IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 Mat.Appeal.No. 267 of 2009(F) ---------------------------- APPELLANT/PETITIONER ----------------------------------- GEEMALATHA,D/O.KANNAN,AGED 29 YEARS, RESIDING AT THAYYENI, PALAVAYAL VILLAGE, HOSDURG TALUK, THAYYENI P.O. KASARAGOD DISTRICT. BY ADV. SRI.K.RAJESH SUKUMARAN RESPONDENT : RESPONDENT ------------------------- P.B.VINOJ,S/O.BALAKRISHNAN, AGED 32 YEARS, RESIDING AT PALERI HOUSE, PALAVAYAL VILLAGE, HOSDURG TALUK, KASARAGOD DIST. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal No.267 of 2009 ------------------------------------- Dated this the 30th day of November, 2009 JUDGMENT BASANT, J. This appeal is preferred by the wife/petitioner aggrieved by the rejection of her claim for divorce on the ground of cruelty and mental ailment of the husband. The claim was staked under Section 13(1) (ia) of the Hindu Marriage Act. 2. The spouses belong to different communities. They were known to each other from childhood. Their marriage did not have the approval of the parents. The marriage took place on 22.06.2002. The husband is a Post graduate. He was employed in a college for some time. He used to do odd jobs including work as a painter. After marriage, the spouses lived in Andhra Pradesh for some time. Later they returned. The wife complained that the husband was showing symptoms of mental ailment. He was always suspicious about her chastity. He used to behave cruelly to her. She was unable to endure the instances of cruelty. It is, in these circumstances, that she staked the claim for divorce on the ground of mental illness and cruelty. 3. The husband resisted the claim for divorce. According to him, he was not guilty of any matrimonial cruelty. He did not suffer from any mental ailment. The wife was a pawn Mat.Appeal Nos.118 & 144 of 2004 2 in the hands of her parents, who did not approve of her marriage with the respondent/husband. She is dancing to their tunes and has filed the application for divorce without any valid cause. 4. This was the second time that the wife was coming to Court with her claim for divorce. On an earlier occasion a similar claim was staked. But before the Counselor attached to the Family Court the wife agreed to resume cohabitation. That earlier application was dismissed. But as she found that the husband had not changed his ways, she came back to this Court and renewed the prayer for divorce. 5. Parties went to trial on these contentions. The appellant/wife examined herself as PW1. The respondent/husband examined himself as RW1. Ext.A1 certificate of marriage was produced. No other evidence whatsoever was adduced. 6. The court below considered the evidence tendered by the rival contestants. A reading of the impugned judgment shows that the court below did not entertain any doubt that the evidence if believed and the grounds urged if accepted the wife is entitled for a decree of divorce on the ground of cruelty, but took the view that no independent evidence was available and hence the claim for divorce cannot be allowed. Mat.Appeal Nos.118 & 144 of 2004 3 7. Service on the respondent/husband has been attempted. Notices issued to him were returned twice unclaimed. This Court had directed that notice be given to the counsel for the respondent appearing before the court below. At that juncture, the counsel for the respondent refused to accept notice. It is, in these circumstances, that it was declared that there is due service. The counsel for the appellant pressed for an early hearing. Accordingly records were called for. Arguments were heard. 8. Before us, the learned counsel for the appellant/wife has advanced his arguments. The learned counsel for the appellant/wife now presses the claim for divorce only on the ground of matrimonial cruelty under Section 13 (1) (ia) of the Hindu Marriage Act. 9. On the question of cruelty, we have only the oral evidence of appellant/wife against that of the respondent/husband. We have been taken through the oral evidence of the rival contestants in detail. The court below appears to have insisted mechanically that evidence of matrimonial cruelty must be supported by independent corroborative evidence. In fact, the court below, instead of appreciating the oral evidence of the rival contestants for their Mat.Appeal Nos.118 & 144 of 2004 4 intrinsic worth, entered a finding against the appellant only on the ground that the mediators who had intervened had not been examined. Mediators could only have proved what happened on the basis of the allegations subsequently raised by the parties about the precise cruelty. It was certainly improper for the court to have thrown its hands up for the reason that independent corroborative evidence is not available to prove matrimonial cruelty. 10. Broad circumstances have to be appreciated. It was a love marriage between the couple. They were known to each other for a long period of time. Both of them are educated and had secured employment also. One child was born in the wedlock. The husband has no reason to explain as to why the spouses are residing separately. The wife had a specific case of matrimonial cruelty to be advanced. She tendered evidence in support of her case. While appreciating the oral evidence of the appellant/petitioner, no court could have lost sight of the fact that an earlier application for divorce was filed by the wife on the very same ground and that after counselling she had agreed to resume cohabitation with the respondent/husband. It is her very specific case that she was compelled to come to the court again Mat.Appeal Nos.118 & 144 of 2004 5 with another application as the husband did not change his ways and continued to indulge in acts of cruelty. Evidence of the rival contestants available as PW1 and RW1 must necessarily have been examined very closely by the court. In this factual background we find merit in the contention that the court below did not attempt to appreciate the oral evidence tendered by the rival contestants. 11. The wife had a tale of woes to narrate before the Court. Specific allegations were raised by her against the husband. According to her he was very suspicious and he always suspected her chastity. He used to vex her by monitoring her conduct all the while. He did not like her to speak to anyone else. If she speaks to parents and colleagues at the school where she was employed, the husband would get irritated and make allegations against her. She became pregnant after two months of marriage. The husband asserted that he was not responsible for the pregnancy. He insisted that she must go before the temple and take oath. She did. At the house also in front of the sacred lamp, she was compelled to take oath. Counselling and psychiatric consultations were attempted. But those were of no avail. When she used to work at the Anganwadi, he would roam around the Anganwadi always. If she speaks to anyone, he will Mat.Appeal Nos.118 & 144 of 2004 6 make a row of it. In the night he used to suspiciously examine her clothes. At 2 a.m in the night, he would get up and ask her whether she had gone out of the house little earlier. To prevent her from going out, he would lock the door and carry the key on his waist. Inspite of all these instances, she resumed cohabitation and did not press the earlier application. Such joint residence could not go on harmoniously. For the first two days, there was no problem, but identical problems arose even thereafter on account of the cruel conduct of the husband. For 9 months, she continued to tolerate her husband after resumption of cohabitation - ie. after the dismissal of the earlier application. But he continued with such behaviour. 12. These facts are asserted by her on oath. Significantly in the course of cross examination of the wife as PW1 or when the husband was examined in chief as RW1, there was no attempt whatsoever to specifically deny the above specific acts of improper conduct on the part of the husband. 13. We have no hesitation to agree that the court below committed the cardinal error of not attempting to appreciate the evidence tendered on its intrinsic worth. It would be artificial and improper for spouses to tender corroborative evidence on the aspect of matrimonial cruelty - especially instances of Mat.Appeal Nos.118 & 144 of 2004 7 matrimonial cruelty like the one alleged in this case. In the totality of facts and in the background of undisputed circumstances, the oral evidence of PW1, which virtually remains uncontroverted in details by cross examination or by tendering contra evidence by the husband, we have no hesitation to agree, must have been accepted by the court below. In not accepting such evidence, without putting the evidence to assessment and evaluation on its intrinsic worth, the court below has definitely committed a serious error. That error has resulted in failure/miscarriage of justice. In the nature of the evidence that has been tendered before the court, notwithstanding the fact that independent oral evidence has not been tendered to corroborate the allegations and Mediators have not been examined, we have no hesitation to agree that the court below must have accepted the oral evidence of PW1 in preference to that of RW1. What perhaps tilts the scales finally is the very specific assertions on oath of cruelty made by PW1 and the absence of rebuttal of the same by evidence of RW1 or by an effective cross examination of PW1 on detail. 14. We are satisfied that sufficient evidence about the matrimonial cruelty to persuade the Court to come to a reasonable conclusion that the husband was guilty of Mat.Appeal Nos.118 & 144 of 2004 8 matrimonial cruelty has been tendered by the appellant/wife as PW1. Accepting the same, a decree for divorce ought to have been granted by the court below. The challenge raised on this ground succeeds. The appeal must succeed. 15. In the result: a) This Matrimonial Appeal is allowed; b) The impugned order is set aside; c) O.P.No.252 of 2007 is allowed and the marriage between the petitioner/appellant/wife and the respondent/husband solemnised on 22.06.2002 is hereby dissolved by an order under Section 13(1)(ia) of the Hindu Marriage Act; d) Parties are directed to suffer the cost. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/