Sri. Anil kumar D vs Smt. Asha

This appeal is filed challenging the Judgment dated 18.4.2011 passed in M.C. No. 1078/2007 by the V Additional Judge, Principal Family Court. Bangalore, in which the petition filed by the petitioner/husband u/s 13(1) (1a) of the Hindu Marriage Act seeking the decree of divorce on the ground of alleged cruelty and to get the dissolution of the marriage of petitioner/husband against, the respondent/wife, is dismissed. The parties are referred in their ranking before the trial Court.The facts leading to this appeal as disclosed from the petition before the Family Court, are as follows:-

The case of the petitioner is that the marriage of the petitioner and respondent was solemnized on 5.2.2003 at Agarwal Bhavan Kalyana Mantap, Mattikere, Bangalore. Both of them started residing in the house of the petitioner along with parents and two younger brothers of the petitioner and a son was born to the couple on 18.5.2004. During their joint residence, the respondent started demanding the separate residence, which was refused by the petitioner. It is further stated that on 5.11.2005 the respondent left the house of the petitioner after using filthy words against the petitioner and his family members. The respondent thereafter filed a case in Cr. No. 708/2005 against all the members of the family of the petitioner in MICO Lay Out Police Station on 18.11.2005 for the offences punishable u/s 498A, 506 IPC read with Sections 3 & 4 of the D.P. Act. It is also alleged that the respondent has filed a complaint under the Domestic Violence Act and also another case before the police.

It is the case of the petitioner that the respondent has treated him with cruelty and therefore he is entitled for an order of Decree for Divorce.

The respondent contested the said petition by denying the allegations made against her and also stating that it is the petitioner, who was harassing her both physically and mentally and he had taken dowry from the family of the respondent. Not being satisfied with the said Dowry, he has further taken a sum of 75.000/- on 22.4.2004 from her father. Even after the birth of the child mother-in-law also started harassing and interfering in her marital life by instigating the petitioner. It is also alleged by her that the petitioner started moving with two other ladies by name Sowbhagya & Surekha and the petitioner had given lot of money to the said Soubhagya, who had invested the money into a Company, which is gone in liquidation and therefore he has lost the entire amount.

The trial Court on the basis of the said contentions of either sides, framed the following two points for consideration:-

Whether the petitioner proves that the respondent treated him with cruelty after solemnization of the marriage during joint residence in his house?

Whether the petitioner is entitled for the decree of divorce as claimed?

The petitioner got examined himself as PW. 1 and got marked the documents as per Exs. P1 to P8. The respondent got herself examined as RW. 1 and no documents are marked.

The trial Court after hearing the parties refused to give the relief as sought for by the petitioner. Hence, the petitioner is before this Court.

Heard Sri K.K. Vasanth learned Counsel for the appellant and Sri T.A. Chandrashekar, learned Counsel for the Respondent.

It is submitted by both the counsel of the parties that the criminal case under the Domestic Violence Act is still pending before the Court for trial and that the respondent/wife has filed an application u/s 9 of the Hindu Marriage Act seeking Restitution of Conjugal Rights In M.C. No. 2391/2010, which is also pending disposal. Hence the counsel have submitted that this case may be remanded to the Court in which the ease seeking an order for restitution of conjugal rights is pending.

On a careful perusal of the materials available on the file, it is observed that, the trial Court has given only one ground for dismissing the petition filed by the petitioner that is the position in that the allegations made in the FIR would not be. sufficient to hold that the wife is cruel to her husband and therefore on the said ground husband is not entitled for a Decree of Divorce. It is observed by us that the parties is a young couple with a small son. In view of the fact that the case for restitution of conjugal rights is pending before the Court below, both the cases could be clubbed together and proceeded against. It is also to be noted that the respondent being personally present, expresses her desire to join the husband and to lead a matrimonial life after forgetting all the past of their life.

Keeping these facts into consideration, we are of the considered opinion that a further possibility may be explored by the trial Court by amicably resolving the dispute by referring the matter 10 the Mediation Centre. Hence we deem it proper to remand the matter without expressing any opinion on the merits or otherwise of the case.

For the foregoing reasons and the discussions made above, the appeal is allowed in part; the impugned Judgment dated 18.4.2011 in M.C. No. 1078/2007 on the file of V Additional Judge, Principal Family Court, Bangalore, is hereby set aside. The matter stands remitted back to the Court below with a direction to club M.C. No. 1078/2007 with M.C. No. 2391 /2010 and to decide the matter afresh in accordance with law after hearing both the parties and after affording opportunity to the parties to produce any oral or documentary evidence.The appellant and respondent are directed to be present before the Court below, personally, on 30.5.2012 at 11 a.m. to take necessary further dates to proceed with the matter in accordance with law.