Jayaprakash S S/o. K.Sadanandan v. Bindu Lekha

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939** **AGAINST THE JUDGMENT IN OP 1460/2013 of FAMILY COURT, TRIVANDRUM dated 04.08.2015** **APPELLANT/PETITIONER** **JAYAPRAKASH S S/O. K.SADANANDAN, VALIANILATHU, ARYAD NORTH P.O., ALAPPUZHA.** **BY ADV.SMT.P.K.RADHIKA** ## **RESPONDENT/RESPONDENT:** **BINDU LEKHA V.R. D/O. RADHA, VALIANILATHU, ARYAD NORTH P.O., ALAPPUZHA, NOW RESIDING AT BICHISSASE BHAVAN, PUTHIYATHURA, PULLUVILA P.O., THIRUVANANTHAPURAM.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2018, THE COURT ON 28.02.2018 DELIVERED THE FOLLOWING:** **vdv** **V.Chitambaresh & Sathish Ninan, JJ. ============================== Mat. Appeal No.1097 of 2015 ============================= Dated this the 28[th] day of February, 2018** ## **JUDGMENT** ## **Sathish Ninan, J.** The appellant husband whose petition for divorce filed under 13(1)(i-a) and (iii) of the Hindu Marriage Act was dismissed, is in appeal. 2. The marriage between the petitioner and the respondent was solemnized on 18.4.2008 at B.R Auditorium Vizhinjam, in accordance with the Hindu religious rites. The relationship fell into doldrums which resulted in institution of proceeding for divorce. The petition for divorce was filed on two grounds namely, insanity and cruelty. The petition was defended by the wife, denying the allegations. 3. On behalf of the petitioner husband PW1 was examined and Ext A1 was marked. On the side of ## **Mat. Appeal No.1097 of 2015** -: 2 :- respondent wife she herself got examined as CPW1 and Exts B1 to B4 were got marked. The family court after appreciating the evidence dismissed the original petition. 3. Heard Smt.P.K.Radhika learned counsel for the petitioner. We were elaborately taken through the pleadings and evidence in the case. 4. As regards the allegation of unsoundness of mind of the respondent wife, we find that as held by the court below the evidence on record, supported by Exts B2 to B4, speak against the case as set up by the petitioner husband. The clinical psychologist reported thus: “On the whole Clinical Psychological Examination does not reveal the presence of Psychosis or any other serious mental disorder in this ## **Mat. Appeal No.1097 of 2015** -: 3 :- subject. However, there is indication for a non psychotic personality disorder with paranoid tendencies and emotional immaturity which may be interfering with her marital adjustment.” 5. It is hardly sufficient to sustain a plea of unsoundness of mind. We find no material to differ from the conclusion arrived at by the court below negativing the plea of unsoundness of mind as against the respondent wife. 6. The husband has sought for divorce also on the ground of cruelty. In tune with the averments in the original petition, as PW1, he has deposed about various incidents of cruelty. He has deposed that there had been various instances of he being mentally harassed and tortured. The respondent wife used to quarrel with the **Mat. Appeal No.1097 of 2015** **==> picture [66 x 10] intentionally omitted <==** petitioner and his aged mother. The mother had always treated the respondent with utmost love and affection in spite of which the respondent used to speak to her in abusive languages. She used to insult the petitioner alleging that the living status of the petitioner and mother is far lower when compared to that of the respondent and her family. She refused to attend to her duties at the house as a wife. She even used to pick up quarrels with neighbours which caused shame to the petitioner in the locality. True that no independent evidence is available to prove the incidents of cruelty alleged. In matrimonial matters it is very difficult to look for sufficient independent evidence and witnesses. The incidents mostly occur within the four wall of the house. The courts will have to evaluate and appreciate the evidence as a whole and find whose evidence is reliable. The evidence, though challenged by the **Mat. Appeal No.1097 of 2015** **==> picture [66 x 10] intentionally omitted <==** respondent, we do not find any reason to disbelieve the petitioner. The petitioner also alleges physical cruelty inflicted upon him by the respondent. He alleges incidents wherein he was assaulted by the respondent. However, as noticed by the court below, though the petitioner alleges that the physical assaults caused injury on the petitioner, except his ipse dixit, there is no other evidence corroborating the same. The evidence on record is insufficient to find physical cruelty on the petitioner. However we cannot agree with the conclusion of the court below that the evidence on record does not prove a case of mental cruelty. The evidence as notice above, in our opinion are sufficient enough to find cruelty on the part of the respondent wife. 7. Though notice in this appeal was issued to the respondent wife, she has not entered appearance. The **Mat. Appeal No.1097 of 2015** -: 6 :- apex court in **Samar Ghosh v Jaya Ghosh (2007(4) SCC 511)** held thus, “Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” Referring to the said judgment, the Apex Court in **Sukhendu Das v Rita Mukherjee (2017 (9) SCC 632)** observed thus, ## **Mat. Appeal No.1097 of 2015** -: 7 :- “In spite of service of notice, the respondent did not show any interest to appear in this Court also. This conduct of the respondent by itself would indicate that she is not interested in living with the appellant. Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty”. 8. We are of the opinion that a decree for divorce is liable to be granted on the ground of cruelty. In the result, the appeal is allowed. The decree and judgment in O.P No. 1460 of 2013 is set aside. The original petition is allowed and a decree for divorce is passed dissolving the marriage solemnized between the petitioner and respondent on 18.4.2008, with effect from ## **Mat. Appeal No.1097 of 2015** -: 8 :- this date. No costs. Sd/- **V.Chitambaresh, Judge.** **Sd/- Sathish Ninan, Judge.** **vdv**