Biju P John v. Priya Syriac

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN MONDAY, THE 27TH DAY OF MARCH 2017/6TH CHAITHRA, 1939 Mat.Appeal.No. 73 of 2013 () ----------------------------- AGAINST THE JUDGMENT IN OP 29/2010 of FAMILY COURT, KOTTAYAM DATED 14-11-2012 APPELLANT/PETITIONER: -------------------- BIJU P JOHN RESIDING AT PUSHPA KATHU HOUSE, ETTUMANOOR VILLAGE ETTUMANOOR, KOTTAYAM. BY ADV. SMT.P.K.RADHIKA RESPONDENT/RESPONDENT: --------------------- PRIYA SYRIAC RESIDING AT MATTAPPALLIL HOUSE, KIDNANGOOR VILLAGE R1 BY ADV. SRI.BINOY VASUDEVAN R1 BY ADV. SMT.P.G.BABITHA THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE, J & K.RAMAKRISHNAN, J** ## *** * * * * * * * * * * * * *** Mat.Appeal No.73 of 2013 ---------------------------------------Dated this the 27[th] day of March 2017 ## **J U D G M E N T** ## **Shaffique, J** The appeal is filed by the petitioner in O.P.No.29/2010 of the Family Court, Kottayam by which original petition came to be dismissed. The original petition is filed by the petitioner seeking for divorce on the ground of cruelty and contending that there is no chance for re-union as the marriage was irretrievably broken. 2. The short facts involved in the original petition reads as under: The marriage was solemnised between the parties on 26/01/2005 as per Christian rites and ceremonies. Immediately after marriage, he had to go to Abu Dhabi for his employment. It is alleged that immediately after marriage, she was behaving indifferently and was not showing any love and affection as is expected from a wife and she was reluctant to have a child at the earlier stage of marriage. It is alleged that the respondent and their parents had represented that she was working as a staff Mat.Appeal No.73/2013 2 Nurse at Dehra Dun and for a short period at Kottayam. It was also mentioned that she had a U.K registration to work as a Nurse in U.K. It is stated that consent for marriage was obtained by stating that she was qualified. According to him, on verification of her certificates, it was noticed that her qualification was not sufficient enough to get decent employment at Abu Dhabi. After the petitioner had gone back to Abu Dhabi, it is alleged that the respondent started to pick up quarrels with the parents. She always complained to the petitioner about his parents and was behaving in an indifferent manner which has caused mental pain and suffering to the petitioner. While he was at Abu dhabi, he was informed that she was pregnant and she called him a cheat for being responsible for the same. After a few weeks he was informed that the pregnancy got aborted. It is stated that she was in the practice of leaving the matrimonial home without his knowledge or consent nor that of his parents and used to come back as and when she likes and she was not interested in giving any explanation to the same and started quarreling with his parents. The respondent joined the petitioner at Abu Dhabi on 15/12/2006. It is alleged that, in the presence of his friends and Mat.Appeal No.73/2013 3 other persons, she started talking in an insulting manner as if she did not care for anybody. She started making accusations about the parents of the petitioner. On the second day, she got violent and shouted at the petitioner and alleged that she can put him and his parents behind bars. According to the petitioner, the conduct of the respondent became worse and was unbecoming of a wife and he was being insulted, she does not recognise him in any manner and was not interested to give him food and drink. She used to pick up quarrels on flimsy grounds and some times refused to take food and drink causing sufferings to the petitioner. She attended certain interviews, but she did not get employment and when she was asked to attend a course in order to qualify for a decent employment, she was not ready to do so. She even threatened that she will commit suicide. On 01/12/2007, they returned back to the petitioner's house at Ettumanoor and on the very next day she voluntarily left to her house stating that she does not like to come back and live with the petitioner. He went back to Abu Dhabi on 26/12/2007. He tried to contact her over telephone but she was not ready to talk to him. All his attempts to have a re-union failed. It is stated that the respondent had Mat.Appeal No.73/2013 4 deserted him for more than two years immediately preceding the presentation of the petition. 3. Respondent filed objection wherein she denied the allegations. She further contended that she had not behaved in the manner as projected by the petitioner and there was no suppression of her qualification in any manner. According to her, the abortion was a natural one and it was not on account of any deliberate act on her part. According to her, they were living happily. The allegation of harassing the petitioner and his parents were absolutely baseless. She alleges that the petitioner was showing an indifferent attitude towards her. He usually asked the respondent to go home but she insisted that he should accompany her. It is stated that, after they reached Kerala on 30/11/2012, the respondent had gone to her parental house and she was taken back by the petitioner on the next day itself. There were some issues for which there was a compromise talk but the petitioner was not willing to accommodate her. Therefore she had to leave her matrimonial home. It is stated that they stayed together till 26/12/2007 on which day he returned to Abu Dhabi. It is further alleged that in December 2008, she was called by Mat.Appeal No.73/2013 5 Adv.Sibi Vettoor, to have a compromise in the form of divorce, for which, she was not agreeable. She submitted that she was ready and willing to go with the petitioner. 4. Petitioner gave oral evidence through PWs 1 and 2. PW1 is the petitioner himself and PW2 is his uncle. They relied upon Ext.A1 which is the marriage certificate. The respondents relied upon RW1 and relied upon Exts.B1 to B9. The Family Court found that there is no evidence of either cruelty or desertion and hence dismissed the original petition. 5. While impugning the above judgment, the learned counsel for the appellant contended that there is enough evidence to prove cruelty as well as desertion which was not properly appreciated by the Family Court. Therefore, a reappreciation of the evidence is required in order to prove the aforesaid facts. It is submitted that the evidence of PWs 1 and 2 clearly indicate a case in which it has become intolerable for the petitioner to suffer any longer and living together with the respondent has become virtually impossible. Such situations also amounts to mental cruelty as held by the Apex Court in **G.V.N.Kameswara Rao v. G.Jabilly** _[(2002) 2 SCC 296]_ . 6 Mat.Appeal No.73/2013 Learned counsel also relied upon the judgment of this Court in **A.Husband v. B.Wife** _[2010(4) KHC 435]_ wherein this Court held that while considering the allegation of cruelty and the degree of proof required, the Court expected to adopt standards of a prudent person. Yet another judgment relied upon is **Narayan Ganesh Dastane v. Sucheta Narayan Dastane** _[1975 (2) SCC 326]_ in order to contend that the enquiry to be conducted in such matters as to whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it would be harmful or injurious for him to live with the respondent. It is also submitted that even if there is lack of evidence for proving cruelty, case of desertion had to be clearly made out which is pleaded and necessary evidence had been adduced in the matter. 6. On the other hand, learned counsel for the respondent supported the view taken by the Family Court and contended that a re-appreciation of the facts and evidence in the case is not required especially when the Family Court had considered the entire evidence and arrived at a proper finding. Mat.Appeal No.73/2013 7 7. On the basis of the aforesaid contentions, the question to be considered is whether there was enough evidence to grant a decree for divorce. PW1 is the petitioner. He had filed a proof affidavit making the very same allegations in the petition. PW2 is the uncle of the petitioner. In his affidavit in chief in lieu of crossexamination, he stated that there had been disputes between the couple and they were living separately. It is stated that after they returned to India, on the next day, she had gone from the matrimonial home stating that she does not intend to live with him. He further states that he had gone to the respondent's house along with the petitioner and she stated that she does not want to live with the petitioner and to continue the matrimonial relationship. Thereafter, they did not live together. PW2 is a Sub Inspector of Police and during cross-examination he stated that he was working at Kottayam West Police Station at the time when disputes arose between the couple. Certain questions were put to him suggesting that there were complaints against him before the police complaint authority and his answer was that for the last 29 years, there was no such complaint. He submitted that she was residing with the petitioner till 1/12/2007. He also submits 8 Mat.Appeal No.73/2013 that he had mediated with the couple and he advised them occasionally and he was unable to give the dates. According to him, the reason for their separation is unknown and he has no objection in the respondent living with the petitioner as his wife. In cross-examination, he further stated that the respondent behaved indifferently though he asked them to live together. She said it was impossible and her parents supported the same. 8. RW1 is the respondent. She has spoken to in accordance with her objections. In evidence she said that she returned from abroad on 01/12/2007 and on 2/12/2007, petitioner had taken her to her house. She denied the fact that PWs 1 and 2 had visited her house and requested her to return. 9. In order to grant a decree for divorce on the ground of desertion there should be proof to show that the respondent was deliberately living separately from the petitioner without any intention to come back. PW1's evidence was that she has voluntarily left her matrimonial home and living with her parents which is supported by PW2. In the objection filed by the respondent, she denies having some problem but she complained that the petitioner was behaving indifferently to her. But from the Mat.Appeal No.73/2013 9 evidence of PW2, it is rather clear that there were disputes between the couple and according to him, he tried his level best to ensure that the couple live together. His evidence, if believed, clearly indicates that the respondent was keeping away from the company of the petitioner only on account of her attitude. There is nothing to disbelieve PW2, other than the fact that he is the uncle of the petitioner. His deposition during cross-examination was very categoric and there is no material to discredit him. According to him, he wanted the couple to live together and he has no objection in them living together. But it was on account of the attitude of the respondent that the compromise was not effected. Evidence of PW2 by itself would indicate that the respondent had left the company of the petitioner alteast from 02/12/2007. Yet another important aspect to be considered is that no steps were taken by the respondent for meeting the petitioner or for seeking restitution of conjugal rights for more than two years. The original petition was filed only on 07/01/2010. She was living separately since 02/12/2007. If at all she had any inclination to live with the petitioner, appropriate steps could have been taken by her seeking restitution of Mat.Appeal No.73/2013 10 conjugal rights or any other step in the form of a compromise or mediation to revive the marriage. Other than the testimony of RW1, there is no evidence on the side of the respondent. Even in her affidavit, the allegation is that she had tried to call him several times, but he did not pick up the telephone. Further, a lawyer called during December 2008 and sought for divorce. But the fact remains that no attempt had been made on the side of the respondent or her family members to resolve the dispute between the parties. Under such circumstances, we are of the view that a case of desertion had been made out and desertion had been proved by the petitioner. The Family Court, however, took a view that since she was ready and willing to live with him, case of desertion is not proved. But, the Family Court completely ignored the evidence of PW2 who supports the fact that there was an attempt for compromise which failed on account of the attitude shown by the respondent. 10. Now, coming to the ground of cruelty, as observed by the Family Court, other than the interested testimony of PW1, there is no other evidence. Certain incidents have been narrated stating that he was insulted. But in the absence of any Mat.Appeal No.73/2013 11 independent evidence supporting the contention of the petitioner, it may not be proper for the Family Court to have arrived at such a finding. In the said circumstances, we do not find any infirmity in the finding regarding allegation of cruelty. 11. Having regard to the aforesaid factual situation and the materials relied upon, we are of the view that the judgment of the Family Court is liable to be set aside and the petitioner is entitled for divorce on the ground of desertion. Accordingly, i) This Mat.Appeal is allowed. ii) The judgment in O.P.No.29/2010 of the Family Court at Ettumannor is hereby set aside. iii) O.P.No.29/2010 is allowed. The marriage between the petitioner and the respondent, which was solemnised on 26/01/2005 is hereby dissolved by a decree for divorce. **(A.M.SHAFFIQUE, JUDGE)** **(K.RAMAKRISHNAN, JUDGE)** jsr