Ganga Ranjanan v. K.P. Ranjanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 MAT.APPEAL NO. 1064 OF 2018** **AGAINST THE JUDGMENT AND DECREE DATED 28.07.2018 IN O.P.NO.646 OF 2013 OF THE FAMILY COURT, KANNUR** ## **APPELLANT/RESPONDENT:** **GANGA RANJANAN AGED 51 YEARS, D/O GOVINDAN, SARIGA,CHELORA AMSOM AND DESOM, P.O VARAM, KANNUR-670594.** **BY ADVS. K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI SRI.PRAJIT RATNAKARAN** ## **RESPONDENT/PETITIONER:** **K.P.RANJANAN AGED 59 YEARS, S/O LATE P.P.KUNHIKANNAN, SARIGA, CHELORA AMSOM AND DESOM, P.O VARAM, KANNUR - 670594.** **BY ADV SRI.M.SASINDRAN** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 25.10.2022, THE COURT ON 03.11.2022 DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.1064 of 2018 ## **JUDGMENT** ## Ajithkumar, J. This is an appeal filed under Section 19(1) of the Family Courts Act, 1984. The appellant was the respondent in O.P.No.646 of 2013 on the file of the Family Court, Kannur. The respondent filed the original petition for a decree of dissolution of marriage under Sections 13(1)(ia), (ib) and 13(1)(iii) of the Hindu Marriage Act, 1965. The O.P. was allowed and marriage between the appellant and respondent was dissolved under Section 13(1)(a) of the Hindu Marriage Act with effect from 28.07.2018, the date of that judgment. The appellant assails that judgment in this appeal. 2. After condoning the delay in filing the appeal, this court admitted the appeal to file on 24.01.2022. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 4. The facts constituting the ground of cruelty for divorce alone require mention since the relief claimed by the 3 Mat.Appeal No.1064 of 2018 respondent on other grounds was declined by the Family Court. The marriage was solemnised on 17.02.1991. The appellant and the respondent were residing at the house of the respondent. They have a son. It is alleged that for the last more than 20 years, the appellant treated the respondent with cruelty. His affairs were not looked after by the appellant. She did not oblige to the directions of the respondent and also his wishes. She never was loyal. The appellant did not show any interest in looking after the affairs of the aged mother of the respondent. She went for employment outside the State and abroad, without even informing the respondent. She attributed totally untrue allegations regarding his fidelity. Her temperament was so rude and incoherent, resulting in total incompatibility between them. The marriage has physically and emotionally come to an end. 5. The appellant resisted the original petition by filing a counter. She has also filed a counter-claim seeking a decree of divorce on the ground of cruelty, a declaration of ownership over the property in the name of the respondent and also 4 Mat.Appeal No.1064 of 2018 permanent alimony. She later gave up all such reliefs. However, she resisted the claim for divorce. She has stated so many instances, which really made her life miserable. It is her contention that at no point of time the respondent allowed her or her son to live peacefully. He wanted to even abort her pregnancy. Many a time she was physically tortured and manhandled. The respondent is portrayed as a shorttempered man and irresponsible in any of the matters of the appellant or their son, and a man too difficult to be lived along with. A specific instance of assault is pleaded that on 14.10.2014, the respondent kicked with a lever and stabbed using a knife resulting in her injury. She had to file a complaint before the police and, upon which a crime was registered and ultimately the respondent was charged. She has been thus physically and emotionally tortured by the respondent. Accordingly, she contended that it was the respondent who meted out cruelty and that he is not entitled to get a decree of divorce. 5 Mat.Appeal No.1064 of 2018 6. The respondent filed a rejoinder where he has set forth a few more allegations against the appellant. The Family Court examined PW1 and marked Exts.A1 to A3 on the side of the respondent. RWs.1 to 3 were examined and Exts.B1 to B4 were marked on the side of the appellant. The Family Court, after considering the evidence on record, found that the acts and deeds of the appellant amounted to cruelty giving sufficient cause for the respondent to claim a divorce. 7. The learned counsel appearing for the appellant would submit that the evidence tendered by the respondent is not enough to grant a decree of divorce. Moreover, both the appellant and the respondent are residing under the same roof even now, although they are not in good terms. In such circumstances, the impugned decree is sought to be set aside. 8. The learned counsel appearing for the respondent, on the other hand, would submit that the behaviour and treatment of the appellant for the last more than 20 years were such that the respondent was put to unbearable tormentation and stress, so that it is unable for him by to go 6 Mat.Appeal No.1064 of 2018 forward with the marriage. So many instances have been stated to by PW1, the respondent, including baseless allegations levelled against him that he had illicit relationship with other women. The version of RW1, the appellant, that she would not have married the respondent, had she known that she had to live in the family house of the respondent along with his mother, sister and other near relatives. She alleged that all such relatives have been depending for the livelihood on the respondent and that was not acceptable to her. 9. In order to grant a decree of dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, it has to be proved that the spouse claiming divorce has been treated with cruelty by the other spouse. Section 13(1)(ia) of - the Hindu Marriage Act reads, “(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- xx xx xx (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or” 7 Mat.Appeal No.1064 of 2018 10. The cruelty can be either physical or mental or both. Only if the allegation of cruelty is established, the court has jurisdiction to invoke the said provision to order dissolution of the marriage. The question then is, what shall be the standard of proof. ## 11. In **Dr.N.G.Dastane v. Mrs.S.Dastane [AIR 1975** **SC 1534],** the three-Judge Bench of the Apex Court considered as to what standard of proof has to be insisted while appreciating the evidence in support of a plea for dissolution of marriage or for a judicial separation. It was held,- “25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.” 8 Mat.Appeal No.1064 of 2018 12. The Apex Court proceeded to hold that the proceedings under the Act are essentially of civil nature and therefore the word 'satisfied' used in Section 23 must be understood as “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt”. The Apex Court also explained when can it be said that the fact is proved by preponderance of probabilities as follows:- “The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second.” 13. In the light of the law laid down by the Apex Court, what is required is to consider whether on a comparative analysis of the evidence let in by the respective parties the 9 Mat.Appeal No.1064 of 2018 allegation of cruelty has been established by preponderance of probabilities. 14. The Family Court held that the insistence of the appellant to have separate residence amounted to cruelty, for which the learned counsel for the appellant placed reliance in **Narendra v. K.Meena [(2016) 9 SCC 455]** , where the Apex Court held that if the wife wanted the husband to get separated from his family and continuous and persistent insistence for the same thereby disabling the husband from discharging his obligations to his parents and others amounted to cruelty towards the husband. On going through the evidence of PW1 and RW1, it is quite clear that there has been continuous insistence from the part of the appellant for setting up independent residence. When the respondent wanted to help his mother and other near relatives and the appellant resisted the same, that would cause some sort of stress on him. Of course, it is the obligation of the husband to maintain and look after the affairs of his wife and children, but at the same time, his obligation towards his parents and 10 Mat.Appeal No.1064 of 2018 siblings cannot be totally ignored. When the respondent says that such an approach of the appellant was intolerable to him, the same would amount to torture, creating discord in the marital relationship. In that view of the matter, the finding of the Family Court in this respect cannot be said to be incorrect. 15. RW1 admitted that in her view the respondent was having illicit relationships with other ladies, especially foreigners and that she was used to raise that issue with him. The respondent was working in the Merchant Navy, and used to go abroad. RW1 deposed so not on the basis of her direct or personal information. Her claim is that the respondent himself used to tell her like that. But the respondent denied. When the allegations are raised regarding fidelity of a person, it should be based on materials. Raising totally baseless allegations of extra-marital relationships against a spouse definitely amounts to cruelty. In this regard, the principle laid down by the Apex Court in **Vijay Kumar Ramachandra Bhate v. Neela Vijayakumar Bhate [(2003) 6 SCC 334]** and **Sreenivas Rao K. v. D.A.Deepa [(2013) 5 SCC 226]** 11 Mat.Appeal No.1064 of 2018 was relied on by the respondent. It was held that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the other spouse. In the light of the evidence that came on record, it cannot be said that the findings of the Family Court in this regard is in any way unfounded or incorrect. 16. The appellant also levels several allegations against the respondent of cruelty perpetrated against her. Of course, she had withdrawn the claim for divorce based on such allegations. Her evidence, however, would point to the fact that the respondent did not treat her with love and warmth, which is expected from a husband. There was no mutual respect or understanding. Both of them were moving forward with their independent decisions with the result there were total misgivings and misunderstandings in their marital life. When both of them state that the marital tie came to a state of physical and emotional snap and they could not go forward 12 Mat.Appeal No.1064 of 2018 as husband and wife, the reason for which is proved to be the cruel treatment to each other, it is appropriate and legal to separate the marriage on the ground of cruelty. 17. In such circumstances, we are of the view that the decree granted by the Family Court dissolving the marriage between the appellant and respondent is not liable to be interfered with. The appeal therefore fails. Accordingly, the appeal is dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr