Deena Anup Kumar vs Anup Kumar K.

Rathnakala, J.—1. The appellant herein is aggrieved by the judgment and decree passed by the learned Principal Judge, Family Court, Dakshina Kannada, Mangalore, whereby her marriage with the respondent is dissolved.

The facts is, the parties were married as per Hindu rites and customs on 25.05.1989. Out of their wedlock, one female child was born on 19.07.1990 and one male child was born on 19.05.1995. After leading happy married life for several years, the wife started harassing the husband and criticized his family members verbally and also by sending E-mails and mobile text messages. She developed the habit of consuming alcohol. Under the consumption of alcohol, she used to abuse the husband causing serious emotional distress on him. She suspected him of having extra marital relationship with their housemaid who was working for the last 10 years. She went to the extent of complaining to the Church at Dubai. After enquiry, the Church found her allegation was false. After enquiry with the housemaid Mrs. Rosaline Fernandez and her family, the matter was closed by the Church Officials. The wife also gave a false complaint to the Indian Embassy by making similar allegations. Her complaint was neglected having found that the complaint is false and baseless. The husband suffered mental harassment, so also in his career front as well. He was put to humiliation by her suspecting questions. He believes that there is no compatibility or any kind of understanding in the marriage. He has purchased an apartment in Mangalore in the name of Wife. The family members of the wife have taken a sum of Rs. 25,00,000/- for their business purpose and have not returned the amount till now. The children are in his custody. He is educating and nurturing them well. The wife has failed to perform matrimonial obligations. Since, he was unable to bear the mental cruelty, he was constrained to issue legal notice dated 19.11.2012 calling upon the wife to file mutual consent divorce petition under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 (for brevity, "the Act"). Notice sent to Mangalore address returned with an endorsement "intimation served not claimed". Deliberately, she has not received the notice and did not come forward for divorce for mutual consent.

The wife in her objection statement denied all the allegations leveled against her in the petition. She set-up her defense to the effect that cunningly the husband wanted to get divorce, though they were living together in Dubai at the time of sending the notice. Initially, he was a very good person and performed his duties as dutiful husband and father. As the days advanced, he started to show disinterest against her and committed acts of cruelty by assaulting her on daily basis. His family members whom she had hosted at Dubai are now supporting him. She was blackmailed to leave the matrimonial house and mentally tortured. He withheld and instigated the children against her and abused her in the presence of the children. He lured the children by giving unlimited cash to impress them, for the last ten years. He suffers from serious inferiority complex as there is an age difference of 12 years between them. She developed health problem because of mental and physical cruelty inflicted on her. She suffered cancer and early menopause. On 15.12.2011, for silly reasons, he caught hold of her neck and forcefully pushed her to the wall thereby she fell down and was unconscious. After gaining consciousness, she saw him doing exercise and she called the Dubai Police for help. The Police arrived at the spot and asked her to lodge FIR against the husband. But knowing the seriousness of registration of criminal case, she requested the police only to warn him. Without getting her treatment, he called her parents and abused her as dirty woman and told them to take her back. Again on 2.9.2012, on his violent act, she complained to Consulate General of India. Later, the Consulate officials gave an endorsement to her that the husband is not interested in any kind of mediation/counseling by the Consulate. He behaves strangely with the maid and gives information to her only about his whereabouts and if he is coming for lunch or not etc. That maid takes the advantage of the situation, however, she never abused the maid as having an affair with the petitioner. Again on 2.9.2012, she complained to the Consulate General of India. They called both of them for counseling session but he ran off to Mangalore and started harassing her parents. She was dutiful wife and mother to children and sacrificed her life. He was working as Finance Manager for Gulf and Pakistan in NCR Corporation, drawing a salary of Rs. 5,00,000/- per month. The rent of the apartment was Rs. 1.5 lakhs which was borne by the company. He is an alcoholic and used to abuse her in vulgar language and abusing towards her and also her parents. When she sought help from his family members, they shouted back at her and encouraged him. She had to sell her gold jewelry to fulfill her basic needs of medical treatment. He has not placed good ground for annulment of the marriage after living together for 24 years.

During the trial, the parties except examining themselves as PW1 and RW1 respectively did not examine any witnesses on their behalf. The learned Family Court Judge, after giving audience to both parties and evaluation of the oral and documentary evidence, allowed the petition, thereby dissolved the marriage between the parties with a direction to the husband to pay Rs. 25,00,000/- as her permanent alimony.

Smt. Geetha Devi. M.P., learned counsel for appellant, while assailing the judgment of the Court below among other things submits that the appreciation of the evidence by the court below is erroneous and is on a wrong approach. The husband who had come to the Court seeking relief ought to have proved his case. Though the wife had denied many of the facts alleged by him, the learned trial Judge has upheld the case of the husband by holding that the wife has not proved her case. This is against the elementary principles of the Evidence Act. On that count itself, impugned judgment is liable to be set-aside.

In reply, Sri. Shams Ahmed Pathan, learned counsel for the respondent submits that rigid and technical rules of procedure and evidence act has to be relaxed in this category of case. The dispute has to be addressed with a more liberal and human touch, otherwise, it would result in great injustice.

In the light of the above submissions made at the Bar, we have gone through the impugned judgment and find some force in the submission made on behalf of the appellant. It is the elementary principle of Evidence Act that a party who comes to the Court for relief has to prove his case. The case has to stand on its own strength, not on the deficiency of the other parties. Instead of looking for whether allegation is satisfactorily proved by the husband, the learned Trial Judge has put reverse burden on the wife to prove her defense. The husband having come to the Court seeking decree of divorce on allegation of cruelty, the Court was obliged to find out whether he discharged his onus by proving alleged acts against wife. Whether the acts alleged can make out a case for cruelty would have to be looked into in the next phase. The Family Court being Primary fact finding authority has to comply its obligation while adjudicating a case in accordance with the settled procedure and principle of law, on the basis of the materials displayed before it, which is lacking in this case. In that view of the matter, we are of the considered opinion that the matter requires re-consideration in accordance with the basic principle of Evidence Act.

The appeal is allowed. The judgment and decree dated 11.02.2014 passed in MC No. 250/2012, by the Principal Judge, Family Court, Dakshina Kannada, Mangalore, 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 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 18.04.2016 at 11 a.m.

The amount of Rs. 25,00,000/- (Rupees Twenty Five Lakhs Only) deposited before the Trial Court shall be invested in fixed deposit till disposal of the case.

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

In view of disposal of main appeal, IA No. 2/2014 filed for interim maintenance does not survive for consideration, hence, stands disposed of as having become infructuous.