Latheesh T.P. v. Dhanila K.P.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** **Mat.Appeal.No.369 OF 2013** **AGAINST THE JUDGMENT IN OP 320/2011 DATED 28-02-2011 OF FAMILY COURT, THALASSERY** ## **APPELLANT/PETITIONER:** **LATHEESH T.P. AGED 36 YEARS S/O.PARAMESHWARAN, THATTARUPARAMBIL HOUSE, KANDAPPANAM, AMBAYATHODE P.O., M.C.KOTTIYOOR, KANNUR DISTRICT.** **BY ADV. SRI.C.P.PEETHAMBARAN** ## **RESPONDENT/RESPONDENT:** **DHANILA K.P. AGED 26 YEARS D/O.DAMODARAN, KARUVANTA PARAMBATH HOUSE, PALAKKOOL, ELANGODE P.O., PANOOR VILLAGE, KANNUR DISTRICT-PIN - 670 692** **R1 BY ADV. SRI.B.ASHOK SHENOY R1 BY ADV. SRI.K.V.GEORGE R1 BY ADV. SMT.C.G.PREETHA R1 BY ADV. SRI.P.N.RAJAGOPALAN NAIR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No.369 OF 2013 2** ## **JUDGMENT** **Dated this, the 8[th] day of January, 2020** ## _**Mary Joseph, J.**_ O.P.No.320/2011 filed by the husband in a matrimonial relationship, before the Family Court, Thalassery seeking for a decree for dissolution of marriage with the respondent under Section 13(1) (ia) of Hindu Marriage Act, was dismissed by the court for the reason that dissolution sought on the ground of cruelty of the wife was not established by him successfully. The aggrieved husband is before the court in the appeal on hand seeking to reverse the finding for the reason that the Family Court has failed to appreciate the evidence in its proper perspective to hold that cruelty alleged is not established, that it had acted upon the desire of the wife to live with the husband as a ground to deny the relief and that it failed to apply its judicial mind to the evidence on record to find that the marital relationship between the parties was irretrievably broken. 2. The facts of the case and the evidence adduced by the **Mat.Appeal.No.369 OF 2013 3** parties being relevant for determination of the disputed factums, a discussion is made on those hereinbelow: 3. The marriage sought to be dissolved by the petitioner was solemnized on 11.11.2007 as per Hindu religious rites and ceremonies and also got registered at Grama Panchayath, Panur. According to the petitioner the respondent was not in cordial terms to him from the inception of the marriage itself, that she was never interested to talk to him, that she was frequently talking with strangers over mobile phone, whenever the petitioner was outside the room, whom she had falsely represented to him as her relatives, that she never treated the petitioner as her husband, that she used to scold him in front of his friends and neighbours, that she used to get angry even for silly reasons, that she used to say badly about the relationship between the petitioner, his sister and his mother, that she used to disgrace the petitioner in front of his relatives who visited the matrimonial home, that she was not cordial to any of his relatives and that she was in the habit of making scandalous stories about the petitioner with the visitors of the house. It was also stated in specific terms that she had a love affair with someone prior to her marriage and the marriage with the petitioner was conducted against her consent. The attitude of **Mat.Appeal.No.369 OF 2013 4** the respondent at the matrimonial home was very strange and thereby petitioner was constrained to take her to a psychiatrist to put under medication. She was taken to her parental home and on their assurance that she got retrieved of every problems that she was taken back to the matrimonial home again to continue her life with the petitioner. But, the cordial approach of the respondent lasted only for two days and thereafter she continued to behave in the manner as she was originally. On one occasion she had stated to the petitioner that she will commit suicide and even attempted that, but due to timely intervention of the petitioner and his relatives, it was averted. A particular instance of insult narrated in the petition was that on 08.06.2010 when the petitioner had left for job from the matrimonial home and reached near the bus stop, the respondent followed him to offer a bottle of water to him and on his refusal to accept the same, the bottle was opened and the water contained therein was poured into his bag and thus caused the articles inside it to get wet. The mother of the petitioner came there to intervene and take her back to the house. The respondent then uttered obscene words against the petitioner and his mother before the public. She has also gone to the extent of beating her mother-in-law infront of the people gathered there. ## **Mat.Appeal.No.369 OF 2013 5** She has also beaten the petitioner with a stick stating that she does not want to keep him as her husband and that the claim of the petitioner that he is her husband is recognized only for the reason of the 'thali' lying around her neck. She had also threatened the petitioner on several occasions that she would commit suicide. The petitioner was fed up with the aforesaid acts of the respondent and was also on much mental strain. Children were not begotten in the marital relationship. According to him, his life turned highly miserable and therefore he has applied for dissolution of marriage by filing the original petition in question. 4. After the appearance in the original petition the respondent had filed counter statement admitting her status as wife of the petitioner after the solemnization of marriage on 11.11.2007. The entire averments of the petitioner in the petition on hand were denied by the respondent. It is contended that the petitioner's parents and brothers did not like her marriage with the petitioner and that the marriage had taken place on her free consent. Therefore, from the first day of the marriage itself the attempt of the in-laws was to get them separated by spreading false information about the respondent to the petitioner who was abroad. According to her, 25 sovereigns of gold ornaments given **Mat.Appeal.No.369 OF 2013 6** to her at the time of marriage were taken by the mother and brothers of the petitioner and were not returned to her, that the in-laws used to abuse her in the presence of her relatives and neighbours, that they never permitted her to contact the petitioner over phone, that believing the words of the in-laws, she was assaulted by the petitioner and that they used to threaten that if she does not leave the petitioner, they will kill her by pouring kerosene over her. It was also contended that on a brutal attack by the petitioner, she had fallen unconscious once, that she was taken from the matrimonial home by her parents and was brought back, based on a settlement of their disputes in a mediation process and tendering of apology by the petitioner. According to her, the incident allegedly occurred on 08.06.2010 as claimed by the petitioner is a false and concocted one. According to her, she desires to continue her matrimonial life with the petitioner and the latter had approached the Family Court for dissolution of marriage only out of compulsion of his parents and siblings. It is also contended that there is absolutely no basis for the petitioner to aver that the matrimonial relationship has become irretrievably broken. Raising contentions as above, the respondent has pleaded for dismissal of the original petition. **Mat.Appeal.No.369 OF 2013 7** 5. The parties faced trial on the rival pleadings as aforesaid. On the side of the petitioner, oral evidence was tendered by him and his mother respectively as PW1 and PW2. The Marriage Certificate issued by the Secretary and Registrar of Marriages, Grama Panchayath, Panur was produced and got marked in evidence as Ext.A1. On the side of the respondent, herself tendered oral evidence as RW1. 6. The evidence tendered as above were appreciated by the Family Court, Thalassery and came to the conclusion that adequate evidence have not been adduced by the petitioner to establish cruelty sufficient for grant of a decree for dissolution of Marriage in favour of the petitioner. Accordingly, the Original Petition was dismissed. 7. Since the order is under challenge, this Court is required to have an appraisal of the evidence on record to find out whether the petitioner was successful in establishing cruelty of respondent. A reading of the evidence tendered by the petitioner would indicate that, as PW1 he has not deviated from his pleadings in the original petition. Whatever he had pleaded in the Original Petition have been deposed by him during examination in categoric terms. Though there was strict denial of the pleadings in the counter **Mat.Appeal.No.369 OF 2013 8** statement filed by the respondent, she does not succeed in establishing those by adducing independent evidence and controverting the evidence tendered by PW1 and PW2. PW2 is none other than the mother of PW1. She has also tendered version strictly to corroborate those stated by PW1. On an overall scrutiny of the evidence as stated above, this court is convinced that the respondent's conduct was totally extraordinary. As the version of PW1 and PW2 reveal, the respondent was always quarrelsome even on silly matters which if were not given much importance to, could have helped to maintain the peaceful atmosphere in the house. The versions of PW1 and PW2 would undoubtedly lead this Court to be convinced of the attitude and conduct of the respondent at the matrimonial home. The way in which the respondent had been insulting the petitioner and his mother have also been spoken to in corroborative terms by Pws 1 and 2. The version of PW1 also indicates that the respondent was in the habit of talking to strangers over mobile phones in his absence on the pretext that relatives are at the receiving end. According to him, it was also revealed to him in the enquiry that respondent had a premarital love affair and therefore she does not love to live in matrimony with him. To his utter dismay an incident was caused **Mat.Appeal.No.369 OF 2013 9** by the respondent to occur at the Bus Stop in front of public on 08.06.2010 by pouring water from a bottle into petitioner's bag for the simple reason that he had not taken the bottle containing water offered by her to him. According to him, the respondent had even beat his mother before the public gathered there, for her intervention and attempt to take her back home. According to him, respondent had also assaulted her. PW2, the mother had also tendered like versions to support PW1's evidence. 8. The respondent while deposing as RW1 totally denied the versions of PW1 and PW2. According to her, she was affectionate to PW1 and in-laws and had never acted in the manner spoken by them. However, she has admitted that herself and PW1 had resided together in matrimony for more than two years but a child was not begotten. Admittedly, that factum has caused a role for the relationship to be strained. Her evidence would also disclose that petitioner had left for Karnataka immediately after the marriage to assume employment there and thereafter his visits to the matrimonial home were restricted to once in a week. According to her, during the visits of her husband at the matrimonial home, his relatives used to transpire false informations about her to him, which she could not succeed to **Mat.Appeal.No.369 OF 2013 10** clarify for the reason of denial of access and want of privacy. According to RW1, her poor family background was also a reason for the dislike of the in-laws. Her version also would reveal that 25 sovereigns of gold ornaments given at the time of marriage was also taken away by PW2 and brother of PW1 within one week of the marriage itself. For the reason that she did not conceive, the in-laws had even gone to the extent of calling her, barren lady. She has also deposed to convince the court that the in-laws had extended threats to kill her for not conceding to their proposal to divorce the petitioner. The in-laws also used to nag her by questioning her non-aesthetic appearance and dark complexion. Amidst all, RW1 had exposed her mind to state that PW1's relatives alone were responsible for all problems that arose in their life and she has no complaints against PW1. According to her, want of opportunity to co-habitate was the reason for her failure to bear a child. It was also spoken by her that during her separated life the relatives have mediated the issues among herself and PW1 and brought her back to the matrimonial home, but the joint life sustained only for a few days. 9. In the case on hand evidence have been tendered by both parties to the Original Petition. It has come out from the **Mat.Appeal.No.369 OF 2013 11** evidence of the petitioner that he does not like to continue the matrimonial relationship with the respondent any more for reasons narrated by him. To strengthen his version on the conduct, attitude and behavour of the respondent, he had also examined his mother as PW2. It is true that the mother is an interested witness. But most of the incidents spoken by PW1, having been occurred within the matrimonial home, the chance to procure an independent witness to speak on matters that occur within the family is remote. When viewed in that backdrop, none other than the in-laws will have competency to speak about those aspects. It is pertinent to note that the witness PW1 and PW2 sustained credence, despite the lengthy cross-examination to which they have been subjected to by the respondent. 10. The respondent failed to adduce evidence, either by examining any of her relatives or any independent witnesses, neither to substantiate her contentions nor to controvert the versions of PW1 and PW2 attributing accusations against her. It is her specific version that the in-laws had a feeling that she was not a suitable wife for PW1 and therefore, threats were extended by him to do her away. It is also her grievance that, PW1 being employed away, she had only restricted access to him and **Mat.Appeal.No.369 OF 2013 12** therefore could not project those to him. There is absolute want of evidence to support her versions against PW1 and in-laws. Evidence is also not forthcoming to show that the respondent had projected her complaints about the attitude of PW1 and in-laws against her, before any authority, at any point of time. For the reason that corroborative evidence have not been adduced by the respondent, her version that the petitioner and his in-laws were not in cordial terms to her, is only to be discarded and accordingly we do so. 11. It is an admitted factum that the parties were living separated for quite a long time. The reasons barring their living together were deposed by PW1 and PW2 collaboratively and the respondent did not succeed in controverting those. The respondent has been projected by the petitioner and his mother as a non-adjusting and quarrelsome lady, even on trivial matters. Indisputably, the said character of the wife is detrimental to the peaceful atmosphere of a family. It is evident that by frequent explodes to minor issues, the respondent has caused the life of the petitioner miserable and unsmooth. Evidence have been tendered by PW1 and PW2 on attitude of respondents towards the petitioner, which undoubtedly will tantamount to mental cruelty. Even **Mat.Appeal.No.369 OF 2013 13** episodes of physical cruelty have also been spoken by them. We are of the considered view that family being a union of two people with divergent character and family background, wear and tear are usual and are essential for a normal family life. But in the case on hand the respondent was in the habit of creating problems one after another on silly reasons. The problems created, though without adequate basis but being frequent, undoubtedly are nothing but cruelty. 12. The Family Court has observed in the light of the evidence tendered by RW1 that she is desirous of living with PW1 in matrimony and in-laws are standing in the way of that. The Family Court has taken that also as a ground for declining the decree of dissolution of marriage in favour of the petitioner. In a case of the nature, the Family Court ought to have appreciated the evidence adduced by the petitioner, to see whether cruelty alleged against the respondent is established. The court ought not to have carried away by the sentiments of the parties to the litigation as was done by the Family Court in the case on hand. As already discussed with, the petitioner has succeeded in establishing that the respondent was frequent in creating situations uncordial in the matrimonial home, so as to endanger the peaceful situation there. ## **Mat.Appeal.No.369 OF 2013 14** The petitioner was also successful in establishing that the respondent was in the habit of paying abuses, spreading wrong information about the relationship of the petitioner with his relatives and also manhandling the petitioner and his mother. When evidence to the above extent was there on record, the Family Court has gone wrong in arriving at a finding that the petitioner failed to establish cruelty as contemplated by the Statute to grant a decree for dissolution of marriage in favour of the petitioner. 13. It is pertinent to note that the Original Petition was filed in the year 2011. Therefore, the version of PW1 that they were living separated from 2010 onwards is only to be relied on. The respondent has also no contra say in the matter. Absolutely no evidence was tendered to establish that measures have been taken in the meantime to settle the issues amicably. 14. The judgment under challenge was passed in the year 2013. The appeal on hand was also filed in the year 2013. It is evidenced that since 2013 till date, the parties are living separated. That itself shows that the matrimonial bond is destructed to such an extent that repair of the same is impracticable. While tendering evidence, though RW1 had spoken **Mat.Appeal.No.369 OF 2013 15** sensitively that she desires to join the petitioner in matrimony and to have a life together, it is surprising to note that for the last six years, not even an attempt was made by her to join him. The evidence is also not forthcoming to show that the respondent had approached any authorities to get the issues settled so as to bring the matrimonial life back to normalcy. The above attitude of the respondent itself indicate that what have been deposed by her before the court is against truth. Her adamant nature is disclosed from her failure to return to the matrimonial home during this extended period of time. The said attitude is nothing but cruelty towards the petitioner. Despite the support of legal tie, the marriage among the parties have become a fiction. Apart from instances of cruelty as narrated hereinabove, the respondent has proved herself unfit to provide a peaceful life to the petitioner, relieved of all mental strains, by failing to take measures to join the petitioner. Therefore, the marital relationship of herself and the petitioner has been irretrievably broken. The Apex Court in **Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511]** while dealing with a case where the parties had admittedly been separated for more than 16½ years held that the entire substratum of marriage had already been disappeared and that the **Mat.Appeal.No.369 OF 2013 16** matrimonial bond therefore had been ruptured beyond repair because of the mental cruelty extended by the wife to the husband therein. Accordingly, the court held that the marriage has been irretrievably broken and any further effort to keep it alive would prove to be totally counterproductive. Accordingly, the decree for divorce granted by the Family Court and lateron reversed by the High Court was ordered to be restored. The circumstances in the case on hand being identical, we have no hesitation to hold that the Family Court has gone wrong and unjustified in declining to grant a decree for dissolution of marriage despite the evidence establishing mental and physical cruelty exist on record. This Court is also inclined to take a view from the circumstances that exist in the case on hand after declining to grant the decree for dissolution of marriage that the marital bond of the parties has been irretrievably broken and any attempt to join them would only be a futile exercise. 15. In the above circumstances, we have no hesitation to hold that the Family Court has thoroughly failed to apply its mind to the evidence on record while dismissing the Original Petition and declining to grant a decree for dissolution of marriage as sought by the petitioner. **Mat.Appeal.No.369 OF 2013 17** In the result, the appeal on hand is allowed. The decree of the Family Court, Thalassery is set aside. The marriage between the petitioner and the respondent is hereby declared as dissolved. No order as to costs. **Sd/A.M.SHAFFIQUE JUDGE Sd/MARY JOSEPH JUDGE** NAB