not amount to cruelty unless it would be proved that the wife was in the habit of filing false cases.
- It was contended that the wife had a valid reason to stay away from her husband and therefore it could not be said that she had deserted the husband. The husband had forced the wife to leave and no attempt was made by him to bring her back and he was issued a legal notice seeking divorce.
- It was further contended that a false case was registered against the wife for kidnapping her own daughter. She had been acquitted of the alleged offence. Various leading case laws were cited by the Counsel in support of the above-mentioned arguments.
Arguments Advanced by the respondents
- Learned counsel appearing for the respondent submitted that the parties were residing separately ever since the year 2007 and all efforts made for conciliation failed.
- The marriage had irretrievably failed and there was no point in continuing such a marriage. He submitted that the grounds of cruelty as well as desertion had been proved by the husband before the Family Court and therefore, there was no scope for interference by this Court.
- He submitted that the wife had left the company of her husband without there being any valid reasons and she also filed false complaint against her husband and his relatives only with an intention to harass and coerce them.
Issue
Whether the family court was right in granting divorce on grounds of cruelty and desertion in light to contentions put forward by the respondent?
Judgement Analysis
- The Court observed that the Learned Magistrate, who adjudicated upon the criminal case filed by the appellant against the respondent, had observed that there was no such break of relationship between the two. The Magistrate had acquitted the accused persons on the ground that the prosecution had failed to prove the guilt beyond reasonable doubt. So, it cannot be said that the wife had lodged a false complaint against the husband and his family members.
- Mere filing of a criminal case itself couldn’t be termed as “cruelty”. For the purpose of Section 13(1) (ia), cruelty could be wilful and unjustifiable conduct of such character as to cause danger to life or health, bodily or mental, or as to give rise to a reasonable realisation of such a danger.
- The allegation that the appellant was in the habit of leaving the matrimonial house and she used to go to her sister’s and parents’ house without informing had not been proved by the respondent by examining any independent witness.
- While acquitting the respondent from the kidnapping case filed upon her, it was observed that the accused was the mother of the victim girl and taking the minor victim girl into her custody would not amount to kidnapping as she was her lawful guardian. Therefore, she couldn’t be convicted on the complaint of School Authorities, who cannot be considered as lawful guardians of the minor
- The Court relied on the judgments of the Apex Court in Raj Talreja v. Kavita Talreja and High Court of Delhi in Prakash v. Smt. Rajni, where it was held that filing of complaints did not amount to cruelty, if there are justifiable reasons to file the complaints. Merely because no action was taken on filing of the complaint or the accused was acquitted cannot not be a ground to treat such accusations of the wife as cruelty.
- The Court observed that though the husband had contended that he made efforts to bring back his wife, no material evidence was produced in support of the said contention. In the month of April 2007, he had issued a legal notice to his wife seeking divorce.
- It was been the specific defence of the husband in the criminal case that after filing of the criminal complaint, his wife had been sending him messages conveying her willingness to join him. In that event, it could not be said that the wife had deserted the husband to put an end to the marital relation and cohabitation.
- The term desertion would not only imply a separate residence or living. It would necessary that there must be a firm decision to put an end to cohabitation and marital relation.
- The husband failed to prove that the wife had intention to put an end to the marital relation and cohabitation. On the other hand, the material on record would go to show that she and her family members had made all efforts to join the husband, but they were all in vain.
- Hence, The respondent had not made out a case for grant of divorce even under Section 13(1) (ib) of the Act, as the allegation of desertion without there being any valid reason had not been proved by him.
- The learned Judge of the Family Court had observed that the marriage between the parties had been irretrievably broken down and the parties were living separately for more than 9 years and found it proper to grant divorce as sought in the petition. The Hon’ble Supreme Court had observed that a decree of divorce on the ground of irretrievable failure of the marriage could be granted only by the Hon’ble Supreme Court in exercise of its powers under Article 142 of the Constitution of India and not by any other courts.
- Hence the impugned order and decree were set aside and the view of the family court was held not to be tenable.
Conclusion
The Honourable High Court construed the provision of divorce on grounds of cruelty and desertion. The Family Court’s order to grant divorce to the parties on grounds of desertion, cruelty and breakdown of marriage was set aside. The Learned Judge relied on various Judgements of the Apex Court in this regard. The Stand of Supreme Court on divorce on the ground of irretrievable breakdown was also reiterated.
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