IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 Mat.Appeal.No. 789 of 2009() ---------------------------- OP.27/2008 of FAMILY COURT, PALAKKAD .................... PETITIONER(S): APPELLANT/PETITIONER ----------------------------------- CHANDRAMOHAN, S/O.CHANDRAN, AGED 31 YEARS, O.N.C.NIVAS, VILAYANNUR POST, THENKURISSI, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): PETITIONER ------------------------- ASHA, D/O.CHANDRAN, AGED 25 YEARS, AMMAN NIVAS, 13/7 K.K.SWAMY NAGAR, SULUR POST, COIMBATORE, TAMIL NADU STATE. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. ------------------------------------------------- Mat. Appeal No. 789 of 2009 ------------------------------------------------- Dated this the 13th day of October, 2010 JUDGMENT Basant,J. Aggrieved by the order passed by the Family Court rejecting the claim of the appellant/husband/petitioner for divorce under Sec.13 of the Hindu Marriage Act, the appellant has come to this Court with this appeal. By the impugned order, the claim of the husband for divorce on the ground of cruelty and desertion was rejected by the court below. 2. The marriage between the spouses took place on 27/3/06. One female child was born in the relationship between the spouses on 10/3/07. Even before the child was born, there was strain in the matrimony and the spouses had started separate residence with effect from 9/1/07. At that time the wife was pregnant by 8 months. Mat. Appeal No. 789 of 2009 -: 2 :- 3. The petition claiming divorce was filed on 15/1/08. The respondent had entered appearance. A written statement was filed. But subsequently she did not appear before court to participate in the proceedings. Records reveal that a letter dated 26/12/08 was received by the court below, expressing the consent of the respondent for grant of divorce as claimed by the appellant. Before the court below, there was only the evidence of the appellant/petitioner/husband as P.W.1. An affidavit of proof in lieu of chief-examination was filed by him. There was no challenge against the evidence of P.W.1. No documents were marked on the side of the appellant also. The respondent did not adduce any evidence - oral or documentary. 4. The court below took note of the fact that the claim of divorce on the ground of desertion is not maintainable as the requirement of desertion for a continues period of not less than 2 years as insisted by Sec.13(1)(ib) of the Hindu Marriage Act has not been pleaded or proved. The plea for divorce on the ground of cruelty under Sec.13(1)(ia) was turned down on the ground that the allegations raised are vague and general and that, at any rate, there are indications to suggest that there was condonation of the alleged cruelty disentitling the appellant for relief under Mat. Appeal No. 789 of 2009 -: 3 :- Sec.23(1)(b) of the Hindu Marriage Act. Accordingly, the court below proceeded to pass the impugned order. 5. Before us also though the respondent is served, the respondent has not chosen to enter appearance. Arguments have been heard. The learned counsel for the appellant assails the impugned order only in so far as it relates to the claim for divorce on the ground of cruelty. The counsel accepts that the rejection of the claim for divorce on the ground of desertion is unassailable, the period of alleged desertion prior to the date of the filing of the petition being less than 2 years. 6. The learned counsel for the appellant argues that the court below has erred grossly and perversely in refusing the claim for divorce on the ground of matrimonial cruelty. The totality of circumstances and the sequence of events must convey eloquently that there was matrimonial cruelty of the contumacious variety emanating from the respondent against the appellant, contends the learned counsel. The counsel further submits that, at any rate, rejection of the claim by relying on Sec.23(1)(b) of the Hindu Marriage Act is totally unjustifiable. 7. We have looked into the nature of pleadings and evidence about the matrimonial cruelty which is advanced as the Mat. Appeal No. 789 of 2009 -: 4 :- plank for divorce. A careful reading of the pleadings and evidence reveal that the appellant/husband had claimed divorce on the ground of contumacious mental cruelty of his wife. The relevant circumstances can be enumerated as follows: (i) The husband was employed in Saudi Arabia. He lost his job and had to return to India. The wife adopted an antagonistic, cruel and repulsive attitude towards the husband for the reason that he had lost his employment in Saudi Arabia. She had contempt, ridicule and total absence of goodwill and affection towards him after he returned from Saudi Arabia. This is indicated by the very stand taken by the wife in her counter statement filed before court. She had gone to the extent of asserting that she agreed for the marriage only because he was employed in Saudi Arabia. (ii) According to the appellant, after his return from Saudi Arabia, he had to take up employment as a farmer. This allegedly infuriated the respondent. The respondent found fault with him for not having the requisite qualification. He behaved towards her in an unfriendly manner because of his altered status as a farmer. The pleadings and evidence revel that the wife had taken objection to his routine of life as a farmer. She Mat. Appeal No. 789 of 2009 -: 5 :- had taken objection to the want of qualifications on his part. A perusal of the counter statement read along with the unchallenged evidence of P.W.1 clearly suggests that the wife had behaved improperly towards the husband for the reason that he was pursuing his avocation as a farmer. (iii) According to the appellant, the wife was very suspicious in nature. She attributed immorality and promiscuity to him. He objected to all interactions of the husband with women. She alleged that he was having illicit relationship with married ladies. These false allegations do amount to cruelty, urged the appellant/husband. The wife, on the contrary, did raise allegations of immorality and promiscuous behaviour against the husband. Specific details were not shown. In the nature of the evidence available, those unsubstantiated allegations, we are satisfied, can safely be reckoned as instances of matrimonial cruelty. There is significantly no material whatsoever to suggest or indicate that the husband was indulging in such licentious sexual relationship with any person belonging to the opposite sex. (iv) The husband complained that the wife had cruelly withdrawn from his society. That the spouses started separate Mat. Appeal No. 789 of 2009 -: 6 :- residence is admitted. Admittedly the wife was about 8 months pregnant when she withdrew from the company of the husband. Desertion as a ground of divorce under Sec.13(i)(ib) has not, of course, been proved. But the available indications clearly suggest that the wife had withdrawn from the society of the husband and that in spite of the request of the husband, she had not returned to the husband even after child birth. (v) Lastly it is alleged that a false complaint has been filed against the husband by the wife when he went to invite her to re- join him. That complaint was lodged before the Sulur Police Station in Coimbatore, it is alleged. The wife in a counter statement stated that such a complaint had been filed. We have only the evidence of the husband to show that it was a false complaint and was filed by the wife to deter him from making attempts to harmoniously settle the dispute. The wife has not come before the Court to make any contra assertions on oath. We are, in these circumstances, satisfied that the allegations of cruelty revealed from the false filing of the complaint is also indicated convincingly. 8. The wife did not contest the proceedings. A letter purportedly received from her, the signature in which compares Mat. Appeal No. 789 of 2009 -: 7 :- eminently with the signatures of the wife available in the counter statement suggests that the wife also was bargaining for a divorce. She had no intention to salvage the marriage. This is also one more indication while we consider the relevance and significance of the evidence tendered by the husband. We wanted the counsel for the husband to explore the possibilities of a harmonious settlement by persuading them to terminate the marriage harmoniously by mutual consent and to part as friends. The counsel submits that efforts did not succeed as the wife allegedly is not co-operating to have recourse to any such avenues of harmony. 9. Sec.23 of the Hindu Marriage Act, we agree with the learned counsel for the appellant, can have no application at all. It is true that cruelty was alleged; but the husband still made an attempt to harmoniously settle the disputes and invite the wife back to him. She adamantly refused. This piece of conduct on his part cannot by any stretch of imagination be held to be condonation contemplated under Sec.23(1)(b) of the Hindu Marriage Act. The rejection of the claim on the ground of condonation under Sec.23(1)(b) of the Hindu Marriage Act is also not, in these circumstances, sustainable. Mat. Appeal No. 789 of 2009 -: 8 :- 10. The totality of circumstances suggest that the court below was obviously in error in turning down the prayer for divorce under Sec.13(1)(ia) of the Hindu Marriage Act. We hold that the appellant/husband is entitled to a decree for divorce on the ground of cruelty alone. 11. In the result: (a) This appeal is allowed. (b) The impugned order is set aside. (c) By a decree for divorce under Sec.13(1)(ia) of the Hindu Marriage Act, we direct that the marriage between the appellant and the respondent which was solemnized on 27/3/06 be dissolved with effect from this date. (d) We direct the parties to suffer their respective costs. Sd/- R. BASANT (Judge) Sd/- M.L. JOSEPH FRANCIS (Judge) Nan/ //true copy// P.S. to Judge Mat. Appeal No. 789 of 2009 -: 9 :-