Sreejith Balakrishnan v. Sindhu P.V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941** **Mat.Appeal No.577 OF 2013** **AGAINST THE JUDGMENT IN OP 700/2011 DATED 12-03-2013 OF FAMILY COURT, KANNUR** ## **APPELLANT/PETITIONER :** **SREEJITH BALAKRISHNAN, S/O.BALAKRISHNAN, AGED 36 YEARS, DEVADATHAM, NADUVANAD.P.O., MATTANNUR, CHAVASSERY, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADV.SRI.C.P.PEETHAMBARAN** **RESPONDENT/RESPONDENT :** **SINDHU.P.V., D/O.SUDHARMAN, AGED 30 YEARS, PUTHIYAVALAPPIL HOUSE, P.O.KALLIASSERY, KANNUR TALUK, KANNUR DISTRICT-670 502.** **BY ADV.SRI.M.SASINDRAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2019, THE COURT ON 11-10-2019 DELIVERED THE FOLLOWING:** **Mat.Appeal No.577 OF 2013** **==> picture [22 x 8] intentionally omitted <==** ## **JUDGMENT** ## N.Anil Kumar, J. The appellant is the petitioner in O.P.No.700/2011 on the file of the Family Court, Kannur. The original petition was filed by the petitioner/husband seeking divorce under Section 13(1) (ia) of the Hindu Marriage Act, on the ground of cruelty and desertion. By the judgment dated 12.3.2013 the Family Court, Kannur dismissed the original petition holding that the appellant is not entitled to an order of dissolution of marriage as prayed for. Parties are hereinafter referred to as the petitioner and the respondent according to their status in the court below unless otherwise stated. 2. The brief facts are as hereunder:- The petitioner is the husband of the respondent and their marriage was solemnized on 23.3.2006 in accordance with the Hindu religious rites. After the marriage, the respondent was taken to her matrimonial home. The behaviour of the respondent towards the members of the family was in an unpleasant manner. The respondent disclosed **Mat.Appeal No.577 OF 2013** **==> picture [22 x 8] intentionally omitted <==** immediately after she came to the matrimonial home that she underwent treatment for mental illness at Pariyaram Medical College. The respondent started to behave cruelly towards the petitioner. Further, the petitioner had no conjugal relationship with the respondent ever since the marriage. The petitioner was constrained to return for work after 48 days of marriage. 3. The respondent filed counter contending that the petitioner had been harassing the respondent mentally and physically. When the ill-treatment became unbearable, the respondent had filed criminal complaint before the Judicial First Class Magistrate Court, Kannur against the petitioner for the offence punishable under Section 498A of IPC. The case is pending adjudication. The petitioner's sister and her husband had an eye on the ornaments of the respondent. The petitioner's father attempted to assault the respondent. However, the respondent had escaped from the assault and on 17.10.2009, the father of the respondent had taken her along with him. **Mat.Appeal No.577 OF 2013** ..4.. 4. During the course of trial, the petitioner examined PWs.1 and 2 and marked Ext.A1 document. The respondent examined RW1. 5. Certain facts are admitted. The petitioner is the husband of the respondent. The marriage between the petitioner and the respondent was solemnized on 23.3.2006. The petitioner was working abroad at the time of marriage. The petitioner returned to his place of work after 48 days of the marriage. On 17.10.2009, the respondent left her matrimonial home for good and has been residing with her father at present. 6. On a consideration of the entire evidence, the court below disbelieved the case advanced by the petitioner holding that the evidence of PWs.1 and 2 is contradictory. PW2 has stated that on 15.10.2009, he had taken the petitioner and the respondent to Parassinikadavu Temple in an autorickshaw and from the temple, they had gone to the house of the respondent as insisted by her. According to PW2, on reaching **Mat.Appeal No.577 OF 2013** **==> picture [22 x 8] intentionally omitted <==** the house, the father of the respondent had come with a chopper and threatened to cause death of the petitioner and mother of the respondent pushed the petitioner down. In view of the evidence let in by the petitioner, the court below negatived the contention that the respondent was having mental illness presumably for the reason that the petitioner failed to produce even a single document to prove his case. Hence the court below dismissed the petition for divorce. 7. In this appeal, the petitioner filed I.A.No.1/2019 seeking to accept additional document as evidence. According to the petitioner, the respondent had filed a case before the Women Cell, Kannur against the petitioner alleging falsehood. It is further stated that the respondent also filed complaint before the Judicial First Class Magistrate Court, Kannur under the Domestic Violence Act solely for the purpose of harassing the petitioner. In addition to the above, it is stated that the respondent filed a private complaint before the Judicial First Class Magistrate Court, Mattannur under Section 498A of the **Mat.Appeal No.577 OF 2013** **==> picture [22 x 8] intentionally omitted <==** IPC. He would state that the respondent lodged a frivolous complaint before the Sasthra Family Counselling Centre, Kannur with an intention to malign the petitioner and his family members. Certified copy of the complaint in C.C.No.947/2011 before the Judicial First Class Magistrate Court, Mattannur and the judgment in the said case are produced in this appeal. The petitioner also produced certified copy of the complaint filed by the respondent before the Protection Officer, Thalassery, certified copy of the order dated 26.8.2013 in M.C.No.6/2010 and true copy of the notice in Petition No.333/P1/W Cell/09 issued by the Circle Inspector of Police, Women Cell, Kannur, etc. as Annexures A1 to A6 in the application to accept additional documents. 8. On going through Annexures A1 to A6, it is clear that most of the above documents are subsequent to the trial in O.P.No.700/2011 before the Family Court, Kannur and thus could not be produced before the court below. It is further evident that most of the vital documents were not in the ## **Mat.Appeal No.577 OF 2013** **==> picture [22 x 8] intentionally omitted <==** custody of the petitioner at the time of trial and thus the petitioner could not be faulted for not producing the said documents before the trial court. Learned counsel for the petitioner would contend that all the complaints were dismissed finding that the allegations contained therein are false and frivolous. 9. Relying on **Srinivas Rao.K.** v. **D.A.Deepa [2013 (1) KHC 647 (SC)]** and **Leelamma.N.P.** v. **M.A.Moni [2017** **(3) KHC 340 (DB)]** the learned counsel for the petitioner contended 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 or continue the marital tie, it will amount to mental cruelty. It is further contended that filing false complaints against the husband and his family members for the offence under Section 498A of IPC and other provisions of the Act will amount to mental cruelty. 10. Going by the facts of the case, there is nothing on record to show that the respondent was having mental illness **Mat.Appeal No.577 OF 2013** **==> picture [22 x 8] intentionally omitted <==** on the date of marriage or the petitioner was treated with cruelty by the respondent as alleged by the petitioner. However, the documents produced in appeal are relevant circumstances to prove the factum of cruelty pleaded by the petitioner. It is not proper on the part of the appellate court to admit additional documents in appeal without giving an opportunity to test the veracity of the documents in evidence. 11. In the case at hand the parties have been residing separately since 17.10.2009. The marriage tie has been broken down irretrievably. One of the parties has opted to file a petition for divorce. When the marriage is dead already, no purpose would be served by trying to persuade the husband and wife to a relationship, which in fact ceased to have exist. In view of the dictum made out in **Samar Ghosh** v. **Jaya Ghosh [(2007)4 SCC 511 (SC)]** the court should make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. Under the circumstances, we are of the view that one more **Mat.Appeal No.577 OF 2013** **==> picture [22 x 8] intentionally omitted <==** opportunity shall be given to the parties to adduce evidence in the case leaving liberty to the court below to take appropriate decision in accordance with law. I.A.No.1/2019 stands allowed. In the result, the appeal is allowed in part. The court below is directed to dispose of the original petition afresh after giving an opportunity to the parties to adduce further evidence in accordance with law within a period of six months from the date of receipt of a copy of this judgment. We make it clear that the court below is at liberty to take independent decision untrammelled by the observations contained in this judgment. Sd/- **A.M.SHAFFIQUE, JUDGE** Sd/- **N.ANIL KUMAR, JUDGE** skj **Mat.Appeal No.577 OF 2013** ..10.. ## APPENDIX ## ' - APPELLANT S ANNEXURES: ANNEXURE A1 :- COPY OF COMPLAINT FILED BY THE RESPONDENT IN C.C.No.947/2011 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR. ANNEXURE A2 :- COPY OF DEPOSITION OF RESPONDENT HEREIN IN C.C.No.947/2011 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR. ANNEXURE A3 :- COPY OF JUDGMENT DTD.18.1.2018 IN C.C.No.947/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR. ANNEXURE A4 :- COPY OF THE COMPLAINT FILED BY THE RESPONDENT IN M.C.No.6/2010 BEFORE THE PROTECTION OFFICER, THALASSERY AND FORWARDED TO THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANNUR. ANNEXURE A5 :- COPY OF THE ORDER DTD.26.8.2013 IN M.C.No.6/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANNUR. ANNEXURE A6 :- COPY OF THE NOTICE IN PETITION No.333/P1/W Cell/09 ISSUED BY THE CIRCLE INSPECTOR OF POLICE, WOMEN CELL, KANNUR.