Shyma P. v. Premkumar N.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** **Mat.Appeal.No. 1223 of 2016** **AGAINST THE ORDER/JUDGMENT DATED 17-10-2016 IN OP 301/2014 of FAMILY COURT, THALASSERY** ## **APPELLANT/PETITIONER:** **SHYMA.P AGED 39 YEARS, D/O. DAMU, POOKKANDY HOUSE, P.O.MUZHAPPILANGAD, KANNUR TALUK, KANNUR DISTRICT-670 662.** **BY ADV. SRI.C.P.PEETHAMBARAN** ## **RESPONDENT/RESPONDENT:** **PREMKUMAR.N AGED 42 YEARS, S/O. SREEDHARAN, 'NANDHANA TAILORS', P.O.PALLIKKUNNU, KANNUR DISTRICT-670 004.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2018, THE COURT ON 19.12.2018 DELIVERED THE FOLLOWING:** Mat.Appeal No.1223/2016 2 ## **C.K.ABDUL REHIM** **& T.V.ANILKUMAR, JJ. --------------------------------Mat. Appeal No.1223 of 2016 ---------------------------------Dated this the 19[th] day of December 2018** ## **JUDGMENT** ## **T.V.ANILKUMAR,J.** O.P. 301/2014 filed by the wife before the Family Court, Thalassery for dissolution of her marriage with the respondent, on the grounds under Sections 13 (1)(i) and Section 13 (1) (i) (a) of the Hindu Marriage Act 1955 (for short the Act), was dismissed on 17.8.2016. Challenging the dismissal, she has filed this Mat. Appeal. 2. The respondent did not appear in this appeal despite acceptance of notice and serious contest of the O.P. in the lower court opposing the plea for divorce. 3. She was married to the respondent, husband, on 30.1.2002 and there are no issues born out of the wedlock . After the marriage, spouses resided in the house of the respondent and later shifted to the Mat.Appeal No.1223/2016 3 house of the petitioner. Allegation against respondent is that, while residing with her he used to treat her with cruelty, both mentally and physically in various manner. He used to pick up quarrels with her without any rhyme or reasons. So also he used to beat her brutally for no reason whatsoever. There were many occasions when he abused her in filthy language for no good reason. He maintained illicit relationship with a married woman and whenever she questioned his immoral acts, she was beaten up and later deserted. Even after desertion also, he continued to abuse and insult her in filthy language over phone. These are the incidents which the appellant averred in the Original Petition as acts giving rise to the ground of cruelty for obtaining a decree for divorce. 4. During the course of trial, plea of adultery taken under under Section 13 (1) (i) of the Act was given up by her, as could be seen from the submission of her counsel recorded in paragraph (6) of the impugned judgment. Therefore, the trial court proceeded to decide the case based on the sole ground of cruelty under Section 13 (1) (i) (a) of the Act. 5. Respondent in his counter rebutted all the allegations of cruelty levelled against him. According to him, the marriage with the Mat.Appeal No.1223/2016 4 appellant was following a love affair. After living along with the appellant in his house, he shifted to her house obliging her mother. During those days she and her uncle's daughter Usha used to insult and humiliate branding him as an impotent. Further she had immoral relationship with a person named Shaji. 6. The lower court in the course of the trial examined the appellant as PW1 and the respondent as RW1. No other oral evidence was tendered by parties. The appellant marked on her side Exts.A1 to A6 which have, however no bearing on the issue relating to cruelty. Therefore we do not propose to refer to them in the appeal. 7. After analysing the oral evidence of both spouses, the lower court took the view that the appellant failed to prove her case of cruelty and therefore she was not entitled to decree for divorce as prayed for. It is noted from the testimony of PW1 that she had mentioned about a few instances of her husband's behaviour amounting to cruelty, which were not avered in the Original Petition. Her testimony shows that, the respondent maintained towards her a very sceptical attitude, whenever he found her conversing with any male persons. He had taken away her gold ornaments and misappropriated the same for his personal purposes. He availed a loan for purchase of a vehicle and caused his Mat.Appeal No.1223/2016 5 liability to be discharged with the funds of her relatives. He also managed to obtain a loan of Rs.1 lakh and later misappropriated the same. These are allegations which do not have roots in her pleadings. The lower court therefore did not go into or examine the veracity of these allegations, applying the principle of law that evidence tendered on facts which were not pleaded or notified to the opposite party has no value. It however, took note of the allegations of cruelty narrated in her pleadings and testified in the court and held that, they too do not help the appellant prove the case of cruelty, since there was no allegation in the O.P. to the effect that, such alleged acts or conduct of the respondent were of such a nature that spouses cannot be reasonably expected to live together. Picking up of quarrels in matrimonial life and use of filthy language by themselves cannot amount to the ground of cruelty for dissolution of marriage, unless the alleged mental suffering was of such a nature that she could not reasonably be expected to live with the respondent. This appears to be the gist of the decision in _**B.Bhagath V. Mrs. B.Bhagath, (AIR 1994 SC 701)**_ which was relied on by the lower court for dismissing the case of the appellant based on cruelty. 8. The learned counsel for the appellant submitted that mutual Mat.Appeal No.1223/2016 6 allegations of cruelty as between parties itself is a sufficient ground for divorce since the relationship in the case on hand was irretrievably broken. We do not agree to this argument because there is nothing on record indicating that the relationship between parties to the O.P., is irretrievably broken. He further argued that admissions made by the respondent in his cross examination would prove the appellant's case of cruelty and further the evidence on record as a whole would evince that, the acts of cruelty meted out by PW1 were of such a nature that she could not be reasonably expected to live with him. He cited two decisions in _**Lini Mohan John v. Mohan John (2001(1) KLJ 809**_ ) and _**R.Balasubramanian v. Vijayalakshmi Balasubramanian (1999) (7 SCC 311)**_ in this respect. We are unable to accept the said argument as the evidence on record does not reflect what was canvassed by the learned counsel; and we are also of the opinion that these decisions have no relevance to the facts on hand and are of no help to the appellant. 9. We find that the appellant has not pleaded that the alleged cruel acts of the respondent are such that any reasonable spouse in her place could not have been able to cope with the situation and lead a normal matrimonial life with the respondent. The lower court did not Mat.Appeal No.1223/2016 7 undertake the task of appreciating the veracity of allegations of cruelty raised in the pleadings against the respondent, presumably because of lack of completeness of the pleading, as indicated in the Bhagath's case (supra). Whether a particular conduct or behaviour of a spouse in the matrimonial life amounted to cruelty needs to be tested in the light of the social status, educational qualifications of spouses and also the society in which they move around. A straight jacket formula of what sort of behaviour, acts or conduct would amount to cruelty cannot be laid down in this respect and it depends upon the wisdom of the court that deals with the case in the context of individual facts and circumstances. This is what has been emphasized in Bhagath's case (supra). We notice that the lower court did not appreciate the veracity of the allegations of cruelty averred in the original petition and this vitiated the impugned judgment. 10. In the light of the facts as well as the law discussed as above, we are of the opinion that the matter requires a re-look and the case has to go back to the lower court where the appellant shall be afforded an opportunity for leave to amend her pleadings for incorporating additional allegations of cruelty which are not pleaded in the O.P as well as such other relevant facts in support of the ground of cruelty in the light of Mat.Appeal No.1223/2016 8 Bhagath's case (supra), if she so chooses. 11. In the aforesaid circumstances, we set aside the impugned judgment and decree of the Family court, Thalassery in O.P.301/2014 and remand the case to the lower court for deciding the case afresh in accordance with law, after giving the appellant an opportunity to amend her pleadings. The leave to amend if sought by the appellant shall be considered only in accordance with law and with notice to the respondent . We make it clear that we have not expressed our view on the merits of the case and it will be open to the court below to decide the issues before it independently in accordance with law and unprejudiced by our observations made in relation to the facts or evidence on record in the case. The Mat. Appeal is accordingly allowed, subject to what has been stated above. Sd/- **C.K.ABDUL REHIM, JUDGE** Sd/- **T.V.ANILKUMAR, JUDGE** Al/-