IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 MFA.No. 264 of 1998(B) ---------------------- OP.196/1994 of FAMILY COURT,THRISSUR .................... APPELLANT(S): -------------- GANGADHARAN, S/O. KARIPADATH VELAPPAN, VALAPPAD. BY ADV. SRI.P.VIJAYA BHANU SRI.M.GEORGE THOMAS RESPONDENT(S): --------------- MALATHI TEACHER, D/O. KUNUJAKKAN, DHARMA VILASAM (SNDP) L.P. SCHOOL, KAZHIMBRAM NORTH, VALAPPAD, RESIDING AT MOONNUPEEDIKA, KAIPAMANGALAM -680 681. ADV. SRI.JOSE THETTAYIL FOR R1 SMT.K.P.SREELATHA SRI.C.KHALID MEDIATOR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- M.F.A. No. 264 of 1998 ------------------------------------------------- Dated this the 27th day of May 2009 JUDGMENT Basant,J. The appellant - husband in this appeal assails the impugned judgment under which his application for divorce on the ground of desertion and cruelty was dismissed by the Family Court. 2. Marriage between the parties took place on 23/1/1967. The appellant/petitioner was employed in the Army. Wife along with his mother was residing at their native place. In the wed-lock three children were born - one boy and two girls. All of them are grown up and have got married. After his service in the Army, the appellant - husband took up some employment in Bombay. Later, he went abroad. He returned from such stint of employment abroad and started residing M.F.A. No. 264 of 1998 -: 2 :- with his wife. While they were residing together, a petition has been filed alleging that the wife has been guilty of desertion and cruelty. 3. The crux of the allegations is that the wife all through has been guilty of cruel behaviour. She was not disciplined. She used to torture and torment the appellant. She did not use to give him peace of mind. She was employed and she was arrogant because of such independent income which she had. The son was involved in a love affair and married a girl of his choice. The husband objected to the same; but the respondent/wife enabled the son to enter into such wed-lock. The father of the bride of the son one Sreedharan was allegedly having a mala fide and improper relationship with the respondent. The said Sreedharan and the respondent had conspired and initiated false and malicious proceedings against the appellant. After his return to his native place after completing his assignments with the Army, at Bombay and abroad, there has been no physical relationship at all. Even earlier, there was no physical relationship between the appellant and the respondent. She has been denying the appellant such relationship for a long period of time - from 1972. In these M.F.A. No. 264 of 1998 -: 3 :- circumstances, he claimed divorce on the ground of desertion and cruelty. 4. The respondent/wife resisted the prayer for divorce. According to her, she had never deserted him. She was never guilty of cruelty against him. The boot was on the other leg. It was the appellant who was guilty of cruelty to the respondent. The appellant had an adulterous relationship with one Ammukutty - a nurse employed in the military. A child was born in that wed-lock as early as in 1978. The transparent attempt of the appellant is to some how avoid the inconvenience of the sustaining marital relationship with the respondent, to dump her and to take up residence with the said Ammukutty and the child born in such relationship. She has been objecting to such relationship right from the beginning. Earlier he denied such relationship. Now he admits the same. But notwithstanding such relationship, she does not want to break her marital relationship. She has condoned that act of discretion on his part; but he continues in his improper behaviour towards the respondent. In these circumstances, it was prayed that the petition for divorce may be dismissed. 5. Parties went to trial on these contentions. The M.F.A. No. 264 of 1998 -: 4 :- appellant examined himself as P.W.1 and a witness- the Sub Inspector of Police of the local Police Station as P.W.2. Exts.A1 to A12 were marked. Only Exts.A3, A10 and A11 appear to be relevant. There is no specific relevance pointed out for the other documents marked. 6. The respondent examined herself as R.W.1. She proved Ext.B1 letter addressed to her by the appellant in support her plea of cruelty emanating from the appellant. Ext.X1 petition register maintained at the Police Station was marked through P.W.2 to contend that the respondent had not filed any complaint against the appellant before the police as alleged by the appellant. 7. The learned Judge of the Family Court, on an anxious consideration of all the relevant inputs, came to the conclusion that the appellant/husband has not succeeded in proving his allegation of cruelty and desertion. The court found that all along the appellant was making a visit to his native place for short periods of vacation/leave and it is difficult to swallow the version that for the past about 25 years there was no physical relationship whatsoever between the spouses. The inaction of the appellant was reckoned as an indication throwing light on M.F.A. No. 264 of 1998 -: 5 :- the falsity of that assertion by P.W.1. The court further found that admittedly the appellant was having an illicit relationship with the said Ammukutty and a child was born in such wed-lock. Objections raised and dissatisfaction shown by a legally married wife against such improper relationship and conduct of her husband cannot be held to be unjustified, held the court below. The court further found that the very plank on which the appellant attempts to build up his case even now – of the respondent filing a false complaint before the police at the instance of the said Sreedharan has not been proved at all. The learned Judge of the Family Court further noted that though the appellant in his pleadings had not raised such a specific plea, had, in the course of evidence, raised such a grievance – of adulterous relation of the respondent with the said Sreedharan. There is nothing to prove such relationship. The raising of such false and unsubstantiated allegation in the course of evidence was also reckoned by the court as an act of cruelty emanating from the part of the appellant towards the respondent. In these circumstances, the court found that neither the alleged ground of desertion; nor the ground of cruelty has been established by the appellant. Accordingly, the court proceeded to pass the M.F.A. No. 264 of 1998 -: 6 :- impugned judgment. 8. We have heard the learned counsel for the appellant and the learned counsel for the respondent. The learned counsel for the appellant reiterates that the evidence satisfactorily establishes the grounds of desertion and cruelty. The learned counsel further contends that, at any rate, there is unimpeachable evidence to show that the marital tie has broken down irretrievably. In these circumstances, at any rate, the decree for divorce may be granted, it is prayed. 9. The learned counsel for the respondent, on the contrary, contends that the grounds have not been established at all and it cannot be held that the marital tie has broken down irretrievably. The respondent has shown mature, patience and tolerance and is even now willing to sacrifice for the marital tie to continue without disruption, submits counsel. It would be incorrect to assume that the marital tie has broken down irretrievably, contends the learned counsel for the respondent. 10. The learned counsel for the respondent points out that even now the respondent is tolerating the appellant under the common roof. They are sharing the common mess. In these circumstances, the plea that the relationship has broken down M.F.A. No. 264 of 1998 -: 7 :- irretrievably may not be accepted, contends the learned counsel. 11. We have considered all the relevant circumstances. The burden rests squarely on the appellant to establish the ground urged by him in support of his claim for divorce. 12. First of all, the appellant alleges cruelty. What is the act of cruelty? The alleged reservation, lack of warmth and reluctance on the part of the respondent must be understood in the light of the admitted stand of the appellant that he has an extra marital relationship with the said Ammukutty and has a child in such relationship. The allegation is that the mental cruelty - of improper verbal assault and reluctance to have sexual relationship. This is the alleged ground of cruelty. There is, of course, another allegation that she is in collusion with one Sreedharan, had indulged in an objectionable conduct against the appellant by filing a false complaint before the police. 13. The evidence of P.W.2 and Ext.X1 knock the bottom out of the theory that an objectionable complaint has been filed before the police. Such complaint has not been produced at all. Less said about this theory of the objectionable complaint allegedly filed by the respondent before the police, the better. 14. The appellant has not succeeded in proving any acts of M.F.A. No. 264 of 1998 -: 8 :- cruelty. As rightly found by the court below it is difficult to swallow that the spouses have been living together for more than 2 ½ decades without any physical relationship. The objections raised by the respondent against the illicit relationship of the husband and consequent reservation shown cannot, according to us, be held to be cruelty justifying the grant of a decree for divorce. 15. The other contention is that of desertion. Even admittedly the respondent had permitted the appellant to be with her during the period that he had come home during vacation while employed in the military service, at Bombay and abroad. As already stated the self-serving version of P.W.1 that he has been denied sexual access cannot also be safely believed. 16. The last and final contention that there has been irretrievable break down of the marital tie is found on facts to be incorrect. We are persuaded to accept the contention of the learned counsel for the respondent that the marriage can still be worked if there be a positive attitude on the part of the appellant. Even otherwise, the mere claim of irretrievable break down of the marriage by one spouse is not in law a valid or satisfactory ground for divorce. M.F.A. No. 264 of 1998 -: 9 :- 17. No other contentions are raised. We are satisfied that the impugned judgment does not at all warrant any interference. 18. In the result, this appeal is dismissed with costs. Sd/- R. BASANT (Judge) Sd/- M.C. Hari Rani (Judge) Nan/ //true copy// P.S. to Judge M.F.A. No. 264 of 1998 -: 10 :- R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- M.F.A. No. 264 of 1998 ------------------------------------------------- Dated this the 27th day of May 2009 JUDGMENT M.F.A. No. 264 of 1998 -: 11 :-