Bhavisha.K v. Rajesh M

Mat. Appeal No.778 of 2014 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** **Mat.Appeal.No.778 OF 2014 (F)** **AGAINST THE JUDGMENT DATED 09-04-2014 IN OP No.318/2012 OF FAMILY COURT, THALASSERY** ## **APPELLANT/RESPONDENT:** **BHAVISHA.K, AGED 28 YEARS, D/o KUNHIKANNAN, KOROTH HOUSE, NEAR KODIYERI VAYANASALA, EDAYIL PEEDIKA P.O., KODIYERI, THALASSERY TALUK.** **BY ADV. SRI.R.SURENDRAN** ## **RESPONDENT/PETITIONER:** **RAJESH M, AGED 39 YEARS, S/o P.K.PAITHAL NAIR, AMMA, SKBS ROAD, MAHE, P.O.MAHE, PONDICHERRY STATE, PIN-673310.** **R1 BY ADV. SRI.K.A.ANAS R1 BY ADV. SRI.P.N.SUKUMARAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23-10-2019. THE COURT ON 23-10-2019 DELIVERED THE FOLLOWING:** Mat. Appeal No.778 of 2014 2 ## **JUDGMENT** ## **K. Harilal, J** The appellant herein is the wife of the respondent herein and the respondent filed O.P.No.318/2012 before the Family Court seeking a decree for dissolution of marriage between the appellant and the respondent under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. The aforesaid original petition was filed on the ground that the appellant treated the respondent with cruelty. The marriage between the petitioner and the respondent was solemnized on 21.05.2009 and a child was born to them in the said wedlock. According to the respondent, the approach and conduct of the appellant was too strange and unheard. She threatened and abused the respondent in front of his friends and relatives. The respondent was brought up by his grandmother aged 85 years, as his mother died, when he was very young. But, the appellant treated the Mat. Appeal No.778 of 2014 3 grandmother with cruelty. The appellant called the respondent as a 'dog' and 'shameless creature' in public. The appellant had denied normal matrimonial pleasure and enjoyment of sex. The cumulative behavior of the appellant created mental tension, worries and agony and it caused development of cracks in the matrimonial relationship. The appellant filed a criminal complaint against the respondent, his aged grandmother and uncle for the offences punishable under Sections 380 and 498A of the Indian Penal Code. She neglected and deserted the respondent in the year 2012. Thus the marital tie has been irretrievably broken. 2. The appellant denied the allegations levelled against her and contended that the respondent treated her with cruelty. She admitted that she had preferred a criminal complaint against the respondent under Sections 380 and 498A of the Indian Penal Code. Similarly, she admitted that she had made an allegation that the respondent has Mat. Appeal No.778 of 2014 4 stolen her gold ornaments weighing 40 sovereigns. According to her, the grandmother is the main person behind all the mischievous action of the respondent. The respondent is a villain and he has some illicit connection with a lady who is working under him. With the aforesaid contention, she prayed for dismissal of the original petition. 3. On the rival pleadings, both parties adduced evidence, which consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A6 from the part of the respondent and the oral testimony of the appellant as RW1 and Exts.A1 and A2 from the part of the appellant. After considering the aforesaid evidence, the Family Court allowed the original petition by dissolving the marriage between the appellant and the respondent. The reasonings, whereby the Family Court dissolved the marriage, are challenged in this appeal. 4. Heard the learned counsel for the appellant Mat. Appeal No.778 of 2014 5 and the learned counsel for the respondent. 5. The learned counsel for the appellant mainly focused his argument on two grounds. According to him, the Family Court went wrong by placing reliance on Exts.A4 to A6 which were filed before the Magistrate Court after the institution of the original petition. Secondly it is contended that the pleadings were not sufficient as the same lack the particulars of the facts pleaded. According to him, the dates on which or the places where the alleged incidents happened were not specifically pleaded in the original petition. **==> picture [432 x 12] intentionally omitted <==** respondent advanced arguments to justify the findings whereby the Family Court granted the decree dissolving the marriage between the appellant and the respondent. 7. In view of the arguments at the bar, the points to be considered in this appeal are as follows: 6 Mat. Appeal No.778 of 2014 1) Whether the pleadings are sufficient enough to disclose the cruelty alleged against the appellant herein. 2) Whether there is any illegality or impropriety in the findings whereby the Family Court relied on Exts.A4 to A6. 3) Whether the respondent has succeeded in proving that the appellant has treated him and his grandmother with cruelty. 8. We have meticulously gone through the pleadings. It is true that the date on which the alleged incidents happened is not specifically pleaded. But as regards the place of occurrence, all the allegations are in respect of the usual general behavior of the appellant towards the respondent and his grandmother, which happened while they were living together in the same house. According to the respondent, the general behaviour of the appellant was too strange and unheard from the very beginning and she treated his grandmother, Mat. Appeal No.778 of 2014 7 aged 85 years, with cruelty. What is inferable from paragraphs 3 to 8 of the original petition is that the usual general behaviour of the appellant was with cruelty towards the respondent and his grandmother. Going by the counter statement, we find that the appellant herself admitted in her counter statement that the 85 years old grandmother is the person behind all the menace in the house. In the above view, the cumulative inference that can be drawn from the entire pleadings is that the general behaviour of the appellant towards the respondent and the old aged grandmother, while they were living under the same roof, was cruel as well as intolerable. Therefore, it cannot be said that the lack of dates is fatal to the pleadings; particularly when he has well explained the same in cross examination. Coming to the questions 2 and 3 together, in the counter statement in paragraph 5, the appellant has specifically stated that the respondent is a villain and he has some illicit connection with a lady who is working under him. Mat. Appeal No.778 of 2014 8 According to Order 6 Rule 1, pleadings means and include plaint or written statement. Therefore the allegation in the counter statement against the respondent also can be taken into consideration while considering the act of cruelty. When she was cross examined in evidence, she could not reveal the identity of the lady with whom the respondent has illicit relationship. She has not made any enquiry to understand the name of lady with whom the respondent has illicit relationship. When she was cross examined as to the sources from which she got the information, she could not say the person from whom she got the information about the illicit relationship of the respondent. She evasively stated that the passengers passing through the road said so. It is trite law that unfounded false allegations against the husband affecting his character and dignity would amount to cruelty. “The wife could be guilty for making false or wild allegations against the husband, which amounts to cruelty”. The above view is supported by the Mat. Appeal No.778 of 2014 9 decision of this Court in **2008 (2) KHC 580 ( Latha Kunjamma S.v. K.Anilkumar)** . 9. Going by the cross examination of PW1, we find that the respondent withstood the cross examination by giving the particulars of the cruel behaviour of the appellant towards him and the grandmother. As regards the relevancy of Exts.A4 to A6, the appellant herself admitted in paragraph 6 of her counter statement that she had preferred a complaint before Mahe Police Station against the respondent and his old aged grandmother and uncle alleging offences under Sections 380, 498A and 323 read with 34 IPC and an FIR was registered against the respondent, his grandmother and uncle for the said offences. But Ext.A5 refer report shows that after the investigation the police filed a refer report absolving the grandmother and the uncle from the said offence. Therefore Exts.A4 to A6 can be treated as evidence, in support of the pleadings of the appellant herself. When the appellant herself Mat. Appeal No.778 of 2014 10 specifically pleaded the filing of complaint before the Judicial First Class Magistrate Court, Thalassery and the registration of FIR by the Mahe Police Station thereon, the Family Court is justified in relying on Exts.A4 to A6. That apart, we further find that Exts.A4 to A6 stand undisputed. In that count also, we do not find fault with the court below in placing reliance on Exts.A4 to A6. 10. Going by paragraph 11 of the impugned judgment, we find that the Family Court has considered the cumulative effect of the general behaviour of the appellant towards the respondent, his old aged grandmother and uncle and arrived at a finding that the appellant has treated them with cruelty. It is not disputed that the appellant and respondent are residing separately from 2012 onwards. In **Samar Ghosh v. Jaya Ghosh [2007 (2) KHC** **231]** the Supreme Court held thus: “the feeling of deep anguish, disappointment, frustration in one Mat. Appeal No.778 of 2014 11 spouse caused by the conduct of the other for a long time may lead to mental cruelty”. When applying the aforesaid proposition in the instant case, the evidence on record would show that the behaviour of the appellant towards the respondent, his 85 year old grandmother and very old uncle, for a long time caused feeling of deep anguish, disappointment and frustration in the mind of the respondent and his close family members. Further, in **2007 (4) SCC 511 ( Samar Ghosh v.** **Jaya Ghosh)** , the Supreme Court had again held thus: “Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” In the Mat. Appeal No.778 of 2014 12 instant case, they fell apart in the year 2012. They lived together from 2009 to 2012 only. The fact that the appellant also raised allegations of misbehaviour and ill treatment against the respondent stands without proof. So, we feel that the refusal to sever marital tie will not serve the sanctity of marriage and on the contrary, it may amount to scant regard for the feelings and emotions of the parties. In the above view also, we find that there is no reason to interfere with the impugned judgment. Hence this appeal is dismissed. ## **Sd/-** ## **K.HARILAL** ## **JUDGE** **Sd/-** **P.SOMARAJAN** DMR/- **JUDGE**