E.P. Elias v. T.P. Annamma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 16TH DAY OF NOVEMBER 2017/25TH KARTHIKA, 1939 RPFC.No. 239 of 2006 ( ) ------------------------- AGAINST THE ORDER IN MC 273/2000 of FAMILY COURT,ERNAKULAM DATED 1206-2006 REVISION PETITIONER/RESPONDENT: -------------------------------- E.P.ELIAS, AGED 44 YEARS, S/O.PAULOSE, NEDUNGELIL HOUSE, VATTAPARA,, THIRUMARAYOOR, KAIPPATTOOR P.O. BY ADV. SRI.A.T.ANILKUMAR RESPONDENT(S)/PETITIONER: ------------------------- 1. T.P.ANNAMMA, AGED 42 YEARS, D/O.PATHROSE, THANIKUZHIYIL, PAINUNGALPARA, KANAYANNOOR, THALAKODU P.O. 2. NEETHU ELIAS, AGED 17 YEARS, D/O. E.P.ELIAS,, -DO- -DO- 3. NIKHIL ELIAS, AGED 8½ YEARS, S/O.E.P.ELIAS,, -DO-, -DO-, (SINCE 2ND AND 3RD RESPONDENTS ARE MINORS, THEY, ARE BEING REPRESENTED BY THEIR NATURAL GUARDIAN, MOTHER T.P.ANNAMMA). R.1TO3 BY ADV. SRI.P.JACOB VARGHESE (SR.) R.1TOR3 BY ADV. SRI.VIVEK VARGHESE P.J. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 9-8-2017 ALONG WITH MAT.APPEAL NO.477/2007, THE COURT ON THE 16/11/2017 PASSED THE FOLLOWING: ## **A.M. SHAFFIQUE & K.P.JYOTHINDRANATH, JJ.** ============================== RP(FC) No.239/2006 & Mat.Appeal No.477/2007 ==================== Dated this, the 16[th] day of November, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ RP(FC) No.239/2006 has been filed challenging order dated 12/6/2006 in MC No.273/2000 by which claim for maintenance had been allowed and the petitioner's viz., the wife and children were permitted to recover an amount of `750/- each from the respondent/husband. RP(FC) has been filed by the husband/respondent challenging the quantum of maintenance. Mat.Appeal No.477/07 was filed by the petitioner challenging order dated 10/4/2007 in OP No.916/2001 of the Family Court, Ernakulam. 2. The Original Petition was filed for dissolution of marriage and divorce u/s 10 of the Divorce Act by the husband on the ground of cruelty and desertion. 3. The short facts arising in the case are as under and the parties are referred to as shown in the Original Petition:- RP(FC) No.239/2006 & Mat.Appeal No.477/2007 -:2:- The marriage between the parties was solemnized on 19/10/1986 and since then they had been residing at the petitioner's parental home along with his parents. 4. According to the petitioner, a few days after their marriage, the respondent began to create problems in the house raising allegations against the petitioner on sexual relationship with his own near relatives and also insulted the parents without any reason. The respondent was insistent upon shifting their residence from the parental home and for a peaceful life, both the parties shifted to the property at Perumpilly purchased in their name by the respondent's father and started residing there. 5. The petitioner states that the respondent was not happy even after shifting the house and that she denied physical relationship between the parties except on three occassions. She also never entertained the petitioner visiting his parents nor did she ever invited them over. She once again began to spread scandals about the petitioner. 6. Thereafter, the respondent left to her parental home from the house at Perumpilly in 1989 and the petitioner was restrained from meeting their first born child in the wedlock by RP(FC) No.239/2006 & Mat.Appeal No.477/2007 -:3:- the respondent's father. During that period, she had instituted a complaint against the petitioner raising vexatious claims. She also filed a criminal complaint against him alleging cruelty and also filed a petition MC No.64/1989 seeking maintenance from the petitioner. She had filed an I.O.P. No.138/1989 seeking return of gold ornaments and other amounts. 7. With the help of mediation intervention, matters were settled between the parties and cohabitation was restored at the house at Perumpilly. But the respondent continued to create problems. 8. On 3/1/1992, the petitioner left for Bombay for a period of two and a half years and used to come home once in a month. When the petitioner returned, the respondent had gone back to her parental home again. Once again, mediators intervened and cohabitation between the parties was restored at the petitioner's parental home. During that cohabitation, a boy child was born on 28/5/1996. The post-delivery period of the respondent seemed to be happy but as days passed by, she resumed her earlier attitude and in September, 1996, she returned to her parental home without any cause or reason and RP(FC) No.239/2006 & Mat.Appeal No.477/2007 -:4:- later implicated him in criminal prosecution. 9. On 25/1/1997, the petitioner along with his employer Mr.M.L.Prasad went to the residence of the respondent for negotiation and they were insulted and driven away by the respondent's father. However, on 28/9/1997, the respondent apologised and came to live with the petitioner for a short span and thereafter on 28/12/1997, she created problems and left to her house. Later, on 12/11/1998, she returned to her parental home along with her children and started cruelty against the petitioner's parents. It is stated by the petitioner that on 1/7/1999, the respondent got violent and she poured hot water on petitioner's mother and later she left the house without saying anything. 10. Since then, she has filed various complaints against the petitioner before the Mulanthuruthy Police Station. On negotiating with the police, it was decided that the petitioner would execute a release deed in respect of his half share in the Perumpilly property towards the respondent which he carried out soon after. Later, when police harassment turned unbearable, the petitioner approached this Court for police protection by filing OP RP(FC) No.239/2006 & Mat.Appeal No.477/2007 -:5:- No.28856/2001. Thereafter, with the intent to harass the petitioner, the respondent started connected him to two women named Philomina and Cicily. 11. The petitioner claims that the life with the respondent has been miserable and he prays for an order of divorce. 12. The respondent admits the marriage and the birth of two children in the wedlock. She contends that the petitioner grossly deserted and neglected the respondent and their children. The allegations of mental and physical cruelty in OP No.916/2001 are denied by her and she also denies that she did not encourage physical relationship and she states that the birth of two children would reveal the truth of such a contention. According to her, the petitioner was cruel towards her and that she is ready and willing to discharge her marital obligations. She also states that it was only due to the cruelty and wayward life of the petitioner that she had to file the legal proceedings and the contentions to the contra are false and untenable. She claims that she has not deserted the petitioner and that the truth is otherwise. 13. Before the Family Court, Pws 1 to 4 were examined on the side of petitioner and the respondent examined herself as RP(FC) No.239/2006 & Mat.Appeal No.477/2007 -:6:- RW1. Petitioner relied upon Ext.A1 series. The Family Court dismissed the prayer for dissolution of marriage on the ground of cruelty and desertion. 14. Before this Court, the learned counsel for the appellant submitted that the Court below has not appreciated the oral as well as the documentary evidence adduced by the appellant in his favour. It is contended that from the evidence produced, the grounds of cruelty and desertion can be made out and it can be seen that the marriage is irretrievably broken down. Also, the oral evidence of PW2 and PW4 have not been appreciated as the same clearly show the attitude of the respondent towards the petitioner and his parents. 15. The short question to be considered in this appeal is whether divorce could be granted u/s 10 of the Divorce Act, the relevant portion of which, reads as under:- “ _10. Grounds for dissolution of marriage. (1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent_ RP(FC) No.239/2006 & Mat.Appeal No.477/2007 -:7:- ## _xxxx_ _(ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or_ _(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.”_ In the petition for divorce, the allegations raised were that the respondent created various problems in their matrimonial home by stating that the petitioner was involved with other women including his sisters and neighbours and that the respondent disagreed to have physical relationship with the petitioner. It is also alleged that the respondent denied discharging her marital obligations by deserting the petitioner on several occassions and misbehaving towards the petitioner's parents. Thereafter, upon a mutual agreement through mediation, both the parties have been residing separately since 1999. 16. In _**V. Bhagat v. Mrs.D.Bhagat**_ [(1994) 1 SCC 337], the Apex Court held that merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor does a mere delay in disposal of the divorce proceedings by itself RP(FC) No.239/2006 & Mat.Appeal No.477/2007 -:8:- become a ground. There must be some really extraordinary features to warrant grant of divorce. In a case such as the one on hand, wherein there are allegations made by both the parties of mental and physical cruelty along with desertion, what is required is material evidence to prove the same. The counsel for the petitioner tried to prove the cruelty by relying on the evidence of PW1 to PW4. 17. The petition itself is filed about 15 years after the marriage. Now another 16 years has already elapsed. The children would have become majors as well. PW1 is the petitioner who had spoken in terms with the allegations raised by him. PW2 is the husband of petitioner's sister. He deposed that respondent did not like any one going to their house. It is further stated that it is on account of the respondent's adamant behaviour that they are living separately. PW3 is a person who claims to know both the parties to marriage. He is a friend of petitioner's father. In the chief affidavit he stated that respondent used to create problems for silly reasons. She filed about three cases against the petitioner in 1989 and he had intervened in the matter and the said matters were compromised. He has also stated that the RP(FC) No.239/2006 & Mat.Appeal No.477/2007 -:9:- respondent had come back to the matrimonial home after the compromise. He also stated that the parties have entered into an agreement to live separately. He also stated that it was on account of the adamant behaviour of the respondent that they are living separately. PW4 is the father of the petitioner who also deposed in accordance with the evidence given by the petitioner. 18. RW1 is the respondent. She had given evidence in accordance with the averments in the objection. In cross examination, she stated that they were living separately since 1999. According to her, petitioner is living with a lady by name Cicily and her child. She got the information from the neighbours. On hearing the news, she had gone to their house on 20[th] March, 2003 and she had seen Cicily by herself. Cicily was brought to the house stating that she was a home nurse. She had also given a complaint to the police stating the aforesaid facts. She has also alleged that he was having an extra marital relationship with a lady by name Philomina. The Family Court found that the allegations raised by the respondent regarding the wayward life of the petitioner is somewhat proven by the fact that the petitioner's father had settled some property in favour of Cicily RP(FC) No.239/2006 & Mat.Appeal No.477/2007 -:10:- out of love and affection. Respondent has a case that the petitioner was leading a wayward life, for which there was no evidence. Therefore, it was observed that though imputing allegations of infidelity against the petitioner is also a ground of cruelty, but when the fact is a reality, it may not amount to cruelty. As rightly pointed out by the learned counsel for appellant, this is a case where the marriage has been irretrievably broken. But, in an instance where the cruelty is not specifically pleaded and proved, it may not be possible for this Court to grant divorce on that ground. The Family Court having considered the matter taking into account the evidence adduced, and in the absence of of any perversity in the said finding, we do not think that a different view can be taken in the matter. No satisfactory attempts have been made by the petitioner to prove that there was actual cruelty and desertion by the respondent without sufficient cause. The Court below did not find sufficient material in the evidence to conclude that there was cruelty, both mental and physical and desertion. Moreover, the Court below correctly pointed out that the ground of irretrievable break down of marriage is not recognized by the statute under which this RP(FC) No.239/2006 & Mat.Appeal No.477/2007 -:11:- petition has been filed. Thus no divorce could be granted u/s 10 of the Divorce Act, 1869. 19. Coming to the challenge to the order of maintenance, we are of the view that only nominal amounts had been awarded by the court below and therefore, there is no reason to reduce the maintenance awarded. Even according to the revision petitioner, he is having an income of `8,000/- and therefore payment of `2,250/- is in no way exhorbitant. 20. On an overall consideration of the factual material and after having gone through the evidence on record, we do not find any infirmity in the order of the Family Court in order to interfere with the findings thereon. No grounds had been made out to interfere with the order of the Court below. In the result, Mat.Appeal and RP(FC) are dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.P.JYOTHINDRANATH, JUDGE** Rp //True Copy// PS to Judge