Anitha v. Unnikrishnan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935 Mat.Appeal.No. 188 of 2012 () -----------------------------OPHMA 274/2009 of FAMILY COURT, ALAPPUZHA DATED 10-02-2012 APPELLANT(S)/RESPONDENT: ---------------------------------------------- ANITHA, (30) ANIL NIVAS MANCOMBU PRESENTLY RESIDING AT HOUSE NO.201 HARINILAYA, RAMAGONDANA HALLI, TUBRA HALLI.P.O BANGALORE-5600066. ## BY ADV. SRI.K.V.SADANANDA PRABHU ## RESPONDENT(S)/PETITIONER: -------------------------------------------------- UNNIKRISHNAN, (39) S/O.NARAYANAN NAIR, PUTHUVEETTUVELI HOUSE CHARAMANGALAM, MUHAMMA PRESENTLY RESIDING AT C/O.SASIDHARAN NAIR, HARINILAYA RAMAGONDANA HALLI TUBRA HALLI.P.O, BANGALORE-560066. BY ADV. SRI.M.R.ARUN KUMAR(CAVEATOR), BY ADV. SRI.S.SANAL KUMAR BY ADV. SRI.M.R.ARUNKUMAR BY ADV. SRI.P.T.BINDURAJ THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11-10-2013, THE COURT ON 18-10-2013 DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** ------------------------------------------- Mat.A.No.188 of 2012 ------------------------------------------Dated this the 18[th] day of October, 2013 ## **JUDGMENT** ## Antony Dominic, J. 1.This appeal is directed against the judgment of the Family Court, Alappuzha in OP(HMA).No.274/09. That OP was filed by the respondent herein, under sections 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955 (the 'Act', for short), seeking divorce. Before the Family Court, on behalf of the respondent, he himself and two other witnesses were examined as PWs.1 to 3 and Exhibits A1 and A2 were marked. On behalf of the appellant, she herself and another witness were examined as RWs.1 and 2 and Exhibits B1 to B7 were marked. The Family Court, by judgment dated 10.2.2012, disposed of the matter, accepting the ground of cruelty under section 13(1)(ia) and rejecting the ground of insanity under clause 13(1)(iii) of the Act. It is aggrieved by this judgment, the appellant wife has filed this appeal. Mat.A.188/12 2 - 2.The parties are Hindus and their marriage was solemnized on 7.5.1998 at Sree Bhagavathi Temple, Mankompu. Thereafter, they lived as husband and wife at the native place of the husband and later, at Bangalore and their son, Harikrishnan, was born on 28.4.1999. According to the respondent, the appellant was suffering from mental insanity and was also behaving in a cruel manner. Therefore, he filed OP(HMA). 417/08 before the Family Court, Alappuzha on 28.4.2008. That OP was withdrawn on 31.5.2008. Thereafter also, the couple lived together at Bangalore and they again separated on 29.12.2008. Since then, they are living separately and the son with the respondent. It is in these circumstances, the OP was filed by the respondent before the Family Court on 7.3.2009. - 3.As already stated above, the ground upheld by the Family Court for granting the decree of divorce is cruelty. Arguing on behalf of the appellant, learned counsel contended that the petition did not contain any pleading for establishing the ground of cruelty. According to him, the averments in the Mat.A.188/12 3 petition are in relation to the situation prior to 31.5.2008 and that on account of the withdrawal of OP(HMA).417/08 and resumption of cohabitation, the cruelty, if any, stood condoned. Counsel contended that in the absence of any pleading of any cruelty for the period subsequent to the restoration of marital relationship, the Family Court ought not to have accepted the case of cruelty and granted divorce. - 4.On the other hand, learned counsel for the respondent contended that the conduct of the appellant subsequent to 31.5.12008 was the continuation of her conduct prior thereto and according to the counsel, there are sufficient pleadings substantiating his case. He also contended that the appellant has made reckless and unproved allegations in her pleadings and evidence and that therefore, at any rate, she is guilty of causing mental cruelty to the respondent which itself entitled the respondent for a decree of divorce. - 5.We have considered the submissions made by both sides. Mat.A.188/12 4 ## 6.Section 20 of the Act providing for the contents and verification of petitions reads thus: **“20.Contents and verification of petitions** -(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded, and except in a petition under Section 11, shall also state that there is no collusion between the petitioner and the other party to the marriage. (2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.” - 7.In exercise of the powers conferred under sections 14 and 21 of the Act and Article 227 of the Constitution of India, the High Court of Kerala framed the Hindu Marriage (Kerala) Rules, 1963. Rule 7 thereof provides for the contents of petitions and rule 7(3), which being relevant, reads thus: “7. **Contents of petition** .- In addition to the particulars required to be given under order VII, Rule (1) of the Code and Section 20(1) of the Act, every petition for Mat.A.188/12 5 judicial separation, nullity of marriage, or divorce shall contain the following particulars:- . . . . . . . . . . . . . . . . . . . . . . . . . . (3) In cases where desertion and/or cruelty are alleged, the petitioner shall state the date and the circumstances under which the alleged desertion began and/or the specific acts of cruelty.” - 8.Having seen the relevant statutory provisions, we shall now proceed to consider the judicial precedents that are relevant. In **Ram Sarup Gupta** v. **Bishun Narain Inter College** [AIR 1987 SC 1242], the Apex Court held that “it is well settled that in the absence of pleadings, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should pleaded by the party in support of the case set up by it.” Mat.A.188/12 6 9.In a case arising under section 13(1)(ia) of the Act, the High Court of Allahabad in its judgment in **Sulochana** v. **Ram Kumar Chauhan** [AIR 1981 All 78] held thus: “The fact that the parties led evidence about this allegation or that the courts below gave a concurrent finding in favour of the husband is of no avail for, as provided in Sections 10 and 13 of the Act, relief can be sought by the husband or the wife thereunder by presenting a petition and praying for relief therein on the ground, inter alia, that the respondent to the petition “has after solemnisation of the marriage treated the petitioner with cruelty.” In the absence of the ground of cruelty being put forward in the petition, no relief on that ground can be graned even through evidence may have been led about it. As observed by this court in Moinuddin v. Imam-Uddin Ashraf (AIR 1972 all 25) “it is settled law that though liberal consideration to pleading is to be given in Indian Courts so as to allow every question to be raised and discussed in the suit yet a plaintiff cannot be entitled to relief upon facts and documents neither stated nor referred to in the pleadings, vide Mohummud Zahoor Ali Khan v. Mt. Thakooranee Rutta Kooer (1866-7) 11 Moo Ind App 468 (PC).” If a case is not pleaded, any amount of evidence led about it cannot ensure to the benefit of the party who failed to plead that case and, as held by the Privy Council in Siddik Mohomed Sha v. Mt. Saran (AIR 1930 PC 57 (1)), cannot be looked into at all. It is settled that the decision of a case cannot be based on Mat.A.188/12 7 grounds outside the pleading of the parties and it is the case pleaded that has to be found. See, Trojan & Co. v. Nagappa Chettiar (AIR 1953 SC 235).” 10.Similarly, in **Maya** v. **Brij Nath** [AIR 1982 Delhi 240], it was held that “acts of cruelty have to be specifically pleaded. The husband never pleaded the said acts of cruelty. It is well known that no amount of evidence can be looked into on a plea which was never pleaded.” Thus these judgments reiterate the necessity of pleadings in a proceedings under the Act where ground of cruelty provided in section 13(1)(ia) is urged by a litigant. - 11.Now, we shall proceed to refer to the pleadings of the appellant as available in the petition filed before the Family Court. - 12.Paragraphs 1 to 8 of the petition contains averments regarding the conduct of the appellant prior to 31.5.2008. Thereafter, in paragraphs 9 and 10, it is stated thus: Mat.A.188/12 8 “9. After his wife and child were taken from Bangalore, by the mother of the respondent to their house at Mancompu, the petitioner filed a petition before this Hon'ble Court as O.P.(HMA) No.417/2008 for a decree of divorce. That case was settled on the request and pressure of the relatives of the petitioner. But again, when they started living together, the attitude of the respondent never changed and her behaviour became much more worse and she began to abuse the petitioner, saying that even by filing a case he could not escape from her. She was dare enough to warn the petitioner to live as per her whims and fancies. 10. In December 2008, when they were at the petitioner's family residence at Muhamma, she left the house without the consent or intimating the petitioner or his family members. On enquiry, it was found that she was safe with her grand mother. From there onwards they are living separately at her own wish. The petitioner tried his level best to convince her mother that she needs urgent Psychiatric medical care. But she was never ready or willing to undergo treatment. The petitioner apprehend danger even to his life if he live with her.” - 13.The contents in paragraphs 9 and 10 would therefore show that according to the respondent, after resumption of cohabitation, the attitude of the appellant never changed and Mat.A.188/12 9 her behaviour became much more worse and she began to abuse him. Proceeding further, he also states that in December, 2008, the appellant left the house without consent or intimating him and that the appellant was unwilling to undergo treatment under a Psychiatrist. From the averments in these paragraphs, it is clear that the respondent was mainly relying on the conduct of the appellant prior to 31.5.2008. These pleadings do not satisfy the requirements laid down in section 20 of the Act or Rule 7 (b) of the Rules. Nor does it meet the standards laid down in the judgments noticed supra. Therefore, counsel for the appellant is right that the pleadings of the respondent did not disclose a case of cruelty, in so far as the situation subsequent to 31.5.2008 is concerned. - 14.The second part of the contention of the learned counsel for the appellant was that if at all there was any cruelty on the part of the appellant prior to 31.5.2008, that stood condoned and therefore, could not have been relied on. Section 23(1)(b) of the Act provides that in a case where petition is presented Mat.A.188/12 10 urging ground of cruelty, decree shall be passed by the court only if it is satisfied that the cruelty is not condoned in any manner. Section 23(1)(b) reads thus: “23. **Decree in proceedings** .- (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that, - (a) . . . . . . . . . . . . . . . (b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any . manner condoned the cruelty, and . . . . . . . . . .” 15.What amounts to condonation is a matter to be considered in this context and this very question has been considered by the Apex Court in **Mohd. Rajab Gujari** v. **The State of Jammu** **and Kashmir** [1975(2) SCC 323), where, in paragraph 55, it has been held thus: Mat.A.188/12 11 “Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration.” 16.Thus, as laid down by the Apex Court, the necessary elements of condonation are forgiveness and restoration. In so far as this case is concerned, respondent approached the Family Court with OP(HMA).417/08 alleging grounds of cruelty against the appellant. That OP was withdrawn and was accordingly dismissed on 31.5.2008 and the couple re-united and resumed cohabitation. Thereafter, they lived together till 29.12.2008, when, according to the respondent, the appellant left the matrimonial home at Muhamma without informing him or obtaining his consent. Therefore, in this case, both the elements of forgiveness and restoration exist and in such a case, the matrimonial cruelty, if any, prior to 31.5.2008, has to be treated as condoned by the respondent. If that be so, such condoned cruelty could not have been again relied on by the respondent in view of the provisions contained in section 23(1) Mat.A.188/12 12 (b) of the Act. Thus the pleadings in paragraphs 9 and 10 contain only allegations of cruelty which are already condoned and the remaining allegations are vague and lack the particulars which are needed to be pleaded in view of section 20 of the Act and Rule 7(3) of the Rules. This legal position is reiterated in the judgments referred by us also. These averments, even if oral evidence has been adduced, could not have been relied on by the Family Court for granting a decree of divorce. Therefore, the grounds on which cruelty has been found by the Family Court are untenable. 17.The surviving question is whether the wife is guilty of causing mental cruelty to the respondent by making reckless and unproved allegations against him. The latest authoritative pronouncement on this issue is the judgment of the Apex Court in **Srinivas Rao K.** v. **D.A.Deepa** [2013(1) KHC 647], where, it has been held thus: “12. In V.Bhagat v. D.Bhagat in the divorce petition filed by the husband the wife filed written statement Mat.A.188/12 13 stating that the husband was suffering from mental hallucination, that his was a morbid mind for which he needs expert psychiatric treatment and that he was suffering from 'paranoid disorder'. In cross examination her counsel put several questions to the husband suggesting that several members of his family including his grandfather were lunatics. This Court held that these assertions cannot but constitute mental cruelty of such a nature that the husband cannot be asked to live with the wife thereafter. Such pleadings and questions it was held, are bound to cause immense mental pain and anguish to the husband. In Vijaykumr Bhate disgusting accusations of unchastity and indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous to live with her husband. In Naveen Kohli the respondent-wife got an advertisement issued in a national newspaper that her husband was her employee. She got another news item issued cautioning his business associates to avoid dealing with him. This was treated as causing mental cruelty to the husband. 13. In Naveen Kohli the wife had filed several complaints and cases against the husband. This Court viewed her conduct as a conduct causing mental cruelty and observed that the finding of the High Court that Mat.A.188/12 14 these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable. 14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the Court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.” 18.In the light of the above principles, we shall now proceed to examine the case of the parties. 19.In paragraphs 5 and 6 of his petition, the respondent had stated thus: “(5) . . . . . . . . . . . .Whenever the petitioner accompanied her (sic him), she began to make quarrels raising baseless allegations connected with his morality. (6). Several time she made quarrels with the petitioner raising baseless allegations regarding extra marital relations. . . . . . . . . . . . . . .” Mat.A.188/12 15 - 20.This allegation of the respondent stands confirmed in the objection filed by the appellant, where, in paragraph 6, she has stated thus: “6. The petitioner was always hostile to the respondent but the poor respondent could not realize the aforesaid attitude shown by the petitioner. At the initial stage he acted to show that he is loving the respondent very much with the ulterior motive to extract money from the side of the respondent. The petitioner is keeping an illicit relation with a neighbour at their residence at Bangalore, one Smt.Vimalakumari and at her instance several times the Petitioner was making quarrels with the respondent at home while the petitioner was residing with the respondent at Bangalore. For the last few years petitioner is trying to avoid the Respondent for conveniently continuing his illicit relations with the said Vimalakumari who is residing adjacent to the house of the petitioner at Bangalore. Whenever the respondent protested the aforesaid illicit relations of the Petitioner with the said Smt.Vimalakumari the Petitioner became furious and he tortured and physically assaulted the respondent.” 21.Again, in her proof affidavit, she stated thus: Mat.A.188/12 16 “ഹര��ക�രന എന��ട�� ക�ട�ന��ട�� ആദ�മ��മക വളമര സ�ന�ഹത�ല കഴ�ഞ�ര ���മവങ�ല�� ത �ടര�� ബ��ഗ�ള&ര�ളള ഞങള�മട വ)ട��� സ�)പത �ള വ��ലക���ര� എ� സ�ത)������ ട���ന അവ�ഹ�തബന� പ�ലരത�വ�ത�മ� ഞ�ന എത�രതന.�ള ��തല ട����� എന��ട� വളമര ന��ശ��� �� വവര�ഗ�നത�ട �ക&ട���� മപര���റ� വ��ര ��ത�� പലന.�ഴ �� എമ� ക&ര���� �ര3�ച�ട�ളത���ണ�.” 22.In her cross examination also, she has gone to the extent of asserting that the relationship between the respondent and the aforesaid Vimalakumari is that of husband and wife. She has also stated that since her marriage with the respondent, the respondent and Vimalakumari are living as husband and wife. PW2 has also stated that the appellant had made this allegation when he interacted with her. Thus it is evident that throughout, the appellant has made allegations that the respondent is having an illegitimate relationship with another married lady having grown up children and that their relationship is continued even at the time when she tendered evidence. If she had proved this allegation before the Family Court, she could have avoided the decree against her in view Mat.A.188/12 17 of section 23(1)(a) of the Act which prohibits the passing of a decree when the court is satisfied that the respondent is taking advantage of his own wrong in maintaining the alleged illicit relationship. 23. Apart from making the allegation that the respondent is having the illicit relationship, the appellant did not substantiate the same in any manner. As held by the Apex Court in **Srinavas Rao** (supra), making such unfounded, indecent and defamatory allegations in the pleadings and evidence itself amounted to mental cruelty to the spouse against whom it is made and she should have realised that such unfounded allegations could have ruined the matrimonial life of the lady against whom such allegations are also made. We are satisfied that the allegations of illegitimate relationship made by the appellant have caused mental cruelty to the respondent and that for that reason, the respondent should be held entitled to a decree of divorce. Therefore, although we accept the contention of the learned counsel for the appellant Mat.A.188/12 18 that the respondent failed to establish cruelty as required under section 20 of the Act and that the cruelty, if any, is condoned, we still uphold the decree passed by the Family Court on the ground of cruelty for the reasons stated above. In the result, the appeal will stand dismissed. No order as to costs. Sd/ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb. /TRUE COPY/ PS TO JUDGE