M.J. Shibin v. K.C. Diji

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939 Mat.Appeal.No. 59 of 2015 () ----------------------------- AGAINST THE ORDER/JUDGMENT IN OP 1878/2010 of FAMILY COURT,THRISSUR DATED 20-11-2014 APPELLANT(S)/PETITIONER: ----------------------- M.J. SHIBIN S/O.JANARDHANAN, MANJARAMBATH HOUSE, PALAYUR NORTH, CHAVAKKAD P.O. & TALUK, THRISSUR BY ADVS.SRI.B.S.SWATHY KUMAR SRI.A.K.RAJESH SRI.VENKATESH GOPI RESPONDENT(S)/RESPONDENT: ------------------------- K.C. DIJI D/O.CHANDRAN, KOCHAN HJOUSE, BLANGAD P.O., BLANGAD, ERATTUPUZHA, CHAVAKKAD TALUK, THRISSUR DISTRICT PIN - 680 506 R1 BY ADV. SRI.THIYYANNOOR RAMAKRISHNAN R1 BY ADV. SRI.ARUN KUMAR.P R1 BY ADV. SMT.AMBIKA RADHAKRISHNAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 6.7.2017, THE COURT ON 09-08-2017 DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE & ANU SIVARAMAN, JJ.** ## **----------------------------------------------Mat.Appeal No. 59 of 2015 ----------------------------------------------Dated this the 9[th] day of August, 2017** ## **JUDGMENT** ## _**Anu Sivaraman, J.**_ This appeal arises from a common judgment in O.P.No.1878 of 2010 and G.O.P.No. 2230 of 2012 dated 20.11.2014 of the Family Court, Thrissur. Appellant husband is the petitioner and the respondent wife is the respondent in O.P.No.1878 of 2010. O.P.No.1878 of 2010 for divorce was dismissed by the Family Court. G.O.P.No.2230 of 2012 for obtaining the custody of the minor child was also dismissed giving the husband a visitorial right to the child. The petitioner in O.P.No.1878 of 2010 has filed this appeal challenging the dismissal of his petition for dissolution of marriage on the ground of cruelty. 2. It is contended by the petitioner in the original petition that the marriage between the petitioner and the respondent was solemnised on 19.10.2009. After the marriage, they resided together at the residence of the petitioner. A male child was born on 28.8.2010 in the wedlock. The petitioner was 2 _**Mat.A.59/15**_ suffering from lumbar disc prolapse. The above problem was taken seriously by the respondent. She believed that she was cheated by the petitioner. In December, 2009, the respondent became pregnant but she never cared or loved the petitioner. She used to insult the petitioner without any reason. Her attitude was that she wants to see that the child is aborted. The petitioner suspected the mental condition of the respondent. In June, 2010 the respondent insisted that she should be taken to her parental house, otherwise she will file a complaint before the Police. Accordingly, the petitioner took the respondent to her parental house but the respondent and her mother made an allegation that the petitioner got illicit connection with his mother. Such an allegation had been made without any basis and only to insult the petitioner and his mother. On 28.8.2010, the respondent gave birth to a male child. For the 28[th] day celebration of the child, neither the respondent nor her family members invited the petitioner but the petitioner and his mother went to the residence of the respondent. When the petitioner enquired about the return of the respondent, the respondent stated that the child is not of the petitioner and the petitioner has no potency. Due to the continued insult by the respondent, the petitioner sustained serious mental agony. _**Mat.A.59/15**_ 3 Therefore the petitioner is entitled to get a decree for divorce on the ground of cruelty. 3. The respondent filed objections admitting the marriage and the birth of the child. But she denied that after fixing the marriage, the respondent behaved indifferently towards the petitioner. On the other hand, the petitioner who used indecent language over telephone even before the marriage. The contention that the respondent treated the petitioner with cruelty and insulted the petitioner and his family members was denied. The contention that due to the petitioner's disc prolapse, the respondent suspected the petitioner's potency and she has commented that she was cheated by the petitioner is not correct. The petitioner had informed the respondent that due to disc prolapse it is not possible for him to have a complete marital life. It is denied that the respondent made false allegations against the petitioner connecting him with his mother. The petitioner is unreasonably obliging to his mother and never heard the opinion of the respondent. After the respondent left the matrimonial home for the purpose of delivery, neither the petitioner nor his relatives enquired about the respondent. For the 28[th] day celebration of the child, there was no precedence of inviting the husband and his relatives. 4 _**Mat.A.59/15**_ They have to come to the residence of the respondent for that celebration. The attempt of the petitioner is only to divorce the respondent and marry another lady who may bring more gold and money. There is no bonafides in the petition. The respondent never treated the petitioner with cruelty. 4. The evidence in the case comprised of oral testimony of PW1 and PW2 and RW1. Exhibits A1 to A12 series were marked on the petitioner's side and Exhibit B1 was marked on the side of the respondent. After considering the pleadings and materials on record, the Family Court dismissed the original petition. The Family Court found that in the absence of the pleading to the effect that the illness was informed before the marriage, the petitioner's contention during evidence cannot be believed. The contention taken in the petition that the respondent is behaving like a mentally ill person cannot be accepted at all. With respect to the behaviour of the respondent it was held that apart from oral evidence of PW1 and PW2, there is no other evidence. As regards the allegation of illicit connection between the petitioner and his mother, the Family Court found that this is not at all believable that the respondent will make a wild allegation against the petitioner stating that he has got illicit connection with his mother and on 5 _**Mat.A.59/15**_ the other hand, there is every possibility that the respondent may not be happy that the petitioner is more and more depending on his mother even after the marriage. Therefore, the Family Court found that the allegations made against the respondent are without any basis. 5. Heard learned counsel for the appellant and the learned counsel appearing for the respondent. 6. The contention raised by the appellant is to the effect that the appellant husband had been treated with unbearable mental cruelty by the wife. The evidence adduced in the case would clearly show that the allegations raised by the respondent wife against the husband were matters of extreme cruelty and that no husband could be reasonably expected to continue a marital life after such vicious allegations were raised. The Family Court failed to take note of the pleadings and the evidence adduced to prove mental cruelty in its proper perspective. 7. The appellant husband as well as his mother had given oral evidence as PW1 and PW2. They had specifically given evidence to show that the respondent was a person who was in the habit of raising scandalous and unforgivable allegations as against the husband and his family. It is stated in the pleadings _**Mat.A.59/15**_ 6 as well as in the deposition of PW1 and PW2 that the respondent wife had raised an allegation as to an illicit relationship between the appellant and his own mother. The respondent in her cross-examination states that father of the petitioner has some mental ailment. In her cross examination she was specifically asked about the allegations raised by her against the appellant and his mother and that the malicious allegations and the false cases given by her were the reason for the marriage having broken down completely. She refused to answer to the question. She states that after her delivery, she did not enquire whether the appellant had been informed about the birth of the child and whether he had come to see the child. It was also contended that the husband and his family were not informed about the date of the naming ceremony of the child which is also admitted by RW1 in cross examination. 8. The Family Court considered the contentions raised in the light of the evidence adduced. It was found that the wife was understandably agitated due to the obviously close relationship between her husband and his mother. It is stated that the said emotional attachment between the mother and the son was likely to create difficulties in the marital 7 _**Mat.A.59/15**_ relationship. The presence of the mother at the time of the trial of the case was a circumstance which was taken note of by the Family Court to find that the mother had more than a normal role in the son's life. 9. None of these explanations, according to us, would justify the vicious allegations raised by the wife against the husband, his mother and his father. It is also to be noted that the custody of the child was being handed over at the court premises on the dates of hearing and the presence of the mother could be well explained by the fact that she could see her grandchild only in the court premises. So also, the finding of the Family Court that the participation of the husband and the mother-in-law in the naming ceremony on the 28[th] day of the kid's birth would amount to a condonation of the cruelty alleged against the wife is also not justifiable in our view, because it has clearly come out in evidence that the appellant and his mother were emotionally attached to the child and the child also was very happy in the company of the father. The action of the husband and the mother-in-law in attending the 28[th] day ceremony and behaving politely towards the daughterin-law at her house cannot be taken as a circumstance to deny a decree on the ground of cruelty to the husband. 8 _**Mat.A.59/15**_ 10. What is to be taken into account in deciding a petition for divorce on the ground of cruelty is whether the pleadings and evidence are sufficient to establish cruelty of such a nature that the appellant could not reasonably be expected to live with the respondent. In _**Vishwanath Agrawal v. Sarla Vishwanath Agrawal**_ [(2012) 7 SCC 288] the Apex Court has held that cruelty has an inseparable nexus with human conduct and is always dependent on social strata or milieu to which parties belong, their ways of life, relationship, temperaments etc. It was held that a husband cannot be expected to continue to live with the wife in the face of her sustained attitude of causing humiliation and calculated torture. It was further held that in a matrimonial dispute, all witnesses would have some interest in the subject matter of the dispute, since rank outsiders cannot be expected to depose in a matrimonial case. 11. Unfounded allegations of infertility have been clearly held to amount to mental cruelty, even if such allegations are made during the course of the matrimonial proceedings before the Court. In _**Malathi Ravi v. B.V.Ravi**_ [(2014)7 SCC 640] the Apex Court held that even where a plea of cruelty has not been specifically raised, if ingredients of mental cruelty are made out, divorce can be granted on the said ground. In _**Vinod**_ 9 _**Mat.A.59/15**_ _**Kumar Subbiah v. Saraswathi Palaniappan**_ [(2015)8 SCC 336] the Supreme Court has held that where wife abuses the husband and makes false complaints to the Police against him, such acts could not be termed as “ordinary wear and tear of marital life” as observed by High Court but would amount to cruelty to the husband. 12. In the instant case, the unfounded allegations made by the wife cannot be explained away on any count and would amount to mental cruelty irrespective of the social strata to which the parties belong. The appellant had narrated several instances of mental cruelty. These were denied by the wife. Her case is that the appellant wanted to somehow get rid of her and remarry. Exhibit B1 matrimonial advertisement had been produced to show that the intention of the appellant was to remarry immediately. However, on a consideration of the evidence adduced, we are of the opinion that the oral testimony of PW1 and PW2, which was unshaken in cross examination, would go to show that the respondent had acted with utmost mental cruelty as against the appellant. The unfounded allegations raised by the wife have been clearly spoken to by the husband as well as his mother. Though denied in the pleadings and in the proof affidavit, an overall _**Mat.A.59/15**_ 10 consideration of the evidence adduced would show that the appellant husband had succeeded in substantiating that the wife had treated him with cruelty. Her statement that she was unaware whether the appellant had come to the hospital after the delivery to see the child and that she did not bother to enquire would show her indifference to the husband. On a comprehensive reading of the evidence on record, we are of the opinion that the case set up by the appellant husband was the more probable one. In the above view of the matter, this appeal is allowed. O.P.No.1878 of 2010 is decreed granting the appellant a decree of dissolution of marriage under Section 13(1)(1a) of the Hindu Marriage Act, 1955. The parties shall bear their respective costs. **A.M.SHAFFIQUE JUDGE** **ANU SIVARAMAN JUDGE** _vgs_