Sunitha Claris K.S. v. Babu Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR.JUSTICE P.D. RAJAN** **MONDAY, THE 25TH DAY OF NOVEMBER 2013/4TH AGRAHAYANA, 1935** **Mat.Appeal.No. 67 of 2005 ( ) ------------------------------** **AGAINST THE ORDER/JUDGMENT IN OP 59/2002 of FAMILY COURT, KOZHIKODE DATED 06-08-2004** ## **APPELLANT/PETITIONER:** **------------------------------------** **SUNITHA CLARIS K.S., D/O.A.X.SYMON, AGED 35 YEARS, JOSE VILLA KOMATTE PARAMBA, VENGERI P.O., KOZHIKODE.** **BY ADVS.SRI.ABDURAHIMAN VAYALIL PEEDIKAYIL SRI.C.M.KAMMAPPU SRI.C.P.MOHAMMED NIAS SRI.ABDURAHIMAN VAYALIL PEEDIKAYIL** ## **RESPONDENT(S):** **------------------------** **BABU JOSEPH, AGED 42 YEARS, S/O. JOSE JOSEPH, THEKKUMOOTTIL HOUSE, CHALLARKOVIL, KUMULI.** **BY ADVS. SRI.PHILIP T.VARGHESE SRI.N.SASI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SB** ANTONY DOMINIC & P.D RAJAN, JJ. --------------------------------------------M.A NO. 67/2005 ------------------------Dated, this the 25[th] day of November, 2013. ## J U D G M E N T ## ANTONY DOMNIC, J This appeal arises out of the Judgment of the Family Court Kozhikode in O.P. No. 59/2002. The said O.P was filed by the appellant, the wife, seeking divorce against the respondent, her husband and the ground that was urged was cruelty as provided in Section 10(i)(X) of the Indian Divorce Act, 1869. Before the Family Court, appellant and three other witnesses were examined, as PWs. 1 to 4 and she also produced Exts. A1 to A7. The respondent and another person were examined as RWs. 1 and 2. Exts. X1 and X2 were also marked in evidence. The Family Court, by its impugned judgment, dismissed the O.P and it is challenging this judgment, the appeal is filed. 2. We heard the counsel for the appellant and also the learned counsel appearing for the respondent. 3. The learned Counsel for the appellant contended that the findings of the Family Court are M.A NO. 67/2005 : 2 : erroneous and illegal. According to him, the Family Court rejected the evidence of PW 2 as interested and for the reason that she has not witnessed any of the incidents. It is stated that the same yardstick should have been applied to be evidence adduced by RW2 also. It was also contended that the objection filed by the respondent itself narrates various incidents in the matrimonial life justifying a decree of divorce. The counsel also contended that reckless allegations were made by the respondent in the objection filed by him and also in his evidence. He also stated that similar allegations were reiterated during the cross-examination of the appellant as PW1 and also in the evidence of PW2. Further, according to the counsel, the marriage is irretrievably broken down and that both the spouses are residing separately since 2001. On the other hand, the learned counsel appearing for the respondent, contended that there was no evidence justifying the dissolution of the marital tie and according to him, the marriage should be salvaged atleast for the sake of the three grown up children. M.A NO. 67/2005 : 3 : 4. We have considered the submissions made. The question as to whether the respondent has treated the appellant with cruelty as alleged and whether she is entitled to get a decree for dissolution of marriage was considered by the Family Court in the light of the evidence that was adduced before it. It was the case of the appellant that she was brutally assaulted on various occasions during the 13 years of their cohabitation. However, no medical or such other evidence including the evidence of any eye witness, was produced by the appellant to substantiate her allegations. It is also to be stated that despite the allegation of continued assaults specific plea raised by her was only in relation to two incidents in the marital life. Further, the Family Court also has taken note of the absence of independent evidence. Even the children, who are witnesses to such cruelties are also not examined. The allegation that the respondent used to neglect the affairs of the family also was not proved by the appellant in any manner. Further her case that on account of the cruelties suffered, she attempted to commit suicide on one occasion also was not proved. M.A NO. 67/2005 : 4 : Although it was her case that it was the neighbours, who saved her life such neighbours were also not examined. While the evidence of PW1 was thus unsubstantiated and unreliable, the evidence of the respondent and his witness would show that he was a caring husband for the appellant and an affectionate father for the children. This was substantiated by RW2 also. In the light of such evidence, we cannot find fault with the Family Court for its conclusion that the evidence adduced by the appellant was unreliable. 5. Insofar as the contention of the learned counsel for the appellant that if the evidence of PW2 was rejected, on the same yardstick, the evidence of RW2 also should have been rejected is concerned, we are unable to accept this contention. PW2 is none other than the sister of the appellant herself. First of all, she had no direct knowledge of anything that transpired in the marital life of the appellant and the respondent. She has also not witnessed any incident that were alleged by the appellant. As against this, RW2 is a neighbour , and his evidence would show that he had personal knowledge M.A NO. 67/2005 : 5 : about the manner in which the respondent was conducting on the domestic side. Therefore, qualitatively the evidence of RW2 was much superior to that of PW2. In such circumstances, we cannot say that the Family Court should have rejected the evidence of RW2. 6. The other contention raised by the learned counsel for the appellant was that the respondent had raised reckless allegations against her and that such unsubstantiated allegations itself amounted to mental cruelty justifying a decree of divorce. It is true that if such unsubstantiated allegations are made, that would amount to mental cruelty and it has been so held in the Apex Court Judgment in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate [AIR (2003) SC 2462] and in Srinivas Rao K. v. D.A Deepa [2013 (1) KHC 647 (SC)]. However, the question is whether those principles laid down by the Apex Court have any application to the facts of this case. Insofar as this case is concerned, in paragraphs 2 and 8 of the objection filed by the respondent, he has made an allegation that the appellant wanted him to be out of her life so that she could live with M.A NO. 67/2005 : 6 : a person of her liking. During the cross-examination of PW1, she was asked about one Sadanandan and she denied any intimacy with him. However, it is to be remembered that the allegation made in paragraphs 2 and 8 of the objection itself is vague and the allegation itself was that the appellant wanted the respondent to be out of her life. In the proof affidavit filed by the appellant before the Family Court although she has chosen to deny some of the allegations made by the respondent in his objection, she has not chosen to deny that allegation made in paragraphs 2 and 8. Secondly, no specific allegation of infidelity has been raised by the respondent either in the pleadings or in the cross-examination of PWs. 1 and 2. In such a situation, we are unable to conclude that the principles laid down by the Apex Court in the Judgments relied on by the learned counsel for the appellant can be applied to the facts of this case and on that basis pass a decree of divorce. Therefore, this contention also cannot be accepted. 7. The last contention raised by the learned counsel was that the marital relationship has been M.A NO. 67/2005 : 7 : irretrievably broken down and that the parties are residing separately from 2001. First of all, irretrievable break down of a marital life is no ground for divorce under the Indian Divorce Act. Secondly, even before us, the husband, who is also present in Court, expressed his desire for the restoration of marital life, if not for him, atleast for the sake of the children. In such a case, the wife, who is even now insisting on separation, cannot take advantage of the separate residence of the parties and contend that the marital life has broken down. We are not satisfied that the Family Court committed any illegality in dismissing the O.P filed by the appellant. Appeal therefore fails and is dismissed. ANTONY DOMINIC, JUDGE P.D RAJAN, JUDGE SB