Shivanand Nagendra Betgeri vs Sharda

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned counsel for the respondent.

The appellant was the petitioner before the Family Court seeking a decree of divorce against the respondent under Section 13(1)(i-a)(i-b) of Hindu Marriage Act, 1955. The appellant and the respondent were said to have been married as per the Hindu Rites and Customs on 27.05.1994 at Belgaum. The appellant and the respondent are said to have resided together till August 2007. They have three children by the marriage, Venkatesh born in the year 1995, Shridevi born in the year 1997 and Raghavendra born in the year 1998. It was alleged by the appellant that from inception, the respondent did not get along with him and was frequently quarrelling with the appellant even over trivial issues and was also suspecting his fidelity.

She was frequently visiting her parents'' house and staying away for long periods. On one such occasion, namely, on 1.8.2007, she had come back from her parents'' house after a month''s interval and thereafter, fifteen days later, she again wanted to go to her parents'' house for a week. But the appellant was shocked and surprised that she had filed a criminal case against him for offences punishable under Sections 307 and 498-A of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC'', for brevity). The said case had run its course. Though he was acquitted ultimately, he had been imprisoned for over one year and six months. This was one instance of the extent to which the discord between the appellant and the respondent had grown.

It was the appellant''s case that the respondent was no longer interested in leading a harmonious married life and that he was even apprehensive of his safety, given the violent attitude of the respondent. Though there were many attempts at reconciliation and meetings held with the assistance of well-wishers and elders, the respondent had maintained an adamant attitude. She was not also showing any affection or concern, for his aged parents. That for over two years prior to the filing of the petition, there was no cohabitation between them and there was no love lost between the appellant and the respondent. It is in that background that the petition for divorce was filed.

The respondent had entered appearance and contested the petition. While admitting the factum of relationship and of the marriage, the other allegations of neglect and adamant approach and cruelty, etc., were denied. On the other hand, she complained that she was constantly ill-treated and physically assaulted and there were even attempts to murder by seeking to smother her with a pillow - on one occasion. She also stated that she had no source of living and with three minor children to take care of, it would result in grave injustice if a decree of divorce is granted when the appellant was merely seeking to shirk his responsibility of taking care of her and the children. He was actually interested in some other woman and was intending to remarry. He was trying to get rid of her.

Evidence was tendered by both the parties and on hearing the parties, the court below had framed the following points for consideration:

"1. Whether the petitioner proves that the respondent has treated him with cruelty?

Whether the petitioner proves that the respondent has deserted him for a continuous period of not less than 2 years preceding the presentation of the petition?

Whether the petitioner is entitled to dissolve his marriage with respondent by a decree of divorce?

What order?"

The Court below had answered the points in the negative and dismissed the petition. It is that which is under challenge in the present appeal.

Incidentally, apart from referring to the evidence tendered by the appellant and the respondent, the court below has taken note of the evidence of Venkatesh, the son of the appellant and the respondent and he has narrated that his father was constantly insisting on his mother giving consent for a second marriage and when she had refused, he had tried to kill the respondent on three occasions.

Apart from the circumstance that a criminal case was filed against the appellant, the court has expressed that there are no other serious allegations of harassment or ill-treatment. On the other hand, though the Trial Court had acquitted the appellant giving him the benefit of doubt, an appeal was pending before this Court which was filed by the State and hence, the court has opined that cruelty could not be accepted as a ground in a petition seeking divorce, merely on account of general allegations and except the circumstance that there was a criminal case initiated on account of violent attack by the husband on the wife, there is no other instance of cruelty which would enable the appellant to seek divorce.

We do not find any reason to disagree with the court below except as regards the criminal case pending against the husband which was initiated at the instance of the wife. If it continues to hang fire, there is room for continued discord and possibly, hatred which would not enable the couple to live in harmony.

Incidentally, the appellant, the respondent and the children were called upon to appear in court and the children two of whom are now majors and the third almost a major, have stated that the appellant is indeed taking care of them and he is even residing along with them. But with much dislike for their mother and that he is interested in someone else.

However, the appellant insisted that he was not residing along with them and there has been no cohabitation between him and the respondent for over nine years and he is no longer interested in continuing to live with her.

Therefore, if there is some controversy as to whether or not he is living in harmony with the respondent any longer, there is all possibility that he may have a change of heart if the respondent should take the positive step of assisting the appellant in seeking quashing of the pending criminal proceedings, by recourse to Section 482 of the Code of Criminal Procedure, 1973.

As the Apex Court in the case of Gian Singh Vs. State of Punjab and Another, has laid down that in the interest of saving a marriage, if the parties have amicably settled their affairs, the criminal proceedings initiated should not hinder their coming together and such proceedings may be quashed in appropriate cases. It would be appropriate therefore, if the respondent in the present case on hand, should assist the appellant in ensuring that the criminal proceedings, if the same is still pending, should be set at naught.

With that observation, we hold that the appellant has however not made out any case insofar as the correctness of the judgment of the Trial Court is concerned. Accordingly, the appeal stands dismissed.