Balakrishnan v Sumithra

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 5TH DAY OF NOVEMBER 2014/14TH KARTHIKA, 1936** **Mat.Appeal.No. 296 of 2005 ---------------------------[AGAINST THE ORDER IN OP 426/2004 of FAMILY COURT, MANJERI DATED 02-06-2005]** **APPELLANT/RESPONDENT:** **---------------------** **BALAKRISHNAN, S/O.THERUVATH APPUTTY, AGED 35 YEARS, PERUVALLUR AMSOM DESOM, P.O.PERUVALLUR THIRURANGADI TALUK.** **BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SMT.C.G.PREETHA SRI.M.PRAVEESH** **RESPONDENT(S)/PETITIONER: -------------------------** **SUMITHRA, D/O.MANNIL VENU ALIAS VELU, 27 YEARS, PERUVALLUR AMSOM DESOM, PERUVALLUR.P.O. POTTAMMALMADU, CHEMBAYITHODI HOUSE TIRURANGADI TALUK.** **R1 BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM R1 BY ADV. SMT.MABLE.C.KURIAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** **05-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.K.MOHANAN & K.HARILAL, JJ.** **---------------------------------------Mat. Appeal No. 296 of 2005 ----------------------------------------** Dated this the 5[th] day of November, 2014 ## **J U D G M E N T** ## Harilal,J: This Matrimonial Appeal is directed against the order dismissing original petition No.426 of 2004 on the files of the Family Court, Manjery. The appellant is the petitioner and the respondent is the respondent in the above original petition. The above original petition was filed by the appellant herein, praying for an order granting a decree of divorce as provided in Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to for short as 'the Act' only). (The parties are referred to as in the original petition.) The averments in the O.P. can be recapitulated as follows:- 2. The marriage between the petitioner and the respondent took place on 4.11.1997 and two children were born in the said wedlock. During the period of second pregnancy, on 4.8.2000, the respondent Mat.Appeal No. 296 of 2005 **==> picture [21 x 9] intentionally omitted <==** left the matrimonial house and went to her parental home. Thereafter, she refused to live with the company of the petitioner, in spite of repeated requests made by the petitioner and ultimately, he was constrained to file original petition No.344 of 2001 before the Family Court, Manjeri seeking an order granting a decree for restitution of conjugal right. But, later the matter was settled between the parties and as per the terms of the settlement, the respondent along with the children started to reside with the petitioner. Even though she resumed cohabitation with the petitioner at the matrimonial house, she continued to harass the petitioner physically as well as mentally. She used to complain about the lack of facilities in the petitioner's residence and wanted to shift the residence. She refused to look after his mother. Once she assaulted the petitioner and he was injured and when he was admitted in the hospital, she refused to serve food to the petitioner and wash his cloths. When she gets angry, she used to throw whatever house hold article, which is being kept in the house. Mat.Appeal No. 296 of 2005 **==> picture [21 x 9] intentionally omitted <==** Thus, the matrimonial relationship between the petitioner and the respondent was totally strained. When the respondent's father came to know about the strained relationship between the petitioner and respondent, he came and took her away to the paternal house and a few days later, a quarters on rent was obtained and she started to reside there from 1.5.2004 along with her father and children. Due to physical and mental stress, to which the petitioner was put, he could not do any kind of job and he fell into debt. Thus, the petitioner decided to sell his house and property and the petitioner's own brother, when came to know his intention to sell the property and building thereon, he purchased the same to help the petitioner financially. The respondent when came to know about this, trespassed into the house along with the children and her father on 20.9.2004 and thereafter, they have been residing in the house, which was sold away to his brother. The marriage between the petitioner and the respondent has been broken irretrievably. Hence, he filed the above petition praying Mat.Appeal No. 296 of 2005 :-4-: for dissolution of marriage on the ground of cruelty. 3. The respondent filed a counter statement admitting her marital status and paternity of the children, but denied the entire allegations of cruelty levelled against her. According to the respondent, the petition was filed without bona fides and the same is intended to get married again with another woman, after dissolution of marriage with her. She contended that she never lived separately from the petitioner willfully. According to her, there was no bona fide in the filing of O.P.(HMA) No.344 of 2001 seeking restitution of conjugal right, but the same was intended to circumvent the prosecution launched against the petitioner on a complaint filed by her under Section 498A of I.P.C. against the petitioner. Though the respondent has resumed cohabitation with the petitioner on an undertaking that he will not ill-treat the respondent, he again started ill-treating her frequently. She never requested that the petitioner should shift residence from the family house and she never resided in Mat.Appeal No. 296 of 2005 **==> picture [21 x 9] intentionally omitted <==** a rented quarters as alleged by the petitioner at the instance of her father. In fact, the respondent never shifted the residence from the house of the petitioner. So, there was no necessity for the respondent to trespass into the house of the petitioner. The petitioner had not assigned his residential property to his brother and the alleged sale was a fake one made with an intention to evict the respondent from the matrimonial house. Even now, the said property stands in his own name and even if any document is created to this effect, it is intended fully to defeat the respondent's right to live in the matrimonial home. She never behaved cruelly to the mother of the petitioner or the petitioner and she had performed all her marital obligations as wife towards the petitioner. On the other hand, he behaved cruelly and refused to pay maintenance and allowance to the respondent and children after 2004. All living expenses after 2004, were met by her father. At least, the petitioner left the matrimonial house in January, 2004 and thereafter, he has not enquired about the respondent and Mat.Appeal No. 296 of 2005 :-6-: children. The present petition is intended to evict the petitioner and children from the matrimonial home and also to marry again another lady and she prayed for dismissal of the petition filed by the petitioner. 4. The petitioner was examined as PW1; but no documentary evidence had been produced. On the other hand, the respondent was examined as RW1 and the certified copy of the petition in O.S.No.15 of 2005 issued from the Munsiff Court, Parappanangadi was marked as Ext.B1. After appreciating the evidence on record, the learned Family Court Judge dismissed the petition on a finding that the petitioner himself failed to prove the allegation of cruelty meted out to him by the respondent. The legality, propriety and correctness of the findings whereby the court below dismissed the original petition are under challenge in this Matrimonial Appeal. 5. Learned counsel for the petitioner advanced arguments challenging the findings of the court below that the petitioner miserably failed to prove the allegations of cruelty pleaded in the Mat.Appeal No. 296 of 2005 **==> picture [21 x 9] intentionally omitted <==** original petition. According to the learned counsel, the cumulative effect of several instances pointed out by the petitioner in the pleadings as well as in the oral evidence given by him pointing towards the act of cruelty, which would cause reasonable apprehension in the mind of the petitioner that it is not safe for him to live along with the respondent. But, the court below miserably failed to appreciate the pleadings and evidence in its correct perspective. So also, the court below failed to appreciate the explanation submitted by the petitioner for non-production of any documentary evidence to prove the allegations of cruelty. More over, the oral evidence given by the petitioner was not successfully challenged in cross-examination and the same would obviously prove the fact that the respondent has miserably failed to discharge marital obligation towards the petitioner as his wife. At last, the learned counsel submitted that from 2004 onwards, they are living separately and they lived together for a period of seven years only. Thus, the marital relationship has been broken Mat.Appeal No. 296 of 2005 :-8-: irretrievably. Therefore, on that count also, the petitioner is entitled to get a decree granting dissolution of marriage. 6. Per contra, the learned counsel for the respondents, advanced the arguments justifying the findings of the court below that the petitioner has miserably failed to prove the allegation of cruelty levelled against the respondent. According to the learned counsel, the pleadings are not sufficient to arrive at a finding that the instances pleaded in the original petition would cause a reasonable apprehension in the mind of the petitioner that it is not safe for him to live along with the respondent. Even if the allegations are taken on its face value, those allegations are only wear and tear in the matrimonial life. It is also submitted that the petitioner refused to pay maintenance allowance from 2004 onwards to respondent and children. The petitioner has miserably failed to prove that the respondent has left the matrimonial home and thereafter, resided in a rental quarters at the instance of the father of the respondent and thereafter, trespassed into Mat.Appeal No. 296 of 2005 :-9-: the matrimonial home by force. According to the learned counsel, the cumulative effect of the sequence of events would show that after 2004, the petitioner has deserted the respondent and children. The present petition is decisively intended to avoid the respondents legally and to get married with another woman. 7. In view of the rival contentions raised at the Bar, the question to be considered is whether there is any illegality or impropriety in any of the findings whereby the court below dismissed the petition or whether there is any kind of perversity in appreciating the evidence from which those findings have arrived at. 8. To consider the above question, the first point to be considered is whether the petitioner has succeeded in proving the allegations of cruelty levelled against the respondent. Going by the impugned order, it can be seen that the evidence consists of the oral evidence adduced by both parties only. As rightly held by the court below, the available evidence on record is oath against oath only. Mat.Appeal No. 296 of 2005 **==> picture [27 x 9] intentionally omitted <==** Even though the petitioner has pleaded several instances of cruel behaviour towards his family members also, he has not adduced any kind of independent evidence to corroborate his oral evidence. The petitioner has started his allegations of cruelty by alleging that while the respondent was carrying the first child, the petitioner has deserted him. But, no evidence had been adduced to show that the respondent had deserted him and left his company at her own volition. It is true that the petitioner had filed O.P.No.344 of 2001 seeking restitution of conjugal rights and at last, the matter was settled and the respondent resumed the company of the petitioner. At the same time, it is pertinent to note that when the said original petition was filed seeking restitution of conjugal right, the prosecution had been initiated against the petitioner alleging the offence under Section 498A of the I.P.C. , which was pending in the Magistrate Court. In view of the said fact, as rightly held by the court below, in the absence of other corroborating evidence, it cannot be presumed that the said original Mat.Appeal No. 296 of 2005 **==> picture [27 x 9] intentionally omitted <==** petition was filed with bona fides or the petitioner was desirous of resuming cohabitation with the respondent. It is also pertinent to note that after the settlement of issues in O.P.No.344 of 2001, the respondent had withdrawn from the prosecution against the petitioner. 9. It is the case of the petitioner that in the year 2004, the respondent went away from the matrimonial home and took a rented quarters at the instance of her father and resided there. It is also alleged that the education of the children was also transferred to a school near the rented quarters and thereafter, she trespassed into the matrimonial home in the year 2004 itself when she came to know that the petitioner was going to sell the matrimonial home. But, no evidence had been adduced to show the shifting of the residence to the rented quarters or the shifting of the education of the children to a school near to the rented house, as deposed by the petitioner in his evidence. Had the said allegation been true, she could have put forward the said demand of separate residence in the conciliation talk Mat.Appeal No. 296 of 2005 **==> picture [27 x 9] intentionally omitted <==** before resuming cohabitation with the petitioner consequent to a settlement talk in connection with the restitution of conjugal right. If actually, the respondent wanted a separate house away from the family house, certainly she would have insisted for the same at the time of settlement as a condition. Therefore, in the absence of evidence to the contrary, it could be reasonably presumed that the respondent has not left the matrimonial home and thereafter, trespassed into the matrimonial home after the temporary stay in a rented quarters. So, it cannot be presumed that the respondent was reluctant to cohabit with the petitioner. The petitioner has pleaded that due to physical and mental stress, to which the petitioner was put, he could not do any kind of job and he fell into debt and thereby, he was constrained to sell his residential property to his brother in the year 2004. But, the alleged sale in favour of his brother is not proved by any kind of evidence, except the oral assertion of the petitioner in pleadings and evidence. It is also contended that once he was assaulted by the Mat.Appeal No. 296 of 2005 **==> picture [27 x 9] intentionally omitted <==** respondent and he was admitted in a hospital for the injury sustained, but, no evidence was forthcoming to substantiate the alleged incident. Similarly, though he contended that the respondent refused to serve food to the petitioner and when she gets angry, she used to throw whatever be the house hold articles to others. But, nobody was examined to prove the said overt act caused by the sudden provocation or angry or lose temperament shown by the respondent. We are of the opinion that had it been proved, he could have examined any of his family members to substantiate the unnatural and irrational behaviour of the respondent towards him or his mother or any of the family members. On an overall appreciation of the instances of cruelty pleaded in the petition as well as spoken to by the petitioner in the witness box, we are of the opinion that even if the said allegations are taken on its face value, the same can be treated as irritation or lose temperament or wear and tear of family life. Such incidents are not sufficient to arrive at a finding that the said incident caused reasonable Mat.Appeal No. 296 of 2005 **==> picture [27 x 9] intentionally omitted <==** apprehension in the mind of the petitioner that it was not safe for him to live along with the respondent or his life along with the respondent was dangerous or harmful to him. The above finding is supported by **Parveen Mehta** v. the decision of the Apex Court in **Indrajeet Mehta** [2002(5) SCC 706]. These allegations of cruelty against the respondent have to be considered in view of the fact that he himself deserted his wife and children in the year 2004 and thereafter, he has not inquired about their welfare so far. Similarly, the alleged sale in favour of his brother cannot be believed as a bona fide one in the absence of sufficient evidence to prove the financial difficulty for which he was constrained to sell the residential property. Had it been a bona fide sale with consideration, certainly he could have produced the copy of the sale deed in evidence. In short, the petitioner miserably failed to prove the allegations of cruelty by any kind of corroborative or supportive evidence. In the decision in Mat.Appeal No. 296 of 2005 :-15-: v. **Venugopalan.A.K. C.M.Pushpavally** [2010 (2)KHC 716 (DB)], this Court held that the person alleging cruelty should plead and establish cruelty either physical or mental to get a decree of divorce under Section 13(1)(ia) of the Act. 10. We find that there is no illegality or impropriety in any of the findings whereby the court below rejected the petitioner's prayer for dissolution of marriage and there is no perversity in the appreciation of evidence from which those findings have been arrived at. Hence, this appeal is devoid of merit and the same is dismissed accordingly. 11. Learned counsel for the petitioner submitted that an out of court settlement talk is going on and both parties intend to file a petition under 13B of the Act for dissolution of marriage on mutual consent. It is made clear that this order will not stand in the way of Mat.Appeal No. 296 of 2005 :-16-: the disposal of such a petition for dissolution of marriage in accordance with law. MBS/ **V.K.MOHANAN, Judge K.HARILAL , Judge.** Mat.Appeal No. 296 of 2005 :-17-: