Stanly Hedger v. Florence

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 31ST DAY OF OCTOBER 2012/9TH KARTHIKA 1934** **Mat.Appeal.No. 764 of 2010 ( ) -----------------------------OP.142/2006 of FAMILY COURT,TRIVANDRUM** **APPELLANT(S)/APPELLANT/RESPONDETN: ---------------------------------** **STANLY HEDGER, S/O.JOSEPH, RESIDING AT MAGLIN NIVAS, VADAYAR PURAYIDAM KOTTAPPURAM, VIZHINJAM, THIRUVANANTHAPURAM DISTRICT** **BY ADV. SRI.D.KISHORE** **RESPONDENT(S)/PETITIONER: -------------------------** **FLORENCE , AGED 27 YEARS, D/O.GEORGE, RESIDING AT FLORENCE HOUSE GODAVARMA ROAD, VIZHINJAM, VIZHINJAM VILLAGE 695 001. BY ADVS. SRI.K.JAYAKUMAR (SR.) SRI.M.SREEKUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PN** **“C.R.”** ## **PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ** **-------------------------------------------MAT APPEAL. No. 764 of 2010 --------------------------------------------Dated this the 31[st] day of October, 2012** ## **JUDGMENT** ## C.K. Abdul Rehim, J Husband in a matrimonial dispute is in appeal against decree of dissolution of marriage ordered under Section 10 (1)(x) of the Divorce Act, 1869. The respondent wife filed a petition for dissolution of the marriage, inter alia pleading cruelty from the side of the husband. The court below found that sufficient evidence has been adduced to substantiate the ground of cruelty. 2. The judgment is assailed mainly on the ground that there is total lack of pleadings with respect to the allegation of cruelty. It is contended that the court below went highly erred in relying on averments contained in the proof affidavit of the respondent, which contained versions which MAT APPEAL. No. 764 of 2010 -2- are not pleaded in the petition for divorce. Hence, the findings rendered based on evidence adduced in the form of proof affidavit, need be eschewed, is the contention. 3. Heard counsel on both sides. We perused the petition filed before the court below. Paragraph (7) and (8) of the petition read as follows: “(7) The petitioner is very much fond of children and she expressed her desire to become a mother. But the respondent was totally against this and the petitioner was constrained to take precautions from conceiving.” “(8) The respondent is having a peculiar character and he used to pick up quarrels for silly and trivial things. He often tried to commit suicide. Once such an attempt was made by him and he was rescued by the petitioner and her sisters.” The court below found that, with respect to pleadings of cruelty alleged in paragraph 8 of the petition, there is total denial from the side of the appellant husband. Therefore it is the duty of the wife to substantiate the same. She had sworn into an affidavit that, when the respondent was working abroad he was compelling his relatives for permitting him to come back, threatening that otherwise he MAT APPEAL. No. 764 of 2010 -3- will commit suicide. Further it is brought out in evidence that he had returned by giving up the employment abroad. It is specifically noticed by the court below that, there was no cross-examination on those aspects. Therefore, accepting the version put forth by the respondent, court below found that there exist sufficient reasons to order dissolution of marriage on the ground contemplated under Section 10(1)(x). 4. Learned counsel for the appellant pointed out that there is only a vague allegation of an attempt to commit suicide. No specific date or instance is mentioned. Lack of pleadings and evidence on any specific instances will go deep into the veracity of the allegations, is the contention. Further, it is contended that such vague allegations, without pointing out any specific instances, is insufficient to arrive at any conclusion regarding the factum of cruelty. 5. On a re-appraisal of the evidence on record, we notice that averments in the proof affidavit is perfectly in MAT APPEAL. No. 764 of 2010 -4- tune with the pleadings contained in paragraph 8 of the petition. The court below also appreciated other circumstances and situations to hold that mental cruelty was inflicted upon the respondent. Even if a strict evaluation is made based on the pleadings alone, we cannot hold that there is any insufficiency of pleadings to substantiate the act of cruelty on the part of the appellant. 6. Another crucial aspect worth noticing is about pleadings contained in paragraph 7 of the petition. There is a categoric averment that the wife was very much fond of children and she expressed her desire to become a mother. But the appellant had not co-operated and he was totally against the above wish. It is also added that the respondent was constrained to take precautions from conceiving. 7. Sri.K.Jayakumar, learned Senior counsel appearing for the respondent, pointed out that, despite the specific pleadings as mentioned above, the court below took a totally erroneous opinion in holding that, those allegations MAT APPEAL. No. 764 of 2010 -5- even if proved cannot be considered as a ground of cruelty in order to attract Section 10(1)(x). According to him, any restrainment or prevention or compulsion from the side of one of the spouses against conceiving need to be construed as an element of cruelty. Since there are specific pleadings and evidence adduced to the effect that the appellant was against having a child out of the wed lock and that the wife was constrained to take precautions from conceiving, the court below ought to have found that there established cruelty from the side of the appellant, entitling the respondent to seek divorce under Section 10(1)(x), is the contention. 8. Per contra, Sri. D. Kishore, learned counsel for the appellant contended that, there was total denial on the part of the appellant with respect to the allegations in this regard, and the respondent was not successful in proving those aspects through any convincing evidence. But in the cross examination of PW1 it is revealed that, she was always MAT APPEAL. No. 764 of 2010 -6- desired to have children and it is the desire of any lady to become a mother and that there was no attempt from her side to restrain from conceiving, as alleged by the appellant. 9. An important legal question arising for decision is as to whether a restrainment or a refusal to allow conception will amount to cruelty, constituting ingredients of section 10 (1) (x) of the Divorce Act 1869. Findings of the court below is that, the allegations that the appellant was totally against the desire of the respondent to become a mother and that the respondent was constrained to take precautions from conceiving, even if proved, cannot be considered as cruelty in order to attract the ground under Section 10(1)(x). Learned senior counsel K.Jayakumar had drawn our attention to various English decisions. In **Bravery vs. Bravery (1954 (3) All ER 59)** , the court of appeal found that a sterilisation operation underwent by the husband without consent of the wife and thereby causing her to great anguish and also leading to deterioration of the marital life, MAT APPEAL. No. 764 of 2010 -7- will be sufficient to prove the charge of cruelty under the Matrimonial Causes Act 1950. In **Forbes vs. Forbes (1955 (2) All ER 311)** it is held that a persistent refusal to allow conception of child from the side of the wife will amount to the guilt of cruelty. In the said case the husband was very fond of children. But the wife insisted on use of contraceptives. The husband attempted to persuade her to agree to have a family. But the wife objected and avoided discussion on the subject, as far as possible. Subsequently the wife definitely refused to have children saying that she wants to be free and to have her liberty. The court held that, the wife's conduct in insisting on the use of contraceptives and refusing the husband a chance to have a child, had caused injury to his mental health and she had been guilty of cruelty. On the basis of which the husband is entitled to a decree, is the findings. In **Knott vs. Knott (1955 (2) All ER 305)** it is held that a refusal by the husband to allow his wife to have a child and the practice of MAT APPEAL. No. 764 of 2010 -8- withholding full sexual intercourse (by practicing of 'coitus interruptus') amounts to cruelty. It is held that, for a man deliberately and without good reasons permanently denying a wife, who has a normal maternal instinct, without providing any fair opportunity of having even a single child, is itself cruelty. In yet another decision in **Ward vs. Ward (1958 (2) All ER 217)** it is held that the wife is guilty of cruelty in law when she refused to allow the husband to have sexual intercourse unless he uses a contraceptive, against the anxiety of the husband to have children. It will definitely cause injury to his health and it will amount to a ground for divorce on the wife's cruelty, is the findings. 10. We are of the considered opinion that, cardinal objectives and concepts in our social system with respect to marriage and the institution of family is to have a solemn union of two persons, the man and the woman, to built up a family consisting of offspring. If one of the spouses makes MAT APPEAL. No. 764 of 2010 -9- any compulsion or restrainment from being conceived against the cherished wish of giving birth to child, is against the normal instincts of life. It will cause diminision to the desire of spouses in marital life. Definitely the person who is obstructed, restrained or compelled will develop an apprehension in mind that it will be mentally harmful or injurious to live under the matrimonial bond. This will definitely amount to mental cruelty, which constitute ingredients under section 10 (1)(x) of the Divorce Act. In the case at hand such cruelty has been pleaded and proved. As observed above, we have no hesitation to hold that the respondent was justified in seeking divorce on that ground and she is entitled for dissolution of marriage under section 10(1)(x). 11. Eventhough Sri.D.Kishore had emphasised his arguments on the lack of pleadings referring to Order VI Rule 4 of the Code of Civil Procedure, with respect to the allegations contained in para 8 of the petition, in view of the MAT APPEAL. No. 764 of 2010 -10- above discussions we are satisfied that there exists requisite pleadings and evidence to prove the ground of cruelty. Therefore we do not find any substantial materials to interfere with the findings arrived by the court below. In the result the impugned judgment is upheld and the appeal is hereby dismissed. Sd/- **PIUS C. KURIAKOSE, JUDGE** Sd/- **C.K. ABDUL REHIM, JUDGE** /True copy/ P. A. to Judge Pn