Anitha Anthoniraj vs P. Jesupatham Anthoniraj

Rathnakala, J.—1. The judgment and decree dated 21.11.2011 passed in M.C. No. 128/2006 by the Principal Judge, Family Court at Bangalore, thereby allowing the petition of the husband and granting decree of divorce under the provisions of Section 10(1)(x) of the Indian Divorce Act, 1869 (''the Act'' for brevity), is under challenge in this appeal.

The appellant is the aggrieved wife. The respondent/husband filed the petition before the court below contending that the parties were married on 16.2.2001 at Bangalore as per the Christian rites. At the time of marriage, the husband was employed in Saudi Arabia. After marriage, he took a rented house. After staying for 15 days, he went to Saudi Arabia. His desire was to work for some time in Saudi Arabia and thereafter return to India. He did not want a working girl since he was earning sumptuously. He decided to purchase a property and authorized the wife to withdraw money from his account. Accordingly, she withdrew Rs. 9,70,000/- from his Bank account and purchased a site in the joint name of herself and the husband. He came to Bangalore in July 2002 for 25 days. By that time, construction of the house was incomplete. He invested another Rs. 1,50,000/- and went back to Saudi Arabia. Again he came back in October 2002 and stayed for four months. By that time, construction of the house was completed and his family moved to the new house; his parents were accommodated in the first floor. In May 2003, the wife without his knowledge and permission secured a job in a Call Centre. Since he objected, she treated him cruelly; she was rude and harsh whenever he called her over phone from Saudi Arabia, she was indifferent and finally stopped communicating with him. He was refused leave to come to India. At that stage, her father wrote letters to his employer making reckless and irresponsible allegations, which damaged his reputation. The wife and her parents tried to dispossess his parents from the first floor. He had to resign his job and return to Bangalore in December 2004. Immediately the wife left the matrimonial house for her parents'' house. However, with the intervention of a family friend, she returned to matrimonial house. The wife and her parents ruthlessly harassed him and his parents. He requested the wife to release the property to his name. Accordingly, a registered release deed was executed by her. However, to safeguard the interest of the wife, a clause was inserted that she has every right to live in the premises along with the husband as long as her marital relationship is subsisting. Still her harassment persisted and he was physically abused. She was getting indecent phone calls from various men. She was moving about in auto rickshaw and refused to reveal her movements. She conceived and left the matrimonial home on 5.12.2005. On 7.12.2005, he was arrested by the Police on the complaint of the wife. She filed a civil suit for cancellation of the release deed. She lodged complaint to the police with false allegation of hitting her on the nose. In view of her false accusations, rudeness and incivility, it was impossible for him to live with her. Hence, he prayed for a decree of divorce.

The defence set up by the wife was, prior to the marriage, the husband had proclaimed that he is a M.Com., C.A. Graduate, but afterwards it was found out that he has not passed intermediate. He promised to take her along with him to Saudi Arabia after marriage. But after the marriage, stayed only for 20 days with her and took excuse that he did not get Visa for her. Her parents have paid 70% cost of construction apart from the loan availed and have built ground and first floor measuring 20 squares. The land cost more than Rs. 6 lakhs @ Rs. 500/- per sq.ft. apart from registration, khata transfer, plan sanction etc. On his demand, a Pulsar motor cycle costing nearly Rs. 50,000/- was purchased in her name and given to him. During his stay at Saudi Arabia, he did not maintain any communication with her. Therefore, a letter was sent to his employer at Saudi Arabia by her father and his employer sent him to India. He settled his parents and married sisters'' family in the house built up by her. In the first week of December 2004, he sent her out of the matrimonial home. It is only at the intervention of a family friend, he took her with him for a short period. He withdrew her savings amount of Rs. 1,40,000/- forcibly with a threat otherwise to drive her out of the house. He has drawn Rs. 75,000/- from the ATM counter under the false pretext that he is unable to encash Dollars he brought from Saudi Arabia. He took her to Sub-Registrar''s office, Bangalore North Taluk, Peenya; without informing her anything, forced her to sign a release deed giving up her right, title and interest in the house property in his favour. He put threat to her life if she refused to sign the release deed. She had to oblige since her father or brother were not at station. He started demanding her consent for mutual divorce and harassed for dowry. She filed an original suit for declaration that the above release deed executed by her under threat and coercion is null and invalid. He demanded Rs. 65 lakhs for his expenses and insisted her to sell her jewels or register the site belonging to her parents in his name. Since she refused to give consent for his second marriage, she was thrown out of the gate in the late night while she was three months'' pregnant. After she signed the papers, she was allowed to stay and after one week he demanded her to sign mutual consent divorce papers. When she refused, he hit against her nose damaging the nose bridge. She was rushed to the hospital and surgery was conducted at the expenses of Rs. 20,000/- by her parents. Two weeks thereafter again he demanded her signature on mutual divorce papers, as she refused, he punched on her face thereby her both upper and lower lips were torn. She was sent out of the house. At that time, she was in her seventh month pregnancy. At that time, he sent a message to her father to speed up divorce proceedings. On 6.12.2005, he came along with his father to her parents'' house and shouted against her parents demanding consent for divorce. Under the circumstance, she lodged a complaint for dowry harassment. In that connection, his Passport is seized by the Police. She has given birth to a female child. If divorce is granted, she and her child will be put to misery and hardship.

During trial, the parties examined themselves as PW-1 and RW-1 respectively. Documents Exs.P1 to P10 and Exs.R1 to R9 were marked. On considering of the overall evidence, the learned Family Court Judge held that the ingredients of Section 10(1)(x) of the Act is satisfied, thereby dissolved the marriage by a decree of divorce.

We have heard both learned Counsels and perused the impugned judgment and decree.

The learned Family Court Judge commences his discussion with a portion of cross-examination evidence of the wife, wherein she expresses ''no objection to give Divorce'', if the husband gives his share in the house property to the daughter. On the foundation of the above, learned Family Court Judge expresses his prejudgment that "there can be no hesitation or impediment whatsoever to allow the petition granting Decree of Divorce". With this pre-occupation, he has entered into appreciation of judgment. Admittedly, the wife had filed an original suit prior to filing of the present divorce petition.

The learned Family Court Judge transgresses his jurisdiction and records a finding in respect of a contentious issue in the civil case between the parties, rejects the contention of the wife that she had contributed 75% of cost of construction of the building. More than looking from the angle as to whether the husband, who has come to the Court for relief, has proved his allegation and whether the acts alleged against the wife amounts to cruelty, the learned Judge''s exercise is more on whether the allegation made by wife against the husband is proved or not. This is against the fundamental principles of the Evidence Act. No doubt, subsequent conduct of the wife may be one of the factors, which can be counted upon during final disposal of the case on merits but the primary enquiry shall be, whether the petitioner has proved his case to the satisfaction of the Court.

Section 14 of the Act contemplates required qualification to pronounce Decree for dissolution of the marriage even after the husband proves his case and also disqualification for not pronouncing the Decree of Divorce. If the petitioner is guilty of adultery during the marriage, guilty of unreasonable delay in prosecuting such petition, guilty of cruelty towards other party to the marriage, guilty of desertion before adultery complained of, guilty of willful neglect or misconduct, the Court is not bound to pronounce decree of dissolution of marriage. Before recording final finding, the Court has not adverted to these aspects of the matter.

In that view of the matter, we are of the considered opinion that matter requires reconsideration.

Though the allegation made by parties against each other is of wide range involving their extended family, they have not examined witnesses in support of their respective case. In that view of the matter, we hold both parties shall have opportunity to place their additional evidence before the Court, if so advised.

In view of the forgoing reasons without expressing any opinion about merits or demerits of the case, we pass the following order:

The appeal is allowed. The judgment and decree dated 21.11.2011 passed in M.C. No. 128/2006 by the Principal Judge, Family Court at Bangalore, is hereby set-aside. The matter is remitted back to the Trial Court for fresh consideration in the light of the observation made supra.

The parties are permitted to adduce further oral and documentary evidence/rebuttal evidence before the Trial Court by filing necessary application.

The Trial Court shall dispose of the matter expeditiously.

Without waiting for the Court notice, the parties shall appear before the Trial Court on 25.04.2016 at 11 a.m.

Registry is directed to transmit the case records to the trial Court forthwith.

In view of disposal of main appeal, IA No. 1/2013 filed for permanent alimony does not survive for consideration, hence, stands disposed of as having become infructuous.