IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE MR.JUSTICE K.K. DENESAN THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 13TH APRIL 2007 / 23RD CHAITHRA 1929 MFA.No. 78 of 2002(B) --------------------- OP.363/1999 of FAMILY COURT,ERNAKULAM .................... APPELLANT: ----------- SUCHITHRA D/O. M.RADHAKRISHNAN NAIR, RESIDING AT JANAKI MADHAVAN, ALLEPPEY. BY ADV. SMT.ELIZABETH MATHAI IDICULLA SRI.MOHAN IDICULLA ABRAHAM RESPONDENTS: RESPONDENT ----------------------- ANIL KRISHNAN, S/O. G.K.PILLAI, RESIDING AT PLOT NO.298, GOURI, PANAMPILLY NAGAR, COCHIN-682 036. BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN SRI.K.P.PADMAKUMAR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2007, THE COURT ON 13/04/2007 DELIVERED THE FOLLOWING: I.A. NOS. 2285, 144/07 AND 1092 OF 2007 IN M.F.A. 78 OF 2002 CLOSED SD/- K.K.DENESAN, JUDGE SD/- V. RAMKUMAR, JUDGE 13TH DAY OF APRIL 2007 K.K.DENESAN & V. RAMKUMAR, JJ. ------------------------------------ M.F.A.NO. 78 OF 2002 ------------------------------------ Dated, 13th April 2007 JUDGMENT Ramkumar, J. This is the wife's appeal under sec.19(1)(i) of the Family Court's Act, 1984 challenging the order dt. 24.11.2001 in O.P.No.363/1999 on the file of the Family Court, Ernakulam. The said O.P. was filed by the respondent/husband under sec.13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty and sec.13 (1) (ib) on the ground of desertion. THE HUSBAND'S PLEADINGS 2. The case of the respondent/husband in the petition for divorce is as follows:- The petitioner (Anil Krishnan) and the respondent (Suchitra) are Hindus belonging to the Nair community. Their marriage was solemnized according to the customary rites at Sree Rama Mandir in Alappuzha on 8.6.1991. On the same day the petitioner and the respondent came to the petitioner's house at Ernakulam and thereafter they were living together at Ernakulam. Right from the beginning of their stay in the petitioner's family MFA 78/02 2 house, the petitioner found the respondent behaving very strangely towards him and his parents. She exhibited anger and annoyance towards the petitioner and his parents. At first the petitioner thought that the respondent's behaviour was due to her initial inability to adjust to the life of a newly married wife. He tolerated her behaviour and lived as a loving husband. The respondent continued exhibiting cold behaviour and informed the petitioner that she had dislike for him and his parents and wanted to leave the matrimonial home. On 24.7.1991 the respondent went to her parental house at Alappuzha. Thereafter on 26.7.1991 the parents of the respondent informed the petitioner that the respondent was pregnant. The petitioner and his parents immediately went to the respondent's house at Alappuzha to take her back to the matrimonial home. Initially the respondent refused to go with them. She did not offer any explanation for her dislike to return to the matrimonial home. The respondent, however, came back to the matrimonial home on 4.8.1991 after much persuasion from the petitioner and also from the parents of both the petitioner and the respondent. MFA 78/02 3 After returning to the matrimonial home, the respondent continued to be indifferent towards the petitioner and insisted that she be taken to her parental house. She had to be taken to Alappuzha on 30.8.1991. She was brought back on 20.9.1991, but on 2.10.1991 on her insistence the respondent was taken again to Alappuzha. Her parents brought her back on 3.10.1991. On 5.11.1991 she again went to her parental home at Alappuzha. The parents of the petitioner went to Alappuzha on the request of the petitioner to persuade the respondent to come and stay in the matrimonial home with the petitioner. As there was no justifiable cause for the respondent's failure to go and stay with the petitioner in the matrimonial home, her father brought her back to Ernakulam on 24.11.1991. On 12.12.1991 the parents of the respondent formally came to the petitioner's family house at Ernakulam to take her to Alappuzha for delivery. The abnormal and unreasonable attitude of the respondent had upset the petitioner very much. He had made many attempts to set right her attitude. The parents of the respondent informed the petitioner and his parents that the respondent's pregnancy had MFA 78/02 4 adversely affected her. The respondent once informed the petitioner that she disliked him talking to his parents, relatives and close friends and that that was the reason for her anger and annoyance towards him. The petitioner tried to convince her that he was the only son of his parents, that he had duties towards his parents and that both the petitioner and the respondent should together socialise with close relatives and friends. The respondent, however, appeared to be unwilling to change her attitude and to communicate and mingle with everyone including the petitioner. During the period of pregnancy while the respondent was in Alappuzha, the petitioner and his parents had bestowed much care and attention on her by visiting her on 27.12.1991, 17.1.1992 and 26.2.1992. On 2.3.1992 also when the child was born, the petitioner and his parents had visited the respondent and thereafter also on many occasions after the birth of the child. The naming ceremony of the child was attended by the petitioner and his parents at Alappuzha and the child was named as Gouri. The respondent showed over-possessiveness over her daughter. She showed MFA 78/02 5 repugnance to any physical contact which the petitioner had with the baby girl. The respondent displayed insufferable temperament and unrelenting anger towards the petitioner for no reason. She informed the petitioner on the date of the naming ceremony that their daughter would live in her parental home and that the petitioner should not make any claim over the child. When the petitioner showed signs of reacting to the respondent's statements, his parents tried to reason out with him saying that the respondent was behaving abnormally due to the fact of her pregnancy at a very early age and that the petitioner should tolerate her behaviour for some time. The petitioner could not understand the reason for the over-possessiveness shown by the respondent towards the baby child because she had told him that she was basically a career-oriented person and did not want children. The respondent showed no sign of wanting to come and stay in the matrimonial home. On 3.9.1992 the respondent left for Alappuzha. On 6.9.1992 the rice-feeding ceremony of the baby was conducted at Chottanikkara temple and the respondent had returned to the matrimonial home. The MFA 78/02 6 respondent never changed her attitude towards the petitioner even after 7 months of delivery. The respondent's attitude towards the petitioner was not like one towards a husband. She never gave him affection or consideration. She never attended to any work in the family. She always seemed to be brooding over imaginative issues and even started picking up quarrels with the petitioner for no reason. The petitioner was put to considerable agony on account of the respondent's words as well as behaviour. On 25.10.1992 the respondent again went to her parental house along with the daughter. On 8.11.1992 she, along with her daughter, was brought back to the matrimonial home by her father. On 1.12.1992 he parents of the respondent had to come and console the petitioner who had suffered agony due to the unreasonable anger of the respondent. On 17.1.1993 the respondent insisted to go to her parental home to attend a marriage. She was brought back by her parents on 25.1.1993. On 9.2.1993 she again went to her parental house to attend her father's 60th birthday celebrations. She did not return to her matrimonial home. The petitioner's parents went over to her and MFA 78/02 7 persuaded her to come back to Ernakulam to celebrate the daughter's first birthday at Ernakulam. She came back to the matrimonial home on 11.2.1993 and resided there with the petitioner till 28.2.1993 on which day without giving any reason she left the matrimonial home along with her daughter. The petitioner had not given his consent to the respondent to leave the matrimonial home. It was without the consent and against the wish of the petitioner that the respondent left for Alappuzha. There was no reasonable cause or any conduct on the part of the petitioner so as to induce the respondent to leave her matrimonial home. The petitioner and his parents attempted to persuade the respondent to come back to her matrimonial home. On 16.5.1993 and on 4.7.1993 even though the respondent was brought back to the matrimonial home by her parents, she did not reside there with the petitioner, but went away to her parental house without the consent of the petitioner. Her parents had again brought her to the matrimonial home on 19.9.1993, but she left along with her parents on that day. Again on 31.10.1993 the respondent's parents brought her back to the MFA 78/02 8 matrimonial home. On both the above occasions she expressed her unwillingness to reside with the petitioner. She behaved very indifferently towards the petitioner and left the matrimonial home. She did not permit the petitioner to have access to his daughter. Her parents pleaded with the petitioner not to make an issue regarding the child until the respondent's temperament became normal. The respondent had taken her ornaments from the matrimonial home during the occasions when she had visited her own house while staying in the matrimonial home. The respondent refused money from the petitioner for the maintenance of her daughter stating that it was a ruse on the part of the petitioner to get hold of his daughter. The respondent's parents continued to entertain the respondent's strange attitude stating that time would heal her unreasonable behaviour and pleaded with the petitioner not to react and upset their daughter. On the advice of her parents and out of goodwill towards her family, the petitioner waited for the return of his wife to the matrimonial home till March, 1976. When the parents of the petitioner enquired with the respondent as to whether her MFA 78/02 9 intention was to divorce their son, she replied that she would make the petitioner's life miserable. She, however, did not reveal any reason for proclaiming so. Thereafter during the years 1996-99 well-wishers of the family unsuccessfully attempted an amicable settlement. The respondent did not, however, come back to her matrimonial home and reside with the petitioner after 28.2.1993. The respondent abandoned the petitioner and deprived him of the company of his daughter without any reasonable cause. With effect from 28.2.1993 the respondent deserted the petitioner. She left the matrimonial home on that day with the intention of bringing to an end her co- habitation with the petitioner. There has been continuous separation of the respondent from the petitioner with effect from 28.2.1993 causing desertion. During this long period of more than six years, the respondent had never enquired about the petitioner. There has been total repudiation of her marital obligations by the respondent. All efforts made by the petitioner and his parents to provide for the daughter of the petitioner did not succeed. His daughter is living with the respondent's MFA 78/02 10 parents. Till recently the respondent was living in her parental home. Now it is understood that she has left the parental home so as to study for degree in law at Cochin University leaving the daughter with her parents. The petitioner had not attempted to precipitate these issues with the respondent fearing that it would affect their daughter. Moreover, the petitioner thought that being a tender child, she would require the care of the mother during her early years. Since the child is presently deprived of her mother's company also, the petitioner is desirous of gaining custody of the child. The respondent's attitude towards the petitioner while in the matrimonial home had made the life of the petitioner miserable. Her persistent anger and aloofness had inflicted great pain and misery on the petitioner. She had caused mental cruelty towards the petitioner by means of constant ill-treatment. While leaving the matrimonial home she had collected her remaining ornaments and saris thus indicating her animus deserendi. The respondent had thus willfully terminated co-habitation with the petitioner without his consent and against his will. The marriage was solemnized at MFA 78/02 11 Alappuzha. The petitioner and the respondent set up their matrimonial home at Ernakulam and they last resided together at Ernakulam. The petitioner is residing at Ernakulam and the respondent is residing at Alappuzha. The cause of action for the petition arose during the period 1991-93 when the respondent deserted the petitioner. Hence the marriage of the petitioner with the respondent may be dissolved on the ground of desertion and cruelty. THE WIFE'S PLEADINGS IN REPLY 3. The respondent wife, namely Suchitra, filed her objections contending inter alia as follows:- The petition is not maintainable either on law or on facts. Except to the extent expressly admitted hereunder, this respondent denies all the averments in the petition. The date and place of marriage between the petitioner and this respondent are admitted. After the marriage they were residing together as man and wife in the petitioner's house at Ernakulam. MFA 78/02 12 The petitioner's allegation that this respondent did not show any love and affection towards the petitioner and his parents is not true. This respondent was never angry towards the petitioner or his parents. She loved the petitioner and respected his parents. There was no occasion for this respondent to become angry towards the petitioner or his parents. The petitioner's parents, particularly his father, had daughterly affection towards this respondent. Even now she loves the petitioner and holds his parents in high esteem. The averments in the petition that this respondent had told the petitioner that she disliked him and his parents and had expressed a desire to leave the matrimonial home is absolutely false and hence denied. To begin with, this respondent had a happy married life with the petitioner. The petitioner's father hails from a family of noble traditions and his parents and other relatives were closely known to this respondent's parents. Therefore, when the proposal for the marriage came, there was no necessity for this respondent's parents to think twice about the marriage. The proposal was immediately accepted and the marriage also took place within a MFA 78/02 13 month. After the marriage this respondent was living in the marital home discharging all her marital obligations towards the petitioner as a dutiful wife. The parents of the petitioner and other relatives also treated this respondent with love and affection. On 14.6.1991 there was a family get-together in this respondent's parental home. The petitioner, his parents and many of his close relatives participated in the said function. This respondent's father presented a valuable jewel-studded ring (Navaratna Mothiram) to the petitioner on that occasion as a token of his love and affection. The petitioner along with his parents and this respondent went to Bangalore on 19.6.1991. They returned to Ernakulam on 24.6.1991. The petitioner who was an M.B.A., got a job in the Birla Tyres and the entire family was happy over this assignment. Thereafter, on 1.7.1991, 6.7.1991 and 7.7.1991 this respondent and the petitioner had resided together at Alappuzha at this respondent's house. It was not on her own accord that this respondent had gone to Alappuzha on 24.7.1991. The petitioner's father's birthday fell on that day and it was for celebrating the same that the entire MFA 78/02 14 family went to Chavara in the evening of 23.7.1991. After the birthday celebration, this respondent had felt exhausted and she had stayed back at Alappuzha as advised by the petitioner. On 25.7.1991 this respondent was taken to a lady doctor for medical examination and she was reported to be pregnant. This news was conveyed to the petitioner. Hearing the said news, the petitioner and his parents came down to Alappuzha on 26.7.1991. On that day the petitioner and his parents did not ask this respondent to return to Ernakulam because the 90th birthday of this respondent's paternal grandmother was on 1.8.1991 and this respondent wanted to participate in the said function along with the other members of her family. Since Fridays and Saturdays were not astrologically auspicious days for a pregnant woman to return to her matrimonial home this respondent was taken to her marital home on Sunday i.e. 4.8.1991 by her father and sister. The petitioner had come to Ernakulam South Railway Station to take them to his house. These facts have been deliberately suppressed in the petition. The petitioner and this respondent were residing happily at MFA 78/02 15 Ernakulam. This respondent did not show any indifference towards the petitioner as alleged nor had she insisted on returning to Alappuzha. This respondent's 23rd birthday was on 2.9.1991 and for that purpose she was taken to Alappuzha by the petitioner on 30.8.1991. The petitioner did not come for the birthday and this was not deliberate. His parents, however, came to Alappuzha and gave birthday presents and had greeted this respondent on that occasion. On 20.9.1991 tis respondent was taken to Ernakulam by her parents-in-law. It is true that on 2.10.1991 this respondent had gone back to Alappuzha along with her parents-in-law. This respondent's father-in-law is a native of Chavara and he used to go there frequently to meet his aged parents. Therefore, on 2.10.1991 when they went to Chavara, they wanted this respondent also to accompany them. When they returned on 3.10.1991, this respondent also went back to Ernakulam along with them. It is false to state that it was this respondent's parents who took her to Ernakulam on 3.10.1991. On 5.11.1991 i.e. on the Deepavali day, this respondent's parents had come over to Ernakulam with various MFA 78/02 16 items of sweets to this respondent as she was pregnant at that time. This was done in accordance with the custom prevalent in the community. This respondent was informed that her husband was leaving for Madras on the next day and, therefore, if she wanted, she could also go to Alappuzha along with her parents. This respondent also wanted to attend her friend's marriage at Alappuzha on 8.11.1991. Therefore, as permitted by the petitioner and his parents, on 5.11.1991 this respondent went to Alappuzha with her parents. It is not correct to say that the petitioner's parents had come to Alappuzha to persuade this respondent to return to Ernakulam and resume co-habitation. Though the petitioner's parents had come to Alappuzha on 19.11.1991, they advised this respondent to stay back as Tuesday was not considered auspicious to undertake a travel. So this respondent was taken to Ernakulam by her parents on 24.11.1991. On 12.12.1991 this respondent was brought back to her parental home for confinement in accordance with the customary rites. There was no abnormality in the behaviour of this respondent either towards the petitioner or towards his MFA 78/02 17 parents. She was sociable and mingled with all the members of the family. Although she was fresh from the college, she looked after the household affairs and helped her mother-in-law in cooking food and managing the house. She never kept aloof as stated in the petition. This respondent's parents are cultured and they had brought up all their children in an ideal way. While she was a student, this respondent had actively participated in all the cultural, social and educational activities in the school and also in the college. The averment that this respondent did not like the petitioner talking to his parents etc. is only a figment of his imagination. This respondent knows the elementary principles of family life and how to behave towards family members. There was no occasion for the petitioner to advice this respondent as to how she should behave towards his parents. Although her mother-in-law had quite often found fault with this respondent even on silly matters and used to chastise her, she respected her and did not react to her comments. The only person who had real affection, love and regard for this respondent was her father-in-law. He is an engineer and had MFA 78/02 18 worked as the head of a premier institution in Kerala for several decades. It is too much to say that this respondent had entertained a hostile animus towards such a venerable gentleman. It is true that the parents of the petitioner had called on this respondent on 27.12.1991, 17.1.1992 and 26.2.1992 on their way to Chavara. But the petitioner deliberately avoided paying any visit on her after she had left the matrimonial home for confinement. After the child was born he came on 2.3.1992 and on 7.3.1992 with some of his friends. He had attended the naming ceremony of the child. But it is false to state that there was an altercation between them regarding the custody of the child on that day. After the child was born there was visible change in the attitude of the petitioner and his mother towards this respondent. Although the petitioner's parents made occasional visits to Alappuzha, neither the petitioner nor his mother wanted to take back this respondent and the new-born baby to the matrimonial home. Though this respondent had made repeated requests to the petitioner and his mother to take her back to the matrimonial MFA 78/02 19 home, they did not pay any heed to the same. The rice-feeding ceremony of the child was performed at Chottanikkara temple on 6.9.1992. The petitioner and his parents were informed of the said ceremony in advance. This respondent had on 31.8.1992 written a letter also to the petitioner reminding him of the importance of the function and requesting his personal presence on the occasion. This respondent's father had extended a personal invitation to the petitioner when he met him at his office on 2.9.1992. Though the petitioner was physically present at his house on that day, he deliberately refused to come and bless the child on that occasion. But his parents had come and attended the function. This respondent genuinely believes that the petitioner did not attend the function as he might have been prevented by his mother from participating in the function. She disallowed any type of association of the petitioner with the child. From the conduct of the petitioner and his mother it was evident that they had no intention to take back this respondent to her matrimonial home even in the distant future. Therefore, on 22.9.1992 this MFA 78/02 20 respondent's brother, who is an engineer by profession, went to Ernakulam and met the petitioner and his father and requested them to facilitate the return of this respondent and her daughter to her husband's house. Since his attempt did not fructify, on 28.9.1992 this respondent along with her parents and brother went to the petitioner's residence at Ernakulam. But the petitioner did not permit this respondent to stay with him. As there was torrential rain attended by thunder and lightning on that day, this respondent requested the petitioner to permit her at-least to spend the night in his house along with the child. He, however, turned a deaf ear to her request and she was forced to leave the house and go back to Alappuzha along with her parents. She was thus virtually turned out of the petitioner's house at 9.30 p.m. in the night. As there was heavy rain on the way, she could reach home only by 12 midnight. The inhuman conduct on the part of the petitioner had caused excruciating mental pain to this respondent. This respondent, however, admits that for a short period from 8.11.1992 till 28.2.1993 this respondent and her daughter were permitted to reside in the MFA 78/02 21 petitioner's house at Ernakulam. However, that was the worst period in the entire married life of this respondent. During this period the petitioner's mother did not allow any sort of association of this respondent and her daughter with the petitioner. This respondent was given a room in the ground floor to sleep with her daughter and her mother-in-law was also sleeping in the same room. This respondent was asked by her mother-in-law that she should not go to the petitioner's room on the first floor or talk to him.