K.K.PRASANNAKUMARI v. P.K.KAMALASANAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 13TH DAY OF OCTOBER 2014/21ST ASWINA, 1936** **Mat.Appeal.No. 257 of 2011 ( ) -------------------------------** ## **OP(HMA) 408/2009 of FAMILY COURT, THIRUVALLA** **...........** ## **APPELLANT/PETITIONER:** **-----------------------------------** **K.K.PRASANNAKUMARI, D/O. KUNJIKUTTY, KOCHUTHADATHIL VEEDU, PATHANAMTHITTA P.O. NANNUVAKKADUMURI, PATHANAMTHITTA VILLAGE KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM** **RESPONDENT(S)/RESPONDENT:** **-------------------------------------------** **P.K.KAMALASANAN, VATTAKOOTTATHIL VEEDU, PATHANAMTHITTA P.O. NANNUVAKKADUMURI, PATHANAMTHITTA VILLAGE KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN-689 645.** **R1 BY ADV. SMT.SHERLYMOL THOMAS** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **okb** ## **V.K.MOHANAN & K.HARILAL, JJ** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** **Mat. Appeal No.257 of 2011** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 13[th] day of October, 2014 ## **JUDGMENT** ## **Harilal, J** The appellant is the petitioner in O.P(HMA) No.408/09 on the files of the Family Court, Thiruvalla. The above O.P. was filed under Section 13(1)(a) of the Hindu Marriage Act seeking dissolution of marriage. The above O.P. was tried along with O.P.No.727/09 filed by the respondent herein under Sections 7, 10 and 25 of the Guardian and Wards Act seeking custody of the two minor children born out of the wedlock. After considering the evidence on record, the Family Court dismissed both the original petitions by the impugned common judgment. The legality, propriety and correctness of the findings in the judgment passed in O.P.No.408/09 are under challenge in the appeal. 2. It is the case of the appellant that her marriage with the respondent was solemnized on 24-11-1994 at her residence. Immediately after the marriage, the respondent left for Saudi **M.A.257/11 :2:** Arabia and returned only in 1997. After the marriage, they lived together at the residence of the respondent. The appellant was employed as a Nurse in the State Government service and the respondent was employed as a Salesman in Saudi Arabia. While living together, according to the appellant, the respondent assaulted her even from the early days of marriage as he was a short tempered man. Though he was having sufficient income, he neglected to maintain the appellant and the children. In 1997, when she demanded money to meet living expenses, he brutally assaulted her. He caught hold of her hair and hit on the wall of the house. She was not permitted to go for night duty and the respondent was also suspicious and he unnecessarily imputed false allegations against her chastity. While she was carrying on the second occasion she was forced for unnatural sex and when she resisted the same, she was manhandled. In 2006, when the respondent left for Saudi Arabia, the appellant tried to contact him over phone. But her phone call was not attended. Later, the respondent himself informed that he does not want to continue the marital relationship. Thus, the marital relationship has been irretrievably broken down and it could not be continued and she **M.A.257/11 :3:** prayed for dissolution of marriage. 3. The respondent resisted the allegations by filing a counter denying the allegations of cruelty and harassment levelled against him. But he admitted the marital status of the appellant and the paternity of the children. He emphatically denied the allegation that he assaulted the petitioner cruelly on different occasions. He denied the allegation that once he physically assaulted her and he hit her head against the wall. The allegations that she was denied of permission to go for night duty and she was sexually assaulted were also denied. The further allegation that he made imputations affecting the chastity of the appellant is also denied. According to him, he has constructed a house using his money earned from Gulf country for their joint residence and they were residing together and he had been sending money every month for the maintenance of the petitioner and the children. In short, he has been looking after the wife and the children properly. 4. The documentary evidence consists of Exts.A1, produced by the appellant and B1 and B2 produced by the respondent. The appellant was examined as P.W.1 and the respondent was examined as C.P.W.1. After considering the **M.A.257/11 :4:** evidence on record, the court below found that the appellant miserably failed to prove that the respondent has treated her with cruelty. 5. The learned counsel for the appellant advanced arguments challenging the findings of the court below whereby the court below found that the appellant failed to prove the allegations of cruelty. According to the learned counsel, the court below failed to appreciate the evidence of P.W.1 in its correct perspective. The court below ought to have found that there were sufficient evidence to prove the cruelty of the respondent. But the court below grossly erred in rejecting the oral testimony of the appellant. The findings of the court below, that the allegations of the appellant are vague and the appellant did not specify the date on which the alleged incident took place, are without any basis. In short, according to the learned counsel, the allegations are definite and the same were proved by cogent and convincing evidence. The court below has failed to consider the delay in filing the O.P. after the alleged incidents, in its correct perspective. 6. Per contra, the learned counsel for the respondent advanced arguments to justify the findings of the court below. **M.A.257/11 :5:** According to the learned counsel, the court below has correctly appreciated the entire evidence on record and arrived at a proper finding that the appellant failed to prove the allegations of cruelty levelled against the respondent. Similarly, the original petition itself is suffering from lack of definite pleadings as to the allegations of cruelty, as rightly pointed out by the court below. According to him, the allegations of cruelty are nothing more than wear and tear of marital life. 7. Going by the impugned judgment under challenge, it is seen that the court below has rightly framed proper issue, whether the appellant was subjected to cruelty by the respondent as alleged and she is entitled to a decree for divorce? 8. The oral evidence available on record is confined to evidence of P.W.1 and C.P.W.1 alone. No other witness was examined to prove the allegations in the Original Petition. Ext.A1 is the marriage certificate issued by the Registrar of Marriage and Exts.B1 and B2 are the Birth Certificates of the children. Since the marriage and paternity of the children are not disputed, the production of those documents pales to insignificance as far as the issue involved in this case is **M.A.257/11 :6:** concerned. 9. Going by the pleadings and evidence, the appellant has narrated four instances of cruelty. The first incident was in the year 1997. According to her, in 1997, while the respondent came on leave, he assaulted the appellant physically by hitting her head against the wall and by thrashing on her abdomen. As regards this incident, the only available evidence is the oral testimony of P.W.1. But, the respondent, in his pleadings and evidence, emphatically denied the said allegation. In short, the only available evidence is confined to oath against oath only. The second allegation is that of the year 2001. The appellant alleged that, in 2001, the respondent imputed false allegations of illicit relationship with a strange man working with her and she was assaulted accusing illicit relationship, which was unfounded. The details of the allegations of that illicit connection, which are said to have been alleged by the respondent, had not been brought out in evidence. Even the identity of the man with whom the appellant is said to have illicit relationship is not disclosed either in the pleadings or in the evidence. It is also alleged that there was an attempt to assault the second child by threatening to hit him on floor. But **M.A.257/11 :7:** the particulars of the said incident had also not been brought out in evidence. In short, there is no independent evidence to support the allegations of cruelty in the petition even if those allegations are taken at its entirety and face value. As rightly observed by the court below, the allegations of cruelty in the petition are too vague and sans particulars. Without specifying the respective dates on which the incidents happened, she causally alleged that there were sufficient instances of physical and mental cruelty. It is well settled that no amount of evidence can be looked into to find a case for which there has been absolutely no foundation in the pleadings. [vide **Siddik Mohamed Shah v. Mt. Saran and others (AIR 1930 PC 57), Elizabeth v. Saramma (1984 KLT 606),** and **Bhagavadi Prasad v. Chandramaul (AIR 1966 SC 735)** ]. 10. More importantly, this original petition was filed in the year 2009 only, though the alleged incidents of cruelty are said to have been occurred in the year 1997, 2001 and 2002, respectively. Even after those incidents they have resided together for a considerable period of 7 years, ie upto 2009. Had he been so cruel and caused reasonable apprehension in the mind of the appellant that it is not safe or it is harmful or **M.A.257/11 :8:** dangerous to live along with the respondent, certainly the original petition seeking decree of divorce should have been filed much earlier. The inordinate delay indicates lack of bona fides of the allegations of cruelty condoned. 11. In **Jayakrishnan Nair v. Salini Prasanna Balachandran Nair [2013 (2) KHC 268]** , this Court held that when one party approaches the Court alleging cruelty, it is the primary responsibility of that party to plead and establish cruelty and that a particular incident at a particular place was happened or such incident happened at various places during the subsistence of marital relationship. Cruelty as a ground for divorce has to be clearly established by clear, cogent and convincing evidence. In **Suchithra v. Anil Krishnan [2007(2)** **KHC 680]** , the Apex Court held that cruelty is a misbehaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. An inference of cruelty can be drawn from the attending facts and circumstance taken cumulatively from the evidence on record. 12. When tested with the above proposition laid down by **M.A.257/11 :9:** the Apex Court as well as this Court, we find that though certain vague allegations sans particulars are made in the petition, the appellant miserably failed to prove that those allegations caused reasonable apprehension in her mind that it is not safe for her to continue the matrimonial relationship with the respondent. We are of the opinion that the incidents alleged are mere trivial irritations and wear and tear that may happen during the course of matrimonial life. We find that the evidence available on record on the allegations levelled against the respondent are not sufficient to arrive at a conclusion that the respondent treated the petitioner with cruelty. Thus, there is no illegality or impropriety in any of the findings of the court below and we do not find any perversity in the appreciation of evidence from which those findings are arrived at. Thus, this appeal is devoid of merit and dismissed accordingly. Sd/- ## _**(V.K.MOHANAN, JUDGE)**_ Sd/- **(** _**K.HARILAL, JUDGE)**_ ## **okb.**