Vijaya Lakshmi v. K.P. Radhakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938 Mat.Appeal.No. 198 of 2005 ( ) -------------------------------** **AGAINST THE ORDER IN OPHMA 208/2004 of FAMILY COURT, MANJERI DATED 02-02-2005** **APPELLANT/RESPONDENT: ---------------------** **VIJAYA LAKSHMI, AGED 46 YEARS, D/O. VELAYUDHAN, KARIMPANAKKAL VEEDU, PALLAPRAM,, PONNANI P.O., PONNANI TALUK, PIN-679577.** **BY ADVS.SRI.C.V.MANUVILSAN SRI.G.SUDHEER (THURAVOOR) SRI.R.JYOTHIKRISHNAN SRI.Y.CONSTANTINE SRI.ELDHOSE ELIAS SRI.P.K.KHALEENUDEEN** **RESPONDENT(S)/PETITIONER:: --------------------------** **K.P.RADHAKRISHNAN, AGED 55 YEARS, S/O. LATE ACHAKKUTTY, KAYILAM PALLATH HOUSE,, VATTAMKULAM AMSOM, UDINIKKARA DESOM, PONNANI TALUK, EDAPPAL P.O.** **R1 BY ADV. SRI.C.S.DIAS R1 BY ADV. SRI.AJITH MURALI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 2001-2017, THE COURT ON 08-03-2017 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & A.M.BABU, JJ.** ====================== Mat.Appeal No. 198 of 2005 ================== Dated this, the 8[th] day of March, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the respondent in OP(HMA) No.208/04 of the Family Court, Manjeri. The OP was filed seeking for divorce on the ground of cruelty and desertion. The Family Court having considered the evidence on either side allowed the petition and granted a decree for divorce on both the grounds. 2. The short facts that had arisen in the Original Petition read as under:- The parties are referred herein as shown in the original petition. Petitioner and the respondent got married as per Hindu rites and ceremonies in July, 1977. Two children were born in the said wedlock, who had attained majority as well. Petitioner contends that, after marriage, he had, with his own funds, purchased a property and constructed a house. Thereafter, he Mat.Appeal No.198/2005 -:2:- found certain changes in the respondent. He is a diabetic patient and she was not interested in giving him the necessary medicines, food etc,. She was not performing the duties as a wife and without any provocation, she was making allegations against him. Though he had discussed about the same with her, she was not interested and during June, 2000, without his consent or knowledge, she left to her house. Mediators interfered in the matter and in December, 2001, she had come back to the petitioner's house. Even within one month thereof, and without any reason, on her own, she left to her house. Though the petitioner tried his level best through mediators to take her back, for one reason or other, she continued to stay at her residence. Hence, he had issued a notice calling upon her to have restitution of their conjugal rights. On receipt of the notice, she had sent a reply stating facts which were absolutely false. It is stated that his daughter's marriage was over on 15/2/2004. However, she did not invite him for the marriage and he was not permitted to attend the marriage. It is in the said circumstances that he had filed the petition alleging cruelty and desertion. 3. Respondent filed objection denying the aforesaid facts. According to her, petitioner was having extra marital relationship Mat.Appeal No.198/2005 -:3:- with another person and he was ill-treating the respondent physically. Left with no other option, she had gone to her house. According to her, she could not remain at the matrimonial home on account of the ill-treatment. It is further contended that the house was constructed with the help of respondent's brother who had given a loan for `1 lakh. However, the construction was not complete and it was on account of the ill-treatment by the petitioner that she had left the home. 4. Before the Family Court, the petitioner relied upon the evidence of PW1 and PW2 and also relied upon Exts.A1 and A2, the lawyer notice and reply. Respondent relied upon the evidence of RW1 and RW2. PW1 is the petitioner himself and PW2 is one M.K.Balakrishnan, who is acquainted with the petitioner and respondent. Respondent was examined as RW1 and their daughter is examined as RW2. It is after appreciating the above evidence that the Family Court had come to the conclusion that the contention regarding cruelty as well as desertion stands proved. 5. Learned counsel for the respondent contended that the finding of the Court below is on the basis of wrong appreciation of the evidence adduced in the matter. Petitioner could not prove a Mat.Appeal No.198/2005 -:4:- case of cruelty or desertion. In fact, cruelty was committed by the petitioner himself as a result of which the respondent had to leave the matrimonial home in December, 2002 and the contrary findings were absolutely baseless. 6. Perusal of the judgment would show that the Family Court proceeded on the basis that the respondent was not willing for a reunion with the petitioner, which is evident from the reply notice given by the respondent, marked as A2, whereas petitioner wanted to have a reunion with the respondent. It is further observed that the respondent left the petitioner in the year 2000. There was a mediation and she had come back on the assurance that the construction of the building would be completed. Therefore, it was found that petitioner has taken necessary steps for restitution of conjugal rights. The Family Court further found that the respondent did not have any means and the petitioner retired from the post of Additional Tahsildar. He was a diabetic patient and it was only natural that he could not survive by himself. The Family Court further observed that the serious aspect involved in the matter in regard to the allegation of cruelty was the allegation made by the respondent that the petitioner was having relationship with another woman. According to him, Mat.Appeal No.198/2005 -:5:- he had been humiliated in front of others by making such statements. Family Court further finds that, in the petition, there is no specific mention regarding the allegation made by the respondent. However, the Family Court relied upon the evidence adduced by PW1 and PW2 to arrive at such a conclusion. Therefore, the Family Court virtually considered the allegation made by the respondent against the petitioner that he was having extra marital relationship as a main reason for finding cruelty on the part of the respondent. It is further found that the conduct of the respondent after separation also reveals cruelty. She made allegations that the petitioner tried to stall the proposal of marriage that came for their daughter after separation. It is therefore found that she was behaving in a cruel manner against the petitioner which itself is a ground for granting divorce. Since there is a finding that petitioner had left the matrimonial home without any sufficient reason, desertion was also found against the respondent. 7. The short question to be considered is whether the Family Court was justified in granting a decree for divorce under the present factual circumstances involved in the matter. 8. First of all, the question is whether there is any Mat.Appeal No.198/2005 -:6:- pleading warranting a finding regarding cruelty and desertion. As already stated, in the petition, the contention urged is that petitioner being a diabetic patient, the respondent was not taking good care of him and she was very quarrelsome and she left the matrimonial home in June 2000. Thereafter, on mediation, she had come back and left during January 2002 which prompted him to issue a notice. In fact, there is no averment in the petition that allegation has been made by the respondent that he was having any extra marital relationship with any other person and the same amounts to cruelty. 9. In the objection filed, the respondent took up a contention that she had resided with the petitioner for 21 years. It is also contended that the land was purchased in her name by her father and he had given `2 lakhs for construction of the building. There was substantial delay in constructing the building and therefore she had taken a loan in her name for `2 lakhs, which was given to the petitioner. Still, he did not complete the construction of the building. She also denied allegations against her, which, according to her, has been stated only for the purpose of the petition. She also alleges that he was having relationship with several women and she was suffering from asthma whereas Mat.Appeal No.198/2005 -:7:- petitioner did not care about her. According to her, mediators interfered in the matter and petitioner demanded `1 lakh to complete the construction and accordingly, she obtained `1 lakh from her brother, which was given to the petitioner for completion of construction of the building. She further complains that he was harassing her throughout, she was abused, beaten up and she was suffering like anything. It is in the said circumstances that she had left the house with her children in December, 2002. 10. PW1, in the chief affidavit has only narrated the averments made in the Original Petition. He does not have a case in his chief affidavit that the respondent has made any allegations against him in regard to his association with any other women whereas question has been asked during cross examination that it is for the purpose of marrying a lady by name Leela that he is asking for divorce. He also denied the fact that she was an asthmatic patient for the last 16 years. PW2 says that he knew the petitioner and the respondent for the last 20 years. They were living separately for the last three years even prior to 2001. He had mediated between them and though he tried, he could not succeed. He had mediated in January, 2002. Thereafter they did not reside together. The wife had made certain allegations Mat.Appeal No.198/2005 -:8:- against the husband and he said that the same was not correct. In cross examination, he further states that he is a friend of the petitioner and he is also a native of the place. 11. RW1 is the respondent. In her affidavit in chief, she narrates the averments made in the objection. She reiterates the fact that he was having extra marital relationship and it is in the said circumstances that she had left the matrimonial home. In the cross examination, she admits that they have lived together for 21 years and it was for the last 6 years that their marital relationship had become difficult and they have now reached a stage where they cannot live together. In cross examination she says that she has indicated that he was having extra marital relationship with a person by name Leela and she had made the allegations since 1996-98 and she had mentioned that to her relatives as well. In cross examination, the petitioner had put questions denying the aforesaid fact. It is stated that the lady by name Leela was married, her husband was working in Railways, she was having two children and she was employed in Kozhikode University. RW2 is the daughter of the couple. She says that they have come to the maternal parents house in December, 2002. Since she and her brother got employment, their mother is Mat.Appeal No.198/2005 -:9:- staying at her family house. She got married in 2004 and her father did not participate in the marriage. The marriage was informed to the father by her brother. Thereafter, uncle and her mother informed him. He did not care to listen. She had met him at the new house. After marriage, her father has not visited them. She denied the suggestion that during January, 2002, mother had deserted father. According to her, she or her brother is not willing to reside with their father. In re-examination, she says that father has harassed their mother and therefore they are not willing to live with him. 12. The main case set up by the petitioner is that the respondent had committed cruelty to him. No specific incident had been narrated, whereas according to him, she was not behaving properly, she was not giving him medicines and food as per his choice, she was behaving indifferently, she was abusing him etc,. On the other hand, respondent's contention is that they were living together properly for about 15 years. There had been issues with reference to construction of their house. But the respondent started having relationship with another person and he used to harass her and ultimately she had to leave her matrimonial home. It is also not disputed by the parties that she Mat.Appeal No.198/2005 -:10:- had come back once and again she has to go away in December, 2002. The Family Court took note of the fact that since the wife has alleged extra marital relationship against the petitioner, which is not proved and it amounts to cruelty. 13. Learned counsel for the petitioner relied upon a judgment in _**Annie Thomas v. Pathrose**_ (1988 (2) KLT 237) to contend that the burden of proof is on the person making the allegation. There is no dispute about the legal proposition. Petitioner will have to prove that he has suffered cruelty at the hands of the respondent. 14. As already indicated, the Family Court proceeded on the basis that since there is an allegation of extra marital relationship against the petitioner and the said fact is not proved, the allegation itself constitutes mental cruelty. It is argued that in the absence of any pleading, there was no reason for the Family Court to have arrived at such a finding and it should not have been stated as a reason for granting a decree of divorce. But this issue is somewhat decided in the judgment of the Apex Court in ## _**Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate**_ (AIR 2003 SC 2462) wherein the Apex Court held that making an allegation of extra marital relationship is of a grave nature. It is an Mat.Appeal No.198/2005 -:11:- assault on the character, honour, reputation and status of a person. Even if such allegations are raised in the written statement, it is not proved. It amounts to mental cruelty. In the light of the aforesaid judgment, it is rather clear that the Family Court was justified in granting divorce on the ground of cruelty. 15. In so far as desertion is concerned, according to the petitioner, she had left her matrimonial home in January, 2002, whereas according to the respondent, she left the matrimonial home in December, 2002. According to her, she had to leave the matrimonial home on account of the repeated harassment she had to suffer at the hands of the petitioner. If the version of the petitioner is believed, the period of two years will already be completed whereas if the version of the respondent that she had left the matrimonial home in December, 2002 is taken, the period of desertion will not be completed. The OP is filed on 24/5/2004, whereas, she has left the matrimonial home in December, 2002. A case of desertion can be said to be proved only if the reason stated for leaving the matrimonial home is justified. Respondent submits that after 21 years of marital life, she had ultimately left the petitioner on account of the harassment which she has narrated in the petition. Taking into consideration the evidence Mat.Appeal No.198/2005 **==> picture [27 x 9] intentionally omitted <==** adduced in the matter, it is rather clear that evidence of RW1 and RW2 are believable. In the result, we are of the view that there is enough evidence to sustain the judgment on the ground of cruelty which includes mental cruelty and therefore there is no reason to differ from the decree passed by the Family Court. Accordingly, the appeal is dismissed. Parties shall bear their own costs. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **A.M.BABU, JUDGE** //TRUE COPY// PS TO JUDGE Rp