Read Order: SMT. S. SHYAMALA @ KATHYAYANI vs. SRI B. N. MALLIKARJUNAIAH

Tulip Kanth

Bangalore, March 24, 2022: Observing that the husband was unable to prove his allegations of desertion and cruelty against the wife, the Karnataka High Court has set aside a decree of divorce.

The Bench of Justice Alok Aradhe and Justice S.Vishwajit Shetty said, “Merely for the reason that the wife was demanding a separate house and that she was in the habit of leaving the matrimonial house and going to her sister’s and parents’ house, the same cannot be termed as ‘cruelty’ for the purpose of seeking a decree of divorce”.

The Bench was hearing a miscellaneous first Appeal under Section 19 of the Family Courts Act, 1984, filed by the wife challenging the judgment and decree passed by the Court of Additional Principal Judge, Family Court at Bangalore, wherein the petition filed under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955, by the husband was allowed.

The factual background of this case was that the marriage of the appellant-wife with the respondent-husband was solemnized in the year 2002 and they have a daughter. The respondent had approached the Family Court, Bangalore, seeking dissolution of the marriage contending that the appellant demanded setting up a separate house immediately after the marriage and she was in a habit of quarrelling with his family members for no reason. 

It was his case that she used to leave the matrimonial house and go to her sister’s house and mother’s house without informing him and had also got a criminal complaint registered against him and his relatives for the offences punishable under Sections 498-A, 323, 504, 506 r/w Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

The Family Court had allowed the petition filed by the respondent-husband under Section 13(1)(ia) and (ib) of the Act and the marriage between the parties was dissolved by a decree of divorce. Being aggrieved by the same, the wife had preferred this appeal.

Counsel for the appellant-wife submitted that the Judge of the Family Court had erred in granting a decree of divorce since the husband had failed to prove the ground of cruelty and desertion against the wife. It was argued that mere filing of a criminal case itself does not amount to cruelty unless it was proved that the wife was in the habit of filing false cases against the husband and his relatives. It was also submitted 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. 

According to the Division Bench, mere filing of a criminal case itself could not be termed as “cruelty”. For the purpose of Section 13(1)(ia) of the Act, “cruelty” could be wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. 

The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty, added the Bench.

Insofar as the complaint filed against the wife by the School Authorities on the allegations of kidnapping was concerned, the High Court was of the view that the appellant-wife was acquitted for the alleged offence. The appellate court while setting aside the order of conviction passed by the Trial Court had 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 the accused herself being the mother of the victim girl was her lawful guardian.

Stating that the husband had not proved his allegation of cruelty as against the wife, the Division Bench also highlighted an incident where the husband after throwing the wife and child out of his house did not make any attempt to take back them and on the other hand, he immediately got issued a legal notice to the wife seeking divorce. 

On the ground of desertion, the Court clarified that 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. Thus, 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. 

It was also highlighted by the High Court that the Apex Court has time and again observed that a decree of divorce on the ground of irretrievable failure of the marriage can be granted only by the Supreme Court in exercise of its powers under Article 142 of the Constitution of India and not by any other courts.

Under the circumstances, the Division Bench was of the considered view that the Judge of the Family Court was not justified in allowing the petition filed by the respondent-husband and dissolving the marriage by a decree of divorce. 

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