V. Raghupathi v. R. Triveni

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 3RD DAY OF JULY 2013/12TH ASHADHA, 1935** **Mat.Appeal.No. 113 of 2008 ( )** **------------------------------AGAINST THE JUDGMENT IN OP 6/2007 of FAMILY COURT, KASARAGOD DATED 31-10-2007** **APPELLANT(S)/APPELLANT:** **-------------------------------------------V.RAGHUPATHI, AGED 39, S/O.VENKATRAMANI, R/AT HOUSE NO.55, MANIAM KALIAPPA STREET SAIBABA COLONY, COIMBATORE, K.K.PUDUR TAMIL NADU STATE.** **BY ADVS.SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN SRI.AJU MATHEW** ## **RESPONDENT(S)/RESPONDENT:** **--------------------------------------------------** **R.TRIVENI, AGED 34, W/O.RAGHUPATHI, ADVOCATE BY PROFESSION, S.V.T.ROAD KASARAGOD KASABA VILLAGE, KASARAGOD, TALUK.** **R,R BY ADV. SRI.K.SHRIHARI RAO R,R BY ADV. SMT.N.SHOBHA R, BY ADV. SMT.K.V.RESHMI[CONCILIATOR] R,[MEDIATOR] BY ADV. SMT.CHINCY GOPAKUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03-07-2013, ALONG WITH MAT. APPEAL NO.161/2008 & CON.CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _acd_ ## **ANTONY DOMINIC & P.D. RAJAN, JJ.** ------------------------------------------- Mat.Nos.113/2008,161/2008, 173/2008, 553/2009 & 235 of2010 ---------------------------------------------Dated this the 3[rd] day of July, 2013 ## **JUDGMENT** ## **ANTONY DOMINIC,J.** These appeals arise from the common judgment of the Family Court, Kasaragod in O.P.Nos.6/2007 and 3/2005, order in I.A.No.808/2007 in O.P.No.3/2005, judgment in O.P.Nos.22/2007 and 288/2006 respectively. 2. Briefly stated facts, which led to these litigations are as follows: 3. Regupathi (hereinafter referred to as husband) married Triveni (hereinafter referred to as the wife) at Guruvauyoor on 17-2-2000. It is the common case of the parties that they got separated on 31.3.2000 and that on 12.11.2000 a girl child by name 'Aishwarya' was born to the couple. Subsequently, on 11.7.2001, the wife filed O.P.No.23/2001 before the Sub Court, Kasaragod under Section 10(1) of the Hindu Marriage Act seeking judicial separation on the ground of Mat. Appeal No.113/08 & Con.cases 2 cruelty. 4. On 21.8.2001, the husband filed O.P. (HM) No.474/2001 before the Family Court, Comibatore under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. By its order in T.O.P.No.38/2002 filed by the wife, the Apex Court ordered that the proceedings in the Coimbatore Court be transferred and tried at Sub Court, Kasaragod, where O.P.No.23/2001 was then pending. Accordingly, the O.P. filed by the husband was transferred to Kasaragod and was re-numbered as O.P.No.30/2002. 5. Subsequently, on the establishment of the Family Court at Kasaragod, both O.P.Nos.23/2001 and 30/2002 were transferred and the Family Court numbered these two O.Ps as O.P.No.3/2005 and 5/2005 respectively. Later, on 3.1.2007, the husband withdrew O.P.No.5/2005 and accordingly, that O.P. was dismissed. On that day itself, he filed O.P.No.6/2007 seeking divorce on the ground of cruelty and desertion. Thereafter, the parties moved I.A.No.172/2007 and joint trial of both the O.P.s were ordered treating O.P.No.3/2005 as the leading case. 6. On behalf of the wife, Pws 1to 3 were examined and Mat. Appeal No.113/08 & Con.cases 3 Exts.A1 and A32 were marked. On behalf of the husband, he was examined as RW1 and RW2 was also examined. Based on the evidence, the Family Court rendered its common judgment dated 31.10.2007, dismissing both the O.Ps. It is aggrieved by these judgments, the husband has filed M.A.No.113/2008 and the wife has filed M.A.No.161/2008. 7. It appears that in O.P.No.3/2005, the wife filed I.A.No.808/2007 seeking maintenance, pending the O.P. That application was dismissed by the Family Court by order dated 31.10.2007. It is challenging that order, M.A.No.173/2008 is filed. The wife had also filed O.P.No.22/2007 seeking maintenance for herself and the child at the rate of Rs.12,000/- and Rs.5,000/- per month. In that O.P., the Family Court rendered judgment dated 28.4.2009 declining the claim of the wife and ordering payment of maintenance to the child at the rate of Rs.3,000/- with effect from 22.1.2007, the date of the petition. It is aggrieved by this judgment, the wife has filed M.A.No.553/2009. 8. The husband filed O.P.No.288/2006 praying for custody of the child. By its judgment dated 23.12.2009, the Family Court declined the prayer of the husband, but ordered Mat. Appeal No.113/08 & Con.cases 4 that the child shall spend half of the vacation with the father. Other incidental directions were also issued. It is aggrieved by this judgment, the wife has filed M.A.No.235/2010. 9. We heard the learned counsel for the parties and shall deal with the appeals in the following order. 10. As we have already stated, O.P.No.3/2005 filed by the wife and O.P.No.6/2007 filed by the husband were jointly tried and were disposed by a common judgment rendered on 31.10.2007. It is against that common judgment, Mat.Appeal Nos.113 and 161/2008 have been filed. We shall therefore, deal with this matter first. 11. The contention raised by the learned counsel for the husband was mainly that the reckless allegations made by the wife in her pleadings before the Family Court and also in the proof affidavit filed by her itself would amount to cruelty and therefore, the husband is entitled to divorce on that ground. On the other hand, on behalf of the wife, it was urged that what is described in the pleadings and the proof affidavit, were factual narration of the torture that she suffered in the matrimonial home and therefore, are not reckless allegations to be relied on as a ground of mental cruelty. Mat. Appeal No.113/08 & Con.cases 5 12. We have considered this contention of both sides. The question whether there is any merit in this contention should be answered in the light of the pleading before the Family Court. We also conscious of the fact that if the ground of cruelty urged by the husband is accepted, necessarily, the prayer for judicial separation sought by the wife in O.P.No.3/2005 will have to be declined. 13. Insofar as the pleadings before the Family Court are concerned, in the counter statement in O.P.No.6/2007, various allegations have been raised by the wife against the husband and some of which being important in the context of the contention raised, contained in paragraphs 9, 13, and 14 read thus: “9. ......So, after hearing the Respondent's appeal, fervent prayer for food, to her husband, the two remedies suggested by the petitioner were: the first one was - “We will have sex, that sexual act will make you forget the hunger” and the second remedy suggested by the petitioner was - “Tie your saree tightly like a belt around your stomach, and by doing so, you will not feel hungry”. xxx xxx xxx xxx ........Thus after drinking water to the full capacity of empty stomach, in the nights when the Respondent wanted to lie over the bed, by curling on it, for sleeping with fond hope that atleast she would get some just food or tiffin, the next day, the petitioner used to indulge in his brutal habit of jumping or pouncing upon the Respondent like a beast and suggest her the “to remedies” as stated above and indulge in forcible, unnatural, abnormal and repulsive Mat. Appeal No.113/08 & Con.cases 6 sexual acts causing the Respondent both the physical pain and mental torture. The petitioner being more fatter and more stronger in his body physique and body's weight than the Respondent, a slim woman, when compared to the petitioner, who was always very active and terrifically excited sexually, performed pervert type of sexual acts, and compelled the Respondent too to do some of those repulsive and abnormal sexual acts, those sexual acts which were of his own style and liking, upon the Respondent, who became weak due to starvation type of living conditions to which she was subjected to by the petitioner and his mother. Thus, while such forcible, brutal, abnormal and pervert type of sexual acts upon the Respondent, a woman, who became a destitute in her husband's house, by taking advantage of her miserable and pitiable life in his house satisfied the petitioner's sexual hunger, that forcible sexual, repulsive and nauseating and perverted sexual acts by the petitioner, made the Respondent further weak and made her suffer from more hunger burning in her stomach and also caused her great mental pain and torture. 13. .......After the completion of the business work at Chithoor, the petitioner returned to Madras and joined the Respondent. When the Respondent and the petitioner were in the said house of Chithra, at Madras, the Respondent came to know about one more ugly facet of the personality of the petitioner by way of his obnoxious, abnormal and perverted sexual behaviour. In this case, it was upon the child Meera, then about 3 year old daughter of Chitra, the younger sister of the Petitioner while the Respondent was sitting on the floor of the drawing room and when the petitioner and baby Meera were sitting together close to each other on a sofa just at a distance of about 3 feet away from the Respondent. When the petitioner came to know that the respondent per chance noticed that the petitioner was indulging in a certain sexual misdeed, upon that 3 year old girl, the petitioner abstained from continuing that obnoxious sexual act any further. This incident had happened in the morning when Chithra was having her bath. 14............. In the hotel room, during those 3 nights stay, the petitioner used to stare at the Respondent, who was resting on a bed but still not gone into sleep, with evil/wicked/crime-oriented and offensive eyes. This unnatural and unaffectionate stare of the petitioner made the Respondent suspicious of some Mat. Appeal No.113/08 & Con.cases 7 mis-deeds of criminal nature to be done upon the Respondent when she is in sleep and thus, the Respondent had to pass those three nightmarish nights, sleeplessly by watching the TV programmes in the hotel room.” In the affidavit filed by the wife also, she has re-iterated the allegations contained in the counter statement. 14. Before the Family Court, she could not prove these allegations raised by her and this was mainly for the reason that apart from her interested testimony, there was no other acceptable evidence adduced by her. In such a situation, we accept the conclusion of the Family Court that the wife miserably failed in establishing the allegations of cruelty made by her. Once the conclusion of the Family Court regarding failure of the wife to establish her case is upheld, having regard to the nature the nature of the allegations levelled by her, we have to accept the plea of the counsel for the husband that these allegations were reckless ones irresponsibly made by her. 15. Then, the surviving question is whether the reckless allegations made in the pleadings would amount to mental cruelty to be urged as a ground for divorce in a proceedings before the Family Court. This issue has been considered by Mat. Appeal No.113/08 & Con.cases 8 this Court as also the Apex Court in various cases. Suffice it to note that in the decision in _**Srinivas Rao K.**_ v. _**D.A. Deepa**_ [2013 (1) KHC 647 (SC), the Apex Court has held in paragraphs 10 to 14 and 22 thus: “ 10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term 'cruelty'. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental. 11. In _Samar Ghosh_ this Court set out illustrative cases where inference of 'mental cruelty' can be drawn. This list is obviously not exhaustive because each case presents it's own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh. We have reproduced only the instances which are relevant to the present case. '101.No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party Mat. Appeal No.113/08 & Con.cases 9 cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) xxx xxx xxx (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture,discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) xxx xxx xxx (viii) xxx xxx xxx (ix) xxx xxx xxx (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) xxx xxx xxx (xii) xxx xxx xxx (xiii) xxx xxx xxx (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” It is pertinent to note that in this case the husband and wife had lived separately for more than sixteen and a half years. This fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. Similar view was taken in Naveen Kohli. 12. In v. Bhagat v. D. Bhagat in the divorce petition filed by the husband the wife filed written statement stating that the husband was Mat. Appeal No.113/08 & Con.cases 10 suffering from mental hallucination, that his was a morbid mind for which he needs expert psychiatric treatment and that he was suffering from 'paranoid disorder'. In cross-examination her counsel put several questions to the husband suggesting that several members of his family including his grandfather were lunatics. This Court held that these assertions cannot but constitute mental cruelty of such a nature that the husband cannot be asked to live with the wife thereafter. Such pleadings and questions it was held, are bound to cause immense mental pain and anguish to the husband. In Vijayakumar Bhate disgusting accusations of unchastity and indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous to live with her husband. In Naveen Kohli the respondent-wife got an advertisement issued in a national newspaper that her husband was her employee. She got another news item issued cautioning his business associates to avoid dealing with him. This was treated as causing mental cruelty to the husband. 13. In Naveen Kohli the wife had filed several complaints and cases against the husband. This Court viewed her conduct as a conduct causing mental cruelty and observed that the finding of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable. 14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the Mat. Appeal No.113/08 & Con.cases 11 business prospect or the job of the spouse and filing repeated false complaints and cases int eh Court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse. Xxx xxx xxx xxx xxx xxx 22. We need to now see the effect of the above events. In our opinion, the first instance of mental cruelty is seen in the scurrilous, vulgar and defamatory statement made by the respondent-wife in her complaint dated 04/10/1999 addressed to the Superintendent of Police, Women Protection Cell. The statement that the mother of the appellanthusband asked her to sleep with his father is bound to anger him. It is his case that this humiliation of his parents caused great anguish to him. He and his family were traumatized by the false and indecent statement made in the complaint. His grievance appears to us to be justified. This complaint is a part of the record. It is a part of the pleadings. That this statement is false is evident form the evidence of the mother of the respondent-wife, which we have already quoted. This statement cannot be explained away by stating that it was made because the respondent-wife was anxious to go back to the appellant-husband. This is not the way to win the husband back. It is well settled that such statements cause mental cruelty. By sending this complaint the respondent-wife has caused mental cruelty to the appellanthusband.” The other judgments that were referred to us during the course of arguments are _**Rajan K.M.**_ v. _**Rahtikumari**_ [2012 (2) KHC 231], _**R. Balasubramanian**_ v. _**Smt. Vijayalakshmi Balasubramanian**_ [AIR 1999 SC 3070], _**V. Bhagat**_ v. _**D. Bhagat (Mrs.)**_ [1994 (1) SCC 337], _**A**_ v. _**B**_ . [2000 (2) KLJ 734] Mat. Appeal No.113/08 & Con.cases 12 and _**P.K. Vijayappa Nair**_ v. _**Ammini Amma**_ [AIR 1997 Kerala 170]. 16. Principles laid down by this Court as also the Apex Court and particularly the judgment in _**Srinivas Rao**_ 's case (supra), shows that reckless allegations made in the pleadings by one party would amount to mental cruelty to the other and can be urged as a ground for seeking divorce. If that be so, necessarily we must uphold the claim of the husband for divorce sought for by him in O.P.No.6/2007. 17. Accordingly, we set aside the judgment of the Family Court, Kasaragod dismissing O.P.No.6/2007 and there would be decree of divorce as prayed for in O.P.No.6/2007. 18. M.A.No.113/2008 still stand allowed as above. 19. Now that M.A.No.113/2008 has been allowed and divorce is granted, there is no question of considering the petition of the wife for judicial separation and consequently judgment of the Family Court dismissing O.P.No.3/2005 will stand confirmed and M.A.No.161/2008 is accordingly dismissed. 20. Insofar as M.A.No.173/2008 arising out of the order in I.A.No.808/2007 in O.P.No.3/2005 is concerned, the prayer Mat. Appeal No.113/08 & Con.cases 13 was for maintenance to the wife and the child pending the O.P. That I.A. was filed on 4.10.2007. The O.P. itself was dismissed by judgment dated 31.10.2007. It was for that reason that I.A. was also dismissed by order dated 31.10.2007. If pendente lite, the wife and child wanted maintenance to be paid, they should have approached the Family Court in time and therefore, once the O.P. itself was dismissed on 31.10.2007, the Family Court could not have ordered payment as sought for by them. 21. In such circumstances, we do not see any illegality in the order passed by the Family Court, dismissing I.A.No.808/2007 in O.P.No.3/2005. Therefore, M.A.No.173/2008 still stand dismissed. 22. M.A.No.553/2009 arises out of the judgment in O.P.No.22/2007. In that O.P., the wife claimed maintenance at the rate of Rs.12,000/- for herself and Rs.5,000/- for the child. The Family Court, by judgment dated 28.4.2009, declined the claim of the wife and ordered payment of maintenance of the child at the rate of Rs.3,000/- with effect from 22.1.2007. This claim of the wife has been considered in paragraph 21 of the judgment under appeal and the finding of Mat. Appeal No.113/08 & Con.cases 14 the Family Court is that the wife was residing separately from the husband without any justifiable reason. 23. In our judgment in M.A.No.113/2008, we have granted divorce to the husband on the ground of mental cruelty. In such circumstances, there is absolutely no justification to saddle the liability of paying maintenance to the wife on the husband. This is all the more so for the reason that she is a practising Advocate, earning substantial income. 24. Now coming to the claim of the child, the Family Court has ordered payment of maintenance at the rate of Rs.3,000/-. We are informed that the child is now aged 13 years and is attending schools. Necessarily, the requirements of the child must have increased. Her father is a successful business man and he does not dispute his liability in this behalf. In such circumstances, there is no reason why the child should not be provided, what she wanted. 25. Therefore, we direct that the maintenance ordered by the Family Court to the child will stand increased to Rs.5,000/- with effect from 1.7.2013. 26. The learned counsel for the wife complained that since June 2010 the husband has defaulted payment of Mat. Appeal No.113/08 & Con.cases 15 maintenance. The learned counsel for the husband undertook to pay arrears, if any, that is due. 27. We record the undertaking and direct that arrears, if any, shall be paid by the husband before 1.8.2013 together with the current maintenance due. 28. M.A.No.553/2009 will stand disposed of as above. 29. What remains is M.A.No.235/2010 arising out of the judgment in O.P.No.288/2006. That O.P. was filed by the husband seeking custody of the child and by judgment dated 23.12.2009, the Family Court permitted the father to enjoy the company of the child during school vacations. The directions issued read as follows: “1. Petitioner shall have the custody of the ward Ishwarya for one-half periods of her school vacations. 2. Respondent shall hand over the ward to the petitioner in compliance of his entitlement as above on his request. 3. If the petitioner desires to have access to the ward on any other day, he may apply to the court after giving notice to the respondent and in such case, he can have ward for the day and shall return her to the respondent's custody by evening. 4. When seeking the custody of the ward, petitioner shall see to it that her educational requirements are met. 5. Petitioner shall provide maintenance to the ward as directed by the court by the decree dated 28.4.2009 in O.P.22/2007. 6. If the petitioner desires to take the ward to any other place other than his native place Coimbatore, he shall seek prior permission of the court after informing the respondent also. Mat. Appeal No.113/08 & Con.cases 16 7. The above arrangement is purely temporary and is liable to be alerted, modified or cancelled in part or in the whole by the court suo motu or on the application of either of the parties to the proceedings if the circumstances brought to notice of the court necessitate such alteration, modification or cancellation.” The child is a female child and is now aged 13 years. Considering the age of the child and her requirements, we do not think that it will be wise for us to upset the arrangement made by the Family Court. However, we clarify that, in the event either of the parties desire to have any modification to the existing arrangement, it would be open to them to approach the Family court itself for appropriate variations in the order. Subject to that liberty, the judgment of the Family Court in O.P.No.288/2006 still stand confirmed. 30. Mat.Appeal No.235/2010 is disposed of accordingly. All the appeals are disposed of as above and the parties will suffer their respective costs. ## **ANTONY DOMINIC, JUDGE** ## **P.D. RAJAN, JUDGE.** acd