IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Mat.Appeal.No. 524 of 2007() ---------------------------- OP.773/2005 of FAMILY COURT, THIRUVALLA .................... PETITIONER(S): RESPONDENTS O.P.773/2005: ---------------------------------------- R. RADHAMANI, AGED 48 YEARS, D/O. RAJAMMA, APRNA BHAVAN, KAVUMBYHAGAM MURI, KAVUMBHAGAM P.O., KAVUMBHAGAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.SAJITH KUMAR V. RESPONDENT(S): PETITIONER IN OP.773/2005: ----------------------------------------- P.V. RAJASEKHARAN, AGED 48 YEARS, S/O. G. VASU ACHARI, PULIKKETHARA HOUSE, KAVUMBHAGAM MURI, KAVUMBHAGAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. ADV. P.V.RAJASEKHARAN (PARTY-IN-PERSON) FOR R THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 025/11/2008, THE COURT ON 9/12/2008 DELIVERED THE FOLLOWING: I.A.NO.2199/2007 IN MA 524/2007 DISMISSED. 9/12/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - Mat. A. No. 524 of 2007 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2008. JUDGMENT Ramanchandran Nair, J. The appellant herein and the respondent are Hindus belonging to Viswakarma community. Their marriage took place on 17.1.1988. The husband sought for dissolution of marriage by filing O.P.No.773/2005 which stands allowed by the Family Court. The appeal is at the instance of the wife. The pleadings show that dissolution of marriage was sought on the ground of alleged cruelty on the part of the wife. The Family Court found in his favour mainly based on Ext.A5 letter dated 4.7.1991, incompatible temperament between the parties, resulting in the marriage in a collapsed stage and accordingly granted divorce. 2. We heard learned counsel for the appellant and the respondent who appeared in person. Learned counsel for the appellant submitted that there is no legal evidence to establish any cruelty on the part of the wife either physical or mental and the reliance placed by the Family Court on Ext.A5 is clearly without any justification. It is pointed out that there is no legal evidence in this case to prove cruelty on the part of the wife. It is also Mat.A.524/2007 -2- pointed out that a mere observation that there is incompatibility and hence the marriage had collapsed, is not a ground to grant divorce under Section 13 of the Hindu Marriage Act. 3. The evidence in this case consists of the oral testimony of P.W.1 and R.W.1 and Exts.A1 to A5. 4. From the evidence it is clear that two children were born in the wedlock, one in 1988 and the other in 1994. The husband was examined as P.W.1. In the deposition, his case is that even from the inception the wife was not giving due consideration to his status as a husband. He was in Army service. The wife was responsible for denial of due promotion to him, since she was sending false complaints to the authorities concerned. Ext.A1 is the lawyer notice dated 16.8.1990 issued by him. According to him, even during the period when he had been in the native place after availing leave, the wife was not coming to his house for residing with him. In Ext.A1 the allegation is that she had deserted him. Ext.A2 is another lawyer notice dated 7.2.1989 wherein also practically the same allegations have been raised. In fact, therein the husband demanded her to join him immediately. Ext.A3 is a letter issued by the brother of the wife to the respondent. Ext.A4 is a letter dated 18.2.1992 sent by the Officer Commanding to the appellant/wife. This only shows that there was an Mat.A.524/2007 -3- application by the husband for transfer of the wife which was recommended by the authorities and subsequently it was cancelled on his request. Ext.A5 is the crucial letter which was found objectionable by the trial court. This is dated 4.7.1991. 5. The question is whether based on Ext.A5 alone, the trial court could have presumed that the wife was behaving cruelly to the husband. That letter is of the year 1991. Even going by the pleadings of the husband, after the notice Ext.A2 dated 7.2.1989, the wife joined him and they were living together for some time and after Ext.A1 notice was issued on 16.8.1990, she came back and lived with him upto 1997. The second son was born during this period. The wife has got a case that they contiued their residence together till the year 2005. There is no independent evidence in this case to prove that the wife was inflicting any physical cruelty to the husband even though he has reiterated that her behaviour towards him was cruel. This allegation therefore stands unsubstantiated in evidence. 6. As regards Ext.A5, we find that even after the said letter was sent to him by the wife, they were living together as husband and wife. A reading of the letter shows that they were having divergent opinion regarding the request for transfer and she objected to the unilateral proposal made by the husband for the transfer without her consent. The wife was Mat.A.524/2007 -4- working as a nurse admittedly. She also states that in the new house proposed to be constructed in a place decided by him, she is not prepared to join him. Further, she informed him that if he is adamant to construct the building at the place of his choice, he may live there along with one Sreedevi of Thalavadi or his elder sister. The finding rendered by the Family Court is that this amounts to allegation of illicit intimacy against the husband. Going by the admitted case they lived together till 1997 and the second child was born during this period. Therefore, the isolated act of the wife in sending Ext.A5 cannot be taken to find that her conduct was really one wherein she has been abusing her husband or was inflicting mental or physical cruelty to him. We have already pointed out that there is no independent evidence in this case from any witness regarding the alleged harassment, etc. meted out by the wife to the husband. 7. The respondent, while supporting the order, mentioned to us that from the date of marriage itself she had been behaving to him cruelly, she was not giving due respect to him and was never treating him as a husband and that he was not able to live peacefully. His prospects in employment was ruined by the said acts of the wife and he wants to live in peace at least in future. Even though this is the stand taken by him in the pleadings as well as in oral evidence, in the absence of any acceptable evidence, we will not Mat.A.524/2007 -5- be justified in finding that the wife was cruel to him. No individual acts on the part of the wife of verbal abuse, physical assault and the like have not been alleged or proved. A mere assertion by the husband in the box and in the course of arguments that the marriage is in a collapsed stage and a reunion is not possible and that there is total incompatible temperament, cannot substitute legal evidence to justify the grant of divorce. Merely on the ground of alleged incompatibility or of the feeling of one party that the marriage has broken down irretrievably, no decree for divorce can be granted under Section 13 of the Hindu Marriage Act. There is no evidence to show that the alleged complaints, if any, made by the wife to the higher officers has resulted in denying him the prospects of promotion. Even though during the course of the arguments, we wanted to know whether there is any documentary evidence regarding this aspect, the respondent could not substantiate it by pointing out any such proceedings. 8. We, therefore find that the court below has erred in granting divorce merely based on Ext.A5 letter and by finding that because of incompatibility of temperament and collapse of marital relationship, the grant of divorce will be justified. Hence, we allow the appeal in reversal of the judgment passed by the Family Court. The petition filed by the respondent/husband seeking Mat.A.524/2007 -6- dissolution of the marriage stands dismissed. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/