IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 Mat.Appeal.No. 779 of 2008() ---------------------------- OP.1515/2004 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): APPELLANT/PETITIONER ----------------------------------- ASOKAN, S/O.DAMODARAN, 'SHYLAM' TC 3/2072-2 LEKSHMI NAGAR, PATTOM.P.O. THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT(S): RESPONDENT ------------------------- SHYLAJA, D/O. BHARATHY, SAILAM TC 3/2072-2, LEKSHMI NAGAR, PATTOM PATTOM P.O., THIRUVANANTHAPURAM. ADV. SRI.RAM MOHAN.G. FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2009, ALONG WITH MA NO.781 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Mat.Appeal Nos.779 & 781 of 2008 ---------------------------------------- Dated this the 16th day of October 2009 J U D G M E N T Basant,J These appeals are preferred by the appellant/husband against a common order under which two O.Ps were disposed of. O.P 1515/2004 was filed by the husband for a decree for dissolution of marriage under Section 13 of the Hindu Marriage Act on the ground of cruelty. The 2nd O.P No.525/04 was filed by the wife and two minor children against their forcible eviction from a property belonging to the husband. They had also claimed maintenance for petitioners 1 and 3 and had claimed marriage expenses for the third respondent. By the impugned common judgment, petition for divorce filed by the husband was dismissed. The petition filed by the wife and children was allowed in part. Injunction was granted as prayed for. Future maintenance were awarded at the rate of Rs.500/- per mensum to petitioners 1 and 3. Marriage expenses of Rs.2,00,000/- was awarded to the 3rd petitioner. Mat.Appeal Nos.779 & 781 of 2008 2 2. Marriage is admitted. That there is strain in the relationship between the spouses is also admitted. Admittedly, the spouses are even now continuing to reside under a common roof. The husband is residing in one portion of the house whereas the wife and both children are residing in another portion. The husband contended that the wife is guilty of matrimonial cruelty. She was behaving insultingly towards him. She is guilty of such contumacious conduct that he is unable to withstand the same and continue the marital tie. In these circumstances, he prayed that the marriage may be dissolved. 3. The wife/the respondent denied the allegations. According to her, there was nothing that could lead the court to a conclusion that there was any cruelty on her part justifying a decree for dissolution of marriage. She contended that the husband was caring and loving towards the wife and children for a long time after the marriage; but he allegedly developed illicit intimacy with a woman and thereafter he was behaving indifferently to the wife and children. There was, at any rate, no justifiable reason to grant divorce on the ground of cruelty. Mat.Appeal Nos.779 & 781 of 2008 3 4. The claimants contended that the appellant was not providing maintenance to his wife and children. They were living on the meager income derived by the second respondent/ the son, by selling newspapers and by the 1st respondent/wife by doing odd jobs. The husband was attempting to use force to throw them out of the property and dispose of such property to their detriment depriving them of the right of residence under a roof. He was not paying any maintenance to his wife and children. In these circumstances, it was prayed that maintenance may be awarded to the wife and children. The 3rd respondent was a minor girl and her marriage had to be performed. Towards marriage expenses, the claimants claimed an amount of Rs.7,00,000/-. 5. The husband resisted the claim for marriage expenses, maintenance and injunction. According to him, the property belongs to him. He was sick. He has to undergo a cardiac surgery. He had no means to raise the requisite amount for the surgery. He had to dispose of the house to raise the money to enable him to undergo the cardiac surgery. He disputed the claim for marriage expenses. He disputed the claim Mat.Appeal Nos.779 & 781 of 2008 4 for maintenance also. 6. Parties went to trial on these contentions. The appellant/husband examined himself as PW1. A friend of his was examined as PW2 and obviously he was examined to support the theory of matrimonial cruelty. The wife examined herself as DW1. Both minor children were examined as Dws 2 and 3. Exts.A1 to A9 were marked on the side of the husband whereas Exts.B1 to B6 were marked on the side of the claimants - wife and children. 7. As stated earlier, the court below, by the impugned common judgment, rejected the claim for divorce holding that matrimonial cruelty to justify an order of divorce has not been established. Injunction was granted as prayed for. Maintenance was awarded to petitioners 1 and 3 alone as the 2nd petitioner had attained majority. For the 3rd petitioner, marriage expenses was awarded. Against the claim of Rs.7,00,000/- only an amount of Rs.2,00,000/- was awarded. 8. The appellant claims to be aggrieved by the impugned common judgment. Called upon to explain the nature of his grievance, the learned counsel submits that the appellant does Mat.Appeal Nos.779 & 781 of 2008 5 not now want to assail the direction for payment of maintenance at the rate of Rs.500/- per mensum from the date of the petition to the wife and the minor daughter. Nor does he want to assail the direction to pay an amount of Rs.2,00,000/- as marriage expenses for the minor daughter. The learned counsel for the appellant assails the impugned order on the following grounds only. i) The court below erred grossly in coming to the conclusion that the oral evidence of Pws 1 and 2 does not establish matrimonial cruelty justifying an order for dissolution of marriage on that ground under Section 13 of the Hindu Marriage Act. ii) The court below, at any rate, erred grossly in granting a blanket order of injunction restraining the appellant from evicting the petitioners from the petition scheduled property. 9. Ground No.1: The court below had before it the oral evidence of PW1, the husband and PW2 - his friend on the one side. On the other, the court below had the evidence of Dws 1 to 3. It was essentially a case of evaluation of the oral evidence of interested husband and his friend on the one side and the wife Mat.Appeal Nos.779 & 781 of 2008 6 and the two children on the other. Admittedly, spouses were continuing to reside under the same roof in the same house - the wife, along with the two children in a portion of the house and the husband in the other portion. According to the wife and children, the relationship between the parties used to be good and healthy until another woman allegedly came into the picture. 10. We have been taken through the oral evidence of Pws 1 and 2 and Dws 1 to 3. Those are the only pieces of evidences having relevance on the question of matrimonial cruelty. We are in total agreement with the court below that nothing has been brought out specifically which can show that DW1 was guilty of any matrimonial cruelty of such variety and intensity that can persuade a matrimonial court to order dissolution of marriage. The learned counsel relies on precedents to contend that matrimonial cruelty must be evaluated and assessed reasonably and the standards of a disinterested third party cannot, always, be imported. We have no quarrel with the propositions of law canvassed; but we are satisfied that the court below has not committed any error in coming to the conclusion that the alleged matrimonial cruelty and the evidences in support of the same are Mat.Appeal Nos.779 & 781 of 2008 7 not sufficient to justify an order directing dissolution of marriage. Though it is alleged that the wife has been behaving improperly to the husband, specific details are not pleaded and the oral evidence of Pws 1 and 2 do not advance the case of the husband any further. Improper responses of the wife to the husband and the alleged baseless allegations about the adulterous behaviour of the husband are the planks on which the theory of cruelty is built. Less said about the alleged cruelty the better. We are satisfied that there is no reason to interfere with the decision of the court below that matrimonial cruelty of the contumacious variety to found a finding of matrimonial cruelty to grant divorce has not been established by the appellant/husband. The challenge on the first ground therefore fails. 11. Ground No.2:- The learned counsel for the appellant submits that he does not deny or dispute his obligation to provide a residence for his wife and minor child. He contends that the court below has erred grossly in granting a blanket order of injunction restraining the appellant “from evicting the petitioners from the petition scheduled property”. The short grievance of the appellant is that this order, if permitted to Mat.Appeal Nos.779 & 781 of 2008 8 remain in force, would fetter the right of the appellant, the owner of the property, to dispose of the property and hand over possession to an intending buyer. In fact, the wife and children had only claimed an order of injunction against forcible dispossession. But the court below had gone beyond the prayer and had granted a blanket injunction “from evicting the petitioners from the petition scheduled property “. If this order were permitted to remain, the appellant will not be able to make suitable alternative arrangements for the residence of his wife and minor child elsewhere appropriately and then claim eviction in accordance with law to enable him to dispose of the property. The learned counsel for the appellant contends that the appellant does not want to use force and physically throw out his wife and minor children; but would like it to be clarified that the option of the appellant to take appropriate steps to evict them from the petition scheduled building in accordance with law is left open. To that limited extent, the impugned order may be modified, it is contended. 12. The learned counsel for the respondents submits that forcible dispossession alone was sought to be injuncted and the Mat.Appeal Nos.779 & 781 of 2008 9 impugned order will not and cannot restrain the appellant from taking steps in accordance with law to evict the respondents from the petition scheduled property. But the appellant/husband will have to satisfy the court before which he initiates such proceedings that he is entitled to evict his wife and children from the petition scheduled building. That may be clarified in the appellate judgment, concedes the learned counsel for the respondents. The challenge on this ground can succeed only to the above extent. 13. In the result, a) Mat.Appeal No.779/08 is dismissed. b) Mat.Appeal No.781/08 is allowed in part. It is clarified that the impugned order shall restrain the appellant only from evicting respondents 1 to 3 from the petition scheduled building by use of force and the order shall not fetter his rights to initiate appropriate proceedings in accordance with law before appropriate legal forum to evict his wife and children from the petition scheduled building. Appropriate contentions can be raised by both sides if such proceedings were initiated. The impugned order is upheld in all other respects. Mat.Appeal Nos.779 & 781 of 2008 10 c) The parties are directed to suffer the respective costs. 14. We must record that we had made all possible efforts to get the parties to settle their disputes but the disputes could not harmoniously be settled. Notwithstanding the disposal of these cases, we do hope that such efforts shall continue and it shall be possible for the spouses to settle their disputes harmoniously in the days to come. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr Mat.Appeal Nos.779 & 781 of 2008 11 Mat.Appeal Nos.779 & 781 of 2008 12 O R D E R We have been attempting to induce the parties to come to a settlement; but a settlement was eluded for. After we dictated the judgment, the learned counsel pray that the matter may be posted to 14/10/2009 to be spoken to so that one final attempt can be made to settle the dispute, if possible and we do, in these circumstances, post the matter to 16/10/2009 to be spoken to. The judgment shall be signed and pronounced on that day. Mat.Appeal Nos.779 & 781 of 2008 13 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009