Sivadasan v. Prabha

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 20TH DAY OF SEPTEMBER 2017/29TH BHADRA, 1939 Mat.Appeal.No. 810 of 2010 ( ) ------------------------------- AGAINST THE ORDER IN OP 253/2006 of FAMILY COURT,THRISSUR DATED 2604-2010 APPELLANT/PETITIONER: -------------------- SIVADASAN, AGED 42, S/O.KANDAMKULANGARA NARAYANAN, PO CHATHAMANGALAM,, NENMARA VILLAGE, PALAKKAD DISTRICT NOW RESIDING AT KARTHIKA, PALATTU ROAD, PO OTTAPALAM,, PALAKKAD DISTRICT. BY ADV. SRI.MILLU DANDAPANI RESPONDENT/RESPONDENT: --------------------- PRABHA, D/O.KANNAMKOTT SREEDHARAN, KANIYAMBAL DESOM, KUNNAMKULAM VILLAGE, KUNNAMKULAM P.O., THALAPPILLY TALUK 680 503. R1 BY ADV. SRI.B.V.BALAKRISHNAN R1 BY ADV. SRI.N.P.SAMUEL THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2017, THE COURT ON 20-09-2017 DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE, J & ANU SIVARAMAN, J** *** * * * * * * * * * * * * *** Mat.Appeal No.810 of 2010 ---------------------------------------Dated this the 20[th] day of September 2017 ## **J U D G M E N T** ## **Shaffique, J** This appeal is filed by the petitioner in O.P.No.253/2006 challenging the judgment dated 26/04/2010 by which the Family Court dismissed the petition for divorce filed under Section 13 of the Hindu Marriage Act on the ground of cruelty and desertion. 2. The original petition was tried along with O.P.41/2004 which was one filed for past maintenance. Before the Family Court, petitioner relied upon the evidence of PWs 1 to 4 and documents Exts.A1 and A2. Respondent relied upon the evidence of Rws 1 to 3 and Exts.B1 to B3 documents. 3. Family Court found that there is no evidence to prove either cruelty or desertion and in the said circumstances, a decree for divorce cannot be granted. 4. Learned counsel for the appellant, however, submits that a re-appreciation of evidence in the case is highly required in order to appreciate the contentions alleged on behalf of the Mat.Appeal No.810/2010 2 appellant and the Family Court was not justified in dismissing the petition for divorce. 5. Learned counsel for the appellant placed reliance on the following judgments to substantiate the contentions. i) **Leelamma N.P. v. M.A.Moni** _[2017(3) KHC 340 (DB)]_ . This judgment is relied upon to emphasize the point that if the conduct and behaviour of the wife is of such a nature that it causes mental agony and stress making it impossible for the husband to live together and continue the marital tie, it will amount to mental cruelty. Further, if there is long separation making the reunion impossible and there is strained marital relationship between the parties and all attempts made on the part of the husband for a reunion failed, then it will amount to desertion on the part of the wife. ii) **Shrikumar V.Unnithan v. Manju K.Nair** _[2007(4) ILR(KER) 679]._ This judgment is relied upon to emphasize what would amount to mental cruelty. It was held that though irretrievable break down of a marriage is not a ground for divorce while determining whether the ground alleged is made out and in moulding the relief to be granted, the said circumstances can also 3 Mat.Appeal No.810/2010 be borne in mind. If the marriage between the parties has broken down irretrievably and there is no chance of their living together again and the parties to the case have inflicted upon the other party mental pain and suffering as would make it not possible for one party to live with the other, decree for divorce is to be granted. iii) Judgment in **Mat.Appeal (F.C) No.163/2016** of the Delhi High Court. In that case, while placing reliance upon _Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511]_ it was held that if there has been a long period of continuous separation, it can be concluded that the matrimonial bond is beyond repair. The marriage rather becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of the marriage and on the contrary, it shows scant regard for the feelings and emotions of the parties, which may lead to mental cruelty. 6. In the present facts of the case, it could be seen that the marriage was on 10/02/1992. At the time of marriage, the appellant was working as Assistant Engineer in Irrigation Department of Ollukkara Block. Later, he was transferred to 4 Mat.Appeal No.810/2010 Vadakara. The couple resided together in the house of the appellant at Nenmara for about two to three months and thereafter they shifted to Vadakara. Allegations raised by the appellant is that the respondent picked quarrels without any reason and she even used to tell him that she never intended to marry him and it was on account of the compulsion of her parents that she married him. During November 1991 the appellant was on medical leave and he was transferred to Mananthavady. He alleges that though a vacancy arose at Nenmara and he requested for the same, the transfer was delayed at the instance of the respondent's father. According to him, the respondent would act only in accordance with the directions of her father. In 1992, while they were residing at Thrissur, she became pregnant and even after the birth of the child, there was no change in her behaviour and there was quarrel between them. From August 1993, they started to reside at the house of the appellant at Nenmara. According to him, the quarrels continued. In the meantime, he got promotion to the office at Chimmini dam and they started residing at Koorkenchery. Still, there was no change in her behaviour. On 26/12/1996, the respondent abused the 5 Mat.Appeal No.810/2010 appellant and he was asked to leave the rented house. Though the appellant informed the matter to the brother of the respondent's father and uncle, while talking to them, respondent slapped the appellant on his face. At the relevant time, the relatives of the respondent also attacked him. On that day onwards, they were residing separately. There was no marital relationship between the appellant and the respondent since 1996 and the marriage is completely broken. 7. Respondent denied the allegations of cruelty. She denied the incident on 26/12/1996. She admitted that they were residing separately for the last nine years and she complained that she was not being paid any maintenance. 8. As far as cruelty is concerned, appellant, while being examined as PW1 states that there was constant quarrel between the parties and on 26/12/1996, he was beaten up by the respondent as well as her relatives. Thereafter, they were residing separately. PW2 is the cousin of the appellant. In the chief affidavit, he states that there has been difference of opinion between the couple. It is also deposed that the respondent and her father did not like the appellant taking care of his parents. He 6 Mat.Appeal No.810/2010 also deposed that in December 1996, respondent, her father's brother and uncle together had manhandled the appellant. However, in cross examination, he states that he has not seen the incident of the appellant being manhandled. But deposed about the difference of opinion between the couple during their marital relationship. PW3 is the brother of the appellant, who also supported the version of the appellant. According to him, on 26/12/1996, appellant had come to him and he was informed that the respondent and her relatives had manhandled him. PW4 is a neighbour of the appellant. He also refers to the difference of opinion between the couple. According to him, respondent always behaved in such a manner and did not respect the appellant and she always talked with scant respect to the appellant. 9. Respondent was examined as RW1 and she spoke in accordance with the contentions urged by her. RW2 is the father's brother of the respondent. RW3 has only stated that no income is being derived from the property owned by the respondent. Mat.Appeal No.810/2010 7 10. From the materials placed on record, the question to be considered is whether the Court below was justified in dismissing the petition for divorce. 11. As far as the allegation of cruelty is considered, the appellant has stated in general terms about the behaviour of the respondent whose actions were based on the instructions given by her father. He had raised a specific allegation that she did not like the appellant taking care of his parents and even to have any relationship with them and the same was the reason for the quarrel, quite often. Though this fact has been disputed by the respondent, the evidence of PWs 1 to 4 clearly suggest about the attitude of the respondent. All the witnesses had clearly spoken to the fact that the respondent disliked the appellant taking care of his parents and which was the main reason for the quarrel. This allegation being specific, it appears that the Family Court has not considered the same in the proper perspective. 12. Yet another contention is regarding the incident on 26/12/1996, for which, of course, other than the oral testimony of PW1, there is no other evidence. PW3, the brother of the appellant deposed that the respondent used to speak to them Mat.Appeal No.810/2010 8 with scant respect and without any love or affection. He and his wife had even gone to the extent of advising her to behave properly, which she did not accede to. She did not even open the door when he and his wife had gone to see the couple during 1995. All these factual aspects which had come in evidence clearly proves the quarrelsome nature of the respondent. Though in the petition each and every solitary incident had not been narrated, the quarrelsome behaviour of the respondent had clearly been pleaded in the petition. Appellant also had pleaded regarding the fact that the main reason for the quarrel was that he was taking care of his parents. This attitude, according to us, which has been proven in the case, amounts to mental cruelty. No person should be permitted to ignore his or her parents which should not at all be an issue between the couple in a matrimonial relationship. Both parties should endeavour to take care of the parents of both the couple. Failure to do so, and creating mental stress on either of them on such issues, also amounts to mental cruelty. We are fortified to take this view in the light of the judgment in **Narendra v. K.Meena** _[2016(9) SCC 455]_ . This is an instance where there is evidence to support the contention urged Mat.Appeal No.810/2010 9 by the appellant regarding the mental cruelty to the extent indicated above and therefore, we are of the view that the Family Court had committed error in arriving at the finding that evidence was lacking to prove mental cruelty. 13. As far as the contention regarding desertion is concerned, the evidence indicates that the respondent was residing at her residence since 26/12/1996. It is borne out that no attempt has been made by either parties to have a reunion. Therefore, as rightly pointed out by the Family Court, it may not be possible for this Court to arrive at a conclusion as to who committed desertion. Further, as rightly pointed out by the learned senior counsel for the appellant that the marriage has been broken irretrievably as the couple have been residing separately for the last more than 21 years. 14. Taking into consideration the fact that the allegation of cruelty stands proved and the marriage has been irretrievably broken, we are of the view that the judgment of the Family Court has to be set aside and the original petition has to be allowed. Accordingly, this appeal is allowed as under: i) Judgment of the Family Court in O.P.253/2006 is set Mat.Appeal No.810/2010 10 aside. ii) O.P.No.253/2006 is allowed. The marriage between the petitioner and the respondent shall stand dissolved by a decree of divorce. Parties shall bear their own costs. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) **(ANU SIVARAMAN, JUDGE)** jsr True Copy P.S.to Judge