Sheena A. v. Rajeevan A.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945** ## **MAT.APPEAL NO. 479 OF 2015** **OP NO.410 OF 2012 OF FAMILY COURT, THALASSERY** ## **APPELLANT/RESPONDENT BEFORE THE COURT BELOW** **SHEENA.A AGED 36 YEARS W/O.RAJEEVAN A, PARIMANDATHIL, NEAR KAVULLATHIL BHAGAVATHI KSHETHRAM P.O, KIZHAKE PALAYAD, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADV ATHIRA A.MENON** ## **RESPONDENT/PETITIONER BEFORE THE COURT BELOW** **RAJEEVAN.A, AGED 44 YEARS S/O.KOUSU, POLICE CONSTABLE (DRIVER), AMRUTHAM, P.O, WEST PONNIAM, THALASSERY TALUK, KANNUR DISTRICT. 670 641.** **BY ADV SRI.C.P.PEETHAMBARAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** **5.3.2024 ALONG WITH Mat.Appeal.482/2015, THE COURT ON 19.03.2024 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.479 & 482 of 2015 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 MAT.APPEAL NO. 482 OF 2015** **OP NO.498 OF 2012 OF FAMILY COURT, THALASSERY** ## **APPELLANT/PETITIONER BEFORE THE COURT BELOW** **SHEENA A., AGED 36 YEARS W/O.RAJEEVAN A, PARIMANDATHIL, DHARMADAM AMSOM, PALAYAD DESOM, NEAR KEVULLATHIL BHAGAVATHI KSHETHRAM P.O, KIZHAKKE PALAYAD, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADV ATHIRA A.MENON** ## **RESPONDENTS/PETITIONERS BEFORE THE COURT BELOW** **1 RAJEEVAN A. AGED 44 YEARS S/O.KOUSU, POLICE CONSTABLE (DRIVER), USHA NIVAS, KADIRUR AMSOM, PONNIAM DESOM, P.O WEST PONNIAM, THALASSERY TALUK, KANNUR DISTRICT. 670 641.** **2 SHIJIL EDACHOLI VAZHAYIL S/O.REGHUTHAMAN, AGED 26 YEARS, ELECTRICIAN, VAZHAYIL HOUSE, KADIRUR AMSOM DESOM, P.O KADIRUR, THALASSERY TALUK, KANNUR DISTRICT.** **3 EDACHOLI KUNDACHERI RAGHU, AGED 54 YEARS, S/O.KAUSU, GOVERNMENT PRESS EMPLOYEE, USHA NIVAS, KADIRUR AMSOM, PONNIAM DESOM, P.O WEST PONNIAM, THALASSERY TALUK, KANNUR DISTRICT.-670641** **BY ADVS.** **SRI.C.P.PEETHAMBARAN SRI.J.JOY** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** **5.3.2024, ALONG WITH Mat.Appeal.479/2015, THE COURT ON 19.03.2024 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.479 & 482 of 2015 3 ## **ANU SIVARAMAN & C.PRATHEEP KUMAR, JJ.** -----------------------------------------------------------------Mat.Appeal No.479 & 482 of 2015 ----------------------------Dated : 19[th] March, 2024 ## **JUDGMENT** ## C.Pratheep Kumar, J. 1. Mat.Appeal 479/2015 is filed by the respondent/wife in O.P.410/2012 against judgment dated 26.11.2014 of the Family Court, Thalassery, granting a decree of divorce in favour of the respondent/husband. Mat.Appeal 482/2015 is filed by the very same appellant who is the petitioner in O.P.498/2012 against the respondents who are her husband and in-laws against the judgment dated 26.11.2014, partly dismissing the above OP. For the purpose of convenience, the parties are hereinafter referred to as per their rank in Mat.Appeal 482/2015. 2. The appellant married the respondent on 14.11.1999, as per customary rites and ceremonies and a child was born in that wedlock. The respondent filed O.P.410/2012 seeking divorce on the ground of cruelty as well as desertion. According to the respondent, from the very beginning the appellant behaved in an abnormal and curious manner and on medical examination, it was found that she was suffering from mental illness. When she became pregnant, she insisted for abortion. She even threatened to commit suicide in case the respondent refuses to give consent for Mat.Appeal Nos.479 & 482 of 2015 4 abortion. She was suffering from mental illness even prior to the marriage and the above fact was suppressed from the respondent. The appellant abused the 1[st] respondent and declared that she did not want to give birth to the child of the respondent. She used to abuse the 1[st] respondent in filthy language in the presence of third parties. The abnormal behaviour of the appellant has seriously affected the life of the 1[st] respondent. The appellant also raised false allegations against the 1[st] respondent that he has illicit relationship with his own mother and sister-in-law. On 20.9.2009, the appellant left the matrimonial home and never returned back. In the light of the above pleadings, the 1[st] respondent prayed for a decree of divorce. In the counter the appellant refuted all the allegations raised by the 1[st] respondent in the O.P. 3. In O.P.498/2012, the appellant would contend that due to the cruelty against the 1[st] respondent she was compelled to return to her parental home on 20.9.2009 along with her son. She filed a petition for maintenance as M.C.547/2011 before the Family Court, Thalassery, in which maintenance at the rate of Rs.2500/- each was awarded to her and the son. Rs.5000/awarded as maintenance to the appellant and her son is too meagre to make both ends meet. She needs at least Rs.15,000/- per month for meeting the necessities of herself and the child. Since 20.9.2009, she had to borrow a sum of Rs.2,00,000/- from her relatives for meeting the necessities. It is Mat.Appeal Nos.479 & 482 of 2015 5 also alleged that the 1[st] respondent, with intent to defeat the right of the appellant, transferred petition schedule item No.1 property in favour of the 2[nd] respondent in the O.P., as per document No.1786/2011 of SRO, Kadirur. The 1[st] respondent was a co-owner of the petition schedule item No.2 property. With an intention to defeat the right of the appellant, the 1[st] respondent has assigned his right over the petition schedule item No.2 property in favour of the 3[rd] respondent in the O.P., as per gift deed No.361/2011 of SRO, Kadirur. Therefore, she prayed for setting aside the above documents and for awarding a sum of Rs.4,95,000/- towards past maintenance and future maintenance at the rate of Rs.10,000/- per month. 4. The respondents in the O.P filed counter refuting the allegations in the O.P. Both the above OPs were separately tried and O.P.410/2012 was decreed granting a decree of divorce while O.P.498/2012 was partly decreed directing payment of a sum of Rs.90,000/- towards past maintenance, while the prayer for cancellation of documents rejected. 5. Now the points that arise for consideration are the following :- - (i) Whether the appellant had subjected the 1[st] respondent to cruelty as found by the Family Court ? - (ii) Whether the impugned judgment/decree in O.P.410/2012 calls for - any interference, in the light of the grounds raised in the appeal ? - (iii) Whether the judgment and decree in O.P.498/2012 to the extent Mat.Appeal Nos.479 & 482 of 2015 6 it dismissed the prayer for setting aside the documents is liable to be interfered with, in the light of the grounds raised in the appeal ? 6. Heard both sides. 7. Points (i) & (ii) – In O.P.410/2012, the 1[st] respondent claimed a decree for divorce on the ground of cruelty and desertion. In the impugned judgment the divorce was granted on the ground of cruelty alone. The main allegation raised by the respondent is that even before the marriage, the appellant was suffering from mental illness and in spite of the same, marriage was conduced suppressing the above fact. According to the respondent, the fact that the appellant was suffering from mental illness was detected by him within one month of marriage. According to him, because of the strange behaviour of appellant, he had taken her to various doctors and provided treatment to her. The appellant stoutly denied having any such mental illness. However, she admitted that there was an attempt on the part of the respondent and his family members to picturise her as a mental patient and taken her to various doctors. Though the respondent examined 3 doctors as PW2 to 4, they are not psychiatrists. According to the respondent, the psychiatrist who examined the appellant namely Dr.M.C.Mathew was no more at the time of evidence. Since the other doctors examined are not psychiatrists, the respondent could not establish that the appellant has been incurably of unsound mind, or has been Mat.Appeal Nos.479 & 482 of 2015 7 suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the respondent cannot reasonably be expected to live with the appellant, so as to attract the ground under Section 13(1)(iii) of the Hindu Marriage Act. More over, in the O.P. the respondent has not raised the ground under the above provision and the grounds raised are only cruelty and desertion. On the other hand, at the time of evidence, the attempt was to show that the appellant was suffering from mental illness so that she could not lead a normal marital life along with the respondent. 8. After evaluating the available evidence, the learned Family Court Judge also found that the respondent is not entitled to get a decree of divorce on the ground of mental illness of the appellant and the relief was granted on the ground of cruelty. The conclusion arrived at by the trial court and mentioned just before the decretal portion is :- _“........It is better to have a dissolution of marriage not on grounds of insanity because the mental unsoundness or symptoms brought out in this case may not as such may be sufficient for branding her as an insane woman and sufficient for dissolution of marriage. But I find that because of the abraded mind of the respondent her behaviour has become defective and she exhibited much cruel act and thereby resulting an intolerable situation to continue the_ Mat.Appeal Nos.479 & 482 of 2015 8 _marital life. Therefore it is just and fair to allow the matrimonial relief of dissolution of marriage as prayed for.”_ 9. The marriage of the respondent with the appellant was solemnized on 14.11.1999. The respondent is working in police department. Though the respondent admitted that he came to know about the mental illness of the appellant within one month of marriage, he had chosen to continue the marital relationship and in that wedlock a child was born. According to him, they continued to live together till the appellant left his company on 20.9.2009. He even raised desertion as a ground for getting a decree of divorce. Though there was a contention that the appellant entered into marital relationship with him suppressing the fact that she was suffering from mental illness, he has not chosen to get the marriage annulled on that ground, immediately on detecting the suppression. On the other hand, he continued the marital relationship with the appellant and cohabited along with her, till 20.09.2009. 10. It was contended that the appellant raised false allegations against him including the allegation that he had illicit relationship with his sister-in-law and even with his mother. In the proof affidavit it is alleged that such allegation was raised connecting his sister also. It was argued by the learned counsel for the respondent that the appellant failed to prove those allegations and as such, such baseless allegations itself amount to mental Mat.Appeal Nos.479 & 482 of 2015 9 cruelty. The law is well settled that raising false allegations of illicit relationship against a spouse amounts to mental cruelty. ( **Binu Raj G. v. Sandhya Lakshmi R, 2020 (3) KLT 479 and Rajkumar Nair v. V.V.Jaya, 2017 (4) KHC 807** ). 11. In this case, the appellant sworn before the Court that she had seen the respondent in a compromising position at least on three occasions, with his sister-in-law. When she questioned the same, she was threatened and assaulted by the respondent. During the cross-examination of the appellant as RW1, not even a suggestion was put to the effect that her above statement is false. In the above circumstances, the evidence of RW1 that she had witnessed the illicit relationship of the respondent with his sisterin-law could not be disbelieved. 12. At the same time, the appellant has raised such an allegation only against the sister-in-law of the respondent and not against others. It was argued by the learned counsel for the respondent that in the objection filed by the appellant, she had raised a contention that the respondent had illicit relationship with his mother. There is such an observation by the trial Court in the impugned judgment also. However, in the objection filed by the appellant, no such allegation is seen raised. At the time of evidence also, RW1 has not raised such an allegation. Therefore, the observation by the trial Court that the appellant had raised such an allegation against the Mat.Appeal Nos.479 & 482 of 2015 10 respondent is devoid of any basis. 13. In the proof affidavit the respondent claimed that on several occasions the appellant attempted to commit suicide and only because of his timely intervention he could save her. However, during the crossexamination, he deposed that he had never seen the appellant attempting to commit suicide. Similarly in the proof affidavit, the respondent claimed that on several occasions the appellant had stolen money from his pocket. However, during the cross-examination he admitted that he had never seen the appellant committing theft of money from his pocket. 14. It was contended that the appellant was not prepared to give birth to the child of the respondent and also that she had aborted the pregnancies several times, during the initial years of marriage. At the time of evidence, it is revealed that the first pregnancy of the appellant was terminated. PW4, Dr.Santhakumari also gave evidence to that effect. According to the respondent, the pregnancy was aborted at the instance of the appellant and according to the appellant, it was at the instance of the respondent. PW4 would swear that the appellant insisted for abortion and accordingly the respondent also consented to the same and abortion was done. The respondent as PW1 deposed that he had given consent for abortion as the appellant threatened to commit suicide unless the pregnancy was terminated. It is contended that thereafter the respondent became pregnant Mat.Appeal Nos.479 & 482 of 2015 11 three more times and those pregnancies were also aborted. Thereafter when she became pregnant, she stayed along with her parents, taken rest, and given birth to a child. 15. There is no evidence to show that the remaining three abortions happened because of any fault of the appellant. Though in the proof affidavit the respondent claimed that the appellant herself had taken tablets for aborting those pregnancies, it was given a go by during the crossexamination. At the time of cross-examination, the respondent has changed his stand and stated that except the first abortion, the other abortions were due to bleeding and consequent failure. 16. In this context it is also to be noted that in spite of those abortions, the respondent continued to cohabit with the appellant and in that wedlock, a child was also born. Then, they continued to live together as husband and wife till 20.9.2009. In the above circumstance, now at this belated stage, the respondent cannot contend that the first abortion amounted to cruelty, especially when he had given consent to the same and continued to cohabit along with her and thereby condoned the above conduct of the appellant. 17. The respondent further contended that the appellant was reluctant to have physical relationship with him from the very beginning. However, the above allegation was stoutly denied by the appellant and according to her, she was interested in physical relationship as a normal human being and Mat.Appeal Nos.479 & 482 of 2015 12 also that it is evident from the fact that she became pregnant several times and thereafter she gave birth to a child. Even from the evidence of PW1 it is revealed that the appellant became pregnant at least three times before she gave birth to the child. With regard to the lack of interest of the appellant to have physical relationship, he clarified that she co-operates for physical relationship only when he compels. According to him, during the first night, she did not co-operate with him for physical relationship saying that she has menstruation. According to him, their first physical relationship was on 7[th] or 8[th] day of marriage. Since the respondent himself revealed that the appellant told him that on the first night of marriage she had menstruation and they had their first physical relationship on the 7[th] or 8[th] day of marriage, it cannot be held that there was any lack of cooperation from the side of the appellant for physical relationship. 18. Though the respondent contended that the appellant was reluctant to have physical relationship from the very beginning, they have lived together for more than ten years till the appellant allegedly left the matrimonial home on 20.9.2009. In O.P.410/2012 he has even raised the ground of desertion as a ground for divorce. The above circumstances also improbabilises the allegation that the appellant refused to have physical relationship with the respondent, as alleged. In the available evidence there is nothing to show that the appellant willfully refused to have physical Mat.Appeal Nos.479 & 482 of 2015 13 relationship with the respondent as alleged, so as to attract the ground of mental cruelty. 19. In the proof affidavit, the respondent claimed that the appellant was treated for a period of about two years by one Dr.David at the hospital by name 'Susrusha'. When the respondent was examined as PW1, he deposed that he is not in possession of any documents to prove the treatment given to the appellant. However, subsequently he was recalled and he has produced Exts.A3 to A8 allegedly the documents showing the treatment given to the appellant by one Dr.M.C.Mathew in the hospital 'Susrusha'. In the proof affidavit, he has no case that the appellant was treated by Dr.M.C.Mathew. He claimed that one of the staff members in the hospital had given Exts.A3 to A8 to him. However, he did not even know the name or address of the staff who allegedly given Exts.A3 to A8 to him. He also could not identify the handwriting in those documents. 20. As per the proof affidavit of the respondent, the appellant consulted one Usman Vaidyan for abortion. It is also contended that he had taken the appellant to Dr.Ajayakumar for treating mental illness. However, during the cross-examination, he deposed that the appellant was taken to Usman Vaidyan in connection with treatment of rheumatism and leg pain. He would also admit during cross-examination that he had taken the appellant to Dr.Ayaja Kumar as she complained of headache. Mat.Appeal Nos.479 & 482 of 2015 14 21. In the proof affidavit at one stage the respondent claimed that the appellant was taken to her residence by her brother and father saying that she could not tolerate the difficulties faced in the matrimonial home. According to the respondent, he had requested the appellant to live along with him as the mother of the child though she was not interested to live as his wife. However at another stage, during cross-examination he claimed that there is absolutely no chance for any re-union with the appellant. At the very same time, he has raised desertion as a ground for dissolution of marriage. 22. The law is well settled that the party who alleges the ground of cruelty shall specifically plead the instances of cruelty with material particulars. In the instant case, there is no such specific pleading alleging specific instances of cruelty against the appellant. There are only general allegations of cruelty against the appellant that she is suffering from mental illness, that she has raised false allegations against the respondent and also that she has aborted pregnancies without the knowledge and consent of the respondent. We have already found that those allegations will not stand in view of the fact that in spite of detection of those incidents at the very beginning of the marital relationship, the respondent chose to continue cohabitation with the appellant and thereby condoned those activities. During the cross-examination when the respondent was Mat.Appeal Nos.479 & 482 of 2015 15 asked about the details of the cruelty meted out by the appellant, he clarified that he has not received as much love from the appellant as he had given to her. 23. On a perusal of the above evidence of the respondent in the proof affidavit and the version given during the cross-examination, it can be seen that they are contradictory to each other on several material points. In the proof affidavit he had given an exaggerated version regarding the conduct of the appellant, while during the cross-examination entirely different versions are given. Therefore, the oral testimony of the respondent is not at all reliable and trustworthy. On the other hand, there is no such inconsistency in the evidence of the appellant and as such, the version given by the appellant is more reliable and probable than that of the respondent. In the above circumstances, we are constrained to hold that the respondent has not succeeded in proving the ground of cruelty alleged against the appellant, so as to get a decree of divorce. 24. The ground of desertion alleged in the petition was not allowed by the trial Court and it is to be presumed as rejected. The respondent has no case that the appellant had left the matrimonial home with the intention to put an end to the marital relationship. During the cross-examination he has also deposed that there is absolutely no chance for any reunion. The above evidence of the respondent shows lack of bona fides on his part, in raising Mat.Appeal Nos.479 & 482 of 2015 16 the ground of desertion in the OP. In the above circumstance, the finding of the trial Court that the respondent is entitled to get a decree of divorce on the ground of cruelty is erroneous and as such it is liable to be interfered with by this Court. Since the respondent has not succeeded in proving the ground of cruelty, O.P.410/2012 is liable to be dismissed. Points 1 & 2 answered accordingly. 25. Point No. (iii) **:-** In O.P.498/2012 the appellant has taken a contention that Exts.A1 and A2 sale deeds executed by the 1[st] respondent in favour of respondents 2 and 3 are with intent to defeat her rights. Therefore, she prayed for cancelling Exts.A1 and A2 sale deeds. According to the respondents, those documents were executed before the appellant preferred O.P.498/2012 and those documents are _bona fide_ transactions and not liable to be set aside. In the O.P the appellant also prayed for past maintenance as well as enhancement of maintenance awarded in M.C.547/2011 filed under Section 125 of Cr.P.C. In this case, the learned Family Court Judge found that since she had already filed M.C.547/2011 under Section 125 Cr.P.C, for enhancement of maintenance, she has to approach the learned Magistrate under Section 127 Cr.P.C and as such, in this case, enhancement of maintenance was not allowed. At the time of arguments, the above point was also not raised by the learned counsel for the appellant. Since the appellant has already approached the learned Mat.Appeal Nos.479 & 482 of 2015 17 Magistrate under Section 125 Cr.P.C and obtained an order of maintenance at the rate of Rs.5000/- to herself and the minor child, the reasons given by the Family Court for not entertaining the application for enhancement of maintenance is quite reasonable and as such, the above finding is liable to be sustained. 26. However, the claim of past maintenance was partly allowed by the Family Court and the appellant was granted a sum of Rs.90,000/- towards past maintenance at the rate of Rs.2500/- per month for a period of three years. The above past maintenance awarded to the appellant is equal to the maintenance awarded in M.C.547/2011 and no serious allegations are raised with regard to the above finding of the Family Court. Since in M.C.547/2011 also, maintenance was allowed at the rate of Rs.2500/- to herself and Rs.2500/- to her minor child, past maintenance allowed at the very same rate is reasonable and we do not find any grounds to interfere with the same. 27. According to the appellant, the 1[st] respondent executed Exts.A1 and A2 sale deeds in respect of his properties in favour of respondents 2 and 3 in order to defeat her right to get maintenance from the 1[st] respondent. Admittedly, the 1[st] respondent is a Police officer working in Kerala Police and he regularly used to pay the maintenance awarded by the Magistrate to the appellant and minor son. The appellant also admitted at the time of Mat.Appeal Nos.479 & 482 of 2015 18 evidence that the maintenance ordered by the leaned Magistrate was regularly paid by the respondent. It shows that as at present there is no arrears of maintenance due to the appellant from the 1[st] respondent. Exts.A1 and A2 are executed in the year 2011 while the appellant filed the present O.P in the year 2012, after the execution of the above sale deeds. Since the 1[st] respondent has a permanent job and he is prompt in paying the maintenance ordered by the leaned Magistrate to the appellant and son and since Exts.A1 and A2 are executed prior to the present O.P, we do not find any valid grounds to suspect that the 1[st] respondent executed Exts.A1 and A2 sale deeds in favour of respondents 2 and 3 in order to defeat the claim of maintenance of the appellant from him. In the above circumstance, it is to be held that the finding of the learned Family Court Judge that the appellant is not entitled to get a decree setting aside Exts.A1 and A2 is in tune with the evidence on record and as such the above finding is liable to be sustained. In other words, the impugned judgment and decree in O.P.498/2012 is liable to be sustained. Points 3 and 4 answered accordingly. In the result, Mat.Appeal 479/2015 is allowed. The impugned judgment and decree of the Family Court, Thalassery, allowing O.P.410/2012 is set aside. O.P.410/2012 is dismissed. Considering the facts, we order no costs. In the result, Mat.Appeal 482/2015 is dismissed, confirming the findings Mat.Appeal Nos.479 & 482 of 2015 19 of the trial court. Considering the facts, we order no costs. **Sd/-** **Anu Sivaraman, Judge** **Sd/-** **C.Pratheep Kumar, Judge** Mrcs/12.3.2024