I IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 06FFI DAY OF JULY, 2011 PRESENT THE HON’BLE MR. JUSTICE N. KUMAR AND THE HON’BLE MR.JUSTICE ARAVIND KUMAR M.F.A.No. 23999/2009 C / W No. 24000 2009 Between: Suvarna Kom Ratnakar Shet, Age: 35 years, Bank Employee, Rio. T.S.S. Road. Sirsi. ...Appellant (Common in M.FA Nos.23999/09 & 24000/09) (By Sri. A.P Hegde Janmane. Advocate) And: Ratnakar Vinayak Shet. Age: 37 \ears. Bank Employee, Currently C/o. Canara Bank, Jade Branch, Tq: Sorab. Dist: Shimoga. .. . Respondent 2 (Common in M.F.A Nos.23999/09 & 24000/09) (By Sri. V.R Datar, Advocate) M.F’.A No.23999/2009 is filed under Section 28 of the Hindu Marriage Act 1955. against the order and decree dated 15/10/2008 passed in MC.No.29/2006 on the file of Civil Judge (Sr.Dn.) Sirsi, decreeing of judicial separation in favour of the petitioner and against the respondent. M,F,A No.24000/2009 is filed under Section 28 of the Hindi.i Marriage Act 1955, praying to set aside the judgment and decree passed by the Learned Civil Judge (Sr.Dn.) Sirsi made in M.C.No.8/2007 dated 15/10/2008 and allow the original petition. These appeals coming on for orders this day. N.Kumar J., delivered the following: JUDGMENT M.F,A. No. 23999/2009 is preferred by the wife challenging the order passed by the learned Civil Judge (Senior Division), Sirsi, in MC No.29/2006 ranting a decree for judicial separation in a petition filed for divorce by her husband, M.F.A. No. 24000/09 is also filed by her challenging the order passed by the learned Civil Judge (Sr. Dn.), Sirsi, in M.C No.8/2007 dismissing her petition for restitution of conjugal rights. The learned trial Judge did not club I., 3 both the petitions and record common evidence. He recorded evidence in both cases separately and decided the petition for divorce on merits. While dealing with the wif&s petition •M.C No.8/2007 for restitution of conjugal rights in the judgment, though he has set out pleadings of the case and recorded evidence, he has not discussed the evidence on record and dismissed the petition on the ground that already he has passed an order for judicial separation, in M.C No.29/2006. which should satisfy the wife. Therefore both these appeals are taken up for consideration together and decision to be rendered by this Court in M.F.A. No. 23999/2009 would have a direct bearing on the decision to be rendered in M.F.A. No. 24000/2009. However, for the purpose of deciding these cases on merits, we have taken up for consideration the pleadings and evidence in the petition filed for divorce, i.e., M.C. No. 29/2006 only. For the purpose of convenience, parties are referred to as they are arrayed to in M.C.No.29/2006. 4 FACTUAL MATRIX 2. Sri Rathnakar, the petitioner-husband, on the date of filing of the petition was working as a Clerk in Canara Bank, Haven Branch. On that day, Smt. Suvarna, the respondent-wife was also employed in Corporation Bank at Haven Branch as a Clerk. Prior to the marriage, the petitioner was working at Karehalli Branch at Hassan District. After marriage, in order to live with the respondent, on his request, he was transferred to Haven. 3. The case of the Petitioner is that he married the respondent on 20.05.2001 at Sri Gopalakrishna temple, Sirsi, in the presence of the elders of the family as per the rites and rituals prevailing in the community. The petitioner is opposed to the mischief of dowry. He did not receive any dowry at the time of marrying the respondent. From his money he provided to the respondent all the day to day requirements in respect of gold ornaments required by the respondent. He lived with the I., 5 respondent happily for a period of 1½ years. A daughter is born and she is named as Kum. Vidyashree. After the marriage he has looked after the respondent with love and affection. She went to her parent’s house for confinement. Thereafter, on her return to the petitioner’s house, she started harassing him and his aged mother, who was suffering from Cancer by non co-operation. Petitioner advised the respondent, but she started quarrelling with him and his mother on small matters. Even though petitioner requested the respondent to adjust, she has not cared for his suggestion. She insisted that petitioner’s mother should be sent back to her native place. then only she would live with him. Petitioner sent his mother back to Santagal village in Kumta Taluk. Even then the respondent is not co-operating with the petitioner in performing her marital obligations and she has neglected the petitioner. Subsequently, respondent stopped doing household work. Without informing the petitioner she used to be away from the house. She was going to her native Vt 6 place, i.e., Sirsi. She was behaving according to her whims and fancies. She has shown disrespect to the petitioner. She left her daughter Kum. Vidyashree in her native place. When petitioner objected to the same, she threatened to live separately. Respondent was taking care of her relatives very well. But if the petitioner’s relatives came to the house, she was not taking care of them. Though respondent was given sufficient opportunity to correct and mend her behaviour, there is no improvement. Petitioner has made attempts to adjust to this attitude of the respondent for the purpose of leading a peaceful marital life and also in the interest of his loving daughter. However, respondent is not extending the marital happiness to the petitioner. Everyday the respondent quarrels with the petitioner. She makes accusations, humiliations and talks to him in a very improper manner. She would remove her Mangalsutra and throw it. Still the petitioner tolerated her. Though she was quarrelling with the petitioner and going to her parental house, he has gone and brought 7 her back to his house. However, respondent is indulging in her old habits, she humiliates the petitioner, behaves improperly with him, uses bad words against him. In spite of it, in order to maintain family name he has left his ailing mother, who is suffering from Cancer and left other members of the family and attempted to live with the respondent. Respondent has prevented the petitioner to have the company of his loving daughter. She has denied to the petitioner, his daughter’s love and affection. In spite of the same petitioner has shown patience and has attempted to live with her. Respondent everyday did not cook food, she did not attend to the petitioner’s daily needs, she has neglected the petitioner. She behaves according to her whims and fancies. Without the knowledge of the petitioner she goes to her parental house, when questioned, respondent told the petitioner that there is no relationship between them, she does not like him, she wants to leave him and live in her parents’ house, she did not need him and so saying she removed the at 8 Mangalasutra and quarrelled with the petitioner and wanted to leave him. When the petitioner was not in the house she has taken away all the gold ornaments from the house on 27.12.2003 to her parental house. From that day onwards the petitioner is living alone being dejected in life. 4. When the petitioner went to the respondent’s parental house with a request to return to the house, she has humiliated him, she has spoken ill of him and the members in her parental house have also instigated her, they did not show any courtesy to him and he was forced to return. Petitioner went to the house with his family members and elders. At that time she stated that she wants to live alone and she do not want to live with the petitioner. She did not show any respect to the petitioner or to the elders who had accompanied him. She used abusive words and humiliated him by scolding. She has categorically stated that she does not want to have any relationship with the petitioner. In spite of the SI 9 same, petitioner because of his love and affection to the respondent got issued a legal notice calling upon her to join him. In reply, she has made baseless allegations and refused to live with him. 5. On 27-12-2003 when the respondent left the company of the petitioner. she has not come back to the house, she has been living separately from the petitioner for more than two years. Over a period, because of various misunderstanding between the petitioner and the respondent, it is not possible to live together. There is no physical contact between the petitioner and the respondent. The respondent has no love and affection to the petitioner. She looks at him as an animal. Therefore, the existing relationship of husband and wife cannot continue any longer. Therefore petitioner preferred a petition for divorce. He is ready and willing to take care of his daughter. 6. On receipt of notice of the Court, respondent filed detailed objections to the petition. / 10 She admits that marriage was solemnized on 20.05.200 1. She specifically contends that it is highly unnatural and utter false that marriage expenses were borne by the petitioner. She admits the birth of a girl child later named Kum. Vidyashree and she has denied all other allegations. She has denied that she carried the gold ornaments worth Rs. 1.50 lakhs at the time of leaving the premises. She also denied the allegation that she has behaved adamantly when Panchas had come to Sirsi and that she treated the petitioner with cruelty as narrated in the petition, and the allegation that respondent used to quarrel with the petitioner with respect to his ageing mother. She was not going to parental house often and never used to treat the petitioner inhumanly. She has denied that she used to throw her Mangalsutra in the fit of rage. and that petitioner has love and affection towards his daughter and he needs her custody. Her specific case is that everything was well and fine between the petitioner and the respondent for a period of about 1½ years. H After that. mother of the petitioner Smt. Meenakshi Kom Vinayak shet came and started residing with the couple in Haven. After that, petitioner started giving physical and mental torture to her as per the instigation of his mother. Petitioner has beaten her inhumanly and all attempts made by the respondent and her father to persuade him to desist from such act went in vain. Even this fact was brought to the notice of the father of the petitioner, who did not care to advise petitioner in this behalf. Since the date of marriage, respondent was giving her salary to petitioner regularly, till she was forced away from her house in Haven. Respondent comes from a decent and respected family and was tolerating the tortures of the petitioner, both physical and mental, hoping that he will correct himself. During the marriage, the father of respondent had given in all 20 tolas of gold ornaments and Rs. 25.000/-cash to the petitioner as marriage gift. apart from bearing the entire expenses of the marriage. Moreover respondent had some 10 tolas of gold ornaments, of her own. All those gold 0•• 12 ornaments are in the family house of petitioner in Santgal of Kumta taluk and cash of Rs.25,000/- also is with him only. On the fateful day of 27.12.2003. petitioner beat up respondent severely and kicked her out of his house, in the early morning hours. Since then respondent is living in her parental house, by going up and down from Sirsi to Haven for about two and half years and now she has been transferred to Sirsi in June 2006. Actually respondent ought to have filed complaint to the Police for the offence committed by petitioner to her person. But as respondent being a gentle lady and as she has immense love towards her husband, she has chosen to tolerate it. Respondent and her father made innumerable attempts to persuade the petitioner to take the respondent along with him. But petitioner did not properly respond to the same. Petitioner got issued two notices and respondent through her Advocate replied to it. informing him that she is ready and willing to start the marital life afresh, if petitioner and his elders assure the respondent and c 13 her father that he vill look after her with love, affection, care and concern. But still petitioner chose to file divorce petition without any basis. Even in the said case, when the Court called the parties for reconciliation and asked the petitioner to take the respondent to his house in Hassan for a week as trial to examine the feasibility of joining them, petitioner did not come to Court on the day fixed to take the respondent. This clearly shows that respondent is willing to join the petitioner and lead marital life with him and petitioner without any reasonable cause is keeping her away from him. It is the petitioner who has withdrawn from the society of the respondent without any reasonable excuse. Therefore, she is entitled to seek restitution of conjugal rights and has already filed a petition for the same before the Court. Petitioner has no ground to seek the custody of child. It is only the respondent who can look after the child well. If the petitioner is interested in the welfare of the child, he should join with the respondent and not 0 14 seek divorce from her. She sought for dismissal of the petition. 7. On the aforesaid pleadings the Family Court framed the following points for its consideration. 1. Whether the petitioner proves that respondent has deserted him for continuous period of two years or more immediately preceding presentation of the petition? 2. If so. whether the petitioner is entitled for the decree so prayed? 3. To what order? 8. In support of his case the petitioner examined himself as P.W. 1. He examined a witness by name Nagina Kom Nazeer Patan as P.W.2, his land lady of the rented premises at Haven, P.W.3 one Sri I Shreedhar Pandurang Shet was examined, who has witnessed one of the Panchayaths. He has produced 4’. 15 seven documents, which are marked as Ex.P. 1 to Ex.P.7. On behalf of the respondent, respondent was examined as R.W. 1 and she also examined a witness by name Jayashree Chandrashekar Vernekar as R.W.2, who has also spoken about a panchayath. She did not produce any documents. 9. Learned Civil Judge on appreciation of oral and documentary evidence on record, after taking note of the case law governing the parties, held that petitioner has also done some mistakes, which are quite natural in marital life. The petitioner and respondent lived together till 27.12.2003, on which date the wife left the petitioner. When he tried to bring her back, she refused to come back. All attempts thereafter made to bring back the respondent also did not succeed on account of the respondents stand that she did not want to stay with the petitioner. The petitioner made various attempts to bring back the respondent and panchayaths were convened. More so, the respondent has admitted in 16 the cross-examination that, twice panchayaths were conducted. This would show that respondent is reluctant to Join the petitioner. The evidence of petitioner shows that all attempts to bring back the respondent did not succeed for no fault of petitioner. The pleadings as well as evidence recorded shows that petitioner has discharged the burden cast upon him. In other words the petitioner has made out a ground as stated in Sec. 13(1)(B) of the hindu Marriage Act. Thereafter, he proceeded to hold that. a reading of the oral evidence so adduced by the petitioner and respondent are corroborating and defeating the case of each other because both the parties have produced evidence against each other who are close relatives and friends in support of their allegation. Learned Judge further concludes that he is of the opinion that both the parties are at fault. Even from the evidence spoken to by other witnesses, this respondent has exceeded the limits of decency. She never cared to Join the petitioner. since beginning. Since 27.12.2003 she neglccted him and behaved rudely with him. It- 4. 17 There was a continuous insolent and erratic behaviour of the respondent. She herself left the company of petitioner on 27.12.2003. Elderly members conducted the panchayat. but the efforts to bring her back to matrimonial home did not succeed. She was advised to mend her ways. In spite of the valuable advise of elderly members, she never acted as per their advise. On her own, she left her matrimonial home and started residing with her parents. She is working in Corporation Bank and must be having a pride that she is working in a Nationalized Bank. Behaviour of the respondent has caused petitioner mental agony. . Thereafter, after referring to various Judgments, learned Civil Judge held that in this case, both the petitioner and the respondent are quite young, they were married in the year 2001; Out of the wed lock, respondent gave birth to female child named Vidhyashree; She is now hardly aged about 6-7 years; Everything has gained momentum under mistrust, which. by passage of time can be sorted out, as the parties are educated and 4 18 employed in nationalised banks; Time is a great healer; Under these circumstances it was held that while respondent has committed the act of cruelty against petitioner. but these acts have not gone to that proportion so as tp give a finding in favour of the petitioner that, he is entitled to a decree of divorce on those act of cruelty. Learned Judge was of the view that it is just and proper to pass a decree of judicial separation u/S 10 of the Hindu Marriage Act. Resorting to this step u/S 10 of the Act definitely allow the parties to ponder over again. so that, they may be able to unite at least for the welfare of the child who is in the custody of the respondent. Still the parties do not resume the matrimonial obligation within the statutory period of one year, it will be open to either of them to seek a decree of divorce. Though respondent is guilty of cruelty petitioner is not entitled for a decree of divorce. Instead, it is just and proper to pass a decree of judicial separation u/S 10 of the Hindu Marriage Act in favour of the petitioner husband against the respondent wife. Therefore 19 instead of granting a decree of divorce, he granted a decree for judicial separation. Aggrieved by the said decree of judicial separation. the wife has preferred this appeal. RIVAL CONTENTIONS 10. Sri A.P. Hegde Janmane, learned counsel appearing for the appellant assailing the impugned judgment contended that petition was filed for divorce on the ground of desertion, whereas learned Civil Judge has recorded a finding that cruelty is established. hut not sufficient to grant a decree for divorce, but sufficient to grant a decree for judicial separation. In other words, the case of desertion pleaded is not proved. No case of cruelty is pleaded. hut a finding is recorded that cruelty is established. In the circumstances the impugned order passed by the learned Civil Judge is liable to be set aside. He further contended that material on record discloses that though wife withdrew from the company of the petitioner on 27.12.2003. it is because she was beaten I 20 badly on that day. Husband is the cause for her withdrawal from his company. She was very much interested in joining the husband. All that she wanted was an assurance from her husband and the members of his family that she will be taken care of properly, which was not forthcoming. Though three panchayaths took place, because of the reluctance on the part of the husband to give that assurance and the demand that she has to bring Rs. 1.50 lakhs worth gold ornaments, she could not rejoin her husband. In fact, in the reply notice issued to the legal notice, she has made her intention to rejoin explicitly clear. There is evidence that she actively participated in three panchayaths conducted in her house. All the time she was eager to join her husband. Therefore in the light of these materials, the desertion pleaded by the husband is not established. There is no evidence of cruelty. but still the learned Civil Judge has committed a serious error in holding that cruelty is proved. Therefore he submits that decree for judicial separation is liable to be set aside. In fact the I 21 learned Civil Judge passed order for judicial separation, which in his view, will pave way for reunion of husband and wife; he has dismissed the petition for restitution of conjugal rights without considering the case on merits. Therefore the petition for restitution of conjugal rights which has been dismissed on that ground requires to be allowed. 11. Per contra, Sri V.R. Datar, learned counsel for the husband, submitted that material on record clearly discloses that wife was in the habit of quarrelling with the petitioner and she took exception to his mother joining them. She did not bring back the daughter. She left the child in her parental house, thus, depriving the petitioner the company of his daughter. On 27.12.2003 without notice or consent of the petitioner she left the company of the petitioner. Admittedly, three panchayaths were conducted thereafter and she made it very clear in the panchayath, as is clear from the evidence also that she is not interested in Joining her husband. In factzz 22 on more than one occasion, she removed the Mangalsutra and threw it on the face of the husband, which clearly indicates her intention not to live with the husband any more. When three panchayaths were conducted subsequently. it shows the bonafides of the husband to take back the wife, but it is the wife who has declined to join him. Even after issue of legal notice, she did not make any effort to join the husband. Under these circumstances, when the wife has withdrawn from the company of the respondent and when she had no intention of living with him, a case of desertion. which is pleaded, is made out. Though learned Civil Judge has recorded a finding that case of desertion is made out, he has proceeded to consider the case as if it was a case of cruelty and then he has held the case which is pleaded, is not sufficient to grant a decree for divorce and in the facts of the case it would be appropriate to grant a decree for judicial separation. Therefore he submits that learned Civil Judge though was in error in granting a decree for judicial separation, still he 23 committed no illegality in passing the decree and petitioner has not made out any case for interference with the decree for judicial separation. POINTS FOR CONSIDERATION 12. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in these appeals are as under: (i) Whether the case of desertion pleaded by the petitioner stands established as contended by the petitioner? (ii) In the facts and circumstances of the case whether the learned Civil Judge was justified in granting a decree for judicial separation in a pelition filed by the husband for divorce under Section 13(1)(b) of the Hindu Marriage Act, 1956? 13. A perusal of the petition for divorce shows that the petition was presented under Section 13(lb) of the Hindu Marriage Act, 1.955 (for short hereinafter referred to as Act’). We have set out in detail the a 24 pleadings. The grievance of the petitioner, as set out in paragraph no. 12, the cause of action column, reads as under: - The cause of action for this petition arise every time when the respondent did not show love and affection towards the petitioner, every time she left the company of the petitioner. every time when she expressed