Sandya vs H.R. Yogesh

Mohan M. Shantana Goudar, J.—The judgment and order dated 21.9.2011 passed by the Principal Judge, Family Court, Bangalore, in M.C. No. 3487/2010 is called in question in this appeal.

The appellant is working as a Senior Officer in the State Bank of India. She married the respondent on 30.4.1995 as per the Hindu customs at Chikkamagalur. Out of the wedlock, two children were born, i.e. a daughter and a son. The daughter was born on 24.4.1996 and the son was born on 6.2.1999. It is relevant to note that the respondent is working as an Officer in the Life Insurance Corporation of India.

Subsequently, the matrimonial disputes arose between the parties. The appellant as well as the respondent jointly filed M.C. No. 2551/2009 under Section 13B of the Hindu Marriage Act, 1955 (''the Act'' for short) seeking dissolution of marriage by consent of both the parties. Copy of the petition filed under Section 13B of the Act, was produced and marked before the Court below as per Ex. P4. In the said matter, the Memorandum of Agreement was filed before the Family Court, Bangalore, on 7.5.2010 as per Ex. P5. Both the parties agreed to certain terms by mutual consent. However, when M.C. No. 2551/2009 was posted for final hearing, the respondent did not appear before the Court below and consequently the petition came to be dismissed for non-prosecution.

Subsequent to that, M.C. No. 3487/2010 was filed by the appellant herein under Sections 13(1)(ia) and 13(1)(ib) of the Act seeking dissolution of marriage solemnized between the parties on 30.4.1995. The impugned judgment and order is passed in the said petition. It is relevant to note that though the respondent was served and represented by the Advocate, he did not contest M.C. No. 3487/2010 before the Court below by filing the statement of objections. Neither the respondent nor his Advocate appeared before the Court below. The respondent did not even choose to cross-examine the appellant herein, who was examined as PW. 1 before the Court below. However, the Court below dismissed M.C. No. 3487/2010 on the ground that the appellant herein has not made out sufficient ground.

The records reveal that from the year 2000, matrimonial discord between the parties started. According to the appellant, the respondent was having the habit of consuming alcohol and he used to suspect the fidelity of the appellant. The differences continued between the parties. It is also alleged by the appellant that she was harassed both physically and mentally by the respondent even in front of the children.

After the differences arose between the parties, the appellant started living separately along with two children. As of now, the daughter of the parties has attained majority and the son is aged about 16 years. They are being looked after by the appellant herein. Number of allegations are made by the appellant against the respondent. Both the material found in the Memorandum of Petition as well as the evidence of the appellant before the Court below have remained un-controverted. The sum and substance of the case of the appellant is that the marriage between the parties is broken irretrievably and there are no chances of re-union among the parties. The evidence of the appellant would reveal that the respondent did not improve his conduct despite repeated requests and advice of the elders. He used to harass the appellant in a severe manner and made her to suffer mentally and physically. Though the car is used by the respondent, the entire loan of the car was cleared by the appellant. The respondent is not showing any affection towards the children and he has failed to maintain them. On the other hand, the appellant has been maintaining children affectionately looking after their daily needs and their education. The respondent has cultivated several bad habits like playing cards, consuming alcohol regularly without heeding to the words of the family members.

The evidence on record further makes it clear that the parties are residing separately since more than 8-10 years and there is no possibility of reunion. The efforts of the Court to reunite the parties have failed. Though the dispute was mediated by the Mediation Centre on several occasions, all efforts have failed. Though the respondent agreed for the dissolution of marriage and signed the petition for divorce, he did not appear before the Court below subsequently. This Court also referred the matter to the Mediation Centre once again. However, the efforts for Mediation have failed. It is agreed in Exs. P4 and P5 by the respondent that due to irreconcilable and incompatibility of temperament, parties are living separately since 2008. All the efforts made by the elders, well-wishers to reunite the parties were of no avail. There is absolutely no chance of re-union of the parties. The respondent also admits the aforementioned factors in M.C. No. 2551/2009. He has signed the Memorandum of consent divorce petition as well as the agreement entered into between the parties on the earlier occasion. Exs. P4 and P5 mentioned supra are not disputed by the respondent.

In view of the aforementioned totality of the facts and circumstances of the case, we are satisfied that there is irretrievable break down of marriage and there is no possibility of the parties to re-unite. Since the daughter of the parties has attained majority, it is open for her to join the company of the appellant or the respondent. The son of the parties is aged about 16 years. It is submitted on behalf of the appellant herein that she would look after both children affectionately. However, it is also submitted by the learned Advocate for the respondent that the respondent has got love and affection towards his children and he would also help for their future career in case if they live with him and approach him.

Learned Advocate for the appellant submits that it is agreed between the parties that the appellant would hand over all the documents/title deeds pertaining to two site properties situated one at Yelahanka and another at Hassan. Further two LIC bonds and a Fixed Deposit receipt standing in the name of the respondent which is in the possession of the appellant also will be handed over to the respondent. The same was the agreement between the parties in M.C. No. 2551/2009 before the Family Court. It is submitted on behalf of both the parties that whatever is stated in the agreement entered into between the parties, binds them.

However, it is argued by the learned Advocate for the respondent that the respondent is ready to pay certain amount to his minor son till he attains majority, but the appellant is not permitting him to pay the maintenance to the children as well as to visit the children. It is needless to observe that both the parties being the parents of the children are entitled to visit and love the children. So also the children are entitled for the love and affection of their parents.

With these observations, the appeal needs to be allowed inasmuch as due to irreconcilable and incompatibility of temperament, the parties cannot remain united and they have been living separately since the year 2008. Since there is an irretrievable break down of marriage, the appeal is to be allowed. We also find that the ingredients of Sections 13(1)(ia) and 13(1)(ib) of the Act are proved by her. Accordingly, the following order is made:

(i) The appeal is allowed.

(ii) The impugned judgment and order dated 21.9.2011 passed in M.C. No. 3487/2010 by the Principal Judge, Family Court, Bangalore, stands set-aside.

(iii) M.C. No. 3487/2010 is allowed with the aforementioned observations.

(iv) It is needless to observe that the parties are bound to look after the well being of the children. The marriage and other future expenses for maintaining the children are to be looked after by both the appellant and the respondent.