Sharadha M. v. Neeladhara H.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **Mat.Appeal.No.608 OF 2011** **AGAINST THE JUDGMENT IN OP 382/2010 DATED 29-06-2011 OF FAMILY COURT, KASARAGOD** ## **APPELLANT/RESPONDENT:** **SHARADHA.M. AGED 55 YEARS D/O.LATE CHIRUKANDAN, G.K.NIVAS,, NEAR THRIKANAD TEMPLE, BEKAL (P.O.),, PALLIKKARA II VILLAGE, HOSDURG TALUK,, KASARGODE DISTRICT.** **BY ADV. SMT.K.V.BHADRA KUMARI** ## **RESPONDENT/PETITIONER:** **NEELADHARA.H. S/O.LATE GOPALA KRISHNA,, PATTATHANA HOUSE, BEKAL (P.O.), PALLIKKARA II VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT.** **R1 BY ADV. SRI.K.S.BALAKRISHNAN R1 BY ADV. SMT.N.SHOBHA R1 BY ADV. SRI.K.SHRIHARI RAO** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22-07-2019, ALONG WITH Mat.Appeal.451/2013, THE COURT ON 0309-2019 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.608/11 & 451/13 -:2:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **Mat.Appeal.No.451 OF 2013** **AGAINST THE JUDGMENT IN OP 319/2011 DATED 19-04-2013 OF FAMILY COURT, KASARAGOD** ## **APPELLANT/RESPONDENT:** **H.NEELADHARA** **AGED 57 YEARS,S/O.LATE GOPALAKRISHNA, RESIDING AT PATTATHANA HOUSE, P.O.BEKAL, PALLIKARE II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT671318.** **BY ADVS. SRI.K.SHRIHARI RAO SMT.N.SHOBHA** ## **RESPONDENT/PETITIONER:** **SHARADA M. AGED 57 YEARS,W/O.H.NEELADHARA AND D/O.CHIRUKANDAN, RESIDING AT G.K.NIVAS, NEAR TRIKKANAD TEMPLE, P.O.BEKAL, PALLIKARE II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT671318.** ## **R1 BY ADV. SMT.K.V.BHADRA KUMARI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22-07-2019, ALONG WITH Mat.Appeal.608/2011, THE COURT ON 03-09-2019 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.608/11 & 451/13 -:3:- ## **J U D G M E N T** ## _**Shaffique, J.**_ These two appeals arise out of matrimonial issues between the appellant and respondent and hence heard and decided together. Mat.Appeal.No.608/2011 has been filed by the respondent/wife challenging an order passed by the Family Court, Kasaragod in O.P. No.382/2010 allowing the Original Petition and dissolving the marriage between the petitioner and the respondent. 2. Mat.Appeal No.451/2013 has been filed by the respondent in O.P. No.319/2011. The Original Petition was filed by the wife seeking for a declaration that she was entitled to half of the undivided share of the plaint-schedule property and that she has a right to stay in the house situated in the said property. The Family Court after considering the evidence, allowed the Original Petition declaring the petitioner's undivided half right over the plaint-schedule property and also permitting her to stay in the house. 3. The short facts of the case as projected in OP Mat.Appeal Nos.608/11 & 451/13 -:4:- No.382/2010 are as under and the parties are described as shown in the Original Petition unless otherwise stated: The petitioner and the respondent got married as per Hindu religious rites and ceremonies on 8/10/1997. No issues were born in the wedlock. According to the petitioner, both were State Government employees at the time of marriage. The respondent was an active member of a political party who supported Naxalite movement. It is his case that six months after marriage, she started behaving arrogantly towards him and his family members. His brothers had to shift from their house on account of such behaviour. He complained that on one occasion respondent had even gone to the extent of beating his old age mother and she does not even serve food in time. Since there was continuous disturbance in the house, petitioner purchased a property and shifted his residence along with the respondent. On one occasion, when the petitioner fell ill with severe back pain and was unable to walk, the respondent neglected to look after him. She even insisted that the property should be transferred in her name which was refused by the petitioner. She instituted case against him under the Domestic Violence Act. Petitioner has been Mat.Appeal Nos.608/11 & 451/13 -:5:- restrained from entering into the house. He also complained that when he was admitted in an Ayurveda hospital with severe back pain, and was hospitalized for about a month, she did not care to turn up. According to him, the marital relationship has been irretrievably broken and there is no chance for a reunion and hence he filed petition seeking divorce u/s 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. 4. The respondent having admitted the marriage stated that she is an ordinary member of a Non-gazetted Officers' Union. She denied the allegations of cruelty. According to her, all the money was spent by the petitioner. The petitioner executed a registered Will in his brother's favour in respect of the property in which they were residing. When it was questioned, he started domestic violence against the respondent. He also tried to sell the house to third parties. Hence she had to approach the Magistrate Court and seek for an order of residence. 5. Before the Family Court, the petitioner was examined as PW1 and the respondent as RW1. Ext.A1 series were the documents relied upon by the petitioner. The Family Court observed that though the respondent had staked a claim that the Mat.Appeal Nos.608/11 & 451/13 -:6:- newly built house at Trikkanad was jointly built by them, by making use of her contribution by selling her gold ornaments as well as taking loan from Provident Fund and from KSFE, no documents were produced to prove the said fact. Family Court observed that even from the very beginning, there was a demand by the respondent to transfer the house in her name. According to PW1, property extending 17½ cents has been bequeathed in favour of his brothers by executing a Will. It was further found that Ext.A1 series are the treatment particulars of the petitioner. It was found that he was having disc problem. He was admitted for Ayurveda treatment for 28 days. Respondent did not have a case that at any point of time, she has taken care of him or his treatment. PW1 has a case that even during mediation, there was an attempt on the part of the respondent to stab him with a knife. There is no challenge to the said evidence in cross-examination. Taking into consideration the aforesaid facts, it was found that the mental pain suffered by the husband amounts to mental cruelty. He was even kept out of his house which he had constructed for the last 3½ years. The wife had also filed CMP No.3035/2007 before the Judicial First Class Magistrate Court II, Mat.Appeal Nos.608/11 & 451/13 -:7:- Hosdurg u/s 19 of the Protection of Women from Domestic Violence Act, 2005. According to PW1, since such a case has been filed, he was not in a position to enter the house for the past 3 years. She also has a case that even after filing of a complaint before the Magistrate Court, the domestic violence continued. The Family Court further found that the cessation of relationship between the couple for more than 3 years amounts to desertion as well. 6. Learned counsel for the appellant/wife argued that the pleadings and evidence in the case do not justify a case of cruelty. 7. On the other hand, learned counsel appearing for the petitioner/husband argued that this is a case in which the husband had been physically and mentally tortured by his wife and therefore there was justification on the part of the Family Court in granting divorce. He placed reliance on the judgment of the Apex Court in _**Naveen Kohli v. Neelu Kohli**_ [(2006) 4 SCC 558]. This judgment is cited to emphasise the fact that once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a Mat.Appeal Nos.608/11 & 451/13 -:8:- petition for divorce, it can well be presumed that the marriage has broken down. Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties. In this case, if we look at the evidence of the petitioner, he has specially narrated the cruelty suffered at the hands of respondent/wife and from the totality of the evidence also, it would appear that the parties had been living separately for more than 3 years. She had even gone to the extent of fling a case against the petitioner alleging ill-treatment and he was kept out of his residence. 8. Of course, if there is ill-treatment by the husband, wife is always entitled to seek appropriate remedies in accordance with law. But the question is whether the marriage would survive. The fact that the marriage is irretrievably broken cannot be disputed. In the facts of the case, the parties are at loggerheads and there is no chance for a reunion. However, the wife challenge the order of divorce by contending that there was no cruelty and desertion. Hence, it has to be considered whether the allegations of cruelty and desertion are justified or not. There is no dispute Mat.Appeal Nos.608/11 & 451/13 -:9:- about the fact that cruelty means mental cruelty as well. There need not be any clear incident of physical cruelty. What exactly would be mental cruelty will depend upon the facts and circumstances of each case. The adamant and callous attitude of the respondent/wife amounts to cruelty in the case on hand. The petitioner has proved that theirs was a late marriage and from the very beginning of the marriage, he was informed that she has affiliation to Naxalite organization. He as well as his family members were harassed by her. Due to her intolerable behaviour, he has to shift his residence and in a building which he has constructed for the family, he could not reside and all along she was insisting that the property should be transferred in her name. He filed the petition for divorce only after three years from the date of separation. 9. In _**Srinivas Rao K. v. D.A. Deepa**_ [2013 (1) KHC 647 (SC)], the Apex Court had occasion to observe that staying together under the same roof is not a precondition for mental cruelty. A spouse can cause mental cruelty by his or her conduct even while he/she is not staying under the same roof. Filing of complaints alleging indecent allegations or by initiating a number Mat.Appeal Nos.608/11 & 451/13 -:10:- of judicial proceedings, making the spouse's life miserable also amounts to mental cruelty. 10. As far as the present case is concerned, when the evidence of PW1 is believed, the mental cruelty stands proved. RW1 cannot be believed on account of various facts including the fact that all along her approach was to get the property assigned in her name and she had even prevented him from staying in his own house by obtaining a residence order. In the said circumstances, we do not find any reason to interfere with the aforesaid judgment. 11. In OP No.319/2011, the wife is the petitioner and the husband is the respondent and the parties are hereinafter referred to as shown in the original petition unless otherwise stated: The additional facts stated by the petitioner/wife was that the petitioner and the respondent identified a land having 15 cents in Pallikkere Village and the total consideration was around `1,20,000/-. She had withdrawn `56,500/- from SBT, Kasaragod and it was handed over to the respondent as part payment. The sale deed was executed in June, 1998. She further contended that Mat.Appeal Nos.608/11 & 451/13 -:11:- utilizing the funds raised by the couple, a residential house was constructed in the property and they shifted to their new residence in 2000. Another item of property was purchased for getting direct road access, in the joint names. She further stated that when the house construction was going on, the parental share of the petitioner was given to her as cash in instalments. One fine morning, according to her, the respondent left the place proceeding on the basis that she will not stay alone there for more days. Respondent came after one month along with a few persons stating that he had entered into an agreement for sale of the property and that he has received advance. Petitioner did not agree and she stated that it is their joint property. Though the title deed was in the name of the respondent, she stated that she has no intention to sell the property. Thereafter, according to her, respondent stayed away from the house and she also filed petition u/s 12 of the Domestic Violence Act before the JFCM Court II, Hosdurg. An order of injunction was passed against the respondent from alienating the property and from encumbering the same. She further submitted that the respondent has executed a Will in respect of the plaint-schedule property in Mat.Appeal Nos.608/11 & 451/13 -:12:- favour of his brothers with a view to restrict the petitioner from claiming any right over the property. According to her, the property was purchased by expending money by both the parties and the property ought to have been purchased in their joint names. The house also was constructed with common funds and therefore she sought for partition of the property. 12. Respondent denied the allegations. According to him, the Will was executed by him with the knowledge of the petitioner. He had purchased the property and constructed the house with his hard earned money and no contribution was made by the petitioner. At present, petitioner and her relatives are residing in the house and there is no one else to take care of him and he is living in the house of his relatives. He denied the claim made by the petitioner. According to the respondent, he purchased the property by two registered sale deed Nos.1563/1998 and 1564/1998. The consideration was paid by him alone by withdrawing `55,000/- from his SB account. `30,000/- is paid as sale consideration and the balance was utilized for levelling the ground. He had also taken a loan of `25,000/- and `83,000/- was withdrawn from District Co-operative Mat.Appeal Nos.608/11 & 451/13 -:13:- Bank for construction of the house. A further amount of `86,000/and a loan of `33,120/- and `12,900/- were also utilized for construction of the house. According to him, he had spent about `5,50,000/- for construction of the house which he had raised from his Provident Fund, department loan and from his bank savings. He further states that he purchased 2½ cents of land in 2003 for road access for which he availed a loan of `24,800/from his GPF. According to him, for the loan repayment, he is paying `4,000/- per month as interest from his salary. 13. Evidence in the case consists of the oral testimony of PW1 and RW1. Exts.A1 to A30 and Exts.B1 to B9 were the documents marked. Learned counsel for the appellant submits that the evidence in the case only discloses the fact that substantial amounts had been taken as loan by the petitioner. Evidence in the case would indicate that Exts.A1 to A13 copies of pay bill register of the petitioner for the period from March 1998 to February, 2011 would show that certain amount was being recovered from the salary towards repayment of loan from the petitioner's GPF account. Exts.A14 to A24 proves sanction for temporary advance from GPF. Ext.A25 is the savings pass book in Mat.Appeal Nos.608/11 & 451/13 -:14:- the name of the petitioner which proves withdrawal of an amount of `56,500/- on 28/5/1998. Ext.A26 is the certificate issued by Kasaragod Taluk Public Servants Co-operative Society which proves that petitioner had availed of a personal loan of `10,000/for housing purpose. Exts.A27 to A30 would show that the properties were purchased for a total consideration of `37,000/-. Of course RW1 has also proved that he had taken a loan of `2,09,500/- as per Ext.B1 certificate issued by the Special Tahsildar. Ext.B2 is a passbook which would prove the amounts withdrawn by him. He had also produced Ext.B3 to prove a loan of `83,000/- and `25,000/-. Ext.B5 is yet another passbook which would also prove withdrawal of `33,120/-, `12,900/- and `24,800/-. 14. Apparently, this is a case in which both the parties seem to have expended money and therefore, there is justification on the part of the Family Court to have directed that the property was purchased with their joint funds and both of them are entitled to equal share. 15. In the result, we do not find any reason to interfere with the judgment of the Family Court. Even though the Mat.Appeal Nos.608/11 & 451/13 -:15:- petitioner/wife is divorced, her rights under the Protection of Women from Domestic Violence Act do not stand curtailed. In the result, both the appeals are dismissed. No costs. **Sd/A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR** Rp True copy **JUDGE** P.S. To Judge