Judgment:
D.V. Shylendra Kumar, J.
1. The petitioner-husband is the appellant herein, being aggrieved by the order dated 6-1-1994 passed in M.C. No. 46 of 1988 on the file of the II Additional Civil Judge at Mysore, whereby the learned Civil Judge dismissed the appellant's petition for divorce filed under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 ('the Act' for short).
2. The appellant being dissatisfied and undaunted by the findings of the Trial Court that the appellant was not able to prove either the ground of cruelty or the ground of desertion, has come up in appeal to this Court under Section 28 of the Act.
3. The brief facts leading to this appeal are as under.--
The appellant and respondent are husband and wife pursuant to a marriage solemnised on 22-5-1977 as per Hindu rites. The appellant and respondent were both working as lecturers at the time of marriage. The couple got a male child in the year 1982. In the interregnum, the appellant-husband who had been awarded a scholarship had gone for higher studies under U.S.A. NASA Fellowship at U.S.A. in the year 1979 and it appears the respondent had also accompanied him and had occasion to stay with the appellant-husband for a period of about three months, but thereafter she had returned to India. One Sri Subbarayachar, maternal uncle of the respondent-wife, was an ardent well-wisher of the couple and it appears both the husband and wife had great regard and respect for this person who had retired as a professor from the Mysore University and who was a person much senior in the University, to the appellant-husband as well as respondent 1. In fact, it appears that on the invitation of this person, the couple were staying in his residence located at Jayalakshmipuram, Mysore. It was while they were so residing, that the appellant-husband got an opportunity to go abroad for further studies. After the appellant-husband returned completing his further studies at U.S.A., it appears, differences did arise between the parties and their marriage has not worked thereafter. While this narration to this extent is not in dispute between the parties, the respective versions are as under:
4. The case of the petitioner-husband was that respondent-wife did not care for the husband nor has shown any understanding towards his feelings and requirements even while the respondent had stayed with him in the United States of America for a short duration of three months and had abruptly returned to India even to the extent of causing substantial monetary loss to the appellant-husband as the appellant was penalised by making him pay for the journey of the respondent-wife, as the respondent had returned to India violating the conditions under which the appellant-husband had been granted scholarship for the higher studies and had been provided expenses towards the journey for the couple. According to the petitioner-appellant, as the respondent-wife returned before the permitted time, the expenses towards her journey, which had been reimbursed by the University, was later recovered from the appellant-husband.
5. The further case of the husband was that the respondent did not even bother to turn up at the airport when the appellant-husband returned from the U.S.A. in the year 1982 and even thereafter because of the hostile attitude on the part of the respondent-wife, they could not live in harmony and from the year 1983 onwards, they started living separately and there has been no marital facilities as between the appellant and the respondent ever since. It is the further case of the appellant-husband that they work in the same University, live under the same roof, but they are not even on speaking terms and as the conduct on the part of the respondent got worse by the day, the appellant was driven to the plight of seeking relief by filing a divorce petition in the year 1988.
6. The respondent in defence stated that the marriage between the parties did take place in the year 1977 and that they were living happily in a rented house at Ontikoppal in Mysore for an year or two and thereafter they shifted to the residence of the respondent's uncle, namely one V.K. Subbarayachar and began to live in the house of Sub-barayachar; their relationship continued to be quite cordial; that around that time, the petitioner had registered for doctorate as a Research Scholar at C.F.T.R.I. at Mysore and in connection with that, he went abroad for a period of three years and stayed in U.S.A.; that the respondent had also initially joined him and had stayed with him for a period of about three and a half months, but returned to India and pursued her own doctorate thesis; that they got a son born out of the wedlock in the year 1982; that the said Subbarayachar had executed a Will on 29-7-1983 bequeathing his house where they were living, jointly in their names; he died during the year 1986 and that he, in fact, was keen on giving the house to their son.
7. The respondent had denied the various allegations in the petition made against her. She contended that she was always dutiful and had taken all care and looked after the petitioner; that her aged mother and sister who are depending on her are also living with her; that the petitioner in fact was to be blamed as he neglected the respondent as he was having illegal intimacy with a widow by name Shanthamma who was a maid servant and this caused strained relationship between the parties, but not to the extent of reaching a breaking point and the petitioner on his own, moved to a portion of the house and started living on his own. Petitioner disregarded and disrespected the respondent and started treating her contemptuously and in fact was arraigning the respondent by persistent nagging and tantrums by hurling false accusations. The respondent particularly denied that she had either deserted or acted in a manner amounting to treating the petitioner with cruelty, but it was the petitioner's own conduct that has spoiled the matrimonial life and pleaded for dismissal of the petition.
8. In the light of such rival pleadings, the Trial Court framed the following four points for determination.--
'1. Whether the petitioner is entitled for the relief sought in this petition on the ground of desertion?
2. Whether the petitioner is entitled for the relief sought for in this petition on the ground of cruelty?
3. Whether the marriage of the petitioner with the respondent has to be dissolved through a decree of divorce?
4. To what decree or order, the parties to this proceeding are entitled?'
9. The Trial Court having answered the grounds of desertion and cruelty against the petitioner and having held that the petitioner had failed to prove either desertion or cruelty on the part of the respondent-wife, dismissed the divorce petition holding that there were no grounds to grant a decree of divorce. It is against this order of dismissal that the petitioner is in appeal before this Court.
10. Insofar as the ground of desertion is concerned, the learned Trial Judge found that the conduct of the respondent can never be called as to be one to drive away the petitioner from the company of the wife so as to constitute an act of desertion on the part of the wife.
11. Sri G. Balakrishna Sastry, learned Counsel appearing for the appellant-husband did try to canvass the ground of desertion also for granting a decree of divorce by trying to draw a parallel in the circumstances of this case and the circumstances of the case Bipinchandra Jaisinghbai Shah v Prabhavati, and the ratio laid down therein and the concept of constructive desertion by husband which is when the wife has been forcibly turned out of the marriage home by the ill-acts and the violent behaviour, and the husband is guilty of constructive desertion and it was held that the test was not as to who had left the matrimonial home first, but because of the conduct and words of which spouse, the other spouse was forced to leave the matrimonial home and the one who caused for such driving away of the other spouse should be held to be guilty of desertion though it is the other spouse who has physically moved away from the matrimonial home. The learned Counsel tried to submit that this is a case wherein the conduct on the part of the respondent-wife was so untoward and intolerable for the petitioner-husband that he was forced to withdraw from her company and live separately on his own in a portion of the house. The Trial Court rejected the plea of desertion on the material before it and on looking into the conduct of the parties, we have also considered this aspect carefully and with seriousness. This is not a situation where only one of the spouses is on the wrong and the other is put on the defensive. It is obvious that the husband and wife both are highly educated and working as Professors in the very University and in fact, being Heads of the respective Departments, were not yielding to one another and as such, naturally differences cropped up. The differences got enlarged and led to a situation where the husband in fact could not even tolerate the presence of the wife though the petitioner has his own reasoning for the same. It is under such circumstances that the petitioner had by himself voluntarily moved to a portion of the house and is living separately though in practice he did find it quite troublesome. We are unable to accept the submission of Sri G. Balakrishna Sastry, learned Counsel for the appellant-husband that on the material on record and in the circumstances of the case it should have been held that the petitioner-appellant had made out a case of desertion as against the respondent-wife.
12. Learned Counsel for the appellant has focussed more attention on the second ground of divorce, namely cruelty. It is on this aspect the learned Counsel has made elaborate submissions relying upon several decided cases. In fact, as we find from the judgment of the Trial Court, the appellant-petitioner had sought to contend that as many as seven circumstances and instances have clearly probabilised the act of cruelty on the part of the wife justifying the Court granting a decree for divorce. It may be useful for us to mention those grounds here also as under.--
(1) Non-arrival of the respondent to the Airport at the time of return of the petitioner from abroad in the month of January 1983.
(2) Non-attendance of the respondent in the funeral of the petitioner's father.
(3) Lodging of complaint by the respondent against the petitioner to the police.
(4) Frequent visits of Thimmappa, Shivanna and Jagadeesh to the house of the respondent and free movement of the respondent with those persons.
(5) Not allowing the son of the petitioner to have a free access with the petitioner, and
(6) Allegation as to illegal intimacy of the petitioner with Shanthamma and Deena.
(7) Concealment of the age of the respondent.
13. The version of the petitioner was that such conduct on the part of the respondent-wife, put together had brought down his prestige and reputation and his image has greatly suffered in the eyes of the public and particularly in the circle of his friends and colleagues and it definitely constitutes an act of cruelty, a reason enough for granting a decree of divorce.
14. The learned Trial Judge did examine each and every count of these allegations and found none of them to hold water nor did constitute an act serious enough to be construed as an 'act of cruelty' in the context of the requirements of Section 13(1)(i-a) of the Act.
15. The first of these seven grounds is absence of respondent-wife atthe airport when the petitioner returned from the United States ofAmerica in the month of January 1983. We should bear in mind that thedivorce petition itself had been filed in the year 1988, five years afterthis and it is on record that the relationship between the parties wasreally not as sore as at that time and they did live together with reasonable understanding and comfort for some time thereafter also. Apartfrom the fact that there could have been several reasons as to the absence of the respondent at the airport when the petitioner arrived fromU.S.A., it is too far-fetched to hold it against the wife as to constitute anact of cruelty.
16. The respondent not attending the funeral of the petitioner's father is another ground said to constitute an act of cruelty. Here again, this arose as a ground after several years after the incident and in respect of one time instance, apart from the fact that the respondent was living at Mysore while the parents of the petitioner were living in their native place near Mangalore and there is no evidence of much interaction or movement between the two places by the parties or their relatives. The respondent also had explained that she was to take care of her son who was of tender age by that time and perhaps was not in a position to undertake a journey. What is very significant is that the petitioner himself was away at U.S.A. at that time and he returned to India only after completing his higher studies and not in-between at the time of the death of his father. It is really beyond one's comprehension that the act on the part of the wife in not being able to go and attend the funeral of her father-in-law can constitute an act of cruelty against her husband.
17. The colleagues of the respondent, namely Thimraappa, Shivanna and Jagadeesh visiting the house of the respondent is sought to be projected as another ground of cruelty as it is alleged that they were moving freely with the respondent. It does appear that the petitioner in fact tried to physically prevent and tried to manhandle the colleagues of the respondent in the college, visiting the respondent's house and in this context the respondent had even filed a police complaint against the violent behaviour and conduct of the petitioner. This again is sought to be construed as an act of cruelty. On a proper scrutiny of the material on record, it is obvious that the petitioner was obsessed and had developed suspicious tendency against his wife and was viewing all developments from this angle. It is but natural when relationships are strained, even a mole becomes a mountain. In the matter of objectively analysing and assessing as to what act can constitute an Act of cruelty against one of the spouse as against the other for granting a decree of divorce, though no doubt it is also required to be assessed in the relative context, but still, it should also be capable of passing an objective test and the Court cannot view things and assess this from the perspective of the petitioner alone. The Court is required to look at it on the basis of accepted norms and legal principles and normal conduct of human beings and the society. If the acts highlighted by the petitioner should be viewed in such perspective, we have no doubt in our mind to hold that such acts can never constitute an act of cruelty on the part of the respondent-wife for the purpose of Section 13(1)(i-a) of the Act.
18. The other ground pleaded to constitute an Act of cruelty on the part of the respondent is not allowing the son to have free access and company of the petitioner. This is an allegation which is not really proved on the material on record and on the other hand, it is difficult for the Court to believe the same as admittedly the petitioner as well as the respondent did continue to live in the same house though they are not on talking terms and live in separate parts of the house without any interaction. But, it was always open to the petitioner to have shown sufficient love and affection towards his son and he could have always created an atmosphere of confidence and affection, in which event, the son definitely would not have shunned the company of the father. Merely blaming the respondent as the one who has prevented their son to have access to him, is a bald and baseless allegation only for the purpose of making out a ground for divorce. We are in agreement that the Trial Court rightly rejected this ground as a circumstance to warrant or infer as an act of cruelty on the part of respondent-wife.
19. The petitioner had also alleged that the respondent-wife had concealed her age which is 5-6-1948, which came to his knowledge for the first time while she was deposing in the witness-box and he realised to his horror and shock that she was in fact elder to him as his own date of birth is 14-7-1948 and concealment of true age of the respondent-wife for such a long period of time constitutes an act of cruelty. But, we can only say that it is a ground raised out of sheer desperation and for want of circumstances or situations to justify the act of cruelty on the part of the respondent-wife.
20. The allegations in the defence statement of the respondent to the effect that the petitioner had illegal intimacy with one Shanthamma has caused great anguish and pain to the petitioner and this has been urged as constituting an act of cruelty on the part of the respondent-wife and had been sought to be pressed with great force at the time of argument. Sri G. Balakrishna Sastry, learned Counsel for the appellant has also submitted before us that this act definitely constitutes an act of cruelty inasmuch as the respondent has deliberately tried to not only tarnish the image of the petitioner but also has done the same with deliberate-ness to cause him anguish and suffering. Sri Sastry submits that attributing illicit intimacy by the petitioner with a maid servant, definitely can constitute an act of cruelty particularly having regard to the social status of the petitioner, who is a professor and Head of the Department in the University and making such false and frivolous accusations, has caused the greatest mental torture to the petitioner that undoubtedly constitutes an act of cruelty on the part of the respondent-wife.
21. In support of his submissions Sri G. Balakrishna Sastry, learned Counsel for the appellant has relied upon the decision of the Apex Court in V. Bhagat v D. Bhagat (Mrs.). In this case, the Apex Court dealing with the concept of cruelty for the purpose of Section 13(1)(i-a) of the Act, held, that even a pleading in the defence statement can cause such great anguish and suffering to the other party, that it can be held to constitute an act of mental cruelty and the very allegation against the other spouse of such nature that it will ensure that they cannot live together any further and such an allegation can be taken to be an act of mental cruelty. The Apex Court also ruled that the social status, the education level of the parties, the company that they are moving, are all very relevant in deciding as to whether the allegation made against the other spouse can constitute an act of mental cruelty on the part of the person making allegation. The Apex Court also held that what can constitute an act of cruelty in one case may not necessarily amount to an act of cruelty in another situation and it was an inference to be drawn on the totality of the circumstances of each case. In that case it was held that an allegation against the husband and his ancestors and members of the husband's family as persons of insanity and that streak of insanity runs through the family of her husband could constitute an act of mental cruelty, sufficient to grant a decree of divorce under Section 13(1)(i-a) of the Act. On fact we find a little parallel in the present case and that case though the conclusions are different. The case before the Apex Court was again a case in which the husband had sued for divorce on the ground that the wife was leading an adulterous life. The wife, while denying the allegation, went on to attribute allegation of mental in equilibrium on the part of the husband and had pleaded that a streak of insanity runs through his entire family.
22. In the present case, the petitioner also had alleged acts of indiscretion and possible illegal intimacy on the part of the wife with one or some of her colleagues. What had been said was that the wife was moving with other male persons like Thimmappa, Shivanna and Jagadeesh in a manner unbecoming of a dutiful wife. The learned Counsel for the petitioner, even before the Trial Court did not go to the extent of attributing any act of adultery as against the wife, but only wanted to plead that the circumstances that the wife was found moving freely with her male colleagues constituted an act of cruelty on her part as it caused great mental agony to the petitioner. The learned Trial Judge has found that the plea in this regard had been taken at the earliest point of time and with scope for placing sufficient material particulars before the Court, the petitioner was not able to prove that the respondent-wife had any illicit intimacy with any of her colleagues or with the said B.K. Shivanna, with whom she is alleged to be moving freely and who had been visiting their house also, along with other colleagues. When viewed in this context, it is obvious that the petitioner and respondent have been trading charges to suit their versions and neither is really serious about the same or has gone to the extent of proving any of the charges, but obviously such charges are pleaded for the purpose of denting the image and the reputation of the other. The petitioner himself is guilty of such reckless and baseless charges as against his wife and it is too much on the part of such a person to plead or to say that a counter-allegation by the wife suggesting an act of illegal intimacy with another woman to be a cause for their matrimonial disruptions and upheavals, as an act constituting cruelty on the part of the wife. We are not inclined to accept the submission of the learned Counsel for the appellant that such allegations can constitute an act of mental cruelty in the present situation, warranting a decree of divorce by the Court under Section 13(1)(i-a) of the Act.
23. Sri Sastry, learned Counsel for the appellant, has also relied upon the decision of the Apex Court in Smt. Sneh Prabha v Ravinder Kumar and Romesh Chander v Smt. Savitri, to submit that a situation where the marriage has irretrievably broken down and there was absolutely no chance of the husband and wife living together any further and they have been living separately for quite some time and when a Court finds no reason to force them to continue in such unworkable marital entanglement, it is rather prudent and practical to grant a decree of divorce and the parties are released from the matrimonial knot.
24. In the light of such submissions, the Court did try to conciliate the matter between the parties. In fact, the parties had been called to appear before the Court. They were also counseled and their views were elicited. The matter had been heard before not one, but several Benches of this Court and before three of the Benches in which one of us was a member in common. Several compromise formulae had been suggested and the parties had taken time to explore the same and to submit to this Court. Ultimately they could not come to any agreeable terms either for coming together or to live together or for parting company on any mutually agreeable terms. In fact it was due to the failure on the part of the parties to resolve the dispute one way or the other, either to join together and live together hereafter or to separate company peacefully and gracefully that has compelled this Court to hear the matter on merits and decide the appeal on merits. We did find that there was no rap-preachment between the parties, but unfortunately neither spouse is also willing to yield to the other spouse. Though we did realise the futility of continuing such an arrangement, the respondent-wife did express that even at this stage she is ready and willing to continue their matrimonial life and live together at least for the sake of their son, forgetting the past. However the appellant-husband was not ready for this course of action. In a situation where the marriage is irretrievably broken and the parties come to an understanding and terms and seek for a divorce as is provided under Section 13-B of the Act, there will not be any difficulty on the part of the Court to grant a decree for divorce by mutual consent. But when divorce is sought for on the allegations of desertion and cruelty, and when such grounds are not made home, in an appeal as against such a judgment and decree, what the Appellate Court can look into the question of correctness and legality of the order passed by the Trial Court within the framework of law. If the party seeking for divorce on any of the enumerated grounds under Section 13 of the Act is able to make home the same, a decree for divorce can be granted. But when the appellant-petitioner who had approached the Trial Court failed in doing so and is in appeal before this Court, has not made home his grounds and on the other hand if this Court is fully satisfied with the correctness and legality of the order in appeal, the question of passing or granting a decree for divorce on the premise that the marriage has irretrievably broken, does not arise. In this regard, we accept the submission made on behalf of the respondent-wife by her learned Counsel Sri P.K. Bhat that a decree for divorce cannot be granted just because the marriage has not worked and has broken down. Learned Counsel for the respondent has, on the other hand, relied upon a decision of this Court in K.R. Manjunath v Smt. Veena. It was precisely for this reason we had suggested the parties to explore the possibilities of a reconcilement even for a decree of divorce by mutual consent. But, as the parties could not come to any such agreeable terms for a decree for divorce by mutual consent, this Court cannot pass a decree for divorce, merely on the premise that the marriage has irretrievably broken down. Under such circumstances, we are of the view that the decisions relied upon by the learned Counsel for the appellant does not entitle the appellant to seek a decree of divorce by allowing the appeal.
25. Sri G. Balakrishna Sastry, learned Counsel for the appellant has also sought to refer to the various pleadings between the parties not only arising out of the present divorce petition but also in related cases where the parties have traded serious charges against each other to indicate the mutual animosity between the parties and to impress upon the Court that it has reached such a stage that there is absolutely no possibility for them to come together again for leading a harmonious life. As discussed above, it may be true that the parties are not able to see eye to eye any more, but that itself cannot be a ground to grant a decree of divorce.
26. The learned Counsel for the appellant has also brought to our notice a few more decisions of the other High Courts in this regard viz., Smt. Savitri Balchandani v Mulchand Balchandani, Smt. Kamini Gupta v Mukesh Kumar Gupta and Sabitanjali Pattanaik v Priyabrata Pattanaik. We have considered these decisions and in our view they are not of much assistance in the present facts and circumstances of the case for granting any relief to the appellant in the present case.
27. The reliance placed by the learned Counsel for the appellant on the decision of the Division Bench of our High Court in Smt. Swayamprabha v A.S. Chandrasekhar, that levelling allegations of adultery without proper foundation and basis would constitute mental cruelty on the part of the spouse making such allegations and cause such anguish on the other spouse to seek for a decree of divorce is not as such applicable to the facts and circumstances of the case. As we have already noticed, the parties have traded charges a little lightly and casually and both are guilty. Therefore, the petitioner-appellant husband cannot press the ratio of this decision, only to his advantage forgetting his own misdeeds.
28. It is not as though we are not oblivious of the stalemate that hasarisen as between the appellant and the respondent in the present case.We have also noticed that the appellant and the respondent have reconciled to this position and have been living in this status for the pastmore than ten years or so. In the absence of mutual willingness andconsent for a decree of divorce on their own, the same cannot be forcedupon the parties by this Court. In fact we do not find any great harm orinjustice to the parties if they continue their present state of living andstatus quo continues.
29. Accordingly, we are unable to find any merit in the appeal or reasons to interfere with the judgment and decree passed by the Trial Court and we are not in a position to accept this appeal.
30. Appeal fails and is dismissed. Having regard to the peculiar circumstances, the parties are left to bear their own costs.