Anil Kumar T v. Sindhu

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939 Mat.Appeal.No. 773 of 2012** **AGAINST THE ORDER DATED 02-08-2012 IN O.A.NO.669/2011 of FAMILY COURT,KOZHIKODE** **APPELLANT/PETITIONER:** **---------------------** **ANIL KUMAR T, S/O. THATTARAKKAL RAMANKUTTY, AGED 42, THATTARAKKAL, ERNAHIKAL P.O., KOZHIKODE DISTRICT - 673 303.** **BY ADV.SRI.K.S.ARUN KUMAR** **RESPONDENT/RESPONDENT:** **----------------------** **SINDHU, D/O. SURENDRAN, AGED 32, D/O. A. CHANDRAN, A.K. HOUSE, KANIYAMKANITHAZHAM HOUSE, KACHERI AMSOM, KARAPARAMBA DESOM, KOZHIKODE DISTRICT - 673 101.** **R1 BY ADVS. SRI.P.R.SREEJITH** **SRI.M.PROMODH KUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL & SHIRCY.V,JJ.** **= = = = = = = = = = = = = = = = = Mat. Appeal No.773 of 2012(C)** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 20[th] day of February, 2018_ ## **J U D G M E N T** ## **K. Harilal, J.** The appellant is the petitioner in O.A. No.669 of 2011 on the files of the Family Court, Kozhikode and the said Original Petition was filed by the appellant, seeking a decree granting dissolution of the marriage between the appellant and the respondent, on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'). The parties are referred to as in the Original Petition. Brief facts of the case can be narrated as follows: The marriage between the petitioner and the respondent was solomnized on 29.10.2000. According to him, from the date of marriage, the respondent has continuously treated him ## **Mat. Appeal No.773 of 2012(C)** ## **-: 2 :-** with mental cruelty. A child was born in the said wedlock in the year 2005. At the time of marriage, he was working abroad and he left his home after 28 days. Though he used to call the respondent, she didn't care to respond to his call. The respondent left the matrimonial home without obtaining permission from the petitioner or his mother. She misbehaved to the family members of the petitioner by using abusive words. She behaved as if she is a mental patient on different occasions. But, she was not ready to meet a Doctor or to have a counselling. When the petitioner came on leave after 1½ years, the respondent was not available at the matrimonial home. She was not interested to live along with him, when he was on leave. Though, he had constructed a house, the respondent was not interested to live along with him in the house and she was not ready to contact with him. When he came home on 17.07.2011, the respondent did not treat him, as required from a dutiful wife. He used to have food from hotels and houses of ## **Mat. Appeal No.773 of 2012(C)** ## **-: 3 :-** relatives and washed his own dresses. When the petitioner was hospitalised consequent on a road traffic accident in the year 2005, in Medical College Hospital, the respondent did not look after him properly. The petitioner was not allowed to enter into the parental home of the respondent. Whenever the petitioner's relatives came to the house, the respondent used to close the door. The petitioner was desirous of having one more child; but the respondent was not willing for the same. When the behaviour of the respondent became worse and intolerable, he filed the present petition, seeking dissolution of marriage. 2. The respondent filed a counter-statement, denying the allegations of cruelty levelled against her. According to the respondent, from the very beginning of the marriage, he used to harass on demand of `4,00,000/- more for the reason that the gold ornaments given to her at the time of marriage ## **Mat. Appeal No.773 of 2012(C)** ## **-: 4 :-** was not sufficient. He harassed her parents also, stating that the gold ornaments given to her was not sufficient in accordance with his status and financial capacity. She was made to do all works at home, including cleaning of the dresses of all the family members. When the petitioner came on leave, he used to consume liquor and subjected her physically hurt and cruelty. He was not interested to share bed with her, though both were living under the same roof. The household affairs were under the control of his elder brother and his wife. He used to approach his brother's wife for all his needs, without treating the respondent as his wife. In response to the notice issued by him calling upon her to cohabit together, she went to the house of the petitioner and started to live in that house. But, he refused to pay maintenance allowance to her ## **Mat. Appeal No.773 of 2012(C)** ## **-: 5 :-** and she got maintenance allowance, as per the direction of the court only on her application. Out of 50 sovereigns of gold ornaments, which was given to her at the time of marriage, more than half of it was sold by the petitioner, for his own personal needs. According to her, the application for dissolution of marriage was filed at the instance of his brother and his wife. She was residing in the house constructed by the petitioner suffering physical and mental cruelty. With the above averments, she prayed for dismissal of the petition. 3. On the aforesaid rival pleadings, both parties adduced evidence. The petitioner was examined as PW.1 and another witness was examined as PW.2. The respondent was examined as RW.1. No documentary evidence was produced by both parties in support of the rival pleadings. ## **Mat. Appeal No.773 of 2012(C)** ## **-: 6 :-** 4. After considering the evidence on record, the Family Court dismissed the application, on a finding that the petitioner has not succeeded in establishing any cruelty by the respondent, as referred to Section 13(1)(ia) of the Act. The legality and correctness of the findings, whereby the Family Court passed the impugned judgment, are assailed in this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. The sum and substance of the arguments advanced by the learned counsel for the appellant is that the Family Court failed to appreciate the oral evidence given by PWs.1 and 2 in its correct perspective. According to him, the petitioner has succeeded to prove the facts constituting cruelty and the same was supported by the evidence of PW.2. ## **Mat. Appeal No.773 of 2012(C)** ## **-: 7 :-** The Family Court has not meticulously evaluated the said evidences of PWs.1 and 2. 7. On the other hand, the learned counsel for the respondent advanced arguments to justify the findings of the Family Court, whereby the petition seeking dissolution of marriage was dismissed?. According to him, the Family Court is justified in rejecting the evidence of PWs.1 and 2, as the same is not reliable or believable at any point of time. 8. In view of the arguments at the Bar, the short point that arises for consideration is, whether the Family Court is justified in finding that the petitioner has not succeeded in proving the cruelty, so as to grant a decree for dissolution of marriage. The marital relationship and the parentage of the child are not disputed. At the time of marriage, the petitioner was working abroad and he ## **Mat. Appeal No.773 of 2012(C)** ## **-: 8 :-** left to Gulf country, after 28 days of matrimony. Thereafter, he came back after 1½ years, on leave. The child was born in the year 2005. Though she was pregnant earlier, it ended in abortion. After the delivery of the child also, he was working abroad and he came back on leave occasionally. Thus, during the course of marital life of 10 years, almost all time he was abroad and this petition was filed in the year 2011, one decade after the marriage and five years after the delivery of the child. We have meticulously gone through the pleadings. According to Rule 7 of the Hindu Marriage (Kerala) Rules, 1963, in cases where cruelty is alleged, the petitioner shall state the date and the circumstances under which the specific acts of cruelty occurred. On a close reading of the Original Petition, it appears that the Original Petition ## **Mat. Appeal No.773 of 2012(C)** ## **-: 9 :-** lacks specific facts and circumstance to constitute cruelty as enviaged under Section 13(1)(ia) of the Hindu Marriage Act. 9. On an analysis of the averments in the petition, We find that the only one specific incident of cruelty alleged is that he met with a road traffic accident in the year 2005 and he was hospitalised for treatment. But, the respondent has not taken proper care and caution in nursing him during those days. Even if the said allegations admitted at its face value, his case is that she has not nursed him with proper care and caution only and he has no case that the respondent has not looked after him or accompanied him, during those days. When she was examined, she deposed that he was admitted in the male ward of the hospital and in that circumstance she faced with difficulty in ## **Mat. Appeal No.773 of 2012(C)** ## **-: 10 :-** nursing him during night and the same was not her fault. We are of the opinion that the said specific incident alleged in the petition is not a sufficient ground to grant a decree for dissolution of marriage. It has come out in evidence that the respondent was pregnant, while he was hospitalised, pursuant to the accident in the year 2005. The explanations given by the respondent appear to be just and reasonable. No wilfull neglect could be attributed to the respondent. 10. Another main ground alleged in the petition is that the respondent did not respond to him, when he telephoned her, while he was working abroad and she was not interested to live along with him, while he was on leave. But, going by the written-statement filed by the respondent, the case of the respondent is that he was not interested to ## **Mat. Appeal No.773 of 2012(C)** ## **-: 11 :-** share bed with him and he used to close the doors, so as to prevent entry of the respondent to his room in the night. Further, she alleged that from the very beginning of the marriage, he used to harass her on demand of `4,00,000/- more for the reason that according him, she was not given sufficient gold ornaments in accordance with his status and financial capacity. He used to harass the parents of the respondent also and accused them for the very same reason. It is also stated that he refused to pay maintenance allowance to them properly, though he was working abroad and earning money. At last, she was constrained to approach the court, seeking a direction to give maintenance allowance to her and the child and then only she got maintenance allowance at the rate of `3,000/- per month. 11. Further, it is contended that the family ## **Mat. Appeal No.773 of 2012(C)** ## **-: 12 :-** members treated her as a made servant in matrimonial home and the household affairs were controlled by the brother and his wife. It is her specific case that the present petition was also filed at the instance of the brother and his wife under their direction only. Thus, what is discernible from the written-statement filed by the respondent is that she was desirous of resuming a happy married life with the petitioner and she admitted that after the delivery of the child though she was residing in her parental home, in response to the notice issued by the petitioner calling upon her to resume cohabitation, she came back to the matrimonial home and started to live along with the petitioner, though he was working abroad at that time. Even at the time of filing the present petition in the year 2011, the respondent is residing in the house ## **Mat. Appeal No.773 of 2012(C)** ## **-: 13 :-** constructed by the petitioner, but, whenever the petitioner comes to the house on leave he was interested to live in isolation, without any contact with the respondent and he remained in his own room only, after preventing entry to the respondent. 12. It is needless to say the burden of proof is on the petitioner. Has he succeeded in proving the same? He has sworn proof affidavit in terms with the averments in the petition and he was subjected to cross-examination by the respondent. Going by the matters brought out in cross-examination, We find that the allegations levelled against the respondent are trivial in nature and the same are only wear and tear of a marital life only. 13. In the above context, as rightly cited by the court below, the decision of the Supreme Court ## **Mat. Appeal No.773 of 2012(C)** ## **-: 14 :-** in _**G.V.N. Kameswara Rao v. G. Jabilli**_ [AIR 2002 SC 576] assumes relevancy and significance. In the said decision, the Supreme Court held that “cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct”. In the above view, We are of the opinion that, if the allegations levelled against the respondent are taken at its face value and admitted, it may amount to mere misconduct only. 14. Moreover, on an analysis of the sequences of events from 2000 to 2011, We find that the behaviour of the respondent was not so cruel, as alleged by the petitioner because the child was born in 2005, after four years of matrimony. That apart, this petition was filed in the year 2011 only, one ## **Mat. Appeal No.773 of 2012(C)** ## **-: 15 :-** decade after the marriage. More importantly, even at the time of filing the petition, the respondent was residing in the house of the petitioner along with the child. If the behaviour of the respondent was so cruel, so as to cause any apprehension of danger or harm to the life of the petitioner, certainly, he would not have resided under the same roof along with the respondent for such a long time and the respondent would not have delivered the child, after four years. That apart, the petitioner himself admitted that after the delivery of the child, she came back and resumed cohabitation with him in response to the advocate notice issued by him, calling upon her to resume cohabitation. We are of the opinion that, if the behaviour of the respondent was so cruel, as alleged by him, certainly, he could not have been daring to issue ## **Mat. Appeal No.773 of 2012(C)** ## **-: 16 :-** such a lawyer notice to the respondent, calling upon her to resume cohabitation. 15. Thus, on an appreciation of the evidence of PW.1, We find that the Family Court is justified for not relying on the oral testimony of PW.1. 16. Coming to PW.2, he is none other than the brother of the petitioner. He admitted in his reexamination that he didn't come to the house of the petitioner since the marriage of the petitioner with the respondent. Thus, he himself admitted that he has no direct knowledge or information about the marital life of the petitioner and the respondent. Therefore, the Family Court is justified in rejecting his evidence. Thus, on a total analysis of the outcome from the evidence adduced by the petitioner, We find that the petitioner has miserably failed to prove the allegations of ## **Mat. Appeal No.773 of 2012(C)** ## **-: 17 :-** cruelty, as required under Section 13(1)(ia) of the Act and the Family Court has appreciated the oral testimony of PWs.1 and 2 in its correct perspective and rejected the same. We do not find any reason to interfere with the impugned judgment under challenge and this appeal is dismissed. DST Sd/- **K. HARILAL, JUDGE** Sd/- **SHIRCY.V, JUDGE** //True copy// P.A. To Judge **JUDGE**