K. Shewetha Pai v. Arun R. Naik

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 30TH DAY OF JULY 2013/8TH SRAVANA, 1935** **Mat.Appeal.No. 52 of 2012 (C) -----------------------------** **AGAINST THE ORDER IN OP 112/2011 of FAMILY COURT,KOZHIKODE DATED 4/10/11** ## **APPEALLANT/RESPONDENT:** **------------------------------------------** **MRS.K.SHEWETHA PAI W/O. ARUN R.NAIK, D/O. K.SANTHAPPA PAI C/O. SHALI HARIDAS, INDEEVARAM, POST PAROPADY VELLIMADUKUNNU, KOZHIKODE, NOW RESIDING AT 33/305 JC MANAKKAL HOUSE, KUNIYIL THAZHATH PARAMBA P.O. MALAPARAMBA, CALICUT 673009** **BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH** **RESPONDENT/PETITIONER:** **-----------------------------------------** **ARUN R.NAIK S/O. RAMDAS NAIK, 1/3758A, BILATHIKULAM ROAD KACHERI AMSOM DESOM, POST ERANHIPALAM, CALICUT 673006** **R1 BY ADV. SRI.M.P.SREEKRISHNAN R1 BY ADV. SMT.SHAHNA KARTHIKEYAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & P.D.RAJAN, JJ. ======================== Mat. Appeal No. 52 OF 2012 =======================** ## **Dated this the 30[th ] day of July, 2013** ## **J U D G M E N T** ## Antony Dominic, J. The appeal arises from the order of the Family Court, Kozhikode in OP No.112/11. 2. The marriage between the appellant and the respondent was solemnized on 25/2/2003 as per Hindu religious rites. Thereafter, they were residing at the matrimonial home. Meanwhile, a female child was born in the wedlock on 30/4/2004. The parties are at loggerheads and from September, 2009, they are living separately. 3. According to the respondent/husband who filed the OP, right from the commencement of their matrimonial life, the appellant/ wife was behaving in a strange, rude, arrogant manner and she was suffering from severe behaviour disorder. She was not amenable to any counselling. It is also alleged that the appellant used to pick up quarrels on silly matters, that the appellant was not co-operating in any family functions, that she used to be cruel to the parents of the respondent, that she is a **Mat.Appeal No.52 /12** ## **: 2 :** sadist, that whenever the respondent was worried and sad, the appellant was enjoying the same, that her behaviour to her own parents was very bad and that she used to shout and insult them. It is also alleged that she used to misbehave and ill-treat his parents and that she never allowed even the respondent to come anywhere near the child. 4. According to the respondent, she has misbehaved with his relations and friends, who visited his house and quarrelled with the maid servant. It is also alleged that on account of the indifferent and cruel behaviour, the peaceful atmosphere of the respondent's house was spoiled completely and that he could not derive any sexual pleasure and enjoyment. According to him, though these problems were informed to her parents and that they advised the appellant to lead a peaceful life, those advices were ignored by her. It is also alleged that, on 14/9/2008, when the respondent attempted to fondle the child, without any provocation, the appellant attacked the respondent and slapped him on his face and forcefully snatched away the child from him. It is alleged that she used to throw utensils, coconut shells etc., on the respondent and even used to spray boiled water on him. **Mat.Appeal No.52 /12** **: 3 :** 5. He also alleged that once she took a knife and threatened to stab him and also threatened to commit suicide after killing the child. Finally, mediation attempts were made and that also failed on account of the adamant attitude of the appellant. Ultimately, she deserted him in September, 2009 and started living at Hyderabad where her parents are residing, thereafter at Mangalore and finally at Calicut. It was with these allegations, respondent filed the OP seeking divorce on the ground of cruelty and desertion. 6. Counter statement was filed by the appellant. According to the appellant, she was forced to take shelter in a rented house as she was not allowed to stay in the matrimonial home peacefully. It is stated that at the time of marriage, she was given 105 sovereigns of gold ornaments and that her father had spent `2,10,000/- for marriage expenses. According to the appellant, on the first day of the marriage, when she called the respondent by his name, he slapped her on her face. It is stated that despite the arrogance and indifference shown by the respondent and the members of his family, she tolerated the misbehaviours and cruelties to save the family from ruin. She **Mat.Appeal No.52 /12** ## **: 4 :** denied the allegation of behavioral disorder alleged by the respondent. According to the appellant, the respondent was entirely under the control of his parents and he had no independent decision of his own. It is also alleged that he behaves strangely in the presence of his parents, particularly his mother and was normal when he was alone. On this basis, she described him as a split personality and a robot. The appellant alleges that the respondent did not like to accompany her except on occasions when his mother permitted him to do so. It is alleged that her mother-in-law was not allowing her even to enter the kitchen and that the parents of the respondent did not give her any freedom in the matrimonial home. The allegation that the appellant did not co-operate in the family functions and that she misbehaved with the parents, relatives and friends of the respondent also has been denied. On the other hand, according to the appellant, she could not participate in the family functions as she was not permitted by her mother-in-law to do so. The allegation of the respondent that the appellant used to misbehave with her parents also has been denied. **Mat.Appeal No.52 /12** **: 5 :** 7. Before the Family Court, on behalf of the respondent, PWs 1 to 3 were examined and the appellant was examined as RW1. Exts.A1 to A3(c) were also produced. After considering the matter, the Family Court rendered the impugned order rejecting the ground of desertion alleged by the respondent and passed a decree of divorce accepting his case on the ground of cruelty. It is aggrieved by this order, the wife, the respondent before the Family Court, has filed this appeal. 8. We heard the learned counsel for the appellant and also the learned senior counsel appearing for the respondent. 9. Although various acts of cruelty have been pleaded by the respondent and evidence in support of the case of both sides was also adduced, the Family Court has accepted the case of cruelty only on the basis that the appellant had made reckless allegations in her pleadings and evidence. According to the Family Court, in her pleadings and evidence, the appellant had described the respondent as a robot having some abnormality and behavioral disorder. She has also stated that he is a split personality and having no respect for any truth. The Family Court has also taken note of the fact that since the last four years, **Mat.Appeal No.52 /12** ## **: 6 :** they were living separately and therefore their marriage has broken down irretrievably. Considering all these, the Family Court found that the wild allegations raised by the appellant caused mental cruelty to the respondent and that therefore the respondent was held entitled to a decree of divorce. 10. During the course of hearing, learned counsel for the appellant submitted that the alleged reckless allegations relied on by the Family Court were the answers given by the appellant to the case pleaded by the respondent or descriptions used by her to explain her contentions. According to the appellant, such answers or descriptions could not have been considered in isolation and treated as allegations causing mental cruelty entitling the respondent for a decree of divorce. He also argued that equally grave allegations were raised by the respondent in the OP filed by him. On the other hand, pleadings and evidence before the Family Court were referred to by the learned senior counsel appearing for the respondent to sustain the judgment of the Family Court. Learned senior counsel also relied on the judgment of the Bombay High Court in Manisha Sandeep Gade v. Sandeep Vinayak Gade (AIR 2005 Bombay 180), the Apex Court **Mat.Appeal No.52 /12** **: 7 :** judgment in V.Bhagat v. D.Bhagat (AIR 1994 SC 710), Srinivas Rao v. D.A.Deepa (2013(1) KHC 647) and the judgment of this Court in M. v. R (2001(2) KLT 653). 11. We have considered the rival submissions made. The judgments relied on by the learned senior counsel appearing for the respondent lays down the principle that reckless allegations raised by a party in his pleadings and evidence can be accepted by a Court to hold that mental cruelty has been caused to the spouse against whom those allegations are raised. However, in so far as this case is concerned, the question is whether in the facts of this case, it can be said that the allegations relied on by the Family Court can be taken as causing mental cruelty. 12. In paragraph 3 of the petition filed by the respondent, he has alleged that the appellant is suffering from severe behaviour disorder and he has detailed his allegations thus; “But from the date of marriage itself, the respondent was found suffering from severe behaviour disorder. The respondent's parents and other relatives were fully aware of the same. The petitioner had occasion to notice the strange, rude and arrogant manner in which the respondent was behaving towards the respondent's parents and other relatives. The respondent's attitude, behaviour and conduct towards the petitioner and his parents were very abnormal, cruel and unbearable. The petitioner was aware that the respondent's attitude and behaviour towards her parents, **Mat.Appeal No.52 /12** ## **: 8 :** sister and brother were also very cruel and in an abnormal manner Even though the petitioner had tried his level best several times, to take the respondent for counselling and other necessary steps, the respondent was never willing for the same and she used to make a hue and cry about the same. When the petitioner appraised the respondent's parents about the same, they agreed with the petitioner that it is absolutely necessary to take the respondent for counselling and necessary follow up procedures. But the respondent's parents miserably failed in their attempt to persuade the respondent to go for counselling either at Calicut or at Hyberabad or even at Mangalore, where some of her relatives are residing”. ## 13. In the subsequent paragraph also, he has made further allegations against the appellant. 14. It was in answer to these allegations in the petition that in para 4 of the counter statement filed, the appellant has stated thus; 4. With reference allegations made in para 3 of the petition respondent admits that both the parties are Hindus and hail from Gowda Saraswatha Brahmin community and that the marriage between the parties was solemnized on 25.2.2003 at Sukratindra Kala Mandir, Calicut, within the jurisdiction of this Hon'ble Court. The respondent was presented with 75 tolas (nearly 105 sovereigns) of gold in the form of gold ornaments at the time of marriage. A sum of Rs.2,10,000/- was expended by the respondent for the marriage. It is true immediately after the marriage respondent joined the petitioner at his parent's place (respondent's in-law's place). From day one of the marriage, the petitioner started troubling the respondents. When the respondent tried to address the petitioner by his name, he showed his arrogance by slapping her on her face. The respondent was taken aback at the first encounter immediately after the marriage. However, respondent kept **Mat.Appeal No.52 /12** **: 9 :** quiet thinking that as a woman, she should not make it an issue that too, without completely knowing him, his likes, dislikes, attitude, moods etc. The respondent did not like others to know about the happenings and make other worry for the respondent. As the respondent, as a member of the family had to cope up with the situation and gradually get herself adjusted. The claim of the petitioner that there was any abnormality on the part of the respondent or behavioral disorder is false. In fact the boot is on the other leg and the petitioner has no independence even to think. He does not care for his wife and child even as on date. Each and every aspect of his daily routine is controlled by his mother. The petitioner acts like a robot being controlled by his mother either in his movements, taking food, talking to others etc,. In fact he has split personality. In the presence of his mother and father petitioner acts strangely and as controlled by his mother. It is only in the absence of his parents from the house, he is normal with the respondent in his behaviour, like any other husband and wife. The allegation that the respondent is rude or arrogant or acts strangely is an absolute falsehood. The petitioner has no respect for truth. The claim of of the petitioner that the respondent's behaviour and conduct towards petitioner and his parents and sister was cruel and abnormal is without any substance. The petitioner is building up a case by levelling false allegations. The petitioner was not even liking to accompany the respondent to her parent's place. He used to accompany only at the instance of his mother. He was always commenting that this respondent 's father did not give dowry to spend in taking the respondent to Hyderabad etc. The respondent used to keep quiet with a view to avoid it becoming a big issue. Therefore the respondent was never forcing the petitioner to take her anywhere. It is only when the petitioner agreed, the respondent used to pack his bag as well as her baggage and used to go together. The respondent emphatically denies that the petitioner has appraised of the situation to the respondent's parents and that they in their turn used to agree with the petitioner stating that counseling is necessary. When the petitioner and his mother are adamant, the respondent's parents could not do anything. The claim that the respondent's attitude, behaviour and conduct towards petitioner and his **Mat.Appeal No.52 /12** ## **: 10 :** parents was very abnormal cruel and unbearable is absolutely false. The entire petition is a bundle of lies. Petitioner, at the instance of his mother somehow or the other wants to get rid of the respondent. There was nothing in the attitude of respondent that required counseling. The claim that the petitioner informed respondent's parents that the respondent requires counseling that they agreed and thereafter miserably failed to persuade the respondent to go for counseling at Calicut as well as at Hyderabad is false. The respondent is having sufficient educational qualification and she has joined service after coming back to Kerala when the petitioner did not allow her to join him. In the absence of his parents, petitioner behaves normally. In their presence, petitioner looks upon the respondent like an unwanted person. Therefore according to respondent all the petition allegations are made as per his mother's version and not that of the petitioner's personal views. Respondent submits that from the date of marriage itself, petitioner was behaving arrogantly. On the first night itself petitioner slapped the respondent when the respondent called him by name. The respondent was shocked at this, however, she kept quite thinking that as a wife she has to bear it and should not make it an issue. She also did not broach the subject with anybody i.e., either with her mother and father or mother-in-law. There has been nothing abnormal or any disorder in mental or physical condition of respondent. Petitioner does not like the respondent to go to her parent's place as it is at a long distance. It is at his mother's instance, he was accompanying the respondent. He used to complain that he is not having respondent's father's money to spend for trips to Hyderabad. 15. In her evidence in the Family Court also, both sides have reiterated these allegations. 16. Essentially therefore, what emerges from the factual situation available in this case is that, in his pleadings and evidence, the respondent husband made various allegations, **Mat.Appeal No.52 /12** ## **: 11 :** including that of mental disorder, against the wife and the wife has also made equally grave allegations against the respondent husband. In the course of making such allegations, she has described him as a split personality and a robot. We do agree that neither of the parties are expected to make wild allegations against the other, but however, in so far as this case is concerned, both of them are guilty of making wild allegations against each other. In such a situation, the Family Court is not justified in relying on the allegations made by one of the parties and find cruelty on her part and grant divorce to the other. Therefore, in the facts of this case, we are unable to uphold the course adopted by the Family Court. 17. Reading of the order shows that apart from holding that the allegations raised by the appellant against the respondent caused mental cruelty to him, the Family Court has not examined the factual allegations of cruelty raised by the husband in the petition filed by him or the contentions of the wife in the counter statement filed by her or the evidence adduced by both sides. In other words, the order has been rendered without adverting to the pleadings and evidence. **Mat.Appeal No.52 /12** **: 12 :** 18. In such circumstances, as we have already held the reasoning of the Family Court untenable, the only option is to set aside the order and remit the matter back to the Family Court for a fresh consideration of the matter duly adverting to the pleadings of the parties and the evidence that is adduced. Accordingly, the appeal is disposed of setting aside the order of the Family Court, Kozhikode in OP No.112/11 and remitting the matter back to the Family Court to reconsider the matter in the manner as directed above. It is directed that fresh orders as above shall be passed at any rate within three months of receipt of a copy of this judgment. Parties will appear before the Family Court on 16/8/13. Sd/- **ANTONY DOMINIC, Judge** Sd/- **P.D.RAJAN, Judge** Rp **//True Copy//** **PA TO JUDGE**