Sangeeta Bharat vs M.G. Ashwath

A.V. Chandrashekara, J.—The present appeal is filed against the order dated 25.02.2014 passed in M.C. No. 22/2013 which was pending on the file of the Court of V Addl. Prl. Judge, Family Court, Bangalore.

Appellant herein was the petitioner in the said case and respondent was the respondent in the said case. Their marriage was solemnized on 17.05.2001 according to Hindu customs at Bangalore and after the marriage, the petitioner gave birth to two children i.e., a female child on 11.06.2002 and a male child on 28.01.2006. The case of the petitioner before the Trial Court is that the respondent did not take care of her and her children and did not make any provisions for maintenance of the family. Respondent is stated to have utterly neglected them to maintain and thereby caused cruelty. As a result of the same, petitioner had to take up appointment to look after herself and her children. Even after the birth of the two children he neglected to maintain them. Respondent is stated to be arrogant in his behavior and abused her both mentally and physically. All her efforts to change him failed and as a result of the same, she was forced to file a petition for divorce.

After service of notice, respondent appeared before the Family Court and the matter was referred to Mediation Centre and the mediation was not successful. Later on, the respondent did not file any objections. Appellant is examined as PW 1 and has got marked 11 exhibits.

After going through the records and hearing the arguments the learned Judge has come to the conclusion that the petitioner has failed to prove the allegation of cruelty meted out to her and that the abusive words stated to have been used against her are not mentioned and the instances of cruelty are not established with reference to the nature of the injuries sustained by her and the complaint made in this regard. Ultimately, petition came to be dismissed vide considered order dated 25.02.2014. It is this order which is called in question on various grounds as set out in the appeal memo.

We have perused the impugned judgment and heard the learned counsel appearing for the parties.

The word ''cruelty'' is not defined in Section 13 of the Hindu Marriage Act, 1955. ''Cruelty'' includes mental cruelty. The case of the petitioner is that the respondent ought to have been a responsible husband and he should have looked after her and her children. It is her specific case that he has neglected to maintain them as a result of which, she has been put to lot of mental cruelty in order to maintain herself and her children. In fact, she had got issued a legal notice and that is forthcoming vide Exs. P7 and P8 is the postal cover which returned unserved. Exs. P9 and P10 are the postal receipts and acknowledgement. Ex. P12 is the rental agreement depicting the agreement entered into by her with the owner in respect of the house in which she is living along with her children and the respondent.

As a dutiful husband, it is his responsibility to look after the wife and children and non-maintaining them continuously would be as good as inflicting mental cruelty. This aspect of the matter has not been properly considered by the Trial Court. Even otherwise, the respondent has not filed any objections though he was represented by an Advocate.

Taking into consideration the grounds urged in the appeal memo and the non-maintaining her and her children continuously, this is a fit case in which the matter has to be remanded to the Trial Court so that the parties can lead evidence substantially and thereby help the Court in arriving at a proper conclusion. Apart from this, the petitioner''s case is that the respondent is not properly employed and had made false representation that he was employed at the time of his marriage with the petitioner. This aspect of the matter has also been not considered in right perspective by the Trial Court.

Viewed from any angle, this is a fit case in which the impugned order is liable to be set aside so that the parties can adduce substantial evidence in respect of their respective stand and thereby the Court can comprehensively decide the matter.

ORDER

Appeal filed u/s 19 of Family Courts Act, is allowed and consequently, the order dated 25.02.2014 passed in M.C. No. 22/2013 is set aside. The matter is remitted to the Trial Court to enable the respondent to file objections and thereafter the parties to lead evidence in support of their respective stand.

Parties shall appear before the Trial Court on 28th October 2014 without fail and thereafter the learned Judge shall make efforts to dispose of the matter as early as possible.

Parties and advocates to co-operate with the learned Judge.

Send a copy of this order to the Trial Court.