M.RAJANI v. K.SUNIL KUMAR

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA 1933 MA.No. 88 of 2004 ( ) --------------------OP.282/2001 of FAMILY COURT,KOZHIKODE APPELLANT/APELLANT/RESPONDENT.: --------------------------------- M.RAJANI, D/O.GOVINDAN, AGED 29 YEARS, R/A. AT CHANDNI HOUSE, KAYALODE, THALASSERY TALUK. BY ADVS.SRI.P.T.ANTONY SRI.K.N.CHATHUKUTTY SRI. V. RAJAGOPAL RESPONDENT/PETITIONER.: -------------------------- 1 K.SUNIL KUMAR, S/O.LAKSHMANAN, AGED 39 YEARS, R/A AT DULAS HOUSE, MALAPARAMBA CHEVAYUR AMSOM DESOM, KOZHIKODE TALUK. BY SRI.V.V.SURENDRAN SMT.SANIKA.V.S. SMT.M.CHANDRALEKHA[MEDIATOR] THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2012, THE COURT ON 03/02/2012 DELIVERED THE FOLLOWING: ## **K.M. JOSEPH &** ## **M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** Mat. Appeal No.88 of 2004 E **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 4[th] day of February, 2012 ## **JUDGMENT** ## Joseph Francis J., This appeal is filed by the respondent/wife in O.P.282/01 on the file of the Family Court, Kozhikode. The respondent herein was the petitioner husband in that Original Petition, which was filed by him for divorce under Section 13(1)(ia) of the Hindu Marriage Act, on the ground of cruelty. 2. The facts of the case are briefly as follows : The petitioner in the O.P. is the husband of the respondent. They were married on 4[th] January, 1998 and lived as husband and wife at the residence of the petitioner. The respondent delivered a child on 25.9.1999. The child is under the care and custody of the respondent/mother. The _Mat. Appeal No.88 of 2004_ : 2 : petitioner filed the above petition alleging cruelty by the respondent. The main grounds of cruelty alleged against the respondent is that the respondent wanted employment for herself; that the respondent and child did not join the petitioner after delivery, even though they went to her house to take them back. It was also alleged that on 16.4.2001, the respondent who had gone to the petitioner's house in connection with the obsequies of the petitioner's brother Sasi who had died on 11.4.2001, she refused to stay there and also created a scene on that day before leaving. It was further alleged that the respondent was also not behaving properly to the petitioner's parents while she was in the house of the petitioner. The respondent filed counter contesting the petition and denied the incident on 16.4.2001 as well as the general allegation of misbehaviour against the parents of the petitioner. 3. In the Family Court, PW1 to PW4 and RW1 to RW4 were examined and Exts.A1 and B1 were marked. The Family Court, on considering the evidence found that the petitioner's case that the scornful behaviour and adamant attitude of the respondent/wife has _Mat. Appeal No.88 of 2004_ : 3 : spoiled their life is true and to save them, a decree as prayed for is the best for the future of the couple, and the petition was allowed and the marriage between the petitioner and the respondent dated 4.1.1998 was dissolved by a decree of divorce and the custody of the minor child Vaishnav was given to the respondent/wife with visitorial right to the petitioner/husband. Against that order, allowing the decree of divorce, the respondent/wife filed this Mat.Appeal. The petitioner/husband has not challenged the part of the order regarding the custody of the child. 4. Heard the learned counsel for the appellant and the learned counsel for the respondent. At the time of argument, learned counsel for the appellant raised the following contentions : The Family Court should have held that the acts of mental cruelty are untrue and insufficient for a dissolution of the marriage of the appellant and respondent. The Family Court failed to note that there were only acts of wear and tear of married life and nothing more. The super-sensitivity of one spouse should not be a ground for divorce. The lower court failed to note that even on 24.6.2000 _Mat. Appeal No.88 of 2004_ : 4 : the respondent's party reached at 5 p.m. and there was no female member and the intention evidently was not to take the appellant and child, since impossible conditions have been attached. It is false to state that the appellant refused to join the respondent and go with him. The delivery was on 25.9.1999 and until 24.6.2000 nobody from the respondent's side wanted the appellant and child to return to the matrimonial home. The lower court omitted to note that no notice asking the appellant to join was issued after the delivery except on 25.4.2001 when Ext.A1 was issued and the respondent as PW1 answered in the negative to the question as to whether he was ready to take the wife and child to join him. The finding by the lower court that the marriage has irretrievably broken down is not correct on the materials on record. The wife was meeting her husband from the business premises and there are no reasons to dissolve it. The Family Court failed to note that the cruelty has to be of such a nature as to satisfy the court's conscience and have made it impossible for the spouses to live together without mental agony or torture or distress. The preparation of a letter by _Mat. Appeal No.88 of 2004_ : 5 : the appellant to be sent to the Surya T.V. programme with the hope of resolving the problems faced by her was not pleaded as an act of cruelty in the petition. But, however, the Family Court has decided against the appellant on the said incident which also indicates a prejudicial approach to the case. Learned counsel for the respondent/husband supported the order of the Family Court regarding divorce. In the decision reported in **Savitri Pandey v. Prem Chandra Pandey** [(2002) 2 SCC 73], in paragraph 6, it was held as follows : “Treating the petitioner with cruelty is a ground for divorce under Section 13(I)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily _Mat. Appeal No.88 of 2004_ : 6 : injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.” 5. One of the main allegations raised by the petitioner/husband against the respondent/wife is that the respondent/wife wanted an employment for herself and the petitioner/husband and his parents were not amenable for the same. Admittedly, the respondent/wife was working as a teacher in a school at Koothuparamba, near to her house before the marriage and the petitioner married her fully knowing that the _Mat. Appeal No.88 of 2004_ : 7 : respondent/wife was qualified to seek employment as a teacher. It has come out in evidence that when the respondent/wife attended a written examination conducted by the Public Service Commission, for an employment in KSEB, the parents of the petitioner/husband took objection, but the petitioner/husband had no objection in the respondent/wife seeking an employment. Admittedly, the petitioner/husband is conducting a private bank and he had no other source of income. Since the respondent/wife is a qualified woman and she had a feeling of financial insecurity and wanted to have an independent income and for that purpose, she insistence to secure an employment cannot be said to be a conduct amounted to cruelty. 6. Another allegation raised against respondent wife is that the respondent/wife and the child did not join the petitioner/husband after delivery, even though the petitioner and his relatives went to her house to take them back. It is an admitted fact that the wife was taken to her house for delivery in July 1999. On 25.9.1999 a male child was born. When the petitioner was examined as PW1 he deposed that after the delivery, he and his _Mat. Appeal No.88 of 2004_ : 8 : relatives used to visit the house of the respondent/ wife to see the respondent/wife and the child and they went to her house in October 1999 for milk giving ceremony. Then the parents of the respondent/ wife told him that he could take back the wife and child after three months of the delivery as per the local custom and he went to her house after three months along with his sister and her husband for taking her back the parents of the respondent/wife refused to send her back and told that he can take them back after six months. 7. When the respondent was examined as RW1 she deposed that she gave birth to the child by caesarean operation and therefore her mother who had undergone two caesarean operations insisted her to stay there for six months and that suggestion was not liked by her husband and his family members. Since the delivery was of caesarean operation the stay of the respondent wife for six months in her house for getting better medication and care by her parents cannot be termed as a deed of cruelty on the part of the respondent wife. RW1 deposed that when she was residing in the house of the _Mat. Appeal No.88 of 2004_ : 9 : petitioner husband she had a feeling that her in laws were not treating her properly and therefore she with the consent of the petitioner prepared a letter to be sent to the T.V. programme dealing with the family matters and that letter was written without disclosing her identity and the identity of her in-laws, but on a second thought she did not send that letter and she destroyed the same and her father-in-law got the draft of the letter from her bedroom and on reading that draft the father-in-law created some problems in the house. Even if the respondent/wife prepared such a letter and that was with the consent of her husband, that act also cannot be treated as an act of cruelty on the part of the respondent/wife. Another conduct of the cruelty on the part of the respondent/wife alleged by the petitioner is that she used to misbehave towards her in-laws. In cross examination PW1 admits that his parents had no serious grievance against her. Therefore that allegation is also not true. 8. PW1 admits that on 11.4.2001 his younger brother died and that fact was intimated to the respondent/wife and her family _Mat. Appeal No.88 of 2004_ : 10 : members and they came to his house on 12.4.2001 and they returned on the same day and on 16.4.2001 they again came to his house in connection with obsequies of his brother and he and his parents asked the respondent wife to stay in his house and at that time the respondent wife created a scene and uttered in front of his relatives and parents of the petitioner that she would stay in that house only if she gets her own income and that the petitioner only had the employment and that she had no employment and the respondent/wife returned to her house. PW1 deposed that he sent Ext.A1 divorce notice within 10 days of that incident. If the petitioner had the real intention to save the marriage he would have not sent it immediately. No doubt in June 2000, it is the respondent's case, the appellant refused to come back. But according to the appellant certain conditions were sought to be imposed. Even if the allegations raised by the petitioner against the respondent wife are true that allegations could be treated only as wear and tear in family life and that cannot be treated as a case of cruelty enabling the petitioner to get the divorce. Therefore, we _Mat. Appeal No.88 of 2004_ **==> picture [26 x 9] intentionally omitted <==** are of the view that the Family Court is not justified in granting decree of divorce on the ground of cruelty. Accordingly this Appeal is allowed and the order in O.P. No.282 of 2001 on the file of the Family Court, Kozhikode granting decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act is set aside and the order regarding custody of the child is not interfered with. Parties are directed to suffer their respective costs in this appeal. **K.M. JOSEPH,** **(JUDGE)** **M. L. JOSEPH FRANCIS, (JUDGE)** dl/