M.G. SIVARAMAN v. V.JAYA

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 9TH DAY OF MARCH 2018 / 18TH PHALGUNA, 1939 Mat.Appeal.No. 287 of 2012 AGAINST THE ORDER/JUDGMENT IN OP 321/2009 of FAMILY COURT, PALAKKAD APPELLANT(S)/APPELLANT/PETITIONER M.G.SIVARAMAN, S/O LATE M. GOPALAKRISHNAN, KAILAS BHAVAN, VELLIYAD ROAD, MANISSERI POST, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS.SRI.RAJESH SIVARAMANKUTTY SMT.K.ANILA RESPONDENT(S)/RESPONDENT/RESPONDENT: V.JAYA, D/O LATE RAMKUMAR, C/O. SREEKRISHNANKUTTY, VELLIPARAMBIL HOUSE, PALAPPURAM POST, PIN:679 103, PALAKKAD DISTRICT. R1 BY ADV. SRI.P.JAYARAM THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - Mat.Appeal.287 of 2012 - - - - - - - - - - - - - - - - - - - Dated 9[th] March 2018 - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** Harilal, J - 1.The appellant is the petitioner in O.P.321/2009 of the family court, Palakkad. He is the husband of the respondent. He filed the above petition under Sec.13(1)(ia) of the Hindu Marriage Act and prayed for a decree dissolving the marriage between them and the respondent on the ground that the respondent has treated him with cruelty. The respondent denied the allegation against her and both parties adduced evidence. After considering the evidence on record the family court dismissed the application on a finding that the petitioner miserably failed to plead and prove the facts constituting cruelty as envisaged under Sec.13(1) (ia) of the Hindu Marriage Act. The legality and correctness of the findings whereby the family court dismissed the aforesaid original petition are assailed in this appeal. **MA.287/12** 2 2.The case of the petitioner in short is as follows: The marriage between the petitioner and the respondent was solemnized on 27.12.1987 and two daughters were born out of the said wedlock. The petitioner is working at Thiruvananthapuram and the respondent is working as a teacher. In the year 2004, they started to reside in a new house put up in the property purchased by the petitioner by availing loan. During September, 2006 onwards, there was a considerable change in the behaviour of the respondent. The elder daughter had fallen in love with one Brijesh and on enquiry it was informed that he was not a person of good character and has no permanent income or education. Hence the petitioner advised the daughter to withdraw from the relationship. But the respondent was not happy with the attitude of the petitioner and she supported the love affair of the daughter and behaved badly towards the petitioner on the said reason. During that period, phone bills were excessive due to **MA.287/12** 3 the calls of the elder daughter to Brijesh. When calls of the lover coming to the house, the petitioner advised his daughter, but the respondent did not like that and she insulted the petitioner in front of the petitioner. Further she openly declared that she will support the marriage of the daughter with the said Brijesh. Thus from September 2006 onwards, the respondent treated the petitioner with cruelty. - 3.Eventually the respondent and children refused to talk to him and denied food to him. Physical relationship between the petitioner and the respondent stopped. The respondent threatened to commit suicide. Subsequently, the petitioner became alone in the house as the respondent maintained a hostile attitude to him. Thereafter in December 2007, the respondent filed a complaint before the police alleging cruelty towards her and children. While so in 2008 May, another phone call came stating that his daughter Shikha attempted to commit suicide due to the act **MA.287/12** 4 of Brijesh. But, the respondent did not inform the same to the petitioner. While so on 3.7.2008, a lawyer's notice was issued to the respondent and for that a reply was sent stating false allegation. In the meantime Brijesh and his family withdrawn from the marriage though engagement was held earlier. Thereafter, the respondent conducted marriage of the daughter without informing the petitioner and daughter was sent to the house of Brijesh. Now the respondent is residing in a rented house at Palapuram along with younger daughter and she refused to talk with him over phone. In short, according to the petitioner, behaviour of the respondent became intolerable. Hence the petitioner filed original petition seeking dissolution of marriage on the ground of cruelty. - 4.The respondent filed objection denying the allegation of cruelty levelled against her. It is her case that the petitioner has treated her with cruelty. According to her, the petitioner **MA.287/12** 5 never acted as a responsible father and he always found fault with the respondent and interested in torturing her. The original petition was filed with an intention to marry another lady after dissolution of marriage. Even after filing the original petition, he had undergone a surgery to his eye and respondent was looking after him and nursing him when he was in the hospital as an inpatient. Even at the time of filing the original petition he used to come and reside with the respondent and the original petition was filed in suppression of those facts. As regards the love affair of the daughter, it is her case that she tried her level best to dissuade the daughter from the love affair and she also has no good opinion about her lover by name Brijesh. But, the petitioner was subjecting the daughter to cruelty for the love affair and it became unbearable to the daughter and several times she made attempts to commit suicide, when she was compelled to break the love affair. Considering the adamant stand of the daughter, the respondent **MA.287/12** 6 has taken a realistic and practical approach, suitable to this situation. Due to the cruel behaviour of the petitioner the younger daughter has also had epilepsy. He never looked after the family members as a dutiful husband and father. The respondent never ill-treated and insulted the petitioner in front of the daughters or anybody else. On the other hand, on 27.12.2007, the petitioner assaulted the respondent and kicked her by locking in a room and hit her with coconut at her head. Hearing the cry of the respondent neighbouring people rushed to the spot and rescued her. In such a situation she was constrained to file a complaint before the police. At the time of filing the petition, the daughter was undergoing treatment of a psychiatrist. Even though the respondent tried several times to contact him over phone he refused to attend the phone. In short, according to the respondent, she never behaved cruelly towards the petitioner. Hence she prayed for dismissal of the petition. **MA.287/12** 7 - 5.On the aforesaid pleadings, both parties adduced evidence. The petitioner was examined as PW1 and respondent was examined as RW1 and documentary evidence Exts A1 and A2 were produced by the petitioner. - 6.Heard the learned counsel for the petitioner and the learned counsel for the respondent. - 7.The short point that emerges for consideration in this appeal is whether the Family Court is justified in dismissing the petition on a finding that the petitioner has failed to plead and prove the facts constituting cruelty as envisaged under Sec.13 (1) (ia) of the Hindu Marriage Act. - 8.The love affair of the daughter is genesis from which the father and mother fell apart. The petitioner himself admitted that the marriage between the petitioner and the respondent was solemnised on 27.12.1987 and they lived together **MA.287/12** 8 without any kind of marital disharmony till 2004. In the meantime he has constructed a house and started residence there. The couples have two daughters. Elder by name Shikha was studying for Plus two. In pleadings and cross-examination, the petitioner himself admitted that the sole reason for the marital disharmony between the petitioner and the respondent is the love affair of the daughter. Both the petitioner and the respondent admitted that Shikha fell in love with one Brijesh. According to the petitioner, the said Brijesh was not a good person. He has no job or education. So he opposed the said love affair and advised the daughter to withdraw from that relationship. But, the respondent was not happy with the said attitude of the petitioner and she supported the daughter and behaved badly towards the petitioner for the said reason. - 9.Has the petitioner succeeded in proving sufferance of cruelty caused by the respondent, in connection with his daughter's love affair. **MA.287/12** 9 He alleged a specific incident which aggravated his feelings, by the respondent in connection with the said love affair of the daughter. The said specific incident can be narrated as follows: While the daughter started love affair, a mobile phone was found in her hand and that was informed to the petitioner by the younger daughter and immediately, he directed the respondent to take that phone and inform the police. In spite of his instruction to the respondent, the respondent returned the phone to the boy and the said act in violation of his instruction aggravated his feelings which would amount to cruelty, according to the petitioner. On the other hand, the respondent pleaded and contended that she also opposed the love affair of the daughter and tried her level best to dissuade her to withdraw from that relationship. But the daughter was found very adamant to continue with the love affair. When the compulsion from the part of the appellant became intolerable, four times she attempted to commit **MA.287/12** 10 suicide. As regards the return of the mobile phone in violation of the instruction of the petitioner, she deposed that since the petitioner would brutally torture the daughter, she returned the mobile phone before his arrival. - 10.We are of the opinion that the said act of the respondent can never be treated as a cruelty for enabling the husband to get a divorce from the wife. Moreover, we are of the opinion that in view of the circumstances brought out in evidence the respondent wisely tackled the situation so as to avoid the situation becomes more aggravated. In short, considering the stubborn stand of the daughter the mother has taken a realistic and practical approach to the love affair of the daughter; but the father has lost his temper and thereby put his entire family in peril. She has returned the mobile phone to the boy, before his arrival, considering the violent behaviour expected from the part of the petitioner and it was a wise decision, according to us. The mother **MA.287/12** 11 also was at liberty to take a wise decision, in accordance with the situation though, the father instructed otherwise. Though, he contended that he was denied of food and all facilities in the house no specific incident was alleged or proved in this respect. Even though he contended that the respondent supported the love affair of the daughter no evidence has been adduced to prove the alleged attitude of the respondent. On the other hand, the respondent has given evidence by disclosing her real mind towards the love affair of the daughter and we find that the attitude of the respondent was more reasonable, in such a situation, than that of the petitioner. Though he alleged that in connection with the love affair of the daughter, the respondent insulted him in front of the daughter, no evidence was adduced to prove the said allegation. Though, he contended that he strongly opposed the love affair of the daughter it has come out in evidence and he admitted that he himself conducted the engagement of the daughter with the **MA.287/12** 12 said Brijesh. - 11.Further it is alleged that marriage of the daughter was conducted without informing him. In this connection, the respondent has also got a case that she herself came to know about the marriage only just one day before the marriage and all the arrangements of the marriage the has been done by the bridegroom. No contra evidence was adduced to prove otherwise by the petitioner. When the petitioner was questioned about the said allegation he pleaded ignorance whether his wife had known about the marriage just before one day. Further he pleaded ignorance as to whether all the arrangements for the marriage had been done by the bridegroom party. - 12.It is further alleged that the respondent filed a police complaint against him before the police. But it is a specific case of the respondent that on 27.12.2007, the petitioner physically tortured her and tried to hit at her head with a coconut. **MA.287/12** **==> picture [13 x 9] intentionally omitted <==** When she was examined in evidence, she stood by the said allegation against the petitioner and the petitioner could not shatter the evidence of the respondent in this respect. When she was physically assaulted by the petitioner, she was compelled to file a police complaint. We do not find fault with the respondent in this respect and it cannot be treated as an act amounting to cruelty towards the petitioner, unless the allegation is false. 13.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 **MA.287/12** 14 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 to live with the other spouse. It must be something more serious than ordinary wear and tear of married life. 14.We have reevaluated the evidence on record in view of the proposition culled out from the aforesaid decisions. In view of the proposition held above, as regards the element constituting mental cruelty envisaged under Sec.13 (1) (ia) of the Hindu Marriage Act, we are of the opinion that even if the allegations levelled against the respondent are admitted at its face value, the said allegations are not sufficient to constitute mental cruelty and it cannot be presumed that the petitioner could not be reasonably expected to live with the respondent as the entire dispute arose from the love affair of the daughter only and now the daughter got married with the said **MA.287/12** 15 Brijesh. The genesis from which the marital disharmony arose has been vanished. Those past days can be taken as a period of eclipse only. Further, we are of the opinion that the spouses can live together harmoniously in view of the change of circumstances. To sum up, the petitioner miserably failed to prove cruelty as envisaged under Sec.13(1) (ia) of the Hindu Marriage Act and the Family Court is fully justified in dismissing the original petition. The Mat.Appeal is dismissed accordingly. Sd/- K.HARILAL Judge Sd/- A.M.BABU Judge Mrcs/9.3 /True copy/ P.S.To Judge