Vivek S S/o N.Satheesh Babu v Anila M (Mat.Appeal Nos. 484 & 488 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 30[TH] DAY OF JULY 2021 / 8TH SRAVANA, 1943 MAT.APPEAL NO. 484 OF 2014 AGAINST THE JUDGMENT IN OP 1290/2012 OF FAMILY COURT, THIRUVANANTHAPURAM** ## **APPELLANT/COUNTER PETITIONER:** VIVEK S S/O.N.SATHEESH BABU, RESIDING AT R7, JAI NAGAR, MEDICAL COLLEGE P.O., CHERUVIKKAL VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM 11. BY ADVS. SRI.N.SUKUMARAN (SR.) SRI.V.K.BALACHANDRAN SRI.N.K.KARNIS SRI.S.SHYAM ## **RESPONDENT/PETITIONER:** ANILA M W/O.VIVEK.S., RESIDING AT SOUPARNIKA, NAVAIKULAM, KALLAMBALAM P.O., THIRUVANANTHAPURAM DISTRICT - 695 605. BY ADV SRI.S.MOHANDAS THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 30.07.2021,ALONG WITH MAT.APPEAL NO.488/2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat.Appeal Nos.484 & 488/2014 -:2:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 30[TH] DAY OF JULY 2021 / 8TH SRAVANA, 1943 MAT.APPEAL NO. 488 OF 2014** **AGAINST THE JUDGMENT IN OP 1196/2008 OF FAMILY COURT,** ## **THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** VIVEK.S S/O.N.SATHEESH BABU, RESIDING AT R7, JAI NAGAR, MEDICAL COLLEGE P.O., CHERUVIKKAL VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM-11. BY ADVS. SRI.N.SUKUMARAN (SR.) SRI.V.K.BALACHANDRAN SRI.N.K.KARNIS SRI.S.SHYAM ## **RESPONDENT/RESPONDENT:** 1 ANILA.M.(PREETHY) D/O.R.MURALILAL, RESIDING AT "SOUPARNIKA", NAVAIKULAM, KALLAMBALAM PO, THIRUVANANTHAPURAM DISTRICT-695605. 2 R.MURALILAL RESIDING AT DO. DO. DO. BY ADV SRI.S.MOHANDAS THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 30.07.2021, ALONG WITH MAT.APPEAL NO.484/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat.Appeal Nos.484 & 488/2014 -:3:- J U D G M E N T Dated this the 30[th ] day of July, 2021 ## Kauser Edappagath, J. The husband is the appellant in both these appeals. He filed Original petition at the Family Court, Thiruvananthapuram as OP No.1196/2008 to declare his marriage with his wife (1[st] respondent) as null and void and also for realization of `80,00,000/- as compensation from the wife and her father (2[nd] respondent). The wife filed Original Petition at the same court as OP No.1290/2012 for dissolution of the marriage with her husband (respondent) on the ground of cruelty and also for maintenance and compensation. Both the original petitions were tried together by the court below and a common judgment was passed. Both original petitions were decreed in part dissolving the marriage on the ground of cruelty. Past and future maintenance were also awarded to the wife @`10,000/- per month. The judgment in OP No.1196/2018 is under challenge in Mat.Appeal No.488/2014 and the judgment in OP No.1290/2012 is under Mat.Appeal Nos.484 & 488/2014 -:4:- challenge in Mat.Appeal No.484/2014. 2. Heard both sides and perused the records. 3. The nullity of marriage was sought by the husband on the ground that the wife was suffering from mental disorder at the time of marriage and she was incapable of giving her consent. It appears that the said relief was sought under S.12(c) of the Hindu Marriage Act. It is settled that the burden of proof is very heavy on the party seeking decree of nullity. Standard of proof is strict. Any unusual behaviour noted by the husband or his relatives is not sufficient to come to a conclusion that the wife is suffering from any mental disorder. That apart, there must be evidence to show that the consent of the husband was sought by suppressing the said fact. Apart from bare allegations that the wife was suffering from mental disorder, that too vague, there is absolutely no material on record to substantiate the same. What is pleaded in the original petition is that wife was suffering from some mental disorder of such a kind that she cannot behave like a normal human being. The nature and description of the alleged mental disorder has not been pleaded. No medical evidence has been adduced. The husband did not take any steps to subject the Mat.Appeal Nos.484 & 488/2014 -:5:- wife for medical examination. In the absence of evidence to prove that the wife was suffering from mental disorder, we are of the view that the court below was absolutely justified in declining the relief of declaration of nullity of marriage sought for. No interference is called for on the said finding. 4. Even though the husband did not seek for dissolution of marriage on the ground of cruelty, the court below, on evaluation of evidence, found that the husband had made out a case for dissolution of marriage on the ground of cruelty. The court below further found that the wife has also made out a case for dissolution of marriage on the ground of cruelty. Hence, a decree of dissolution of marriage was granted holding that both spouse have exercised cruelty each other. 5. The definite case of the wife is that immediately after the marriage, the mother-in-law collected all her gold ornaments from her and after weighing it, she ridiculed her in front of others and thereafter husband as well as the mother-in-law harassed and ill treated her demanding more dowry and ornaments. It is further alleged that when she became pregnant, the husband and his parents forced her to abort the pregnancy and made her to Mat.Appeal Nos.484 & 488/2014 -:6:- swallow MT pill tablets mixed with juice and thereafter she was forced to undergo miscarriage at W&C Hospital, Thycaud. It is further alleged that even thereafter she was treated with cruelty by the husband and his parents. In order to prove cruelty meted out by the wife at the hand of the husband, oral evidence of the wife and her father were relied on. She categorically deposed various cruelty exercised by the husband on her. Her evidence gets corroboration from the oral evidence of her father who was examined as RW2. Even though they were cross-examined at length, there is nothing to disbelieve their testimony. Their evidence appears to be natural and convincing. That apart, as already stated, the husband made specific allegation in the original petition filed by him that the wife was suffering from mental disorder. No effort was taken by the husband to substantiate the said allegation. There is absolutely no evidence on record to show that the wife was suffering from any sort of mental disorder or illness at any point of time. As such, the said allegation is proved to be false. Raising false allegations, that too about mental incapacity, by one spouse against the other, amounts to mental cruelty. It has also come out in evidence that Mat.Appeal Nos.484 & 488/2014 -:7:- the husband has put forward a case subsequently by way of amendment that the wife had some illicit relationship with one Mr.Sineesh. The husband did not substantiate the said allegation as well. Casting aspersions of unchastity against the wife by the husband also amounts to mental cruelty. In so far as the cruelty on the part of the wife is concerned, it has come out in evidence that she has initiated a false prosecution against the husband under Sections 498A and 313 of IPC. The said case ended in acquittal as evident from the documents on record. There are findings in the order of acquittal that the persecution allegations are unfounded. Making false allegations and initiating false criminal prosecution by one spouse against the other constitute mental cruelty. The apex court in _**Sreenivas K. v. K.Sunitha**_ [(2014) 16 SCC 34] has held that filing false complaint against husband and his family members under Sections 498A and 307 of IPC will amount to matrimonial cruelty defined u/s 13(1)(ia) of the Hindu Marriage Act. It is true that in the original petition filed by the husband, the dissolution of marriage was not sought on the ground of cruelty. It is also true that initiation of the above said criminal prosecution u/s 498A of IPC by the wife against the Mat.Appeal Nos.484 & 488/2014 -:8:- husband was not pleaded in the original petition nor was it highlighted as mental cruelty. In _**Malathi Ravi (Dr.) M.D. v. Dr.B.V.Ravi, M.D**_ (AIR 2014 SC 2881), the apex court has held that subsequent events, established from uncontroverted materials on record, can be taken into consideration in a case seeking dissolution of marriage. In that case, the High Court took note of subsequent events into consideration and granted divorce on the ground of cruelty though the relief of dissolution of marriage was sought on the ground of desertion alone. It was confirmed by the apex court. 6. The evidence on record clearly proves that each spouse has exercised cruelty on each other. Both have made out a case for dissolution of marriage on the ground of cruelty. It has come out in evidence that the husband and wife lived together only till 24/10/2008. They are living separately for the last thirteen years. The evidence on record shows that they were at loggerheads right from the inception of their marriage. The couple was unable to patch up their differences for these years. The allegations and counter allegations levelled against each other establish that there is no further chance of rapprochement. Mat.Appeal Nos.484 & 488/2014 -:9:- Hence, the court below was absolutely justified in granting dissolution of marriage on the ground of cruelty. We see no reason to interfere with the said finding of the court below. 7. The husband has claimed compensation of `80,00,000/- from the wife and her father. The wife has also claimed compensation of `43,58,000/- from her husband. There are no specific pleadings in the original petitions as to on what basis the husband and wife claim such a huge compensation. The nature of damages sustained has also not been pleaded. There is no proof also apart from the interested testimony, that too vague, of the parties. On reappreciation of evidence, we find no reason to interfere with the finding of the court below that the claim of compensation by both husband and wife is only to be disallowed. 8. The wife has also claimed maintenance from the husband, both past and future. The court below on evaluation of evidence found that the wife is entitled to maintenance @`10,000/- per month. The past maintenance for 3 years preceding the date of filing original petition as well as future maintenance from the date of original petition was granted. The learned counsel for the husband did not challenge the quantum Mat.Appeal Nos.484 & 488/2014 -:10:- of maintenance awarded by the court below before us. The learned counsel for the husband submitted that the wife got remarried on 13/4/2014 which is not disputed by the learned counsel for the wife. Hence, the wife is entitled to the maintenance awarded only till 13/4/2014. The impugned judgment in OP No.1290/2012 is to be modified to that extent. In the light of our findings as above, we allow in part Mat.Appeal No.484/2014 and dismiss Mat.Appeal No.488/2014. The judgment and decree granted in OP No.1290/2012 as regard to the future maintenance is modified confining the future maintenance awarded till the date of remarriage of the wife, i.e. on 13/4/2014. Other reliefs granted in OP No.1290/2012 are sustained. The parties shall bear their respective costs. ## **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **DR. KAUSER EDAPPAGATH** Rp True Copy PS to Judge **JUDGE**