Ajayakumar P.K. v. Delfimol V.K.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 30TH DAY OF MARCH 2016/10TH CHAITHRA, 1938 Mat.Appeal.No. 686 of 2014 () ------------------------------ AGAINST THE JUDGMENT IN OP 1153/2006 of FAMILY COURT,ERNAKULAM DATED 26-05-2014 APPELLANT/PETITIONER:-: ------------------------------------ AJAYAKUMAR P.K., AGED 42 YEARS, S/O.P.A.KOMAN, PERIPARAMBIL HOUSE, KATTUNGACHIRA, IRINJALAKKUDA P.O., NOW RESIDING AT PERIPARAMBIL, NANDIKKARA DESOM, PARAPPUKKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA RESPONDENT/RESPONDENT:-: ----------------------------------------- DELFIMOL V.K., AGED 38 YEARS, D/O.KUTTY, VALIYATHARA, MULAVUKADU P.O., ERNAKULAM DISTRICT, PIN - 682 504. BY ADVS. SRI.N.NAGARESH SRI.SHAJI THOMAS SRI.BINU PAUL SRI.T.V.VINU THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2016, ALONG WITH MA. 687/2014, THE COURT ON 30.03.2016 DELIVERED THE FOLLOWING: smv ## **C.K. ABDUL REHIM & SHAJI P. CHALY, JJ.** ----------------------------------------------- **Mat.Appeal Nos.686 and 687 of 2014 ----------------------------------------------Dated this the 30[th] day of March, 2016.** ## **JUDGMENT** ## Shaji P. Chaly, J. Captioned Mat.appeals are arising from the common judgement of the Family Court, Ernakulam in O.P.No.1153/2006 and O.P.No.47/2013 dated 26.05.2014 respectively. O.P.No.1153/2006 is preferred by the appellant seeking dissolution of marriage and O.P.No.47/2013 was preferred by the respondent seeking restitution of conjugal rights. The petition filed by the appellant for dissolution was dismissed and the petition filed by the respondent for restitution of conjugal rights was allowed. It is thus challenging the common judgement passed in the above original petitions these appeals are preferred. 2. Appellant and respondent are husband and wife. 2 M.A. 686 and 687 of 2014 Since the evidence adduced in both the cases are common and the Family Court has disposed of the cases by a common judgement, we also propose to dispose of the same by this common judgement. O.P.No.1153/2006 pertaining to M.A.No.686/2014 is filed by the appellant seeking dissolution of marriage under Section 13(1) (i-a) (i-b) of the Hindu Marriage Act 1955, contending that the appellant and respondent are Hindus belonging to Pulaya Community. Appellant is a Engineering Graduate running a tuition centre for school going students of Plus 1 and Plus 2. He is also running an agency office viz; 'Technical Publishers and Distributors' at Irinjalakuda. The respondent is a teacher at St.Joseph's Higher Secondary School, Tripunithura. Marriage between the appellant and the respondent were solemnized on 4.9.1999 as per the religious rites and they were residing together at Irinjalakuda. It is contended that the respondent after the marriage did not show any love and affection to the appellant, that she was never satisfied 3 M.A. 686 and 687 of 2014 with the job and salary received by the appellant from a private concern at Chalakudy as a Supervisor. The respondent used to express dissatisfaction against the job that was undertaken by the appellant and every now and then she used to be cruel on account of this. Respondent also left the house on and off without the consent of the appellant and as a dutiful husband he used to pacify her and take her back to the marital home. In spite of all these affection shown by the appellant, the respondent neglected the appellant without any rhyme or reason. It is also contended that a girl child was born to the parties on 21.11.2001, named Akshara. The appellant has shown love and affection in abundance to the child and the appellant also has deposited an amount of Rs.45,000/- in favour of the child in a Service Co-operative Bank for a period of 20 years and an amount of Rs.35,000/- was deposited in the same bank in the joint names of the appellant and the respondent for a period of 72 months. 4 M.A. 686 and 687 of 2014 3. That apart respondent compelled the appellant to shift their residence to Ernakulam leaving the aged parents of the appellant at Irinjalakuda. Since the appellant was the only son of his parents, he was reluctant to leave Irinjalakuda by abandoning his parents there. Respondent always blamed the appellant for having not secured a Government job. The respondent always used filthy and abusive language not only against him but also against his aged parents. That apart it is contended that, during the period from 2002 to 2004 he was working as a teacher in a parallel college and later during the period 2004 - 2005, he was working as a Supervisor on contract basis in a public limited company who have undertaken works in the Kochin Refineries limited, Ambalamughal and it was at that point of time that the respondent secured a job in St.Joseph's School, Tripunithura and it was thus considering the convenience of the parties, the appellant took a house on lease at Tripunithura also taking into account the advice of M.A. 686 and 687 of 2014 5 his parents. In spite of all these, the respondent frequently expressed her dissatisfaction with respect to the job of the appellant and the respondent refused to go to the house of the appellant during weekends. Apart from the same, the respondent did not permit the appellant to go to his house to take care of his parents and that apart the child was also prevented from visiting her grandparents. 4. On 31.12.2005, the father of the respondent died in an accident and the appellant attended all the obsequies and other ceremonies in the house of the respondent during that time. Thereafter the respondent did not care to come back and due to the adamant attitude of the respondent, the efforts of the petitioner to take her back to the marital home did not yield any result and thereupon he has vacated the rented house. Even though the appellant and the parents of the appellant made every efforts to bring back the respondent, they were not successful. Thereafter only, the appellant on 18.7.2005, was compelled to issue a lawyer 6 M.A. 686 and 687 of 2014 notice to the respondent demanding restitution of conjugal rights. Respondent has sent a reply raising false and baseless allegations. Thereafter even though the friends and relatives of the appellant intervened for an amicable settlement, due to the adamant attitude of the respondent every effort was futile. On 3.6.2006, appellant issued another lawyer notice requesting the respondent to come back and stay with him and to the same, a reply was issued by the respondent declining the request made by the appellant, making certain baseless allegations and even to the extent of alleging that she suffered cruelty from the parents of the petitioner. It is under the said background alleging mental cruelty and desertion that the appellant has filed the petition seeking dissolution of the marriage. 5. The respondent has filed objection refuting the allegations, contentions, claims and demands raised by the appellant. That apart it was also contended that, the respondent was provided with 40 sovereigns of gold M.A. 686 and 687 of 2014 7 ornaments and house hold articles worth Rs.65,000/-. It is also contended by the respondent that on the 1[st] day itself, appellant's mother abused the respondent staying in the respondent's house on the eve of the marriage. It is also contended that consequent on the insistence of the mother of the appellant, the entire gold ornaments except the 'thaly chain' was entrusted with her. That apart it is contended that, the appellant took two months leave from the private company when he was working at Chalakudy in the guise of preparing for PSC examination. But even after expiry of two months period of leave, the appellant did not rejoin in the said concern and when questioning about the same appellant has conveyed to the respondent that he has resigned the job because he was transferred to Delhi. The appellant did not have any job for two years and in the meanwhile the child was born. The parents of the appellant frequently used abusive language against the respondent for reasons best known to them. The respondent and the 8 M.A. 686 and 687 of 2014 child were not given care and attention either by the appellant or his parents and they were denied proper clothing and food. It is also contended that the parents always told her that the appellant would have got a more beautiful girl with more dowry, and days passed harassment at the instance of the appellant continued. It is also contended that the mother of the appellant even used to physically harass the respondent and as things turned worse day by day, on 19.12.2003, the parents of the respondent took her and the child to her parental house. Appellant did not turn up to see the child after they were taken to her parental home. 6. Thereafter mediators intervened and the entire problems were settled and the respondent was taken back to the house of the appellant on 24.06.2004. Thereafter the appellant got a contract job at Ambalamughal. During that period and it was at that point of time, the respondent secured a job in a school at Tripunithura and it was 9 M.A. 686 and 687 of 2014 accordingly that for convenience a house was taken on rent at Tripunithura. It is the further contention of the respondent that the appellant always insisted the respondent to resign the job secured by her and go back to his parental house at Irinjalakuda and the respondent was reluctant to resign the job and thereupon resisted the insistence of the appellant for the same. It is also contended that due to the insistence of the parents, appellant frequently used abusive language against the respondent and the neighbours used to interfere. On 24.12.2004, the appellant left the company of the respondent neglecting her and the child. It was under such circumstances, the respondent was taken to her house by her parents and thereafter only on 31.12.2005, her father died in an accident. In fact the appellant and his parents went to the extent of creating a shameful scene at the house of the respondent wherein the body of her father was kept. It was after deserting the respondent by the appellant that 10 M.A. 686 and 687 of 2014 he has issued lawyer notices. The entire money and gold ornaments entrusted by the respondent with the parents of the appellant were misused by the appellant by selling them, ignoring the assurance given to the respondent that the amount will be deposited in the joint names of the appellant and the respondent. That apart the S.S.L.C. and other related documents were handed over to the appellant on his request for making necessary arrangements for attending an interview and the said documents are also not returned by the appellant. In such circumstances the respondent had to seek intervention of the Police and the appellant was compelled to return the said documents on certain conditions. The respondent has expressed her willingness to go along with the appellant provided, the appellant maintains the respondent and the child in a proper and caring manner. Thus the respondent has resisted the decree sought for by the appellant seeking divorce. 11 M.A. 686 and 687 of 2014 7. O.P. No.47/2013 is filed by the respondent under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. In the said petition the respondent has reiterated her contentions which was raised in the objection to the original petition filed by the appellant, apart from contending that it was the appellant who has deserted the respondent and the respondent is willing to go and reside with the appellant with the child in order to continue the matrimony. It was also contended that even though the respondent tried her level best to pursue the appellant to resume cohabitation, all her efforts became futile due to the adamant stand taken by the appellant. Even though as per the direction of the Family Court the appellant and the respondent stayed together from 5.5.2008 to 2.6.2008, they failed to restore the conjugal rights. The original petition filed by the appellant seeking divorce was dismissed earlier by the Family Court which was taken in appeal before this court. Later the said judgement was set aside and 12 M.A. 686 and 687 of 2014 remanded the matter back to the Family Court with a direction to consider the said original petition with the petition filed by the respondent for restitution of conjugal rights. On remand, parties adduced evidence. 8. The appellant was examined as PW1 and marked Exts.A1 to A14 and his mother was examined as PW2. Respondent was examined as RW1 and a neighbour residing close to their house at Tripunithura was examined as RW2 and Exts.B1 to B6 were marked on the side of the respondent. 9. After appreciating the pleadings and documentary as well as oral evidence tendered by the parties and the respective witnesses, the Family Court has arrived at a finding that the appellant has not made out any ground to seek a decree for dissolution of the marriage on the ground of cruelty or on the ground of desertion. Thereupon the original petition filed by the appellant was dismissed. However, it was found by the Family Court that there are no 13 M.A. 686 and 687 of 2014 reasonable circumstances enabling the appellant to reside away from the respondent and thus allowed the petition filed by the respondent seeking restitution of conjugal rights, which thus means O.P.No.1153/2006 filed by the appellant was dismissed and O.P.No.47/2013 filed by the respondent was allowed. 10. Heard learned counsel for the parties. 11. After appreciating the rival contentions, perusal of pleadings and evidence on record the point to be considered by this court is whether the appellant made out any case to secure a decree for dissolution of marriage either on the ground of cruelty or desertion. When the matter was taken up for hearing, it was fairly conceded by the learned counsel for the appellant that, he is not pressing the dissolution on the ground of desertion, since the said claim was premature. In order to find out the contentions raised by the appellant with respect to the cruelty alleged against the respondent, we have gone through the evidence on 14 M.A. 686 and 687 of 2014 record. It is true that the appellant has deposed in deposition in terms of the pleadings put forth by him in the original petition. On a perusal of the original petition itself, we are of the considered opinion that the circumstances put forth by the appellant are not sufficient grounds to arrive at a conclusion that those grounds are sufficient enough to attribute cruelty against the respondent. However, the respondent has denied the said circumstances and she has put forth a case that appellant has deserted the respondent and left the matrimonial home. 12. The court below has considered the evidence tendered by the appellant and PW2, his mother and was of the considered opinion that those are not circumstances enabling the appellant to seek dissolution of marriage by attributing cruelty. Moreover, the court below after assimilating the evidence tendered by both the parties came to a definite conclusion that even going by the version given by the appellant during cross-examination and also in 15 M.A. 686 and 687 of 2014 view of the evidence tendered by the respondent as RW1, the cruelty alleged by the appellant appears to be false. It was also found by the court below that even though PW2, his mother supported the version given by the appellant, PW2 was behind the dispute between the appellant and the respondent. That apart it was also taken into account by the Family Court the allegations made by the respondent against the parents of the appellant and her consistent stand during cross-examination of PW2 and while giving evidence as RW1, and has arrived at a conclusion that the version given by PW1 and PW2 cannot be believed and has given more weight to the evidence tendered by the respondent. That apart the court below has taken note of the evidence tendered by RW2, who was the neighbour of the appellant and respondent at Tripunithura and came to a conclusion that the evidence tendered by RW2 supported the version given by RW1. Thereupon it has come to a conclusion that it was the respondent who was being 16 M.A. 686 and 687 of 2014 subjected to cruelty by the appellant. That apart the court below has categorically, after appreciating the evidence entered into a finding that the appellant had failed to prove the case put forth convincingly and to the satisfaction of the court. 13. The court below while appreciating the evidence tendered by the parties to the petition filed by the respondent seeking restitution of conjugal rights has entered into a finding that there may be situations wherein there may be some dispute between the husband and wife during the course of the marriage and those are all not circumstances enabling the appellant to leave the matrimonial home and live apart. That apart it was also found by the Family Court that insistence made by the wife to the husband for securing a Government job and thereby receive an attractive salary cannot be termed as cruelty. Moreover on appreciation of the documents produced by the appellant himself, it was found that the appellant was a 17 M.A. 686 and 687 of 2014 Graduate Mechanical Engineer and subsequently he has secured a Government job and there was no occasion at all for the respondent to inflict mental injuries to the appellant by pestering him to secure a Government job. The case put forth by the appellant that, the respondent left the matrimonial home on 24.12.2004 is not correct in view of the evidence tendered by RW1 and RW2. On going by the evidence of RW1 wherein she has categorically asserted that it was the appellant who left the matrimonial home on 24.12.2004, which was substantiated by the evidence of RW2. It was thereafter only the parents of RW1 took her to the parental home. That apart it was also found by the Family Court that the appellant has issued a notice to the respondent seeking restitution of conjugal rights. It is sufficient enough to prove that there was no cruelty on the part of the respondent endangering the peaceful life. It was thus, the Family Court has arrived at a conclusive finding that the appellant is not entitled for dissolution of marriage 18 M.A. 686 and 687 of 2014 and that the respondent is entitled to secure a decree for restitution of conjugal rights. 14. The predominant argument advanced by the learned counsel for the appellant before us is that the marriage by and between the parties has broken down irretrievably and therefore, it is better for both the parties to live apart after dissolving the marriage. 15. Learned counsel has invited our attention to the judgement of the Apex Court in **Romesh Chander v. Savitri** reported in [(1995) 2 SCC 7] to canvass the proposition that since the marriage has irretrievably broken down, the same can be dissolved. On a perusal of the said judgement, it is categoric and clear that the Apex Court has exercised its power under Article 142 of the Constitution of India and concluded that the marriage by and between the parties with reference to the facts and circumstances involved in the said case has irretrievably broken down and dissolved. In our view the Apex Court has dissolved the said 19 M.A. 686 and 687 of 2014 marriage by holding that the marriage has irretrievably broken down by invoking its exclusive power under Article 142 of the Constitution of India and therefore, the principles or observations made thereunder cannot be held to be persuasive factor to be followed. Therefore, the said judgement or the principles laid down therein will not in any manner enure to the benefit of the appellant. 16. Learned counsel for the appellant has also contended that the court below ought to have taken note of the fact situation that the parties were residing separately w.e.f. 24.12.2004 and even though the appellant caused Exts.A10 and A11 notices requesting the respondent to resume cohabitation, she declined the same by Exts.B1 and B2 reply notices and therefore, such circumstances should have been taken as a prime ground of cruelty and the petition should have been allowed. That apart it is also contended by the counsel that several other litigations were instituted by the respondent against the appellant by 20 M.A. 686 and 687 of 2014 resorting to the provisions contained under various statutes and thereby inflicting mental injuries to the appellant. It is also contended by the learned counsel that the pleadings contained in para 4 of the original petition which is reiterated in 2[nd] para of the proof affidavit is not disputed by the respondent and therefore the contentions with respect to cruelty contained thereunder stands unassailed. 17. Per contra learned counsel for the respondent contended that there was no occasion for the respondent to inflict any mental cruelty by pestering him to secure Government job as he is a qualified graduate in Mechanical Engineering. Learned counsel has also contended that there are no enabling circumstances for the appellant to seek dissolution of the marriage under the ground of cruelty. That apart it is also contended that it was the appellant who inflicted mental cruelty to the respondent by using abusive language and picking up quarrels very often. That apart it is also contended that it is the appellant who has deserted 21 M.A. 686 and 687 of 2014 the respondent by leaving the matrimonial home while they were residing together at a rented house in Tripunithura. 18. On an appreciation of the facts and circumstances and the totality of the evidence involved in the subject matter, we are of the considered opinion that the trial court has appreciated the pleadings and evidence put forth by the rival parties by providing thrust to each and every contentions raised by the parties and on perusing the records produced by the parties. Moreover on appreciation of pleadings put forth by the appellant, we find that they are flimsy and trivial in nature so as to attribute, inflicting of mental injury by the respondent against the appellant. This court had occasion to consider a case of the similar nature in **Beena. S.S. v. Sundaresan and others** reported in [2016(1) KHC 355] (DB)] wherein this court has laid the proposition that trivial, shallow and flimsy circumstances alleged by the party will not constitute sufficient ground to dissolve a marriage on the ground of cruelty as provided 22 M.A. 686 and 687 of 2014 under the Hindu Marriage Act. On going through the judgement, pleadings and evidence on record, we do not find any incorrectness, illegality, gross injustice or other legal infirmities warranting interference of this court by exercising the power conferred on us in the appellate jurisdiction. 19. Resultantly the appeals fail and they are accordingly dismissed. There is no order as to cost. All pending interlocutory applications in this case stand closed. Sd/- **C.K. ABDUL REHIM JUDGE** Sd/- **SHAJI P. CHALY** //true copy// **JUDGE** P.A. To Judge smv 22.3.2016