Reji Jose v. Peter

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 31[ST] DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940 MAT.APPEAL NO. 901 OF 2016 AGAINST THE ORDER IN OP 216/2014 DATED 18-11-2015 OF FAMILY COURT, KASARAGOD** ## **APPELLANT/PETITIONER:** REJI JOSE AGED 40 YEARS, D/O. JOSE AND MARRY (LATE), RESIDING AT VATTATHANAM HOUSE, PADUPPU, BANDADUKKA, P.O.ANAKKALLU, VIA CHERKALA, KASARAGOD DISTRICT. BY ADVS. SMT.R.LEELA SRI.K.K.ANIL KUMAR ## **RESPONDENT/RESPONDENT:** PETER AGED 45 YEARS, S/O. PATHROSE, RESIDING AT KOCHERIYIL HOUSE, RAJAPURAM P.O., KALLAR VILLAGE, VELLARIKUNDU TALUK, KASARAGOD DISTRICT-671 533. BY ADVS. SRI.P.P.BIJU SRI.P.K.VARGHESE THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat. Appeal No.901/2016 -2- ## **C.K. ABDUL REHIM, J. & SHIRCY V., J.** ------------------------------------------------- ## **Mat. Appeal No. 901 OF 2016** ------------------------------------------------- DATED THIS THE 31[st] DAY OF OCTOBER, 2018. ## **J U D G M E N T** ## Abdul Rehim, J: The appellant who is the wife before the Family Court, Kasaragod in OP No.216/2014 is challenging the dismissal of the original petition filed against the respondent/husband, seeking divorce under Section 10 (i)(ix) & (x) of the Divorce Act, 1869 read with Section 7 (i) (a) of the Family Courts Act, 1984, through order dated 18-11-2015. Grounds upon which divorce was sought for are the cruelty allegedly inflicted against the appellant, both mental and physical, as well as desertion by the husband since 15-03-2012 onwards. The court below found that the appellant/wife was not successful in proving both the grounds alleged, for granting a decree of divorce; and hence dismissed the original petition. Hence the above appeal is filed. 2. Averments in the original petition in brief were as follows. Marriage between the appellant and the respondent was solemnized on 22-11-2020, as per rites and ceremonies prevailing in their community. Two children were born out of the wedlock; namely Akhila and Alan. The appellant was an orphan, who studied in a convent school. One of the main allegation was that, while living together, the Mat. Appeal No.901/2016 -3- respondent used to cause mental harassment to the appellant alleging that she is an orphan. It was also alleged that the respondent is a drunkard and used to beat the appellant and to cause other physical assaults on her. Further allegation was that the appellant had 22 sovereigns of gold ornaments, which were taken and misutilized by the respondent. It is stated that the appellant held qualification of ‘ANM Nursing’ and the respondent was not permitting her to do any job. It was alleged that, after the birth of the second child, there was no cohabitation between the appellant and the respondent. Further allegation was that the respondent was having illicit connection with a lady residing in the locality and he was leading an adulterous life. According to the appellant, the cruelty inflicted, both physical and mental, was to such an extent that it created an apprehension in the mind of the appellant that, leading a life with the respondent will be harmful and injurious to her life and that she had even thought of committing suicide. It is admitted in the original petition that the appellant left for employment abroad on 10-10-2009. According to her, she used to sent her earnings to the respondent, with which he used to lead a luxurious life. Allegation was to the effect that the respondent used to abuse the appellant over telephone in drunken state and that he had persuaded their children to ask to her over telephone to reveal name of their real father. Specific allegation was that the appellant came back from Gulf countries on 15-03-2011, but the respondent had willfully refused to cohabit with her. It was also stated that, she had developed a cancerous growth in her uterus, but the respondent had refused to arrange any treatment for her. It was also alleged that the Mat. Appeal No.901/2016 -4- respondent had challenged the morality and chastity of the appellant. He had also refused to accept the gift articles sent by the appellant to her children through courier service. Specific allegation was that the respondent had deserted her from 15-03-2011 onwards. 3. In the counter (objection) filed by the respondent before the court below, the marriage as well as paternity of the children were admitted. It is stated that, parents of the appellant died when she was only 3 years. Therefore the appellant had studied by staying in a convent school. But there were 8 siblings for the appellant and therefore she was not an orphan. The respondent had denied the allegation of harassment caused to the appellant on the basis that she is an orphan. It is categorically stated that the appellant was working at the ‘Care and Cure Hospital’, Kanhangad, where the sister of the respondent was also working. They got acquainted each other through his sister and the relationship between them developed, which had ended up in the marriage. Thereafter the appellant resigned her job at the aforesaid hospital and joined at the ‘VKV Memorial Hospital, Puthoor’. She worked there for about 2 years. Thereafter she shifted her job to ‘Susrusha Ayurvedic Hospital’ wherein also she worked for about 2 years. Thereafter the appellant got job in Kuwait and she left abroad with the consent of the respondent. The respondent was working as a ‘Telephone Operator’ and was maintaining the family consisting of their children, out of his own earnings from the job. It is stated that, from 2009 onwards it is the respondent who was only looking after their Mat. Appeal No.901/2016 -5- children. According to the respondent, the appellant came back from Gulf countries in March 2012 and she returned after about one month. It is mentioned by the respondent that, at that time the appellant complained about her illness, she was not willing to consult any Doctors, by saying that she will get better and free treatment at the hospital wherein she is working abroad. After she went back to the Gulf countries in March 2012, she stopped contacting the respondent and the children. According to the respondent, he came to know that the appellant is leading an adulterous life with a man, and that she wanted to dissolve the marriage only with an intention to lead life with that man in a legal manner. When the appellant came back in the year 2014, she never intimated about her arrival to the respondent. The respondent came to know about her arrival only through others. It was revealed that the appellant was living in the house of one Sri.Raghavan and Smt.Sindhu, at Kanhangad. Therefore the appellant submitted a complaint before the Dy.S.P, Hosdurg, on 02-06-2014. The Station House officer of the Hosdurg Police Station and his party went to the house of the Sri. Raghavan along with the respondent and the police authorities took the appellant into custody from there. It is alleged that the brother-in-law of Sri. Raghavan, named Sri. Surendran, was working abroad along with the appellant. At the Hosdurg Police Station, the police authorities mediated in the issue. But the appellant had openly declared that she did not want to spoil her life for the respondent and the children, and refused to come back along with the respondent, despite strong compulsion from the side of the officers and despite begging requests made by the Mat. Appeal No.901/2016 -6- respondent. Thereafter the appellant had never contacted the respondent or the children. All the attempts made by the respondent to contact the appellant was in vain. Thereafter the respondent came to know about the appellant, only when he received notice from the Family Court in the original petition. The respondent had emphatically denied of having committed any act of cruelty, either mental or physical. The allegation of desertion was also denied stoutly. According to the respondent, cohabitation was not possible because the appellant was working abroad. He had also refuted the allegations of misutilizing 22 sovereigns of gold ornaments. According to the respondent, the appellant doesn’t have any gold ornaments, except an ornament of 3 sovereigns, which was tied upon by the respondent on her, as a ritual at the time of their marriage. Hence the respondent contended that the original petition is devoid of any merits and is liable to be dismissed. According to the respondent, the appellant is bound to join the respondent and her children in cohabitation and to lead a family life. 4. Evidence in the case consisted of the oral testimonies of the appellant as PW1 and the respondent as RW1. No documentary evidence was adduced from both sides. The appellant, while examined as PW1 had admitted that she was living abroad upto 6 months prior to filing of the original petition, which was on 29-05-2014. In cross-examination she had admitted that, with respect to the allegation of cruelty no complaint had ever been submitted to any of the authorities. The appellant in crossexamination had also admitted about the incident which took place in June 2014, Mat. Appeal No.901/2016 -7- when she was taken into custody by the police authorities and took to the Hosdurg Police Station, from the house of Sri. Raghavan. She also admitted that she had refused to go along with the respondent. She further admitted that, after March 2012, she never came back to the house of the respondent. She had categorically stated that, she is not willing to go along with the respondent in order to resume the cohabitation. In the cross-examination she had reiterated that she came back during March 2011. But she had not produced either her Passport or any other evidences with respect to her travel, despite specific undertaking made in this regard. 5. The respondent was examined as DW1 before the Family Court. He has filed affidavit fully in tune with the averments contained in the counter (objection). According to the respondent, the appellant returned from Gulf countries for the first time in March 2012. In the cross-examination he conceded that she came on 15-032012 due to illness. But his version is that, eventhough he promised to take her to the hospital, the appellant refused to come along with him and she went alone for consulting a Doctor. 6. On analysing the evidence on record, court below had arrived at a conclusion that the appellant had not succeeded in proving the allegation of cruelty inflicted upon her, either mental or physical, through any convincing evidence. On the other hand, it was found that the appellant was living abroad since the year 2009 and that there was no cohabitation between the spouses. It was categorically found that, despite the specific allegation of the appellant that she came back on 15-03- Mat. Appeal No.901/2016 -8- 2011, during when the respondent had allegedly inflicted physical and mental torture and harassment, no supporting evidence was produced apart from the oral testimony of the appellant. The court below categorically found that the appellant had promised to produce her travel documents like Passport and other details in order to prove that she came to the house of the respondent during March 2011, she had failed to produce any such documents. With respect to the question of alleged desertion the court below found that the appellant was living abroad till few months prior to the filing of the original petition and therefore there is no basis for the allegation of desertion, from the side of the respondent. Therefore it was found that the appellant was not successful in proving either the allegations of cruelty or the allegations of desertion, with any convincing evidence. Hence the original petition was dismissed. 7. Main grounds raised in the present Matrimonial Appeal is that, the court below had failed in appreciating the specific allegations of cruelty raised against the respondent, including the denial of cohabitation after birth of the 2[nd] child. It is specifically pointed out that, even the respondent does not have a case that the appellant was not contacting him or their children, ever since she left for her job abroad. It is pointed out that, even according to the respondent, she came back in the year 2012. Contention of the appellant is that the court below ought to have appreciated that the appellant took shelter in the house of the Sri. Raghavan only to escape from the cruelty by way of torture inflicted by the respondent. It is also pointed out that the Family Court had failed to take note of the allegations raised by Mat. Appeal No.901/2016 -9- the appellant that the respondent is having illicit relationship with another lady which he has not been specifically denied. Therefore it is contended that the same has to be accepted as proved in the eye of law. It is further contended that, as per settled legal positions, the element of mental cruelty differs from person to person and that the entire facts have to be taken note of to find out the correctness of the contentions. Since the appellant had clearly contended that ever since birth of the 2[nd] child the respondent was denying matrimonial cohabitation to the appellant, it would amount to causing of mental and physical torture on her. According to the appellant. the wild allegation made by the respondent that the appellant is living with a paramour in a Gulf country, has not been proved in any manner. Therefore the allegation raised by the respondent that his wife is living in adultery is without any valid or sufficient evidence and that itself would amount to a cruelty, based on which alone the wife is entitled to get divorce. According to the appellant, the divorce ought to have been granted at least on the basis of such cruelty committed. 8. Heard; learned counsel appearing for the appellant. There was no appearance from the side of the respondent. 9. On appreciation of the pleadings and the arguments of the counsel for the appellant, as well as on a re-appreciation of the evidence available on record, this court is not persuaded to accept any of the contentions raised in the appeal, for reversal of the findings rendered by the court of first instance, which had perfectly evaluated the evidence on record. It is to be noticed that there is admission from the Mat. Appeal No.901/2016 -10- side of both the parties that, upto 10-10-2009, both of them were living together, along with their 2 children. Eventhough a bald allegations of cruelty was raised in the original petition as well as in the testimony of the appellant, about the torture allegedly made during the time of cohabitation upto 2009, there is no convincing evidence forthcoming in that respect. As observed by the court below, there is not even an allegation that the appellant had ever complained with respect to any such alleged torture from the side of the respondent, to any of the authorities or before any court of law. According to the appellant, after 10-10-2009 she came back on 15-032011, for the first time. Eventhough there exists a difference between the parties with respect to the year in which the appellant came back from Gulf countries, as to whether it is in March 2011 or whether it is in March 2012, it is an admitted fact that she went back to Gulf within the short time thereafter. According to the appellant, she developed the illness of growth in her uterus, for which the respondent had refused to arrange any treatment. But the version put forth by the respondent is that, eventhough he offered for taking her to the hospital, she refused and went alone. Even according to the appellant, she went back to Gulf countries within one month. It is equally an admitted fact that, thereafter the appellant came back only in the year 2014. It is also admitted that, while coming back in the year 2014, the appellant had not turned up to the house of the respondent, in order to join him in cohabitation or to visit the children. On the other hand, there is an admission from the side of the appellant that she was taken into custody by the police from the house of Sri. Raghavan, as alleged Mat. Appeal No.901/2016 -11- by the respondent. But it is pertinent to note that, even during examination of the appellant as PW1, either in the affidavit filed in lieu of chief examination or during the cross-examination, the appellant is not offering any convincing explanation for having resided in the house of Sri. Raghavan. There is also no specific denial with respect to the allegation that the brother-in-law of Sri. Raghavan, Sri. Surendran was working in the Gulf countries, where the appellant was working. Therefore, with respect to the allegation of the respondent that the appellant was living abroad with her paramour, there exists a cloud of suspicion, which is lacking specific denial from the side of the appellant. On the other hand, the appellant had raised an allegation against the respondent that he was leading an adulterous life with a lady residing in the locality. The appellant has not even mentioned the name of the lady with whom the relationship was alleged. Neither any supporting evidence, nor even any specific testimony is adduced in this regard. Under the above mentioned circumstances, while evaluating the entire evidence on record, we are persuaded to hold that the appellant has not succeeded in establishing through any convincing evidence that the allegation of cruelty raised against the respondent was in existence. Mere oral evidence adduced in the nature of allegations general with respect to the torture, without there being adduced any evidence of any particular date, cannot be held as sufficient to hold that there occurred cruelty from the side of the respondent, which would entitle the appellant get a divorce on the ground of cruelty, as contemplated under specific provisions of the Divorce Act. Mat. Appeal No.901/2016 -12- 10. With respect to the desertion alleged, as already observed, the appellant was working abroad since 2009 till 2014. Admittedly, she came back only about 6 months prior to the date of filing of the original petition. There exists a dispute regarding the date of the appellant’s visit in between, as to whether it is in 2011 or in 2012. However, fact remains that the appellant was in Kerala only for about one month. Thereafter she came from Kuwait only in the year 2014. Therefore the allegation of desertion raised by the appellant could not be established. Hence the findings rendered by the Family Court regarding the failure on the part of the appellant to prove both the grounds of cruelty as well as desertion need to be confirmed. 11. Learned counsel for the appellant raised vehement contentions that, the respondent had raised a false and concocted allegation against the appellant, that she is leading an adulterous life with a paramour in Gulf countries. According to learned counsel, raising such an allegation itself would amount to a grave cruelty, which by itself is a ground to allow divorce. A ruling of this court, rendered by a Division Bench in **Rajkumar Nair v. V.V. Jaya (2017 (4) KHC 807** ) was relied upon. On analyzing facts involved in the said case, the allegations was turned out to be baseless one, which cannot be said to be without impact as far as the affected party is concerned. Therefore it was held that, the trial court ought to have found that, by raising an allegation of the nature the respondent has succeeded in assassinating character of the appellant and his father. The impact would be grave, when the Mat. Appeal No.901/2016 -13- affected party is a person holding status in the society. In that case before this court, the appellant being a Professor by profession, is a man having status and high reputation in the society. But the court did not evaluate those as an instance of cruelty. It was a case for divorce filed on the ground of the alleged cruelty. The respondent in that case has the credit of hurling baseless allegations of immorality against the appellant. But during examination, the respondent gone in elaborating allegations regarding the immoral activates alleged, but failed to prove it through any evidence. But in evidence the respondent had withdrawn from the allegations, for the sake of her children. On an entire analysis of the fact situation and on analyzing the materials available on record, it was found that raising such a false allegations would amount to cruelty. 12. In the case at hand, evidence is to the effect that the appellant had raised specific allegation in the pleadings that, the respondent is leading an adulterous life with a lady living in the locality. But she had not adduced any evidence, either oral or documentary, to prove such an allegation. On the other hand, pleadings of the respondent was to the extent of raising an allegation that the appellant was leading life with her paramour abroad. In support of such an allegation it is pointed out that, the appellant had stayed in the house of one Sri. Raghavan, who is allegedly the brother-in-law of the paramour named Sri. Surendran, who was also working abroad. Fact that the appellant was taken into custody from the house of Sri. Raghavan was admitted, while examining her as PW1 before the court below. But no explanation is Mat. Appeal No.901/2016 -14- forthcoming from the side of the appellant with respect to such an incident of staying in the house of a person, who is a total outsider of the families. Under such circumstances, while analyzing the allegation and counter allegation made between the parties, with respect to unchastity of the appellant or with respect to the alleged adulterous life of the respondent, there is no convincing evidence to arrive at any conclusions that any one of such allegations is proved. Therefore those allegations cannot be considered as a material fact to evaluate whether there is any cruelty or not. At the same time the allegations raised by the respondent could not in any manner be considered as wild and unfounded made only with an intention to tarnish reputation of the appellant, which will amount to cruelty by itself. Therefore we are of the considered opinion that, the allegations of cruelty cannot be found based on the so called unfounded allegation made by the respondent against the appellant. The fact situation analysed in **Rajkumar Nair’s case** (supra) is entirely different from the facts and evidence involved in the present case. Therefore we are not persuaded to accept the arguments raised on behalf of the appellant by relying upon the above said decision. 13. Learned counsel for the appellant submitted that there occurred irretrievable break down of the marriage and refusing to sever the marital tie, despite the irretrievable break down, would become highly improper. By relying upon a decision of the Hon’ble Supreme Court in **Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511,** it was contended that, it may fairly be concluded that the marital bond is Mat. Appeal No.901/2016 -15- beyond repair and by refusing to sever that tie, the law in such cases does not serve the sanctity of the marriage; on the contrary it shows scant regard for the feelings and emotions of the parties and in such situation it may lead to mental cruelty. Therefore it is argued that the court in such circumstances is bound to expand the scope of the provisions in allowing dissolution of the marital tie. In the case at hand, it is to be noticed that the original petition seeking divorce was filed specifically on the grounds of desertion and cruelty, under Section 10 (i)(ix) & (x) of the Divorce Act, 1869. It is the primary duty of the appellant to prove through convincing evidence regarding the existence of the essential elements of the said specific grounds. Since the appellant had miserably failed in convincing the court with any acceptable evidence with respect to existence of any one of the ingredients as mentioned above, it may not be proper for the legal system to enlarge the scope beyond the specific provisions of the statute to find that the matrimonial bondage has reached at an irretrievable breakdown and therefore the divorce could be granted. Such an exercise was not intended or mandated through the dictum contained in the above ruling of the Hon’ble Supreme Court. Hence this appellate court is not persuaded to accept the contentions raised in this regard. 14. Upshot of the above discussions is that, this court exercising the appellate jurisdiction is not convinced that there occurred any legally, error or impropriety in the conclusions arrived by the court below, warranting interference with the findings rendered, in order to reverse the impugned judgment and to allow Mat. Appeal No.901/2016 -16- the original petition by granting dissolution of the marriage between the parties through divorce. Hence the appeal fails and the same is hereby dismissed. Sd/- ## **C.K. ABDUL REHIM, JUDGE** . Sd/- **SHIRCY V., JUDGE** . ## **AMG**