SMT. DR. SHEETAL v. SRI HARSHA

Judgment

CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR Digitally signed by ANJALI M Location: High Court Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1390-DB MFA No. 102229 of 2022 ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD) The appellant, who is married to the respondent on

07.05.2019, is aggrieved by the judgment and decree dated

05.04.2022 in MC No.30/2021 on the file of the Principal Judge, family Court, Hubballi [for short, ‘the Family Court’]. The appellant is unsuccessful in her petition for dissolution of marriage under Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 [‘the H. M Act’].

2. The appellant is a BAMS graduate, and the respondent is an Engineering graduate. The appellant was serving as a Doctor at a private Hospital at Bengaluru as on the date of the marriage. The respondent was also working in Bengaluru as an Engineer. The respondent and the appellant have lived together for two months after marriage, and they have been separated ever since. The appellant and the respondent have no children.

3. The appellant contends that she had to suffer cruelty even within the two months of being together with - 3 - NC: 2025:KHC-D:1390-DB MFA No. 102229 of 2022 the respondent because he would resort to violence and aggression threatening to hurt her and himself; that though he had a fungal infection in the genital area, he did not take treatment even when she requested him; that she had to suffer because of his indifference. The appellant also contends that she was constrained to move out of the matrimonial home on 18.07.2019 shifting to her parental house at Hubballi.

4. The appellant has also averred about what has happened thereafter. She has stated that a meeting of the elders was convened to sort out the difference. In this meeting, the respondent and his family members insisted upon her to handover all her salary to the respondent, wear a particular attire as insisted by the respondent. She was told that she should work harder in the Hospital so that she overtime. She these demands unreasonable and therefore felt constrained to shift to Hubballi with all her belongings in August-2019. - 4 - NC: 2025:KHC-D:1390-DB MFA No. 102229 of 2022

5. The respondent has filed his written statement denying all these allegations contending that they have lived together only for two months. The respondent has also asserted that the appellant, who is presently working with HCS Cancer Hospital, Hubballi, must pay compensation and must give him maintenance as he is depending on his parents. The appellant and the respondent have exchanged the legal notices with allegations and assertions in these lines before appellant has applied for the dissolution of her marriage.

6. The appellant has examined herself as PW.1. The respondent has examined himself as RW.1. The appellant has marked Ex.P.1 to 9, which are the Marriage Card, a few Marriage Photographs, notices acknowledgements and medical records. The respondent has marked printouts of e-mails exchanged with the respondent. The Family Court has framed points such as whether the appellant proves cruelty and desertion and whether she is entitled for dissolution of marriage, and it has concluded - 5 - NC: 2025:KHC-D:1390-DB MFA No. 102229 of 2022 that the appellant has not established either. The Family Court is persuaded to opine as aforesaid in the premise that ordinary wear and tear of a family life must be distinguished from cruelty, a culpable conduct for matrimonial offence resulting in dissolution of marriage. The Family Court has opined that the fungal infection or varicose vein disease requires treatment over a long period, but the appellant has only lived with the respondent for a short time and that the appellant has moved to Hubballi on her own with the respondent booking tickets for her. The Family Court has also referred to the exchange of WhatsApp messages when the appellant along with her family members, visited the respondent to take her belongings in August-2019.

7. Sri. N. P. Vivek Mehta and Anand R. Kolli, the respective learned counsels for the appellant and the respondent, are heard and the records [including Family Court records] are perused. The points for consideration are: - 6 - NC: 2025:KHC-D:1390-DB MFA No. 102229 of 2022 [i] Whether this Court must interfere with the Family Court’s finding on the appellant’s failure to prove cruelty and desertion, and [ii] Whether there must be any order on permanent alimony, if this Court must opine that the appellant has established either cruelty or desertion justifying dissolution of marriage.

8. This Court must observe that it is trite that ordinary wear and tear of life cannot be cruelty, a matrimonial offence, and that the facts and circumstances of each case must be reasonably examined to infer cruelty. Sri. Anand R. Kolli, the learned counsel for the respondent acknowledges that the respondent cannot deny that there is a complete breakdown of matrimonial life between the appellant and the respondent and that both of them are staying separately and pursuing their respective careers over the last 4-5 years. However, the learned counsel submits - 7 - NC: 2025:KHC-D:1390-DB MFA No. 102229 of 2022 that the allegations of cruelty and desertion by the respondent are not justified.

9. The appellant essentially relies upon what has transpired within a few months of marriage to predicate her case of cruelty and desertion by the respondent. This Court must opine that the ground of desertion as a higher threshold requiring the person who alleges desertion to show animus deserendi apart from the factum of separate living and consenting to live separately. This Court must observe that with the material on record establishing that the respondent booked a ticket for the appellant to travel to Hubballi and that he made entreaties with her not to move out of the matrimonial home when she went there to collect her belongings, and even the subsequent conduct to encourage a resumption of matrimonial life, the allegation of desertion is completely undermined.

10. The only point for consideration, therefore is, whether this Court could opine that the appellant has - 8 - NC: 2025:KHC-D:1390-DB MFA No. 102229 of 2022 established cruelty. The allegation that the respondent suffered a certain physical condition and that he refused to take treatment by themselves may not be sufficient because they lived together only for two months. However, to decide whether the appellant has established a case for dissolution of marriage on the ground of cruelty, this Court must examine the probative value and the adequacy of the appellant’s case that in a meeting convened by the elders, there was an insistence on the appellant to handover salary entirely to the respondent, to work harder notwithstanding her circumstances to earn more and to attire particularly.

11. If the appellant has asserted these in her pleadings, and even in her affidavit, the respondent, who has examined himself, has not tried to bring forth any circumstance that would show that these assertions are false. In fact, the respondent’s pleadings are rather bald, and there is no specific denial. It is only in these peculiarities and to ensure that there is a conclusion with both the appellant and the respondent acknowledging that - 9 - NC: 2025:KHC-D:1390-DB MFA No. 102229 of 2022 there is no compatibility between them, this Court must opine that the appellant’s allegation of cruelty with the respondent’s insistence as aforesaid is proved. The first question is answered accordingly.

12. It remains beyond dispute that both appellant and the respondent, who are qualified and have been working, are financially independent. They do not have any children. This Court, in deciding on the appellant’s for permanent alimony, must consider circumstances and the undisputable fact that the appellant and her family members would have incurred certain expenses towards the marriage and such expenses will be much more than the expenses incurred by the respondent and his family members. Sri.N.P.Vivek Mehta and Sri.Anand R. Kohli are also heard. In the circumstances and the fact that the marriage is performed at Yadagir, this Court opines that a sum of ₹4,00,000/- would be just and reasonable amount that should be paid by the respondent to the appellant as permanent alimony. Hence, the following: - 10 - NC: 2025:KHC-D:1390-DB MFA No. 102229 of 2022 ORDER [A] The appeal is allowed in part setting aside the Family Court’s judgment and decree

05.04.2022 in MC No.30/2021 and allowing the appellant’s application by dissolving the marriage with the respondent on 07.05.2019 under Section 13(1)(ia) of the H.M.Act, awarding permanent alimony of ₹4,00,000/- to the appellant. [b] The respondent is directed to pay ₹4,00,000/- within six [6] weeks from today. [C] This Court must observe that if there is any delay in depositing this amount with the Family Court for due disbursement to the respondent, or in making over the amount directly to the appellant within the aforesaid period, the respondent will - 11 - NC: 2025:KHC-D:1390-DB MFA No. 102229 of 2022 be liable to pay interest at 9% per annum for the delayed period. There shall be no costs. The office is directed to draw decree accordingly. SD/- (B.M.SHYAM PRASAD) JUDGE SD/- (RAMACHANDRA D. HUDDAR) JUDGE PJ/CT-VG List No.: 1 Sl No.: 31