IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 MFA.No. 632 of 1999(A) ---------------------- OP.141/1997 of PRL.S.C.,THALASSERY .................... APPELLANT(S): ------------- A.K.VENUGOPALAN, S/O. GOPALAN NAIR, AGED 47 YEARS, ERANCHERIVEETTIL, PINARAYI AMSOM, KIZHAKKUMBHAGOM DESOM, THALASSERY TALUK. BY ADV. SRI.V.RAJAGOPAL RESPONDENT(S): --------------- C.M. PUSHPAVALLY, D/O. PADMANABHAN NAIR, AGED 37 YEARS, ERANCHERI PARAMBIL, SAYOOJYAM HOUSE, PINARAYI AMSOM, KIZHAKKUMBHAGOM DESOM, THALASSERY TALUK. ADV. SRI.R.SURENDRAN FOR R1 SRI.R.SURENDRAN FOR R1 SRI.RAFFEEKH K. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/12/2009, COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CR P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- MFA No. 632 of 1999 --------------------------------------------- Dated, this the 23rd day of December, 2009 J U D G M E N T P.R.Ramachandra Menon, J. Sustainability of the order passed by the Court below in dismissing the petition for dissolution of the marriage under Section 13 (1) (ia) is the subject matter of challenge in this appeal. 2. The appellant was the petitioner in OP 141/1997 filed before the Sub Court, Tellicherry, against the respondent wife contending that respondent had treated the petitioner with cruelty after the solemnization of the marriage, thus seeking for a decree of divorce. The case of the appellant was that he married the respondent as per the Hindu religious rites and rituals on 28.01.1983 in front of the relatives, friends and well wishers and that a child by name 'Ajil sayi' (mentioned as 'Rejil Sai' else where like Annexure D) was born in the wedlock on 28.07.1984. At the time of marriage, the husband was serving the Indian Army, who returned from the military service in 1986. After retirement, he obtained an employment in ACC cement factory and was residing with the wife in the company quarters at Gulbarga in Karnataka for about 5 years. Subsequently, he got re-employed in the New India MFA No.632 of 1999 2 Assurance Company Ltd., whereupon, he started living in the building constructed in the native land, along with his wife and son. 3. The above petition for dissolution of the marriage was filed obviously about 15 years after the marriage, on the ground of 'cruelty'. The instances of cruelty as put forth by the appellant/petitioner were that the respondent wife used to scold him in filthy language; that owing to the disobedience of the respondent, there were disputes in the house which reached in exchange of blows; that the respondent used to visit her house without permission of the appellant; that the respondent after quarrel had climbed up the stairs with a razor blade and hid herself on the sun shade; that she used to proclaim and threaten to commit suicide; that during the Onam festival in 1997, she had visited Sai Baba at Puttaparthi without disclosing anything to the appellant; that on 14.10.1997 she had gone to Parassinikadavu Muthappan’s Temple without permission of the appellant; that on 25.10.1997 she broke open the door and trespassed into the house and started residence with the appellant who was out on duty and scolded him on his return; that during the midnight she took a chopper and threatened to kill him which made the appellant to flee away from the house and to start living in his brother Ravindran’s house and that the respondent is not hesitant to commit any atrocities which necessitated a decree of divorce. MFA No.632 of 1999 3 4. The respondent wife rebutted all the averments and allegations raised by the appellant/husband in her counter affidavit, specifically contending that there was no instance of abusing the latter in filthy language; that there was no attempt at any point of time from her side to assault him; that she had gone to Puttaparthy with the permission of the husband, who himself had paid the necessary transportation expenses in respect of the journey in the bus arranged by the Satya Sai Seva Samiti and that she was accompanied by none other than the younger brother of the husband and his wife; that she had gone to Parassinikadavu Temple with the consent and concurrence of the husband and that too, along with two elderly ladies of the locality; that the husband used to consume liquor procured by him being an Ex-military man along with his friends and near relatives in the house, also playing cards till late in the nights and also during the holidays which was sought to be resisted by the respondent seeking to have it avoided in the presence of the child, which was to the chagrin of the husband, who in turn used to beat her with the handle of broom stick; that it was in the said circumstance, that she had to hide herself on the sun shade as a measure of rescue; that she has always been a loyal dutiful and obedient wife; that there was no attempt or proclamation to commit suicide from her side at any point of time; that her sister-in-law and others had occasion to manhandle her and she had to go to hospital on MFA No.632 of 1999 4 sustaining injuries, leading to criminal cases caused to be registered against the culprits which were still pending and that the attempt of the appellant/husband supported by the above persons who were in inimical terms with the respondent wife was only to get rid of her, more so when the child was a handicapped one, thus leading to the petition seeking to dissolve the marriage, raising totally false and fabricated story, referring to 'cruelty'. 5. The husband got examined himself as PW1, besides examining three of his friends as PW2, PW3 and PW4. The wife was examined as RW1. The only documentary evidence was Ext.A1 marriage certificate produced and marked by the husband. The Court below analysed and appreciated the pleadings and evidence on record and observed that the case put up by the husband, alleging 'cruelty' was devoid of any merit or bonafides. It was also observed that the deposition of witnesses PW2 to 4 was not trustworthy, so as to infer 'cruelty' on the part of the respondent wife. After weighing the evidence, it was observed by the Trial Court that the version put forth by the respondent wife was more probable, than the case put forth by the husband. Accordingly, it was held that there was no cogent and convincing evidence on the side of the husband (appellant/petitioner) to hold that the respondent wife had treated him with cruelty and that the allegations were set up by him only for the MFA No.632 of 1999 5 purpose of getting divorce. Accordingly, the petition was dismissed with cost, which is under challenge in this appeal filed by the husband. 6. The learned counsel for the appellant contends that the appreciation of evidence made by the Court below is not correct or proper. It is stated that the appellant was always a loyal husband, dutiful father to the child and that the subsequent conduct of the respondent wife during the pendency of the above appeal itself is enough to show that the respondent is very much adamant, not trustworthy and that the appellant was very much entitled to get a decree of divorce, also as prayed for in I.A.3450/2008 filed in the appeal, referring to the turn of events (when the respondent, after agreeing to settle the matter in terms of the interim order dated 22.05.2008, had retreated herself without honouring the same). 7. True, during the pendency of the proceedings before this Court, possibility of any settlement between the parties, as always desired, was explored by this Court. Parties were present before this Court on different occasions including on 22.05.2008 and after discussions with the mediators, the parties arrived at an amicable solution; that the appellant/ husband had agreed to pay Rs.2,50,000/- in cash to the respondent within six months towards the permanent alimony in full and final settlement of all monetary claims between them; that the appellant/ husband would convey 21 ¼ cents of land as specified and belonging to him, in favour of his son MFA No.632 of 1999 6 Ajil Sai within two months; that the appellant/husband would pay a sum of Rs.1,000/- every month commencing from 01.06.2008 to the respondent towards the medical expenses of the only child Ajilsai, till his retirement from the service and that a joint petition for divorce on 'mutual consent' under Section '13 B' of the Hindu Marriages Act would be presented within two weeks. The settlement as above was recorded in the interim order passed by this Court on 22.05.2008. It is seen that the respondent subsequently withdrew from the settlement stated as reached, whereby the cheque for the sum of Rs.2,50,000/- sent by the appellant/husband was returned and a review petition was filed by her as RP 467/209. The Review Petition came up for consideration before this Court on 14.08.2009 and after considering the facts and circumstances, this Court observed that the order dated 22.05.2008 was only an 'interim order' and that if the review petitioner was not willing to have the matter settled, the appeal itself could be heard on merits. Accordingly, the review petition was dismissed, as there was 'no error apparent on the face of the record' and the appeal was posted for hearing. It was in the said circumstances, that the appellant/husband filed I.A. 3450/2008 producing copies of the relevant documents as to the turn of events subsequent to the interim order dated 22.05.2008, as Annexures 'A to F', seeking for a verdict to dissolve the marriage between the appellant and the respondent. MFA No.632 of 1999 7 8. At the very outset, this Court would like to point out that this Court is not at all impressed with the contentions raised from the part of the appellant/petitioner in the I.A.3450/2008 to hold that the appeal has to be allowed since the respondent has turned back from the settlement stated as reached on 22.05.2008 (as noted by the Division Bench who declined interference in the Review Petition, holding that the order passed on 22.05.2008 was only an 'interim order' and if the respondent did not intend to settle the matter, the appeal itself had to be heard on merits). Obviously, the respondent has not filed any proceedings under her signature, as to the settlement arrived at agreeing to the terms proposed by the appellant or the mediators. This being the position, no Court can compel any party to settle the matter contrary to her/his wishes sacrificing his/her rights and liberties to any extent. As it stands so, the turn of events, during the pendency of the appeal before this Court as referred to in the affidavit, in support of the I.A. 3450/2008 is not significant or relevant and is not liable to be acted upon. 9. With regard to the merits of the case, the crucial point to be considered is whether the appellant/husband has established the ingredients of 'cruelty' so as to enable him to obtain a decree of divorce under Section 13 (1) (ia) of the Hindu Marriage Act. It is settled position of law, that the 'cruelty' need not be confined to physical cruelty alone and it MFA No.632 of 1999 8 could be mental cruelty as well. Whether the circumstances and instances as narrated in the petition do actually constitute any such instance amounting either to physical or mental cruelty, is the more relevant question involved. 10. As observed hereinbefore, the specific case of the appellant/ husband as pleaded in the petition filed before the Court below attributed 'cruelty' on the part of the respondent/wife with regard to the specific instances as noted below:- - that the respondent wife used to abuse him in filthy languages - that she went to Puttaparthi without his permission. - that she went to Parassinikadavu Temple without the consent and concurrence of the appellant. - that she hid on the sun shade with a blade, threatening to commit suicide. - that she had broke open the door of the residential building of the appellant and started to reside there. - that one midnight, she took a chopper and threatened to kill the appellant. 11. All the above instances have been specifically denied by the respondent/wife, contending that it was nothing but an attempt to eliminate the respondent somehow or the other, on false and fabricated grounds, without any element of merit or bonafides; particularly since the resistance offered by the respondent against the consumption of liquor with the friends MFA No.632 of 1999 9 and playing cards till late in the nights and on holidays in presence of the child was not to the liking of the appellant/husband. 12. During the course of evidence, the husband has chosen to speak about the specific instances as pleaded in the petition and he has gone some steps further, stating that the wife had physically assaulted/ slapped him on several occasions; that she had come to his office and ridiculed him in his absence before others and that she wished and prayed that the husband be brought home in sack, after some scooter accident. But when confronted as to whether any such plea has been put forth in the petition, there is no answer; obviously for the reason that there is no such pleading any where in the petition. It is this version of the husband that has been sought to be supported by his friends, who were examined as PW2 to 4; who, according to the respondent/wife, were the persons who used to come home, for playing cards and to consume liquor. The factual position in this regard, that the appellant/husband used to purchase liquor, procuring the same being an Ex-military man and serving the same to his friends is rather conceded/admitted during his cross examination as PW1, however adding that, he only used to serve liquor to others and did not use to consume the same. Right from the beginning, it was the specific case of the respondent/wife that she used to persuade the husband not to pursue any such activities, that too in the presence of the child who was a MFA No.632 of 1999 10 handicapped boy; which was to the chagrin of the appellant/husband. It is also in evidence that there was some occasion (when the younger brother of the appellant, his wife and some others had allegedly manhandled the respondent wife) to file complaints before the Police against the near relatives of the husband and that the case registered by the Police was pending even on the date of examination of the respondent as RW1. This being the position, the version put forth by the appellant/husband as PW1 that the respondent wife had 'slapped/assaulted' him on several occasions; that she had come to his office and ridiculed him, that she wished to see him brought home in pieces in some or other scooter accident etc. are only improvisation of the case, particularly when it does not have any roots by way of specific pleadings in the petition filed before the Court below. 13. It was the specific case of the appellant/husband that the respondent wife had gone to her house, Puttaparthi and Parassinikadavu Temple, without his permission, leading to several consequences; which are cited as the other instances to support the 'cruelty' alleged. Even if the said allegation is true and correct, whether visiting the house of the respondent or going to Puttaparthi or Parassinikadavu Temple in fulfilment of the faith without consent would amount to 'cruelty' upon the appellant/husband is still a different question. 14. With regard to the trip to Puttaparthi, the specific pleading and MFA No.632 of 1999 11 evidence let in from the part of the respondent wife is that she had gone there, with the permission of the husband; that she was accompanied in the bus, by the younger brother of the husband and his wife and further that necessary ticket charges were remitted by none other than the husband. Even though this was denied originally, it was admitted later by the appellant in the chief examination itself (that he himself had paid the necessary expenses to go to Puttaparthi) which shows that such trip was undertaken with the knowledge and information of the husband. Though it has been stated by PW1 husband in the chief examination, that his younger brother and wife had not gone to Puttaparthi along with the respondent RW1, it has been later conceded in the cross examination, that his younger brother and wife were also very much there in the very same bus to Puttaparthi. Similarly, with regard to the trip to Parassinikadavu Temple, the respondent wife had gone to the Temple in the morning and had returned on the same day, though late in the night. It has been asserted by the respondent in the pleading and evidence that she had proceeded to the said Temple with the consent and concurrence of the husband, that too, with two elder ladies in the locality by name, 'Nani and Soumini', simultaneously adding that there was no impediment in examining them, if so required. Admittedly, the appellant/husband has not chosen to take any step to cause examination of such persons who accompanied the wife MFA No.632 of 1999 12 RW1. 15. It has been brought to light from the part of the respondent wife that there was absolutely no problem in the marital life with the husband, while they were living together at Gulbarga; from where they returned to the native place in 1990 and till they started to live together from 1992 onwards, in the new house constructed there. PW1 husband has conceded in the cross examination that the dispute/problems popped up after starting to live in the new residential building in the native place; whereas his earlier version was that problem was there, because of the atrocious acts of the wife 'right from the date of the marriage' and even during the stay in Gulbaraga, where they were resided during 1986-90. However, it is conceded that no such case has been put forth in the petition filed before the Court below, where it was specifically stated in paragraph 2, that the alleged actions of the respondent wife erupted only after starting to live in the house in the native place. It has also been conceded by PW1 husband, that no such incident has been stated as occurred prior to April, 1997, anywhere in the petition filed before the Court below. Several such discrepancies and inconsistencies on the part of the appellant/husband have been brought out when he was examined as PW1. This being the position, the Court below was perfectly right in not glibly swallowing the version put forth by the appellant as PW1 and also the version of his friends MFA No.632 of 1999 13 examined as PW2 to 4. 16. This Court is at a loss to understand as to how the appellant/ petitioner could put up a case of 'cruelty' upon the respondent wife, referring to the incident when she had to hide on the sun shade. The very fact that the respondent wife had to take shelter on the sun shade suggests that she was scared of something or somebody. The respondent wife has tendered evidence as RW1, that the husband (PW1) used to consume liquor at the residence, serving the same to the friends and relatives, also playing cards till late in the nights, which was sought to be stopped by her and this had annoyed the husband. It is also the case of the respondent as brought out in the pleadings and evidence that PW1 had assaulted her with the handle of broom stick, which made her to hide on the sun shade and that there was no threat or proclamation to commit suicide from her side. Even if there was any such threat, in view of the fact that she had to take shelter on the sun shade at least on one occasion, it is obvious that there is something wrong somewhere or that the respondent wife requires some support or treatment, as the case may be. The appellant/husband has conceded that he had never taken her to any Doctor or for any counseling and no such course has been advised even by the friends who were examined as PW2 to 4. On the other hand, the situation leading the respondent wife to take shelter on the sun shade has been projected by the MFA No.632 of 1999 14 appellant/husband as an instance of 'cruelty' against him; which is nothing but a paradox. There is absolutely no merit or bonafides in the pleadings or evidence tendered from the part of the appellant/husband as to the alleged cruelty on the part of the respondent wife, so as to make him eligible to have a decree of divorce on the ground of 'cruelty' as contemplated under Section 13 (1) (ia) of the Act. In the above facts and circumstances, this Court finds that the appreciation of the materials on record and the finding rendered by the Court below are very much correct and proper and the finding is well supported by the reasons, which does not call for any interference. In the result, the appeal fails and the same is dismissed. The parties shall bear their cost. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc