Judgment:
1. This appeal is filed by the husband challenging the judgment and decree dated 8.6.2005 passed in M.C. No. 181/2003 by the 1st Addl. Prl. Judge, Family Court at Bangalore, by which the petition filed by the appellant herein seeking dissolution of marriage with the respondent has been dismissed.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the trial court.
3. The petitioner was married to the respondent as per Hindu rites and customs on 24.10.1993 at Hanumanthanagar, Bangalore. After their marriage, parties started residing at Rajajinagar Bangalore-10. According to the petitioner, initially their relationship was cordial, but after a few months, the petitioner found that the respondent was very reserved and arrogant and of suspicious character. That she used to quarrel with the petitioner and his family members which was tolerated by them hoping that things would become normal in future. That out of the said wedlock, the respondent gave birth to a female child on 7.1.1995 who is named as Deeptha,A. In the year 1995, the petitioner went to Muscat for his new assignment and the respondent and the child joined him in September 1995. The respondent has studied upto B.E. and at Muscat she completed NUT course and secured a job in LLC and was earning Rs. 25,000/- p.m. According to the petitioner, after the respondent started working, her attitude became worst. She did not respect the petitioner and did not take care of the child properly and on many occasions the respondent condemned the petitioner in front of his friends and well-wishers. The respondent never used to serve food to the petitioner until he requested her to do so and that she had developed short temper and ego and used to behave like a dictator and that whatever she said was agreed to and the petitioner was wrong. She got a transfer of her job from Muscat to Bangalore in the sister concern of LLC at Muscat stating that she does not want to live in the company of the petitioner. That despite many reconciliation meetings held between the parties by the well-wishers to re-unite them, the same have failed on account of the arrogant nature of the respondent. In August, 2002 the respondent settled down at Bangalore along with the child and hence, the petitioner was constrained to file this petition under Section 13(1)(ia) and (ib) of the Act seeking dissolution of the marriage with the respondent.
4. After service of notice from the Family Court, the respondent appeared and filed her statement of objections to the petition admitting her marriage with the petitioner on 24.10.1993 and contended that the parents of the petitioner demanded for jewellery and silver items apart from wrist watch and suit at the time of the marriage and denied the allegations made in the petition. She has also stated that the case of the petitioner is incongruous inasmuch as he has alleged cruelty against the respondent and in the other breath stated that the respondent has refused to join the petitioner. If the allegation of the cruelty was true, then there was no question of calling upon the respondent to join the petitioner. According to her she was forced to leave Muscat and return to Bangalore on account of the cruel conduct and adulterous life of the petitioner. According to the respondent on 7.1.1995 their daughter was born and the petitioner left for Muscat in June, 1995 and she joined him in September 1995 and till June 2002, the relationship between the parties was quite normal, the respondent was working in Oman Computer Services, Muscat, in the Software Department But the trouble started in April 2002, when the petitioner recruited an Assistant by name Maya Mallya. He was working as the Assistant General Manager in Capital Insurance Services at that time and Maya Mallya was already married to one Yogesh Mallya who was working in Gulf Hotel, Muscat, but they had no issues. According to the respondent, after Maya Mallya joined as Assistant to the petitioner in his office, the petitioner stopped his social activities and did not mingle with anybody including the respondent herein. He would frequently make calls at odd hours in the night and she used to call the petitioner at odd hours and when the respondent enquired about the same with the petitioner, he used to shout at her and say that it is purely business talks and nothing else. The petitioner used to go out with Maya and when she questioned about the said behaviour, he tried to give explanation that she was his 'very good friend'. Many times, the respondent's Mends used to inform her that they had seen the petitioner and Maya in various restaurants. When the petitioner went to U.S., he was in touch with Maya. As such, the relationship between the petitioner and the respondent was slowly being cut off by the petitioner and he stopped having lunch and dinner at home. He would come very late from office and sometimes he would go back to work even in the nights, during which time Maya also was present. That the father of the respondent also noticed the strange behaviour of the petitioner when he visited Muscat and he tried to advise the petitioner, but nothing worked. Later, the respondent, her daughter and the respondent's father returned to Bangalore for a holiday and despite the petitioner wanted the respondent to go to Bangalore, the respondent did not agree. Hence, he went alone to Bombay stating that he had some official work and Maya had also gone to Mangalore at the same time and the respondent later learnt that the petitioner and Maya had met at Bombay and thereafter returned to Muscat together. Later, the petitioner stopped talking to the respondent and drifted away from her and as a result, even the physical relationship ceased. That in July 2002, the respondent took leave and returned to Bangalore and the petitioner neither made any telephone call nor contacted the respondent. When the respondent informed her parents about the petitioner, they were shocked to learn about the behaviour of the petitioner and when they spoke to him, he made up his own innocent story. Later, when the petitioner realised that his in-laws came to know about his misdeeds, he called the respondent to agree for divorce, which came as a rude shock to the respondent. She returned to Muscat as her leave was over. On her return to Muscat, the petitioner told her that he was wearing the ring given to him by Maya. Later on, the respondent came to know that Maya was pregnant through the petitioner and she had resigned from her job. One day the petitioner got Maya home and told the respondent that he was emotionally involved with her. The respondent suffered mental agony due to the conduct of the petitioner and she resigned her job and returned to Bangalore and since the parents of the petitioner did not accept the respondent, the respondent stayed with her parents at Bangalore along with her daughter Deeptha who was studying in 4th standard in Bangalore and the petitioner had shown no concern for her. The respondent later learnt that Maya had returned to Mangalore for delivery and that the petitioner visited Mangalore thrice.
5. According to the respondent, her monies are in joint account and her jewellery and other household articles are in the custody of the petitioner and the petitioner has not taken any step to maintain the minor daughter. The petition has been filed only to harass and vex the respondent and therefore, the respondent sought dismissal of the petition.
6. In support of his case, the petitioner examined himself as PW1 and got marked Exs.P-1 to P-3 while the respondent examined herself as RW1 and got marked Exs.R1 and R1(a) to (f).
7. On the basis of the material on record, the trial court framed the following points for consideration:
i) Whether the petitioner-husband proves that the respondent-wile while leading married life with him she has treated him with cruelty and thus he is entitled for dissolution of marriage and decree of divorce as contemplated under Section 13(1)(ia) of Hindu Marriage Act?
ii) Whether there is more than two years desertion between husband and wile immediately preceding the presentation of this petition and thus as contemplated under Section 13(1)(ib) of Hindu Marriage Act the petitioner is entitled for a decree of divorce?
iii) To what order?
On considering the material on record, point Nos. 1 and 2 are answered in the negative and the Family Court dismissed the petition. Being aggrieved by the said order of dismissal, the petitioner has preferred this appeal.
8. This Court on 13.3.2008, directed the parties to be present before the court to explore the possibility of settlement and again on 4.12.2008 in order to explore the possibility of a settlement, the matter was adjourned to 19.1.2009 and subsequently, on 22.1.2009. 27.1.2009 and 31.1.2009. During this period, the appellant did not appear, but the respondent appeared and the counsel for the appellant informed that the parties should speak to each other and reconcile between themselves. Since the appellant was not in a position to be present before the court on account of his assignment at Bombay, the respondent however, categorically stated before us that despite what had transpired in the past, she was willing to join the appellant and we were also given an impression by the counsel for the appellant that the appellant was also interested in continuing his relationship with the respondent. But no categorical statement was made by the appellant before the court since he failed to appear before the court. In the circumstances, the counsel for the appellant and the respondent made their submission on merits.
9. According to the learned Counsel for the appellant, the Family Court failed to consider the evidence of the appellant with regard to cruelty of the respondent and also the fact that since August, 2002, the respondent deserted the appellant. The appellant had requested the respondent to join him on many occasions and that reconciliation meetings were also held, but the respondent did not heed to the advice of the well-wishers on account of arrogance. On account of the fact that the respondent was working and earning an income, her attitude was very arrogant and she made false allegations against the appellant. That the trial court has failed to appreciate the evidence of the petitioner-appellant and has erroneously dismissed his petition, which requires to be reversed in this appeal.
10. Per contra, it is submitted on behalf of the respondent that she is willing to join the appellant despite his past misconduct and that the allegations made by the petitioner against her are false that there was no cruelty on the part of the respondent and neither a case for desertion was made out and under the circumstances, the Family Court was justified in dismissing the petition tiled by the petitioner-appellant herein and the said judgment does not call for any interference in this appeal.
11. Having regard to the above submission, the only point that arises for our consideration is as to whether the judgment and decree passed by the Family Court calls for any interference in this appeal.
12. The petitioner has examined himself as PW1. In his affidavit by way of examination-in-chief, he has reiterated the contents of the petition which are noted by us in detail.
13. The main grievance of the petitioner against the respondent is with regard to her attitude and being a short tempered person, she used to quarrel over trivial things. At Muscat after she got a job, she did not take proper care of the petitioner and the child and was having a dictatorial mind set. She suspected his character and therefore he had suffered cruelty at the hands of the respondent. In his further examination-in-chief he has stated at his instance the respondent completed NIIT course.
14. In his cross-examination he has stated that from the date of marriage till 1996 the marital relationship was good but from 1996 onwards their relationship has not been good. He has also admitted that though the respondent is willing to reside with him, he is not ready to live with the respondent He has also admitted that one Maya Mayya was appointed as his Assistant in the office and that certain writings in the diary marked as Ex.R1 are hers. He has however, denied that he kept calling the said Maya, for any other purpose apart from office work and that even in the nights or while he was in USA on work, he used to call her for the purpose of his official work. He has categorically denied the letter dated 6.7.2002 being that of Maya and that there was no relationship between them.
15. According to PW.l, Maya is married and has a daughter; that she is not full time employee of his office, but she is only working on part time basis and that there is no relationship between them. He has also reiterated that the respondent has been cruel to him and hence relief ought to be granted to him.
16. As opposed to this, the respondent in her affidavit by way of examination-in-chief has re-iterated the contents of her statement of objections and has stated that till April 2002 there was no question of her suspecting the fidelity and character of the petitioner at Bangalore and Muscat and the trouble started only from April 2002 when the petitioner was working as Assistant General Manager recruited one Maya as his Assistant and thereafter he stopped all social activities and did not mingle with anybody and started ignoring the respondent also. When questioned about his behaviour by the respondent, the petitioner said that she was his good Mend and that even when he was in U.S.A he was in constant touch with her. As a result of his relationship with Maya, he would come late to the house from office and he would get back to work even in the nights. According to her she is not arrogant or dictatorial but has always co-operated with the petitioner. The petitioner and she had joint account with the bank at Muscat and that her jewelry and other valuables are at Muscat. According to her the petition had been tiled only to vex her and coerce her to come to terms with the improper and unjust behaviour and conduct of the petitioner; that she has always been willing to reside with him despite the petitioner being guilty of causing mental cruelty to her and that he cannot be granted any relief as he has taken advantage of his own wrong.
17. In her cross-examination she has stated that since the time of the marriage till April, 2002, the relationship between the parties was good. After the birth of the child in January 1995 the petitioner left for Muscat in May 1995 and she went to Muscat in September 1995 and she secured a job in 1999 with the help of her husband as she had completed B.E., in Electronics in India and completed NIIT Course with the help of her husband. When she started working at Muscat she was receiving Rs. 35,000/- salary and both the parties were remitting their salaries in their joint account. it was on account of Maya who joined the petitioner's office in April 2002, mis-understanding arose between the parties and that Maya was removed from service in August 2002. In October 2002 the respondent left Muscat and arrived at Bangalore. According to RW.1 the petitioner was leading an adulterous life with Maya and once he had brought her home also and that they were moving together and visited restaurants. To a question posed by the court as to whether she was ready to join the petitioner or willing to agree for divorce, she had stated inspite of mistakes committed by the petitioner, she was ready to join him. She has denied that on account of false notions she had decided that she could not continue her married life with the petitioner and had returned from Muscat to India. According to her, the petitioner met the Manager of her company and got her transferred from Muscat to Bangalore and that she and the daughter have been residing at her parents' house at Bangalore and she is working and earning a sum of Rs. 20,000/- p.m. No panchayat took place after her return from Muscat and that since June 2002 she has been residing with her parents. She has denied that she has treated her husband with cruelty and also there is no desertion of two years before presenting the petition. Ex.R1 is a diary belonging to the petitioner which has been produced by the respondent in which writing on 2.6.2002 and 15.6.2002 marked as Ex.R1(f) & (g) has been admitted to be Maya's writing by the petitioner. But he has denied the writing of 18th, 19th and 20th of June 2002 to be that of Maya. The petitioner when confronted with the writings as also the writing of 5.7.2002, has said that he cannot identify the handwriting of 10th, 11th and 12th August 2002.
18. Before appreciating the said evidence, it is necessary to advert to the law with regard to cruelty being a ground for divorce.
19. In Black's Law Dictionary the term mental cruelty' as a ground of divorce has been defined as a course of conduct of a spouse that creates such anguish that it endangers the life, physical health or mental health of the other spouse.
20. The Hon'ble Supreme Court in the case of N.G. Dastane (Dr) v. S. Dastane reported in : (1975) 2 SCC 326 has observed that enquiry by the court in a case where cruelty is alleged must be as to whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner, a reasonable apprehension that it will be harmful or injurious for him to live with the respondent
21. In the case of V. Bhagat v. D. Bhagat reported in : (1994) 1 SCC 337, it has been observed that mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively.
22. In the case of Savithri Pandey v. Prem Chandra Pandey reported in : (2002) 2 SCC 73 the Hon'ble Supreme Court observed that cruelty must be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct, which would in general, be dangerous for a spouse to live with the other.
23. In the case of Parveen Mehta v. Indrajit Mehta reported in : (2002) 5 SCC 706 it has been observed that the approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.
24. In the case of A. Jayachandra v. Aneel Kaur reported in : (2005) 2 SCC 22 it has been observed that in physical cruelty there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. it is in this view that one has to consider the evidence in matrimonial disputes.
25. In the case of Vinitha Saxena v. Pankaj Pandit reported in : (2006) 3 SCC 778 it has been observed that as to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.
26. In the case of Samar Ghosh v. Jaya Ghosh reported in : (2007) 4 SCC 511 the Hon'ble Supreme Court after reviving the English, American, Canadian and Australian cases held that no uniform standard can ever be laid down for guidance with regard to mental cruelty. But however, has enunciated certain instances being illustrative but not exhaustive of what constitutes mental cruelty wherein it has been held that the married life should be reviewed as a whole and few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. But mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-today life would not be adequate for grant of divorce on the ground of mental cruelty.
27. While referring to an earlier decision in the case of Naveen Kohli v. Neelu Kohli reported in : (2006) 4 SCC 558 it has been observed that Public interest demands not only that the married status should as far as possible, as long as possible and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
28. Keeping in mind the above principles, the evidence on record would have to be appreciated. According to the petitioner the marriage took place between the parties in October 1993 and the marital relationship was cordial in the beginning but after a few months the respondent became arrogant and of suspicious character and used to quarrel on trivial things with the members of his family. A child was born in January 1995, thereafter the parties moved to Muscat where the respondent completed a course in computers and was also got a job with the assistance and encouragement of the petitioner. According to the petitioner after she stalled working the respondent's attitude towards the petitioner became worse and that since August 2002 she has been residing in Bangalore.
29. According to the petitioner the relationship between the parties was good only till 1996 and after that it deteriorated on account of the aforesaid reasons. However, what is significant is that the petitioner did not take any steps with regard to his deteriorating relationship with the respondent. The parties continued to live together from 1996 till 2002. According to the respondent it is only from June 2002, the relationship between the parties turns sour on account of the conduct of the petitioner as he stalled having an extra marital relationship with one Maya who was appointed as his Assistant in the office and the constant interaction between the two during the day as well as in the night and the consequent change in the attitude of the petitioner not only with the Mends' circle, but also with the respondent and the daughter, created a conflict in the relationship between the parties. According to the respondent, despite the mis-conduct of the petitioner, she is willing to reside with him. In fact in the cross-examination the petitioner has admitted that Maya was appointed as his Assistant in the office. He has also admitted her writing in his diary produced as Ex.R1. In fact it is this mis-conduct of the petitioner which forced the respondent to return from Muscat and settle down in Bangalore. According to the respondent, but for the petitioner's relationship with Maya she had no grievance as such against him. Under the circumstances we find it difficult to accept the case of the petitioner that the respondent has been guilty of causing cruelty to him. On the other hand this is a case where a problem in the marital relationship occurred on account of the conduct of the petitioner in having an extra marital relationship, as a result of which, his attitude and behaviour towards the respondent became negative and totally averse to a cordial marital life. Thus it is the petitioner who has been guilty of misconduct and under the circumstances in view of Section 23(1)(e) of the Hindu Marriage Act, we find that the petitioner cannot take advantage of his own wrong by filing the petition against the respondent. Further the material on record and the allegations made are such, which in our view, do not make out a case that the respondent had caused cruelty to the petitioner. The following illustration given in the case of Samar Ghosh v. Jaya Ghosh are relevant to the present case. Judged on the above basis we find that the petitioner has not made out a case against the respondent. (i) On consideration of complete matrimonial life of the parties acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (iv) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger of apprehension must be very grave, substantial and weighty. (v) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (vi) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (vii) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. Hence on the issue of cruelty we answer against the petitioner.
30. Section 13(1)(ib) of the Act states that the desertion must be for a continuous period of not less than two years immediately preceding the presentation of the petition and in the explanation to the said provision the word 'desertion' is defined as the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes willful neglect of the petitioner by the other party and its grammatical variation and cognate expression have to be construed accordingly.
31. Therefore, a legal definition has been given to the concept of desertion under the Act and it envisages the following ingredients viz.; (1) The factum of separation (2) the intention to bring cohabitation permanently to an end (animus deserendi) and that both the above conditions should continue during the entire statutory period. Therefore, in order to constitute a matrimonial offence, desertion must be for a continuous period for not less than two years before the presentation of the petition. In the case of Bipin Chandra v. Prabhawati AIR 1956 SC 1756 the Hon'ble Supreme Court has explained the concept of desertion under the Act and pointed out that desertion is a matter of inference to be drawn under the circumstances of each case. The inference may be drawn from certain facts, which may not in another case be capable of leading to the same inference. If in fact there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi since both the factum and animus should co-exist for a period of atleast two years. In the case of Lakshman v. Meena : AIR 1964 SC 40 and Rohini Kumari v. Narendra Singh : AIR 1972 SC 459 the Hon'ble Supreme Court has reaffirmed the principles stated in the earlier case with regard to the concept of desertion under the Hindu Marriage Act.
32. Therefore, one of the essential ingredients of desertion is separation of one spouse from another and there can be no desertion while parties are living together. Further continuing evidence of desertion for the statutory period of at least two years can never become complete until the petition is actually presented. Further if the deserting spouse genuinely desires to return to matrimonial home, the other spouse cannot refuse reinstatement.
33. The question whether deserting spouse has a reasonable cause for not trying to bring the desertion to an end and the corresponding question whether desertion without cause has existed for the necessary period is always a question of fact. In considering the conduct of the deserted spouse in any such case, the court will have regard to the facts of the particular case, in order to ascertain what in fact was the impact on the mind of the deserting spouse of anything which was said or done by the deserted spouses. Further the agreement to pay maintenance is not in itself proof of consent to live apart.
34. The expression 'willful neglect' used in the explanation though not defined excludes acts or omissions done by accident or inadvertence. On the other hand there must be conscious acting in a reprehensible manner in discharging all marital obligations which connote a degree of neglect resulting in willful neglect. Therefore, breach of every tie of marriage or failure to discharge every tie of marriage or obligation cannot be regarded as willful neglect. The neglect to become desertion must be such as amounts to forsaking or abandonment of one spouse by the other by a conscious disregard of the duties and obligations of the married state considered as a whole. Further a spouse may be guilty of such misconduct as would render the continuance of marital relations so unbearable that the other spouse feels compelled to leave the matrimonial home and in such a case it is the former and not the latter, who is the deserter. It is incumbent on the petitioner to prove that desertion without reasonable cause subsisted throughout the statutory period. Before granting relief on the ground of desertion the court must be satisfied that the matrimonial offence complained of is established. The legal burden of proof lies on the petitioner to establish that the desertion was without cause and to discharge that burden the petitioner may rely on the fact that he asked her to join him and she refused. Once he proves that fact of refusal she may seek to rebut the interference of desertion by proving that she had just cause for her refusal and usually it would be wise for her to do so.
35. As far as desertion is concerned we find that the respondent returned to Bangalore in August 2002 and the petition is presented in January 2003 since the statutory period of two years stipulated under Section 13 of the Act with regard to desertion of the spouse has not been completed. In the instant case, the ground of desertion is not also available to the petitioner. Apart from this we find that there was no intention to desert the petitioner on the part of the respondent, but on the other hand, the reason for her return to Bangalore was on account of the conduct of the petitioner and the respondent finding that the petitioner has no longer in touch with his Assistant Mava, she is willing to join the petitioner. Hence we find that the petitioner has tailed to make out a case on the ground of desertion also.
36. For the aforesaid reasons we hold that the petitioner has failed to prove the allegations of cruelty and desertion against the respondent and therefore, dismiss the appeal by confirming the Judgment of the Family Court by holding that the petition filed by the petitioner is dismissed. No costs.