Gigi KuriaKose v. Ligimol Mathew

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939 Mat.Appeal.No. 716 of 2012 AGAINST THE JUDGMENT IN OP 5/2011 of FAMILY COURT, KOTTAYAM DATED 27-08-2012 APPELLANT(S)/APPELLANT GIGI KURIAKOSE S/O. KURIAKOSE, KURIYATH EDANADU.P.O., PALA, KOTTAYAM DIST. BY ADVS.SRI.S.PRASANTH SRI.JAGADEESH LAKSHMAN RESPONDENT(S)/RESPONDENT IN O.P. NO. 5/2011: LIGIMOL MATHEW W/O. GIGI, PORKATTIL POOVATHODU.P.O., BHARNANGANAM, PALA,KOTTAYAM DIST-686578. R1 BY ADV. SRI.M.R.SARIN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.Harilal & A.M.Babu, JJ.** ==================================== Mat.Appeal No.716 of 2012 ==================================== Dated this the 19[th] day of February, 2018. ## **JUDGMENT** ## **K.Harilal, J.** 1.The appellant is the husband of the respondent. He filed O.P.No.5/2011 before the Family Court, Kottayam for dissolution of marriage between the petitioner and the respondent on the ground of cruelty under Section 10(1)(x) of the Divorce Act, 1869. The brief facts necessary for disposal of this appeal can be summarized as follows: The marriage between the petitioner and the respondent was solemnized on 29.6.2006 in accordance with the christian religious rites and ceremonies and thereafter were they Mat.appeal 716/2012 -:2:- living together as husband and wife and a son was born in the said wedlock. The petitioner was having some abnormal growth in his brain and he has undergone a brain surgery and is under treatment at the Sree Chithira Thirunal Institute of Medical Sciences, Thiruvananthapuram. He had frequent attacks of epilepsy and the emotional imbalances used to aggravate his mental condition. All these facts were known to the respondent and her family members even before the marriage. 2.Soon after the marriage, the behaviour of the respondent towards the petitioner became indifferent. She used to pick up quarrels very often and behaved in a cruel manner towards the petitioner and his family Mat.appeal 716/2012 -:3:- members. She was not ready to obey the petitioner or his parents. She often threatened that she would file cases against the petitioner and his family members. 3.On 13.9.2006, the brother of the respondent reached the house of the petitioner along with two goondas in an intoxicated mood and assaulted the petitioner and his family members and physically assaulted his father. Thereafter, they took the respondent along with them and she took all her belongings when she left to her parental home. She was not ready to come back, thereafter. The petitioner was neither informed of about the delivery of the child nor allowed to see the child. She filed O.P.456/2008 for Mat.appeal 716/2012 -:4:- restitution of conjugal rights and obtained a decree in her favour. She had also filed O.P.1187/2008 for return of money and gold ornaments. After obtaining the decree for restitution of conjugal rights, on 26.9.2010, the respondent and the child came back to the house of the petitioner, repenting her earlier acts against him and his family members. He accepted her for the sake of the child. But, the cohabitation resumed on a written agreement, entered into between the petitioner and the respondent and in that agreement, she agreed that the mother and brothers, who were responsible for the earlier quarrels will not enter into the matrimonial home and she will not go to her Mat.appeal 716/2012 -:5:- paternal home. But, after two days, she went back to the same state of mind starting illtreatment towards the petitioner and his family members. Due to the cruel behaviour of the respondent, the petitioner suffered fits several times. At last, on 10.10.2010 she returned to her parental home along with the child, after taking her entire household articles. Thereafter, she filed a criminal complaint under Section 498A of the Indian Penal Code against the petitioner and his family members. Since the petitioner is an epileptic patient, mental stress may cause physical danger. With the above averments, he prayed for a decree, granting dissolution of marriage. Mat.appeal 716/2012 ## -:6:- 4.The respondent filed objections, denying the allegations of cruelty alleged against her. According to her, the petitioner and his parents wilfully suppressed his illness and epilepsy from the respondent. She is ready to take care of the petitioner and she intends to continue her family life with the petitioner. But, his parents were not allowing her to live with the petitioner. Though she left the matrimonial home on 30.9.2006, she resumed cohabitation on 26.9.2010, on a written agreement entered into between the petitioner and the respondent and lived together till 10.10.2010. During those days she was not allowed to sleep along with the petitioner. Mat.appeal 716/2012 -:7:- The parents of the petitioner were not even ready to talk with her. She was not given enough food and she was asked to bring three lakhs more from her parental home. Further, she stated that since she is still intending to live with the petitioner, she is not disclosing the ill-treatment meted out to her by the petitioner and his family members during the aforesaid 16 days. At last she returned to her parental home with the child, when her life in the matrimonial home became intolerable and unbearable. She is ready for any compromise to get back her family life. There is every chance for them to continue a normal and harmonious married life, if the parents and siblings of the petitioner Mat.appeal 716/2012 -:8:- allowed them to live separately. But the petitioner is a puppet in the hands of his parents. With the above averments, the respondent prayed for dismissal of the said petition. - 5.On the aforesaid pleadings, the parties went to trial and adduced evidence. The petitioner was examined as PW1 and his mother as PW2. PWs 3 to 5 were examined as independent witnesses, to corroborate the evidence of PWs - 1 and 2 and Ext.A1 was marked. The respondent was examined as RW1. 6.On appraisal of the evidence adduced by both parties, the Family Court passed the impugned the for judgment, rejecting prayer dissolution of marriage. The legality and Mat.appeal 716/2012 -:9:- correctness of the findings, whereby the Family Court passed the impugned judgment, are challenged in this appeal. 7.Heard the learned counsel for the appellant/petitioner and the learned counsel for the respondent. 8.The marriage between the petitioner and the respondent and the parentage of the child are not disputed. So also it is admitted that the marriage was solemnized on 29.6.2006 and they lived together in the matrimonial home till 13.9.2006 and thereafter the respondent was living in her parental home due to the marital disharmony between the petitioner and the respondent. She filed O.P.No.456/2008 before the Family Court, Kottayam for Mat.appeal 716/2012 ## -:10:- restitution of conjugal rights and the same was decreed in her favour. Thereafter, she filed O.P.No.1187/2008 for a decree for recovering money and gold ornaments, which were entrusted with the petitioner in connection with the marriage and obtained a decree, as prayed for. But, again they resumed their matrimonial life on 26.9.2010 on the basis of a written agreement entered into between both parties and lived together till 10.10.2010. Eventually, again they got separated and thereafter living separately and the petitioner instituted the present original petition, seeking dissolution of marriage. 9. The aforesaid sequence of events are not Mat.appeal 716/2012 -:11:- disputed. Going by the averments in the original petition, it could be seen that the original petition was filed on the sole ground of cruelty. But, in evidence, the petitioner has made an attempt to get divorce on the ground of adultery also, without amending the averments in the original petition. As regards cruelty, on an analysis of the pleadings, it could be seen that almost all the allegations are pertaining to the period between 29.6.2006 and 13.9.2006. _Prima facie_ , we find that even if the allegations of cruelty allegedly suffered by him during the period 29.6.2006 and 13.9.2006 are taken at its face value, we are of the opinion that there is an unreasonable delay Mat.appeal 716/2012 -:12:- in presenting and prosecuting the petition on the basis of the events occurred during the period, before four years. Therefore, the petitioner is not entitled to get a decree dissolving the marriage. 10. Further, it is the case of the petitioner that he was having some abnormal growth in his brain and he had undergone brain surgery and he is continuing his treatment at Sree Chithira Thirunal Institute of Medical Sciences and Technology, Thiruvananthapuram and that he had frequent attacks of epilepsy. But, the respondent treated him with cruelty, though he was suffering from frequent attack of epilepsy. No medical evidence was adduced to prove the aforesaid illness or treatment Mat.appeal 716/2012 -:13:- thereof. However, the attack of epilepsy was admitted by the respondent also. 11. As per Section 10 of the Divorce Act, it is incumbent upon the petitioner to prove that the respondent has treated the petitioner with such cruelty so as to cause a reasonable apprehension in the mind of the that it would be harmful or petitioner injurious for the petitioner to live with the respondent. It follows that mere allegation of mental cruelty in the behaviour is not sufficient to constitute cruelty, to get the marriage dissolved and the impact of cruelty must cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to Mat.appeal 716/2012 -:14:- live with the respondent. 12. Going by the allegations of cruelty allegedly experienced during the period from 29.6.2006 to 13.9.2006, it could be seen that the only specific incident of cruelty alleged is that, on 13.9.2006, the brother of the respondent with two goondas came to the matrimonial home of the respondent and abused the members of the petitioner's family and assaulted the father of the petitioner. But, no independent evidence was adduced, to prove the said incident, except the oral assertions of PWs 1 and 2. Even if such an incident had happened, that cannot be taken as a ground for the delay of four years. All other allegations alleging cruelty are trivial in Mat.appeal 716/2012 -:15:- nature and they can be treated as a wear and tear during the course of matrimonial life. 13. As regards the illness of the petitioner, there is no evidence to prove the cruel behaviour of the respondent, when he was undergoing treatment for epilepsy, caused by his earlier brain surgery. When PW1 was examined, she deposed that the last epilepsy had occurred on 8.10.2010. But PW2 had that the last was on deposed epilepsy 9.9.2010. There is no consistent evidence to prove that he had the attack of epilepsy during the period from 26.9.2010 to 10.10.2010 and the respondent behaved in a cruel manner, when he was suffering from epilepsy. In the absence of any reliable Mat.appeal 716/2012 -:16:- - evidence to prove any kind of cruel behaviour from the part of the petitioner, it cannot be held that the petitioner has succeeded in proving that the behaviour of the respondent has caused a reasonable apprehension in his mind that it would be harmful or injurious for him to live with the respondent. 14. In short, the petitioner failed to prove - any kind of behaviour from the part of the respondent, when they lived together during a short span of their matrimonial life, in a way causing reasonable apprehension in the mind of the petitioner that it would be harmful for him to live with the respondent. 15. Coming to adultery, as we have held above, absolutely there is no pleadings in Mat.appeal 716/2012 -:17:- the original petition, alleging adultery. So also, there was no attempt to amend the petition so as to incorporate the allegations of adultery also. But, during the course of trial, the petitioner made an attempt to prove adultery by his own evidence and two witnesses were examined for the same. The object of pleading is to bring the parties to trial by securing their attention or matters in dispute, so as to narrow down the controversy to precise issues, enabling the parties to understand the nature of testimony required on either side in support of their case. In _**Ram Sarup Gupta (dead) B.LRs. v. Bishun Narain Inter college and others**_ **[AIR 1987 SC 1242]** the Supreme Court held that in Mat.appeal 716/2012 -:18:- the absence of pleadings, the evidence, if any, produced by the parties cannot be considered. That apart, in a petition seeking dissolution of marriage on the ground of adultery, the adulterer or adulteress, as the case may be, is a necessary party as per Section 11 of the Divorce Act. The absence of adulterer or adulteress, as the case may be, in the party array is also fatal to the petition, seeking dissolution of marriage on the ground of cruelty. 16. That apart, we find that even if the evidence adduced by the petitioner is taken and accepted, the same would not constitute adultery, so as to grant a decree of divorce. According to Section 14 of the Divorce Act, Mat.appeal 716/2012 -:19:- in case the court is satisfied on the evidence that the case of the petitioner has been proved and if it is proved that the petitioner treated the respondent with cruelty, he is not entitled to get a decree dissolving the marriage on the ground of cruelty. 17. In the instant case, we find that the petitioner made a futile attempt to allege adultery without pleadings or sufficient evidence. In _**Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate**_ **[2003 (6) scc 334]** the Supreme Court held that unproved allegations of unchastity amounts to cruelty. In the instant case, the petitioner alleged unproved allegations of unchastity against the Mat.appeal 716/2012 -:20:- respondent. So, we find that for the said reason also, the petitioner is not entitled to get a decree for dissolving the marriage on the ground of cruelty. 18. In the above analysis, we find that the Family Court has appreciated the evidence in its correct perspective and there is no reason to interfere with the findings of the Family Court. 19. The appeal is dismissed. Sd/- **K.Harilal, Judge** Sd/- **A.M.Babu, Judge** sl. //true copy// P.S. To Judge