Back
2004 Supreme(Kar) 282
Karnataka High Court
D.Parthasarathy - Appellant
Versus
Vinaya prabha - Respondent
Decided On : 04-15-04
The appellant did not take advantage of his own 'wrong' and was entitled to a decree for divorce. The court found that the marriage had irretrievably broken down and the parties could no longer live together as husband and wife.
Headnote:
Section 13 - Hindu Marriage Act - 1955 - [DIVORCE] - [Restitution of Conjugal Rights, Cruelty] - [Section 13(1-A), Section 13(1)(ia)] - The court discussed the compliance of the decree for restitution of conjugal rights, the lack of cohabitation, and the allegations of cruelty and dowry harassment. The court found that the appellant did not take advantage of his own 'wrong' and was entitled to a decree for divorce.
Fact of the Case:
The appellant sought a divorce on the grounds of non-compliance of the decree for restitution of conjugal rights, lack of cohabitation, and allegations of cruelty and dowry harassment. The Family Court dismissed the petition, leading to this appeal.
Finding of the Court:
The court found that the appellant did not take advantage of his own 'wrong' and was entitled to a decree for divorce. It held that the marriage had irretrievably broken down and the parties could no longer live together as husband and wife.
Issues: Compliance of the decree for restitution of conjugal rights, lack of cohabitation, allegations of cruelty and dowry harassment, entitlement to a decree for divorce.
Ratio Decidendi: The court held that the appellant did not take advantage of his own 'wrong' and was entitled to a decree for divorce. It found that the marriage had irretrievably broken down and the parties could no longer live together as husband and wife.
Final Decision: The appeal was allowed, the impugned judgment and decree were set aside, and the petition for divorce was allowed, declaring the marriage between the parties dissolved by a decree for divorce.
( 1 ) THE petitioner- husband, being aggrieved by the dismissal of his petition under Section 13 (1-A) (ii) and under Section 13 (l) (ia) of the hindu Marriage Act, 1955 (for short the 'act') by the Judgment and Decree dt. 9-10-2003 passed in M. C. No. 206/2001 on the file of the I Addl. Principal Judge, Family Court, bangalore (for short the 'family Court"), has preferred this appeal under Section 19 (1) of the Act.
( 2 ) THE relevant facts necessary for decision making, may be stated thus : The appellant is the husband of the respondent whose marriage was solemnized on 8-3-1992 at Bangalore in accordance with the Hindu rites and customs. There are no issues from out of the said wedlock. While the appellant sought for a decree of divorce by filing a petition under Section 13 (1) (ia) of the Act in m. C. No. 318/93, the wife filed M. C. No. 586/96 under Section 9 of the Act for restitution of conjugal rights. The Family Court clubbed the cases, held a common trial and by a common Judgment dt. 27-4-1999 dismissed the petition of the appellant for divorce and allowed the petition of the respondent directing restitution of conjugal rights. The appellant preferred two separate appeals in M. F. A. No. 3624 /99 and M. F. A. No. 3625/99 which came to be dismissed by a common Order dated 6-4-2000 of a co-ordinate Division Bench of this Court. During the pendency of M. C. 318/93 and before the filing of the petition for restitution of conjugal rights by the respondent, she lodged a complaint dt. 28-2-1994 of dowry harassment by the appellant which ended in an acquittal by a Judgment dt. 19-11-1999 of the Criminal Court.
( 3 ) THE appellant alleges that ever since the marriage in the year 1992, the parties were at loggerheads and the marriage was an unhappy alliance, the parties having approached the jurisdictional police for redressal of grievances. By the time, the appellant instituted divorce proceedings, the differences had reached a crescendo beyond reconciliation and the parties had parted company.
( 4 ) THE further allegation of the appellant is that even after the decree for restitution of conjugal rights, the conduct, attitude and mental make up of the respondent was such that reconciliation and cohabitation was made impossible. The appellant, owner of the premises bearing Sy. No. 10/13 of sunkadakatte, Bangalore-91, had given on lease the said premises to M/s Doddanna vidya Samsthe, in the year 1997 for a period of five years for running an Educational institution. Immediately, after the order dt. 27-4-1999 for restitution of conjugal rights passed by the Family Court in M. C. No. 586/96, the respondent along with her relatives and other persons, it is alleged, armed with the decree, barged into the said premises belonging to the appellant, threatened the employees of the Educational institution and having taken law into their own hands, took possession of the premises. The complaint before the Jurisdictional police by the said Institution did not result in any action compelling the Management to institute O. S. No. 6005/99 before the Civil judge, Bangalore.
( 5 ) THE respondent, it is alleged, having thus forcefully put herself in possession of the premises belonging to the appellant, started making telephone calls to the appellant with threats to his life. The appellant filed a police complaint on 16-3-2000 in this regard. It is further alleged that the respondent, her mother and some other persons, on 14-4-2000, 17-4-2000 and 18-4-2000, came to the house where the appellant's elder brother Narayanappa, by name, was residing along with his family, and using abusive language, shouted and screamed and threatened the appellant with dire consequences, if he did not resume marital obligations. This conduct of the respondent, according to the appellant, lowered his reputation and that of his family in the neighbourhood. On 19-4-2000, when the appellant's brother went to the police station to lodge a complaint,
