Jinju Ram P.M. v. Sabu M.V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 2ND DAY OF FEBRUARY 2017/13TH MAGHA, 1938** **Mat.Appeal.No. 382 of 2014 () ------------------------------** **AGAINST THE ORDER/JUDGMENT IN OP 785/2012 of FAMILY COURT, KANNUR DATED 28/1/2014** ## **APPELLANT(S)/RESPONDENT:** **-----------------------** **JINJU RAM P.M. AGED 28 YEARS, D/O.RAJARAM P M, K M HOUSE, CHANDERA, P O MANIYAT, VIA TRIKARIPUR, KASARAGOD-671310** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S)/PETITIONER:** **--------------------------** **SABU M.V. S/O.A RAGHAVAN, 'SANAM, ANNUR, KARIVELLUR P O, KARIVELLUR VILLAGE, TALIPARAMBA TALUK, KANNUR DIST** **R1 BY ADV. SRI.M.SASINDRAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 9-12017, THE COURT ON 02-02-2017 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.** =========================== Mat.Appeal No. 382 of 2014 ================== Dated this, the 2[nd] day of February, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the respondent in OP No.785/2012 on the file of the Family Court, Kannur. The original petition is filed by the respondent herein seeking for a decree for dissolution of the marriage between the appellant and the respondent on the ground of cruelty and desertion. The Family Court granted a decree for divorce on the ground of cruelty. 2. The short facts involved in the original petition are as under:- The respondent married the appellant on 2/1/2011. It is alleged that the appellant was not at all reconcilable for a proper marital life. She behaved like a 6 year old child and never considered other members of the family with respect. She Mat.Appeal No.382/14 -:2:- misbehaved with the respondent's father and mother and insulted and abused them. The respondent was informed that she had worked as a teacher prior to marriage and she got another employment as a sales girl in a private establishment. According to the respondent, she stayed in the house only for three months and thereafter left the matrimonial home. She did not come back for about four months. However, she was brought to the matrimonial home in August 2011 and she stayed till October, 2011. By that time the respondent got a job at HDFC Bank at Manjeri and he requested the appellant to accompany him. This was objected by the appellant as well as her relatives as she does not know how to prepare food or look after family affairs. When the respondent left to Manjeri to join duty, the appellant also left the matrimonial home. It is alleged that the marriage between appellant and the respondent was never consummated. She did not permit him to have sexual intercourse as according to her she was not interested. The respondent alleges that he later got information that the marriage between them was not the first marriage of the appellant. She was married to another person earlier and on enquiry it was found that she was married to one Mat.Appeal No.382/14 -:3:- Muraleedharan on 12/4/2009 and they stayed together as husband and wife for a few days. The appellant filed a petition against Sri.Muraleedharan, his mother and sister alleging offence under Section 498A of the Indian Penal Code which is pending before the Magistrate Court, Kanhangad. Sri.Muraleedharan also filed OP No.769/09 for declaring the marriage as null and void. The appellant did not contest the said petition and the said marriage was declared as a nullity. It is alleged that the factum of earlier marriage was suppressed by the appellant and consent of marriage was obtained by misrepresentation which amounts to cruelty and the respondent does not intend to proceed with the marital life. 3. Counter statement was filed by the appellant denying the aforesaid facts. According to her, she had gone to her parental home after informing the respondent which was very near to the marital home and she never insisted for a separate stay. It is alleged that the attitude of the respondent towards the appellant changed once he got a better employment in HDFC Bank. The appellant alleges that mother of the respondent was inimical towards her since she belonged to a lower caste. It is Mat.Appeal No.382/14 -:4:- further contended that after the failure of the first marriage, she never thought for another marriage but it was at the constant pressure and repeated requests of the respondent that she agreed for a remarriage. It is also contended that the respondent was fully aware of the first marriage and the background of the appellant and there was no suppression as alleged. In the said circumstances, the appellant sought for dismissal of the original petition. 4. The evidence consists of the oral testimony of PW1, the respondent and RW1, the appellant. The Family Court after considering the evidence on record came to a finding that the reluctance on the part of the appellant in having sexual intercourse with the respondent is a true grievance which amounts to cruelty and the respondent is entitled to get a decree for divorce as sought for. 5. While impugning the judgment, learned counsel for appellant contended that the Family Court had not properly appreciated the evidence on record to arrive at a finding that failure to have natural sex with the respondent is proved and the same amounts to cruelty. It is contended that when there is a Mat.Appeal No.382/14 -:5:- clear finding that the allegation of misrepresentation alleged by the respondent was found unbelievable, there was no evidence to indicate that the appellant was not agreeing for a normal sexual intercourse with the respondent. 6. Learned counsel for the appellant also placed reliance upon the judgments in _**R v. P**_ (1967 KLT 695), _**Prayag Raj v. Sreevani alias Vani**_ (AIR 2013 AP 22), _**Sharda v. Dharmpal**_ [(2003) 4 SCC 493] and _**Gabriel Antony v. Thressya Gracy**_ (1987 (1) KLT 690). 7. On the other hand, learned counsel appearing for the respondent supported the judgment of the Court below and emphasised the fact that the respondent was entitled for a decree of divorce on the basis of the materials made available before the Court below. 8. The short question to be considered in the present appeal is whether the trial court has erred in decreeing dissolution of the marriage between the appellant and the respondent. 9. The main documents relied upon by the respondent was Exts.A5 and A6. Ext.A5 is a petition filed by the former husband of the appellant seeking for a declaration that the Mat.Appeal No.382/14 -:6:- marriage was null and void on the allegation that there was no consummation of marriage. He had a contention that the appellant was not intended to have sexual relationship with him and therefore sought for a decree of nullity. Ext.A6 is the certified copy of the judgment in OP No.769/2009 by which the Court granted a decree of nullity of marriage. The Court below apparently took note of the judgment and found that it is admissible in evidence under Section 41 of the Indian Evidence Act and therefore placing reliance on the judgment of the Apex Court in _**Smt.Satya v. Teja Singh**_ (AIR 1975 SC 105) found that the findings in the judgment proved the allegation raised by the respondent. The said fact amounts to a mental cruelty. In the said circumstances, the Family Court came to a finding that it can be concluded that there was reluctance on the part of the appellant in having sexual intercourse with the respondent which amounts to cruelty and therefore, the respondent was entitled for a divorce. 10. We have gone through the evidence on record and also the materials placed before us. The contention urged by the appellant was that reappreciation of evidence is required in the Mat.Appeal No.382/14 -:7:- matter. In fact, the Court below mainly relied upon Exs.A5 and A6. As far as the capacity of the appellant to have sexual intercourse is concerned, the finding of the Court below cannot be disputed especially on account of the finding by a Court that there was no consummation of marriage between the former husband and the appellant. The respondent also had raised the very same ground. In _**R v. P**_ (supra), a Division Bench of this Court held that in a petition seeking nullity of marriage, the burden is on the petitioner to prove affirmative and to the satisfaction of the Court that the non consummation is due to incapacity or wilful neglect to consummate on the part of the respondent. The Andhra Pradesh judgment relied upon the learned counsel for the appellant is also referring to divorce on the ground of impotency. That was a case in which the petitioner sought for restitution of conjugal rights wherein the wife took up a contention that the husband suffers from impotency and filed a counter claim for a decree for divorce on the ground of impotency. It was held that impotency is one of the grounds for divorce. But, it cannot be proved without proper medical examination. In _**Sharda**_ (supra), the Apex Court considered a matrimonial issue and it was held Mat.Appeal No.382/14 -:8:- that though there is no provision to compel a person to submit for medical examination, it does not preclude the court from passing such an order. In _**Gabriel Antony**_ (supra), learned Single Judge of this Court, was considering the interpretation of Section 19 of the Indian Evidence Act which apparently has no application to the present facts. 11. There cannot be any dispute regarding the propositions laid down in the aforesaid judgments. The point to be considered in the present appeal is whether the Court below had erred in arriving at a finding that the appellant's failure to permit sexual intercourse amounts to cruelty or not. The action of one of the spouses for not involving in cohabitation and sexual intercourse is considered to be cruelty and the position is well settled. The only question is whether the evidence available in the case amounts to cruelty as contended by the respondent. As already indicated, the Court below placed reliance on Exts.A5 and A6 wherein this issue stands virtually concluded. Apart from Exts.A5 and A6, the evidence of PW1 also will go to show that the respondent was not interested in having sex and the marriage has not been consummated. The explanation given by RW1 to Mat.Appeal No.382/14 -:9:- suffer a decree of Ext.A6 on the ground of settlement was not accepted by the Court below as no one will remain _ex parte_ and suffer an _ex parte_ decree on such a grave allegation. 12. In the decision reported in _**Vishwanath Sitaram Agrawal** v._ _**Sau. Sarla Vishwanath Agrawal**_ (AIR 2012 SC 2586), the Apex Court has held that in the case of mental cruelty, it must be proved by the party alleging the same that the cruelty is of such nature which will make the parties to live together. It is also held in the same decision that it cannot be proved by direct evidence and necessary inference can be drawn from the conduct of parties on the basis of evidence and by preponderance of probability. Further, in the decision reported in _**Sanjan v. Azara**_ (2013 (2) KLT S.N. 137), it has been held that wilful abstination from having sexual intercourse and refusal to consummate the marriage will amount to mental cruelty as a ground of divorce. 13. The Court below has rightly believed the evidence of PW1 and came to the conclusion that the respondent has proved Mat.Appeal No.382/14 -:10:- his case that there is no consummation of marriage and the appellant/respondent has no interest in sexual intercourse and rightly held that the mental cruelty has been established. 14. As far as the judgment is concerned, the appellant is a party to the judgment and the appellant cannot take a contention against the said judgment. Further, the contention is supported by the oral testimony of the respondent as PW1. Under such circumstances, there is nothing wrong on the part of the Family Court to have relied upon the said evidence and arrived at a finding against the appellant. We do not find any perversity or illegality in the said finding warranting interference in exercise of appellate jurisdiction. Since no grounds are made out for interference, the appeal is dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.RAMAKRISHNAN, JUDGE** Rp //True Copy// P.S to Judge