SUVEESH v RENUKA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934 Mat.Appeal.No. 155 of 2006 ( ) -----------------------------OP.131/2002 of FAMILY COURT, MANAJERI. APPELLANT/PETITIONER: --------------------------------- SUVEESH, AGED 40, S/O.SUKUMARAN, "SUVIJAYA", KALPERI HILLS, KADALUNDI P.O. KOZHIKODE TALUK, KADALUNDI AMSOM DESOM. BY ADV. SRI.BINDU SREEKUMAR RESPONDENT/RESPONDENT: -------------- RENUKA, AGED 34, D/O.VIJAYAN, W/O.SUVEESH, "LAKSHMI NIVAS" ANANDA NAGAR, P.O. KALLEKULANGARA, PALAKKAD. R1 BY ADV. SRI.BOBY MATHEW R1 BY ADV. SMT.MARIAM A.REHMAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.** -----------------------------------------------------------Mat. Appeal No. 155 of 2006 ------------------------------------------------------------Dated this the 18[th] day of September, 2012 ## **JUDGMENT** ## Babu Mathew P. Joseph, J. This appeal is directed against the order dated 7.3.2003 on O.P.No.131 of 2002 of the Family Court, Manjeri. By the impugned order, the learned Judge of the Family Court dismissed a petition filed by the appellant/husband for a decree of divorce against the respondent/wife. Aggrieved by the same, the husband has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 3. The petition for divorce was filed under Section 13(1)(ia) and (ib) of the Hindu Marriage Act. 4. The facts necessary for the disposal of this appeal are briefly stated as follows: The marriage of the appellant and the respondent was solemnized on 16.5.1994. A female Mat.Appeal No.155/2006] 2 child was born to them on 28.3.1995. The child is with the respondent. The appellant was working at Siruvani Project in Palakkad District at the time of their marriage. The marital relationship between the appellant and the respondent was smoothly going on till the respondent got a temporary appointment as teacher through the employment exchange. Thereafter, she had shifted her residence to her own house. But, after obtaining that job, the attitude of the respondent towards the appellant had changed. She began to treat him as a nuisance and behaved in a bad way. While so, the respondent became pregnant. She found time to nurse her own parents without nursing her own husband. She also treated the parents of the appellant as strangers. The respondent did not care to return to the matrimonial home even after 90 days of the birth of the child. While so, the appellant got a transfer to Irrigation Department at Kozhikode on 7.8.1995 and commenced residing in a rented house at Chakkorathukulam. Whenever he went to the house of the respondent, he was not allowed to see his child by the respondent and her parents. The appellant filed O.P.No.44 of 1996 in the Family Court, Kozhikode for restitution of conjugal rights. Thereafter, the respondent decided to live with the appellant and, accordingly, they lived Mat.Appeal No.155/2006] 3 together with the parents of the appellant in a rented house. But, soon the respondent began to show her bad behaviour. She refused to wash or iron the clothes of the appellant. She even refused to cook food for him and hence he was compelled to depend on hotel food on several days. She never consulted him on matters concerning the family. She had treated him as a stranger and was not willing to share the bed with him. She used to sleep along with the child in a separate room. When the child attained the age of 4, she was admitted to school. Whenever her school remained closed, the respondent used to shift her residence along with the child to her own house. While so, the respondent left for her house with the child on 14.4.2000, a day of Vishu and, thereafter, did not return. The appellant went to her house for bringing her back. But, without showing any affection towards him, he was humiliated and sent back. The respondent got appointment as a teacher at Karuvarakundu U.P. School in June, 2000. Then the education of the child was also shifted to that school by the respondent. Even though the appellant attempted to solve the problem through the Family Court Counselling Centre, Kozhikode, the respondent made it clear that she was not willing to continue her marital relationship with the appellant. The respondent had failed to perform her Mat.Appeal No.155/2006] 4 marital obligations. She had made it clear that she did not want to continue the marital relationship. Thus, she has been behaving cruelly towards the appellant. There was no marital relationship between the appellant and the respondent for more than 3 years. Thus, she had deserted the appellant from 14.2.1998. Therefore, the appellant sought for dissolution of marriage on the ground of cruelty and desertion. 5. The respondent has filed a detailed statement disputing and denying the allegations and averments made by the appellant. The respondent contended that the petition for divorce was not maintainable. She also stated that she is ever willing to live with the appellant and fulfil her duties as a wife and prayed for dismissing the petition. 6. The evidence in this case consists of the oral testimony of PW1 and RWs.1 and 2. Exts.B1 to B6 were also marked. PW1 is the appellant and RW1 is the respondent. 7. The appellant sought for dissolution of marriage on the ground of desertion and cruelty. The court below, after considering the evidence on record as well as examining the petition for divorce itself, came to the conclusion that the allegation of the appellant that there was mental separation from February, 1998 between the parties is certainly not true. The Mat.Appeal No.155/2006] 5 facts proved by the evidence is against the case of the appellant. Even according to the appellant, the physical separation between the parties was in April, 2000. Therefore, the court below found that the period of two years contemplated under Section 13(1)(ib) of the Hindu Marriage Act as a ground for dissolution of marriage did not exist in this case. Hence, the petitioner is not entitled to an order for dissolution of marriage on the ground of desertion. 8. As regards the ground of cruelty raised by the appellant, the court below observed as follows: The respondent does not have a case that it is not her duty to cook, wash and iron for the appellant. But, the nature of the appellant as a man is revealed from the attitude of the appellant. He expects the respondent to be a machine to wash, iron and cook for him and not a person with her own individuality, a person who has separate identity and a person who has got any existence as an individual. The appellant seems to be expecting that the respondent should have closed the door or her own desires and should have acceded to all the whims and fancies of the appellant, the man who married her. 9. The appellant had admitted during cross-examination that in the first week of June, 2000, while the respondent and the Mat.Appeal No.155/2006] 6 child were not in the rented house, he had taken away the articles in the house. The probability is that the respondent resided in the house along with the appellant until sometime before this. So, the case of the appellant that the respondent had cruelly discarded him and left the matrimonial house for ever and by this way also treated him cruelly could not be true. The evidence let in by the appellant is not sufficient to prove that the respondent has been behaving cruelly towards him enabling to make an order for dissolution of marriage. 10. There might be petty quarrels between the appellant and the respondent. There might be slight difference of opinion between the appellant and the respondent. But, there is nothing to show that the respondent ever treated the appellant cruelly. Even if the entire case of the appellant, as advanced by him in his petition, is accepted which will not enable the appellant to get an order for dissolution of marriage on the ground of cruelty. The appellant seems to expect the respondent always to be at the giving end and he be at the receiving end. Perhaps, this is the reason for the rift between the appellant and the respondent. The respondent can never be described as a cruel wife who did not care for the husband, who ignored him and who had her own ways and selfish modes of satisfying her ego. Accordingly, the Mat.Appeal No.155/2006] 7 court below found that the appellant has failed to establish the case set up by him. 11. We have heard the detailed arguments advanced by the learned counsel on both the sides. We have been taken through the evidence. We have carefully gone through the impugned judgment. We have reappraised the evidence. We find no reason to interfere with the findings entered by the court below. 12. As provided under Section 13(1)(ib) of the Hindu Marriage Act, the marriage solemnized can be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Here, the petition for divorce has been presented by the appellant on 7.6.2001. Therefore, in the light of the right finding which entered by the court below that the spouses were living together even in June, 2000, the petition filed by the appellant for dissolution of marriage on the ground of desertion is not maintainable and liable to be dismissed for want of statutory period of not less than two years prescribed. Mat.Appeal No.155/2006] 8 13. The Supreme Court held in **Savitri Pande** y v. **Prem Chandra Pandey** [2002(1) KLT SN 57] that the ordinary wear and tear of the family life or the sensitivity with respect to the conduct of spouse does not amount to cruelty. It was also held by the Supreme Court in **Kameswara Rao** v. **Jabilli** [2002(1) KLT SN 68] that austerity of temper, rudeness of language, occasional outburst of anger may not amount to cruelty, though it may amount to misconduct. Going by the allegations of the appellant and the evidence available in this case, no cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act can be found to be proved against the respondent. We find no merit in this appeal. We, accordingly, dismiss the same. In the circumstances, the parties are directed to suffer their respective costs. Sd/- **PIUS C. KURIAKOSE, JUDGE.** ## **Sd/-** krs. **BABU MATHEW P. JOSEPH, JUDGE.**