R. Reghuthaman Nair v. Sindhu K.V.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935 Mat.Appeal.No. 88 of 2005 ------------------------------------------OP 722/1997 of FAMILY COURT,TRIVANDRUM APPELLANT(S)/APPELLANT/PETITIONER: ----------------------------------------------------------------- R.REGHUTHAMAN NAIR, S/O. RAMANKUTTY, SHIVA SADANAM, TC.31/1246 AKSHARAVEEDI ROAD, PALKULANGARA, THIRUVANANTHAPURAM. BY SRI.C.R.SIVAKUMAR RESPONDENT(S)/COUNTER PETITIONER: ------------------------------------------------------------------ SINDHU K.V. D/O. VIJAYAMMA, KRISHNA BHAVAN, TC.23/530, VALIYA SALA THIRUVANANTHAPURAM. BY SRI.GOPAKUMAR R.THALIYAL THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat.Appeal.No. 88 of 2005 ## APPENDIX ## ANNEXURES AITRUE PHOTOCOPY OF THE DEPOSITION OF THE RESPONDENT-WIFE IN C.C.212/99 OF THE ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM DATED 19.7.2003 AIITRUE PHOTOCOPY OF THE SALE DEED NO.2318/2004/1 DATED 14.7.2004 EXECUTED BY THE OWNERS OF THE PROPERTY AND BUILDING IN FAVOUR OF SMT.K.V.SINDHU THE RESPONDENT-WIFE AIIITRUE PHOTOCOPY OF 'B' DAIRY IN M.C.202/99 OF THE FAMILY COURT, TRIVANDRUM AIVTRUE PHOTOCOPY OF THE CASH CERTIFICATE OF THIRUVANANTHAPURAM DIST. CO-OPERATIVE BANK, VANCHIYOOR BRANCH DATED 2.9.2003 AVTRUE PHOTOCOPY OF THE PRESCRIPTION ISSUED BY DR.T.THOMAS, GOVERNMENT AYURVEDIC COLLEGE, TRIVANDRUM DATED 4.12.2004. //true copy// P.A.To Judge ## **ANTONY DOMINIC & P.D.RAJAN, JJ** - - - - - - - - - - - - - - - - - - - - - - Mat.Appeal. 88 of 2005 - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of September, 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## **Antony Dominic, J** This appeal is filed against the judgment of the Family Court, Thiruvananthapuram in O.P. No.722 of 1997. The appellant and the respondent are husband and wife and their marriage was solemnized on 03.04.1993. In their wedlock, a female child was born on 14.02.1994. From 26.04.1997 the couple are residing separately. 2. O.P.722 of 1997 was filed by the husband, praying for divorce on the ground of cruelty and desertion. Before the Family Court, PWs 1 to 3 and CPWs 1 to 3 were examined by the respective parties and Exts.A1 to A10 and Exts.B1 to B8 were also marked. On conclusion of the trial, the Family Court rendered judgment dated 14[th] January 2005 holding that the grounds urged were not proved and dismissed the OP. It is challenging this judgment, the husband has filed the appeal. 3. We heard the learned counsel for the appellant/husband and the **M.A.88/05** 2 learned counsel appearing for the respondent/wife. 4. Although the ground of desertion is also pleaded, no material whatsoever was made available before the Family Court to substantiate the said ground and therefore, we fully endorse the finding of the Family Court that this ground is not made out. However, insofar as the ground of cruelty is concerned, from the evidence of PW1, the husband, it is seen that he has narrated in his evidence various incidents which, according to him, amounted to acts of cruelty. According to him, the wife used to pick up quarrels with him since early days of marriage and he has been suffering great mental agony due to her strange and cruel behaviour. He has pointed out an incident where the respondent had killed a dangerous dog with glass pieces and according to him, she had threatened to do the same with him. He has also narrated the strange behaviour of his wife in refusing to share milk and banana which is customarily shared by the newly wed couple on the wedding night. 5. It was stated that on 26.04.1997, she refused to cook food and when he questioned her, she summoned her brothers and that they manhandled the appellant. According to the appellant, since then she has **M.A.88/05** 3 been living separately. It was also stated that subsequently on the intervention of the Assistant Commissioner of Police, he took a house at Poojappura on rent and resumed cohabitation with her. Even thereafter, it is stated, that he never had any sexual relationship with his wife and that subsequently also, he was attacked by his wife, her brothers and some others. He produced Ext.A1, copy of FIR registered by the police and also Ext.A2, wound certificate which showed that he was hospitalized for seven days. 6. His neighbour, who was examined as PW3, also had narrated various incidents when the respondent had used abusive words against not only the appellant but also against the mother and sisters of the appellant. He also stated that she used to quarrel with the appellant stating that he is not educated and that she is a post graduate. According to him, though he advised her on various occasions, there were no improvement in the situation. From the evidence of PW3, it can be seen that there were quarrels between the appellant and the respondent. 7. PW2 is the doctor who proved Ext.A2 wound certificate. His evidence prove that on 02.08.1998, the appellant was admitted in the **M.A.88/05** 4 casualty of the hospital with a complaint of 'assault at his house at 11.30 am'. 8. As against the evidence thus adduced by the appellant, respondent herself was examined as CPW1. Her evidence is mostly one of denial and according to her, it was the mother of the appellant who was creating problems. Her mother was examined as CPW2 and her brother was examined as CPW3. Family Court concluded that the evidence adduced by these witnesses did not support the case of the respondent in any manner. 9. After referring to the evidence thus adduced by the parties, Family Court stated that the appellant had stated only one incident of cruelty that took place on 26.04.1997 and even insofar as that incident is concerned, the Family Court concluded that the appellant has not given details of the said act of cruelty. In our view, this conclusion of the Family Court is incorrect. Evidence of PW1 itself would belie this conclusion. Reading of paragraphs 14, 15 and 16 of the judgment would show that the appellant had tendered evidence giving various instances of cruelty with dates and other particulars also. Therefore, the basis on **M.A.88/05** 5 which the Family Court has proceeded by stating that there is only one incident of cruelty is incorrect. 10. Thereafter the Family Court itself has stated that the respondent herself has no case that the appellant had ill-treated her. The Family Court made reference to Ext.B2, a photo copy of the letter written by the appellant to the father of the respondent. Even according to the Family Court, that letter revealed that he was suffering a lot due to the respondent and had stated that the only alternative available to him was to commit suicide. Referring to Ext.B2, Family Court also had concluded that Ext.B2 would go to show that the behaviour of the respondent towards the appellant was not proper. 11. The Family Court has also referred to the attack on the appellant on 02.08.1998. However, the Family Court refused to accept it as an act of cruelty for the reason that the wound certificate did not mention as to who assaulted the appellant. As we have already stated, the wound certificate which was produced as Ext.A2, had mentioned that he was assaulted at his house. The oral evidence of the appellant would show that he got injured by the attack of his wife, her brothers and others. **M.A.88/05** 6 There was already a criminal case registered against them, the FIR of which was also available. In such circumstances probabilities of the case would certainly show that the appellant had suffered injuries in an attack as alleged by him in paragraph 25 of the judgment. 12. Family Court has come to yet another erroneous conclusion that even if there were some act of cruelty on the part of the respondent/wife, those cruelties were condoned by the appellant as well. As held by the Apex Court in **Dr.N.G.Dastane v. Mrs. S.Dastane (1975 (2) SCC 326)** , condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. It has also been held that to constitute condonation, there must be forgiveness and restoration. 13. From the evidence in this case it can be seen that after the separation of the couple, the Assistant Commissioner of Police interfered in the matter and it was at his suggestion that the appellant took a house at Poojappura on rent and resumed cohabitation. This cohabitation did not last long and during the course of that cohabitation, there was attack on 02.08.1998. Therefore, this resumption of cohabitation in this case at **M.A.88/05** 7 best, can be taken as an attempt made by the appellant to save his married life which attempt also has failed. Such an attempt could not have been taken by the Family Court as an act of condonation on the part of the appellant. Therefore, we are unable to agree with the Family Court. 14. The learned counsel for the respondent relied on the judgment in **Savitri v. Prem Chandra Pandey (2002 (1) KLT SN [C.No.68] ), Samar Ghosh v. Jaya Ghosh (2007 (2) KLT SN 55 [C. No.76] SC )** and **Mayadevi v. Jagdish Prasad (2007 (2) KLT SN 61 [C.No.82] SC)** , and contended that the case pleaded by the appellant did not establish the case of cruelty. The expression 'cruelty' is not defined in the Hindu Marriage Act. But it has been judicially accepted that cruelty can be both physical and mental. Insofar as this case is concerned, we are satisfied on facts that the appellant has suffered both mental and physical cruelty at the hands of the respondent. The instances detailed by him before the Family Court fully support his case of mental as well as physical cruelty and once the cruelty has been thus proved and theory of condonation, as found by the Family Court, has been rejected by us, we are satisfied that the appellant has made out a case to establish which **M.A.88/05** 8 entitle him for a decree of divorce as prayed for by him. That apart, the parties are living separately from 26.04.1997. Various efforts were made for settlement of the dispute between them and all those efforts were failed. That itself show that there is no possibility of revival of a matrimonial relationship and as held by the Apex Court in **Srinivas Rao K v. D.A.Deepa (2013 (1) KHC 647(SC) )** the separation has created an unbridgeable distance between the two and he refused to make an attempt that will also amount to mental cruelty. In the result, the appeal is allowed. The judgment of the Family Court, Thiruvananthapuram dismissing O.P.722 of 1997 filed by the appellant is set aside and the O.P will stand allowed. Marriage between the appellant and the respondent solemnized on 03.04.1993 will stand dissolved by a decree of divorce w.e.f. 02.09.2013. ## **Sd/ANTONY DOMINIC, Judge** **Sd/P.D.RAJAN, Judge** mrcs