Sasankan C. Nambiar v. K. Sujatha

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941 Mat.Appeal.No.421 OF 2014 AGAINST THE JUDGMENT DATED 31.12.2013 IN OP 21/2012 OF FAMILY COURT, KANNUR ## APPELLANT/PETITIONER IN O.P. NO. 21 OF 2012: SASANKAN C. AGED 61 YEARS S/O.SRI.A.K.APPANU NAMBIAR, PERMANENTLY RESIDING AT RAYAROTH HOUSE, KUTTYATTOOR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT - 670 602, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI.K.MANOHARAN, S/O.SRI.KRISHNAN NAMBIAR, AGED 60 YEARS, SREELAKSHMI, MOOLAKARI,KOODALI VILLAGE, P.O.KOODALI, KANNUR DISTRICT -670 592. BY ADVS. SRI.P.GOPAKUMARAN NAIR SRI.N.K.SUBRAMANIAN ## RESPONDENT/RESPONDENT IN O.P. NO. 21 OF 2012: K. SUJATHA AGED 54 YEARS D/O.SRI.E.P.K.NAMBIAR, RESIDING AT THEJASWINI,P.O.MUNDAYAD, MUNDAYAD AMSOM AND DESOM,KANNUR TALUK, KANNUR DISTRICT - 670 592. R1 BY ADV. SRI.K.N.ABHILASH R1 BY ADV. SRI.SUNIL NAIR PALAKKAT THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30-08-2019, THE COURT ON 13-11-2019 DELIVERED THE FOLLOWING: Mat. Appeal No.421/2014 : 2 : ## JUDGMENT ## Annie John,J. This appeal is preferred against the judgment in OP. No.21 of 2012 of the Family Court, Kannur dismissing the OP filed by the appellant seeking a decree of divorce. The appellant had sought a decree of divorce on the ground that the respondent had deserted him since 26.08.2009 and she had also treated him with severe matrimonial cruelty. The learned Judge of the Family Court, by the impugned judgment dismissed the original petition holding that the appellant had not made out sufficient grounds for obtaining a decree of divorce. 2. The appellant had married the respondent on 25.04.1985. He is aged 61 years in the year 2014. Now he is aged 66 years. The concerned Family Court Judge without appreciating the pleadings, evidence and the law in its proper perspective, dismissed the original petition. Highly aggrieved by the same, this appeal has been preferred. The learned Judge of the Family Court has failed to appreciate the very Mat. Appeal No.421/2014 : 3 : admission on the part of the respondent that the spouses have not lived together after 02.10.2009. The respondent prevented the appellant from entering or living in the matrimonial house from 26.08.2009 which was the reason for him to seek shelter in the sister's house. On the ground as urged above, the appellant has sought for setting aside the decree as prayed for. 3. The appellant is the husband who was a petitioner before the Family Court, Kannur. It is an admitted fact that the appellant and the respondent got married on 25.04.1985 at Chirakkal Kadalayi Sreekrishna Temple as per the custom prevailing in their community. While after the marriage, they were living together as husband and wife at the residence of the appellant for 7 days. It was alleged that the respondent had attempted to create hatred in the mind of the appellant towards his family members. Accordingly they were shifted to the residence of the respondent and one month after the marriage, the appellant had gone back to abroad in connection with his employment. When the appellant came on leave, the Mat. Appeal No.421/2014 : 4 : respondent did not allow the appellant to spend sufficient time along with his family members. She used to abuse the appellant in front of his family members. Due to the conduct of the respondent, as it was intolerable, the appellant and the respondent have been started residing separately since 26.08.2009 onwards. Before that the appellant had taken the respondent to Gulf countries in the years 1989, 1993 and 2002. 4. It is an admitted fact that two children were born out of the wedlock. The respondent was working in North Malabar Gramin Bank. In effect, the appellant had spent a huge amount for the education of the children. The appellant had spent huge amount for the marriage of his daughter. In the meanwhile, the appellant got kidney ailments and in the year 2003, the renal transplantation was necessitated. When he came to India, he got admitted in Sree Ramakrishna Hospital, Coimbatore and the transplantation surgery was done with his own expenses. But, the respondent has reimbursed the entire amount by producing the hospital bills. Since he wanted Mat. Appeal No.421/2014 : 5 : Rs.15,000/- for the treatment, he has gone back to the work place in the year 2004. In the meanwhile, the respondent had sold 14 cents of landed property in Kollam without the knowledge of the appellant by using the power of attorney of the appellant given to her in good faith and she had misappropriated the entire sale consideration. 5. Now the case advanced by the appellant is that the relationship cannot be continued and for the appellant, the life with the company of the respondent is miserable. Now the respondent attempted to prove that the appellant was suffering from Amnesia, a kind of mental disorder. The appellant had also given Rs.2 lakhs towards the marriage expenses of his daughter held on 07.11.2008. Now the appellant sought for getting divorce from the respondent on the ground of cruelty and desertion. This fact has been totally denied by the respondent. According to her, the appellant himself has deserted the matrimonial relationship and whatever he has stated in the petition averment is incorrect. 6. In order to substantiate the case, the appellant was Mat. Appeal No.421/2014 : 6 : examined as PW1 and he has produced Ext.A1 marriage certificate, Ext.A2 copy of the lawyer notice and Ext.A3 reply notice sent by the respondent. When the appellant has sought for a decree of divorce on the ground of cruelty and desertion, it is upon him to establish that he was subjected to cruelty and the respondent has deserted the matrimonial home without any justifiable reasons. According to the appellant, he was subjected to cruelt,y while he was residing with the respondent and the respondent has denied the matrimonial tie with the appellant from 26.08.2009 onwards. 7. In this connection, it is very important to analyze the evidence of PW1, the appellant. He has deposed that he has left the matrimonial home and during cross examination in page No.9, he has stated that he himself has left the matrimonial residence. So, when the appellant sought for a decree of divorce on the ground of desertion, he has to prove that the respondent has left the matrimonial residence without any justifiable reasons. Only when the above point is established, the appellant will get a decree for divorce. Mat. Appeal No.421/2014 : 7 : 8. Here, there is no evidence to the effect that the respondent being the wife of the appellant has left the matrimonial house. So, the question of desertion will not arise for consideration. 9. The next question is with regard to the cruelty as alleged against the respondent. It is an admitted fact that the appellant and the respondent started living separately from 26.08.2009 onwards. It is true that the matrimonial relationship is irretrievably broken down. But that cannot be considered as a ground to grant a decree for divorce. This OP was filed in the year 2012. So, the matrimonial cruelty has to be established by adducing cogent evidence that while they were living together, the respondent has exerted cruelty on the appellant. It is true that the cruelty can be either mental or physical. 10. The main argument advanced by the learned counsel for the appellant was that the life along with the respondent was miserable. Some of the grounds urged for exercising cruelty is that the respondent had attempted to create Mat. Appeal No.421/2014 : 8 : distance between the appellant and his family members. Ext.B2 series are the letters issued by the appellant. From Exts.B2(d) and B2(e) series, it could be seen that the appellant was the person, who had objected the respondent in attending the engagement of his relatives. Despite the protest raised by the appellant, the respondent had attended the function and the response of the appellant in that regard does find a place in Ext.B2(e). So Ext.B2(e) communication by the appellant would prove the falsity of the allegations levelled against the respondent that she had attempted to create hatred in the mind of the appellant towards his relatives. 11. Apart from that, the counsel for the appellant has placed reliance on the recitals contained in Ext.B2(g). In Ext.B2(g), a reference is seen regarding the letter sent by the respondent with regard to her inconvenience in travelling from Kuttiatoor to Kannur. The appellant had given instruction to his parents to allow the respondent to stay at Kannur. The marriage was taken place on 25.04.1985. The versions in Ext.B2(g) projected as the attitude of the respondent in getting Mat. Appeal No.421/2014 : 9 : herself away from the matrimonial home. But, such a point elicited by the appellant cannot be considered since the appellant misunderstood the misery of the respondent in travelling from Kuttiatoor to attend her office. So, the reference as made in Ext.B2(g) cannot be taken into account to have the conclusion that the respondent was in the habit of injecting hatred to the mind of the appellant towards his relatives. Again, he has produced Ext.B2(h) in order to establish that the respondent is a unique character and that it does reflect the feeling of the appellant while he was remaining abroad without good job. Ext.B2 series would clearly establish the love and affection between the appellant and the respondent and it also proved that there was cordial relationship between them. Now the appellant is aged 66 years and the respondent is also above 60 years. At this stage, the appellant seeks to get divorce by projecting the ground of cruelty and desertion. 12. The petitioner alleged cruelty against the respondent. According to the petitioner, he has sought for Mat. Appeal No.421/2014 : 10 : divorce from the respondent on dual grounds i.e., (i) the alleged cruelty inflicted by the respondent while the appellant was residing along with her and (ii) the denial of marital tie with the appellant from 26.08.2009 onwards. The Family Court has considered those two grounds and ultimately held that whatever the allegations the appellant has raised is incorrect and accordingly, the petition was dismissed. The question before us is whether the ground as sought by the appellant against the respondent to get a decree of divorce is sustainable or not. As far as the cruelty is concerned, the case of the appellant is that the respondent has exerted mental and physical cruelty. When there is such an allegation, the burden is heavy on the appellant to establish that he was subjected to cruelty from the part of the respondent. It is an admitted fact that the appellant and the respondent are the legally wedded couples. It is the case of the respondent that the appellant had attempted to create distance between the respondent and his family members. In order to controvert this fact, Ext.B2 series of letters alleged to be issued by the appellant were Mat. Appeal No.421/2014 : 11 : produced. From Exts.B2(d) and (e), it could be seen that the appellant was the person who had objected the respondent in attending the engagement of his relative. Even if the appellant has protested the respondent, she had attended the function and the response of the appellant in that regard finds a place in Ext.B2(e), which would prove the falsity of the allegations against the respondent that she had attempted to create hatred in the mind of the appellant towards his relatives. The communication which was received by the respondent would be sufficient enough to prove that the appellant himself has created some hatred between his relatives and herself. Ext.B2(g) is a reference regarding the letter sent by the respondent with regard to her inconvenience in travelling from Kuttiatoor to Kannur. The appellant had given instruction to his parents to allow the respondent to stay at Kannur. This incident has also been pointed out by the appellant's counsel to prove the attitude of the respondent towards the appellant's relatives. The court below observed that such an inference cannot be drawn, since the appellant himself understood the Mat. Appeal No.421/2014 : 12 : misery of the respondent in travelling from Kuttiatoor to attend her office and accordingly, the court rejected the appellant's argument that the respondent was injecting hatred in the mind of the appellant towards the relatives. Again, the appellant has projected certain rare incidents to prove that he was subjected to cruelty. In order to establish this fact, the appellant had produced Ext.B2(h) to prove the character of the respondent. In Ext.B2(h), an advice is seen given to the respondent that she should be considerate to others. Ext.B2(h) reflects the feeling of the appellant while he was abroad without a good job and also the concern of the appellant in the welfare of the respondent. Ext.B2 series would show the love and affection among the appellant and the respondent and the cordial relationship between them. So, the pleading to the effect that he was suffering misery while he was residing along with the respondent is found to be incorrect. It is the case of the appellant that the respondent has deserted him from 26.08.2009 onwards. From the evidence, it has turned out that the appellant himself has left Mat. Appeal No.421/2014 : 13 : the company of the respondent and no grounds were established by the appellant to prove the alleged desertion. When a spouse abandoned the other spouse in a state of temporary fashion without intending to seize cohabitation permanently, it will not amount to desertion. In fact, the plea of desertion and the alleged cruelty attributed against the respondent are devoid of any merit. 13. It has also come out in evidence that the respondent herself has compelled her daughter to move a petition before the Vanitha Cell. The appellant has produced Ext.B3 cheque to prove that he had given a sum of Rs.2,00,000/- towards the expenses of marriage of his daughter. The said application was filed on 10.10.2011 before the C.I of Police, Vanitha Cell, Kannur by the daughter of the appellant. In that application, the daughter has sought for the assistance of the police on account of the reluctance of her father in taking part in the marriage. Further, she had an apprehension that her father would never attend her marriage function. She has also sought the assistance of the woman police officer to have the Mat. Appeal No.421/2014 : 14 : matter amicably resolved so as to get the marriage solemnized with the assistance of her father. It is also stated that the appellant though arrived at the native place, never contacted the respondent or her daughter. The respondent, while examined as RW1, has deposed that the petition was filed by her daughter as per her own wishes. From the evidence, it is clear that only after the filing of the petition by the daughter only, he provided Rs.2,00,000/- for the marriage expenses. Further, the daughter has sought for the aid of the police to bring her father to attend her marriage. It is unfortunate to note that the father was reluctant to look after the daughter and also to provide adequate amount to meet her marriage expenses. So, the allegation that the respondent has deserted him and he was subjected to cruelty is not found to be correct. Another argument of the appellant was that he was undergoing the renal transplantation surgery for which he has resigned his job at Gulf country and got admitted in the Sree Ramakrishna Hospital, Coimbatore. He has produced Ext.B5(a) letter, as per which he was seeking time for the completion of Mat. Appeal No.421/2014 : 15 : the treatment and for causing production of the fitness certificate for rejoining the duty. So, the fact that he has resigned his job at the Gulf country was turned out to be incorrect and his intention was to re-join duty after he recovered from his illness. Further, he has a case that there was no assistance from the part of the respondent. In order to controvert this fact, he has produced Ext.X1 document and has examined RW2, the Branch Manager of North Malabar Gramin Bank, Chakkarakkal Branch. Ext.X1 is copy of the attendance register, which would show that the respondent was on leave from 18.09.2013 to 31.03.2004. Admittedly, the renal transplantation was done on 25.09.2003. So, the fact that he was not assisted by the respondent is found to be incorrect. The respondent was on leave during when he was undergoing renal transplantation surgery. Therefore, the contention that he was not assisted by the respondent is found to be incorrect. Further, it has also turned out that the medical expenses incurred for the surgery was refunded by the respondent through her Bank with the knowledge and Mat. Appeal No.421/2014 : 16 : consent of the appellant. Accordingly, the contention that the respondent had behaved in a cruel manner towards the appellant is turned out to be incorrect. 14. It has also come out in the cross examination of the appellant that the brother of the respondent had accompanied him till the Airport and the respondent and the children had accompanied the appellant till the railway station. So, the version of the appellant that he was driven out of the residence on 26.08.2009 is turned out to be incorrect. Further, he has got another case that without his knowledge, the respondent has availed loan from the Gramin Bank; but Ext.X2 produced by the respondent would show that with the consent of the appellant itself, the loan was availed by the respondent. Another allegation is that the respondent has alienated the property belongs to the appellant on the strength of the power of attorney without his knowledge and she has misappropriated the amounts derived out of the same. Ext.B9 is the document produced by the respondent to prove that the appellant had subscribed his signature in the Mat. Appeal No.421/2014 : 17 : assignment deed pertaining to the sale of 14 cents of property and it has also evident that the sale was effected with the knowledge and consent of the appellant. So, the averment of the appellant that without his knowledge the respondent has sold his property is incorrect and he has also another case that she has misappropriated the amount by closing his LIC policy by forging his signature. But, the appellant has not taken any steps against the respondent in respect of the alleged forgery. Therefore, the allegation of forgery raised against the respondent is also found to be incorrect. 15. The facts as narrated above is not sufficient enought to establish the cruelty against the respondent. Admittedly, the appellant and the respondent are Hindus and are governed by the Hindu Marriages Act, 1955. In Anitha v. Unnikrishnan[1] , this Court had cautioned the matrimonial courts to insist for compliance of Rule 7 of Hindu Marriage (Kerala) Rules, 1963 in respect of the pleadings. In Ram Sarup Gupta v. Bishun Narain Inter College[2] , it is held that the evidence in the absence of pleadings by both parties cannot be considered. > 1 2013(4) KLT SN Case No.92) > 2 AIR 1987 SC 1242 Mat. Appeal No.421/2014 : 18 : Rule 7 of the Hindu Marriage (Kerala) Rules, 1963 deals with the contents of the petition and sub-Rule (3) of the Rule 7 stipulates that in cases where desertion and/or cruelty are alleged, the petitioner shall state the date and the circumstances under which the alleged desertion began and/or the specific acts of the cruelty. In this case, in the pleadings, the facts were silent and no specific incident with date has been mentioned in order to establish the alleged cruelty or desertion. In Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], the Apex Court had noticed 14 instances to assess mental cruelty in matrimonial disputes. The burden is upon the petitioner to prove the allegations attributed against the respondent. So, from the evidence adduced by the appellant, it is quite clear that whatever the instances he has mentioned is found to be incorrect; it will only amount to the wear and tear in an ordinary marital life. Indeed, the appellant and the respondent are aged above sixty years and they are senior citizens. Their children are grown up and are well settled. They started to live separately for a long time. It is true that Mat. Appeal No.421/2014 : 19 : the matrimonial tie between them have been irretrievably broken. But, it is not a ground to grant a decree of divorce by exercising the extra ordinary power of this Court. The ground that the marriage has irretrievably broken is not mentioned in any of the the statute as a ground to get decree of divorce. It is true that provisions are enacted in the statute for divorce on the basis of the mutual consent. Here, the respondent is not ready for a divorce on mutual consent. She is very careful in keeping the marital tie and does not want to get a stigma on her and the children. But the appellant is very adamant and he has not substantiated any evidence regarding the allegations against the respondent. It is true that both are having well financial status. But that is not sufficient enough to be separated by a legal verdict. Moreover, it has turned out that the appellant himself is residing separately from the respondent and the children, and he was reluctant to participate the marriage of his own daughter, who has sought the assistance of the police to get her father to be attended in the marriage ceremony. We are of the view that the appellant Mat. Appeal No.421/2014 : 20 : himself has deserted the respondent without any sufficient grounds and he has failed to establish the cruelty as against the respondent. Considering the totality of the circumstances, we find that the court below has rightly dismissed the petition due to lack of evidence. The appellant has miserably failed to establish the dual grounds i.e., cruelty and desertion. In the result, this appeal fails and the same is dismissed. sd/- K. HARILAL, JUDGE. sd/- ANNIE JOHN, JUDGE. Rkm/Rv Mat. Appeal No.421/2014 : 21 :