K.L. Manjunath, J.@mdashThe appellant is questioning the legality and correctness of the judgment and decree of the Family Court, Mysore, in M.C. No. 138/2009 dated 30.08.2011. We have heard the learned counsel appearing for both the parties.
2. The facts leading to this appeal are as hereunder:
The appellant is the husband of the respondent. Both of them are Doctors. Their marriage was solemnized on 24.04.2003, at Koteshwara of Kundapura Taluk. The appellant-husband is practicing as Dermatologist in Mysore. The respondent-wife is working as an Assistant Professor in the department of Community Medicine, K.S. Hegde Medical Academy, Mangalore and they have a son who is now aged about 7 years.
3. At the time of marriage, the appellant and his parents were permanently residing at Hassan and that he was doing diploma in Dermatology at Belgaum Medical College. After marriage, the respondent-wife joined the husband and lived with them at Hassan. Later she went to Davanagere Medical College to pursue her post-graduation. After completion of their studies, both the husband and wife started living at Mysore. After sometime, the wife started working in AIMS., Adichundhanagiri of Bellur Cross and she used to travel from Mysore to Bellur cross twice a week for her work.
4. In the year 2006, she was in family way and she was sent to her parents house for delivery and she gave birth to her son on 26.08.2006. After delivery, she did not join the husband. Attempts made by the friends and relatives of both the parties ended in vain. In the circumstances, the appellant got issued a legal notice to the respondent and her parents, requesting the respondent to join him along with the child; for which an untenable reply was sent and thereafter the respondent-lodged a private, complaint in JMFC Kundapura in PCR No. 510/2007 on 20.12.2007 for the offences punishable under Section- 498(A), 504, 506(2) read with Section- 34 of I.P.C. read with Sections- 3, 4 and 6 of the Dowry Prohibition Act.
5. The court ordered notice and referred the matter to the police. Thereafter, a charge-sheet was filed in C.C. No. 393/2008, which is now pending consideration. Therefore, a petition was filed on the ground that without any reason or rhyme, the respondent is living separately and she has no intention to join him and that the conduct of the respondent in not joining him and harassing him by lodging complaint under Section-498 and other Sections of the I.P.C. read with Sections- 3, 4 and 6 of the Dowry Prohibition Act amounts to mental torture and cruelty and requests the Court to absolve the marriage by dissolving them.
6. The respondent filed a detailed counter. She admitted the relationship between the appellant and her. She also admitted her profession and giving birth to a son. According to her, the parents-in-laws were not treating her well and they started demanding dowry and that the appellant was always dancing to the tunes of her father Sri. Sathyanarayan. H mother Smt. Seethalaxmi. H younger brother Sri. Radhakrishna. H, and his maternal uncle Sri. Vasudeva Budhya. According to her on 18.01.2003 they demanded a sum of Rs. 20,00,000/- as dowry from her father and the same was refused by her parents. She further contends that on 04.07.2006, the appellant and his parents and his maternal uncle had come to Koteshwara Village made a demand for a sum of Rs. 5,00,000/- as dowry, since the same was not paid they did not even bother to see the respondent and her baby, except visiting her parents house thrice till October, 2006. She also contended that there she requested the Court to dismiss the petition.
7. Based on the above pleadings, the following points were formulated by the trial court:
i. Whether the; petitioner/husband proves that, the respondent/wife by her willful conduct of harassment, treated him with cruelty and thus he is entitled for a relief of divorce against the respondent/wife, on the ground of cruelty?
ii. Whether the petitioner/husband further proves that, the respondent/wife has voluntarily withdrawn herself from his society and staying away from him without justifiable cause or reason, thereby deserted him for a period of more than two years, prior to filing of this petition and thus, even on the ground of desertion, he is entitled for a decree of divorce from his wife?
iii. For what order?
8. The prove their respective contentions, the respondent got himself examined as PW-1 he also relied upon Exhibits-P1 to P17. The respondent-wife got herself examined as RW1 She did not rely upon any documentary evidence. The trial court after considering the entire evidence let in by the parties, held both the points in negative and dismissed the petition. Therefore, the present appeal is filed.
9. The matter was heard at length and thereafter an attempt was made by this Court to restore the relationship between the parties, considering their family status and educational background. Admittedly, both of them are doctors, both of them are well-qualified and the appellant is willing to take the respondent back and he was also willing to set-up a separate house away from his parents house, provided the respondent is willing to join him at Mysore. To that effect he filed a detailed affidavit.
10. The respondent has also filed a counter affidavit before the court stating that she is not willing to live in Mysore where the appellant-husband is running his clinic in dermatologist. According to her since she is working as Assistant Professor in the department of Community Medicine, K.S. Hegde Medical Academy, Mangalore and she would made all arrangements for setting up of clinic in Mangalore. In the alternative, she requested the court to direct the appellant to shift the practice from Mysore to Bangalore and stay in Bangalore for which the appellant is not willing to shift his practice stating that he has established his practice at Mysore and that he is willing for any other conditions that may be imposed by the Court or by the respondent provided the respondent is willing to join at Mysore. Since the respondent is adamant the efforts made by this Court has ended in vain.
11. The main contention of the appellant counsel before this Court is that the trial court has committed serious error in dismissing the petition without considering serious attempts made by the appellant to secure the respondent to his home by issuing a legal notice requesting the respondent and her parents to join him at Mysore along with child. Since there was a refusal by the respondent and as she had no intention to live with the appellant since the year 2006 the petition is filed in 2009. The trial court was required to grant a decree of divorce on the ground of desertion. Since the respondent has no intention to live with the appellant, she wants to put an end to the matrimonial relationship without any reason or rhyme.
12. He further contends that even the ground of cruelty has been proved by the appellant. Since the respondent is residing separately since 2006 by making wild allegations against the appellant and his parents and other members of the family by lodging a false and frivolous complaint under Section-498 of I.P.C. and other provisions of the Dowry Prohibition Act and that his family members were made to travel from Mysore to Kundapura to obtain anticipatory bail and they were compelled to attend the court from Mysore to Kundapur.
13. According to him filing of a false and frivolous criminal complaint amounts to mental cruelty and he further contends that the trial court has committed an error in dismissing the petition on the premises that the appellant did not file a petition under Section- 9 of the Hindu Marriage Act. According to him filing of a petition under Section- 9 of the Hindu Marriage Act does not arise, since the respondent was not willing to join him in spite of repeated requests. In the circumstances, he requests the court to reappreciate the entire evidence and allow the appeal.
14. Per contra, the learned counsel for the respondents submits that -both the grounds urged by the appellant for granting a decree of divorce are liable to be rejected because the appellant has failed to prove both the grounds.
15 According to him, the respondent is willing to join the appellant provided the appellant is willing to reside either in Bangalore or in Mangalore. According to him there is an apprehension in the mind of the respondent that it would not be safe for the respondent to reside with the appellant in Mysore on account of the problems created by the members of the appellant family members.
16. According to him it is the appellant who has inflicted mental torture and cruelty to the respondent. Therefore, the respondent is not entitled for decree of divorce both on the ground of desertion and on the ground of cruelty. He admits that since the birth of the child the respondent is residing with her parents attending to her duties as an Assistant Professor in the K.S. Hegde Medical Academy, Mangalore. According to him, she is compelled to reside with her parents since she is having an apprehension of her security. In the circumstances, he requests the court to dismiss the petition.
17. Having heard the counsel for the parties, the only point the for consideration of this court is:
Whether on appreciation of evidence and the findings for not granting the decree of divorce either on the desertion or on the ground of cruelty by the trial court, requires to be interfered or not?
18. Admittedly, the relationship between the parties are not in dispute. Both of them are well qualified the appellant is practicing doctor and the respondent is working as an Assistant Professor in K.S. Hegde Medical Academy, Mangalore and all was well till he respondent gave birth to a child. Thereafter, the difference between the husband and wife has arisen after the child was born on 26.08.2006. A petition is filed for grant of decree of divorce in the month of April 2009, i.e., 21/2 years after the respondent gave birth to the child.
19. Exhibit-P1 is a private complaint lodged by respondent in JMFC, Kundapura in PCR No. 510/2007 on 20.12.2007. According to the complaint of the respondent on 18.01.2003 the parents of the appellant demanded a sum of Rs. 20,00,000/- from her father. He refused to pay the same and thereafter the marriage was solemnized on 24.05.2003. If really there was a demand for Rs. 20,00,000/- as do-wry prior to the marriage and when her father refused to give dowry to the appellant, there was no necessity for the respondent to marry the appellant. Similarly, no prudent father would give his daughter in marriage when she is a Doctor if the appellant had demanded Rs. 20,00,000/-. To show that there was a demand of Rs. 20,00,000/- as dowry three months prior to the date of marriage, no person has been examined before the Court.
20. At para-9 of the PCR it has been stated that a function had been arranged in the house of the respondent at Koteshwar and at that time the parents of the appellant demanded Rs. 5,00,000/- and the same was not revealed by the father of the respondent to her as she was in the family way and to show that there was a demand of Rs. 5,00,000/- on 03.07.2006 04.07.2006 i.e., three months prior to the respondent gave birth to her son. No person is examined before the Court to show that there was a demand made by the appellant or his parents demanding dowry of Rs. 20,00,000/- either prior to the marriage or on 03.07.2006 or on 04.07.2006.
21. Exhibit-P2, is the FIR, Exhibit-P3 is the charge-sheet and Exhibit-P5 is the legal notice got issued by the appellant on 03.04.2007 through his Advocate from Hassan. Exhibit-P8 is reply sent to the legal notice through counsel on 20.04.2007. On perusal of Exhibit-P8 reply it is clear to us that in her reply notice she does not even whisper about the dowry demanded by the appellant''s father in a sum of Rs. 20,00,000/- either prior to the marriage or subsequently. From looking into Exhibit-P8 it is only clear that the PCR lodged by the appellant against the appellant and other members of the family is an afterthought and concocted and only to harass the appellant. If really the appellant was demanding the dowry; in all her correspondence''s taken place prior to the lodging of the FIR or lodging of PCR, she would have made a mentioned in her letter correspondences, at least when they were residing separately either during the course of the, prosecuting their studies or living separately in different places. This would only show the conduct of the respondent in making wild allegations against ''the appellant and family members.
22. If a wife has lodged a false and frivolous complaint before the Magistrate Court u/s 498 or under other provisions of the IPC read with Sections of Dowry Prohibition Act, four years after the marriage and one year after giving birth to the son would only disclose that only to harass the appellant such false and frivolous complaint has been lodged by the respondent. Lodging of such false and frivolous against the appellant and other members of the family that to considering their family backgrounds and status in the society as dermatologist, we are of the opinion that the same amounts to mental cruelty.
23. Be that as it may, when the appellant is willing to take back the respondent to the marital house inspite of all incidents, the respondent is not willing to join the appellant. Her intention is only to make the appellant to reside with her in Mangalore or in the alternative to shift Bangalore. There was no agreement prior to the marriage or after marriage with the appellant that the appellant should live as per the directions of the respondents, hence no court can compel a husband to stay in a place of choice of the wife.
24. We are of the opinion that the trial court has not considered the effect of Exhibit-P1 and P2 in the background of Exhibit-P7 and P8 the legal notices and reply sent by the respondent. In the circumstance we are of the opinion that appreciation of evidence and the findings by the trial court is erroneous, improper and liable to be set-aside. It is needless to state that it is difficult for anyone to prove the case of mental torture by giving any positive evidence except self-serving testimony of the parties. That to if a spouse is inflicting mental torture or cruelty to the other spouse; such spouse alone can explain and by giving illustration And it is for the court to appreciate whether such an act of the other spouse amounts to mental cruelty. Considering the background of the parties and the facts and circumstances, we are of the opinion that the appellant has been treated with mental cruelty by the respondent.
25. So far a desertion is concerned, admittedly since 2006, the parties are living separately. A request was made by the appellant to the respondent to join him. She has virtually refused to join the appellant and the conduct of the parties in filing the appeal in the court would only disclose that the appellant is willing to take the respondent back to the marital home by setting up a separate home in Mysore as per the choice of the respondent and he is also willing to live with the respondent. The conduct of the respondent would discloses that the respondent is not ready to leave Mangalore where she is working as Assistant Professor and alternatively she contends that the appellant should shift his practice to Bangalore. The appellant is not willing to settle at Bangalore on account of his established clinic in Mysore and court cannot compel him to shift his profession from one place to another new place.
26. Moreover, we are of the view that calling upon the appellant to set-up a clinic in Mangalore or Bangalore by the respondent is only" a rouse not to join the appellant and she has no intention to join the appellant by putting an end to matrimonial home and living separately from 2006. We are of the opinion that the appellant is also entitled for decree of divorce on the ground of desertion.
27. Having held both the points in favour of the appellant. The last point to be considered by the court is respondent. Admittedly, the respondent is working as a Assistant Professor in the department of Community Medicine, K.S. Hegde Medical Academy, Mangalore. According to the learned counsel for the respondent she is drawing a salary of Rs. 1,30,000/- per month, which is more than the income of the appellant. Therefore, the respondent is not entitled to claim any maintenance as of now.
28. So far as the maintenance to son is concerned, it is the duty of the appellant to maintain his son by providing him a good education, clothing and food. The appellant shall maintain the same and the respondent shall always request the appellant to pay the educational expenses of her son. In the result, the appeal is allowed. The judgment and decree passed by the Family Court, Mysore in M.C. No. 138/2009, dated 30.08.2011 is hereby set-aside and modified by allowing this appeal. In the result, M.C. No. 138/2009 filed by before the Family Court, Mysore is hereby allowed and the marriage solemnized between the appellant and respondent on 24.04.2003, at Koteshwara of Kundapura Taluk is dissolved on the ground of desertion and cruelty.
Parties to bear their costs.
