Manju Padayatti v. Midhun Jose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 19TH DAY OF APRIL 2016/30TH CHAITHRA, 1938** **Mat.Appeal.No. 68 of 2015 () ---------------------------** **AGAINST THE JUDGMENT IN O.P.NO.1369/2014 of FAMILY COURT,ERNAKULAM DATED 06-11-2014.** **APPELLANT/PETITIONER:** **--------------------** **MANJU PADAYATTI, D/O.P.M.POULOSE, VILLA NO.1, CHAKOLAS HABITAT, NEAR MILMA, EDAPPALLY P.O., KOCHI-682024** ## **BY ADV. SRI.ROY CHACKO** ## **RESPONDENT/RESPONDENT:** **---------------------** **MIDHUN JOSE, HOUSE NO.18, PUTHUSSERY HOUSE, KALLUPALAM ROAD, ANGAMALY-683 572.** **BY ADV. SRI.SAIBY JOSE KIDANGOOR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01-04-2016, ALONG WITH MAT.APPEAL NOS.81 & 103 OF 2015, THE COURT ON 19.04.2016 DELIVERED THE FOLLOWING:** **P.T.O** ## **C.K. ABDUL REHIM & SHAJI P. CHALY, JJ.** -------------------------------------------------- **Mat. Appeal Nos.81, 68 & 103 of 2015 ----------------------------------------------Dated this the 19[th] day of April, 2016** ## **JUDGMENT** ## _**Shaji P. Chaly, J.**_ Above Matrimonial Appeals arise from a common judgment of the Family Court, Ernakulam, dated 06.11.2014 in O.P.No.2205 of 2012, O.P.No.1369 of 2014 and O.P.No.2204 of 2012 respectively. O.P.No.2205 of 2012 is filed by the appellant seeking dissolution of marriage under Sec.27 of the Special Marriage Act r/w Sec.10 of Indian Divorce Act, which was dismissed by the Family Court. O.P.No.1369 of 2014 was filed by the respondent under Sec.22 of the Special Marriage Act, 1954, seeking restitution of conjugal rights, which was allowed by the Family Court. O.P.No.2204 of 2012 was filed by the appellant seeking realization of an amount of Rs.35,06,524/- with 12% interest from the date of suit till realization, which was partly allowed by the Family Court by granting a decree to the appellant for an amount of Rs.40,000/- with 6% interest p.a. from 17.11.2011 till its realization. The Family Court has disposed of the aforesaid **Mat. Appeal No.68/2015 & conn. cases** 2 Original Petitions by its common judgment since the subject matter of the cases are intrinsically connected. Therefore, we also propose to dispose of the same by a common judgment. In order to dispose of the appeals, the facts recited in Mat. Appeal No.81 of 2015 is narrated and the facts in all the appeals are almost similar and common and therefore separate narration of facts are not required. If at all the same is required, it will be stated wherever it is appropriate. 2. Appellant and respondent are wife and husband respectively. Their marriage was solemnized in accordance with provisions of the Special Marriage Act on 02.07.2011. Thereafter on 16.07.2011 a marriage was solemnized in accordance with rites and ceremonies prevailing in the Syrian Catholic community to which the appellant and respondent belong. 3. At the time of marriage, the respondent was working at IBM India Projects Ltd., at Bangalore as a Software Engineer and he was deputed for an assignment to Finland, a country in Western Europe. On 25.07.2011, the respondent along with the appellant went to Finland to take up his assignment. It is contended by the appellant that during the **Mat. Appeal No.68/2015 & conn. cases** 3 short period of the parties united as man and wife, appellant found that respondent was a chronic drunkard and behaved in a very abnormal manner, under intoxication. That apart, it is contended that, the respondent was not at all interested in maintaining a cordial and amicable marital relationship with the appellant and the appellant stated several incidents in the Original Petition pointing out the abnormal and unusual behaviour from a highly educated person and he fails to discharge his duties as a husband. The attitude and behaviour of the respondent was unbecoming of a lovable husband, which under the ordinary circumstances would compel the life partner to leave the matrimonial home to join her parents. However, hailing from a traditional Catholic background, which considered marriage as a Sacramental bond, the appellant and her parents expected with hope that the respondent would mend his ways, is the contention. 4. It is the further contention of the appellant that, reaching Finland, the respondent continued his drinking habits and used to come home very late in the night, that the assignment in Finland was short lived, the reasons for which were not divulged either to the appellant or to her parents. **Mat. Appeal No.68/2015 & conn. cases** 4 The deputation came to an abrupt halt on 28.08.2011 and thereupon the respondent was directed to report duty at Bangalore, immediately. It is further contended that, termination of the deputation of the respondent in Finland was unexpected and out of disappointment and frustration, the respondent took to severe consumption of alcohol almost, nonstop from morning to night, thus making the situation uncontrollable. Even though the appellant tried her level best by requesting the respondent to return to his normal professional pursuits by stopping consumption of alcohol, the request was not heeded by the respondent. On the other hand, the respondent in inebriated condition abused and illtreated the appellant on 24.08.2011, accusing her parents and family members to be the cause for his misfortune. Respondent immediately told the appellant to call her parents in order to take the appellant from Finland and declared that thereupon his life would be saved. Being fearful of the situations thus emerged, the appellant telephoned her parents and conveyed them of the necessity of their visit to Finland and accordingly the parents of the appellant visited Finland on 06.10.2011 and stayed there for two days with the appellant **Mat. Appeal No.68/2015 & conn. cases** 5 and the respondent. 5. The respondent left for Bangalore on 08.10.2011 and thereafter the parents of the appellant stayed back to extend company to the appellant. They remained there till 20.10.2011 and reached back home on 21.10.2011 along with the appellant. It is the further contention of the appellant that, in the meanwhile, the respondent had been making telephone calls to the appellant most of which were in abusive language, coupled with threats and admonitions. Appellant contends that, even allegations of pre-marital relationship with others were also raised against the appellant. At times, when father of appellant intervened, he had also faced with abusive words and admonitions from the respondent. Therefore, it is the case of the appellant that, the situation was such, it became very difficult for the appellant to continue her marital relationship with the respondent. As an attempt to regain marital harmony, family members of both the parties as well as some common friends advised the respondent and appellant to visit 'Santwana' Counselling Centre, managed by the Congregation of the Mary Immaculate, the CMI Priests. Accordingly, a priest namely Fr. Varghese Puthussery was **Mat. Appeal No.68/2015 & conn. cases** 6 requested to provide counselling to both parties. Counselling was conducted on 29.10.2011 by Fr. Varghese Puthussery. After counselling, the priest conveyed to both the parents that the respondent has decided to give up his drinking habit and accordingly he requested the appellant to accompany the respondent to Bangalore. The priest also requested the parties and their parents to meet him for a review after two weeks. Even though the appellant was hopeful that respondent will abide the advise provided by the priest during the course of counselling, quite contrary to the same, the respondent continued his alcoholic habits with more vigor, causing deep mental agony to the appellant. The appellant also contended that, the respondent on one occasion even went to the extent of declaring that he would go to court for proving her relationship with her father, which according to the appellant, was too much to bear. Even though the appellant vehemently protested on the said remark made, she was severely beaten up and abused by the respondent. It is also the contention of the appellant that physical and mental harassment continued on all the days when they were living at Bangalore. **Mat. Appeal No.68/2015 & conn. cases** 7 6. While the appellant and respondent were at Bangalore, the mother and sister of the respondent visited them and even though they were in the know of things, they fully supported the respondent and brought out new set of allegations against the appellant. This mentally disturbed the appellant and at that point of time, the appellant called her parents and requested them to take her to the parental house, as she suffered from great mental hardship in living with the respondent, and also conveyed that she could not any longer adjust with the respondent to continue a healthy and normal marital relationship. In accordance with the request made by the appellant, she was brought back to her parental house. Thereafter, the respondent came to his house on “work from home arrangement”. During this time, respondent attempted to call the appellant and repeated his demand for seeking divorce and wanted to talk to her parents about this subject. The appellant was invited by the respondent to visit his house in order to go in pilgrimage to few Churches and for attending a family function. The said request was repeated by the mother of the respondent also. It is the contention of the appellant that, as a dutiful wife, appellant believed the words **Mat. Appeal No.68/2015 & conn. cases** 8 and went to the respondent's house in order to comply with the request made by the respondent. The parents of the appellant permitted her to leave the parental home on condition that she would be brought back after the family function is over. Since even after the day of the function the appellant did not return and this situation created a suspicion in the minds of the parents that the respondent had plans to take the appellant to Bangalore clandestinely, the father of the appellant immediately went to the residence of the respondent in order to make necessary enquiries. 7. It is contended that, upon hearing the news of the visit of the father-in-law, the respondent became very furious and exhibited certain mannerisms which were very abnormal in nature. The respondent declared that the father- in-law would not be permitted to enter the house and he would break his legs and destroy his car if he dares to do so. That, there was an unruly and uncontrollable situation when the father of the appellant visited the house of the respondent, which no father in his senses would have tolerated. The father of the appellant in spite of all the unbearable situations that took place, kept his cool and demonstrated absolute craftsmanship in order to **Mat. Appeal No.68/2015 & conn. cases** 9 avoid any catastrophe to the appellant. That apart, it is contended that the respondent shouted in the presence of the people present there that he would kill his father-in-law, if he dare to come to meet the respondent with a request to take away the appellant. The mother and sister of the respondent who were present there tried their best to persuade him and restrain him from proceeding further. When the father of the appellant reached there, respondent who was in his bed room after having consumed some tablets and oil applied to his head, wearing only an undergarment, came out of the bed room and shouted at the father-in-law who requested the appellant to accompany him immediately with her belongings. Infuriated by the said situation, respondent snatched the bag and threw it away. The respondent slapped the appellant on her face, forcibly dashed her head against the wall and put her down on the floor and shouted to his sister to close the door in order to prevent the appellant from leaving the house. At this point of time, when the father of the appellant tried to save his daughter from the clutches of the respondent, respondent gave a forceful push, consequent to which, appellant's father fell down on the floor and thereupon respondent brutally kicked **Mat. Appeal No.68/2015 & conn. cases** 10 him on his chest. At that point of time, when the father of the appellant cried aloud for help, respondent's mother entered the scene and opened the door and let the father and appellant escape from there and the driver immediately took them to the parental home. 8. The very next day, the respondent along with a priest viz. Fr. Jolly went to the residence of the appellant and tried to impress upon the appellant and her parents that the respondent was very apologetic to them for whatever happened on the previous day and sought their pardon for all the misdeeds committed by him. It is the contention of the appellant that, the said visit was only a ploy in order to prevent the appellant and her parents from preferring a police complaint against the physical assault and abuses made against them. The respondent even fell at the feet of the appellant in his attempt to seek pardon and so also with the parents of the appellant. The priest recited few prayers and requested both parties to carry on with the matrimonial relationship in a peaceful and amicable manner and he advised the parents of the appellant to desist from filing a complaint to the police, thereby spoiling the career of the respondent. On **Mat. Appeal No.68/2015 & conn. cases** 11 account of the request made by the priest and the request made by the respondent by a further undertaking that no such incident would arise in future, the appellant and her parents refrained from preferring a police complaint. 9. But, according to the appellant, later they realized that the demonstrations of pardon exhibited by the respondent was hollow in nature and he did not keep up his promise made in the presence of Fr. Jolly to continue the marital life with harmony and peace. It is under such circumstances, the appellant believed that the respondent is totally unreliable, irresponsible and an insane person who is unfit and incompetent to live a normal life by discharging duties and responsibilities expected in a healthy and decent marital relationship. In the meanwhile, the respondent left for U.K. in connection with another assignment, without informing the appellant. 10. It is under such compelled circumstances, the appellant was constrained to file the Original Petition seeking dissolution of marriage under Sec.27(d) and (e) of the Special Marriage Act r/w Sec.10(x) of the Divorce Act. **Mat. Appeal No.68/2015 & conn. cases** 12 11. The respondent entered appearance and filed objection. According to the appellant, the denial made in the objections was not in accordance with law, by extracting the averment in its entirety and denying the same in one sentence “are utter false and hence denied by the respondent”. After extracting the contentions of the appellant in the Original Petition and after denying the same, the respondent has stated that the father of the appellant had desired for marital alliance of his daughter with the respondent for the reason that he had a decent job and was about to pursue his employment in Finland. That apart, it is stated that, since his father-in-law found that the assignment in Finland was terminated, he became furious. He wanted his daughter to go to the parental house as a sequel to parting company with the respondent. It is contended that the father of the appellant acted as a hindrance to their marital relationship. It is also contended by the respondent that the parties do not have any serious differences, but it is only the father of the appellant who wants to create problems and to put an end to the matrimonial relationship on account of his prejudice to the respondent. **Mat. Appeal No.68/2015 & conn. cases** 13 12. From the pleadings, the Family Court has raised two points for determination: (1) Whether the petitioner is entitled to get a decree for divorce on the ground of cruelty? and (2) Relief and costs? 13. In Mat. Appeal No.68 of 2015, the appellant is challenging the judgment of the Family Court granting the decree sought for by the respondent for restitution of conjugal rights. The contentions of the respondent therein are that, there are no serious matrimonial disputes existing by and between the appellant and the respondent, that the respondent has taken all the contentions raised by him under his objection in O.P.No.2205 of 2012. That apart it is contended that, the father of the appellant was instrumental in causing disruption to the matrimonial harmony and peace of the appellant and the respondent. It is also contended that the respondent, his friends and well-wishers had requested the appellant to come out of the clutches of her father in order to live a happy and harmonious life. But the appellant declined to abide by such advises provided. The respondent contended that he is not ready to put an end to the matrimonial bond created by and between the appellant and the respondent. **Mat. Appeal No.68/2015 & conn. cases** 14 14. The appellant objected to the petition filed by the respondent seeking restitution of conjugal rights by raising the contentions she has raised in O.P.No.2205 of 2012 and that apart, it was contended that it is impossible to lead a peaceful life with the respondent and further that it is dangerous to live with him. It is also contended by the appellant that the petition filed for restitution of conjugal rights is nothing but an afterthought to counter the demand for dissolution of marriage raised by the appellant. Therefore, the appellant sought for dismissal of the said petition. After assimilating the rival contentions, the Family Court has raised one main point “whether the respondent is entitled to get a decree for restitution of conjugal rights?”. 15. Mat. Appeal No.103 of 2015, as stated earlier, is filed by the appellant aggrieved by the refusal of the entire claims sought for by her, for an amount of Rs.35,06,524/-. The said Original Petition is filed by the appellant against the respondent/husband and his mother. The Family Court has passed a decree in favour of the appellant only for an amount of Rs.40,000/- which was admitted by the respondent in his written objection, along with interest at the rate of 6% from **Mat. Appeal No.68/2015 & conn. cases** 15 the date of petition till realization. There the contention advanced by the appellant with respect to the said decree, apart from the contentions advanced in the petition for dissolution of marriage are that, though the respondent did not make any demand for dowry at the time of marriage, after solemnization of the marriage under the Special Marriage Act, the respondent started to show his true colour, that the 1[st] respondent approached the father of the appellant with a request to provide financial help to him and requested to part with an amount of Rs.12 lakhs for paying off the debt that he had incurred for constructing a house and for meeting the debt incurred with respect to marriage of the 1[st] respondent's sister. Since the customary form of marriage was due to be performed within a short period, the appellant and her parents were having no other choice than to pay the amount. Hence, Rs.12 lakhs was given to respondents 1 and 2 in the said Original Petition, on 06.07.2011. It is also the contention of the appellant that respondent had extracted money from the appellant in one way or the other. An amount of Rs.3,25,653/- was there in the Bank Account of the appellant by way of gift from her parents, the same was withdrawn by **Mat. Appeal No.68/2015 & conn. cases** 16 the 1[st] respondent using the Debit Card of the appellant at the time when the parties were residing in Finland. 16. That apart it is contended that, the 1[st] respondent had taken the appellant for a European tour and at that time he was using the Debit Card of the appellant and the entire expenses for the journey and Hotel bills were met from out of the amount remained in the account of the appellant, using her Debit Card. That apart, father of the appellant remitted an amount of Rs.1 lakh in the account of the appellant when the appellant and respondent required money during their tour abroad. It is also the contention of the appellant that the respondent had borrowed an amount of Rs.40,000/- while they were in Finland from the father of the appellant. A further claim is put forth by the appellant for an amount of Rs.1,34,000/- which was said to be paid by the father of the appellant to one Mr. Arun Aravind, a friend of the 1[st] respondent, at the request of the 1[st] respondent. Another amount of Rs.20,000/- was also borrowed by the 1[st] respondent from the father of the appellant to meet his immediate needs. Thus, altogether, the appellant is entitled to get back Rs.18,19,653/- in total from the respondents, was the **Mat. Appeal No.68/2015 & conn. cases** 17 contention. 17. In addition to that, according to the appellant, she and her family have also incurred an amount of Rs.4 lakhs for conducting the marriage. Apart from the same, appellant claims an amount of Rs.10 lakhs towards compensation, and thus totally claiming an amount of Rs.35,06,524/-. 18. Respondent filed objection denying the averments made with respect to the reasons leading to the filing of the petition for dissolution of the marriage and also denying receipt of any amount from the appellant or her parents, apart from the amount of Rs.40,000/- borrowed by the respondent from the father of the appellant. After appreciating the rival contentions, Family Court has raised the issue as to “whether the appellant is entitled to get a decree for the amount as sought for by her”. 19. Appellant has examined herself as PW1 and marked Exts.A1 to A2(a), A3 to A7(a) and A8 and A9. Father of the appellant was examined as PW2. Respondent was examined as RW1 and a Bank Manager was examined as RW2 and marked Exts.B1 to B1(n), B2 to B2(h), B3 to B3(i), B4 to B4 (k), B5 to B5(f), B6 to B6(h) and B7 to B20 and B20(a) to **Mat. Appeal No.68/2015 & conn. cases** 18 B26. 20. The Family Court after appreciating the rival contentions and pleadings and the oral and documentary evidence tendered by the respective parties, has dismissed the Original Petition filed by the appellant for dissolution of the marriage, allowed the Original Petition filed by the respondent for restitution of conjugal rights and partly allowed the Original Petition filed by the appellant for realization of money. It is thus challenging the dismissal of the Original Petition for dissolution of marriage, allowing the petition of the respondent for restitution of conjugal rights and dissatisfied with the partial decree for an amount of Rs.40,000/- with interest, the above appeals are preferred by the appellant. 21. Heard; learned counsel for the appellant and learned counsel for the respondent. Perused the pleadings, lower court records and the argument notes provided by the learned counsel for the respondent. 22. Firstly, we will deal with Mat. Appeal No.81 of 2015, the decision of which will guide the fate of Mat. Appeal No.68 of 2015. So far as the pleadings of the appellant with respect to dissolution of marriage is concerned, same is predominantly **Mat. Appeal No.68/2015 & conn. cases** 19 narrating the incidents that took place in a very short lived marriage by and between the appellant and the respondent. The cruelties alleged by the appellant are both mental and physical in nature inflicted by the respondent on the appellant as well as on her father. The question now is whether there is sufficient evidence on record so as to interfere with the order passed by the Family Court dismissing the petition for dissolution. So far as the cruelty part is concerned, the oral evidence tendered by the appellant and the respondent are oath against oath. The contentions and pleadings put forth by the appellant is objected in the written objections filed by the respondent by extracting the averments contained in the Original Petition and denying the same altogether by stating that the above “are utter false and hence denied by the respondent”. Thrust of the contention put forth by the learned counsel for the appellant is that, the denial so made in the objections is not at all a denial. The allegations specifically raised by the appellant is not at all denied in specific terms, which thus means, same are admitted, is the contention advanced. In order to find out the nature of the pleadings and the objection, we perused the plaint and objection in all the **Mat. Appeal No.68/2015 & conn. cases** 20 three appeals and it is true that the denial of the contentions put forth by the appellant is only in the nature as recited above. The question therefore to be considered is whether there is a proper denial of the pleadings put forth by the appellant. In our considered opinion, the pleadings put forth by the appellant are denied since the pleadings are extracted and stated that the same is denied as such. We do not think that such a denial may not be the normal procedure, but however the same cannot be termed as an evasive denial since the entire pleadings are quoted and denied together. Therefore, such a denial cannot be treated as not in accordance with law. 23. However, question remains is, whether from the evidence adduced by the parties, there is any sufficient evidence so as to grant a decree of dissolution of marriage, reversing the findings of the Family Court. The Family Court had mostly relied on Ext.B1 series of photographs produced by the respondent to arrive at a conclusive finding that the parties led a happy matrimonial life and with the said evidence on board, it cannot be said that there were severe matrimonial disputes and discord by and between the appellant and the **Mat. Appeal No.68/2015 & conn. cases** 21 respondent. However, the appellant has adduced evidence in terms of the pleadings put forth by her in the Original Petition. In the cross-examination of the appellant, even though at length, nothing was brought out to discredit her testimony in the chief examination. The specific instances pleaded by the appellant and deposed in her chief affidavit was not specifically subjected to cross-examination. The tenor of crossexamination persuade us to think that the attempt of the respondent was mostly to non-suit the appellant in her claim for realization of money. In that view of the matter, even if the pleadings in the Original Petition can be termed to be specifically denied by the respondent, during crossexamination, in our view, nothing was brought out to discredit the versions put forth by the appellant in chief examination. That apart, PW2, the father of the appellant has corroborated fully with the evidence tendered by the appellant, wherever he had knowledge about the incidents narrated by the appellant. 24. Apart from the same, going through the crossexamination of PW1, we do not find any cross-examination to penetrate the allegations of drinking habit, violence and other untoward incidents took place due to the abnormal behaviour **Mat. Appeal No.68/2015 & conn. cases** 22 and attitude narrated by the appellant. According to us, in cross-examination, instead of attempting to deface the evidence put forth by the appellant in chief examination, the respondent has attempted mostly to prove that he was sufficiently wealthy enough to carry on his life without any aid or support of the appellant and her parents. That apart, in cross-examination of PW1, suggestions were made with respect to the allegations made against the respondent in the Original Petition which was denied by the appellant. Furthermore, PW1 has reiterated and explained in crossexamination with respect to the counselling conducted by Fr. Varghese Puthussery and visit of Fr. Jolly after the incident that took place at the residence of the respondent as narrated in the facts. Therefore, two things are predominant while evaluating the said circumstances: (1) that in order to go for counselling, there were severe marital disharmony and discord by and between the appellant and the respondent. Therefore, with respect to the averment contained in the Original Petition and the evidence tendered by PW1 in chief examination regarding the said aspect, it can only be said to be true in its nature. Moreover, the counselling so conducted and the visit **Mat. Appeal No.68/2015 & conn. cases** 23 of Fr. Jolly at the house of the parental home of the appellant, are not specifically disputed, because when PW1 offered such an explanation in cross-examination, there is not even a suggestion made by the respondent disputing the explanations so put forth by PW1 in her chief examination. (2) the visit of Fr. Jolly along with the respondent is specifically pleaded by PW1, in order to pacify the incident that took place at the house of the respondent. The said aspect is reiterated in chief examination and when cross-examined PW1 has explained in detail the visit of Fr. Jolly to the house of the appellant. In that context, evidence tendered by the respondent as RW1 is relevant, because the visit of father of the appellant to the house of the respondent to take her from there is admitted by the respondent. But the respondent has put forth a different case in his evidence by deposing that the father of the appellant misbehaved to the respondent while he went there to take the appellant. 25. Therefore, the visit of the father of the appellant on the specific day referred is clearly established. While appreciating the said circumstance, if the father of the appellant misbehaved to the respondent, there was no **Mat. Appeal No.68/2015 & conn. cases** 24 occasion for the respondent to visit the house of the appellant with Fr. Jolly since he has not committed any mistake or indulged in any illegal activity, according to his version in the deposition. Therefore, the probability of the visit of the respondent with Fr. Jolly can be seen as a visit to pacify the situations which took place at the residence of the respondent and at the instance of the respondent. 26. The said two instances of counselling by Fr. Varghese Puthussery and visit of Fr. Jolly to the parental home of the appellant along with the respondent are substantive circumstances to arrive at a safe conclusion that severe matrimonial disputes and discord existed consequent to the cruelty both mental and physical, which was put forth by the appellant in the pleadings. So far as the respondent is concerned, his case is that there are no matrimonial disputes or such circumstances enabling the appellant to seek dissolution of marriage. If there were no such situations at all, what was the occasion for the parties to attend counselling by Fr. Varghese Puthussery, is the question. Viewed in any circumstances, by appreciating the rival pleadings and the evidence tendered by the parties, one can reach a safe **Mat. Appeal No.68/2015 & conn. cases** 25 conclusion that the pleadings put forth by the appellant and the evidence tendered by her can only be probable. This is more so, because if there was no matrimonial discord or dispute by and between the parties, there was no occasion for the parties to go for counselling. It is also to be borne in mind that it is the specific case of the appellant that they went for counselling to Fr. Varghese Puthussery on the intervention of the friends and relatives of the respondent. It is also a circumstance safely leading to a conclusion that severe matrimonial disputes and discord existed by and between the appellant and the respondent. Viewed in that manner, the blunt denial made by the respondent will not in any manner deface the pleadings put forth and evidence tendered by the appellant which is substantiated by evidence tendered by PW2, her father. 27. Moreover, going by the pleadings and evidence, Fr. Varghese Puthussery and Fr. Jolly were very well aware of the disharmony that existed between the appellant and the respondent. So also, both the priests, going by the tenor of pleadings and evidence, were very well associated with the family of the respondent. As contended by the learned counsel **Mat. Appeal No.68/2015 & conn. cases** 26 for the respondent, it may be true that going by the provisions of Evidence Act, a burden is cast upon the appellant to prove the case put forth by her in the Original Petition. But however, that does not mean that the evidence tendered by PW1 cannot be believed without corroborating the same by adducing other oral evidence. The court has the power and authority to appreciate the evidence tendered by the appellant alone in order to grant a relief if the same is found to be cogent and trustworthy. Under normal circumstances, a prudent petitioner may not venture in examining witnesses who are not confident enough to support the case of the petitioner. Moreover, the pleadings put forth by the appellant show that, the incidents took place in the presence of family members alone and therefore by examining the mother and sister of the respondent, he could have succeeded in establishing his case, that no such incident took place. In our considered opinion, the appellant was successful in proving the cruelties alleged by her by satisfactory evidence and therefore the respondent has failed to adduce the best evidence available in order to establish that the specific instances alleged to have taken place at his house, has actually not taken place. That apart, it **Mat. Appeal No.68/2015 & conn. cases** 27 is the quality of evidence that matters, rather than quantity. 28. So also, if the case put forth by the respondent that there was no matrimonial disharmony or discord, it could have been easily established by examining the aforesaid priests. That apart, a serious incident of violence, manhandling etc. according to the appellant, took place at the residence of the respondent, which incident in a different fashion is admitted by the respondent by attributing allegations against the father of the appellant. The presence of mother and sister of the respondent in his parental home is admitted. The appellant has put forth a specific case that she and her father could escape from the parental house of the respondent after the said incident, due to the help extended by the mother of the respondent. Therefore, the mother and sister of the respondent should have been examined on the side of the respondent to establish that the incidents specifically narrated by the appellant did not take place at all, which thus means, the burden of disproving the satisfactory evidence led by the appellant shifted at that juncture to the respondent. 29. Apart from all these aspects, to the pinpointed and specific allegations made by the appellant, the respondent has **Mat. Appeal No.68/2015 & conn. cases** 28 not made any contra allegations against the appellant. Therefore, while appreciating the pleadings and evidence put forth by the appellant, we are persuaded to think aloud as to the reason why the appellant wanted to leave the matrimonial home. Under normal circumstances, a wife will not be inclined to leave the matrimonial home, especially if the husband is treating her with love and affection. The case of the respondent is that there was no occasion for causing any rupture at all to the marital bondage. On the contrary, respondent has no case that the appellant misbehaved or behaved cruelly to the respondent so as to cause any disharmony to the marriage. That being the situation, without any severe matrimonial disputes and discord, it cannot be thought of that, the appellant has left the matrimonial home without any reason at all. 30. Now we will examine the nature of cruelty that was inflicted by the respondent on the appellant. Appellant has stated that the respondent has on one occasion told her that she had pre-marital relationship with other persons. That apart, on one occasion respondent has declared that he will go to court to establish the relationship maintained by the **Mat. Appeal No.68/2015 & conn. cases** 29 appellant with her father. These aspects, even though may have uttered once, it has its own deep impact in the mind of a person. The same will cause deep-rooted distress and permanent injury in the mind of the person. That apart, such statements made by the respondent to the appellant will cause hindrance to the smooth and harmonious relationship. Above all these, as we have narrated above, when the appellant's father went to the house of the respondent to take her back to her parental house, incidents of physical assault inflicted to the appellant and her father and abuses showered on them cannot be termed as trivial or flimsy. The institution of matrimony is built on confidence, not only by the parties to the marriage, but also by taking into confidence the love and affection rendered by the parents of both parties and immediate relatives. Viewed in that background, the physical and mental torture inflicted is not only on the appellant, but the respondent has inflicted the same on the father of the appellant also, which caused mental distress to the appellant. These are very vital circumstances which can cause serious apprehensions in the mind of the appellant to continue the matrimonial institution by and between the appellant and the **Mat. Appeal No.68/2015 & conn. cases** 30 respondent. If the respondent was innocent, against the allegations made by the appellant, there were several circumstances enabling him to disprove the same, as we have noted above. The lethargy and neglect of the respondent to utilize the opportunity to prove his innocence shows that the appellant has no much concern for the continuance of the matrimony also. We also notice that the marriage has become unworkable. 31. Since we find that the pleadings and evidence are sufficient enough to advance the claim of the appellant, the cruelty narrated therein are sufficient enough to the satisfaction of this court to think that the appellant's apprehension that due to the matrimonial cruelty meted out from the respondent, it is dangerous to live with the respondent. 32. Learned counsel for the appellant has invited our attention to the judgments of the Apex Court in ' _**Vijayakumar Ramachandra Bhate v. Neela Vijayakumar Bhate**_ ' [(2003) 6 SCC 334], _**'Vinita Saxena v. Pankaj Pandit'**_ [(2006) 3 SCC 778], _**'A: Husband v. B: Wife'**_ [2010(4) ILR 427], _**'Elizabeth alias Jolly George v. T.G. Andrews**_ ' [2011(3) **Mat. Appeal No.68/2015 & conn. cases** 31 ## KHC 267 (DB)] and _**'K.R. Srinivas v. Dharmavaram Sridevi'**_ [III (2012) DMC 427 (DB)], in order to canvass the proposition that cruelty is not a static term, it can vary from person to person and circumstance to circumstance. On going through principles laid down in the afore-noted judgments, we find that the general principle is that, if and when there is a deep-rooted mental distress occurred to any of the spouse, it is a circumstance enabling the court to order dissolution of marriage on the ground of mental cruelty. That apart, in those judgments it is found that, some stray incidents of different occasions may not constitute a ground for dissolution on the basis of cruelty. However, we find that in the case at hand, the duration of marriage was only for a short period. But however, the word 'length' depends on the circumstances. The period of marriage may be for a short duration, but if the mental or physical cruelty continued for a substantial period during the short period of matrimonial life, same can be termed as a long and continuous cruelty inflicted by one spouse against the other during the short period of matrimonial life. **Mat. Appeal No.68/2015 & conn. cases** 32 33. Learned counsel for the respondent has invited our attention to the judgments of the Apex Court in _**'Suman Kapoor v. Sudhir Kapur**_ ' [(2009) 1 SCC 422] and _**'K. Srinivas Rao v. D.A. Deepa'**_ [Civil Appeal No.1794 of 2013 dated 22.02.2013]. On going through the findings of the Apex Court in those judgments also, the principles laid down in the earlier noted judgments are followed with respect to the physical and mental cruelty, which creates a foundation for seeking dissolution of the marriage on the said ground. 34. Therefore, definitely there were reasons for the appellant to leave the matrimonial home. Taking into account the fact situations and also taking into account the evidence on record, we are persuaded with reasons to think that the case put forth by the appellant and evidence let in by examining herself and her father was trustworthy and believable to arrive at a safe conclusion that the appellant has proved successfully to the satisfaction of the court by adducing reasonable and cogent evidence to secure a decree for dissolution of marriage on the ground of cruelty. Family Court relied on Ext.B series of photographs in order to arrive at a conclusion that there was no matrimonial dispute or discord so as to dissolve the **Mat. Appeal No.68/2015 & conn. cases** 33 marriage by and between the parties. In our view the said findings of the Family Court is not correct since the still photographs produced is not a material to arrive at a conclusively finding that there was no cruelty inflicted by the respondent against the appellant. The photographs only shows that there were moments, where parties enjoyed leisure but that by itself is not a conclusive proof to establish that there was no cruelty at all inflicted by the respondent to the appellant. In every matrimonial life, there may be such moments but, such moments captured in still cameras cannot be pressed into service, to establish conclusively that by witnessing those photographs it shall be presumed by the court that the appellant and respondent were living happily through out. To put it otherwise, Ext.B series photographs may be relevant evidence, but not conclusive, especially taking into account the facts and circumstances involved in the case at hand. Therefore, we are justified in arriving at a conclusion that the findings rendered by the Family Court with respect to the petition filed by the appellant seeking dissolution of marriage cannot be sustained under law. The findings suffer from the vice of proper appreciation of pleadings and evidence **Mat. Appeal No.68/2015 & conn. cases** 34 tendered by the parties in a proper, legal and effective manner. In that circumstances, we set aside the judgment of the Family Court, Ernakulam in O.P.No.2205 of 2012 and allow the said Original Petition and thus dissolve the marriage between the appellant and the respondent solemnized as per the provisions of the Special Marriage Act on 02.07.2011 and the customary marriage which took place on 16.07.2011. 35. Now we proceed to consider Mat. Appeal No.68 of 2015, whereby the Family Court has granted a decree in favour of the respondent for restitution of conjugal rights. The Family Court has allowed the said Original Petition on the ground that the appellant has failed to prove that there were reasonable cause on the part of the appellant to leave the matrimonial home and live separated from the husband. We do not think that much discussion is required to arrive at a conclusion in the said appeal, in view of the findings rendered by us in Mat. Appeal No.81 of 2015 by reversing the findings and conclusions of the Family Court and ordered dissolution of the marriage. The reasons rendered in the said appeal, for dissolving the marriage is sufficient enough in order to arrive at a conclusion that the decree granted by the Family Court to **Mat. Appeal No.68/2015 & conn. cases** 35 the respondent for restitution of conjugal rights cannot be sustained under law in any manner. There existed reasonable and sufficient ground for the appellant to leave the matrimonial home, and reside separately from the respondent. Therefore, we set aside the order of the Family Court, Ernakulam in O.P.No.1369 of 2014 dated 06.11.2014 and thereby dismiss the said Original Petition. 36. Mat. Appeal No.103 of 2015, as stated by us earlier, is an appeal filed by the appellant against the partial decree granted by the Family Court in her favour. Against the claim of Rs.35,06,524/-, the Family Court has granted a decree for an amount of Rs.40,000/- with interest. [Even though in the body of the judgment, interest is shown as 9%, in the relief portion, it is shown as 6%]. So far as the pleadings with respect to the Original Petition claiming money is concerned, it is the specific case of the appellant herself that the respondent or her parents did not ask for any dowry. The case of the appellant is that, after the marriage was solemnized under the Special Marriage Act, respondent and his parents demanded Rs.12 lakhs in order to tide over a financial crisis that came on their way consequent to construction of the residential building **Mat. Appeal No.68/2015 & conn. cases** 36 of the respondent's parental home and also to tide over the financial situations caused pursuant to the marriage of the sister-in-law of the appellant. The respondent has tendered evidence before the Family Court and established that the construction of the residential building of the respondent was completed way back in the year 2010 and further the marriage of the sister-in-law of the appellant also took place prior to the marriage of the respondent. It is not a case where the appellant has put forth a contention that towards dowry the said amount was parted with. But the specific contention is that the same was provided to tide over the adverse financial circumstances faced by the respondent consequent to the house construction and the marriage of the sister-in-law of the appellant. Therefore, by ordinary evidence, it cannot be presumed that the respondent has received the said amount. If the case put forth by the appellant that the said amount was parted with against the claim of dowry, taking into account the background and circumstances of the appellant, some sort of presumption and guess work could have been employed by the Family Court to arrive at a conclusion with respect to the claim. But the case put forth by the appellant is that no dowry **Mat. Appeal No.68/2015 & conn. cases** 37 was demanded by the respondent or his parents and therefore the pleadings and the evidence tendered on that account has to be appreciated strictly in accordance with the stipulations contained under the Evidence Act. Therefore, it was incumbent on the part of the appellant to clearly establish with cogent evidence to the satisfaction of the court, in order to secure a decree for the said amount of Rs.12 lakhs. 37. In order to establish the pleadings put forth and the evidence tendered by PW1 and PW2, the document that is relied on by the appellant is the Bank Account from which it is seen that the appellant has withdrawn an amount of Rs.12 lakhs. The evidence of withdrawal of Rs.12 lakhs will not suffice the situation because the evidence required in view of the pleadings put forth by the appellant is the evidence of parting with money. The said evidence has not come into effect even though PW1 and PW2 have tendered evidence and produced the statement of Bank Account. Yet another aspect that persuades us to think that the said amount of Rs.12 lakhs is not parted with by the appellant or her father since, from the pleadings, evidence and document, it is categoric and clear that the amount of Rs.12 lakhs was lying in a Bank deposit and **Mat. Appeal No.68/2015 & conn. cases** 38 therefore it is the money accounted, and while thinking prudently, if such a sizable amount was expected to be parted with by the appellant or her father to the respondent, the normal course adopted would have been by issuing a cheque in favour of the respondent or his parents or transfer through Bank. Therefore, the said reasons specified above inspire confidence on us to think that the appellant has failed to prove that the said amount was parted with by the appellant/or her parents to the respondents. Therefore, the circumstances put forth by the appellant specifically narrating the reasons for parting with an amount of Rs.12 lakhs at the request of the respondent cannot be sustained. 38. So far as the other amounts claimed by the appellant towards the money expended, withdrawn by the respondent from the Account of the appellant, while they were in Finland and in European tour etc. are concerned, appellant had produced her Credit Card accounts. But that by itself is not a sufficient evidence to establish that money was taken by the respondent from the accounts of the appellant or her father. So far as the money with respect to marriage expenses met by the appellant also, no substantial proof is forthcoming. **Mat. Appeal No.68/2015 & conn. cases** 39 That apart, an amount of Rs.10 lakhs in bulk is claimed towards damages. First of all, in order to sustain a claim for damages in the pleadings, separate heads should be shown with respect to damages suffered by the appellant in various heads. Moreover, no evidence is forthcoming to establish such claims made by the appellant. The Family Court, in our view, has evaluated the entire situations, and the evidence on record and arrived at a finding that the appellant has failed to establish that she is entitled to a decree as sought for by her. However, the Family Court has granted a decree for an amount of Rs.40,000/- since the said amount is admitted by the respondent as received from the appellant. 39. Therefore, we do not find any reason to interfere with the partial decree passed by the Family Court for an amount of Rs.40,000/-. However, in the body of the petition, the Family Court has granted 9% interest to the said amount of Rs.40,000/-, but at the relief portion, only 6% interest is awarded. Taking into account the facts and circumstances, we are of the opinion that the interest that was granted by the Family Court to the said amount of Rs.40,000/- is at the rate of 9% p.a. from 17.11.2011 till its realization. We order **Mat. Appeal No.68/2015 & conn. cases** 40 accordingly. Therefore, the said appeal is dismissed, subject to the above clarification and modification in the decree. 40. In the result, Matrimonial Appeal Nos.68 of 2015 and 81 of 2015 are allowed and Matrimonial Appeal No.103 of 2015 is dismissed, subject to the clarification with respect to the interest awarded by the court below. The parties are directed to suffer their respective costs. Sd/- **C.K. ABDUL REHIM JUDGE** Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/05.04.2016