B.V. Ravi v. Malathi Ravi

JUDGMENT

1. This is petitioner's appeal challenging the judgment and decree dated 11.6.2004 passed in MC No. 5/2001 on the file of the Principal Judge. Family Court, Bangalore, Rejecting the appellant/petitioner's prayer for dissolution of his marriage with the respondent under the provisions of Section 13(1)(1b) of Hindu Marriage Act (for short the ‘Act’) and consequently allowing the prayer of the respondent-wife for restitution of conjugal rights.

2. For the sake of convenience the parties are referred to by their ranking in the Court below. The facts leading to this appeal are that the petitioner in the Court below filed a petition seeking decree for judicial separation, which was subsequently amended, instead of decree for judicial separation a decree of divorce was sought under Section 13(1)(ib) of the Act.

3. The petitioner and respondent belong to Hindu Community, they are doctors by profession. Their marriage was solmenised on 23.11.94 as per Hindu customs. The said marriage was arranged by elders of both families. After marriage, they lived together as husband and wife in the matrimonial house for a period of one year. According to the petitioner, the discard between himself and his wife started from the date of marriage mainly due to the conditions, restrictions and hurdles placed by the respondent and her family members, inasmuch as finding fault with the behaviour of parents of the petitioner, finding fault with the visits of petitioner's sister to the house, the cordial relationship of petitioner with his sister and brother-in-law, desire to set-up an independent house away from the house of petitioner's parents and close to that of her parent's house. The respondent was non-cooperative, arrogant, caused misunderstanding in the family of petitioner. In the midst of this, the respondent conceived, as per the custom she went to her parents house for confinement and delivered a male child. After the birth of child the respondent never stepped into the house of petitioner to visit the petitioner or any of his family members. According to petitioner, there was total marital discard, incompatibility and mis-understanding between them from the date of marriage. After the birth of child while she was in the house of her parents the respondent without informing or taking permission of the petitioner left the child under the care and custody of her parents, joined for PG Course in medicine at Gulbarga, which was against the wish of petitioner, by this act she intentionaliy deserted the company of the petitioner, she remained incommunicado. Inspite of writing several letters by the petitioner, the respondent refused to respond to any of has letters. She did not even bother about the child, which was under the care and custody of her parents, she continued to stay on her own in Gulbarga for 2½ years. During that period, the petitioner went from pillar to post and put all efforts in trying to convince her to return to her matrimonial house. All the said efforts of the petitioner were shunned by the respondent She completely deserted the petitioner for reasons best known to her. Even petitioner's attempt to get the respondent advised through her parents also failed, for the reason, they were fully supportive of the behaviour and attitude of their daughter, hence, they did not respond properly to the request of petitioner, they were evasive in their reply to petitioner. Even after completion of her Course at Gulbarga, the respondent did not come back to her matrimonial house, instead she came to Bangalore and settled in the house of her parents along with the child. She ignored the petitioner during the naming ceremony of their child, did not invite either petitioner and/or any member of his family to the said function. She did not make enquiry about the petitioner. Thus, the petitioner was mentally hurt, he underwent trauma over this episode, he was not able to lead normal life in view of the mental torture caused by the respondent and her family members. It is his case that when he went to the house of respondent's parents for patch of differences between them in the presence of her parents he was abused and thrown out of the house of respondent with use of physical force by the respondent's family members.

4. According to the petitioner, he never demanded any benefits from the respondent, he always tried to lead a happy married life with his wife, all along he had love and affection towards her. According to him, in spite of his best efforts the respondent did not come back to the matrimonial house. He got issued a notice, which did not evince any reply. In the circumstances, the petitioner left with no other option filed a petition for judicial separation initially with a hope that still there is chance for resolving the misunderstanding between them. Subsequently, he felt no purpose will be served for seeking an order of judicial separation filed an application seeking amendment of the prayer and got the petition amended from the petition for judicial separation to that of petition for decree for divorce on the ground of cruelty and desertion seeking dissolution of marriage between himself and his wife the respondent herein.

5. In the said proceedings, notice was served on the respondent, she entered appearance, filed her statement by way of counter claim seeking restitution of conjugal rights with the petitioner. According to her, the petition filed by her husband is without merit and baseless, the same is required to be dismissed with cost She admits the date of marriage, place of marriage and also living together with her husband for 1½ years in the matrimonial house. According to her, when she was residing in the matrimonial house, petitioner's sister and brother-in-law were residing opposite to their house, they were visiting their house every day, they used to poke their nose in day to day affairs of the respondent and her husband, they used to advice the petitioner that the respondent should not be permitted to prosecute her studies, she should be kept at home as unpaid servant of the house. According to her, the petitioner used to be torn in conflict because the petitioner never wanted to treat the respondent in the manner advised by the sister and brother-in-law and also he could not openly express disagreement with the opinion expressed by the son-in-law of their family.

6. In the meanwhile, when the respondent was away from the matrimonial house for delivery of the first child the sister and brother-in-law of the petitioner had started poisoning the mind of the petitioner. According to her, she had invited all his relatives for the naming ceremony function no one from the family of the petitioner including the petitioner attended the said ceremony. The respondent made efforts to get back into the matrimonial house but on the advice of his sisters the petitioner refused to take her back to the matrimonial house. According to her, the petitioner himself has refused to take back the respondent and the petition filed by the petitioner is without reasonable cause. Hence, she filed the counter claim seeking restitution of conjugal rights and further without prejudice to the said claim, the respondent also made several averments in her counter.

7. Based on the pleadings by both husband and wife, the Court below framed the following points for its consideration:

“1) Whether the petitioner proves that respondent deserted him for a continuous period of not less than 2 years immediately preceding the presentation of the petition?

2) Whether the respondent proves that the petitioner without reasonable excuse withdrawn from her society?

3) Whether the petitioner is entitled for decree of divorce as prayed for?

4) Whether the respondent is entitled for decree of restitution of conjugal rights as prayed for?

5) What order?”

8. Thereafter, the parties were permitted to lead evidence. In support of his case the petitioner examined himself as PW1, marked 21 documents as Exs. P1 to P12. On behalf of the respondent she examined herself as RW1 in support of her case, she examined one Umesh Kalappa Salian as RW2 to show that the petitioner visited Gulbarga on 27.5.99 and stayed in a Hotel Shri Nagarjun between 27.5.99 and 28.5.99 m Room No. 99 along with a person. In support of her case, she marked Exs. R1 to R4(a).

9. Based on the pleadings, evidence of the parties, documents produced by them, after hearing the respective counsel for the parties, on appreciation of pleadings, oral and documentary evidence produced by them, the Court below proceeded to answer point Nos. 1 and 3 in negative and point Nos. 2 and 4 in affirmative and dismissed the petition as per point No. 5 holding that the petition filed by the husband under Section 13(1)(ib) of the Act is not maintainable and allowed the counter claim of the respondent-wife under Section 9 of the Act thereby granting decree for restitution of conjugal rights in favour of the respondent Being aggrieved by the said order, the petitioner has preferred this appeal challenging the same on the ground that the order of the trial Court suffers from infirmity both on facts and also on law.

10. In this appeal, the respondent is duty served, she has entered appearance through counsel, participated in the proceedings. In the light of the grounds urged in the appeal and also the pleadings, evidence and documents available on record, this Court framed the points that arises for consideration in this appeal as under:

1) Whether the Court below was justified in dismissing the husband's prayer seeking decree for dissolution of marriage solemenized between himself and his wife on 23.11.94

2) Whether the judgment and decree of the Court below for restitution of conjugal rights granted in favour of respondent requires to be set aside?

3) What order?

11. After hearing the Counsel for the parties, on appreciation of the pleadings, evidence and documents available on record and also on appreciation of grounds urged in this appeal, which refers to the conduct of the respondent subsequent to securing the decree for restitution of conjugal rights and before filing of this appeal, this Court answers point no. 1 in the negative and point no. 2 in the affirmative for the following:

REASONS:

It is a strange case where judicial separation is filed initially is converted into one of petition for decree of divorce with a counter claim for restitution of conjugal rights. Admittedly, in this appeal, the appellant and respondent are highly qualified doctors with Post Graduate Degrees to their credit, both are in Government service, well placed in Society socially and financially. Admittedly, a male child is born to them in the wedlock which is under the care and custody of the wife from the date it was born till today. As could be seen from the pleadings, the petitioner is the only male issue to his parents, besides him they have one another daughter, that his family is middle class family and his wife, the respondent herein is also from a middle class family, that her parents have only three daughters and no male issues to them. The parties to this appeal got married on 23.11.94 have lived together as husband and wife and led normal matrimonial life for a period of roughly about one and a half year, thereafter due to difference of opinion have lived separately i.e, the petitioner in his house along with his parents and the respondent in her parents house along with her child. Admittedly, there is absolutely no contact between the respondent and her in-laws from the day she went to her parents house for confinement. It is also not in dispute that the naming ceremony of the child was celebrated in the absence of its father and paternal grand parents. It is the case of the appellant that his wife from the date of marriage has not been interested in living with the petitioner in the same house along with his parents. In the evidence he says that totally for a period of 3½ years there was cohabitation between them as husband and wife both in Bangalore and Gulbarga, his wife was totally arrogant, due to her arrogance lot of misunderstanding took place in his house, there was no cordial relationship between them, in the midst of chaos a male child was born to them on 12.1.88, the naming ceremony was performed by the respondent-wife without invitation to the petitioner and his parents. According to him, immediately after she conceived, she went to her parents house for confinement, inspite of repeated requests she refused to go to matrimonial house, she has deserted him for more than 3½ years, because of this there is total discard between them and no cohabitation between them as husband and wife. Further, during this period the respondent joined for Post Graduate Course in Gulbarga in 1993. During that period, she left the child under the care and custody of her parents in their house. During that time, the petitioner written four letter which are Exs. P-3 to 6 requesting his wife to come back to matrimonial house and to the normal married life with him. According to him, his wife never bothered to respond to those letters, he was also not allowed to see the child in the residence of his in-laws. Because of all these things, his life was completely broken down and has marriage life was never happy from the date of marriage till today, it is his case that he suffered misery and torture at the hands of his wife. According to the petitioner, when he went to visit his wife and child at their residence he was driven out by his in-laws. With this background he filed a petition seeking judicial separation initially, later converted the same in to petition for decree for divorce. According to him, all the letters that were written by him in the past 7½ years have not been responded. There is no interaction between himself and his wife. So far as the counter claim of the respondent, the petitioner has stated in his evidence that the way in which the wife has behaved in all these 7½ years does not bring any kind of solace to his marital life. Therefore, the question of restitution of conjugal lights between them does not arise at this stage. In his cross-examination he stand by his earlier statement that the respondent did not take permission to join the P.G Course at Gulbarga.

12. The repondent in her evidence has reiterated her pleading and stand by alleging that she was not treated well in her in-laws house because of intervention of petitioner's sisters and brother-in-law, who were residing in a house opposite to the matrimonial house. The respondent, deny showing disrespect to petitioner, deny that she has joined PG course at Gulbarga without the permission of respondent, admits the fact that while she was in Gulbarga the petitioner came to Gulbarga twice to meet her, deny the allegation that she did not invite petitioner or his family members. It is seen that the trial Court after recording the evidence and hearing the Counsel for both parties dismissed the claim of petitioner for a decree for divorce and allowed the prayer of respondent for restitution of conjugal rights.

13. It is seen that subsequent to the decree for restitution of conjugal rights is passed by the family Court the respondent did not immediately join the appellant inspite of letters being sent by him through his Counsel followed by telegram. It is also seen that the appellant did not choose to challenge the decree for restitution of conjugal rights, instead pursued the proper course open to him in implementing the decree. It is seen that though the decree for restitution of conjugal rights was passed on 11.6.2004 the respondent waited till 22.8.2004 and joined the appellant in the matrimonial house being accompanied by a relative in the Police department It is further seen from the grounds urged in the appeal memo that at the relevant time both appellant and respondent were teaching in the same college, never met together in the house, never had the marital bliss from the day she joined her husband till 13.10.2004, when she tried to get the appellant advised from senior Police officers to set-up a separate house away from the parents of appellant, when he refused to succumb to the advice covered with threat, the respondent got him arrested by filing a FIR in FIR. 401/2004 dated 17.10.2004 in the Basaveshwaranagar Police Station alleging demand of dowry against the appellant, his mother and sister alleging that there is demand of dowry and also threat to her life from the aforesaid three persons.

14. In view of the aforesaid complaint being lodged against the appellant, he was arrested under the provisions of 498A and 506 R/w 34 IPC and also under the provisions Dowry Prohibition Act, he was in custody for a day until he secured bail from the Court In the meanwhile, the mother and sister of the appellant were in hiding until they secured anticipatory bail. It is seen that only after the said complaint was lodged, the appellant has fifed the above appeal seeking for reversal of the judgment passed in MC. 5/2001 by filing an application seeking condonation of delay in filing the said appeal, since the time prescribed for filing the appeal had expired by then.

15. Admittedly records disclose that, immediately after passing of the decree for restitution of conjugal rights and rejecting the claim of appellant for a decree for divorce attempt is made by the appellant to see that he and his wife would come together and live as husband wife in the matrimonial house as could bee seen by the letter that is sent by him through his Counsel calling upon his wife to come and join in the matrimonial house immediately after 18.7.2004 for the reason that up to 17 it as Ashadamasa, an inauspicious month. However, the respondent has not immediately responded to the same. But the petitioner has issued a letter dated 14.7.2004, which is a registered letter though his Counsel. In response to the said letter and to the telegram seat by the petitioner a reply is given on 10.8.2004 seeking further time and citing the Court order as if she should wait till the last day given by the Court for the purpose to reunite. It is also seen that after joining her husband respondent has lodged FIR in the month of October 2004 in the Police Station for the offences under the provisions of Dowry Prohibition Act and also under Criminal Procedure Code and got them arrested. This clearly indicates that the respondent is bent upon harassing her husband and putting pressure on him to set-up a separate house for respondent instead of living along with him in the house in which he and his parents are residing.

16. Admittedly, in this case the petitioner is the only son for his parents, the family of the petitioner belongs to middle class. From the pleadings and evidence it appears that it is a closely-knit family where the petitioner as dutiful son intends to stay with parents and also to take care of them. It is seen that the respondent also hails from middle class and her parents are having three daughters and no male issues. The respondent is trying to draw her husband out of his parental house to stay in a separate house along with her near her parents house or if possible with her parents. From the pleadings, evidence and the conduct of the parties throughout the litigation it is seen that the attitude of the respondent is one, having an upper hand in deciding about the setting up of matrimonial house independently from that of the petitioner's parents. It is seen from the pleadings that, from the beginning of the marriage the appellant has rightly resisted the said illegal demand of respondent Even after the disposal of MC. No. 5/2001 inspite of case being fought bitterly between the parties, the appellant giving due consideration to the direction issued by the Court below has come forward to take back the respondent to the matrimonial house without resorting to filing of an appeal challenging the order of the Court below. Per contra, it is the respondent who is under the impression that having succeeded in the Court below she has every right to dictate terms to the appellant and make use of the order, which was meant to reunite the husband and wife and to see that they live happily, as a tool to draw him out of his parents house. The intention of respondent is by using the said order to put pressure on appellant to setup a separate house for herself and her husband so that she could be more closer to her parents who does not have any male issues and who appears to have a closer attachment to their daughter. Whatever may be the attachment of parents of both parties towards their children, the step taken by the respondent to enforce the decree of the Court below is neither proper nor sensible when the parties have lived apart for such a long time for minor misunderstanding, when an attempt is made by the family Court to bring them together the respondent with her arrogant and unreasonable behaviour has further damaged the same by resorting to filing a false complaint against her husband, this Court is of the opinion that the said complaint is false for the reason that in the entire pleadings of the respondent in Court below there is no whisper of cruelty and dowry harassment either by the appellant or any member of his family. Even during the evidence she has not uttered one word of dowry harassment by the appellant and his family members. But all of a sudden when the decree for restitution of conjugal rights is passed and after the appellant called upon her to come back to the matrimonial house, to prevent the same and to prevail upon him to setup a separate house she has resorted to this devious method of demoralizing the whole family by resorting to filing false and frivolous complaint, with which secured their arrest and detention in police and judicial custody for some time thereby lowering their status and respect in the eye of society for no fault of them. This conduct of the respondent is unpardonable, it clearly establishes that the appellant's allegation against his wife that through out the period when the matter was pending in the trial Court, is true and it further confirms that the respondent has no intention of leading a normal married life with her husband. It also discloses that the respondent being ably supported by her parents who are also interested to see that the appellant comes out of his parents house, setup a matrimonial house away from that of his parents house so that she could be more closer to them as they do not have male issues and who needs the support and care of somebody which the respondent wanted to fulfil as dutiful daughter towards her parents. At the same time, she wanted to deprive the same to her parents-in-law, which definitely would cause mental agony to the petitioner and this conduct of the respondent amounts to mental cruelty.

17. It is further seen that the earlier attempt on the part of respondent going away from the matrimonial house in the guise of going for confinement and thereafter taking up post, graduation studies without prior discussion and approval with her husband clearly indicates, that was also an attempt on her part to find some excuse to stay away from the matrimonial house and to put pressure on her husband. On the contrary, the conduct of the appellant clearly discloses that though his wife tried to persuade higher studies without his consent and concurrence, as admitted by the respondent he has gone to Gulbarga on several occasions, stayed there and tried to convince his wife to come back to the matrimonial house. Inspire of his sincere and diligent efforts the respondent has miserably failed to live up to his expectations. Under the circumstances this Court is of the opinion that the behaviour of the respondent in deliberately staying away from the matrimonial house and intentionally causing mental agony by putting the petitioner and his family to go through false and frivolous criminal litigation amounts to treating the appellant with cruelty. Therefore, this Court is of the opinion that the marriage between the parties is broken irretrievably, no purpose will be served by confirming the order of restitution of conjugal rights granted by the Court below. Therefore, the best possible solution that can be given to both the parties in this appeal is to allow the same, set aside the order passed by the Principal Judge, Family Court, Bangalore in MC. No. 5/2001, granting decree for restitution of conjugal rights to respondent and rejecting the prayer of appellant/petitioner seeking dissolution of the marriage that has taken place between the appellant and respondent on 23.11.1994

18. Accordingly, the appeal is allowed. The marriage between the appellant and respondent which has taken place on 23.11.1994 is hereby dissolved. Each of the parties to bear their own costs in this appeal.