Kiran Kumar vs Sandhya

A.V. Chandrashekara, J.—Present appeal is filed u/s 19(1) of Family Courts Act, 1984, challenging the order of dismissal of the petition filed in M.C. No. 125/2012. The learned Prl. Judge, Family Court, Mangalore, has dismissed the petition filed u/s 11 and Section 13(1)(ia) of Hindu Marriage Act, 1955 vide considered order dated 01.03.2014.

The respondent herein is the legally wedded wife of the appellant herein. The appellant had filed a petition on the ground that his wife had concealed the fact of her caste at the time of her marriage with him and that she has ill-treated him with cruelty. On both the grounds, the learned Judge has dismissed the petition. Hence, several grounds have been urged in the appeal memo.

We have heard the learned counsel for the appellant and perused the records.

The certified copies of the deposition of the witnesses examined on behalf of both the parties have been made been available by the learned counsel for the appellant. After perusing the records following points arise for our consideration:

Whether the Trial Court is justified in dismissing the petition both on the grounds of non-disclosure of material fact relating to her caste and on the ground of cruelty?

Whether any interference is called for by this Court and if so, to what extent?

Reasons:

The appellant and the respondent are Hindus and their marriage was solemnized on 11.02.2010 at Shree Kshethra Subrahmanya Temple according to the customs prevailing in their community. After their marriage both of them resided in a house at Kottara, Kalbhavi Road, Mangalore. The appellant is a Shivalli Brahmin by caste. At the time of his marriage with the respondent, the respondent is stated to have told him that she also belonged to Shivalli Brahmin Caste. One month after, the marriage, he came to know that the respondent does not actually belong to Brahmin caste, but she is a Sapaliga by caste and was residing in Anegudde of Kundapura taluk. As a result of the same, he is stated to have suffered cruelty and harassment.

It is his case that she used to abuse him without any reason and calling him as a person having relationship with other ladies. Whenever the mother of the appellant used to visit Mangalore, she used to keep away from the house from morning till evening and she used to visit Udupi repeatedly. Whenever he used to ask her as to why she was leaving the house often, she would pick up quarrel with-him stating that he should not question her. He also came to know that she was in the habit of consuming several types of tablets and when asked, she used to pick up quarrel with him.

It is further alleged that on 06.06.2010 she had even made an attempt to commit suicide in his house and on 7th June, she lodged a complaint before Urva Police and the police advised both of them. On 03.08.2010 she chose to lodge a complaint before Urva Police Station which was registered in NCR No. 320/2010 and 09.08.2010, she left the matrimonial home without telling him and lodged a complaint on 11.08.2010 for offences punishable under Sections 498A and 506 IPC read with Section 34 of IPC which was registered in Crime No. 66/2010. In order to suppress her fault, she is stated to have lodged a false complaint.

The respondent has filed a detailed objections denying all the averments. She has called upon the petitioner to prove the contents of the petition strictly. It is her case that she had to leave the house because of the cruelty meted out to her by the appellant and his family members. The allegation that she was already married to one Prakash has been specifically denied. It is further mentioned by her that there is no person by name Prakash and by inadvertence the name of Prakash has appeared in the ration card and he is a non-existing person. The appellant is stated to have demanded her to bring a sum of Rs. 2 lakhs to accommodate her in his house and being helpless she took treatment in Wenlock Hospital, Mangalore, because of the assault made on her. It is specifically mentioned by her that there was no misrepresentation about her caste at the time of marriage or prior to his marriage with her.

After going through the records and after hearing the learned counsel for the parties, following two points have been framed as found in page No. 10 of the impugned order:

Whether the petitioner proves that the marriage between the petitioner and the respondent is null and void for the reasons stated in the petition and same is to be declared as nullity as it contravenes any one of the conditions specified in Section 5(i), (iv) and (v) of the Hindu Marriage Act?

Or

Whether the petitioner proves that he was subjected to cruelty and ill-treatment in the hands of the respondent and the respondent is guilty of offence of cruelty, as such he is entitled to get divorce under Sect 13(1)(i-a) of the Hindu Marriage Act?

What Order?

Petitioner is examined as PW1 and one person by name U.R. Keshava Murthy is examined as PW2. As many as 14 exhibits have been got marked on his behalf. The respondent is examined as RW1 and no documents are marked on her behalf.

The main allegation made by PW1 in his evidence is that one person by name U.R. Keshava Murthy of Devaragadde Kukke Subrahmanya, told his parents that respondent was known to him for the past seven years and that she had no parents and that she belonged to Shivalli Brahmin caste. Believing the words of U.R. Keshava Murthy, he is stated to have married her on the ground that she also belonged to Shivalli Brahmin caste. It is his further case that he came to know from a document kept in her purse that she had earlier married a person by name Prakash of Janatha Colony, Kumbasi, Kundapura Taluk. The said Xerox copy is marked as Ex. P13. Therefore, he has filed a petition u/s 11 of Hindu Marriage Act PW1 has specifically admitted that the distance between his house and the house of respondent is about 100 kms. Admittedly, U. Keshava Murthy who mediated between them about their marriage is also a Brahmin. He did not have any ill-will against him and he was very much acquainted to his mother since his mother''s childhood. Apart from that, Keshav Murthy is an astrologer. He has also admitted that it is very difficult to get Brahmin brides these days and therefore, there are inter-caste marriages. The appellant had seen the respondent two months prior to his marriage in the house of Keshava Murthy. If really Keshava Murthy had cheated him, he would not have kept quiet and he would have filed a complaint against him for cheating. On the other hand, he has examined U.R. Keshava Murthy, himself as a witness on his behalf. There was no impediment for him to go to the house of the respondent since Keshava Murthy had given clear address of the respondent. If he has accepted the proposal of U. Keshava Murthy without making any enquiry whatsoever, the respondent cannot be found fault with.

Insofar as the respondent having already married another person by name Prakash, petitioner has not made any enquiry about the said Prakash. The respondent has given an explanation that by oversight name of Prakash is mentioned in the ration card and that he is a fictitious person. PW1 does not know whether the respondent had really resided with Prakash and lead a marital life. He did not lodge any complaint against the respondent for the alleged suppression of facts relating to caste and the earlier marriage. Mere production of a Xerox copy of the ration card would be insufficient to conclusively come to the conclusion that she had married one person by name Prakash. He does not know about the suggestion put to him that later on, the Food and Civil Services Authorities have deleted the name of Prakash from the ration card. He has admitted that he should have made necessary enquiries before making a serious allegation that she had married one person by name Prakash.

PW2 U.R. Keshava Murthy, does not have any acquaintance with the respondent or her family members. He is stated to have simply believed her words and introduced her to the petitioner but he was acquainted with Sandhya, since she used to come to Temple at Kukke for the past 5-6 years. Since he found that the respondent would be a suitable match for Kiran, he is stated to have made a proposal to his parents and they accepted his proposal. He has further admitted that because of the non-availability of suitable bride amongst Brahmins, many Brahmin boys are marring girls from other castes. He has admitted that there was lot of time gap in between the date of information he gave about Sandhya to the petitioner''s parents and the date on which the marriage was performed to enquire about her caste and other background. In the meanwhile, they could have made enquiries. He has specifically denied that he has not cheated Kiran in this marriage proposal and that he had participated in the marriage. Both of them had come to his house 7 days after the marriage and both of them were very happy. He has admitted that there was no fault whatsoever of the respondent, in the present case. He has admitted that his participation was very much limited to the extent of showing a girl and introducing her to the petitioner''s parents. He has feigned ignorance about the other matters in his examination-in-chief. He has deposed that the entire affidavit has been prepared by the Advocate for the petitioner.

From the evidence of the petitioner and PW2, it is clear that there was no misrepresentation on the part of the respondent when she was introduced to the petitioner and his father by PW2. Hence there is no suppression of material fact about her caste. As already discussed, petitioner has failed to prove that she had married one person by name Prakash and hence, there is no acceptable evidence in regard to the suppression of material fact about her alleged marriage with Prakash. The serious allegations of fraud, coercion and cheating require a higher degree of proof which is almost akin to the one insisted in criminal cases, that is proved beyond reasonable doubt. Suffice to state that the petitioner has not been able to prove these serious allegations of suppression of material facts and cheating and hence the Trial Court is justified in rejecting the petition on the ground of suppression of material facts and cheating.

Insofar as the aspect of cruelty is concerned, there is evidence on record to show that she sustained some injuries while she was residing in the house of the petitioner. She was treated by a Doctor at Wenlock Hospital. On a complaint lodged by her police chose to register a case for offences punishable under Sections 498A, 506 IPC read with Section 34 of IPC in Crime No. 66/2010 against the petitioner and his family members. After concluding investigation they have filed charge sheet. It is too premature to disbelieve the materials collected by the police. In fact the petitioner himself has made false and reckless allegation that she had married one person by name Prakash before her marriage with the petitioner. Even the mobile provided by him soon after the marriage was taken back by him. The allegation of cruelty is alternative in nature. The entire focus of the petition is in regard to suppression of her caste and her earlier marriage.

Petitioner has not been able to prove the instances of cruelty imputed to her. The medical certificate issued by Wenlock Hospital on 09.08.2010 discloses that she had sustained injuries as a result of assault by her husband. Admittedly, the respondent is a very religious lady and therefore she used to visit the Temple. Therefore if she was going out of the house to visit the temples cannot be found fault with. It is not the case of the petitioner that she was not at all attending the household work as long as she was in his house. His mother and other neighbourers are the best witnesses to prove the alleged instances of cruelty meted out to him and his parents. He has not examined anybody. If everything was really alright in his house, the question of making an attempt to commit suicide by her in his house would not have arisen. Admittedly, he has not made any allegation about her chastity. The allegation of cruelty imputed to her is bald. Even if she had some physical or psychology ailments, it was his duty to have provided proper medicines by taking her to the Doctor. Having not done so, he has virtually abdicated his responsibility in looking after his wife properly. Thus on the basis of preponderance of probabilities, the Trial Court has come to the conclusion that the petitioner has failed to prove the allegation of cruelty. Thus there is no scope for interfering with the well considered order passed by the Trial Court. Hence, point No. 1 is answered in the affirmative.

In view of our finding on point No. 1, appeal is liable to be dismissed.

ORDER

Appeal filed u/s 19(1) of Family Courts Act, 1984, is dismissed as unfit by upholding the order dated 01.03.2014 passed in M.C. No. 125/2012 on the file of Prl. Judge, Family Court, Dakshina Kannada, Mangalore. There is no order as to costs.