Sreejith Sreedharan v. Sherry Sudheer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 31ST DAY OF MAY 2017/10TH JYAISHTA, 1939** **Mat.Appeal.No. 4 of 2016 ()** **---------------------------OP.1729/2014 of FAMILY COURT, TRIVANDRUM** **APPELLANT(S):** **------------** *** SREEJITH SREEDHARAN, S/O SREEDHARAN K. AGRED 35 YEARS, CHEKKALAYIL VEEDU, PANDAKASSALA, CHIRAYINKEEZHU P.O., THIRUVANANTHAPURAM DISTRICT. REP. BY HIS NEXT FRIEND AND POWER OF ATTORNEY HOLDER D.R. VISWANATHAN, S/O DHAMODHARAN, AGED 46, RADHA MANDIRAM, KARIPOOR P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT. (CORRECTED)** - **SREEJITH SREEDHARAN, S/O SREEDHARAN K. AGRED 36 YEARS, CHEKKALAYIL VEEDU, PANDAKASSALA, CHIRAYINKEEZHU P.O., THIRUVANANTHAPURAM DISTRICT.** - **THE CAUSE TITLE OF THE APPEAL MEMORANDUM IS CORRECTED AS SHOWN ABOVE AS PER ORDER DATED 07.01.2016 IN IA.7/2016 IN MAT. APPEAL.4/2016.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT(S):** **--------------** **SHERRY SUDHEER, AGED 31 YEAR, D/O SUSHEER, HEMALAYAM, KADAKKAVUR P.O., KADAKKAVUR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM-695306.** **BY ADVS. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.MAHESH ANANDAKUTTAN SMT.S.SOUMYA ISSAC** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10.04.2017, THE COURT ON 31.05.2017 DELIVERED THE FOLLOWING:** **EL** ## **A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.** =========================== Mat.Appeal No. 4 of 2016 ================== Dated this, the 31[st] day of May, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed against the judgment dated 31/7/2015 in OP No.1729/2014. The respondent in the original petition is the appellant. The original petition is filed by the respondent herein/wife inter alia contending that the marriage between the parties was solemnized on 26/12/2011 in terms with the Hindu custom and religious rites. They resided together only for 25 days and thereafter the respondent went abroad in connection with his employment. Petitioner alleges that immediately after marriage, she was subjected to physical as well as mental torture by the respondent and his near relatives by demanding more dowry. It is alleged that the respondent could not find a job in UK and as per his request, substantial amounts were sent by her parents to meet his expenses. Further, she remitted `50,000/- to M/s. Chirayinkil Mat.Appeal No.4/16 -:2:- Service Co-operative Society towards the loan availed by the respondent. It is alleged that respondent had deserted her w.e.f. 21/1/2012. Hence, she sought for dissolution of marriage. 2. In the written statement filed by the respondent/appellant, he denied the allegation of cruelty. According to him, he did not find a job as expected in UK and the petitioner had started to abuse him. She was also under the impression that she could accompany him to UK and find a proper job. He had filed an application for restitution of conjugal rights which is pending consideration. He denied the fact that he had deserted her. The above case was jointly tried with another case OP No.1728/2014. Common evidence was adduced. Petitioner was examined as PW1 and respondent as CPW1. Petitioner relied upon Exts.A1 to A8 documents and respondent relied upon Exts.R1 to R6. The Family Court after considering the matter in detail directed dissolution of the marriage and also directed return of gold ornaments as well as the amount. Appeal is filed only against the judgment in OP No.1729/14 relating to decree for dissolution of marriage. Mat.Appeal No.4/16 -:3:- 3. Learned counsel for the respondent/appellant submits that the only case alleged was desertion which is not proved in the case. Appellant had gone abroad for employment which itself does not amount to desertion. The Family Court also found so. However, the Family Court proceeded to consider the case as to whether there is any cruelty and without any material on record, it was found that unnecessary allegations were made against the petitioner which itself amounts to mental cruelty and therefore she is eligible for a decree under Section 13(1)(ia) of the Hindu Marriage Act. 4. On the other hand, learned counsel appearing for the petitioner/respondent contended that a clear case of cruelty is made out. The very fact that several allegations are raised against the petitioner itself would prove the fact of cruelty. Further, demanding dowry and substantial amounts during the marital relationship itself can create a case of mental cruelty and therefore, there is justification on the part of the Family Court to have come to such a finding. 5. The only question to be considered in this appeal is Mat.Appeal No.4/16 -:4:- whether this Court can sustain a decree for divorce on the ground of cruelty. In the original petition, the pleadings would show that they got married on 26/12/2011 and they resided at the matrimonial home for 25 days and on the 26[th] day morning, the respondent left to United Kingdom. It is contended that during preliminary discussion, respondent and his relatives made the petitioner and her parents to believe that there is a bright prospectus of getting placement in any one of the leading establishments in the United Kingdom in which event the respondent will be getting a family visa and the couple can reside at UK. The petitioner also will get a decent job and they can settle down at UK. It is contended in para 11 that the attitude of the respondent was indifferent, strange and tainted with physical as well as mental cruelty. It is alleged that he had demonstrated disinterest towards her not only by words but also in every phase of life which caused extreme physical mental pain and suffering. It is alleged that he was showing a constructive indifferent attitude in each and every day to day life and was even reluctant to talk to her freely. Further it is contended that all along the respondent Mat.Appeal No.4/16 -:5:- and his sister were pressuring the petitioner to bring more money from her parents or to dispose of her ornaments and to discharge the loan liability outstanding with the matrimonial home. It is further contended that after leaving India, he asked for more money and more than `6 lakhs was sent to UK. Thereafter, the respondent's attitude totally changed and he informed the petitioner about his disinterest to continue in UK and wanted to migrate to Qatar for which he was demanding more amounts. He was also accusing her of his failure in life. Substantial amounts had been paid to him. It is alleged that the attempt of the respondent was to marry the petitioner and misappropriate her assets and thereafter to desert her. It is further contended that the respondent had not paid any single pie for the petitioner's maintenance but had compelled her to make payments for his loan liabilities and all along he was demonstrating dual personality towards the petitioner. It is alleged that respondent was only interested in her wealth and he had not even cared about her welfare and the matrimonial relationship stands emotionally dead which amounts to intentional desertion with an Mat.Appeal No.4/16 -:6:- intention to put an end to the cohabitation for ever. It is contended that the petitioner is compelled to live separate in view of the aforesaid constructive methods of cruelty, desertion and absence of provision for maintenance. It is also stated that they had filed a joint application for divorce as OP No.27/2014, but the respondent intentionally absented himself on the appointed day and his lawyer was also absent. The case was taken up on the next working day, on which date also, none was present and accordingly the petition was dismissed and the petitioner did not prosecute the matter. In the objection, he had denied the aforesaid facts. Petitioner was examined as PW1. She has given evidence in chief examination in terms with the pleadings. 6. Apparently, this is a case where there is no evidence other than the evidence of PW1 and CPW1. From the evidence adduced in the case, the question is whether it is possible for this Court to confirm the finding of the Family Court regarding the allegation of cruelty. One of the grounds urged is that the respondent used to humiliate the petitioner in front of others and she was told that he was expecting a much beautiful girl and who Mat.Appeal No.4/16 -:7:- was much more wealthier than her. Further allegation is made that there had been constant demands for more dowry. The Family Court observed that during evidence CPW1 had admitted that he had filed a petition before the Family Court, Attingal seeking a decree for restitution of conjugal rights wherein he had stated that he was treated with cruelty by the petitioner. It is further observed that CPW1 had further admitted that the petitioner herein never behaved in a cruel manner towards him. He also stated that the allegation made in OP No.1728/2014 that he was subjected to torture by his wife is incorrect. The Family Court therefore placing reliance upon the judgment in _**Latha Kunjamma S v. K.Anil Kumar**_ (2008 (2) KHC 580) held that making baseless allegations and accusations against the spouse in another proceeding will also amount to mental cruelty. It is further found that substantial amounts were sent by the petitioner's parents to the respondent while he was abroad through UAE Exchange which by itself would establish illegal demands being made. It was also found that when examined before Court, CPW1 had stated that it was on account of the Mat.Appeal No.4/16 -:8:- threat and intimidation that he had signed the application for divorce on mutual consent and therefore he did not subsequently proceed with the same. When cross examined, CPW1 had specifically admitted that he had never threatened in order to obtain his consent for filing an application for divorce on mutual consent. 7. It is apparent from the materials available on record that after the marriage, he had not come back. The couple resided together only for 25 days and according to the petitioner, from the very start of their marriage, she and her family members were misled by misrepresentation and further his intention was to appropriate substantial amounts and never intended to give a proper married life to the petitioner. He demanded huge amounts which were sent by the petitioner's parents and intention was only for appropriation of her wealth. All this taken together has put her into a situation of mental cruelty. 8. Having regard to the nature of evidence available in the case, it is rather clear that the whole intention of the appellant was to marry her and thereafter appropriate her wealth. They Mat.Appeal No.4/16 -:9:- lived together only for 25 days, during which time also, according to PW1, she was mentally tortured by humiliating her in front of relatives and friends. According to her, he was not interested in the marriage other than for her wealth. That was the reason why he has demanding huge amounts while he was abroad which was sent by her parents. Further, he was making allegations against her alleging that she was behaving in a cruel manner. This allegations he admits was false. Such allegations had been made by him in another original petition filed by him for restitution of conjugal rights. He also denied having received substantial amounts from the parents of the petitioner. Though he denied the said fact, ultimately he agreed to have received such amounts. All these facts and circumstances would show that the case put up by the respondent cannot be believed. 9. It is settled law that in matrimonial matters, direct evidence may not be available. Court will have to consider the case set up by either parties and find out as to which version is believable and more probable. In the case on hand, we are of the view that the case set up by the petitioner is more probable. Mat.Appeal No.4/16 -:10:- There is enough material to arrive at a finding of mental cruelty. A person who had left his residence after 25 days of marriage has not taken any steps to take care of his wife whereas he had been living at the expense of the wife's family. Taking into account the overall facts and circumstances and the fact that PW1 could be believed, we are of the view that there is justification on the part of the Family Court to have granted a decree for divorce. Under such circumstances, we do not think that any material is available to take a different view. Mat.Appeal is therefore dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.RAMAKRISHNAN, JUDGE** Rp //TRUE COPY// PS TO JUDGE