M. Pushpalatha v. E.K. Prasad

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY, THE 5TH DAY OF APRIL 2018 / 15TH CHAITHRA, 1940 Mat.Appeal.No. 118 of 2008 OP 52/2006 of FAMILY COURT,KOZHIKODE DATED 29-10-2007 APPELLANT/RESPONDENT: M.PUSHPALATHA, AGED 40, D/O.VELAYUDHAN, (VAZHIPADU CLERK), SREE VETTAKKARAN TEMPLE, BILATHIKKULAM,, MADAN VIHAR, NADAKKAL THAZHAM, BILATHIKKULAM, ERANHIPALAM P.O., KOZHIKODE TALUK. BY ADV.SRI.C.P.MOHAMMED NIAS ## RESPONDENT/PETITIONER:: E.K.PRASAAD, AGED 40, S/O.UNNIRAMANKUTTY, ERECHIRUKANDIYIL, MADAVOOR AMSOM AND DESOM OF KOZHIKODE TALUK. BY ADV. SRI.T.G.RAJENDRAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-042018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HARILAL & A.M.BABU, J. - - - - - - - - Mat.Appeal. 118 of 2008 - - - - - - - Dated : 5[th] April, 2018 - - - - - - - - - - - - - ## JUDGMENT Harilal, J 1.The appellant is the wife of the respondent herein. She is the respondent in O.P.52/2006 on the files of the family court, Kozhikode. The respondent filed the above petition under Section 13(1)(ia) of the Hindu Marriage Act, seeking dissolution of marriage on the ground of cruelty. The appellant denied all the allegations of cruelty alleged against her. On the rival pleadings both parties adduced evidence. After consider the evidence on record, the family court allowed the original petition by dissolving the marriage, on a finding that the allegation of cruelty alleged against the appellant is more probable and the relationship has been strained so much. This appeal is filed assailing the findings whereby the family court dissolved the marriage. **M.A.118/2008** 2 2.Parties are referred to as in the original petition. Brief facts of the case are as follows : The marriage between the petitioner and the respondent was solemnized on 28.6.2004. At the time of the marriage the petitioner was working as an Executive officer at Vettakkorumakan temple, Bilathikulam and the respondent was working as a vazhipadu clerk in the same temple. The marriage was a love marriage. There is no issues in the said wedlock. After the marriage they took rented house at Eranhipalam and lived together. According to the petitioner, within a few days of the marriage, there was a change in the behaviour of the respondent against the petitioner. She prevented the petitioner from going to his house and giving money to his mother. She used to quarrel for his visit to his mother. So the petitioner was going to his house without the knowledge of the respondent. She falsely alleged that the petitioner has illicit connection with other women in the office. Mother **M.A.118/2008** 3 of the respondent also behaved in an indecent manner. Both the respondent and her mother asked him to give account of his salary and expenses. She used to utter abusive and vulgar languages to him. The respondent abused him by uttering vulgar languages in front of his neighbours and coworkers in the office. She falsely alleged that the petitioner is taking the four year old child of his sister for his sexual satisfaction. Due to the ill-treatment and harassment, he could not do his job in the office peacefully. Due to the misbehaviour from the part of the respondent, the petitioner's friends and relatives avoided him and he was leading an isolated life. Due to the cruel treatment from the part of the respondent, he was living separately from the respondent from 4.10.2005 onwards. He is unable to continue the marital relationship with the respondent as it is intolerable to him. Hence he prayed for granting divorce to him. 3. The respondent filed counter statement admitting ## **M.A.118/2008** 4 the marriage but she denied the allegations of cruelty alleged against him. According to her, the petitioner treated her with cruelty. She denied the allegation that she resisted the petitioner from going to his house and making payment to his parents. She never made any quarrel with the petitioner in front of neighbours or co-workers. But he was coming to the house very late after job. She never made an allegation that the petitioner has illicit connection with any other woman. At the time of marriage, she had 25 sovereigns of gold ornaments and she acquired the said ornaments using her own savings from the salary but the petitioner appropriated the same and used the sale proceeds to meet his own personal needs. The petitioner used to consume liquor every day and brought liquor to the house. He never paid any amount towards maintenance allowance after withdrawal from the company with her. The allegations of cruelty are made against her without any basis as to avoid payment of maintenance allowance to her. **M.A.118/2008** 5 However, she expressed her willingness to resume cohabitation with the petitioner. Hence she prayed for dismissal of the petition. - 4.The petitioner was examined as PW1 and one of his friends was examined as PW2. The respondent was examined as RW1 and Ext B1 was marked. Heard the learned counsel for the appellant. 5. The only question to be considered in this appeal is whether the family court is justified in finding that the petitioner had succeeded in pleading and proving the allegations of cruelty alleged against the respondent. The marital status of the parties is not disputed and there was no issues in the said wedlock. Their marriage was a love marriage and the same was solemnized at the time when the petitioner and the respondent were employed as executive officer and Vazhipadu clerk respectively in a temple by name Vettakkorumakan temple. According to the petitioner, after the marriage they have taken a **M.A.118/2008** 6 house on rent near the temple and lived together. But she began to treat him with cruelty. The main allegations are as follows : The respondent prevented the petitioner from going to his house and giving money to his mother. So he began to visit his mother without the knowledge of the respondent. The respondent falsely alleged that the petitioner had illicit connection with other ladies in the office. She abused him using vulgar languages in the presence of his neighbours and co-workers in the office. Due to the misbehaviour of the respondent he could not face his neighbours and co-workers. Due to the misbehaviour from the part of the respondent, his friends and relatives avoided him. 6. On a close examination of the pleadings in the original petition we find that none of the allegations are pleaded with dates and particulars. All allegations are general statements and those allegations would not constitute act of cruelty even if those **M.A.118/2008** 7 allegations are taken at its face value. In other words, the pleadings of cruelty are not in conformity with requirements under Rule 7(3) of the Hindu Marriage (Kerala) Rules, 1963. In short, the averments do not constitute specific actess of cruelty. 7. The expression cruelty is not defined in Hindu marriage Act. The Supreme Court has considered the nature and extent of cruelty in plethora of decisions. In AIR 2002 SC 576 (G.V.N.Kameswara Rao vs G.Jabilli) the Supreme Court held that cruelty can be said to be an act committed with intention to cause suffering to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger may not amount to cruelty, though it may amount to misconduct. In AIR 2007 SC 1426 (Mayadevi vs Jagdish Prasad), the Supreme Court further held that to constitute cruelty the conduct complained of should be grave and weighty so as to come to conclusion that the petitioner spouse cannot be reasonably expected **M.A.118/2008** 8 to live with the other spouse. It must be something more serious than ordinary wear and tear of married life. In the light of the aforesaid decisions we find that the petitioner failed to plead specific act of cruelty and it is fatal to him. 8. Coming to the evidence though he has given evidence in support of the averments in the original petition, the respondent has specifically denied all the averments in the original petition and she denied the entire allegations while she was examined as RW1. Though it was averred that the respondent abused him by using filthy language in the presence of his neighbours and co-workers, none of them were examined in evidence to substantiate the said contention. PW2 is not a co-worker in the same office and it has come out in evidence that he was working in another temple. So also PW2 himself admitted that he came to know about the alleged misbehaviour of the respondent from the **M.A.118/2008** 9 petitioner. Thus, his evidence is hearsay evidence only and he is a tutored witness. He himself admitted his close previous acquaintance with the petitioner. So his evidence cannot be relied on as an independent evidence. Therefore the family court is justified in not relying on the evidence of PW2. If the evidence of PW2 is eschewed what remains is the evidence of PW1 and RW1. It means the only available evidence on record is oath against oath only. As we have held above, even if the allegations spoken to by him in his pleadings and evidence are taken as such, those allegations are not more than ordinary wear and tear of a married life. Even if the oral testimony of the petitioner is taken as such, it cannot be held that the behaviour of the respondent was with an intention to cause suffering to the petitioner and he is not reasonably expected to live with the respondent. 9. In the above analysis we find that the petitioner miserably failed to plead and prove the act of 10 ## **M.A.118/2008** cruelty sufficient enough to grant a decree dissolving the marriage under Section 13(1)(ia) of the Hindu Marriage Act. But the family court miserably failed to analyze the pleadings or evaluate the evidence on record in its correct perspective. In the above view, the impugned judgment and decree granted thereunder to the petitioner would stand set aside. The appeal is accordingly allowed. Sd/K.HARILAL Judge Sd/A.M.BABU Judge Mrcs/5.4. /True copy/ Sd/- P.S.To Judge