MF A No2O819/2OO IN TFIF’ HIGH (‘OURT OP KARNAI’AKA CIRCUIT BENCH AT DHARWAD DAThD THIS TIIF 18 DAY OF’ OCTOBER21 ii PRESENT I HE HON BLE MRSJUSTICE MANJULA CIIELI.UH AND TIlE IIONJ-31 B MR. JUSTICE V. SUR1 APPA RAO M,FA.No.2O819/2OO8 (MC) BETWEEN: Srnt Bharati, W/o Survanaravana Kattimani Aged about 45 years, Ccc Private Services R/o Vidyanaga r. I lubli APPELLAN 1’ [By Sn t Prafulla S. Naik, •‘VI ir ma S Katiirn Hi Aped ih ut 3 t ais. )( C G)\ r nieiit Mcdi ‘aL I r ict ti iie U ) Puja C 3ric Sh I p ir ri,FO1N I FB’ ‘n \ may S Kou’i api. Icr r \ M Shk a Ari I M %WA No 20819/2008 .2: This MFA Is filed under SectIon 28(1) of the Hindu Marriage Act. 1955. prayIng to set aside the Judgment and deere dated 2.6.2007 passed In MC NC). 101/2003 passed b the Principal C lvii .Judge (Sr. Dii). Ilubil, tiled u/s 13 1 (1 B) w cording to Hindu Marriage Act 1955 and etc. This appeal coming on for heating this day. MANJULA (‘HELLUR J . delivered the following: JUDGMENT The appellant herein by name Smt Bharatl is the wife of one Dr Suryanarayana Kattimani who is the respondent in the present appeal The maniage between the parties being solemnized according to the customary ntc q at the Railway Kalyana Mantap. Hubil HI 28 12 ‘983 is n)t fl dispute. birth of two children a daughter and i son by name Pooja and mayak out of the said iiedlock Is also w t in I sp ite. 1 s 11%) mt in dkputc tlu I is in the iatc ef ‘nair age .1 tht i p 11 it siihtlm’i pcickm.tlc p’l1ii ‘.as S b:ars vi’ittie rcsoon’ 1 t lit ‘ldtr th ii .ippell mi 1w ‘..i to I- . (-.11% TIt .‘‘ .Ci vit lk! P ‘ ‘‘ rkuç i Ml’A No.20819/2008 :3: Gulbarga The parents of the appellant were living at Hubli. The younger sister of n %pondent husband by name Sharanamma was given in mantiige to patei xml uricIc of appellant by name Dr Siddechwar about 8 to 10 rears earlier to the marriage between the appellant and the respondent. 2. According to the appellant. they led a happy marital life in the matrimonial house at Gulbarga for about 15 days. Thereafter. in order to ha e good education for the children the appellant-wife staved In the house belonging to the respondent-husband consinieted by him at Qulbirga and it was respondent husband wh used ti isit Gii1bara ‘met at ni ice a week ro see his wile and hiM ii. ‘It e rt pondenl ta) d a IJKP -I pita1 as Mt 11 aJ 0:11w ti in Rajankeiltu .ii’d .it 5nIepeth tot about 4 Wht’’ ‘ T illt nil ,. innIl:ttii j1- “ i p a ‘u it ci ‘-hUt MFA No.20819/2008 :4: strangely and she nevti showed love and affection to hhn and he was diet uibed with said attitude of the wife Because ol this, he tnok his wife :uid children to Suk’pet In March 1994 and stayed there till the appellant wife abandoned the company of him along with the children in March 1995 4. The rebpondent husband further contend that when they were living at Solepet. all of a sudden without his knowledge the appellant wile left the house along with her children. On account of this attitude ol his wife. the husband became dlshcartened and made hectic efforts I trace the whereabouts of his family and lastly lie had to lcd..’ a on plaint. ..ak i on he lc arnt that h s ‘ufr aJoit witi chuldn i was lit ug t lIubli ii fur parent 11 rn 4u. retrtd in ‘ (lilt hae’lt u1%pJtr ‘il h% Ix t CTIUII% to ‘ake t ic b ‘) a ii c i e i t 1. il c that -at.- ties t i disc harEied her dutit- a’ a ttite ai id 1 ic later MM No.20819/2008 :5. learnt that she even joined a private finn and was earning good Income for the maintenance of herself and children. 5. Since the appeJiani -wife (lid not indicate iuiy interest to return back to her matrimonial home and intentionally de%erted the company of her husband without showing any love and affection. the respondent-husband had 110 other go than to approach Court for dissolution of the marriage and for a decree of divorce putting an end to the marriage between him and the appellant wife. 6 As against this. contesting the diioree petition the appellant wife filed a detailed objection stitement Apart from the idmitted frn t aeeordm to her other t2tement made in thc ippellant are false md h lx cc ipon o pime me ‘4 “ie Jetailed t itement n e rimonial ( at thc aands ol hi’ fanulv if Ix rs 1’ r 1(lInL lo hti rfl il thc tr1in( (I id 1tflsis%h;p [K (‘t’-’1 h I 1111.lt,I ait 1 t- L)!.:nI’it%1P%.U • 1 .id MI’A No.20819/2008 6 the sister of hei husband Sharananima the relation lsetwec n herself and the respondent was strained. As a matter 01 fact. lmnicdlatelv alter the marriage the respondent husband is said to have informed the appellant wife that his main IntentIon of marrying her was to torture and cause agony to her In order to take revenge for the misery suffered by his qister Sharananima at the hands of her husband Dr.Slckleshwar - the junior uncle of the appellant wife She narrates that the period of six months stay In his parental house was horrifying as not only the husband but all other family members tortured her mailally and physically Acc ording to her, the husband was bchai tug with her with utmost cruelty on ac count )f thc Instigat 101 t his fa nily mcmbers e. his pdfl IIt. (!r inrlmr,tliei and sfscr Sharaiiarnma. As 4 icsult iii tills 1)u tppellent •1as u))1( red r’ tcalutt- au 1 I IC I Ii 1 4 F t tit it C lit-i i1u?—bi.nr1 tvrpild rrali—d i’ chni. Slits turrliei fly t’ lift list l. J11 1r ). • ‘, , 11 L I Mfl No.20819/2008 :7: between her junior uncle l)r.Siddeshwar and his wife Sharananuna was not cordial. There used to be frequent quarrels between them, therefore Sharanamma wed to live in her parental house at Gulbarga most ol the time. The appellant denies the averment that she along with her children was comfortably living m the house constructed by the respondent husband at Gulbarga. According to her parents of the husband were also living with her and Sharanainma used to visit their house frequently. and used to abuse the appellant Bharathi for no fault of her and thuc mziklng her We miserable all the time It is alleted the respondent husband even bet her on several c,ceasions at the Instance ot his %lster and parents. ku ording to in with all this I rturt she ‘or trnued to lnrc .ith inn and uppnned him as a dutiful tie thlnkn.c. 3vme ii u wI’slon! ‘vc’i’Jrl doi •n’ l’:rn o th.a ucr life p MF No.20819/2008 :8 7. All ha dream’ were shattered when she went to Rajanakolur to live with him and learnt that her husband addicted to alcohol. I-Ic en1 to the extent ol throwlnu, liquor on her face and tell her that she has to change her attitude. Whenever he was angry he vould throw food which was served to hun finding fault with the wife for no fault of her. As she was afraid of the stigma being attached to her, she had to put up with him as she had no good financial support from her parents as they hail from a middle claqs family. When he was transferred to Shahapur hi the year 1990. she followed him. ‘There also harassmcnt and misery continued He pcrsistently insisted that hc i Iither has to idvise lus brotha Dr Slddeshwar to accept his sistci h) reforming himself lc,i nut till addiction’ amid then oul’ he ‘could ac ept r liar ii, alit A bc mit but lit 1 lOt I Ttij tji’ I:s-ijtlm • “njitv’ii ;t Dr Smdcii—shw .u .r enrd 4 n’ l’s. (1 . rletlcIil%Lilp ty Ii%( (ii ‘liii. a”q MPA No 2081912008 :9: his wife became more strained and this reflected on the marital life of Srnt Bharatl at Rajanakolur As she was good looking the re’pondent husband even tort ureed her suspecting her fidelity. Though he was able to put up with the other physical and mental tortures of her husband and family members. but suspenmg her fidelity was too much to hear. According to her, after Informing the respondent husband she returned to her parental house at liubli along with her children oil 27.3.1995 and started living with her father. The respondent -husband though fully aware of this fact intentionally lodged a missing complaint so as to mislead cveryone 8. She denies all the a ermelils in the petition that hei hu tailhad&reatir hnaio tol adahip mandlife witl r A a dlnç hcr ci li and vex I erec at)OUt hc i ci ildreri md ‘ptcii1l iii’ ia’, ill ii ratitna the dat ci i iegul is I )rckr tsr thc t tic ft C ‘It a r MFA No.20819/2008 :10: when they ere residing at Sulepet and started threatening lit r to ‘,(nd tar son to an ordinary Kannada medium c’hnl co that he will not get proper education. Being afraid ol this attItude ot the husband, she derided to stay m Hubh along with her children so as to have the comfort and company of her parents to bring tip her children by giving proper education to them. She never had any objection for her huhand to get a transfer to Hubli or visit her aiid her children at Hubli But it was the respondent husband who wanted her to live at (Julbarga only in the Iamily house with an Intention to torture her. her parents and the children on account of I the stnlned relationship between his slst r Sharanamma and hcr junior unde D ‘3iddeshv n’ She dccided to sta at Hubh. a sht ‘a unabit- cn hew the toitun of hei huslxwd and ot 1 ier in’ nther “h’ en n”tigaiinj her liusb ic tu ii t he I ne’ tx e rc 41t1’ fh 1 Ix it II €riii ‘‘ iir H’—n fl. —,i.c J’ .r:r.’ t; jw -‘I’ ‘rj ‘‘th hel • hil’ it £jj MFA No.20819/2008 11: away from him. But she never intended to put an end to tlic matrimonial rt latlonship. Act oicllng to her. 4% Ofl the date nf filing of the Objection Statement, her daughter was aged 17 years old and her son was 12 years old. By the time the claim petition came to be filed they were living apart for a period of 6 to 8 years. 9. It Is averred In the objection statement. that she had passed PUC when she got man-led and after leaving her matrimonial home in 1995 she Joined and completed her Post graduation Course and Diploma in computers. She started working for a prtvatc company and thc meagre mcome bhc i as earning ias msuifmc mc mit for hcr to mairtur hcrself end lc hildr r Sh ‘a ut able t derand nihing I m lit pint a hi vet from s . Whcmi tS 1 r ted ‘he ace he m parc tita i attly 411 1 mid t fin-umcmal burden . he had tq fit ‘n t’urcnlnet’ pLilti. ii ‘it 1 tel )()os. %(F jjtj MFA No.20819/2008 12. maintenance for herself and her two children. Only after nceiiing notic In thc maintenance claim petition In inkr to avoid payment of maintenance the husband thought of approaching the Court with the divorce petition after 7 years of their separation without any reason or rhyme. According to her. her husband even tiled the application 0 & WC’ No.19/2001 seeking for custody of children only to harass and give mental torture threatening to take away both the children from her. At no point of time he showed love and affection to the children. After filing G & W.C (‘ace he started visiting the Schools of her children only to show the Court and othcrs a that hL cares for his childrcn. Auoidnig ft her. even if hc iusbar d I ad rlttcn lettcrs t hcr and o hex fatha sMug ncr i .i cuiiic back. it was only to ‘ontinue the tortuir w flrr and to taict rc’e’u.€” au h’ r Iathei and by-i ‘urws ii Sid le n’ ii. A’ n bra. I er er a ‘ C iO ) C’ if t. K MFA No.20819/2008 13: husband and therefore, the husband was riot enlitled for an dcci cc of cllvoi C c 1(1. Vith these pleadings 1)0th the panics brought on record oral anti documentary evidence. They have not examined any other witnesses The learned trial Judge nit appraisal of the entire material on record, proceeded to grant a decree of divone on the ground that inspite of flu Intervention and efforts of the Court to reconcile the differences, she did not show any inclination to go back to her matrimonial home. The Ieanwd trial Judge has noted. that the wife while refusing to Join her husband at Gulbarga insisted him to stay at Hubli or nearby place. According to trial C nirt. the appellant wife also has dc ned in hcr ev c e i c regarding ha husband being I ccl to I the wr 1 t not Joi t it lici ‘ r UI tllc%t r ultIn j r. I iii’ Ic i c trial .‘ucl:e inc that tIM V MF ‘tSo.2081912008 :14: appellant wife Is adamant and stubborn and she wants her own way to be achieved by commanding her huqbancl to come and live with her wherever she chooses. The learned Thai Judge also found fault with the defendant for leaving the house of her husband and placed much reliance on the mibsing complaint accepting the entire case of the husband hi toto. 11 Aggrievcd by the said judgment and decree of divorce, the appellant wife is before us 12 Ac cording to thc learned Counsel lot the appellant Smt. Prafulla S Nalk if the respondent husband was really litterested in his wile and children as claimed by him. he would not have aited for 7 years without taking ani, s ejs t e hal Ii’ ife aru hid ci eturned hick man tin Atoll’ ‘ni tie ink p1 yed ii thc re’poncknL rs i’,kii . Vw ippel’ane it scud tile marks “-intl 1 (hilIll lazi to I sangalore’ ‘—c’ that Ii. t’c,, del vi’ t1 tit 1 d. i’tl. ‘1 t’ S !in Is •1 Tiarigalntr ‘tid t’ MFA No.20819/2008 15: happily with his wife and children at Banizalorc. were tried to lx biought on rccoid b ilk respondent husband only to convince the (‘oufl that lie 1% right anti the 1le is at wrong. According to her, the tact that during the period of 7 years. i.e. between 1995 and the date of filing of divorce petition In 2002. not even on a single occasion he visited Ihc wife and children with the Intention of resuming his relationship with them. This would Indicate that he is not at all Interested In them and only to avoid payment of maintenance and to show to the Society that he Is a good person he has approached the Court seeking dissolution of the marriage. 1 A cording tc tie lcarncd ou sd r h ippdllart tlu trial (oitii. wait not at all Justthecl In not rcferring to a I Ict oct .1 Ii jcl 1’ Ic .1 to Rb. Etn though -,u. h letters ic;e .etrrrecl n pa Ing tm tt ka ed Hal .aclp icy in Ic ar ‘li(L 4 %1’fl flt it 1 fl t ‘jt I tfl tilt In’ c t(l tI I ! Ml P MF 1\ No.20819/2008 16 the letters written 1w the wife. II nub these letters were undcrstood In tlic propcr pcispeetive. accoiding to the learned Coun%el. the Trial Court ought not to have allnwed the petition granting a decree of divorce 14. The learned Cnunsel for the appellant is fair enouah to submit, that at the time of marriage of daughter of the appellant by name Pooja. the respondent-husband attended the marriage along wfth his sister and parents and performed the marriage by spending money as well. She also brought to the notice of the Court that Dr Slddtshwar th Junior uncle of appellant is no more Sharanawwa and recpondent imqbnd art living at thai-ga in hc a i samc hmse As the rcspcr lert husbaiid haq takt n inluntaty reurenwnt. lie has private i tu ( i i d vc . c. e t 1 1 TI.’ .,bjrttiu.i t’,r ii e u9. 1 ondent l’uband It ti,rn in’: ‘4 ins )IIV p tI( atHbli u din tot i ti apyrcher. ion • the nh I 4 ha iii Ha that I ‘.1 MF\ No.20819/2008 :17: to go back to her husband at Gulbarga. the respondent would again resume the torture both physical and mcntal with much more 1cotir is genuine and once the Court goes through the contents of the letters written by the husband to her and her father, the clear Intention of the respondent husband would be understood and therefore, according to her the judgment and decree of divorce deserves to be set aside. According to the learned Counsel, when the appellant has justifiable cause to live separately even If there Is separation between husband and wife for a period of 7 years, there cannot be a decree for divorce when the respondent-husband is at fault and iesponsibk for th separitlon between them With these arguments. slic sought for setting aside the judgment and a fth ia C iii )) owi’4.,t ecfpc I., A agaIn t us the lEe xx C nit I lot he ft on I nt in’ ,i ‘vid tr )k i’. tIn ( uQ n’ t t A’ tlx :1!t; i!i4’ Ib, flit t-”sF)_aI lLlSbrbttd 1fjt tht ia1 ( ..ijjt MFA No2O8l9/2OO8 18: hut also his evidence before the trial court According to him, the entit c lacts bi ought on i e ord by the appellant wife is univ an jtnaginatioit in her mind on the instua1ion of her parents and inspite of the strained relationship between his sister Sliaraitamma and her husband DrSiddeshwar, all along the respondent husband was eager to get back his wife and children, bitt the parents of the appellant wife poisoned her mind and turned her against him. According to the learned Counsel for the respondent. the allegation of physical and mental cruelty is nothing but a story created by the appellant wife and it she were to be tortured a alleged. shr would not have vaited till 1995 to lea e the matrimonial hom 6 Ac r1Ing e he r por ki 1 ft ha I, C MS S I mont v for the airiae of I m— d:itiahtr and parn ipan i in the said r r1 t in 1ie 1 n in In a ci ifk ction on i i h hil 1r i ri i then ft re I ia Ii M tin tin teiia I vn ha’ IW2 r1 - I d h-n In ‘‘ nha ni nI %WA No.2081912mm .19. justifiable cause, cannot have her say even in this matter and theiefore. thc order of tht trial Court granting decree of divorce s suqtaiabie. According to him the letter% at Exhibits R. 1 to P.6 are indication of the anxiety shown by the respondent husband that his wife has taken away his children and was living separately wfthout any justifiable cause and there was no intention of treating the appellant- wife with cruelty at any point of time He contends that the reasoning of the trial Court is Just and proper and he seeks for dismissal of the appeal. 17. Vfth this argument at our command. we have gone 0 hrough th nidencc of flu parties and ‘ilsc the ontentt of exhibit “i brought oi record. ie Id t 01 11 e d ii ii te Dr St’n a’iai avana .11 hi’ nhamuiat,on in duel has itc r s ide I 1i it fkl t) !iipi b—h’n :‘, In:t’ ‘‘.ti,’ i)ifl1nL •.‘ MM No.20819/2008 20: examination, lie persistently states that since 1995 after leaving Gulbarga both his children were conthiulng their education at 1-Tubli tas’int with their maternal grand parents along with their mother. He admits the strained relationship between his sister Sharanaznma and her husband Dr.Siddeshvar. He categorically denies the suggestion that on account of misunderstandings between his sister and her husband in order to take revenge, his wife was ill-treated at his hands not only by him but also by his family members After 1994 they started residing at Sulepeth after his transfer to the Government Hospital and he thnies all the allegations that he ns thiowing the tood and alcohol on her lace lie denies suspecting the ftdehtv of his wife and he also denies his threats to her hit I e would put iCd rn ier at lit alnut h i ter and mothei ‘‘siting iheni .n “ilepeth hut clerics ill t at g us sift onthc istigitin )fhnotei nc ‘su 1 I-k S o It f es the gp sri i t nal hig ar’.ui4cfln ru I’,r Inc ir rj. tithiti rs”a to ‘ta’ iii it MPA No.20819/2008 21 boarding school only In order to separate her from her mother thereby causing Immense misery to his wife He also denies filing Divorce Petition after conciliation talk before the court In the maintenance petition 19 According to him, the onl) problem with his wife was that she wanted to stay at liubli along with her parents and she was stubborn In her stand and this is the reason for their misunderstanding. lie admits filing appeal against the order of maintenance and also the efforts of the lion Me Judges of the High Court to reconcile the differences between them However the irgument was that lx. offered U Inc iinth Ins wifc only tc evade payment f maintenanc to This infe lut not witi cal ntcntion x.hn tofu licathsc I Higi -w hetook 1 di x 1 f ci rc. MM No.20819/2008 :22 son who was at residential school In Belgaum being brought back by the wife According to the appellant/wlfr her husband was vent strict with the children and he was not talking to them with love and affection and therefore the children were all the time under fear. Therefore, she was of the opinion, love and affection must be shown to the children to make them grow In normal and proper way As a matter of fact, she expresses her opinion that because of the attitude of the husband towards the son, son was becornmg stubborn day by day and she even was under appn hension that her son would not correct himself and he may bec ome a bad element In the Societ) Thc refon she brought him back with h r so that she ould takc c an )f him personaIl He idnuts disnnssil of W( fikIiain’, hrstekm citod 4 e hild r c r ni Ii ti sit 1 e Ii ml 1 1 1 a ‘1 MF4 No.20819/2008 23: to visit his wife at Hubil as she was living along with her chlldrt.n in a rented house away from her parents He would never believe the statement of his wife that she was interested to live with him. According to him. whether they stay at liubli or stay at Gulbarga. it would make no difference. But her intention to stay at Hubh is not to join her husband. 20. In