IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 29TH DAY OF NOVEMBER 2011/8TH AGRAHAYANA 1933 Mat.Appeal.No. 670 of 2011 (A ) --------------------------------- OP.NO.417/2009 of FAMILY COURT, KANNUR DATED 30.06.2011 APPELLANT: ---------- JAIMON JOSEPH @ MATHEW, S/O.JOSEPH, AGED 33 YEARS, PURAVAKKATTU HOUSE, TABORE P.O. CHERUPUZHA VIA, THALIPARAMBA TALUK KANNUR DISTRICT. BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR) RESPONDENT/PETITIONER: ---------------------- SEENA MOL.M.M @ MARY, D/O.MATHAI, AGED 30 YEARS, MEPRATHU HOUSE, THIRUMENI P.O., CHERUPUZHA VIA, THALIPARAMBA TALUK KANNUR DISTRICT, PIN 670511. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 29-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MJL THOTTATHIL B. RADHAKRISHNAN & C.T. RAVIKUMAR, JJ. -------------------------------------------- Mat.Appeal No.670 of 2011 & C.M.Application No.2145 of 2011 -------------------------------------------- Dated this the 29th day of November, 2011 JUDGMENT Ravikumar, J. The appellant was the respondent in O.P.No.417 of 2009 before the Family Court, Kannur filed by the respondent herein under section 10(1)(x) of the Divorce Act. This matrimonial appeal came up along with C.M.Application for condonation of delay in filing the appeal. 2. The marriage between the petitioner and the respondent who are Christians, was solemnised on 12.5.2005, as per the rites and customs prevailing in the Christian Community. After a short stay in the matrimonial home, they shifted to Delhi in connection with the employment of the respondent wife as a Lab Technician in a private hospital. The concatenation since then, reveals degeneration of their connubial relation that ultimately led to the institution of O.P.No.417 M.A.670/11 2 of 2009. In the said petition, the respondent-wife alleged cruelty against the appellant-husband. It was alleged that the appellant herein contracted the marriage misrepresenting himself as an Engineering Graduate working in a reputed company at Bangalore. He always kept suspicious eye on her and used to attribute infidelity on her. He is an inebriate and used to prove his prowess on her under pot- valiancy. Accusation of unchastity had gone to the extent of characterising her as a prostitute. Kinsfolk kissed the dust in their attempt to bring home harmony. The appellant then took her to Bangalore, but the ordeal continued. While staying there, the appellant used to lock her inside the flat. Later, in July, 2006, she went to Saudi Arabia to take up employment as a Lab Technician and from there, she used to contact him over phone. The appellant had shown interest only in extracting money from her and had shown little care and consideration for her. On 5.5.2009, she came back home on leave. On her return, she stayed at her parental home. The appellant frequently contacted her during the said period; but, only for harassing and humiliating her. Baseless imputation of immorality M.A.670/11 3 coupled with torturing under intoxication created in her mind a reasonable apprehension that further cohabitation with the appellant herein would endanger her life. It was with such allegations that the respondent- wife filed O.P.No.417 of 2009. 3. The appellant refuted such allegations levelled by the respondent. He possessed the qualifications of PDC and ITI and according to him, he never misrepresented on his educational qualifications or on his employment. It was his case that the respondent-wife was always cruel towards him and she had, in fact, illicit relationship with one Shaji @ Francis who was working with her in Delhi. It was his specific allegation that the respondent had compelled him to stay in Delhi only with a view to create conducive circumstances to continue her illegal relationship with the said Shaji who is a divorcee. The respondent continued affairs with Shaji even during their stay in Bangalore, it was further stated. He has also raised the allegation that the respondent used to consume alcohol from pubs. M.A.670/11 4 4. The appellant and the respondent were examined respectively as RW1 and AW1. No documentary evidence was adduced on either side. The Family Court took note of the fact that the appellant and the respondent were residing separately for the past 4 years. The Family Court also took note of the fact that cruelty was not defined in the Act and therefore, the contentions of the parties have to be scanned to ascertain the sustainability of the allegations of cruelty. Relying on a decision of this Court in A v. B (2000 (2) KLJ 734) holding that false, scandalous, malicious and baseless allegations made by the one spouse, whether by letters or written statement or by any other mode, amount to cruelty and considering the rival contentions and the respective evidence adduced by the parties, the Family Court came to the conclusion that the allegations levelled by the respondent against the appellant could be treated as baseless. Even after holding that there is no direct evidence for the alleged physical cruelty, it was held that making false, scandalous, malicious and baseless allegations as mentioned above would amount to mental cruelty. The Family Court considered the aspect that the appellant M.A.670/11 5 failed to adduce any reliable evidence to prove the allegations raised against the respondent wife in the counter statement. But, based on such allegations levelled by the appellant against the respondent wife in the counter statement coupled with his admission during the cross examination that he had no direct knowledge about the so called illicit connection of the respondent with the above mentioned Shaji, the Family Court came to the conclusion that the appellant had been making false, scandalous, malicious and baseless allegations against the petitioner before it and such allegations tantamount to mental cruelty. Evidently, while being examined as RW1, the appellant admitted that he had no direct knowledge about the wife's alleged habit of consumption of alcohol from pubs. True that raising such allegations in the counter statement cannot be the sole material for attributing cruelty on the appellant-husband. However, after having made such allegations against the respondent wife, the petitioner deposed to the effect that he had no direct knowledge about any illicit connection of the respondent with said Shaji whose name was referred to in the counter statement. In this context, it is to be noted that the M.A.670/11 6 specific case of the respondent wife was that the appellant herein was having the habit of persistently charging immorality on her and had attributed illicit connection with others including her colleagues. It is in that context, the allegations levelled by the appellant in the counter statement and his oral testimony assume relevance. Evidently, in the counter statement, he had specifically stated that the respondent wife was having illicit connection with Shaji @ Francis who was working with her in Delhi. It was further stated therein that it is only with a view to have such illicit relationship with that person that she compelled the appellant to go and stay at Delhi. Furthermore, it was stated therein that even when she was taken to Bangalore, she continued with the illicit affairs with the said Shaji. In fact, a careful consideration of the allegations levelled by the appellant as aforesaid in the counter statement coupled with his deposition as RW1 would lend support to the contention of the respondent- wife that the appellant herein was having the habit of raising baseless allegations of unchastity. Though mere making of allegations in a counter statement or making false charge during cross examination by itself would not M.A.670/11 7 amount to cruelty, consideration of such circumstances while considering the aforesaid contentions of the respondent wife cannot be said to be irrelevant or illegal. We have no doubt that viewing the materials available on record in that angle would definitely support the findings of the Family Court. 5. It is true that it would be difficult to define the expression 'cruelty' and it has not been defined in the Act. Therefore, it must be judged on the facts of each case having regard to the attending circumstances. In this case, material facts available from record having regard to the surrounding circumstances would definitely support the case of the respondent. The apprehension of the respondent -wife that further cohabitation with the appellant would endanger her life cannot be said to be baseless or unfounded. In the totality of the circumstances, no legal infirmity or illegality can be attributed on the conclusion arrived at by the Family Court that the appellant-husband had made false, scandalous, malicious and baseless allegations against the respondent -wife and that it amounted to M.A.670/11 8 mental cruelty. In our view, this matrimonial appeal is liable to fail at the threshold, on merits and is not one to be admitted to file. We see no reason to condone delay in filing the appeal in the circumstances, even though the delay is of short duration. For the foregoing reasons, we decline to entertain the application for condonation of delay in filing the appeal and accordingly, C.M.Application No.2145 of 2011 is dismissed. Consequently, the matrimonial appeal is also dismissed in limine. THOTTATHIL B. RADHAKRISHNAN (Judge) C.T. RAVIKUMAR (Judge) spc/ M.A.670/11 9 M.A.670/11 10