M.A. Narayana vs M.A. Manjula

N. Kumar, J.—These two appeals arise out of the same order and therefore, they are taken up for consideration together and disposed of by this common order.

For the purpose of convenience, the parties are referred to as per their ranking before the Family Court.

M.C. No. 4271/2011 is filed by the Husband - M.A. Narayana against the wife -- M.A. Manjula @ M.S. Chandrika for a decree of divorce on the ground of cruelty and desertion under Section 13(1)(1a)(1b) of Hindu Marriage Act, 1955. M.C. No. 3692/2013 is filed by the wife against the husband under Section 10 r/w. Section 27 of the Hindu Marriage Act, 1955, for judicial separation and for a direction to the husband for half share in the property situated at No. 59/1, ground floor, Ananth Mansion, 7th Cross, Malleswaram, Bangalore -- 560003. In fact the matter was referred to the Mediation Centre and the mediation having failed, the matter came back to the Court.

The case of the petitioner is that he married the respondent on 10.5.1979 at Hayagriva Kalyana Mandira, Majestic, Bangalore, as per Hindu Rights and Customs in the presence of elders and both the family members. The marriage was consummated and a female child was born out of the wedlock and as on the date of petition she was aged about 29 years. The petitioner was working as Senior Manager in BHEL, Hyderabad and he took voluntary retirement in the year 1991-92. He is a Civil Engineering Graduate. After retirement he stayed in his house along with his family at Hyderabad till 1999. The respondent -- wife and daughter shifted to Bangalore and started living with her three unmarried sisters at 73rd Cross, 5th Block, Rajajinagar, Bangalore -- 560010, for the purpose of daughter''s education. The petitioner sold his house at Hyderabad in the year 2000 and joined his wife and daughter at Bangalore. The petitioner along with his family and sisters shifted to No. 201, 12th B Main, 6th Block, Rajajinagar, Bangalore during 2001 and stayed till 2003. During October 2003 at the instance of the respondent the petitioner purchased a flat bearing No. 29/1, 7th Cross, Malleshwaram, Bangalore - 560003, in their joint names. Thereafter petitioner shifted immediately and he is continuing to reside their. After purchasing the house the respondent and the daughter did not come to the petitioner''s house. During the year 2008 the respondent-wife, daughter and the wife''s three sisters and husband of one sister shifted to No. 66/2, Shandilya Apartments, 7th Cross, Malleshwaram, Bangalore. It is the specific case of the petitioner that after the marriage with the respondent she did not build up even minimum cordial relationship with the petitioner in any manner, since she wrongly believes that other people like his relatives and others want to harm them, it is because of her unjustified suspicion and mistrust of people. She is also having a long term disorder which symptoms include inappropriate action and feelings and withdrawal from reality into fantasy. Further the respondent used to pick up quarrels with him for silly reasons and used to abuse him. On the other hand, petitioner adjusted and continued to lead marital relationship with the respondent for the sake of peaceful life and for the sake of bright future of the daughter as well as family. He adjusted and co-operated at all times and lead matrimonial life both in Hyderabad and also in Bangalore. She did not study the mind of the petitioner till now, she has not been able to comprehend the mental and physical status of the petitioner even to this day. She is not discharging her matrimonial duties and responsibilities. After shifting to Bangalore from Hyderabad, the respondent''s treatment to the petitioner changed, she started quarreling with him for silly reasons and she did not allow him to visit his relatives house. During the year 2003 when the house was purchased in joint names, she did not go and join him in the said house, in spite of continued requests and pleadings for reunion for the reasons known to her only. During the stay time in her sister''s house, she used to pick up quarrel with the petitioner for no reason, but he was adjusting and leading matrimonial life with her. She kept on postponing to join the husband by pleading one or the other reason without any justification or reason. In such a way, she prolonged the issue/matter from October 2003 till 2011 and he waited and tolerated for all these years with a fond hope that good sense would prevail, but it has been in vain. After shifting to Bangalore the respondent totally failed and neglected to show any love and affection towards the petitioner in all respects. After discussions, she attempted to commit suicide but the respondent was staying along with her sister and came to visit the petitioner. The respondent has used strategy as a weapon several times against the petitioner to prevent him from taking further action in the marital life. After shifting to Bangalore, the respondent did not change her character and attitude, the respondent always used to twist and squeez the petitioner in all possible ways. She used to say that she wants freedom in her life and was saying that no body should question her. Even during her stay in the petitioner''s house, there was no mental peace for him due to her indifferent behavior. The petitioner has also suffered from ill health so much so, he had to call ambulance in the night and the driver of the ambulance has refused to take him to the hospital on the ground that some family members has to accompany him. Therefore, he contended that the respondent has stayed away from him from 2003 onwards by staying with her sisters and daughter. Thus she has deserted the petitioner continuously from 2003 onwards. He has been subjected to cruelty and desertion both mentally and physically by the conduct of the respondent. Therefore, he sought for divorce on both the grounds.

The respondent has filed the statement of objections. She admits the marriage was an arranged marriage. It is only after the marriage she came to know that there was difference of 20 years between her and the petitioner. At the time of marriage the petitioner was working in BHEL and he had 8 sisters and one brother. He used to tell her that he is existing only but for the sisters, that he was suffering as they were not married. After coming to Hyderabad, the petitioner''s sisters started to find fault with every domestic work done by her. The petitioner''s sisters visited all the neighbors and told them petitioner was not given dowry or other things. The petitioner would check the letters written to her parents what was written and only then it would be posted. She never had freedom even to talk to her parents, as always one of his sisters would always be behind her. She was treated as servant/slave in the house. The petitioner and his sisters would expect respondent to wash even their clothes. The petitioner would support his sisters, and ill treat the respondent and her parents. Thereafter she has narrated that on the same allegations she also filed petition under Section 10 r/w. Section 27 of the Hindu Marriage Act, 1955, for judicial separation and half share in the property referred to supra. In reply to that the petitioner reiterated what he has stated in the petition for divorce. The petitioner examined himself as P.W. 1 and got marked the documents Exs. P1 to P5. On behalf of the respondent R.W. 1 was examined and she also marked the documents Exs. R1 to R. 14.

The Family Court on appreciation of the oral and documentary evidence on record held that the case for desertion by the wife is the ill treatment meted out to her by the petitioner and his sisters and therefore, the petitioner is not entitled to a decree of divorce on the said ground. Insofar as the cruelty is concerned, absolutely no evidence was placed on record to substantiate the case of the petitioner which constitutes cruelty. It has recorded a categorical finding that cruelty is not proved. Therefore petition filed on the ground of cruelty and desertion was dismissed.

The Family Court accepted the case of the wife that she was ill treated by her husband and his sisters. It is impossible to live with her husband, in fact he is pressurizing her to execute a relinquishment deed giving up her right in the property. In those circumstances, accepting the respondent''s plea decree for judicial separation was passed. In view of the fact that the flat at Bangalore was purchased in the year 2003 in the joint names of both the petitioner and respondent, it is clear the respondent has half share in the property and she has opposed from alienating her half share in the schedule property. Aggrieved by the said order petitioner has preferred these two appeals.

One against the order declining to grant a decree for divorce and another against granting an order of judicial separation.

The learned counsel appearing for the appellant assailing the impugned order passed by the Court below contends the petitioner is now aged about 78 years. He was an Engineer in BHEL he took voluntary retirement, sold his property at Hyderabad and purchased a property in Bangalore. He has agreed to take care of his wife and daughter, but unfortunately the respondent and his daughter on the contrary, are living with her sisters. Even during the stay with the petitioner, she was threatening to commit suicide because he has been tormenting her. These aspects have not been property appreciated by the Court below and therefore, sought to set aside the impugned order. He further submitted the Court below was not right in granting a decree for judicial separation for a mere asking by the wife and half share in the property, as though the wife has not paid any portion of the sale consideration in purchasing the said flat. For the aforesaid reasons, he seeks setting aside of the impugned judgment and decree and petition for judicial separation be dismissed and petition for divorce be allowed.

We have gone through the entire order sheet and evidence made available by the learned counsel for the petitioner. The photographs produced in this case at Exs. R-2 to R-9 (a to c) shows how the family are residing. These photographs were taken when the petitioner visited Mysore with his wife and daughter. Thereafter at Mysore Palace, KRS, Lalbagh, Gaganachukki, Barachukki and also at Kanchipuram, which shows he was leading a happy married life with his wife and daughter till September 2009. The specific plea is that from 2003 the wife has deserted the husband, she is not taking care of him, she has no love and affection towards him. The husband in the cross-examination has admitted all these photographs were taken when they had gone to all these places along with his family members. When he went to Mysore they stayed in a hotel. All these clearly show the respondent has participated in not only visiting the historical places, even she has accompanied the petitioner wherever he wanted to go. The fact that the petitioner had 8 sisters and one brother is not in dispute. Out of 8 sisters, 5 sisters were married and 3 were living with him at Hyderabad. It is the specific case of the wife that the petitioner had more love and affection towards his sisters. She was treated like a servant in the house. It is an ill treatment. Probably the cause for mental imbalance as set out in the evidence of the petitioner also may be due to this fact. However after selling the property at Hyderabad the petitioner moved to Bangalore and purchased the flat in the joint name of the petitioner and his wife. The photographs taken in the year 2009-2010 shows that they stayed in the hotel. If it is to be accepted as per the evidence on record, the case of the petitioner that since 2003 onwards she has deserted him does not hold any water. The contention of the petitioner that she has conducted in such a manner and that he cannot live with her, cannot be accepted.

The Trial Court on proper appreciation of the oral and material documents on record has rightly held that the case of the petitioner is not proved in this case in view of the admissions of P.W. 1 himself in the witness box. Their allegations and counter allegations disclose that it is case of the petitioner-husband, the wife wanted her half share to be transferred to her name, for which he did not agree, that appears to be the root cause for the problem. It is also on record that the daughter is 32 years old, she is also mentally challenged, she is not married and now they are forced to take shelter with her sister, who is well placed in life. She also has three sisters, one of them is recently married and in fact all of them are living in the same locality. It is for this reason she has filed a petition for judicial separation for a period of one year. In these circumstances, if at this age the wife wants to live separately for a period of one year, the Family Court was justified in granting a decree of judicial separation and in dismissing the petition for divorce.

Section 27 of the Hindu Marriage Act, 1955, empowers the Court to make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. He admits in his evidence the property was purchased at the instance of his wife. Therefore, the sale deed stands in the name of the husband and wife jointly. The argument that the wife has not contributed any consideration for the purchase of the property and therefore she has no right, has no substance under Section 45 of the Transfer of Property Act provides that - Where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract, respectively entitled to interests in such property identical, as nearly as may be, with the interest to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property. The sale deed stands in the name of both of them. It is not mentioned that the consideration is paid only by the husband. It is on record that both the husband and wife lived together in the family house at Hyderabad and the said house was sold and may be out of the consideration received, a flat was purchased at Bangalore in the joint names of husband and wife. The Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong joint to both the husband and the wife, as declared under Section 27 of the Hindu Marriage Act. Therefore the order of the Court regarding property also cannot be found fault with.

In that view of the matter, we do not see any merit in these appeals. Accordingly both the appeals are dismissed.

Applications filed for condoning the delay consequently stands dismissed.