V.S. Shine v. K.V. Mini

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 11TH DAY OF JANUARY 2018 / 221ST POUSHA, 1939** **AGAINST THE ORDER DATED 31.12.2005 IN OP NO. 515/1999 of FAMILY COURT,ERNAKULAM** **APPELLANT/APPELLANT/RESPONDENT:** **--------------------------------** **K.V.MINI, D/O. K.K.VASU, VALIYAPARAMBIL HOUSE, VATTEKKUNNAM, EDAPPALLY, NORTH, THRIKKAKARA VILLAGE, ERNAKULAM DISTRICT., REPRESENTED BY HER FATHER/GUARDIAN K.K.VASU, -DO-.** **BY ADV.SRI.P.VIJAYA BHANU** ## **RESPONDENT/PETITIONER.:** **--------------------------** **V.S.SHINE, S/O. V.K.SUKUMARAN, VALIYAPARAMBIL HOUSE, VATTEKKUNNAM, EDAPPALLY, NORTH, THRIKKAKARA VILLAGE, ERNAKULAM DISTRICT.** **BY ADV. SRI.N.K.SUBRAMANIAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2018, ALONG WITH MAT.APPEAL.NO. 278 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DST** ## **K. HARILAL & A.M. BABU,JJ.** **= = = = = = = = = = = = = = = = =** **Mat.Appeal Nos.277 & 278 of 2006 - - - - - - -- - - - - - - - - - - - - -** _Dated this the 11[th] day of January, 2018_ ## **J U D G M E N T** ## **A.M. Babu,J.** Shine and Mini. They were man and wife. They had a strained marital relationship. Both went to the family court with a petition each. His was a petition for divorce. The grounds taken were cruelty and mental disorder. Hers was a move for restitution of conjugal rights. The family court consolidated both the petitions for trial. The divorce sought by the husband was decreed on the ground of cruelty. Restitution of conjugal rights claimed by the wife was refused. She is the appellant in both the appeals. 2. The marriage between the parties was solemnized on 11.09.1992. To them were born two children. The husband is a photographer working with **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 2 :-** Mathrubhumi Publications. The wife is employed in KITCO at Ernakulam. 3. The contentions of the husband, stated briefly, go as under: His wife was always quarrelsome. She always misbehaved. She often burst out in anger even on trivial matters. She used to make imputations against him of illicit relationship. She used most filthy language. She used to do so in the presence of relatives, friends and neighbours. She alleged and propagated that he had illicit association with a housemaid who was a married woman. The service of the maid had to be terminated as the imputation went unbearable. Even after the termination of service, the wife continued to make such allegations. The issues were mediated. But even thereafter the wife continued to be as she was before. She even propagated that he had illicit relationship with the wife of his friend by name **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 3 :-** Ashok Kumar. When the wife of Ashok Kumar made a complaint before the police against the gossip propagated by the appellant, the latter was called to the police station. She apologised in writing. It is impossible to live with her. 4. The appellant denied all the allegations against her. Her case goes as follows: The relationship got strained on account of the attitude of the respondent. The appellant was always ready to adjust with her husband, but he was not interested. There was unlawful demand for dowry on his side. During her second pregnancy she had thyroid related illness. The respondent was reluctant to provide necessary medical assistance. The appellant only advised the respondent to keep a distance from the maid. But it took an ugly turn afterwards. The mediators were convinced that the issues between the couple were only silly. The respondent was negligent **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 4 :-** in attending to domestic affairs. He used to spend most of his time with his neighbour and friend Ashok Kumar. The mother of the respondent was hostile to the appellant from the very beginning. The latter was being harassed and illtreated in her nuptial home. 5. Both sides adduced evidence before the family court. PWs1 to 6 and RWs1 to 3 were examined. Exts A1, A2 and X1 to X5 and MO1 were marked. 6. On an analysis of the evidence produced before it, the family court found the allegations of cruelty against the wife proved. The court did not accept the contention of the husband that the wife was suffering from paranoid schizophrenia. The petition of the husband was allowed granting divorce under section 13(1)(ia) of the Hindu Marriage Act. The wife's petition for restitution of conjugal rights was dismissed. **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 5 :-** 7. We heard Sri P. Vijayabhanu, the learned counsel for the appellant. There is no representation on the side of the respondent. 8. The parties belong to the hindu religion. Their marriage was solemnized on 11.09.1992. Two children were born in the wedlock. The family court dissolved the marriage by a decree of divorce on the ground of mental cruelty. 9. The trial court discussed the evidence in detail. That court went deep into the allegations and counter-allegations. The court considered the allegations under six sub-heads. On sub-head (2) the finding was against the husband. The findings on all other sub-heads were favourable to him. 10. One of the allegations which was considered under sub-head (1) was that after the birth of the second child the appellant started bursting out in anger. It was also alleged that the angry outbursts **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 6 :-** were on trivial issues. The evidence of the respondent as PW1 would suggest that life was normal and cordial during the initial days of the marriage, but not so later. He spoke that she used to pick up quarrels for no reason whatsoever. He spoke that he was viewed with suspicion by her. He added that he was found fault with for anything and everything done by him. Another grievance of PW1 was that his wife never cared to maintain a good relationship with his aged mother. PW1 spoke that such misconducts were seen by him. He was cross-examined at length. But no result favourable to the wife could be produced. MO1 is the photograph of the couple. But the image of the husband was mutilated. RW1 who is the wife admitted in cross-examination that she did it. Ext A2 is a letter written to the appellant by her own mother advising her to behave properly. RW1 admitted that she made an attempt to **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 7 :-** burn Ext A2 letter which contained the advice of her mother. It is clear from the evidence of PW1 as well as RW1 that the behaviour of the latter was not that expected of a wife. She tried to give an explanation for such behaviour. Her explanation was that she went out of control sometimes since there were repeated demands for dowry. The family court, for cogent reasons stated, did not accept the explanation. As stated by the family court, admittedly there was no demand or payment of any dowry at the time of the marriage. PW1 admitted having borrowed Rs.1,80,000/- from the parents of the wife for the purchase of a house. PW1 said that he returned the amount after selling the very same house. RW3 who is the father of the appellant spoke in cross-examination that there was no demand for dowry on the side of the respondent or his family members. In these circumstances it is impossible to **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 8 :-** accept the explanation of the appellant that the demand for dowry was the reason for her behaviours such as mutilating the image of her husband and attempting to burn the letter of her mother giving her advice. Mutilating the image of the husband in a photograph shows nothing but her aversion towards him. 11. Under sub-head (3) what the family court considered was the allegation touching illicit relationship with the maid. PW1 spoke to his case. He spoke that he used to be accused of by his wife of having illicit relationship with the maid. PW1 denied any such illicit relationship. It is pertinent to note that the wife did not raise a contention that her husband had any illicit relationship with the maid. At the same time, she had a contention that her husband used to mingle freely with the maid. It was also contended **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 9 :-** that with a good intention only she told her husband to keep a distance from the maid. That not, it is contended, the maid would try to take advantage of it. It is also contended that it took an ugly turn afterwards. These contentions of the appellant would suggest that she did have an allegation, though not pleaded, that her husband had some kind of relationship with the maid. Therefore the evidence of PW1 that there used to be false accusations against him that he had an extramarital relationship with the maid is believable. The evidence of PW1 that his wife was continuously accusing him as if he had illicit association with the maid is only to be accepted. RW1 deposed that she had no complaint that her husband had any illicit relationship with the maid. But she made such accusations against him at house as seen from the evidence of PW1. False, scandalous, malicious, baseless and unproved **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 10 :-** allegations made by one spouse against the other spouse would amount to cruelty. It has been held so by this court in _**A v. B**_ **[2000(2) KLJ 734].** 12. Under another sub-head what was considered in the impugned order is the contention of the respondent that his wife used to make allegations of illicit affair between him and his friend Ashok Kumar's wife. Admittedly the relationship between the respondent and Ashok Kumar is still cordial. The evidence of PW1 suggests that his wife used to make false allegations connecting him and the wife of Ashok Kumar. It is also the evidence of PW1 that being unbearable the wife of Ashok Kumar lodged a complaint with the police against the appellant. PW1 spoke that the appellant was called to the police station from where she tendered apology in writing. The filing of such a complaint against the appellant by the wife of Ashok Kumar is important. The **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 11 :-** tendering of apology by the appellant should mean that she did gossip. RW1 in cross-examination emphatically denied the suggestion that the wife of Ashok Kumar filed a complaint against the former before the police. But RW1 was cornered after the production of Exts X3 and X4 files from the police station. She then changed her version and spoke that the paper containing the apology was the product of a fraud. She did not plead so in answer to the pleadings of the respondent that the wife of Ashok Kumar filed a complaint and that the appellant did apologise. We are convinced from the evidence that the appellant used to make false allegations against the respondent and the wife of his close friend. It does amount to cruelty. 13. On a reappraisal of the evidence, we concur with and confirm the conclusions of the learned family court judge. We do not find any **Mat.Appeal Nos.277 & 278 of 2006** ## **-: 12 :-** reason whatsoever to interfere with the findings of the court below. The family court rightly granted a decree of divorce in favour of the husband. Therefore, necessarily, the petition of the wife for restitution of conjugal rights was liable to be dismissed. We confirm the said dismissal too. Both the appeals are without any merit. The appeal deserve only a dismissal. In the circumstances of the case, we make no order as to costs. 14. Dismissed. No costs. Sd/- **K. HARILAL,** **JUDGE** Sd/- **A.M. BABU, JUDGE** DST //True copy// P.A. To Judge