(Prayer: This appeal is filed under Section 19 (1) of Family Court Act, against the judgment and decree dated 07.02.2012 passed in M.C No. 3/2011 on the file of the Judge, Family Court, Bijapur, partly decreeing the suit of plaintiff filed under section 13 of Hindu Marriage Act and etc.)
Raghvendra S. Chauhan, J.
1. Aggrieved by the judgement and decree dated 07.02.2012, passed by the Family Court, Bijapur, whereby the learned Judge has granted a decree of judicial separation in favour of the respondent-husband, the appellant-wife, Ms. Bharathi, has approached this court.
2. Briefly the facts of the case are that Mr. Shivashankar, the respondent-husband, and the appellant-wife, Ms. Bharathi were married in May, 1992 according to Hindu rites and customs at Revanasiddeshwara Temple at Horti, Indi Taluk, District Bijapur. During the course of the marriage, they were blessed with three daughters. At the time of the marriage, the husband was working in the Telecom Department. Since he was on a transferable job, he was posted at different places. Between 1992 and 2003, the couple lived happily. However, after 2003, differences arose between the couple. Since the husband was working on the post of Junior Telecom Officer, since he was required to repair the broken down machines, and the telecommunication equipments, he would return late at night to his home. Due to his coming late at night, the wife suspected that he was having extra-marital affairs with two ladies, namely Savithri and Ganga. She not only accused him of having extra-marital affairs, but also complained that he was generally intoxicated when he returned home. Due to her complaints submitted to the General Manager, Telecom, Bijapur, the husband was transferred from Bijapur to Babaleshwar. She also filed criminal complaint against the husband, and his family members, with the Devar Hipparagi Police Station, for an offence under Section 498-A IPC. However, the JMFC Court at Sindagi eventually acquitted the husband and his family members. In 2007, the wife left the matrimonial home. Despite the service of notice upon her, a notice sent by the husband, she refused to return to the matrimonial home. Therefore, the husband filed a divorce petition on the grounds of cruelty, and desertion by the wife.
3. In order to support his case, the respondent- husband examined three witnesses, and submitted thirty- eight documents. In turn, the wife examined five witnesses, and submitted four documents. After appreciating the evidence, the learned Judge declined to grant a decree for divorce. Instead, the learned Judge moulded the relief of granting a decree of judicial separation in favour of the respondent-husband. Thus, this appeal before this court.
4. Mr. R. S. Siddapurkar, the learned counsel for the appellant, has raised the following contentions before this court:-
Firstly, the learned Judge is unjustified in concluding that the wife had committed cruelty upon the husband. For, the appellant had clearly explained in her testimony that the husband and his family members were demanding dowry, that the husband had entered into extra-marital affairs with two sisters Savithri and Ganga, and that since she could not produce a male child, the husband and his family members were torturing her. Hence, the cruelty was inflicted by the husband and his family members. Moreover, due to these cruelties, she was compelled to file a criminal case for offence under Section 498-A IPC, before the police. Therefore, the husband cannot take the advantage of his own wrong.
Secondly, since the husband was having an illegal affair with two ladies, the wife had no other option, but to leave the matrimonial home. Furthermore, since she was keen to resume cohabitation, she had filed an application under Section 9 of the Hindu Marriage Act ("the Act", for short) for restitution of conjugal rights. Moreover, the husband had refused to co-habit with the wife before the Family Court. Therefore, the wife had a valid reason for leaving the husband. Hence, she has not deserted the husband. Further, since it is the husband who has refused to live with the wife, it is he who has deserted the wife. Therefore, again he cannot be given the benefit of his own wrong.
Thirdly, since the husband had not prayed for judicial separation, the relief of judicial separation could not be granted to him. Hence, the impugned judgment and decree deserve to be set aside by this court.
5. On the other hand, Mr. Manavendra Reddy, the learned counsel for the respondent, has pleaded that the wife has made wild allegations against the husband, thereby, assassinating his character. Although the wife has alleged that the husband has extra-marital affair with two women, neither the wife, nor her witnesses had established the said allegation. To inflict allegations of extra-marital affair, itself tantamount to act of cruelty.
Secondly, even when the wife had filed a criminal complaint for offence under Section 498-A IPC, the husband and his family members have been acquitted by the Criminal Court. Therefore, the husband and his family members have been subjected to a frivolous prosecution. This act also tantamount to mental cruelty.
Thirdly, after the wife had left the matrimonial home in 2007, in 2008, the husband had sent a legal notice to the wife requesting her to resume cohabitation. Although the said notice was received by the wife, but she did not resume the matrimonial ties. Still the husband waited for four more years before filing the divorce petition. Moreover, the husband is religiously paying the maintenance to the wife and to the three daughters. This clearly indicates his bona fide with regard to his family. However, due to the cruelty inflicted by the wife, the husband is not willing to live any longer with her. Hence, his statement in his testimony that he is not willing to resume co-habitation with the wife. Therefore, the husband had clearly established both the grounds of cruelty and desertion before the learned Judge.
Lastly, the learned Judge is free to mould the relief keeping in mind the facts and circumstances of the case. Since granting a divorce decree in favour of the respondent- husband would jeopardise the prospects of the marriage of the three daughters, the learned Judge was justified in granting a decree of judicial separation to the husband. Under the said decree, the parties can live separately, but peacefully, and can perform the marriages of the daughters without any difficulty. Therefore, the learned counsel has supported the impugned judgment and decree.
6. It is, indeed, trite to state that a plea raised by a party has to be established through cogent and convincing evidence. Reckless allegations made by a party against the other party does amount to act of cruelty. In the present case, the wife has alleged that the husband was having extra-marital affairs. But, the said plea has not been established by the wife, either through her own testimonies, or through the testimonies of her witnesses. Therefore, an allegation which damages the social and professional reputation of the husband certainly is an act of cruelty.
7. Even after lodging a criminal complaint alleging that the husband was cruelly treating her, she failed to establish the said allegation. Thus, she unnecessarily embroiled the husband, and his family members in a frivolous prosecution. Even this act is an act of cruelty inflicted by the wife upon the husband.
8. Moreover, although the wife has tried to justify her living separately from the husband on the ground of cruelty committed by him, she has failed to establish the said plea. Therefore, she has failed to justify her leaving the matrimonial home. Further, since she had received the legal notice sent by her husband in 2008, but had refused to rejoin his company, therefore, both the act of desertion, and the animus deserendi is writ large in the present case. Hence, the learned judge was justified in concluding that the husband had succeeded in establishing both the grounds of cruelty, and desertion on the part of the wife.
9. The learned Judge has also noticed the fact that the wife had filed her application for restitution of conjugal rights as a counterblast to the divorce petition filed by the husband. Thus, the filing of the said application, was merely a subterfuge to undermine the divorce petition. Hence, the learned Judge was justified in rejecting the said application.
10. Although the husband had refused to resume cohabitation with the wife in his testimony, but the said statement has to be appreciated holistically. Admittedly, the husband was subjected to mental cruelty from 2003 till 2007, the wife had deserted him from 2007 till the filing of the divorce petition in 2012. Although the husband was maintaining the wife and daughters, he cannot be expected to live with a wife who had not only tarnished his social reputation, but had also broken the matrimonial home. Therefore, his refusal to resume cohabitation would not tantamount to desertion on his part. Since he has been humiliated and tortured by the wife, he has legally valid reasons for refusing to resume matrimonial ties with the wi
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fe. 11. Needless to say, a court can always mould a relief keeping in mind the facts and circumstances of the case. Therefore, even if a decree of judicial separation was not prayed for, even then the learned Judge is justified in granting the said decree. The learned Judge has noticed the fact that the eldest daughter is of marriageable age, and the other two daughters are also about to become eligible for a valid marriage. However, in rural areas, if the parents are divorced, such a divorce may play havoc with the chances of the daughters being married in well-off families. Therefore, in order to protect the interest of the three daughters, in order to give a quietus to the dispute between the spouses, the learned Judge was certainly justified in granting the decree of judicial separation in favour of the respondent. 12. For the reasons stated above, this court does not find any illegality or perversity in the impugned judgment and decree. This appeal is devoid of any merit. It is, hereby, dismissed.