P. C. Mathew @ Jose v. Annamma Mathew

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN THURSDAY, THE 1ST DAY OF AUGUST 2013/10TH SRAVANA, 1935 Mat.Appeal.No. 311 of 2008 ( ) ------------------------------AGAINST THE JUDGMENT IN OP 164/2006 of FAMILY COURT, KOTTAYAM AT ETTUMANNOOR DATED 22-01-2008 APPELLANT(S)/PETITIONER: ------------------------------------------------ P.C.MATHEW @ JOSE, S/O.CHERIYAMN, PALLATHU HOUSE, THELIAKOM KARA AND P.O. PEROOR VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S)/RESPONDENT: ---------------------------------------------------- ANNAMMA MATHEW, W/O.MATHEW, PAREKUDIYIL HOUSE, PARAMPUZHA KARA AND P.O. VIJAYAPURAM VILLAGE, KOTTAYAM TALUK AND DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2013, ALONG WITH MA. 312/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** ------------------------------------------- Mat.A.Nos.311 & 312 of 2008 ------------------------------------------Dated this the 1[st] day of August, 2013 ## **JUDGMENT** ## Antony Dominic, J. - 1.These appeals arise from the common judgment rendered by the Family Court, Kottayam at Ettumannoor in OP.Nos.164/06 and 151/07. - 2.The marriage between the appellant and the respondent was solemnised on 16.9.1979. In their wedlock, two female children were born, on 10.3.1981 and 10.3.1982 respectively. According to the appellant husband, the conduct of the respondent was cruel, both physically and mentally and finally, she deserted him on 1.10.1986. However, it is only in 2006 the husband filed OP.164/06 for divorce on the grounds of cruelty and desertion. During the pendency of this OP, wife filed OP.151/07 seeking recovery of Rs.25,000/- and 14 sovereigns of gold. The cases were tried jointly. The husband was examined as PW1 and one of his relatives, as PW2. The wife was examined as RW1 and her brother, as RW2. Exts.A1 MA.311/08 & 312/08 2 to A4 were also produced by the husband. The Family Court considered the matter and rendered its judgment on 22.1.2008 dismissing OP.164/06 and allowing OP.151/07. Mat.A.311/08 is filed by the appellant aggrieved by the dismissal of OP.164/06. Similarly, the appellant has filed Mat.A.312/08 challenging the judgment allowing OP.151/07. - 3.We heard the learned counsel for the appellant and also the learned counsel appearing for the respondent. - 4.A reading of the judgment in OP.164/06 shows that according to the Family Court, the husband has failed to establish his case of cruelty and desertion. However,what we notice is that as PW1, the appellant husband has narrated various incidents of cruelty. According to him, respondent has never looked after him or his parents and she was always interested in residing in her house and was a quarrelsome lady. It is also alleged that she never discharged her duties as a responsible wife; that even after giving birth to the children, there was no MA.311/08 & 312/08 3 change in her character; that in spite of advices on various occasions, she never become a loyal wife; that she insulted him ever in his workplace; that she never gave any love and affection to him or even to the children; that she behaved cruelly to him; that on 1.10.1986, without his knowledge or permission, she left to her parental home and did not return to the matrimonial home. It has also been clearly stated that she left the matrimonial home with the intention of deserting the appellant. The appellant has also given the details of various petitions filed by the respondent wife for maintenance etc. Although the husband has pleaded the aforesaid specifically, with instances of cruelty, during cross examination, he was not questioned on anyone of those issues. On the other hand, the cross examination was more on the peripheral issues. We also notice that in so far as the deposition of PW2, a relative of PW1, is concerned, though he supported the husband generally, he has not been cross examined at all. Admittedly therefore, there was failure to cross examine the witness on the relevant aspects and that failure is liable to be taken as MA.311/08 & 312/08 4 acceptance of those aspects by the opposite side. In this context, reference should be made to the judgment of this Court in **State of Kerala** v. **Venugopalan** [1987 (1) KLT SN 28], where, it has been held thus: “If there is anything in the witness's statement which is disputed and the opponent avoids asking questions on those matters in cross-examination the evidence in chief examination must be accepted unless of course there are inherent improbabilities. In a case where there is failure to cross examine a witness on a particular point there can be a presumption that the witness's evidence is accepted. The failure to crossexamine a witness on an aspect always amounts to acceptance of that aspect by the opposite party. So long as there is nothing to show that the version given by a witness is not incredible or impossible the failure to cross-examine him may have the effect that the version given is not challenged.” - 5.Now, coming to the evidence of RW1, although it was the case of the respondent that she left the matrimonial home on account of the cruelty meted at the hands of the appellant husband, neither in the pleadings nor in the proof affidavit has 5 MA.311/08 & 312/08 she given even a single specific instance of such cruelty. It is also to be noticed that despite leaving the matrimonial home on 1.10.1986 and her repeated assertion that she is still desirous of joining the appellant in his home, so far, she has not applied to the Family Court for restitution of conjugal rights. In so far as the cruelty and desertion, which is the subject matter of OP.164/06, is concerned, the evidence of RW2 may not be of any assistance to her. - 6.On an overall consideration of the evidence adduced by the parties to OP.164/06, we are inclined to accept the case of the appellant that the respondent is guilty of cruelty as provided in section 10(x) of the Indian Divorce Act, 1869. Once we accept the case of cruelty pleaded by the appellant, the issue of desertion which is connected therewith, as provided under section 10(ix), also should be accepted. If that be so, the appellant is entitled to have a decree as prayed for by him. 6 MA.311/08 & 312/08 - 7.For the aforesaid reasons, we are unable to accept the reasoning of the Family Court dismissing OP.164/06. Therefore, the judgment of the Family Court, Kottayam dismissing OP.164/06 will stand set aside and the OP will stand decreed dissolving the marriage between the appellant and the respondent by a decree of divorce with effect from today, as provided in sections 10 (x) and (ix) of the Indian Divorce Act. ## 8.Mat.A.311/08 is allowed accordingly. - 9.Mat.A.312/08 is filed against the judgment in OP.151/07, whereby, the petition filed by the respondent wife for return of Rs.25,000/- and 14 sovereigns of gold was decreed as prayed for. When the appeal was heard in the presence of the appellant, it was agreed that the appellant will pay an amount of Rs.2,50,000/- in full settlement of her claim towards money and ornaments as sought for by her in OP.151/07 before the Family Court. We are informed that Rs.25,000/- has been MA.311/08 & 312/08 7 deposited by the appellant before the Family Court, Kottayam and that the respondent wife can withdraw the same without any objection. It is also undertaken that the balance amount of Rs.2,25,000/- will be paid by the appellant within a period of two months from today. In view of the above undertaking, the decree in OP.151/07 will stand modified. Mat.A.312/08 ordered accordingly. Sd/ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb.