(Prayer: This MFA filed u/S. 19(1) of Family Court Act, against the judgment and decree dt.11.02.2019 passed in Mc No.225/2017 on the file of the I Additional Principal Judge, Family Court, Mysuru, dismissing the petition filed u/S.13(1)(I-A)(I-B) of Hindu Marriage Act.)

CAV Judgment

H. Shanthi Bhushan, J.

1. This appeal is filed by the husband challenging the judgment and decree dated 11.02.2019 passed in M.C. No. 225 of 2017 by the I Additional Principal Judge, Family Court, Mysuru ('Trial Court').

2. By the impugned judgment, the petition filed by the appellant under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 ('the Act') seeking dissolution of marriage on the grounds of cruelty and desertion came to be dismissed.

3. Briefly stated, the facts are that the marriage between the appellant and the respondent was solemnized on 20.12.2004 at Gowda Samaja, Kushalanagara, Kodagu District, in accordance with the customs prevailing in their community. Out of this wedlock, two children, namely, Dimple P.K. and Nimisha P.K., were born.

4. It is the case of the appellant that, about one year after the marriage, the respondent started subjecting him to physical and mental cruelty and harassment. It is stated that the respondent, who was working as a Staff Nurse at B.M. Hospital, Mysuru, at the time of the marriage, subsequently changed several jobs on account of disagreements with her superiors. It is further stated that she neglected and abused the children, frequently left the matrimonial home for several days without informing the appellant and, when questioned, gave evasive replies. It is also stated that she pressured the appellant to purchase a two-wheeler and a car for her, pursuant to which he purchased a Hero Pleasure bearing registration No. KA-09-EQ-1244 and a Honda Amaze bearing registration No. KA-09-MB-6805 on loan. It is alleged that she misused the car and threatened him when questioned. It is stated that despite approaching the police regarding her conduct, the appellant was unable to have a complaint registered.

5. It is stated that the respondent thereafter lodged a complaint against the appellant on 17.09.2014, which was resolved through compromise. It is further stated that, on 08.01.2017, the respondent ousted the appellant from the matrimonial home and lodged a complaint before the Mahila Police Station. Pursuant thereto, the police advised the appellant not to enter the matrimonial home for ten days, during which period the respondent allegedly demanded and received Rs. 10,000/- from him and compelled him to compromise the matter under threat. Pursuant to police intervention, the appellant re-entered the matrimonial home, but, according to him, continued to reside there with the respondent and children with great difficulty. It is further alleged that the respondent thereafter resided separately within the matrimonial home, prepared food separately and frequently remained away from the house during the night, thereby depriving the children of their mother's care.

6. The respondent denies the allegations of cruelty and desertion. It is her case that the parties led a happy matrimonial life for about one-and-a-half years, after which the appellant started demanding additional dowry and subjecting her to harassment. It is stated that the respondent had worked at B.M. Hospital and thereafter at Apollo Hospital, Infosys, L&T and Vinyas Technology Pvt. Ltd., but denied that she had been removed from service on account of her conduct. It is stated that her exit from the respective organisations was on account of different circumstances, including her, leaving employment to take care of the children and on other occasions, due to the appellant harassing her. It is alleged that the appellant suspected her character, restricted her movements and interactions, insisted upon her salary and despite the birth of two female children, insisted upon a male child and threatened to marry again. It is further stated that the appellant prevented her from feeding and caring for the children, compelled her to work during pregnancy and shortly after childbirth and repeatedly interfered with her employment, compelling her to leave her jobs and seek shelter with her parents. It is also alleged that the appellant lodged false complaints against her, brought his relatives to the matrimonial home, attempted to cause her harm and imposed restrictions upon her and the children. It is further stated that, despite repeated conciliations, the appellant continued his ill-treatment and during the period preceding the petition, prevented her from cooking for herself and the children, from allowing the children to stay with her and from speaking with her relatives.

7. The Trial Court, upon appreciation of the oral and documentary evidence adduced by both parties, framed the following issues for consideration:

          1. Whether the petitioner proves that he is subject to cruelty at the hands of respondent?

          2. Whether the petitioner proves that the respondent has deserted him without any justifiable cause and with an intention to put permanent end to marital life with him?

          3. Whether the petitioner is entitled for dissolution of marriage which was solemnized on 20.12.2004 at Gowda Samaja, Kushalanagara, Kodagu District as prayed?

          4. What Order?

8. The appellant was examined as P.W.1 and got marked 45 documents as Exs.P1 to P45. He also examined his daughter as P.W.2. The respondent was examined as R.W.1 and no documents were marked on her behalf.

9. On such assessment, the Trial Court found that the parties had led a happy matrimonial life till 2014 and continued to reside together thereafter despite certain misunderstandings. It took note of the notice dated 10.03.2017 issued by the appellant seeking the respondent's consent for divorce, wherein the same address was shown for both parties and accordingly found that the parties were residing together as on that date. It further found inconsistencies in the pleadings, oral evidence and documents relied upon by the appellant and held that he had failed to establish cruelty of such nature as would make it impossible for him to continue the matrimonial relationship or any threat to his life or safety. The Trial Court also took note of the respondent's willingness to continue the matrimonial relationship and found no ground to dissolve the marriage on the grounds of cruelty or desertion.

10. The appellant has challenged the impugned judgment on the ground that the findings recorded by the Trial Court are contrary to the material and evidence on record and consequently, are perverse. It is urged that the Trial Court considered irrelevant material placed by the respondent while failing to consider the relevant material placed by the appellant.

11. We have heard the arguments of Sri.B.S.Sachin, learned Counsel for the appellant and Sri.R.Madhusudhan Reddy, learned Counsel for the respondent.

12. It is the contention of the learned counsel for the appellant that the appellant is presently taking care of his two daughters, aged 20 and 18 years and requires funds towards their education and other requirements. It is submitted that the elder daughter is pursuing engineering, while the younger daughter has recently completed her PUC. Learned counsel further submitted that mere filing of a complaint would not, by itself, be sufficient to establish the allegation against the appellant.

13. Per contra, learned counsel for the respondent contended that the respondent is willing to forego permanent alimony, subject to receiving a monthly alimony payment of Rs. 40,000/-. It is further submitted that the respondent is willing to continue the marriage and reside in the matrimonial home with the appellant and their daughters.

14. Having heard the learned counsel appearing on both sides and on perusal of the material on record, the sole point that would arise for our consideration in this appeal is:

          Whether the Family Court is justified in dismissing the petition filed by the petitioner-husband seeking a decree of divorce?

15. The appellant/P.W.1 reiterated the averments made in the petition and deposed that the respondent had threatened to commit suicide, pursuant to which he had lodged a police complaint and the matter was reconciled. He further deposed that, despite the same, the respondent did not change her attitude and lodged a complaint before the Women's Police Station. It was further deposed that the respondent had left the matrimonial home in 2017 and had not returned, pursuant to which he lodged a complaint before the concerned Police Station stating that she had left him. He also deposed that the respondent had mishandled him in the presence of their children, for which he had undergone treatment at a hospital. He further stated that the respondent had filed a case under the Protection of Women from Domestic Violence Act, 2005 before the Court of JMFC-2, Mysuru, and that it was impossible for him to continue the matrimonial relationship with her.

16. The daughter of the appellant/P.W.2, deposed that, on one occasion, when she and her sister returned from school, she saw the respondent with another person. She further deposed that the respondent threatened her not to disclose the incident to the appellant. She also stated that the respondent had beaten her, causing injuries for which she was taken to the hospital. She further deposed that the parties had been residing separately 2017.

17. The respondent/R.W.1 denied the allegations made by the appellant and deposed that the appellant had ill-treated her on account of the birth of female children. She further deposed that the appellant had planned to contract a second marriage.

18. Upon re-appreciation of the evidence on record, we are of the considered opinion that the appellant has established that the respondent treated him with cruelty and deserted him within the meaning of Sections 13(1)(ia) and 13(1)(ib) of the Act. The findings of the Trial Court to the contrary, therefore, cannot be sustained. Accordingly, the impugned judgment and decree is liable to be set aside and the appellant is entitled to a decree of divorce.

19. Having regard to the long-drawn litigation between the estranged husband and wife and with a view to bring quietus to the disputes between the parties, we deem it appropriate to issue suitable directions so that the parties are not compelled to undergo further rounds of litigation.

20. Accordingly, we are of the view that the respondent is entitled to permanent alimony of Rs.17,00,000/- under Section 25 of the Act. Accordingly, we pass the following:

ORDER

          (i) The appeal filed under Section 19(1) of the Family Courts Act, 1984, is allowed.

          (ii) The judgment and decree dated 11.02.2019 passed in M.C. No. 225 of 2017 by the I Additional Principal Judge, Family Court, Mysuru, is set aside.

          (iii) The appellant shall pay a sum of Rs. 17,00,000/- (Rupees Seventeen Lakhs) to the respondent as permanent alimony under Section 25 of the Hindu Marriage Act, 1955, within eight weeks from the date of this judgment.

          (iv) There shall be no order as to costs.

          (v) Pending I.As., if any, stand disposed of.