Emmanuel Francis vs Anna Mary Kavitha

N. Kumar, J.

These two appeals are preferred by the husband challenging the order passed by the Family Court dismissing his petition for divorce and allowing the petition of his wife for restitution of conjugal rights.

For the purpose of convenience the parties are referred to as they are referred to in the petition for divorce filed by the husband in M.C. No. 235/2009.

The petitioner-husband married the respondent on 26.8.2001 at Virgin of Poor Church, Mysore. His specific case is, he and his family members are god fearing persons and are dedicated. The differences arose between the petitioner and the respondent right from the day of the marriage for trivial matters. On the day of wedding, the night passed of without an event as the respondent was more frigid than a shying away bride. It was evident that something was lacking in the respondent and the petitioner was unable to understand the same. The initial bliss of the marriage however consumed time and the petitioner had enormous mal-adjustment against his own wish, as the respondent through out intended to cocoon her within the four walls of her parents house than to serve the matrimonial home. She used to visit her parental house often initially and subsequently, it has increased and she used to stay there for days, weeks and moths together. Thus, the petitioner could never feel that he was married. Upon visiting to the matrimonial home, the guilty respondent was sheltering herself under the guise of finding fault in everything in what the petitioner said and what the petitioner did and she used to make major accusations against the parents of the petitioner. The family members of the respondent instead of advising the respondent have encouraged her. The mother of the respondent all in the name of love for the daughter never allowed the respondent into the mind set of the family. The respondent would used to live in seclusion with the family life disproving normality of behaviour. In the absence of proper parental guidance of the respondent, the petitioner could not understand the nature and behaviour of the respondent where the respondent had hallucination which has resulted in paranoid schizophrenia nature. Though there was no co-ordination, for biological needs the couple had two children who are now aged 7 and 4 years as on today named as Master Kevin Joel and girl child named Jennifer. Petitioner was deprived of the bedroom privilege of husband and wife in terms of conjugal rights and in terms of constant company in society. The respondent behaved in abnormal manner resulting in mental hurt to the petitioner and sometimes physical cruelty was committed on the petitioner by assaulting him with hands and any available articles. There were accusation from the parents of the respondent and there were constant threatening of police complaint and constant absence from the matrimonial home resulting in failure to perform the duties of the wife. She used abusive language and even non-compatible in any manner in the family. The petitioner and his family members are financially settled. Petitioner is getting handsome salary of Rs. 14,000/- and he has also given his total expenses to the tune of Rs. 9,000/- under different heads and his take home salary as Rs. 9,000/-. The respondent has willfully deserted the petitioner. She is not entitled for any interim or permanent alimony.

It is further contended that the respondent was not even having control over the expenditure and in the guise of pleasing her family members the unscrupulous expenditure and costly gifts used to be conflicting points of controversy between the couple. The respondent had no fixed timings and she used to wake up as per whims and fancies and she never used to cook any food or serve the morning breakfast and some times she used to wake up in the noon. Whenever the petitioner used to advice, the same used to be intimated to her parental house in a lighting speed and in reply he used to get threatening calls from the family members of the respondent. He tried all the modes of positive attitude, but has yielded no fruitful result. He has contended that initially he has sought for restitution of conjugal rights and at the threat of the respondent''s family to lodge police complaint and to get arrested each and every one in the family, the petitioner has no choice but let go the proceedings, which stood withdrawn. Because of the sufferings, he developed suicidal tendency. The petitioner has even compelled to approach police help line who apparently buckled under the pressure of the family members of the respondent. The petitioner is working in the musical band of police force. Even then the respondent prevailed and hence, he left with no alternative to approach this Court seeking petition for divorce. On the Republic Day function in Bangalore when the petitioner was conducting Orchestra wherein the Governor was presiding over the function, the petitioner was attacked by the relatives of the respondent at her instigation and the petitioner was humiliated. He has also suffered with an accident and as such, he claims that in order to get liberty from the sustained cruelty and ordeal inflicted upon him and his family members and in order to live with basic dignity as human being, he claims that he is compelled to file this petition.

It is contended that since November 2006 the respondent deserted him and in November 2006 he lastly visited the house of the respondent and later on there was no efforts from the side of the respondent to restore the company and society of the petitioner. The respondent and her behavioural disorders and complaint accusation have no end in listing and she does not lead normal life and does not intend to lead normal life nor had lead a normal life and this also entitles the petitioner to claim dissolution of marriage. Therefore, he has sought for dissolution of the marriage both on the ground of desertion as well as on the ground of cruelty.

After service of notice, the respondent-wife entered appearance and filed statement of objections. She has admitted the marriage and the employment of the petitioner in Karnataka Police Band and his father was also one of the member of the Police Band. She denied that their family was Musician''s family and because of the same, petitioner has attained excellency in violin. It is contended that petitioner and his father learnt the music only in order to get a Government job. It is admitted that petitioner has got Masters degree and contended that the same could be possible only due to the kind co-operation on the part of the respondent. Petitioner has acclaimed proficiency in seven musical instruments and got a gold medal in violin instrument from Trinity School of Music, London and he has achieved the same only after solemnization of marriage with the respondent and also because of the kind cooperation on the part of the respondent.

She further contented that in the Bible no where it is stated that the persons belonging to Christianity and following Christianity shall not get divorce from either of the spouses. Since from the date of inception of the marriage, she has denied all the allegations about her personal behaviour. She used to attend the house-hold work as her in-laws were employed and her husband was also employed. She used to cook the food and get the lunch box ready for them and drop the children to school. She has all along co-operated and it is the petitioner, who has in fact practiced cruelty on the respondent. If the case of the petitioner is to be believed and if there was no compatibility, the question of she getting the children does not arise at all. She denied that she had hallucination and the same has resulted in paranoid schizophrenia. She also denied the allegations that issues are born during the said Wedlock only for biological need. She contended that this clearly discloses the mind set of the petitioner, as the petitioner is neither the follower of Christian nor knows the true meaning of marriage. She denies that the petitioner was deprived of bedroom privilege and contended that in that event she could not have begotten two children. Her parents never made any accusation against the petitioner as alleged by him. Her father died even prior to the marriage. Her mother is only the true of Christian. The petitioner being an employee of Police Department always used to treat the respondent including her mother and brothers with dire consequences and in order to protect the family status, they did not complain before any of the superior officials of the petitioner. He is having an additional income as he is conducting music tuitions. There was no maidservant in the house. She used to conduct all the house-hold works as her in-laws used to leave the house at 7.30 a.m. with their lunch bags. The petitioner, at the instigation of his parents, driven the respondent and her children from the matrimonial home without any proper cause and as such, she deserting the petitioner does not arise at all. On the contrary, she was deserted by the petitioner. Since the marriage and till she was driven along with the children, the petitioner has enjoyed his life in all aspects and achieved his goal in his education and music and now he is making false and baseless allegations against her. When she lodged a complaint, the petitioner using his good office got it dropped. It is the petitioner, who has played atrocity on her. She denied the alleged incident on the republic day function. Since the date of marriage, she being a true follower of Christianity and dutiful wife, having respect towards Joint Family, she looked after the petitioner including his family members in all respects. She has also raised certain objections regarding using the word ''shepherd'' in the petition and contended that it shows the mentality of the petitioner. After she was sent from her matrimonial home, the petitioner has neither met the respondent including her children nor made any efforts to take them to the matrimonial home. She denied that she is suffering from paranoid schizophrenia and contented that no prudent man would stay with a woman suffering from schizophrenia. Since both of them lived together and they are having two children, it shows the falsity of the allegations in this regard.

During the marriage, sufficient means of dowry, gold ornaments and other things were given and marriage was solemnized in a grand manner. The petitioner now, in order to avoid his liability is making false allegations. The petitioner had initially filed a petition for restitution of conjugal rights, which was withdrawn and then the petition for divorce is filed. In fact she also preferred M.C. No. 457/2009 under Section 32 of the Divorce Act, restitution of conjugal rights reiterating what she has stated in the statement of objections. The husband has filed the statement of objections reiterating what he has stated in M.C. No. 235/2009. Therefore, both these petitions were taken up for consideration together. The Family Court framed the following points for consideration:

"1. Whether the petitioner-husband in M.C. No. 235/2009 proves that the respondent-wife has practiced cruelty on him and deserted him without any sufficient cause and she is also suffering from mental disorder?

Whether the respondent-wife in M.C. No. 235/2009 proves that the petitioner - husband has voluntarily deserted her without any sufficient cause by withdrawing from her society?

Whether the petitioner - husband in M.C. No. 235/2009 is entitled for a decree of dissolution of marriage as prayed for?

Whether the petitioner - wife in M.C. No. 457/2009 is entitled for decree of Restitution of Conjugal Rights?

What Order?"

The petitioner, in order to substantiate his claim examined himself as P.W. 1, one Jerome Vinsent as P.W. 2 and Alfred Surendrakumar as P.W. 3 and produced 7 documents, which are marked as Ex. P1 to Ex. P7. The respondent is examined as R.W. 1 and she has produced two documents, which are marked as Ex. R1 and Ex. R2. The learned Family Court Judge after considering the aforesaid material on record and the rival contentions held that the petitioner-husband has miserably failed to prove the cruelty as well as the desertion as a ground for divorce. He also failed to prove that the wife is suffering from any mental disorder. On the contrary, the wife has successfully established that it is the husband, who voluntarily deserted her without any sufficient cause and by withdrawing from her society. Therefore, the petition filed for divorce was dismissed. Petition filed for restitution of conjugal rights was allowed. Aggrieved by the said order, the husband has preferred these two appeals.

The learned counsel for the appellant assailing the impugned order contended that the wife is not performing her marital obligations. She is suffering from a mental disorder. She is insulting her husband and she has insulted him on the Republic day. The evidence of two witnesses examined on his behalf clearly establishes this fact. The Family Court, without proper appreciation of the evidence on record committed an error in dismissing the petition for divorce and decreeing the petition for restitution of conjugal rights. Therefore, he submits that a case for interference is made out.

Per contra, the learned counsel appearing for the wife supporting the impugned order contended that no case for interference is made out. The Family Court, on appreciation of both the oral and documentary evidence has categorically recorded a finding of fact showing that there is no substance in cruelty or desertion meted out by the petitioner and therefore, no case for interference is made out.

In the light of the aforesaid facts and rival contentions, the points that arise for our consideration is as under:

"1. Whether the finding of the Family Court that the husband has not established the ground of cruelty and ground of desertion, is sustainable?

Whether the decree of restitution of conjugal rights passed by the Family Court calls for any interference?"

Point No. 1

The evidence on record shows that it is an arranged marriage performed with pomp and pleasure. The petitioner is working in Karnataka Police Force and is also a musician. In fact his father is also holding the same position in the Karnataka Police. After the marriage, two children are born. Further, after the marriage, the petitioner has secured a Masters Degree in Sociology. That apart, he has also earned seven medals for his proficiency in musical instrument and in fact he got a gold medal from Trinity, London. All these show that after marriage, husband and wife lived happily, two children were born and husband was able to prosecute his studies. The husband was also able to achieve great heights in the field of music, for which he was employed in the Karnataka Police Force. Therefore, his contention that from the day one of the marriage, their relationship is suffering as his wife did not co-operate and she was shy and frigid, is contrary to the material on record. It is also on record that the petitioner''s parents are employed, petitioner is employed. All of them are leaving the house early morning with their lunch boxes. No evidence on record is adduced to show as to who used to prepare the lunch at the house. On the contrary, it is the case of the respondent that it is she, who is taking care of the family preparing lunch, attending to the children, she is dropping the children to the school, she is a house-wife, a true Christian. Accordingly, she has taken care of the entire family with love and affection. Though the petitioner chose to examine two petitioners, he has not examined his parents, who would have been the right persons to speak about the respondent''s behaviour. If the petitioners parents have no grievance and if the petitioner''s mother is not cooking food and the respondent is cooking food for all the persons including the children and taking care of the entire family, the allegations that she sleeps till noon, she is not preparing the food, she is acting whimsically, she is going to her parents house, are all demonstrated to be false. There is no evidence in support of all these allegations. The very fact that two children are born they are all attending schools and it is the wife, who is dropping them to the school and taking care of the children shows that the wife has dedicated herself to the petitioner''s family and its members.

In fact when the wife left the company of the husband in the year 2008, the petitioner has filed a petition for restitution of conjugal rights. The first response was, he wanted the wife. It is unfortunate that he was advised to withdraw the petition and file a petition for divorce. The respondent showed her bonafides and she has immediately filed a petition for restitution of conjugal rights. She has proved what all the work she was doing and she has denied the allegation that she had any paranoid schizophrenia nor she has any hallucinations. In fact the evidence does not disclose the same and if really she was suffering, the petitioner being a husband, petitioner''s parents were all employed and educated Christians, they have not made any efforts to get treatment to her. No medical records are produced. The very fact that the wife has given birth to the children and she was taking care of the family and she has assisted her husband in getting the master degree in Sociology and to get seven medals and one gold medal shows that the allegation made by the petitioner is utter false with a view to get the decree. The Family Court, on appreciation of the entire evidence on record has held that there is no evidence that he was treated with cruelty by the respondent. Hence, the said finding does not call for interference.

Point No. 2

In fact there is no evidence adduced by the petitioner to show that the respondent deserted him in 2006. On the contrary, the respondent has given a specific date on the day when she was thrown out of the family i.e., on 17.07.2008. If that is so, the petition for divorce filed in 2009 is premature. Even otherwise, the plea of desertion, which is pleaded is not established. The evidence on record shows that it is the petitioner and his family members, who threw away the respondent and her children out of the house without any just or sufficient cause. Therefore, the Family Court was justified in dismissing the petition for divorce seven on the ground of desertion. We do not see any merit in both these appeals. Accordingly, appeals are dismissed. Consequently, I.A.s are dismissed.