Gopalakrishnan v. Rethnamma and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941** ## **Mat.Appeal.No.866 OF 2016** **AGAINST THE /JUDGMENT IN OP 892/2014 DATED 30-07-2016 OF FAMILY COURT, MAVELIKKARA** ## **APPELLANT/PETITIONER:** **GOPALAKRISHNAN,AGED 57 YEARS, S/O. LATE THIRUVANKUTTY,** **"GIGI BHAVANAM", VANAVATHUKKARA, THIRUVANDOOR VILLAGE,ERAMALIKKARA P.O., CHENGANNUR TALUK, ALAPPUZHA DISTRICT-690 512. BY ADV. SRI.N.K.MOHANLAL** ## **RESPONDENTS/RESPONDENTS:** **1 RETHNAMMA, AGED 52 YEARS, D/O. LATE GOPALAN, PALANIKUNNEL HOUSE, PERANGAD KARA, NEERVILAKAM P.O., ARANMULA VILLAGE, PIN-690 518. 2 GOPALAKRISHNAN T.K. AGED 50 YEARS, S/O. LATE KOCHUKUNJU, THOZHUVAMVECHATHIL HOUSE, VANAVATHUKKARA, ERAMALLIKKARA P.O., THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK, PIN-690 521.** **3 GIGI KUMAR,AGED 32 YEARS, PALANIKUNNIL HOUSE, PERANGADKARA, NEERVILAKAM P.O., ARANMULA P.O., PIN-690 518. (DELETED)** **THE THIRD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 15.1.18 IN IA 138/18.** *** THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 15.1.2018 IN I.A. 138/2018** **R1 BY ADV. SRI.IYPE JOSEPH R1 BY ADV. SRI.V.MANOJ KUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2020, THE COURT ON 23-01-2020 DELIVERED THE FOLLOWING:** **Mat.Appeal.No.866 OF 2016** **2** ## **JUDGMENT** ## **Dias,J.** **The appellant is the petitioner in OP (HMA) No.892/2014 on the file of the Family Court, Mavelikara. The respondents in this appeal are the respondents in the original petition. The parties are for the sake of convenience, referred to as per their litigate status in the original petition before the Family Court as 'petitioner' and 'respondents'.** **2. The petitioner had filed the original petition seeking a decree of divorce under Section 13(1)(i),(ia)&(ib) of the Hindu Marriage Act, 1955** **Mat.Appeal.No.866 OF 2016** ## **3** **(hereinafter referred to as “Act”).** **3. As per order dated 15.1.2018 in I.A No.138/2019, the petitioner had deleted the 3[rd] respondent from the party array.** **4. The petitioner had averred in the original petition that, he was married to the 1[st] respondent on 24.11. 1977. A son and a daughter were born in the wedlock.** **5. It was the petitioner's case that the 1[st] respondent had lived in adultery with the 2[nd] respondent. The petitioner denied the paternity of the son.** **According to him, on 30.8.2011, a bizarre** **incident had ensued between the petitioner and the son, at the instigation of the 1[st] respondent. The 1[st]** **Mat.Appeal.No.866 OF 2016** **4** **respondent behaved rudely towards him, and that she left the matrimonial home on** **31.8.2011, without his consent.** **6. The petitioner further averred that he came to learn that the 1[st] respondent and her son were residing somewhere else. Thus, from 31.8.2011, the 1[st] respondent has deserted the petitioner and has failed to discharge her conjugal obligations. Therefore, the petitioner was entitled for a decree of divorce to dissolve his marriage with the 1[st] respondent.** **7. The original petition was stoutly resisted by the 1[st] respondent. She filed a written objection denying the allegations in the original petition. According to her, two children were born** **5** **Mat.Appeal.No.866 OF 2016** **in the wedlock. The son was an unnecessary party in the proceedings. She averred that the petitioner was working in the Indian Army at the time of marriage. He used to visit the family during his holidays. She denied that she had extra-marital relationship. She also denied the allegation that she and the son had committed an illegal act on the petitioner. According to her, it was the petitioner who brutally man-handled her and the daughter on 31.8.2011, while he was in an inebriated state. Even on prior occasions, the petitioner had assaulted her. Due to the unbearable atrocities that were meted out on her, she was constrained to leave the matrimonial home on 31.8.2011. The** ## **Mat.Appeal.No.866 OF 2016** ## **6** **allegation that the 1[st] respondent** **deserted the petitioner was also denied. 8. The 1[st] respondent further averred that although certain mediators tried to resolve the matrimonial disputes, the petitioner remained obstinate. He expressed his desire to snap the marital tie. She denied the imputation that she had sexual intercourse with the 2[nd] respondent. She bona fide believed that the petitioner had some mental problem, which was the sole reason for instituting the original petition. She prayed the original petition be dismissed.** **9. Even though the 2[nd] respondent, the alleged adulterer, was served with notice, he did not file any written objection. The 3rd respondent was set** ## **Mat.Appeal.No.866 OF 2016** **7** **ex-parte. The counsel for the petitioner filed a memo in the Family Court that the petitioner was not seeking any relief as against the 3[rd] respondent.** **10. The petitioner was examined as PW1. His sister and cousin brother were examined as PW2 and PW3, respectively. The 1[st] respondent was examined as RW1 and the birth certificate of the son was marked as Ext.B1.** **11. The Family Court after** **appreciating the pleadings and evidence on record, by the impugned judgment dated 30.7.2016, dismissed the original petition.** **12. It is challenging the said** **judgment that this Mat.Appeal is filed.** **13. Heard Sri.N.K.Mohanlal, the** **8** ## **Mat.Appeal.No.866 OF 2016** **learned counsel for the petitioner and Sri.Ipe Joseph, the learned counsel for the 1[st] respondent.** **14. The learned counsel for the petitioner argued that the Family Court has not considered the pleadings and evidence in its proper perspective, and that the impugned judgment is grossly erroneous. He relied on the decision of the Hon'ble Supreme Court in** _**Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri.Devi [AIR 2002 SC 88]**_ **to contend that if the wife had gone to her natal house, and refused to return to her husband, it tantamounts to desertion. He also relied on the decision of this Court in** _**Somasekharan Nair v. Thankamma [ 1987 (2) KLT 892]**_ **and contended that, a** ## **Mat.Appeal.No.866 OF 2016** ## **9** **single act of adultery is sufficient, to dissolve the marriage. He further relied** **on the decision in** _**Neelam Tiwari v. Sunil Tiwari [ AIR 2009 MP 225]**_ **to contend that there is no necessity to prove that the offending spouse is living in adultery and a single act of sexual intercourse is sufficient for a decree of divorce.** **15. The learned counsel for the petitioner further argued that PW2 and PW3, the relatives of the petitioner, have clearly deposed that they have seen the respondents 1 and 2 living in adultery. According to him, Courts cannot expect strangers to see an act of adultery, and therefore independent witnesses cannot be expected. The** **Mat.Appeal.No.866 OF 2016** ## **10** **evidence of PW2 and PW3 are natural and believable, and is sufficient enough to prove that the 1[st] respondent has committed adultery. Therefore, placing reliance on the evidence of PW2 and PW3, the marriage ought to have dissolved, instead of dismissing the original petition.** **16. The learned counsel for the 1[st] respondent on the other hand argued that, the petitioner has miserably failed to prove that the 1[st] respondent has committed adultery, treated the** **petitioner with cruelty or deserted the petitioner. There is inordinate delay on the part of the petitioner in instituting the original petition. The original** **petition is only a vexatious litigation** ## **Mat.Appeal.No.866 OF 2016** ## **11** **filed to harass and browbeat the 1[st] respondent. PW2 and PW3 are interested witnesses, being the close relatives of the petitioner, therefore, they cannot be believed. He prayed that the the appeal be dismissed.** **17. From the facts of the case, the following points emerge for** **consideration.** **(i) Whether the petitioner is entitled to a decree of divorce as prayed for in the original petition?** **(ii) Whether the petitioner has condoned the acts complained of in the original petition as provided under subclause (b) of sub-section (1) of Section 23 of the Act.** **Mat.Appeal.No.866 OF 2016** **12** **(iii)Whether there is unnecessary or improper delay in instituting the proceedings as contemplated under subclause (d) of sub-section (1) of Section 23 of the Act?** **18. As the above points are inter connected they are considered together.** **19. The petitioner had filed the original petition seeking a decree of divorce on the grounds that the 1[st]** **respondent has after the solemnization of the marriage had sexual intercourse with the 2[nd] respondent; has treated the petitioner with cruelty and has deserted the petitioner for a continuous period of not less than two years preceding the presentation of the petition.** **Mat.Appeal.No.866 OF 2016** ## **13** **20. It is an admitted fact that the marriage between the petitioner and the 1[st] respondent was solemnized on 24.11.1977. Undisputedly, the petitioner has not witnessed the 1[st] respondent allegedly having sexual intercourse with the 2[nd] respondent. It is based on the evidence of PW2 and PW3, the petitioner's sister and cousin brother, that the petitioner has alleged that the 1[st] respondent had sexual intercourse with the 2[nd] respondent in the Malayalam month of Vrischikam in the English calendar year 1979. The 2[nd] respondent has deposed in her evidence that while she visited the matrimonial home, she found the 2[nd] respondent coming out of the room of the 1[st] respondent. Similarly, PW3 has** ## **Mat.Appeal.No.866 OF 2016** ## **14** **deposed that when he visited the matrimonial home, he found the 2[nd] respondent in the house with the 1[st] respondent. PW3 does not know the date of incident. It is based on the above testimonies of PW2 and PW3, that the petitioner has alleged that the 1[st] respondent had sexual intercourse with the 2[nd] respondent.** **21. Admittedly, the petitioner retired from the Indian Army on 30.4.1992. After his retirement, he resided with the 1[st] respondent from the said date till 31.8.2011, the date of separation. Thus, the petitioner and the 1[st] respondent lived together as husband and wife for nearly 20 years, after the petitioner's retirement. It was only on** **Mat.Appeal.No.866 OF 2016** ## **15** **30.8.2014, that the petitioner has chosen to file the original petition seeking a decree of divorce to dissolve his marriage with the 1[st] respondent. Therefore, even assuming that the incident had taken place in the year 1979, as stated by PW2, it is after 35 long years that the original petition has been filed. There is absolutely no explanation in the original petition assigning any cause or reason for the long and inordinate delay in instituting the original petition. Thus the original petition is hit by sub-clause (d) of Subsection (1) of Section 23 of the Act, as there is unnecessary and improper delay in instituting the proceedings, and no reason is pleaded explaining the cause** ## **Mat.Appeal.No.866 OF 2016** ## **16** **for the delay.** **22. Similarly, the fact that the petitioner lived with the 1[st] respondent after the above alleged incident in 1979, and then continuously lived with the 1[st] respondent after his retirement in 1992 till the couple finally separated on 31.8.2011 proves that the petitioner has condoned the acts complained of in the original petition as specified under sub-clause (b) of Subsection (1) of Section 23 of the Act.** **23. In addition to above findings of delay and condonation, on appreciating the evidence on record, it is seen that the petitioner had not averred any date on which the 1[st] respondent allegedly had sexual intercourse with the 2[nd]** ## **Mat.Appeal.No.866 OF 2016** **17** **respondent. He has also not pleaded dates or specific instances of cruelty that was meted out on him by the 1[st] respondent.** **24. We find that PW2 has very curiously deposed that, even though she saw the 2[nd] respondent coming out of the bed room in 1979, she did not inform the petitioner about the same, on an apprehension that he would murder the 1[st] respondent. According to her, she informed the petitioner only after the institution of the case. If the evidence of PW2 is to be believed and accepted, then the source from which the petitioner has gathered information about the 1[st] respondent having extra-marital relationship with the 2[nd] respondent is** ## **Mat.Appeal.No.866 OF 2016** ## **18** **mysterious. PW3 deposed that he had seen the respondents 1 and 2 at various temples and other places while the petitioner was working in the Army.** **25. Yet another suspicious circumstance is that the petitioner had filed I.A No.2015/2009 to subject the son for a DNA test, in order to ascertain his paternity. However, when the application** **was taken up for consideration, the petitioner not pressed the application and also filed a memo that he is not seeking any relief against the 3[rd] respondent.** **26. Another curious fact is that, the** **2[nd] respondent, the alleged adulterer, filed I.A No.701/2015 seeking exemption from mediation proceedings. In the** **Mat.Appeal.No.866 OF 2016** **19** **affidavit accompanying the application, he has strangely admitted that he had an illicit relationship with the 1[st] respondent, and that the 3[rd] respondent is son born in their relationship.** **27. Despite the above affidavit filed by the 2[nd] respondent, the petitioner did not summon and examine the 2[nd] respondent as a witness in the case, to prove his admission in the affidavit. Therefore, it is assumed that the 2[nd] respondent was impleaded as a co-respondent in original petition in collusion with the petitioner, and that they are cahoots with each other.** **28. As regards the pleadings and evidence on the grounds of cruelty and desertion, it is on record that, it was** ## **Mat.Appeal.No.866 OF 2016** ## **20** **the petitioner who drove away the 1[st]** **respondent and daughter from the matrimonial home. Therefore, the** **petitioner is trying to take advantage** **of his wrong. It is he, with an animus, who has deserted the 1[st] respondent and treated her with cruelty.** **29. On a complete re-appreciation of** **the pleadings and evidence on record, we** **are convinced that there is no error or** **illegality in the impugned judgment** **passed by the Family Court dismissing the** **original petition. The petitioner has not proved that the 1[st] respondent has** **committed an act of adultery, has** **treated the petitioner with cruelty, or has deserted him. Further more, the original petition is hit by sub-clauses** **21** **Mat.Appeal.No.866 OF 2016** **(b) and (d) of Sub-section (1) of Section** **23 of the Act. The appeal is without any merit and is only liable to be dismissed.** **In the result, the Mat.Appeal is** **dismissed.** **Sd/-K.HARILAL, JUDGE** **ma22/1/2020 Sd/-C.S.DIAS, JUDGE /True copy/** **P.S to Judge**