Vijayamma P.M. v. Radhakrishnan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 Mat.Appeal.No. 174 of 2007() ---------------------------OP.384/2004 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR .................... APPELLANT/ PETITIONER: ----------------------- VIJAYAMMA P.M., D/O. P.U.MOHANDAS, PULICKAKUZHIYIL VEEDU, NEENDOOR KARA, ONAMTHURUTHU VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SRI.A.P.SUBHASH SRI.P.K.RAVISANKAR RESPONDENT: RESPONDENT: ------------------------- RADHAKRISHNAN, S/O. P.KESAVAN, KANJIRAMKALAYIL VEEDU, PADINJATTAMBHAGAM KARA, ATHIRAMPUZHA VILLAGE,ETTUMANOOR P.O.,KOTTAYAM DIST BY ADV. SRI.K.P.SHAHUL HAMEED FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON 23/07/2008 DELIVERED THE FOLLOWING: ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.** ## **---------------------------------------------------------------MAT. APPEAL NO.174 OF 2007 ----------------------------------------------------------------** Dated this the 23rd day of July, 2008 ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** The appellant herein is the petitioner in O.P. No.384 of 2004 on the file of the Family Court, Kottayam at Ettumanoor. The Original Petition is filed by the wife for divorce under Section 13 B of the Hindu Marriage Act. The respondent herein is her husband. By the impugned order, the court below dismissed the Original Petition. Hence, this appeal. The parties are hereafter referred to as petitioner and respondent as in the Original Petition. 2. The marriage between the parties was solemnised on 16.5.1991 as per the religious rites prevalent in the community. At the time of marriage, the petitioner was working as Military Nurse at Uttar Pradesh and the respondent was a teacher working at Gujarat. They resided together after marriage and two children were born in the wedlock. It is the case of the petitioner/wife that the respondent is a drunkard and he is not interested in looking after the affairs of the petitioner and the children. _Mat. Appeal No.174/2007_ 2 According to her, the respondent used to manhandle her and that throughout the period of their married life the respondent continued to ill treat her. She also narrated an incident that happened on 3.7.2004 on which day the respondent manhandled and sent her out of the house. On coming to know of the incident, the parents of the petitioner came and took her to their house and on 5.7.2004, the petitioner filed the complaint before the police. 3. The respondent filed objection denying all the allegations levelled against him. According to him, he is not a drunkard and he had been leading a peaceful life with the petitioner and the children. He also contended that the petitioner filed the complaint using her influence as a military officer and that the petitioner is living separately with the children for no reason. 4. The petitioner/wife was examined as PW.1 and the respondent was examined as RW.1. Ext.A1 is the marriage certificate issued by the Sub Registrar, Ettumanoor. As PW.1, the petitioner testified before the court below that her husband is a drunkard, that his conduct and behaviour are not befitting to a teacher and that of the head of the family and that he never took care of her and the children. She further testified _Mat. Appeal No.174/2007_ 3 that the respondent abused her in the presence of others and ill treated her mentally and physically. She also stated that the entire money received by the respondent by way of salary during the period he was employed as a teacher was spent for taking liquor and he also extracted money from her by intimidating her and the same was also spent for consumption of alcohol. According to the petitioner, the respondent is a habitual drunkard. She also stated that due to the mental and physical cruelty suffered by her, she has deserted the respondent and has started living separately and that she lost her mental peace during her stay with him. The respondent who was examined as RW.1, denied the above allegations. He denied the suggestion that he is a drunkard, but admitted that he used to consume alcohol. He also denied the allegation that he lost his job due to drinking. 5. The parties are well placed in the society. The pleadings and evidence would go to show that the parties did not live happily during the period they lived as husband and wife. The scuffle and bickering started from the early months of the marriage and the parties are fighting each other from the very beginning. The incident narrated by the wife would go to show that she was subjected to physical and mental cruelty and this resulted in filing a petition under Section 498 A I.P.C. If the version of PW.1 is to be believed, the mental torture continued while the parties co- _Mat. Appeal No.174/2007_ 4 habited, making her life with the respondent extremely intolerable, miserable and overbearing and such cruel harassment reached intolerable proportions. We also had occasion to interact with the parties. We had also appointed mediators to settle the dispute between the parties. The petitioner/wife expressed her desire to live separately. According to her reconciliation is out of the question. The nature of the allegations levelled against the respondent/husband shows her intense hatred and animosity towards him. The parties appeared before us on 8.7.2008 and agreed to file a joint petition under Section 13 B of the Hindu Marriage Act, 1955. 6. When the matter was taken up on 9.7.2008, it was submitted at the Bar that the respondent refused to sign the joint petition and left the place. Going by the versions of the petitioner as PW.1, we find that she was subjected to physical and mental cruelty, making it impossible for her to live with the respondent/husband. The situation is that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. The facts pleaded and proved by the petitioner/wife have to be appreciated and evaluated differently from the facts pleaded by the respondent/husband. The versions of RW.1 cannot be believed for the reason that he does not appear to be a trustworthy person. He is not looking after his children, nor providing for them or protecting _Mat. Appeal No.174/2007_ 5 them. Hence, we are of the view that the petitioner is entitled to a decree of divorce on the ground of cruelty. 7. In the decision of the Supreme Court reported in **Naveen Kohli** **v. Neelu Kohli, 2006(2) K.L.T. S.N. 29 (Case No.41)(SC) = (2006) 4 S.C.C. 558)** , the Supreme Court observed that once the parties have separated and the separation has continued for sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has been broken beyond repair and that it would be unrealistic for the law not to take notice of that fact and it would be harmful to the society and injurious to the interests of the parties. 8. The parties are living separately since July, 2004. In the facts and circumstances discussed above, we do not agree with the view taken by the Family Court to the effect that the petitioner has not succeeded in proving the grounds alleged in the petition for divorce. The parties were living away from Kerala in places like Uttar Pradesh, Uttaranchal, Punjab etc. Hence, the court below was not correct in observing that there was no independent evidence to show that the respondent/husband treated the petitioner/with cruelty and manhandled her. In the peculiar facts and circumstances of the case, it is very difficult to cite witnesses in proof of _Mat. Appeal No.174/2007_ 6 the physical and mental cruelty alleged in the petition. The incidents happened in the house where the parties resided. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. After going through the oral testimony of PW.1 and the pleadings in her petition, we are of the view that the petitioner is entitled to get a decree of divorce as prayed for by her. In the result, the order under challenge is set aside. The petition filed under section 13(1)(i-a) of the Hindu Marriage Act is allowed. The marriage between the petitioner and the respondent is dissolved with effect from today. The Matrimonial Appeal is allowed as above. There will be no order as to costs. ## **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** **sp/** _Mat. Appeal No.174/2007_ 7 **KURIAN JOSEPH & HAURN-UL-RASHID, JJ.** **MAT.APPEALNO.174/2007** **JUDGMENT** **23rd July, 2008** _Mat. Appeal No.174/2007_ 8