- The Honourable Karnataka High Court in the case of S.Shyamala @ Kathyayani v. B.N. Mallikarjunaiah[Miscellaneous First Appeal No.3352/2016]has set aside the decision of the Family Court which granted divorce to the Parties on grounds of desertion, Cruelty and breakdown of marriage. The Learned Judge relied on various Judgements of the Apex Court in this regard and the stand of Supreme court on divorce on the ground of irretrievable breakdown was also reiterated.
- The present first appeal was filed under Family Courts Act, 1984 by the wife (appellant) challenging the judgment & decree passed by the Family court,allowing the petition by the husband (respondent) under Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955. [divorce on ground of cruelty & desertion]
- The respondent had contended that the appellant was demanding for setting up of a separate house immediately after the marriage. Later, she left the matrimonial home and did not return back. 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. The learned Judge while adjudicating on the basis of facts of the matter had allowed the petition filed by the respondent.
- Learned counsel for the appellant submitted that the Family Court had allowed the petition mainly for the reason that the wife had filed a criminal case against the husband and his relatives. But mere filing of a criminal case itself did not amount to cruelty unless it was 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 it cannot 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 issued a legal notice seeking divorce.
- Learned counsel appearing for the respondent submitted that 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.
- It was further submitted that the appellant filed false complaints against the respondent and his relatives only with an intention to harass and coerce them.
- The Court Observed that the Learned Magistrate, who adjudicated upon the criminal case filed by the appellant, had observed that there was no such break of relationship between the two. The Magistrate had acquitted the accused on the ground that the prosecution had failed to prove the guilt beyond reasonable doubt. So, it could not be inferred that the wife had lodged a false complaint against the husband and his family members.
- The Court relied on the judgements of the Apex court in Raj Talreja v. KavitaTalreja, wherein it was held that filing of complaints did not amount to cruelty, if there were justifiable reasons to file the complaints. Merely because no action was taken or the accused was acquitted may not form a ground to treat such accusations of the wife as cruelty.
- It was 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 inferred that the wife had deserted the husband to put an end to the cohabitation&marital relations.
- The term desertion would not imply only a separate residence or living. It would be necessary that there was a firm decision to put an end to cohabitation & marital relations.
- The Learned Judge of the Family Court had also observed that the marriage had been irretrievably broken down and the parties were living apart for more than 9 years and found it proper to grant divorce. The Hon’ble Supreme Court has observed that a decree of divorce on the ground of irretrievable failure of the marriage can be granted only by the Hon’ble Supreme Court in exercise of its powers under Article 142 of the Constitution of India.
- Hence the impugned order and decree were liable to be set aside and the view of the family court was held as not tenable.
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