Sophi A.P. v. Aneesh K

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** **Mat.Appeal.No. 1251 of 2017** **AGAINST THE ORDER/JUDGMENT IN OP 239/2017 of FAMILY COURT, VADAKARA DATED 16-09-2017** ## **APPELLANT/S:** **SOPHI A.P, D/O.KUMARAN, AGED 34 YEARS, AMBALAPPARAMBATH HOUSE, NADAKKUTHAZHA P.O.,VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADV. SRI.V.RAMKUMAR NAMBIAR** ## **RESPONDENT/S:** **ANEESH K S/O.ANDI, AGED 40 YEARS, FLAT NO.C-31, GOVERNMENT N.G.O.QUARTERS, MERIKKUNNU POST, VELLIMADUKUNNU, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673012.** **BY ADV. ANEESH K (PARTY)** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- Mat. Appeal. No. 1251 of 2017 ## **JUDGMENT** ## K.Harilal, J. The appellant herein is the wife of the respondent and this appeal has been filed challenging the decree granting dissolution of marriage between the appellant and the respondent, in OP No. 239 of 2017 of the Family Court, Vatakara filed by the respondent herein against the appellant. The aforesaid OP was filed seeking dissolution of marriage on the ground of cruelty under Section 13(1)(a) of the Hindu Marriage Act. The averments in the OP can be summarized as follows: 2. The marriage between the petitioner and the respondent was an arranged marriage and the same was solemnized on 18.05.2008. At that time, the petitioner was residing in his family house along with his mother and two brothers and their family. Two children are borne out in the wedlock and they are -3- Mat. Appeal. No. 1251 of 2017 presently with the respondent. Both the petitioner and the respondent are employed in Government Service. According to the petitioner, immediately after the marriage it was understood that the respondent is highly possessive and she was not prepared to accommodate herself in the family, which consists mother, two brothers and their wife and children. She imputed extra marital relationship on the petitioner with the wives of his brothers by name Moly and Razna. Though he made an attempt to wipe out such doubts from the mind of the respondent, she was found adamant on the said allegation of extra marital relationship through out the life. She hated his mother and she could not accommodate her as the mother of the petitioner. There were several attempts to smoke out the petitioner's mother from the Tharavadu House as well as the quarters to which -4- Mat. Appeal. No. 1251 of 2017 the spouses shifted subsequently. She used to attack the petitioner when she loses her temper. Gradually, she started to lead a life of her own accord, unmindful of family obligations. Though they have started to live separately from the family house, the respondent continued to harass him reiterating the allegation of extra marital relationship with the wives of his brothers. She was interested in spreading scandals linking the petitioner and the wives of his brothers. At last, the respondent, without any provocation, left company of the petitioner from July 2014. she herself hired a house in Kozhikode and started to live independently without informing the petitioner. Several attempts were made to reform the respondent, but it ended in vain. At last, he approached the Family Court, Kozhikode by filing OP No. 764 of 2014 seeking a decree for restitution of -5- Mat. Appeal. No. 1251 of 2017 conjugal rights. The respondent opposed the said OP and refused to resume cohabitation. During counseling in the said OP, as well as in the counter statement filed therein, she repeated the scandalous allegations connecting his brother's wives. When the harassment became intolerable, he obtained a transfer to Ernakulam and thereafter, he has been residing at Ernakulam. Thus, marital relationship has broken down irretrievably. Thus, the petitioner sought for a decree for divorce on the ground of cruelty. 3. The respondent resisted the claim for dissolution of marriage by filing a counter statement raising counter allegations against the petitioner. She denied all the allegations made against her in the OP. According to her, after the marriage, she was not properly maintained by the petitioner, even during the -6- Mat. Appeal. No. 1251 of 2017 time of pregnancy and the expenses for delivery was met by her. He used to assault her on demand of gold ornaments. Subsequently, the gold ornaments were appropriated by him. There was insistent demand from the petitioner to bring a sum of Rs.5 lakhs from the respondent's house as patrimony. Several occasions he assaulted the respondent. On compulsion her salary account had to be converted to a joint account and the petitioner obtained the ATM Card and siphoned huge amounts there from. The petitioner is still maintaining illicit relationship with his sister-in-laws by name Moly and Razna. With the aforesaid contention, she prays for dismissal of the Original Petition. 4. On the rival pleading, both parties adduce evidence, which consists of the oral testimony of PW1 and documentary evidence of Ext.A1 from the part of -7- Mat. Appeal. No. 1251 of 2017 the petitioner and the oral testimony as RW1 and Exts.B1 to B4 on the part of the defendant. 5. After evaluating the aforesaid evidences, the Family Court allowed the OP granting a decree dissolving the marriage between the petitioner and the respondent. The legality and correctness of the reasoning whereby the Court below granted a decree for dissolution of marriage are assailed in this appeal. 6. Heard the learned counsel for the appellant and Sri.Aneesh K., the party in person. 7. The sum and substance of the arguments advanced by the learned counsel for the appellant is that the appellant had failed to prove the allegations of cruelty alleged against the respondent and there is no reliable evidence to grant a decree for divorce on the ground of cruelty. 8. According to the learned counsel, the -8- Mat. Appeal. No. 1251 of 2017 impugned decree has been passed mainly on the ground that the respondent has not succeeded to prove the allegations of extra marital relationship on the petitioner with the wives of his brothers. But the Family Court failed to evaluate the pleadings and evidence in its correct perspective. On the other hand, the respondent appearing in person advanced arguments to justify the findings of the Court below, whereby, the decree for divorce stands granted. According to the petitioner, in the counter statement as well as in the chief affidavit, the respondent has reiterated the the alleged extra marital relationship of the petitioner with the wives of his brothers. But the respondent failed to prove those allegations, at least with the standard of preponderance of probability. The unfounded scandalous allegations of unchastity, which adversely affected the reputation of the -9- Mat. Appeal. No. 1251 of 2017 petitioner, would amount to cruelty to him. In support of the said argument, the respondent invites our attention to the decisions cited in the impugned judgment. 9. In view of the rival pleadings and the findings thereon, by the Family Court, the point to be considered in this appeal is whether the Family Court is justified in granting a decree, dissolving the marriage between the petitioner and the respondent, on the ground of mental cruelty, at the instance of the respondent, to the petitioner. The marital relationship and the paternity of the children are admitted. The marriage was solemnized in the year 2008 and they have lived together as husband and wife till July, 2014. In the meantime, two children are borne out of that wedlock. Now the respondent is residing separately with the children at Kozhikode. Thus, the -10- Mat. Appeal. No. 1251 of 2017 marital relationship stands broken down. 10. Going by the impugned judgment, it could be seen that the Court below granted the decree mainly on the ground that the respondent alleged unfounded and baseless extra marital relationship of the petitioner with the wives of his own brothers and the respondent stood by the said allegation of extra marital relationship in her counter statement and in the proof affidavit. But, she failed to withstand with the said allegation in cross examination and the cross examination of the respondent would prove that those allegations are made without any basis, with an intend to cause mental hardship to the petitioner. We have meticulously gone through the pleadings and evidence on record. Going by the pleadings, we find that the petitioner has specifically pleaded that the respondent has alleged extra marital relationship of -11- Mat. Appeal. No. 1251 of 2017 the petitioner with his brother's wives and the same amounted to cruelty. Going by the counter statement as well as the proof affidavit filed by the respondent, we find that the respondent had reiterated those allegation of extra marital relationship in the counter statement and in the proof affidavit. In the proof affidavit, she alleged that immediately after the marriage, she came to know that the petitioner behaved indecently to the wife of his brother Dineshan. Thereafter, she made another allegation that the petitioner had illicit relationship with the wife of his another brother by name Razna. But it is pertinent to note that those allegations are vague and do not disclose the manner in which he behaved to the wives of his brothers, Dineshan and Ratheesan. 11. Going by the cross examination, we find that when questions were put, asking the particulars of -12- Mat. Appeal. No. 1251 of 2017 those extra marital relationship of the petitioner to his brother's wives, she could not withstand the cross examination by giving particulars of his indecent behaviour to them. On an analyses of all the answers in cross examination, we found that even though the respondent has specifically pleaded extra marital relationship of the petitioner with the wives of his brothers, Molly and Razna, he could not establish the bona fides of those allegations with the standard of preponderance of probability. Though such serious allegations affecting the reputation of the petitioner has been raised, no attempt was made to prove the bona fides of those allegations by adducing any evidence; more particularly, no attempt was made to examine those persons, who might have had knowledge about those extra marital relationship. It is to be borne in mind that false allegations of extra -13- Mat. Appeal. No. 1251 of 2017 marital relationship with the members of the same family, living under the same roof, would amount to cruelty unless the bona fides of those allegations are proved in evidence. In the above context, the decision of this Court in _Latha Kunjamma v. Anil Kumar_ **[2008 (2) KLT 545]** assumes the significance and relevance. In this decision, this Court held as follows: “10. False, defamatory, scandalous, malicious, baseless and unproved allegations made against the spouse in the written statement may amount to cruelty. The irresponsible insinuation and allegations which were made during the course of litigation against the wife cannot be brushed aside. Such a view was taken by the Rajasthan High Court in the decision reported in Parihar v. Parihar (AIR 1978 Raj.140). Pushparani v. Krishnan Lal (AIR 1982 Del.107) is a case where the wife had in her written statement alleged that an illicit relationship existed between her husband and one Smt.Bindra Devi. When the husband appeared in the witness box the said statement was directly suggested to -14- Mat. Appeal. No. 1251 of 2017 him in the cross-examination. This imputation was not a ground pleaded in the petition by the husband. It was held by the Delhi High Court that the allegations of adultery made by the wife in the written statement and at the time of crossexamination could be taken into consideration for granting a decree of divorce on the ground of cruelty. The learned Judge had followed the principle that cruelty subsequent to the institution of the petition could be taken into account to prevent multiplicity of proceedings.” 12. In this decision, this Court also held that, levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship constitute grave assault on the character, honour, reputation, status as well as the health of the wife, and that would amount to cruelty to her. We are of the opinion that the very same proposition can be applied in respect of irresponsible insinuation of unchastity by the wife against the husband. -15- Mat. Appeal. No. 1251 of 2017 13. Further we find that when those allegations are made connecting any other member of the same family, the gravity of mental injury is on higher side and such allegations would persist so long as they lived together. When applying the aforesaid proposition to the instance case, we find that the next day after the marriage, the respondent raised allegation of extra marial relationship with his brother's wives and that is the main reason for the breakdown of the marriage. But she miserably failed to prove bona fides of those allegations. That apart, we find that from 2014 onwards, the parties are residing separately, though several attempts were made to reconcile the disputes by conciliation, all those attempts were ended in vain, which follows that their marital relationship stands irreparably broken down. -16- Mat. Appeal. No. 1251 of 2017 14. In the above view, the Family Court is justified in granting a decree on the ground of cruelty. The appeal stands dismissed. **Sd/-** **K.HARILAL** **JUDGE** **Sd/-** **T.V.ANILKUMAR JUDGE** das