B.K. Ramakrishnan v. K. Geethadevi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** **Mat.Appeal.No.755 OF 2014** **AGAINST THE JUDGMENT DATED 11-02-2014 IN OP 32/2013 OF FAMILY COURT, OTTAPPALAM** ## **APPELLANT/PETITIONER :** **B.K. RAMAKRISHNAN, AGED 62, S/O. B.K. RAMAN, SREEDEEPAM HOUSE, KADAMBAZHIPPURAM POST, OTTAPPALAM TALUK, PALAKKAD.** **BY ADV. SRI.LIJU. M.P** ## **RESPONDENT/RESPONDENT :** **K. GEETHADEVI AGED 48, W/O B.K. RAMAKRISHNAN, C/O. K.R. SAJEEV, KOORIKKATTIL HOUSE, OPP. KANTHALLOOR TEMPLE, VELLINEZHI POST, OTTAPPALAM, PALAKKAD.** **R1 BY ADV. SRI.K.RAVI (PARIYARATH)** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal.No.755 OF 2014 2 ## _**JUDGMENT**_ ## _**Harilal, J**_ This appeal has been filed challenging the judgment and decree dismissing O.P.No.32/2013 passed by the Family Court, Ottapalam. The appellant herein is the husband of the respondent. He filed the aforesaid original petition under Section 13(1)(ia) of the Hindu Marriage Act, seeking a decree for dissolution of marriage between the appellant and the respondent on the ground of cruelty. The respondent herein denied the allegations in the original petition and resisted the suit. After considering the evidence on record, the family court dismissed the suit on a finding that the appellant miserably failed to prove the allegations Mat.Appeal.No.755 OF 2014 3 in the original petition that the respondent has treated him with cruelty. The legality and correctness of the aforesaid findings are challenged in this appeal. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent. 3. The point to be considered in this appeal is whether the appellant has succeeded in proving that the respondent has treated him with cruelty. The averments in the original petition can be summarised as follows. The marriage between the appellant and the respondent was solemnized on 10.06.1984 and a child was born to them in the wedlock on 23.12.1987. After the birth of the child differences of opinion arose and the relationship between them have become Mat.Appeal.No.755 OF 2014 4 strained. The respondent changed a lot and she began to neglect the appellant and she has maintained unholy relationship with several male friends and she used to call them in the night also. She has received 5606 filthy messages in her phone within a period of one year and she has sent 4729 messages to them in the same manner. On 10.05.2010 at about 9.45 p.m. the respondent attacked the appellant with a broken piece of wooden stool and thereby he had sustained serious injuries. He was taken to the hospital and treated as an inpatient for three days. On various occasions the respondent threatened that she will commit suicide and she denied sex to him. 4. The respondent filed a counter statement denying the aforesaid allegations and according Mat.Appeal.No.755 OF 2014 5 to her the appellant has treated her with cruelty. The respondent made serious allegations of cruelty against the appellant. According to her, the appellant is always doubtful even about her sincere and sacred relationship with her colleagues and he misunderstood the nature of friendship and quarrelled with her using filthy languages. The appellant and the respondent have purchased two houses mainly using the money of the respondent. On 10.05.2010 while the respondent was talking with her son over mobile phone, the petitioner attacked her brutally using broken piece of a wooden stool and she was hospitalised as an inpatient and treated for the injuries sustained in the said attack. When his act of cruelty became intolerable, she had Mat.Appeal.No.755 OF 2014 6 obtained a residential order from the Judicial First Class Magistrate Court, Ottapalam under the Domestic Violence Act. But he has violated the said order. It is further stated that the appellant had demanded more dowry and share from the respondent's family and on that demand he brutally attacked her on so many occasions. Because of the cruelty of the appellant, the respondent was compelled to go to her ancestral house at Vellinezhi. 5. Going to the appellant's pleadings, we find that he has made certain specific incidents to prove his allegation that, the respondent both physically and mentally treated him with cruelty. The cruelty is not defined in the Act; but in _**Samar Ghosh v. Jaya Ghosh**_ **[2007 (2) KHC 231]** the Mat.Appeal.No.755 OF 2014 7 Supreme Court held that no uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. The Supreme Court has narrated certain incidents of cruelty as follows. “Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused Mat.Appeal.No.755 OF 2014 8 by the conduct of other for a long time may lead to mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of an the resultant danger or apprehension must be very grave, substantial and weighty. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. Mat.Appeal.No.755 OF 2014 9 The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty”. 6. In view of the proposition held above, by the Supreme Court, we have examined the behaviour of the respondent herein. The appellant has filed a proof affidavit narrating the said pleadings. But he could not withstand in the cross examination. No evidence has been adduced to substantiate his allegations of cruelty alleged against the respondent, except his oral testimony. He could not succeed in proving that the respondent had Mat.Appeal.No.755 OF 2014 10 maintained unhealthy relationship with several male friends. It is true that if he succeeded in proving so, certainly it would amount to cruelty to him. Though he contended that the respondent received 5606 filthy messages in her phone, within a period of one year and she had sent 4729 like messages to them, no documentary evidence was adduced to prove the said communication between the respondent and those persons. If he was convinced of all such unholy alliance, certainly he could have disclosed at least the name of some persons, who sent messages to the respondent or the persons to whom the respondent had sent messages. It is pertinent to note that no particulars in respect of those persons are disclosed in the pleadings. Mat.Appeal.No.755 OF 2014 11 Therefore, such allegation can be said to be vague and evasive allegations only. He could have taken steps through court for the production of the call list of the respondent in her mobile phone from the service providers of her telephone. The absence of evidence in this respect is fatal to his allegation that the respondent had maintained unholy friendship with the male friends. It can be concluded that the said allegation is a bald and unfounded allegation. 7. The next allegation is that on 10.05.2010 at about 9.45 p.m. he was brutally attacked by the respondent by a broken piece of wooden stool. Did he succeeded in proving this allegation? It is true that PW2, the doctor, who treated him, was Mat.Appeal.No.755 OF 2014 12 examined and Exts.X1 to X2 series of treatment records were marked. But, those records would show that the respondent also was seriously injured on that assault, which happened on 10.05.2010. PW2 the doctor has deposed that both of them were taken to the hospital and he treated them. Both appellant and respondent made complaints before the Police alleging physical attack against each other. What is discernible from Ext.X1 to X2 series of treatment records is that both of them attacked each other with a wooden piece. Who was the aggressor in the attack? How the injuries sustained? No evidence was adduced to prove that the respondent was the aggressor in the said assault. So even if the evidence of PW2 and Exts.X1 to X2 Mat.Appeal.No.755 OF 2014 13 series of treatment records are admitted in its entirety, it cannot be held that the respondent was the aggressor of that assault and she caused injuries on the body of the appellant, by attacking with a wooden piece of stool, as alleged by the appellant. 8. As regards the denial of sex, it is admitted that the petitioner is the father of the son born to the respondent in their wedlock. If she subsequently denied sex, he could have proved the same by resorting to medical evidence. Denial of sex would amount to cruelty, only if it is willful and caused by lack of love and affection towards the other spouse. In the instant case, no evidence was adduced in this respect also. Thus, the appellant has failed to prove the denial of sex Mat.Appeal.No.755 OF 2014 14 with preponderance of probability, through foolproof direct evidence is not possible. 9. On the other hand, it has come out in evidence that in order to escape from the cruelty meted out to the respondent, she had obtained Exts.B1 and B2 residential orders under the Domestic Violence Act from the Judicial First Class Magistrate Court, Ottapalam and now she is living under the protection of that order. It could be reasonably presumed that the magistrate court concerned has examined the allegation of cruelty against the respondent and granted protection to the respondent from the attack of the appellant herein. 10. In short, none of the allegations of cruelty is seen proved. So the family court is justified in Mat.Appeal.No.755 OF 2014 15 dismissing the original petition. There is no illegality or impropriety in any of the findings whereby the family court passed the impugned judgment, dismissing the original petition. Hence this appeal would stand dismissed. **Sd/- K.HARILAL, JUDGE** **sd/- A.M.BABU, JUDGE** AMV/01/10/2019