Suseel Kumar K.K. @ Suseelan v. Sudharmma

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL &** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 3RD DAY OF APRIL 2018 / 13TH CHAITHRA, 1940** **Mat.Appeal.No. 433 of 2008** **AGAINST THE JUDGMENT DATED 31.03.2008 IN OP(HMA) 178/2007 of FAMILY COURT, KOTTAYAM** **APPELLANT/APPELLANT:--------------------** **SUSEEL KUMAR K.K. @ SUSEELAN, AGED 35 YEARS, S/O.SUKUMARAN, RESIDING AT KANJIRATHUMMOOTTIL HOUSE, PATHAMUTTA, KOTTAYAM DISTRICT.** **BY ADVS.SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN** **RESPONDENT/RESPONDENT:-** **-----------------------** **SUDHARMMA, D/O.THANKAPPAN, AGED 33 YEARS, RESIDING AT THOPPIL HOUSE, CHANNANIKKADU P.O., KOTTAYAM DISTRICT.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.Harilal & A.M.Babu, JJ.** ==================================== Mat.Appeal No.433/2008 ==================================== Dated this the 3[rd] day of April, 2018. ## **JUDGMENT** ## **K.Harilal, J.** 1.The appellant is the husband of the respondent. He is the petitioner in O.P.(HMA) 178/2007 of the Family Court, Kottayam. The above original petition was filed under Section 13(1)(ia) of the Hindu Marriage Act, seeking a decree for dissolution of marriage between the appellant and the respondent. After considering the objection raised by the respondent and evidence on record, the Family Court dismissed the said original petition on a finding that the appellant miserably failed to prove the Mat.Appeal 433/2008 ## -:2:- allegations of cruelty levelled against the respondent. This appeal is filed assailing the finding, whereby the Family Court dismissed the said original petition. The parties are referred to as in the original petition. 2.Brief facts of the case can be narrated as follows: The marriage between the petitioner and the respondent was solemnized on 2.7.2000 and two children were born out of the said wedlock. According to the petitioner, the respondent is a quarrelsome lady and she used to allege that the petitioner is having illicit relationship with several other ladies. She created problem forcing the petitioner to stop living in the parental house and he was compelled to purchase three cents of land and he constructed a house therein. She never Mat.Appeal 433/2008 -:3:- shown any love or affection towards him. She quarrelled with the petitioner, making false allegations of illicit relationship with the neighbours, Rajani and Radhika. She has gone to the house of Radhika and created a noisy scene there in front of her elder daughter. Though the petitioner informed the problems of the respondent to her parents and other family members, they have not interfered. He told them to take her to a Psychiatrist and they took her to a Phychiatrist, Medical College Hospital, Kottayam. Though the Doctor advised to take medicines for a long time, the respondent was not willing for the same. Again she made false allegation that the petitioner is having illicit relationship with one Aswathy of neighbourhood. Though the office bearers of Mat.Appeal 433/2008 -:4:- SNDP yogam made an attempt to resolve the problems between the petitioner and the respondent, that also ended in failure. Consequently, the respondent filed a criminal case against the petitioner under Section 498-A of the Indian Penal Code and also for maintenance allowance from the petitioner. Thus, the matrimonial relationship between the petitioner and the respondent has irretrievably broken and there is no chance for a reunion. With the aforesaid averments the petitioner prayed for a decree, granting dissolution of marriage. 3.The respondent filed objection denying the allegations of cruelty levelled against her. According to the respondent, the petitioner has treated the respondent with cruelty and he has Mat.Appeal 433/2008 -:5:- no love or affection towards her. The statement that the respondent made false allegation of illicit relationship of the petitioner is absolutely false. She never raised any such allegation connecting the petitioner with any lady. She had not undergone any treatment for any kind of psychiatric problem. Petitioner physically tortured the respondent on several occasions and the attempt of the petitioner is to avoid the respondent. When the physical torture became intolerable, she was compelled to file a complaint before the police and the police, after investigation, registered a crime under Section 498-A of IPC. Thereafter, the petitioner did not pay any maintenance allowance to the respondent and she filed Mat.Appeal 433/2008 ## -:6:- M.C.68/2006, seeking maintenance allowance from the petitioner. She is ready and willing to live with the petitioner. Hence, the prayer for divorce is not allowable, according to the respondent. - 4.On the aforesaid pleadings, the petitioner was examined as PW1 and Ext.A1 was marked. On the other side, the respondent was examined as RW1 and Exts.B1 to B3 were marked. On appraisal of the aforesaid evidence, the Family Court found that the petitioner failed to prove the allegation of cruelty alleged against the respondent and on that finding, dismissed the original petition. - 5.Heard the learned counsel appearing for the petitioner. - 6.The point to be considered is, is the Family Mat.Appeal 433/2008 -:7:- Court justified in finding that the petitioner failed to prove the allegations of cruelty alleged against the respondent. - 7.The specific case of the petitioner is that the respondent is quarrelsome in nature and she used to allege that the petitioner is having illicit relationship with several other ladies residing in the neighbourhood. Once she went to the house of Radhika and created a scene there, alleging illicit relationship of the said Radhika with the petitioner. Further it is alleged that he told the parents of the respondent to take the respondent to a psychiatrist and they took her to a psychiatrist, Medical College Hospital, Kottayam. Though the Doctor advised her to take medicine for a long time, the respondent Mat.Appeal 433/2008 -:8:- was not willing for the same. 8.Going by the pleadings, we find that the main allegation is that the respondent used to pick up quarrel alleging petitioner's illicit relationship with other ladies in the neighbourhood. The only available evidence to substantiate the said allegation is the oral evidence of the petitioner alone. Further it is contended that the respondent is suffering from psychiatric problem and she had undergone treatment for the same in Medical College Hospital, Kottayam. No evidence has been adduced to substantiate the said contention also. Though it is also contended that the office bearers of SNDP yogam had also interfered with the dispute between the petitioner and the respondent, none of them Mat.Appeal 433/2008 -:9:- were examined in evidence. On the other hand, the respondent was examined as RW1 and she has emphatically denied the allegation that she used to pick up quarrel, alleging the petitioner's illicit relationship with other ladies in the neighbourhood. So also she denied the allegation that she had undergone treatment for psychiatric problem in the Medical College Hospital, Kottayam and the Doctor advised her to take medicine for a long time. It is her case that the petitioner used to assault her physically and mentally and when the physical torture became intolerable, she filed a complaint before the police and the police registered a crime against the petitioner under Section 498-A of IPC. So also he has refused to pay maintenance allowance to Mat.Appeal 433/2008 ## -:10:- the respondent and children. Hence, she filed M.C.No.68/2006 against the petitioner, seeking maintenance allowance. - 9.It is needless to say, the burden of proof is on the petitioner. But, in the instant case, the only available evidence is oath against oath only. No independent witness was examined, to prove the allegations levelled against the respondent. Had she been treated in Medical College Hospital, Kottayam for psychiatric illness, certainly, documentary evidence could have been produced for the same. 10. Learned counsel for the petitioner submits that the petitioner was deprived of an opportunity, to prove the mental illness of the respondent while dismissing Annexure-A application. Annexure-A application was filed, seeking a Mat.Appeal 433/2008 ## -:11:- direction to the respondent to undergo psychiatric examination at the psychiatric department, Mental Health Department, Medical College Hospital, Kottayam, to ascertain the mental condition of the respondent. AnnexureA2 is the order, whereby the said application was dismissed. From Annexures A1 and A2, it is discernible that the said application was filed at the fag end of the trial and Annexure-A2 was dismissed along with the impugned judgment. 11. It is needless to say, the said application was highly belated, particularly when the same was filed, after the examination of PW1 and RW1. We do not find fault with the court below for dismissing Annexure-A1 and Annexure-A2. Had it been a genuine need to prove the allegations levelled against the respondent, certainly, the Mat.Appeal 433/2008 -:12:- petitioner could have taken steps much earlier. The inordinate delay in filing the said application would prove the lack of _bona fides_ in the application also. According to the decision in _**G.V.N.Kameswara Rao v. G.Jabilli**_ - **[AIR 2002 SC 576]** , cruelty can be said to be an act committed with the intention to cause suffering to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger may not amount to cruelty, though it may amount to misconduct. 12. In the instant case, the only allegation, which - may constitute cruelty, if proved, is that the respondent used to pick up quarrel alleging illicit relationship between the petitioner and - some other ladies in the neighbourhood. But, - he miserably failed to prove the said Mat.Appeal 433/2008 -:13:- allegation. The only available evidence is oath against oath. No reliance can be placed on the evidence of PW1 alone for granting a decree for dissolution of marriage. In the above view, we find that the court below is justified in dismissing the original petition, on a finding that the petitioner failed to prove the allegation of cruelty alleged against the respondent in the original petition. This appeal is, hence, dismissed. Sd/- **K.Harilal, Judge** Sd/- **A.M.Babu, Judge** sl. //True copy// P.S. To Judge