IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 MFA.No. 760 of 2002(A) ---------------------- OP(HMA).357/1994 of FAMILY COURT,TRIVANDRUM .................... APPELLANT: 1ST PETITIONER ---------------------------- KERALAKUMARAN S/O.ANANDAN, PADIPPURA VEEDU, ELAKAMON DESOM, AYIROOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.M.S.RADHAKRISHNAN NAIR SRI.B.S.SWATHY KUMAR SRI.K.HARILAL RESPONDENT: RESPONDENT ------------------------- BABY SAROJAM D/O.KUNJIKUTTY, PLAVILA VEEDU, KARIMBALOORCHERRY, PARIPPALLI VILLAGE, KOLLAM DISTRICT ADV. SMT.PREETHY KARUNAKARAN SMT.K.KUSUMAM SRI.R.RAJESH KORMATH SRI.ANISH S.AMBADY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19-11-2008, THE COURT ON 2-2-2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== M.F.A.NO.760 OF 2002 ============================ DATED THIS THE 2ND DAY OF FEBRUARY 2009 JUDGMENT Hari Rani,J. This appeal is filed by the husband who is the 1st petitioner in O.P.(HM)No.357/1994 on the file of the Family Court, Thiruvananthapuram. The appellant has filed petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of cruelty and desertion. The Family Court, after considering the evidence on record, has dismissed the petition with costs as per judgment dated 26-3-2002. Aggrieved by the impugned judgment, the appellant/husband has filed this appeal. The material facts stated in the petition in brief are as follows: 2. The first petitioner was employed abroad and a power of attorney was executed in favour of his father, the second petitioner, who filed the petition for divorce. The first petitioner M.F.ANO.760/2002 -2- married the respondent on 12-2-1984 as per the Hindu religious rites and lived together as husband and wife. One male child named Manu is born in that wedlock. The behaviour of the respondent towards the first petitioner was contemptuous and she was not obeying the first petitioner. After the expiry of the leave, the first petitioner went to the Gulf. Thereafter, the respondent went to her house, disobeying the direction of the first petitioner, who wanted her to stay in the matrimonial home. On 21-1-1990, the first petitioner returned to the native place. The respondent did not come and reside with him, in spite of his request to come and stay with him. Thereafter, owing to the intervention of the police, she came and stayed with the first petitioner for a few days. Subsequently, the respondent returned to her parental home pursuant to a petition filed by her mother before the Varkala Police Station. As a result of this, the first petitioner suffered humiliation. On 10-5-1990 when the first petitioner again went abroad, the respondent was pregnant for two months, which was disclosed by the respondent to the first petitioner and to his relatives. Subsequently, the respondent has aborted her pregnancy. At that time, she was pregnant for M.F.ANO.760/2002 -3- five months. That pregnancy was due to her illicit relationship with strangers while she was residing along with her mother in her house. For that reason, that pregnancy was aborted by her. That fact was known to the first petitioner and his relatives. Subsequently, the respondent used to behave in a very cruel manner to the first petitioner. The only motive of the respondent was to extract money from the first petitioner. The respondent filed O.S.No.211/1990 before the Munsiff's Court, Varkala against the petitioners 1 and 2 for an injunction restraining them from entering into the property of the first petitioner. That suit was dismissed. Thereafter, O.S.No.159/1991 was filed by the respondent before the Sub Court, Attingal against the first petitioner claiming maintenance. The landed properties of the first petitioner were also attached. That case was transferred to the Family Court and the same was settled and a compromise petition was filed with a view to prevent the first petitioner from giving evidence in respect of the misdeeds of the respondent before that court. The first petitioner used to send Rs.2,000/- per month as maintenance allowance of the respondent and the child. Without disclosing that fact, the respondent has filed M.F.ANO.760/2002 -4- O.S.No.350/1993 before the Family Court, Thiruvananthapuram to set aside the sale deed executed by the first petitioner in favour of his father, the 2nd petitioner. The properties of petitioners 1 and 2 were also attached as per the order of that court. The respondent obstructed the petitioners from constructing building in that property. She used to send letters scandalizing the parents of the first petitioner. She used to demand huge amount from the first petitioner. The respondent has spread several scandals that the first petitioner was having illicit connection with his brother's wife, Kingini @ Ajitha, that the second petitioner, who is the father of the first petitioner, married his own sister, that the brothers and sisters of the first petitioner were leading immoral lives and that the first petitioner and his brothers and sisters are the illegitimate children of the second petitioner,etc. The respondent tortured the first petitioner mentally and declined to co-habite with him. For the above reasons, the relationship between the first petitioner and the respondent has irretrievably broken and there is no chance for any re-union. The continuation of the marital relationship of the first petitioner with the respondent will harm the life and M.F.ANO.760/2002 -5- prosperity of the first petitioner. The respondent has also deserted the first petitioner for the last more than two years. Hence, the petition for divorce. 3. The respondent filed a counter statement disputing all the allegations in the petition. This petition was filed at the instance of the second petitioner and his Advocate in the name of the first petitioner. The petitioners' counsel came to the house of the respondent demanding dissolution of marriage of the first petitioner with the respondent. It was disclosed that the first petitioner married Kingini @ Ajitha and he is residing with her and for that reason the first petitioner did not come to see the respondent when he returned from the Gulf. The written statement was filed by the second petitioner as the power of attorney holder of the first petitioner in O.S.No.159/1991 against the interest of the first petitioner. When it was brought to the notice of the first petitioner by the respondent personally, it was agreed that the same will not be repeated. Such pleadings were filed to safeguard the self interest of the second petitioner. Subsequently, the first petitioner returned to the Gulf and a total amount of Rs.15,000/- was sent to the respondent on different M.F.ANO.760/2002 -6- occasions. The last payment was in the month of July 1993. Owing to the default of the first petitioner to send the amount towards maintenance of the respondent, she sent a letter to the Manager of the company where the first petitioner was working. On realising the plight of the respondent and her child, the company used to send Rs.2000/- per month by deducting the same from the salary of the first petitioner. The only intention of the first petitioner is to obtain divorce, so that he can continue the relationship with Kingini. The first petitioner compelled the respondent to send a letter to the company stating that the first petitioner and the respondent are on cordial terms. This was done by the first petitioner with a view to dissolve the marital relationship with the respondent, at the instance of the second petitioner. A child was born to the first petitioner in Kingini and she delivered the child on 27-5-1994 in the Bensigar Hospital, Kollam wherein the father's name of the child was noted as that of the second petitioner. The respondent was not at all cruel towards the first petitioner. Instead the first petitioner made an attempt to kill the respondent under the instigation of his father, the second petitioner and other relatives. Thereafter the M.F.ANO.760/2002 -7- respondent did not stay with the first petitioner. The respondent has never aborted her pregnancy. A civil case filed by the respondent against the first petitioner was compromised as the first petitioner agreed to lead a good marital life with her. The first petitioner also agreed to take the respondent to Gulf, but he did not do so. The respondent is not amenable for divorce and prayed to dismiss the petition. 4. The evidence in this case on the side of the petitioners consists of the oral testimony of the first petitioner as PW1 and documentary evidence Exts.A1 to A13. CPWs.1 to 5 were examined on the side of the respondent and Exts.B1 to B17 were marked. The learned trial Judge on consideration of the respective cases of the parties and the evidence adduced by them, both oral and documentary, came to the conclusion that the appellant/first petitioner had failed to prove such cruelty on the part of the respondent so as to pass dissolution of marriage and the petition was dismissed. 5. Though this appeal was referred to Lok Adalat, the parties and their counsel were absent and it was found that there was no possibility of any settlement. Thereafter, this M.F.ANO.760/2002 -8- appeal was taken up for hearing. Heard the learned senior counsel appearing for the appellant. No appearance was made for the respondent and she was absent continuously before this court. 6. This petition is filed by the husband /1st petitioner under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 against the respondent/wife for dissolution of marriage on the ground of cruelty and desertion. When this appeal was taken up for hearing, it was submitted by the learned senior counsel appearing for the appellant that the appellant/first petitioner is not pressing the ground of adultery and is claiming divorce of the respondent, his wife on the ground of cruelty only, that is,under Section 13(1)(ia). 7. Clause (ia) of Section 13 (1) specifies cruelty as one of the grounds for divorce. The relevant portion of Section 13 reads as follows: “13. Divorce,-(1)Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- xx xx xx M.F.ANO.760/2002 -9- (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; “ 8. Cruelty contemplated by sub-clause (ia) of Section 13 (1) is both physical and mental. We are concerned herein with the latter as the learned counsel for the appellant submitted that the appellant is relying on the mental cruelty only for claiming divorce against the respondent. It is not possible to define mental cruelty ‘exhaustively’. According to the learned senior counsel, the pleadings of the respondent before the courts below in different cases will constitute mental cruelty. 9. Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such M.F.ANO.760/2002 -10- conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. Cruelty contemplated under Section 13(1)(ia) of the Act is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent or living together with the spouse had become impossible. The fact that a marriage has irretrievably broken down does not permit dissolution of marriage on that ground and while the same may have to be kept in mind as a circumstance while ascertaining the type of cruelty contemplated by Section 13(1)(ia). Merely because there are allegations and counter allegations, a decree of divorce cannot follow. There must be really some extraordinary features to warrant grant of M.F.ANO.760/2002 -11- divorce on the basis of pleadings and evidence. 10. In the instant case the husband had filed divorce petition against the wife on the ground of cruelty and the wife denied the allegations of cruelty levelled against her. In the counter statement filed by the wife and the questions put by her counsel to the first petitioner/PW1 in cross examination, allegations/suggestions had been made that the conduct of the first petitioner/husband amounts to cruelty in the eye of law and therefore,the first petitioner cannot claim divorce. The allegations in the petition and the contentions in the counter statements have already been set out herein above. It is significant to note that this is not a case where the allegations are made only by one party against the other. Both have levelled serious allegations against the other. It is settled law that physical violence is not a necessary ingredient of cruelty and also that making reckless allegations of immorality against the other spouse amounts to mental cruelty. Mental cruelty is now well recognized as a ground for divorce. While evaluating the same, every act must be judged with reference to its attendant circumstance, and the physical or mental conditions or M.F.ANO.760/2002 -12- susceptibility of the innocent spouse and the intention of the offending spouse are all matters of decisive importance. It is not possible to compartmentalise the concept of cruelty. In each case the facts have to be considered. The whole matter must be taken together. 11. It is argued by the learned counsel for the appellant that the cruelty alleged by the appellant claiming divorce of his wife is not of violent acts but of injurious reproaches, complaints and accusations of immorality against the entire members of his family and also against the husband/appellant. The learned counsel has read the evidence of PWs. 1 to 5 in full to substantiate the case of the appellant. PW1 is the first petitioner/husband of the respondent, who is claiming divorce in the present case. The marriage between the first petitioner and the respondent was solemnized on 12-4-1984 as per the custom prevailing in the Hindu community. According to PW1, the respondent/wife was disobeying him from the very beginning of the marital life and the respondent went to her parental home disobeying the first petitioner. The respondent took a contemptuous attitude and she raised baseless allegations of M.F.ANO.760/2002 -13- immorality against him and his parents, brothers and sisters. The respondent alleged that the first petitioner leads an adulterous life with one Kingini @ Ajitha and that he is a matrimonial offender, who married Kingini @Ajitha. PW1 has denied the contention of the respondent and deposed that he has no illicit relationship with Kingini @ Ajitha, who is the wife of his younger brother Krishnadas. The respondent had illicit relationship with somebody else and was pregnant by five months, which was aborted by her. Then she filed several cases against him and his landed properties were attached. She is leading an immoral life. 12. The respondent as CPW1 has denied all allegations against her and deposed that her husband came from the Gulf on 2.8.1992 and resided along with her till 17.8.1992. On that day, when he returned to gulf, he assured that she and her son would be taken abroad. On that assurance, the case filed by her for maintenance was dismissed as settled. Exhibit B1 is the copy of the judgment and Ext.B2 is the copy of the compromise petition filed in O.S.No.47/1992. Exts.B3 and B4 were produced by the respondent to show that passports were taken by the first M.F.ANO.760/2002 -14- petitioner for taking the respondent and the child born in that wedlock to abroad. However, they were not taken abroad as agreed by the first petitioner. According to CPW1, she has been residing separately from her husband/first petitioner from September 1993 onwards. Thereafter, she filed complaints and petitions before the police authorities against the first petitioner alleging physical and mental torture by the first petitioner and his parents. CPW1 has deposed that the first petitioner married his uncle’s daughter Kingini@Ajitha on 2-9-1993 and deserted the respondent and the child. Ext.B14 is produced by the respondent, which is the certified copy of the birth register of Ajithkumar.K., a child born to Kingini @ Ajitha at Bensigar Hospital, Kollam on 27-5-1994. According to CPW1, the name of the father of the child was shown originally as Ananthan, who is the father of the first petitioner. Subsequently, the same was corrected as Krishnadas, the younger brother of the first petitioner. According to the respondent, that child was born to the first petitioner in the relationship with Kingini @Ajitha and a second child was born to them on 27-10-1999. She has filed C.C.No.696/1994 before the Court of J.F.C.M., Varkala against M.F.ANO.760/2002 -15- the first petitioner and 18 others alleging bigamy and other offences. All the accused therein were acquitted. She filed a petition before the Women’s Commission and the first petitioner did not appear before the commission for DNA test of the child of Ajitha for the reasons best known to him. Thus, according to CPW1, her husband married Kingini @Ajitha and he has deserted her and the child. The respondent has relied on Ext.B15 photograph and the negative to substantiate her contention that the first petitioner married Kingini @ Ajitha. According to CPW1, she came to know from her husband that the 2nd petitioner, who is the father of the first petitioner, married his own sister and that the first petitioner was born out of that relationship. She has denied the allegation against her that she spread rumours of immorality against the sisters of her husband. She has also deposed that she is not prepared for a divorce till her death. 13. It is evident from the deposition of PW1 and CPW1 that there are sufficient reasons for the respondent-wife to reside separately from the first petitioner-husband and that she cannot be blamed for desertion, cruelty etc. On the other hand, cruelty, desertion and adultery are to be attributed to the first petitioner. M.F.ANO.760/2002 -16- Though, the first petitioner has raised an allegation, and also deposed before court, to the effect that the respondent was leading an immoral life in the company of strangers and has aborted a child, etc. no evidence has been adduced to that effect. Further, that contention has not been pressed by the appellant before us. According to PW1,the respondent had illicit relationship with somebody else and that she suppressed the fact that she was pregnant by five months which she got aborted later. The further allegations against the respondent are that she has filed cases one after the other against the first petitioner and also attached his landed properties. It is further deposed by PW1 that the respondent raised baseless allegations of immorality against the first petitioner, his father, mother, brothers and sisters and also filed complaint against the first petitioner and his relatives with the allegation of bigamy. Subsequently he was arrested by the police and was physically tortured. The first petitioner relied on Ext.A5 photocopy of the notice dated 2-9- 1993 issued on his behalf to the respondent seeking restitution of conjugal rights. Ext.A6 is the reply notice issued by the respondent to Ext.A5 notice wherein physical cruelty was alleged M.F.ANO.760/2002 -17- against the first petitioner and also that the first petitioner deserted the respondent on settling the civil case, O.S.No.47/1992 and married Kingini @ Ajitha. Ext.A7 is another reply notice dated 6-2-1994 to the notice dated 27-1-1994 issued by the first petitioner wherein also the respondent reiterated the allegation that the first petitioner married Kingini @ Ajitha and she is not at all ready to the demand of divorce. 14. Kingini @ Ajitha was examined on the side of the respondent as CPW3. According to CPW3, she is the wife of CPW2, Krishnadas, who is the younger brother of the first petitioner and the respondent is the wife of her husband's elder brother. She has also deposed that two children are born to her through Krishnadas and they are Ajith and Aswathi. She has admitted that the name of the father of the first child was corrected subsequently as Krishnadas. That Krishnadas is now residing with the respondent. She has admitted that in Ext.B15 photograph, the first petitioner stands near her, keeping his hand on her shoulder. Though she has denied of taking such a photograph, it cannot be believed that the same was concocted fraudulently for the purpose of this case. Ext.B15 Photograph M.F.ANO.760/2002 -18- was produced by the respondent along with the negative. The close relationship of the first petitioner with CPW3 is evident from Ext.B15 as correctly held by the learned trial Judge. CPW3 also admitted that the summons was served on her in this case by the process server in the house named “Rudra Nivas”, which is the house of her father-in-law, who is admittedly her uncle. That process server was examined as CPW4. It is evident from the testimony of CPW4 that summons was served to CPW3 at Rudra Vilasam house where the first petitioner was also present at that time when the summons was served on her. According to CPW4, CPW3 received the summons as per the instructions of the first petitioner after handing over the child to him. 15. Krishnadas was examined as CPW2, who is the younger brother of the first petitioner. According to CPW2, Ajitha is the second wife of his brother Keralakumaran, the first petitioner. According to him, the first petitioner married Ajitha in September 1993 and two children are born to them in that wedlock. Originally, the name of his father Ananthan was noted as the father of Ajithkumar, the first child and subsequently his name was incorporated as the father in Ext.B14 birth register, M.F.ANO.760/2002 -19- which according to CPW2 was done to escape from criminal liability. It is deposed by CPW2 in the cross examination that he is on inimical terms with the first petitioner, his brother, for the reason that he married Ajitha before the dissolution of marriage with the respondent. 16. Thus, it is evident from the oral testimony of PW1 and CPWs.1 to 4 that the marital relationship between the first petitioner and the respondent got strained from September, 1993 onwards. There is no evidence to substantiate the allegation of the petitioner that the respondent had any illicit relationship with other strangers and she aborted her pregnancy. However, there is evidence to show that the respondent filed cases claiming maintenance allowance against the first petitioner and she wrote a letter to the West Cosa Company requesting for maintenance allowance and some amount was sent to her by the company from the salary of the first petitioner which would show that the first petitioner refused to give maintenance allowance to the respondent which compelled her to file case against the first petitioner for his default. Exts.A11(a), A12 and A13 were produced by the first petitioner which are the letters sent by the M.F.ANO.760/2002 -20- respondent wherein she expressed her intention to stay in her own house because of her strained relationship with the relatives of the first petitioner. The respondent denied having sent those letters. The allegations of the first petitioner that the respondent was leading an immoral life is not substantiated. On the other hand, there is sufficient evidence to show that the first petitioner leads an adulterous life with Ajitha which