IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 MFA.No. 1390 of 2000() ---------------------- OP.364/1999 of FAMILY COURT,KOZHIKODE .................... APPELLANT(S)/PETITIONER: -------------- SURESH BABU, AGED 30, S/O. KUNHIRAMAN, THENGINKUNNUMMAL HOUSE, KARUMALA P.O., SIVAPURAM, BALUSSERY, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENTS: --------------- 1.C.K. MINI, AGED 27, D/O. KRISHNAN, CHEENIKKAL HOUSE, KAKKAYAM P.O., KARIYATHUMPARA, KOORACHUNDU, KAKKAYAM, KOZHIKODE. 2.RAMACHANDRAN, AGED 38, THENGINKUNNUMMAL HOUSE, KARUMALA P.O., SIVAPURAM, BALUSSERY, KOZHIKODE. ADV. SRI.SUNNY MATHEW FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.F.A. NO.1390 OF 2000 --------------------------------------------------------- Dated this the 14th day of January, 2009 JUDGMENT Ravikumar, J. The appellant herein was the petitioner in O.P. No.364 of 1999 filed under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 before the Family Court, Kozhikode. The facts, shorn off unnecessary details, are as follows: 2. The marriage between the appellant and the first respondent was solemnised on 3.9.1997. According to the appellant, no children was born in the wedlock and the first respondent-wife left the matrimonial home and started living separately since 22.12.1997. He sought for a decree of divorce on the ground that the first respondent was living in adultery and that she had voluntary sexual intercourse with the second respondent. The second respondent remained ex parte in the proceedings. The appellant is a tailor by profession and the first respondent is a Nursing Assistant. The appellant also alleged desertion and cruelty on the part of the first respondent as grounds for seeking divorce. According to the appellant, the first respondent became pregnant after she started living separately. According to him, on 13.1.1999, he was assaulted by the brothers of the M.F.A. NO. 1390/2000 2 first respondent and the second respondent at Ekarool market, that he was subsequently hospitalised and discharged on 16.1.1999. The serious allegation made by the appellant against the first respondent is that on 22.12.1997 when he returned from the temple along with his mother and sister's child, he found respondents 1 and 2 indulging in sexual intercourse. It was mainly with the said allegations that he filed O.P. No.364 of 1999 before the Family Court. 3. Prior to the filing of the said Original Petition by the appellant, the first respondent herein had approached the Family Court, Kozhikode by filing M.C. No.100 of 1999 under Section 125 Cr.P.C.. In the said Maintenance Case, the first respondent - wife had contended that herself and the appellant were living as man and wife and a child was born to them in the wedlock. She contended that she was treated with cruelty by the appellant and his people and that the appellant has some mental problem. She also contended that the appellant, his mother and other relatives had subjected her to physical torture demanding dowry and that he had been entertaining suspicion of infidelity. According to her, it was the ill treatment and the other circumstances mentioned above that made her to leave the matrimonial home and to live separately and that even during separation, she used to visit the appellant at his house and used to M.F.A. NO. 1390/2000 3 have sexual relationship. She further contended that the appellant had even insisted her to abort the pregnancy. It was with the said allegations and averments with respect to her incapacity to maintain herself and the child that she filed the M.C. No.100 of 1999. In fact, in the written statement filed by the first respondent in O.P. No.364 of 1999, she had reiterated all the aforesaid contentions and further denied the allegations of illegal connection with the second respondent and also with other men. She had even stated therein that she was prepared to undergo D.N.A. test at the expense of the appellant in view of the allegation that she had conceived after living separately. She also denied the fact that she was a Nursing Assistant. Further, the first respondent had contended that she got love and affection towards the appellant and that it was solely on account of his cruelty, both mental and physical, that she had to leave him and start separate residence. In fact, in her written statement, she had denied all the allegations levelled against her by the appellant. 4. Based on the rival contentions, the Family Court framed the following points for consideration: i. Whether the first respondent had voluntary sexual intercourse with the second respondent? ii. Whether the first respondent has deserted the M.F.A. NO. 1390/2000 4 petitioner? iii.Whether the first respondent has treated the petitioner with cruelty? The evidence in this case consists of the oral testimonies of PWs.1 to 3 and RWs.1 to 4. Exts.A1 to A3 were marked on the side of the appellant and Exts.B1 and B2 were marked on the side of the first respondent. 5. A scanning of the evidence would show that a solitary incident of having sexual intercourse with the second respondent was alleged against the first respondent by the appellant besides the vague allegation regarding illegal connection with other men. The Family Court had considered the oral testimony of PWs.1 to 3 and found that there is material inconsistency in their version regarding the alleged incident which is sufficient to disbelieve and discard the allegation. As stated earlier, the case of the appellant who was examined as PW.1 was that on 22.12.1997, when he returned from the temple along with his mother and sister's child, he had seen respondents 1 and 2 indulging in sexual intercourse. According to the appellant, upon his sight, the second respondent took to his heels after pushing him down and thereafter, the first respondent left the house on the same morning itself after taking her belongings. However, she returned by noon along with her brothers in a tempo van and removed all her movables from his house and the M.F.A. NO. 1390/2000 5 appellant was severely beaten up by her brother Gangadharan. PW.2, his mother on seeing this cried aloud for help and she was also pushed by the said Gangadharan. Subsequently, on 13.1.1999, the appellant was assaulted by the brothers of the first respondent and also by the second respondent at Ekarool market and consequently, he was admitted in the hospital and was discharged from there on 16.1.1999. The appellant would further depose that in respect of the said incidents, he had lodged complaints with the police. However, it has come out in evidence that he did not file any such complaints in respect of the said incidents. Though the appellant had denied the paternity of the child, he did not adduce any evidence at all to rebut the presumption available under Section 112 of the Indian Evidence Act. In fact, it is borne out from the records that M.C. No.100 of 1999 was filed by the first respondent herein on 8.3.1999 and the appellant herein had entered appearance on 10.6.1999. Thereafter, he attended counselling on 24.6.1999. It was only thereafter that the appellant had filed O.P. No.364 of 1999. The factum of non filing of complaints in respect of the incidents alleged to have occurred on 22.12.1997 and 13.1.1999 coupled with the said circumstances would probabilise the stand of the first respondent that the Original Petition was filed only as a counter blast to M.C. No.100 of 1999. As held by the Family Court , there is material inconsistency in regard to material facts in M.F.A. NO. 1390/2000 6 the evidence of the appellant and PW.2, his mother. 6. The definite case of PW.2 is that on 22.12.1997 she had visited Ithalat kavu Bhagavathi temple and made offerings at the temple like Pushpanjali, Payasam etc. in her name as also in the name of her grandchild. She would further depose that she had obtained receipts from the temple in regard to the said offerings. In order to disprove the case of PW.2, the first respondent had produced Ext.B1 and examined RW.4 who was the Secretary of the concerned temple. In Ext.B1 certificate issued by the Secretary of the said temple, it is stated that as per the receipt (Book No.145), no offering is seen to have been made at the temple as alleged by PW.2 on 22.12.1997. RW.4 had deposed that keeping carbon copies of the receipts was for the purpose of audit. PW.2 had deposed that she had not filed any complaint in respect of the alleged incident on 22.12.1997 and according to her, the appellant herein had also not lodged any such complaint in respect of the said incident. She would further depose that she had not cried for any help on that day as stated by PW.1. It has also come out in evidence that both the appellant and PW.2 had insisted the first respondent herein to discontinue her work at R.K. Hospital, Balussery as Nursing Assistant and she did not oblige them. The evidence of PW.2 would further go to show that she got a grievance M.F.A. NO. 1390/2000 7 that she was not cared properly by the first respondent. PW.2 had admitted that she had no complaints against the first respondent prior to 22.12.1997. 7. An analysis of the evidence of PWs.1 and 2 would make it clear that they have no consistent case and in the circumstances, the conclusion of the Family Court that PWs.1 and 2 would have got a consistent case had the incident as mentioned in paragraph 6 of the petition been true cannot be held as perverse or improbable. In the circumstances, the Family Court was right in not relying on the evidence of PWs.1 and 2 in the absence of any other independent evidence. 8. PW.3 is a carpenter. He would depose that he came to know about the incident alleged to have occurred on 22.12.1997 from his wife. Therefore, it can only be a hearsay evidence. The testimony of PW.3 would reveal that nothing was brought out from him to support and sustain the case of the appellant. According to PW.3, he was present in his house throughout the day on 22.12.1997. On an appraisal of his evidence, the Family Court arrived at a conclusion that the alleged presence of PW.3 in his house on 22.12.1997 itself is doubtful and, therefore, no reliance can be placed on his testimony. On going through M.F.A. NO. 1390/2000 8 his evidence, we found nothing to disagree with the said conclusion of the Family Court. Ext.A1 is an anonymous letter received by PW.1 containing serious allegations against the first respondent. Definitely, Ext.A1 might have strengthened the suspicion about the first respondent in the mind of the appellant. In short, the evidence adduced in this case is not sufficient to prove that the first respondent had voluntary sexual intercourse with the second respondent and that she was living in adultery, as alleged by the appellant herein. 9. Another ground raised by the appellant for seeking a decree of divorce was desertion. According to him, the first respondent had started living separately from 22.12.1997. The definite case of the first respondent is that the appellant is a man of suspicion and that she had started living separately solely on account of the cruelty on the part of the appellant. She had deposed that it was impossible for her to reside with the appellant on account of his cruelty. The allegations made by the appellant in paragraph 6 of the petition and his attempts to establish the same would probabilise the version of the first respondent that he was entertaining suspicion of infidelity. If the husband's behaviour makes it impossible for the wife to live in the house and she leaves the home, may be with animus deserendi or animus revertendi, the said action cannot M.F.A. NO. 1390/2000 9 constitute desertion as in such a case it is the husband's behaviour that gives the wife a reasonable ground to form such animus and to make the departure. The statutory principle that one shall not be allowed to gain from his/her own flaw lend support to the said view. Viewing the case in hand in the said angle, it cannot be said that the first respondent is guilty of desertion. As stated earlier, according to the first respondent, it was cruelty, both mental and physical, and the factum of his being a man of suspicion that made it impossible for her to live with him in his house. In the circumstances of the case, the first respondent cannot be said to have committed desertion so as to enable the appellant to raise that ground for seeking a decree of divorce. The ground of desertion raised by the appellant was dispelled by the Family Court on another ground as well. In paragraph 14 of the petition, the appellant had stated that the cause of action had arisen on 22.12.1997. He had filed the Original Petition on 21.7.1999. Based on the relevant provisions in law, the Family Court held that the appellant had failed to prove that the first respondent had deserted him for a continuous period of not less than two years immediately prior to the filing of the Original Petition and, therefore, he is not entitled to invoke the ground of desertion. The said finding of the Family Court is perfectly legal and correct in view of Section 13(1)(i-b) of the Hindu Marriage Act. M.F.A. NO. 1390/2000 10 10. Yet another ground of cruelty was raised by the appellant in the Original Petition for seeking a decree of divorce. His case is that though they resided together for about four months, he had no sex with her, rather, she refused to have sex with him and even on the first night, she did not allow him to touch her. Admittedly, a child was born to the first respondent. Though the appellant denied the paternity of the said child, he had failed to adduce any evidence to rebut the presumption available under Section 112 of the Indian Evidence Act,1872. In this context, it is apposite to note that the first respondent had expressed her willingness to undergo D.N.A. test at the expense of the appellant. In fact, paternity can be decided by conducting D.N.A. test. He has failed to adduce any evidence to sustain and support his denial of paternity. The appellant could have taken step to get the question of paternity decided by undergoing the D.N.A. test. Though the appellant has a definite case that the first respondent is living in adultery, he has failed to prove the same. It is of no doubt that false allegation of unchastity against the wife by the husband amounts to cruelty. In short, the evidence borne out from the records in this case would justify the observation of the Family Court that it was the appellant who had treated the first respondent with cruelty. The appellant has got a further case that the first respondent continued in M.F.A. NO. 1390/2000 11 her job inspite of his request and advise to resign. The Family Court has rightly found that pursuing one's own profession cannot be treated as cruelty against the other spouse and virtually it would only help the other spouse financially. 11. A scanning of the entire evidence in this case would thus go to show that though the appellant who attributed adultery, desertion and cruelty on the part of the first respondent had failed to prove the said allegations. Suffice it to say that the appellant had failed to prove his case on any of the grounds raised by him. In our view, the Family Court has rightly dismissed O.P. No.364 of 1999 filed by the appellant herein for a decree of divorce and as such the judgment and decree of the Family Court does not warrant any interference. Accordingly, the appeal is dismissed. The parties shall bear their respective costs. (P.R. RAMAN) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.F.A. NO. 1390/2000 12 C.R. P.R. RAMAN & C.T. RAVIKUMAR, JJ. M.F.A. NO. 1390/2000 JUDGMENT 14th January, 2009 M.F.A. NO. 1390/2000 13