IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 29TH DAY OF AUGUST 2017/7TH BHADRA, 1939 Mat.Appeal.No. 2 of 2008 ( ) -----------------------------
AGAINST THE ORDER IN OP 1059/2003 of FAMILY COURT,TRIVANDRUM DATED 30-06-2007
APPELLANT/PETITIONER: ---------------------
JAYARAJAN AGED 59 YEARS, RESIDING AT SIVA BUILDING, HOUSE NO.KP 2/588, B.C.MAMATHA NAGAR, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM.
BY ADV. SRI.LEO GEORGE
RESPONDENT/COUNTER PETITIONER: ------------------------------
SUBHA RESIDING AT SREEPADAM, MAMATHA NAGAR, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM, NOW WORKING, AS MANAGER, DISTRICT CO-OPERATIVE BANK, SREEKARYAM, THIRUVANANTHAPURAM.
## BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 2707-2017, THE COURT ON 29-08-2017 DELIVERED THE FOLLOWING:
## **A.M.SHAFFIQUE & ANU SIVARAMAN, JJ.**
**= = = = = = = = = = = = = = = = = = = =**
**Mat.Appeal No.2 of 2008**
**= = = = = = = = = = = = = = = = = = = = Dated this the 29[th] day of August, 2017**
## **JUDGMENT**
## **Anu Sivaraman, J.**
- 1.This appeal is filed against the judgment of the Family Court, Thiruvananthapuram dated 30.06.2007 in O.P.No.1059 of 2003. The original petition is filed by the husband for divorce.
- 2.The case of the petitioner in the original petition is as follows:-
The marriage between the parties was solemnised on 11.05.1980 at Ardha Nareeswara Temple, Kadakkavoor, Thiruvananthapuram. Thereafter, they resided together as husband and wife. Two children were born in their wedlock. They were leading a peaceful and harmonious married life with their children. While so, the petitioner arranged a job for the respondent in the District Co-operative Bank and after getting job the behaviour of the respondent changed and she started to blame the petitioner for one thing or other. He was always treated with cruelty by the respondent. She even trained the children to turn against the petitioner. The
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petitioner purchased 5 cents of property in the name of the respondent in 1998 and on the same date, he purchased 5 cents of property in his name and constructed a double storeyed building in her property spending about Rs.8 lakhs She was not satisfied with anything the petitioner had done for her and the children. The petitioner spent huge amounts for giving good and proper education to the children. Though the petitioner did everything possible for the well being of the family, the conduct of the respondent towards the petitioner became harsh and cruel and the relationship between them was deteriorated. She never cared to perform to do the duties of a wife. As it was impossible for the petitioner to tolerate the suffering caused by the petitioner they separated on 13.10.2002. The respondent has filed a petition as O.P.No.950/2003 before the court making frivolous and baseless allegations against him. Hence the original petition is filed for granting a decree of divorce.
- 3.The respondent filed objection denying the allegations of matrimonial cruelty. It was contended that the petitioner was
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residing separate from his wife and children and is not maintaining them for the last so many years. He was residing with a concubine and as she was constrained to file a petition against him as O.P.No.650/2003 before this court. In that original petition interim attachment was ordered over his property and infuriated by this, he filed this petition without any basis. The only attempt of the petitioner is to wreak vengeance on the respondent. From the very beginning of the marital life itself, he was not in cordial terms with the respondent. He found fault with everything without any reason. It is incorrect to say that they lived together as husband and wife till October 2002. For the last more than 5 years he is residing separately with another lady. He was not having good relationship even with his children and he did not maintain them. The averment that the petitioner arranged a job for the respondent is absolutely false. She got job in the District Co-operative Bank on merit. Nothing was done by the petitioner for getting job. Even thereafter then respondent was treating the petitioner with utmost love and affection. He has not done anything as a dutiful father or husband. The
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respondent was maintaining the family using her entire salary. It is the respondent who paid the entire sale consideration for the purchase of the property in her name. The building was also constructed by her with her own funds. She had even availed loan for the same. He did not spend anything for the upbringing or education of his children. He does not know where his children are studying. The relationship between the parties strained due to the intolerable cruelties of the petitioner. The respondent was discharging the duties of a wife to the best of her ability. But the petitioner has no love towards her. On 30.10.2002 the respondent was at Bangalore in connection with a training and nothing happened on that day or in any previous occasions causing physical and mental agony to the petitioner as alleged in the petition. It is the petitioner who separated from the respondent with an intention to reside with his concubine. It is to validate that relationship he is trying to get a decree of divorce. Since the petitioner was causing all sorts of inconvenience and harassments to the respondent and her children, they were constrained to get an order of injunction. There is no valid
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ground for the petitioner to get a decree of divorce. He is employed in the VSSC and he had made attempt to nominate his concubine as his nominee for the service benefits. She is dragged to the proceedings unnecessarily and so she is entitled to get an amount of Rs.5000/-towards litigation expenses.
- 4.The original petition filed by the appellant for divorce was tried jointly with O.P.No.950/2003 filed by the wife for injunction and maintenance. The petitioner examined himself as PW1 and marked Exts.A1 to A21 documents. The respondent examined RW1 and RW2 and marked Exts.B1 to B22. After considering the oral and documentary evidence adduced, the Family Court came to the conclusion that there are no clear pleading or proof as to alleged cruelty and dismissed the petition for divorce.
- 5.Heard the learned counsel for the appellant and the learned counsel for the respondent.
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- 6.The learned counsel for the appellant submits that after the marriage on 11.05.1980, there was no cordial relationship between the parties even from the very beginning. Though the marital relationship had continued, there was no love or affection between the parties. The wife had obtained an injunction against the husband from entering the matrimonial home. She stated that he is a drunkard and a person of immoral character. There was no purpose in continuing the marital relationship since the parties were so throughly estranged that they had become inimical to each other. It is submitted that the evidence let in on either side would establish an irretrievable breakdown of the relationship and the Family Court ought to have granted the divorce as sought for.
- 7.On the other hand, the learned counsel appearing for the respondent would contend that the appellant had been unable to substantiate the case set up by him that the respondent-wife had acted with cruelty against him. It is stated that RW2, the concubine of the husband had been summoned as a witness
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and examined by the wife. She had given evidence and stated that she was living with the appellant. In her testimony, the respondent-wife had specifically contended that she does not want a divorce and is not amenable to the marriage being dissolved in spite of her allegations of infidelity against the husband.
8.We have considered the contentions advanced as well as the pleadings and materials on record. On an examination of the evidence adduced, we find that the allegations of physical cruelty alleged against the wife and children could not be satisfactorily proved by the appellant before the Family Court. In his testimony as PW1, the petitioner alleged that on 29.10.2002, his wife and children had trespassed into his house breaking the lock, manhandled him and threw his personal belongings out and he had to flee from there. This was denied by the wife and Exhibit B5 was produced to show that she was attending a program held at the Regisional Institute of Co-operative Management at Bangalore from 28.10.2002 to 30.10.2002. The allegation of physical assault
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by her on 29.10.2002 was therefore not accepted by the Family Court. As regards the allegation of an illicit relationship maintained by the husband, RW2 had herself given evidence that she had been living with the appellant. She was cross examined as well. The Family Court considered her evidence and entered finding that she did not appear to be a an unreliable witness.
- 9.With regard to the contention of the petitioner that the marriage has irretrievably broken down, irretrievable break down of marriage is not a ground for divorce under the Hindu Marriage Act. In the absence of the consent of the wife, no decree of divorce on the ground of irretrievable break down could have been rendered by the Family Court. We are fortified in this view by decisions of the Apex Court in **Chethan v. Kamala Devi** [(2001) 4 SCC 250] and **Naveen Kohli v. Neelu Kohli** [(2006) 4 SCC 558].
Since the petitioner had not established that he had been inflicted with cruelty by the wife, we are of the opinion that he
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is not entitled to a decree of divorce on the ground of cruelty. On a re-appreciation of the entire evidence adduced in the case, we do not find any material to come to a different conclusion. In the result, the appeal fails and is accordingly dismissed.
sd/- **A.M.Shaffique, Judge** sd/- **Anu Sivaraman, Judge**
sj
/TRUE COPY/-
PA TO JUDGE
