Pradeep (appellant) v. Sreeja (respondent)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE** **& THE HON'BLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 21ST DAY OF FEBRUARY 2013/2ND PHALGUNA 1934** **Mat.Appeal.No. 265 of 2011** **-------------------------------------[AGAINST THE ORDER DTD. 28/02/2009 IN O.P.NO.131/2008 OF THE FAMILY COURT, PALAKKAD]** **............** ## **APPELLANT/PETITIONER:** **-------------------------------------** **PRADEEP, S/O.LATE GOPALAKRISHNAN, KUNDUKADU VEEDU, KOTTEKKAD, KALIPPARA, PALAKKAD DISTRICT.** **BY ADV. SRI.P.K.MOHANAN(PALAKKAD).** **RESPONDENT/RESPONDENT:** **-------------------------------------------** **SREEJA,D/O.UNNIKRISHNAN, KALAPARAMBU VEEDU, VENNAKKARA, PUTHUPARIYARAM, PALAKKAD DISTRICT, PIN - 678 733.** **BY ADV. SRI.K.M.KURIAN.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **PIUS.C. KURIAKOSE & P.D. RAJAN, JJ.** ------------------------------------------Mat.Appeal No.265 of 2011 ---------------------------------------------Dated this the 21[st] day of February, 2013 ## **JUDGMENT** ## Pius.C. Kuriakose, J. Under challenge in this appeal filed by the appellant, who is the husband of the respondent, is the judgment and decree of the Family Court, Palakkad in O.P.No.131/2008. The above O.P. Was filed by the appellant seeking a dissolution of his marriage with the respondent by a decree of divorce on the ground of cruelty under Section 13(1) (1a) of the Hindu Marriage Act. The pleadings raised by the parties have been correctly narrated by the learned Family Court in the impugned judgment. Therefore, it is not necessary for us to narrate the pleadings over again in this judgment. On the basis of the pleadings, the court below rightly found that the only point, which arises for consideration is whether the petitioner (appellant) is entitled to decree for divorce on the ground of cruelty. The evidence before the Family Court consisted the oral evidence of the appellant as PW1 and that of 2 Mat. Appeal No.265/11 the respondent as RW1 only. The Family Court, on appreciating the evidence, came to the conclusion that even if the actual cruelty alleged by the petitioner against his wife, the respondent, was true, as there is evidence to hold that such a cruelty was condoned by the appellant, the appellant cannot aspire for a decree for divorce, in view of Section 23(1) (b) of the Hindu Marriage Act. Accordingly, the O.P. was dismissed. 2. In this appeal, various grounds are raised assailing the impugned judgment. Mr. P.K. Mohanan, the learned counsel for the appellant, addressed serious and strenuous arguments before us based on the grounds raised in the O.P. He took us through the evidence adduced by PW1 and RW1. We have read through the full text of the impugned judgment. According to Mr. Mohanan, the appreciation of evidence by the court below was erroneous. Mr. Mohanan submitted that, at any rate, after the impugned judgment was passed by the Family Court, the respondent again filed a complaint against the appellant under Section 498A and the appellant was arrested and was put in jail for three days. The above act of the respondent 3 Mat. Appeal No.265/11 in filing yet another case under Section 498A amounts to matrimonial cruelty, justifying decree of divorce. According to the learned counsel, subsequent event of the respondent filing fresh case under Section 498A can be relied on by this Court and the impugned judgment can be interfered with and a decree for divorce can be granted. Mr. Mohanan relied on the judgment of the Supreme Court in _**Vishwanath**_ ## _**Sitaram Agrawa**_ **l** v. **Sau Sarla Vishwanath Agrawal [AIR 2012 Supreme court 2586].** 3. We have given our anxious consideration to the submissions of Mr. P.K. Mohanan. We have gone through the dictum laid down by the Supreme Court in _**Vishwanath Sitaram Agrawa**_ **l's** case (supra). Paragraph 37 of the above judgment was highlighted before us by Mr. Mohanan. We quote paragraph 37 as below: “37. We may also usefully refer to the observations made in Suman Kapur (AIR 2009 SC 589: 2008 AIR SCW 7730) (supra)wherein the wife had made a maladroit effort to take advantage of a typographical error in the written statement and issued a notice to the husband alleging that he had another wife in USA. Thus, this Court has expressed the opinion that the subsequent events can be considered.” We do not think that what is contained in paragraph 37 is the dictum of the judgment in _**Vishwanath Sitaram**_ 4 Mat. Appeal No.265/11 _**Agrawa**_ **l's** case (supra). In our view, in paragraph 37, the Supreme Court has only referred to an earlier judgment in **Suman Kapur** (AIR 2009 SC 589: 2008 AIR SCW 7730) and observed that this Court has expressed the opinion that subsequent events can be considered. True, it is now settled that subsequent events having fundamental impact on the right or liability of the party to gain/suffer relief can be considered in appropriate cases. But, according to us, even if it is true that subsequent to the passage of the impugned judgment, the respondent filed a frivolous case under Section 498A and got the appellant in jail in that case, the same will amount to a fresh cause of action only. We take that view, as we sure that, if we notice that subsequent event, serious prejudice will be caused to the respondent who was only called upon to answer an allegation of cruelty based on the above submission. Having re-appreciated the evidence available before the court below, we are of the view that there is no infirmity to the appreciation of the evidence by the court below or with the findings entered by the court below. The appeal fails and stands dismissed. No costs. 5 Mat. Appeal No.265/11 We make it clear that this judgment will not stand in the way of the appellant initiating fresh proceedings for divorce on the ground of cruelty, which is on the basis of the subsequent events highlighted before us and on any other grounds, which may be now available. If fresh 498A case is pending before the CJM Court, Palakkad, we direct the learned CJM, who is trying the 498A case, to advise the respondent, the defacto complainant and the appellant, the 1[st] accused to approach the District Legal Services Authority, Palakkad for an amicable settlement of the various issues between them. ## **PIUS.C.KURIAKOSE,JUDGE** ## **P.D. RAJAN, JUDGE.** acd Mat. Appeal No.265/11 6 Mat. Appeal No.265/11 7