1. The legality and correctness of the judgment and decree passed in M.C. No.50/2007 on 06.01.2010 by the First Additional Civil Judge (Sr.Dn.), Hubli is called in question in the instant appeal.
2. The respondent filed a petition for grant of decree of divorce to dissolve the marriage solemnised on 08.05.2004 between the parties herein at Gangadhar Nagar, Hubli under Section 13(1) (ia) and (ib) of the Hindu Marriage Act on the ground of desertion and cruelty.
3. According to the petition averments, the marriage was solemnised on 08.05.2004. They lived happily at Hubli till 20.12.2004. According to him, the wife is of adamant nature; she used to quarrel with him without any reason and same treatment was extended to his family members; she was not co-operative with him; she always used to use filthy language; she was very-very cruel and rude to him; she is a short-tempered lady; she was insulting him and his parents, and she was also proclaiming that she has no intention to lead marital life with him and she had no willingness to marry him.
4. On 20.12.2004, the mother and brother of the wife came to his house when she was pregnant of eight months and on that day, the wife attempted to cause injury to him with a vegetable cutter. She left the matrimonial home along with her brother and mother. The attempts made to bring her back to matrimonial home through the elders ended in vain. It is also his case that she gave birth to a female child on 07.03.2005 and she has not even info ivied the same to him. When his mother went to see his child, she was not allowed to see her grand-child. Therefore, he filed a petition on the ground of cruelty and desertion.
5. The respondent/wife contested the case. She admitted the marriage and the child born to her. According to her, she is an MA Graduate and she is always willing to lead a respectable life with her husband and in-laws. Six months after the marriage, her husband and her parents-in-law were abusing and insulting her on the ground that she has come from a poor family arid, did not bring any dowry or any valuable articles after the marriage. It is also her case that the maid servant was removed and she was asked to work like a maid servant n their house.
6. It is also her case that her husband's family is running an educational institution wherein she was working as a lecturer in the College and the respondent was always assaulting her and hurting her feelings on the ground that she was unable to bring dowry either by way of cash or gold; that the husband and his family members did not even attend the naming ceremony inspite of the request made by her. She also stated that she was ready and willing to live with the husband and join him with the child. In the circumstances, she requested the Court to dismiss the petition.
7. In order to prove their respective contentions, husband was got examined as PW-1 and he has relied upon Exs.P-1 to 10. The appellant/wife got examined herself as RW-1, but no documents were marked on her behalf.
8. The Trial Court formulated the following points for its consideration:-
(i) Whether the petitioner proves that the respondent has treated him with cruelty?
(ii) Whether the petitioner further proves that the respondent has deserted him for continuous period of not less than two years immediately preceding presentation of this petition?
(iii) What order?
9. After considering the evidence let-in by the parties, both the points were held in affirmative and ultimately, the decree of divorce was granted to them, on the ground of desertion and cruelty.
10. We have heard the learned counsel for both the parties.
11. Mr. B.D. Hegde, learned counsel for the appellant submits that the appreciation of the evidence by the Court below is contrary to law and the Evidence Act. The trial court, without assigning any reasons and without considering the evidence let-in by the husband, has wrongly come to the conclusion that the appellant has treated the respondent with cruelty and the Court below has wrongly come to the conclusion that the appellant has deserted the husband. According to him the learned trial judge without considering the evidence let-in by the parties, relying upon certain judgments of the Hon'ble Apex Court and High Court has allowed the .. case of the respondent. In the circumstances, he requests the Court to reconsider the entire evidence and set aside the judgment and decree of the Court below.
12. It has to be noted at this stage that the decree of divorce was stayed by this Court on 22.02.2010. After the order was served on the respondent, inspite of the order of stay granted by this Court, he has taken a second wife and the said marriage is registered on 11.07.2011 before the Sub-Registrar at Hubli.
13. The learned counsel for the respondent contends that the judgment of the trial court is based on pure appreciation of evidence. According to him, the respondent/husband requested her to join him by writing a letter as per Ex.P-3 to 6 and the same was sent to her under Certificate of Posting as per Exs.P-7 to 9. The appellant was not willing to join him. Therefore, he contends that there is desertion on the part of the appellant/wife.
14. According to him, the trial court has also appreciated the evidence let-in by the appellant in. regard to cruelty meted out to him by the appellant. In the circumstances, he requests the Court to dismiss the appeal and confirm the judgment of the Court below:
15. Having heard the Learned Counsel appearing for the parties, we have to consider the following points in this appeal:-
(i) Whether the respondent has proved that he has been treated with cruelty by the appellant/wife?
(ii) Whether the appellant has deserted the respondent without any reason for more than two years?
16. Except the self-serving testimony of the appellant and respondent, no other evidence is let-in by the parties. We have seen the examination-in-chief of the respondent. In the entire examination-in-chief, he has not quoted any single instance which can be considered that the appellant has treated him to either physical cruelty or mental cruelty. The examination-in¬-chief is nothing but the replica of the petition. It is so bald and vague. Therefore, based on this examination¬-in-chief, no Court can believe that the respondent has been inflicted with physical or mental cruelty.
17. According to the appellant, when she was a pregnant of eight months, she was sent for delivery and she has given birth to a female baby on 07.03.2005. Thereafter, the respondent has not made any attempts to secure her to the matrimonial home.
18. In the cross-examination, she has stated that her mother and brothers has given him 30 gm of gold, some quantity of silver utensils at the time of her marriage. She has denied that she is an ill-tempered lady and that she was behaving with her husband rudely. Even in her cross-examination, no specific instance is elicited which can be considered as mental or physical cruelty. The only contention of the respondent is that he has addressed four letters as per Exs.P-3 to 6. They have been sent to the respondent under Certificate of Posting. But, the respondent/wife has denied the receipt of these four letters as per Exs.P-3 to 6. According to her, the address given on Exs.P-3 to 6 are not of her address and it is a wrong address.
19. The counsel for the respondent/husband relying upon Exs.P-7 to 9 contends that the letters as per Exs.P-3 to 6 were sent under Certificate of Posting. When a Certificate of Posting is relied upon by the respondent/husband, the presumption under the law is that there is presumption for having been posted the said letters, but there cannot be any presumption that such letters were received by the appellant/wife. Moreover, when the address found on the cover in Exs.P-3 to 6 is incorrect address, it is difficult to believe that such letters were received by the appellant/wife. Even otherwise, if a letter is addressed in the normal course by a husband to his wife, no one will send it under Certificate of Posting. The very intention of sending the letters by under Certificate of Posting would clearly indicate the mind of the respondent/husband to see that evidence is created for the future. It is also evident that because he has maintained the copies of letters said to have been addressed to the wife, in the normal course, if the husband writes a letter to the wife no carbon copies would be maintained by the husband, because it is not an official correspondence to maintain office copies of such letters.
20. By considering the tenor of cross-examination made by the counsel for the wife to PW-1/husband the intention of the husband to take a second wife is revealed, because it is suggested to the husband that with an intention to marry again and harass the respondent, a false case is filed and it is so suggested during the course of cross-examination, the letters produced by him are created only for the purpose of divorce petition.
21. We have to observe that the respondent is not an uneducated person. He is an MA Graduate. He is working as a Principal of a First Grade College. He is well-versed with these correspondences. Therefore, with an oblique motive, he is able to maintain the copies of the letters written to his wife by creating evidence as if the same were sent under Certificate of Posting.
22. From the above, it is clear that there is nothing on record to show that Exs.P-3 to 6 were received by the wife and as stated supra, posting the letters Exs.P-3 to 6 under Certificate of Positing is only an evil design of the respondent to create some documents to keep the same as evidence to file a divorce petition on false and frivolous grounds. The trial court, without considering these aspects, has wrongly held that the respondent has proved the case for grant of dissolution of marriage both or: the ground of cruelty. As stated supra, in the entire petition, the respondent/husband has not quoted any specific instance which can he considered as physical cruelty or mental cruelty.
23. So far as the desertion is concerned, admittedly the wife is willing to join the husband. After she was sent for confinement, no attempt is made by the husband to bring her back to the matrimonial home. He has not even visited the house of her parents. No legal notice is issued calling upon the wife to join him. In the circumstances we are of the view that the trial Court did not consider the case of desertion properly. When the wife has contended that she was sent for confinement and thereafter attempt made by her to join the husband has went in vain, in such circumstances the question of granting decree of divorce on the ground of desertion does not arise at all. If really the husband was having love and affection towards his wife, he would have requested the wife to join him after the delivery. Without doing so only with an intention to take a second wife, a divorce petition is filed on false and frivolous grounds. According to us the findings of the trial Court is perverse and liable to be set aside.
24. Accordingly, the findings of the court below are reversed and the petition filed by the respondent/husband for grant of decree of divorce on the ground of desertion and cruelty is hereby dismissed and the Appeal is allowed.