Venkappa Shetty v. Lalitha

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL** **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 21ST DAY OF MAY 2018 / 31ST VAISAKHA, 1940** **AGAINST THE JUDGMENT DATED 13-03-2008 IN OP 160/2007 of FAMILY COURT, KASARAGOD** **APPELLANT/PETITIONER:-** **-----------------------** **VENKAPPA SHETTY, AGED 48 YEARS S/O.THYAMPANNA SHETTY, KODANGE HOUSE, KADIBAIL VILLAGE, P.O.UPPALA, KASARAGOD TALUK AND DISTRICT** **BY ADV.SRI.M.RAMESH CHANDER** **RESPONDENT/RESPONDENT:-** **------------------------** **SMT. LALITHA, AGED 38 YEARS, D/O.GUDDAPPA ALVA, 'RAJ SADANA', KUNJATHUR, P.O.KUNJATHUAR, KASARAGOD TALUK.** **R1 BY ADVS. SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SRI.T.SETHUMADHAVAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DST** ## **K. HARILAL & A.M. BABU,JJ.** **= = = = = = = = = = = = = = = = = Mat. Appeal No.286 of 2008** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 21[st] day of May, 2018_ ## **J U D G M E N T** ## **K. Harilal, J.** The appellant is the husband of the respondent. He is the petitioner in Original Petition No.160 of 2007 of the Family Court, Kasargod. The aforesaid Original Petition was filed under Section 13(1)(ia) (ib) and (iii) of the Hindu Marriage Act, 1955(hereinafter referred to as 'the Act') against the respondent, seeking a decree dissolving the marriage between the appellant and the respondent. 2. The respondent resisted the prayer for dissolution of marriage by denying all the allegations of cruelty, desertion and mental disorder alleged against her. After considering the evidence on record, the Family Court rejected the ## **Mat. Appeal No. 286 of 2008** ## **-: 2 :-** claim for dissolution of marriage and dismissed the Original Petition on a finding that the appellant failed to prove any of the grounds raised in the Original Petition. This appeal is filed challenging the findings, whereby the Family Court rejected the claim for dissolution of marriage. The parties are referred to as in the Original Petition. 3. According to the averments in the Original Petition, the marriage between the petitioner and the respondent was on 09.10.1995 and a child was born to them in the said wedlock. They lived together as husband and wife till 1996 and thereafter they had been living separately. According to the petitioner, the marital relationship was strained from the very beginning of the marriage and it was because of the misbehaviour and uncultured attitude of the respondent towards the petitioner in public places like temple, bus ## **Mat. Appeal No. 286 of 2008** **-: 3 :-** stands etc. On 09.04.1996, at 10 pm, the respondent tried to kill the petitioner by throttling and he was saved by his sister, who came on hearing his cries. On 11.09.1996, she picked up quarrel for no reason and abused him in filthy languages. From the very beginning, he came to know that the respondent is suffering from mental disorder and he spent huge amount for the treatment of the said mental disorder; but there was no improvement. He apprehends danger to his life and property in the company of the respondent. He is not reasonably expected to live with her. The respondent left the matrimonial home on Vishu day in 1996, after picking up quarrel with him for some silly matters. Thereafter, she delivered the child on 13.12.1996. They have residing separately after the delivery of the child. Hence, he prayed for dissolution of marriage. ## **Mat. Appeal No. 286 of 2008** ## **-: 4 :-** 4. The respondent filed a counter-statement, denying all the allegations of cruelty, harassment and mental disorder alleged against her. According to her, soon after the marriage, he began to illtreat her with cruelty. The harassment and illtreatment meted out to her were intolerable; but suffered the same to continue the marital life. He took her to her parental house for Vishu in 1996 and he did not turn up thereafter. He did not bother to visit her or the child born to him, after her departure from the matrimonial home. Though, the respondent tried to have a re-union with him, he turn back. He was trying to wriggle out the marriage. According to her, she was not suffering from any kind of mental disorder and she is willing to join the petitioner, provided he takes her back. 5. On the aforesaid rival pleadings, both parties went to trial. The petitioner was examined ## **Mat. Appeal No. 286 of 2008** ## **-: 5 :-** as PW.1 and his sister was examined as PW.2. The respondent was examined as RW.1. No documentary evidence was adduced by the parties. 6. Going by the impugned judgment, it is seen that the Family Court rejected the claim for dissolution of marriage on the ground that the petitioner has miserably failed to prove any of the grounds raised to get the marriage dissolved. The petition has been filed under the grounds cruelty, desertion and mental disorder of the respondent. As regards cruelty, it is the case of the petitioner that the respondent used to misbehave in an uncultured manner in public places like temple, bus stands etc. On 09.04.1996, the respondent tried to kill the petitioner by throttling him. On 11.09.1996, she made an attempt to commit suicide by jumping into a well. According to him, from the very beginning of marriage, he came to know that the ## **Mat. Appeal No. 286 of 2008** ## **-: 6 :-** respondent has been suffering from mental disorder and he spent a huge amount for the treatment of the same. Though, he specifically alleged that the respondent misbehaved in an uncultured manner in public places, no independent witness was adduced to prove the said allegation. The only available evidence is the oral assertion of the petitioner and his sister. One specific incident alleged by the petitioner is that the respondent tried to kill him by throttling; but, except the oral assertions and the interested testimony of his own sister, no reliable evidence was adduced to prove the said contention. Another specific incident is that on 11.09.1996, the respondent picked up quarrel with him and thereafter made an attempt to commit suicide jumping into the well. But, it is pertinent to note that it is the case of the petitioner that the respondent left the matrimonial home on the day of ## **Mat. Appeal No. 286 of 2008** ## **-: 7 :-** Vishu 1996 and thereafter she has not returned to the matrimonial home. In the above context, it is interesting to note that Vishu is a day in the month of April of every year. If the respondent has withdrawn from conjugal society of the petitioner in the month of April, 1996, there was no occasion to make an attempt to commit suicide, by jumping into the well in the matrimonial home, after picking up quarrel with him on 11.09.1996. It is needless to say, the said allegation is absolutely a false story cooked up as the ground of cruelty. Even if the evidence of PWs. 1 and 2 are taken at its face value, the said conduct of the respondent is nothing more than austerity of temper or occasional outburst of anger. Though the expression cruelty or the degree of cruelty required to get divorce under cruelty is not defined in the Act. It is well settled by the decision of the Apex Court in ## **Mat. Appeal No. 286 of 2008** ## **-: 8 :-** _**G.V.N Kameswara Rao v. Jabili**_ [AIR 2002 SC 576] that cruelty can be said to be act committed with an intention to cause sufferings to the opposite party and austerity of temper, rudeness of language, occasional outburst of anger may not amount to cruelty, though it may amount to misconduct. Thus, the Family Court is justified in finding that the petitioner failed to prove any kind of cruelty to the petitioner from the part of the respondent. 7. Coming to desertion, according to the petitioner, they fell apart in the year 1996. But, the petition was filed in the year 2007 only. There is a delay of more than 10 years. It was incumbent upon the petitioner to explain the reason for inordinate delay of 10 years in filing the petition for dissolution of marriage under the ground of desertion. The absence of explanation is fatal to the petitioner's case. He doesn't have a case that ## **Mat. Appeal No. 286 of 2008** ## **-: 9 :-** he was willing to take back the respondent all these years or he made any effort for re-union. On the other hand, it has come out in evidence that the respondent delivered his child after her departure from the matrimonial home in the year 1996. In spite of the long lapse of more than 10 years, he has not made any attempt to see his child and he has not paid any amount towards the maintenance allowance of his wife and child. We are of the opinion that the said fact would amount to a reasonable excuse to live separately for the respondent and the respondent is justified in residing separately. 8. Coming to the ground of mental disorder, except the oral assertion of the petitioner, no evidence has been adduced to prove any kind of mental illness of the respondent. Though, he pleaded that he had spent huge amount for ## **Mat. Appeal No. 286 of 2008** ## **-: 10 :-** the treatment of the respondent for her mental disorder, no evidence has been adduced to substantiate the said contention. No independent evidence was adduced to prove the alleged mental disorder of the respondent. It is to be remembered that according to Section 13(1) (iii) of the Act, it was incumbent upon the petitioner to prove that the respondent has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that he cannot reasonably be expected to live with the respondent. Even if the oral evidence of the petitioner and his sister are taken at its face value, it cannot be held that the respondent was suffering from incurably of unsound mind or any mental disorder. 9. Thus, the petitioner failed to prove any of the grounds raised in the Original Petition. The ## **Mat. Appeal No. 286 of 2008** ## **-: 11 :-** Family Court has appreciated the evidence in its correct perspective. There is no reason to interfere with the findings of the Family Court . This appeal is devoid of merits and dismissed accordingly. All pending Interlocutory Applications will stand closed. Sd/- ## **K. HARILAL, JUDGE** Sd/- **A.M. BABU, JUDGE** DST //True copy// P.A. To Judge