Mat. Appeal Nos. 278/2012 & 279/2012, Kerala High Court (Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2013/20TH AGRAHAYANA, 1935** ## **Mat.Appeal.No. 278 of 2012 ()** **-----------------------------AGAINST THE JUDGMENT IN OP 67/2010 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR DATED 19/03/2012** **-------------------------** ## **APPELLANTS / RESPONDENTS :** **------------------------------------------------** **1. PADMA JOSEPH, W/O. RANA JOSEPH, CHEMMARAPARAMBIL HOUSE, KOCHUPARAMBIL, NEAR PALLURPADI MANGANAM P.O., VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT.** **2. C. JACOB JOSEPH, S/O. LATE JOSEPH, CHEMMARAPARAMBIL HOUSE, KOCHUPARAMBIL, NEAR PALLURPADI MANGANAM P.O., VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT.** **3. MARIAKUTTY JOSEPH, W/O. C. JACOB JOSEPH, CHEMMARAPARAMBIL HOUSE, KOCHUPARAMBIL, NEAR PALLURPADI MANGANAM P.O., VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT.** **BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN** ## **RESPONDENT/PETITIONER :** **-------------------------------------------** **RANA JOSEPH, S/O. JOSEPH, THONIPURACKAL KAITHAYIL HOUSE PARIYARAM P.O., PUTHUPALLI VILLAGE, KOTTAYAM DISTRICT, PRESENTLY RESIDING AT FLAT NO. 202 “A” WING, DOSTI CORAL - 5, DOSTI RESIDENCY VASAI WEST, THANE DISTRICT, MAHARASHTRA - 400 202.** **BY ADV. SRI.ABRAHAM GEORGE JACOB** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11-12-2013, ALONG WITH MA. 279/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **Mat.Appeal.No. 278 of 2012 ()** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **ANNEXURE A : CERTIFICATE ISSUED BY DR. BABU.** **ANNEXURE B COPY OF THE TRANSFER CERTIFICATE ISSUED BY VYASA VIDYALAYA, PALACHUVADU. ANNEXURE C COPY OF THE PETITION IN OP 071/2012 OF THE FAMILY COURT, KOTTAYAM. ANNEXURE D COPY OF LAWYER NOTICE ISSUED TO DR. NISHA BHAVANI. ANNEXURE E COPY OF LAWYER NOTICE ISSUED TO DR. PRAVEEN.** ## **RESPONDENT'S ANNEXURES :** **ANNEXURE A1 : PHOTOGRAPH OF YUHAN JOSE JOSEPH TAKEN IN JANUARY, 2008. ANNEXURE A2 PHOTOGRAPH OF YUHAN JOSE JOSEPH TAKEN IN 2011. ANNEXURE A3 LETTER DATED 30.5.2012 ISSUED BY DR. NISHA BHAVANI MD, DNB (ENDOCRINOLOGY), AMRITHA INSTITUTE OF MEDICAL SCIENCES.** **//TRUE COPY//** **P.S. TO JUDGE Mn** ## **ANTONY DOMINIC & P.D. RAJAN, JJ.** ------------------------------------------- Mat. Appeal Nos.278/2012 & 279/2012 ---------------------------------------------Dated this the 23[rd] day of January, 2014 ## **JUDGMENT** ## **ANTONY DOMINIC,J.** These appeals are filed by the respondents in O.P.(G&W) No.67/2010 and the respondent in O.P.No.66/2010 on the file of the Family Court, Kottayam at Ettumanoor. 2. O.P.(G&W) No.67/2010 was filed by the respondent in M.A.No.278/2012, the husband, seeking custody of the two minor children born in his wedlock with the 1[st] appellant. By the impugned order, the Family Court granted custody of the elder male child 'Yuhan Jose Joseph' to the respondent and ordered that the younger female child 'Hanna' be continued in the custody of the 1[st] appellant. 3. Mat. Appeal No.279/2012 arises from the judgment of the Family Court, Kottayam at Ettumanoor in O.P.No.66/2010, which was also filed by the respondent husband seeking divorce against the 1[st] appellant wife on the ground of cruelty. By the Mat. Appeal Nos.278/12 & Con.case 2 impugned judgment, the O.P. was allowed and the marriage was dissolved by a decree of divorce. It is challenging these judgments, the appeals are filed. 4. For convenience, we shall first deal with Mat. Appeal No.279/2012 arising out of the judgment in O.P.No.66/2010. The marriage between the couple was solemnized on 19.8.2002 as per the Christian religious rites and ceremonies. The husband was employed at Mumbai and the couple lived there in an apartment. In the wedlock, the wife gave birth to two children, a male and a female, on 28.1.2004 and 16.12.2009 respectively. The couple separated on 6.1.2010 and since then the wife and children were residing with her parents. It was subsequently that O.P.No.66/2010 was filed by the husband seeking divorce on the ground of cruelty as provided under Section 10 (1) (x) of the Divorce At 1869. 5. The main grounds urged by the husband were two. The first one was that the wife denied treatment to the elder child 'Yuhan', who was diagnosed on the 40[th] day of his birth as suffering from 'Congenital Adrenal Hyperplasia' (CAH). The second ground urged was that by making reckless and unfounded allegations against him that he had sexually abused Mat. Appeal Nos.278/12 & Con.case 3 the elder child 'Yuhan', she had caused mental cruelty to him. 6. Before the Family Court, the wife denied the allegations in its totality. In support of the case canvassed by the parties, they were examined as PW1 and RW1 and Exts.A1 to A11 and B1 to B12 were also marked. It was thereafter that the Family Court accepted both the grounds and granted decree of divorce on the ground of cruelty. 7. We heard the learned counsel for the appellants and the learned counsel appearing for the respondent. While, according to the learned counsel for the appellants, the respondents before the Family Court, there was no substance in the case pleaded by the husband against the wife, as also her parents and that the Family Court rendered the judgment without appreciating the case canvassed by her and the evidence tendered on her side, the learned counsel appearing for the respondent husband sought to sustain the findings in his favour. 8. As we have already stated by us, the 1[st] contention accepted by the Family Court was that the wife is guilty of cruelty not only to the child but also to the husband by denying treatment to the child. This contention of the parties Mat. Appeal Nos.278/12 & Con.case 4 has been considered by the Family Court in paragraphs 21 to 24 of its judgment. The discussion in the judgment and the evidence available before the Family court show that on 40[th] day of his birth, the child was diagnosed as suffering from severe dehydration leading to his admission and treatment at various hospitals such as Bharat Hospital, Kottayam, Paret Mar Ivanious Hospital, Puthuppally, Kottayam, Matha Hospital, Ettumanoor, Amrutha Institute of Medical Science, Kochi and Christian Medical College, Vellore. All this led to the confirmed diagnosis that the child was suffering from CAH, a life threatening condition and that he required continued expert treatment by paediatrics endocrinologist. 9. The fact that the child is suffering from CAH is not a matter which disputed by either of the parties. According to the husband, while he was spending much of his time for saving the life of the child by giving expert treatment at various reputed hospitals, the wife was not co-operating with the treatment and, in fact, was not even giving the medicines that were prescribed, which according to him, was on the advice of a God Woman from whom she and her parents were taking advice. The fact that she had suggested an alternative Mat. Appeal Nos.278/12 & Con.case 5 treatment to the allopathic treatment chosen by the husband has been admitted by herself in the objections filed by her and also in her evidence. It is also in evidence that during the period when the couple were residing together at Mumbai, it was only the husband, who was giving medicines to the child and the wife also does not have a case otherwise. The evidence before the Family Court also indicated that despite separate residence of the couple subsequent to 6.1.2010 and admitted necessity of the child to have continuous treatment, the wife could not produce any evidence indicating that she was giving proper medical care to the child. 10. Insofar as the paediatrician, who, according to her, was treating the child is concerned, on her own showing, it was found by the Family Court that he was a person, who was not having specialized knowledge in 'paediatric endocrinology'. Therefore, the evidence available before the Family court in sum and substance definitely indicated that the wife was willfully avoiding to give the required treatment and medicines to the elder child. In fact, photographs that are produced before us showing the condition of the child during the period when the couple were residing together and while he was in Mat. Appeal Nos.278/12 & Con.case 6 the custody of the mother also shows the deteriorated condition of the child. All this would show that the conclusion of the Family Court that the wife was guilty of declining treatment to the child is supported by the evidence available before the Family Court. Therefore, we do not find any illegality in that conclusion of the Family Court. 11. The second contention which found favour with the Family Court is that the wife is guilty of making reckless, unfounded and unproved allegations against the husband that he has sexually abused the elder child 'Yuhan'. In paragraph 9 of the objection filed by the wife to O.P.No.66/2010, she has stated thus: “.......Then, one day the counter petitioner herself discovered that the minor son Yuhan was trying to expand his genitals in the bath room. When the counter petitioner questioned Yuhan and Yuhan disclosed that his father, the petitioner was doing that for some time back and compelled him to do himself. That outrageous instance put the counter petitioner in severe grief and when it was told to the petitioner initially he admitted that, such act was necessary for the proper development of sexual capacity as Yuhan is suffering from CAH. But when the counter petitioner disagreed with that opinion, the petitioner became violent and declared that the counter petitioner would be put in a mental asylum.” ## In paragraph 12 of the objection filed by her in O.P.No.67/2010 also, she has averred thus: “Since the petitioner committed physical and mental Mat. Appeal Nos.278/12 & Con.case 7 cruelty, the petitioner sexually abused the minor son Yuhan and the baby Hanna is still having breast feeding there is no bonafides in the prayer for the custody of the minor children. Further if the custody is given to the petitioner, that would become detrimental to the interest and welfare of the minor children. There is a chance of vengeance on the part of the petitioner towards the minor son for disclosing the sexual abuse of the petitioner and the counter petitioners are having apprehension of harassment of the minor Yuhan if custody is given to the petitioner.” ## 12. In the proof affidavit filed by her, she has averred in ## paragraph 15 thus: ക�ഞ� യ�ഹ�ന ബ�ത� റ�മ�ല വച� തന� ല��ഗ� വ�കസ�പ�ക�ന ന��ക �നത� ഞ�ന കണ�ര �നത��, ആയത�ന�ക�റ�ച� ന$�ദ�ച�നപ�ള ഹര(�ക�രന പറഞത� (പക�രമ�ണ� അ (പക�ര� ന$യ �നനതന�� ക �ഞ�യ�ഹ�ന പറഞ�ര�നത�ണ�. ആയത�ന�ക�റ�ച� ഹര(�ക�രന��ട � ന$�ദ�ചനപ�ള ട�യ�ന ആയത� സമത�ക�കയ�� യ�ഹ�ന .C A. H (Congenital Adrenal Hyper Plasi) നര�ഗ� ആയത���ല അതര� ന$യ�ത�കള ക �ഞ�ന� sexual capacity യ�നട വളര$ക� ഉപകര�ക �നമന� ഹര(�ക�രന പറഞ�ര�നത�ണ�. എന�ല ആയത�ന��ട� നയ�(�ക�ത�ര�ന എനന ഹര(�ക�രന നമ�ല അസ5ലത�ല അടക�നമന�� മറ�� പറഞ� ഭ8ഷണ�നപട�ത�യ�ര�നത�ണ�. When PW1, the husband was cross examined, he was asked ## thus: “��ങള മ�തക �ട� യ�ഹ�ന� sexually abuse ” ന$യ�നത�യ� എത<കക� പറയ�ന�. ( Q)ശര�യല (A). When the wife was examined as RW1, in her cross examination it is stated thus: ഹര(�ക�രന മ�തക �ട� യ�ഹ�ന� സല�ഗ�കമ�യ� ദ�ര�പനയ�ഗ� ന$യ�നത�യ� ഞ�ന ആനകപ�$�ട�ല. ഞ�ന Mat. Appeal Nos.278/12 & Con.case 8 നബ�ധ�പ�ച ഈ നകസ�കള�ല നബ�ധ�പ�ച ആനകപത�ല�� മ(�നസട�നറററ� നക�ടത�യ�നല ഹര(�യ�ല�� മ�തക�ട�നയ ഹര(�ക�രന സല�ഗ�കമ�യ� ദ�ര�പനയ�ഗ� ന$യ�നത�യ� സ�ശയമ�ളത�യ� നരഖനപട�ത�യ�ട�ണ�. ആ സ�ശയത��� യ�നത�ര� അട�സ��വ�� ഇനലന� എ��ക� ഇനപ�ള മ�5�ല�യ�. ഇ(പക�രനമ�ര� സ�ശയ� ഞ�ന എന� വ8ട�ക�നര അറ�യ�ച�ര�ന�. ഇങന� അട�സ��രഹ�തമ�യ ഒര� ആനര�പണ� ത�ങള ഉനയ�ചത� ഹര(�ക�രന��ട� ക�ണ�ച (ക�രത ആനണന� പറയ �ന� (Q). അത�ന�ക�റ�ച� എ��നക�ന�� പറയ���ല (A). Thus the fact that she has raised allegations that the husband has sexually abused the elder child cannot be disputed and in fact was not disputed before us also. 13. Reading of her cross examination as RW1 shows that even according to her, there was no basis for those allegations. The question whether making of reckless and unfounded allegations amounts to cruelty has come up for consideration of this Court as also the Apex Court. In _**Latha Kunjamma**_ v. _**Anil Kumar**_ [2008(2) KLT 545], in paragraphs 10 & 15, this Court has held thus: 10. False, defamatory, scandalous, malicious, baseless and unproved allegations made against the spouse in the written statement may amount to cruelty. The irresponsible insinuation and allegations which were made during the course of litigation against the wife cannot be brushed aside. Such a view was taken by the Rajasthan High Court in the decision reported in _Parihar v. Parihar_ (AIR 1978 Raj.140). _Pushparani v. Krishan Lal_ (AIR 1982 Del.107) is a case where the wife had in her written statement alleged that an illicit relationship existed between her husband and one Smt. Bindra Devi. When the husband appeared in the witness box the said statement was directly suggested to him in the crossexamination. This imputation was not a ground pleaded in the petition by the husband. It was held by the Delhi Mat. Appeal Nos.278/12 & Con.case 9 High Court that the allegations of adultery made by the wife in the written statement and at the time of crossexamination could be taken into consideration for granting a decree of divorce on the ground of cruelty. The learned Judge had followed the principle that cruelty subsequent to the institution of the petition could be taken into account to prevent multiplicity of proceedings. 15. The question that requires to be answered based on the submissions made by the appellant is as to whether the averments, accusations and character assassination of the husband attributed to the wife in the written statement and during examination of the parties constitute mental cruelty for sustaining the claim for divorce under S.13(1)(i-a) of the Hindu Marriage Act. Allegations and accusations made in the written statement or suggested in the course of examination and by way of cross-examination if not proved, would amount to worst form or insult and cruelty warranting the claim of the wife being allowed and the same would satisfy the requirement of law. A well behaved, educated, disciplined wife who started married life with her lover under no circumstance can tolerate him who attributes extra-marital relationship. Such disgusting accusations certainly will cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and leaving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with the husband who was taunting her like that and rendered the maintenance of matrimonial home impossible. ## Recently, the Apex Court also had occasion to deal with the same question in its judgment in _**Srinivas Rao**_ v. _**D.A. Deepa**_ [2013 (1) KHC 647(SC)], where in paragraphs 10 to 14 held thus: “10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term 'cruelty'. Cruelty is evident Mat. Appeal Nos.278/12 & Con.case 10 where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental. 11. In _Samar Ghosh_ this Court set out illustrative cases where inference of 'mental cruelty' can be drawn. This list is obviously not exhaustive because each case presents it's own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh. We have reproduced only the instances which are relevant to the present case. “101. No uniform standard can even be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) xxx xxx xxx (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) xxx xxx xxx (viii) xxx xxx xxx Mat. Appeal Nos.278/12 & Con.case 11 (ix) xxx xxx xxx (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) xxx xxx xxx (xii) xxx xxx xxx (xiii) xxx xxx xxx (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” It is pertinent to note that in this case the husband and wife had lived separately for more than sixteen and a half years. This fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. Similar view was taken in Naveen Kohli. 12. In V. Bhagat v. D. Bhagat in the divorce petition filed by the husband the wife filed written statement stating that the husband was suffering from mental hallucination, that this was a morbid mind for which he needs expert psychiatric treatment and that he was suffering from 'paranoid disorder'. In cross-examination her counsel put several questions to the husband suggesting that several members of his family including his grandfather were lunatics. This Court held that these assertions cannot but constitute mental cruelty of such a nature that the husband cannot be asked to live with the wife thereafter. Such pleadings and questions it was held, are bound to cause immense mental pain and anguish to the husband. In Vijayakumar Bhate disgusting accusations of unchastity and Mat. Appeal Nos.278/12 & Con.case 12 indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous to live with her husband. In Naveen Kohli the respondent-wife got an advertisement issued in a national newspaper that her husband was her employees. She got another new item issued cautioning his business associates to avoid dealing with him. This was treated as causing mental cruelty to the husband. 13. In Naveen Kohli the wife had filed several complaints and cases against the husband. This Court viewed her conduct as a conduct causing mental cruelty and observed that the finding of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable. 14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the Court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.” 14. In the light of the legal principles and also taking into account the allegations that were raised by the wife, which even according to her, has no basis, we find that the conclusion of the Family Court that this amounted to mental cruelty to the husband, deserves to be upheld and we do so. 15. In the result, the judgment of the Family Court, Mat. Appeal Nos.278/12 & Con.case 13 Kottayam at Ettumanoor dissolving the marriage between the 1[st] appellant and the respondent on the ground of cruelty does not suffer from any illegality and therefore, Mat.Appeal No.279/2012 filed against the judgment of the Family Court, Kottayam at Ettumanoor in O.P.No.66/2010 deserves only to be dismissed and we do so. 16. Against the judgment of the Family Court, Kottayam at Ettumanoor in O.P.(G&W) No.67/2010, Mat. Appeal No.278/2012 is filed by the wife and her parents. In the O.P. filed by the husband, he sought custody of both the two minor children, who were then with the mother and her parents. By the impugned judgment, the Family Court allowed the claim, insofar as the elder child 'Yuhan' is concerned and the reason for that order is that the wife was not providing treatment to the child and therefore, the continued custody of the child with the mother will not be to his welfare. It is aggrieved by this judgment that the wife and her parents have filed the appeal in question. 17. While dealing with Mat. Appeal No.279/2012, we have already endorsed the finding of the Family Court that the wife was not giving proper treatment to the child, who Mat. Appeal Nos.278/12 & Con.case 14 admittedly is suffering from CAH. This, therefore means that the continued custody of the child with the mother was not in his welfare, which has to be the paramount consideration, when the rival claims are made by the parents for the custody of the minor children. 18. Consequently, the order passed by the Family Court, Kottayam in O.P.(G&W) No.67/2010 also has to be upheld and we do so. Mat. Appeal No.278/2012 will also stand dismissed. For the aforesaid reasons, both these appeals are dismissed without any order as to costs. ## **ANTONY DOMINIC, JUDGE** ## **P.D. RAJAN, JUDGE.** acd Mat. Appeal Nos.278/12 & Con.case 15 Mat. Appeal Nos.278/12 & Con.case 16