Wednesday, 13 July 2016

Whether divorce is permissible even if wife has not sought cancellation of marriage certificate?

Adverting to the contention that the instant petition was not maintainable, in the absence of seeking cancellation of marriage certificate, we are of the considered view that this argument is only noted to be rejected because the conditions for a Hindu marriage are governed by Section 5 of the Hindu Marriage Act, 1956 and the ceremonies which solemnizes a marriage is described in Section 7 of the Act. The registration of Hindu marriages under Section 8 of the Act is for the purpose of facilitating the proof of Hindu marriage. In paragraph 2 of statement of objections filed by the appellant, it is admitted by him that the marriage between the parties was solemnised on 10.12.2010 in Raghavendra Kalyan Mantap as per Hindu rights. This admission in the form of pleading is also extracted in paragraph No. 14 of the impugned judgment. Therefore, the contentions urged with regard to non-cancellation of marriage certificate deserves to be rejected.
IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)
M.F.A. No. 100591/2016 (MC)
Decided On: 18.03.2016
Appellants: Sudhir 
Vs.
Respondent: Jyoti
Hon'ble Judges/Coram:H.G. Ramesh and P.S. Dinesh Kumar, JJ.
Citation:AIR 2016 karnat 97


1. In this appeal, appellant-husband has challenged the judgment and order dated 27.11.2015, in M.C.58/2013, dissolving his marriage solemnised with respondent wife on 10.12.2010.
2. Heard Shri Anant Hegde, learned Counsel for the appellant and Shri Vijay M. Malali, learned Counsel for the respondent.
3. Briefly stated the facts of the case are, marriage of appellant and respondent was solemnised on 10.12.2010 as per Hindu rights and customs. They lived together for a short spell of one month in Goa, where the appellant resides. Thereafter, according to respondent, family discord started surfacing. In the meanwhile, the respondent took up a job with Canara Bank. She also registered a private complaint against the appellant in the Court of the learned JMFC, Sirsi. Efforts made to reconcile the differences was of no avail. From and after November 2012, both appellant and respondent lived separately. Respondent filed the instant petition seeking divorce and dissolution of marriage during September 2013 under Section 13(1) (ia) of the Hindu Marriage Act, 1955. Petition was resisted by filing statement of objections, denying petition averments, except solemnisation of marriage. After trial, on consideration of the material on record, the petition filed by the respondent is allowed by the impugned judgment and order. Hence, this appeal.
4. Supporting the appeal, the learned Counsel for the appellant submitted that:
"(i) the respondent has filed the instant petition with false and incorrect averments. The learned family Court has misread the pleading and evidence on record and wrongly held that the relationship between the parties is strained and irretrievable;
(ii) the respondent did not seek cancellation of certificate of marriage-Ex. R2. Without the said certificate being declared as void, the judgment and order passed by the Family Court is unsustainable in law;
(iii) respondent has collected Rs. 4,00,000/- forcibly from the appellant with the help of police, with an offer to withdraw private complaint lodged by her. Therefore, the impugned order without refund of the said sum of Rs. 4,00,000/- is not sustainable in law;
(iv) appellant has always been kind and loving towards the respondent and continues to be so as on date. He is desirous of continuing the marital relation."
With the above contentions, learned Counsel for the appellant prayed for allowing this appeal.
5. Per contra, learned Counsel for the respondent-wife submitted that the respondent has been a victim of cruelty in the hands of appellant-husband. He submitted that within a short span of one month of marriage, appellant and his family members started harassing the respondent for dowry. They took her to Sirsi and on way back, they dropped her in Hubli bus stand and announced that they were not interested in the marriage any further. She had no other option but to seek refuge in her parental home and also take up a job for her livelihood. The physical and mental ill treatment meted out to her by appellant and her family members wrecked her life. During her stay in the matrimonial home, she had discovered that the appellant was suffering with almost a near total blindness of 90% which would affect their children also. The parents of respondent suggested the appellant to take proper medical treatment and to undergo surgery. They offered to bear all expenses. However, the appellant and his parents instead of accepting the medical condition, insulted the respondent and her parents. In addition, their demand for dowry kept persisting compelling the respondent to lodge a private complaint before the learned Magistrate. During the course of investigation by the police pursuant to the said complaint, the appellant offered and agreed to file a joint petition for divorce and the same was filed in M.C. No. 81/2012. After filing the said petition, the appellant took an \J' turn and filed a petition before the Sessions Judge, Karwar, contending inter alia that the investigating officer had forcibly collected Rs. 4,00,000/- and sought a direction for refund of the same.
6. He further contended that the appellant had misrepresented at the time of marriage proposal that he was a Mechanical Engineer. When questioned during the cross-examination, he has stated that he did not remember to have given such false information. Adverting to the cross-examination, the learned Counsel submitted that it is recorded by the Family Court that the appellant admitted that he was not able to read even after wearing his spectacles. When the family Court questioned if the appellant was ready to undergo a medical test for the eye defect, it was replied by the appellant that he was ready to undergo such test upon a condition that the respondent should undergo a Virginity test'. It is further admitted by the appellant in the cross-examination that from and after 18.11.2012, he did not return from Goa. In sum and substance, he submitted that the appellant had misrepresented himself as an Engineer; he was suffering from serious defect in his eyes which is near to total blindness; appellant and his family members have meted out mental cruelty upon the respondent; and appellant has deserted the respondent at least from 18.11.2012 as per his own admission. With these submissions, he prayed for dismissal of this appeal.
7. We have given our careful consideration to the rival contentions urged on behalf of the parties and perused the records.
8. In paragraph 11 of the judgment, learned Family Court has extracted a portion of the cross-examination of the appellant verbatim. We have perused the said portion carefully. It contains the entire gist of the case. The family Court has recorded that the appellant was not able to read a document even after wearing spectacles. When he asked, whether he was ready to undergo a test for defect in the eyes, he has consented with a condition that the respondent should undergo a virginity test. Having perused the evidence of the appellant, we have no hesitation to repel the first contention of the appellant that the family Court has misread the evidence on record.
9. Adverting to the contention that the instant petition was not maintainable, in the absence of seeking cancellation of marriage certificate, we are of the considered view that this argument is only noted to be rejected because the conditions for a Hindu marriage are governed by Section 5 of the Hindu Marriage Act, 1956 and the ceremonies which solemnizes a marriage is described in Section 7 of the Act. The registration of Hindu marriages under Section 8 of the Act is for the purpose of facilitating the proof of Hindu marriage. In paragraph 2 of statement of objections filed by the appellant, it is admitted by him that the marriage between the parties was solemnised on 10.12.2010 in Raghavendra Kalyan Mantap as per Hindu rights. This admission in the form of pleading is also extracted in paragraph No. 14 of the impugned judgment. Therefore, the contentions urged with regard to non-cancellation of marriage certificate deserves to be rejected.
10. With regard to non-refund of a sum of Rs. 4,00,000/-, we notice that no evidence is brought on record by the appellant before the family Court except an oral assertion. Hence, this ground is too fragile to be countenanced.
11. Adverting to the last ground and assertion that the appellant has been kind and loving towards the respondent, we are of the considered view that the evidence on record and particularly the cross-examination extracted in the judgment of the family Court is contrary to the assertion of kindness. It is noted that the learned family Court Judge has recorded a finding to the effect that even after wearing spectacles, appellant was not able to identify a document. When asked about undergoing a medical test, he did not readily agree but posed several conditions. He demanded that the doctor who would examine must disclose the decease from which he was suffering, whether the decease had any treatment, whether a person with such decease should not marry and whether the decease could be hereditary in nature. In addition, he also posed another condition that the respondent should undergo a virginity test. When asked for the reason to pose the said condition, he has stated that there are no specific reasons but he desired that she should undergo the said test as of course.
12. The extracted portion of the cross-examination further indicates that the appellant had stated before the Family Court that he had furnished his bio-data to the respondent prior to the marriage. He has admitted in cross - examination that he had not mentioned about the vision defect in the bio-data. With regard to the allegation that the appellant had misrepresented that he was a Mechanical Engineer, he had stated that he did not remember whether he had given such wrong information in the bio-data.
13. Admittedly, the petition is filed under Section 13(1)(ia) of the Hindu Marriage Act. Under the said provision, if the allegation of cruelty is proved by the party claiming, he/she shall be entitled for dissolution of his/her marriage.
14. The facts that the petitioner was not able to identify the document even after wearing the spectacles and he was not prepared to undergo a medical test, strongly suggest that the appellant did have a defect in his vision. He has admitted in the cross-examination that he had not mentioned about vision defect in his bio-data. In order to avoid a medical test, he has posed several conditions including a virginity of respondent without any valid reason. Such conduct of the appellant is reprehensible. The demand put forth by the appellant for a virginity test of respondent while standing in the dock in an open court without having laid any foundation in the pleading nor having produced any prima-facie evidence, is highly recalcitrant. In our considered view, such imperious behaviour which touches upon the self-esteem of a lady cannot be ignored.
15. The appellant has also admitted that he has not returned from Goa after 18.11.2012 and deserted the respondent without any valid reason. Having carefully considered all the aspects of the case, we are of the view that the appellant has inflicted mental cruelty upon the respondent.
16. A Division Bench of this Court in the case of Huvakka v. Vishwanath reported in ILR 2009 KAR 4193, after considering several judgments of the Hon'ble Supreme Court has held as follows:
"16. If the spouses are living separately for considerable time, and there is no love lost between them, the marriage is dead, emotionally and practically there is no chance of it being retrieved, continuance of marital relationship for name sake itself constitutes cruelty of mind. In such circumstances, trying to find out who is the cause for such sorry state of affairs would be an exercise in futility. The only purpose which it may serve is to compensate the wronged spouse monetarily by way of damages for agony and suffering underwent for no fault of that spouse. That is the price one spouse has to pay to the other for wrong done. It will also be a consideration for the freedom, the spouse would enjoy after severance of the matrimonial bondage."
17. In the case of Huvakka supra, the petitioner-wife was not seeking any compensation from the husband. In the instant case also, the respondent-wife who was present at the time of hearing stated that she is not interested in any monetary benefit and would be content with just an order of divorce and beseeched the Court to grant her the relief, by dismissing this appeal.
18. Following the judgment in Huvakka, another Division Bench of this Court in the case of Smt. G. Premalatha @ N. Premalatha v. Sri. R. Nagesh reported in MANU/KA/2276/2015 : ILR 2015 KAR 4863 has held as follows:
"13...................................................................... As held by the Division bench of this Court, living separately and continuance of marital relationship for name sake by it self is cruelty of mind (See Huvakka v. Vishwanath ILR 2009 KAR 4193). Time has changed. So also the perception of society vis-à-vis the institution of marriage. We are living in 21st century in an era of global village concept. Rights of individuals and their personal space in life is being sought in no uncertain terms by citizen across the globe. Rights of individuals enshrined under the Constitution of India have been expanded much folds. To live with dignity is sine qua non of Article 21. Here is a lady knocking at the doors of the family Court and this Court from the year 2012 seeking relief from the fetters of institutional bond of marriage.
14. In our considered view, every human being is entitled to have his/her own space in the life and to live in the manner felt appropriate subject of-course without a fragrant transgression of well established customs and prevalent law. In this backdrop, the judgment and decree of the family Court refusing to dissolve the marriage is too harsh and based on findings recorded which are not sustainable in law. With the change in times, Courts cannot be oblivious to the circumstances existing in the Society and metamorphosis in the behavioural pattern of the society."
19. Resultantly, we are of the considered view that the appeal filed by the husband is devoid of merit. A man with 90% vision defect has misrepresented himself as a Mechanical Engineer. He has put forth an unreasonable demand for a virginity test and caused immense trauma in the life of respondent. She has undergone untold misery ever since the date of marriage.
20. Though the evidence, particularly his own admission in the cross-examination is heavily loaded against him, yet, the appellant has emboldened himself to present this appeal. Therefore, this appeal deserves to be allowed with costs throughout.
21. In the result, the appeal fails and stands dismissed with the costs of Rs. 10,000/-.

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