IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 Mat.Appeal.No. 16 of 2005 --------------------------- OP.387/2001 of FAMILY COURT,TRIVANDRUM .................... PETITIONER: APPELLANT ------------------------ S.R.SURESH BABU, S/O.RAMAN, T.C. 13/334, KUNNUKUZHI P.O., PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. SRI.SUNIL.T.G. RESPONDENT: --------------- BEENA, D/O.PRABHAKARAN, MADHAVA MANDIRAM, MUTHANA P.O., CHAVARCODE, THIRUVANANTHAPURAM. ADV. SRI.R.S.KALKURA THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2009, ALONG WITH MA NO. 17 OF 2005 MA NO. 15 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== MAT APPEAL NOS.15,16 & 17 OF 2005 ============================ DATED THIS THE 25TH DAY OF JUNE 2009 JUDGMENT Hari Rani,J. These appeals are preferred by the appellant/husband / father against the common judgment passed by the Family Court in O.P.Nos.1193/2001, 387/2001 and 1265/2001. The respondent in Mat.Appeal Nos.16 & 17/2005 is the wife of the appellant. Respondents 1 and 2 in Mat.Appeal No.15/2005 are the wife and daughter of the appellant. 2. Mat.Appeal No.15/2005 is preferred by the appellant against the judgment and decree in O.P.No.1193/2001 filed by respondents 1 and 2, his wife and daughter for maintenance. That petition was allowed in part and maintenance allowance at the rate of Rs.7500/- per month was awarded in favour of the second respondent/daughter from the date of petition till her marriage. That order is challenged in this appeal. 3. Mat.Appeal No.16/2005 is preferred by the appellant/ husband challenging dismissal of his claim in O.P.No.387/2001 for divorce of the respondent/wife filed under Section 13(1) of the Hindu Marriage Act,1955 4. Mat.Appeal No.17/2005 is preferred by the appellant/ husband against the judgment and decree in O.P.No.1265/2001 filed by the appellant for declaration that he is the absolute owner of A to C schedule properties purchased under Exts.A6 to A8 and that he is the title holder of the vehicle, Maruti Zen car shown in D schedule of the petition. That petition was dismissed by the Family Court. For sake of convenience, these appeals are dealt with separately. Mat.Appeal No. 15/2005 1. The appellant herein is the respondent in O.P.No.1193/2001 filed by respondents 1 and 2 claiming maintenance to the first respondent/wife at the rate of Rs.25,000/- per mensem and at the rate of Rs.10,000/- per mensem for the second respondent/daughter. Another claim was also made for return of Rs.5 lakhs with interest thereon from the appellant. That claim for return of Rs.5 lakhs has been given up by the first respondent at the time of trial. She admitted that she had withdrawn that amount by herself. As regards the maintenance of the first respondent, the court below has held that she is not entitled for maintenance. That finding has not been challenged and has become final. As regards the maintenance of the second respondent/daughter, Rs.7500/- per mensem was allowed by the court below for her maintenance as against the claim of Rs.10,000/- made in the petition. That direction is challenged in this appeal. 2. It is submitted by the learned counsel for the appellant/father that the maintenance amount awarded in favour of the second respondent at the rate of Rs.7,500/-per mensem is highly unreasonable and without considering the evidence on record. A reasonable amount may be fixed, it is prayed. This prayer is opposed by the learned counsel for respondents. 3. The appellant is admittedly residing separately from respondents 1 and 2. It is contended by the first respondent/wife that the appellant had abandoned them. They were driven out of his house in April 2001. The appellant has no case that he has ever asked his wife and daughter to come back and reside along with him. Thus the appellant is not maintaining his daughter, the second respondent and as the father of the second respondent, he is bound to maintain her whatever be the reason for separate residence. 4. In the counter statement filed by the appellant it was admitted that he has legal and moral obligation to maintain his child, the 2nd respondent/petitioner. According to him, he is ready to pay Rs.500/- per month to her. Thus the only dispute in this appeal is regarding the quantum of maintenance awarded in favour of the second respondent and whether the amount of Rs.7,500/- per mensem in favour of the second respondent as fixed by the court below is excessive as contended in this appeal. 5. It is well settled that while assessing the rate of maintenance to be awarded, the requirements of the person who claims maintenance has to be borne in mind. The first respondent as CPW1 has deposed that the second respondent, their daughter is studying and that maintenance claim of Rs.10,000/- per month was made in the petition which is reasonable. The different heads has not been specified in the petition. According to the 1st respondent, the appellant who is the father of the child, is conducting a very good business at Dubai with a monthly profit of more than Rupees five lakhs. This has not been denied in the counter statement filed by the appellant. 6. Considering the evidence on record, the lower court has found that the first respondent is able to maintain herself and no maintenance allowance can be awarded in her favour. Regarding the second respondent, it is conceded by the appellant in the counter statement itself that he is ready and willing to pay Rs.500/- per month as maintenance allowance to the second respondent. Rs.10,000/- per month was claimed as maintenance allowance to the second respondent, which according to CPW1, her mother, is the amount required for the food, clothing and educational expenses of their daughter who is studying. Ext.X3 has been relied on by the lower court to conclude that more than Rs.11 lakhs is in deposit in the credit of the appellant. The admission on the part of the appellant that he has got other bank accounts also has been taken into consideration by the trial Judge. Considering the affluence and the income and status of the parties, the appellant was directed to pay Rs.7500/- per mensem to the second petitioner as maintenance with effect from the date of petition till her marriage . She was allowed to recover the same from the appellant and his assets. We find no reason to interfere with that finding and there is nothing on record to reduce that amount of maintenance allowed in favour of the second respondent herein who is the daughter of the appellant. Thus, we find that the quantum of maintenance at the rate of Rs.7,500/- per mensem fixed by the lower court in favour of the second respondent herein is reasonable and there is no ground to reduce the same. This appeal is accordingly dismissed. Mat.Appeal No.16/2005 1. The appellant and the respondent married on 10-7-1985 and one daughter was born in that wedlock. The marriage and paternity is admitted. At the time of marriage, the appellant was working in Dubai and they admittedly stayed there for 10 years. Subsequently, they returned to India and stayed at Thiruvananthapuram. This is also admitted. It is contended by the appellant in the petition that thereafter the wife/respondent began to ill-treat him and he was insulted and humiliated in front of others. She used to pick up quarrels for silly matters and would leave the marital home without his consent. She was leading loose life. The life of the appellant became extremely miserable due to the irrational behaviour of the respondent. She was leading infamous life. She exploited him for money. She filed petition before the Women’s Commission against him which was withdrawn later. The marriage between the appellant and the respondent has irretrievably broken down due to the cruelty and desertion by the respondent. On these allegations the appellant prayed for divorce on the ground of cruelty and desertion. 2. The respondent resisted the case of the appellant. According to her, the appellant ill-treated her with cruelty. He used to come to house in late hours and quarrel with her without any reason. After taking liquor he used to beat her several times. She suffered everything for the sake of the daughter. She was loyal to the appellant whereas the appellant was very cruel towards her. Later, she came to know that the appellant was suffering from mental disorder. He took treatment as instructed by the doctor. But he discontinued to take medicine as advised by the Doctor and thereafter he became violent again. The appellant is under the control of some anti-social elements who compelled him to marry one lady Anila and they are now living as husband and wife. The respondent prayed the petition may be dismissed . 3. The evidence in this case on the side of the appellant consists of oral testimony of PWs.1 to 4 and documentary evidence of Exts.A1 to A12 and Exts.X1 to X7. CPWS.1 to 5 were examined on the side of the respondent and Exts.B1 to B24 were marked. The learned trial Judge on consideration of the respective cases of the parties and the evidence adduced by them both oral and documentary came to the conclusion that the appellant/petitioner had failed to prove such cruelty on the part of the respondent so as to pass a decree for dissolution of marriage. The petition was hence dismissed. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 5. This petition is filed by the appellant/husband under Section 13(1) of the Hindu Marriage Act, 1955 against the respondent/wife for dissolution of marriage on the ground of cruelty and desertion. When this appeal was taken up for hearing, it was submitted by the learned counsel for the appellant that the appellant is not pressing the ground of desertion as it was mentioned before the trial Judge also and is claiming divorce of the respondent, his wife on the ground of cruelty only, that is under Section 13(1)(ia) of the Act. 6. Clause (ia) of Section 13 (1) specifies cruelty as one of the grounds for divorce. The relevant portion of Section 13 reads as follows: “13. Divorce,-(1)Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- xx xx xx (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; “ 7. Cruelty contemplated by sub-clause (ia) of Section 13 (1) is both physical and mental. We are concerned herein with the latter as the learned counsel for the appellant submitted that the appellant is relying on the mental cruelty only for claiming divorce against the respondent. It is not possible to define mental cruelty ‘exhaustively’. According to the learned counsel, the pleadings of the respondent before the courts below in different cases are itself sufficient to constitute mental cruelty. 8. Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. What is cruelty in one case may not amount to cruelty in another case. The fact that a marriage has irretrievably broken down does not permit dissolution of marriage on that ground. The same may have to be kept in mind as a circumstance while ascertaining the type of cruelty contemplated by Section 13(1)(ia). Merely because there are allegations and counter allegations, a decree of divorce cannot follow. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings and evidence. In the instant case the husband had filed divorce petition against the wife on the ground of cruelty and the wife denied the allegations of cruelty levelled against her. In the counter statement filed by the wife and the questions put by her counsel to the first petitioner/PW1 in cross examination, allegations/suggestions had been made that the conduct of the petitioner/husband amounts to cruelty in the eye of law and therefore,the first petitioner cannot claim divorce. It is significant to note that this is not a case where the allegations are made only by one party against the other. Both have levelled serious allegations against the other. It is settled law that physical violence is not a necessary ingredient of cruelty and also that making reckless allegations of immorality against the other spouse amounts to mental cruelty. Mental cruelty is now well recognized as a ground for divorce. While evaluating the same, every act must be judged with reference to its attendant circumstance, and the physical or mental conditions or susceptibility of the innocent spouse and the intention of the offending spouse are all matters of decisive importance. It is not possible to compartmentalise the concept of cruelty. In each case the facts have to be considered. The whole matter must be taken together. 9. It is argued by the learned counsel for the appellant that the cruelty alleged by the appellant claiming divorce of his wife is not of violent acts but of injurious reproaches, complaints and accusations of immorality against the appellant and also the allegation of mental illness against him which is not proved. These amount to cruelty, it is contended. The respondent raised false contentions in the counter statement in O.P.No.1265/2001 that the appellant has withdrawn various amounts that stood in her name by practising impersonation and cheating which are also false. The respondent raised scandalous allegations of impersonation, cruelty etc. against the appellant and even then she refused the claim of divorce made by the appellant which also revealed the cruel behaviour of the respondent. The respondent kidnapped the appellant and administered some unknown medicines to him from J.J.Hospital under the guise of treatment of mental illness by CPW2 from where he was rescued and admitted at Sree Uthradam Thirunal Hospital for proper treatment. False allegations of infidelity against the appellant that he married one Anila and is living with her as husband and wife also amount to cruelty. The learned counsel for the respondent submitted that all the allegations regarding the cruelty set out in the petition and the behavioural problems etc. attributed to the respondent are false which would show the intolerance, jealousy etc. of the appellant and no specific incidents have been pointed out by the appellant regarding cruelty alleged against the respondent. The definite case of the respondent that the appellant was suffering from slight mental illness and he had consulted the Doctor who was examined as CPW2 and he was reluctant to take medicines etc.are proved from the testimony of CPWs.1 and 2. According to the respondent, if medicines are regularly taken by the appellant, there would be no problems between them and that the appellant is a loyal and loving husband. Due to the interventions of the friends and relatives of the appellant he was reluctant to take medicines which ended in the family problems between the husband and the wife, it is submitted. 10. The appellant was examined as PW1. The marriage between the appellant and the respondent was solemnized on 10-7-1985. According to PW1, after the marriage, they were living together as husband and wife in Dubai for about 10 years peacefully and then they returned from Dubai and settled at Thiruvananthapuram. Thereafter, the respondent had been behaving cruelly towards him and consequently he filed the petition claiming divorce on the ground of cruelty. It was deposed by the appellant that the respondent started quarrel with the petitioner for silly matters and used to go to her house without his permission. He was humiliated and insulted by the respondent in the presence of others. Due to intolerance, disobedience and tendency to quarrel for silly reasons on the part of the respondent created the life of the appellant extremely miserable. In the petitions also, the respondent raised false contentions against him which also amount to cruelty. 11. PW2 was examined to prove the case of the appellant against the respondent regarding her cruel behaviour towards him. He is the cousin brother of PW1. PW2 has deposed that he saw the respondent along with tuition master of the daughter of PW1 and the respondent was talking to him from their bed room. PW1 has no case that there was any illicit relationship between the respondent and the said tuition master. The circumstance spoken to by PW2 as the cruel behaviour of the respondent towards the appellant has not been accepted by the trial judge. Though several allegations were made against the respondent regarding her cruel nature, none of the same has been substantiated by the appellant. The case of the appellant that the respondent stayed in a Family Suite in Y.W.C.A.Guest house has been admitted by the respondent and according to her, she stayed there along with her daughter for preparation of examination of her daughter due to the problems in their marital home which arose due to the mental illness of the appellant. Only some general and vague allegations are made by the appellant regarding cruelty alleged against the respondent. None of the same can be accepted by a court of law to break a marital tie between the spouses. So also the examination of PW2, cousin brother of the appellant will not help the appellant to substantiate the immoral or loose life of the respondent as alleged by the appellant in the petition. Talking with another person that too, to the tuition master of her daughter from the bed room cannot be given much weight to hold that the respondent is of immoral character. 12. Respondent as CPW1 has denied all the allegations against her. She has deposed that the appellant has abnormal behaviour due to his mental disorder and she never wanted the marital tie to be broken. CPW3, the Vice Principal of Nirmala Bhavan School was examined to prove that the daughter of the appellant and the respondent was gloomy and moody when she was studying in that school which CPW3 understood during counselling of the student. According to CPW3, she came to know that the gloomy nature of the daughter of the appellant and the respondent was due to the behaviour of her father at home. CPW1 has admitted that she preferred a complaint against the appellant before the Women's Commission which was withdrawn by her after the appellant agreed to take medicines to control his mental illness. Cruel nature has been attributed by the respondent against the appellant which according to her is due to the mental disorder of the appellant which can be cured by taking medicines regularly. CPW2, the doctor in the J.J.Hospital deposed that the appellant was suffering from paranoid schizophrenia. Ext.B24 and the testimony of CPW2 would reveal that the appellant was suffering from mental illness for which he was admitted at G.G.Hospital and J.J.Hospital and advised to take medicines. According to CPW1/respondent, her husband PW1 was reluctant to take medicines regularly due to the intervention of his relatives and friends which created marital problems between them. The allegations of cruelty and immorality against the respondent were attributed due to the mental illness of the appellant which can be corrected only by proper treatment for which dissolution of marriage is not the proper remedy. So, she is not prepared to break the marital tie and is opposing the petition. The evidence of CPW5, who is the brother-in-law of the appellant, and the respondent also would reveal that the appellant was suffering from mental ailment which aggravated due to failure to take medicines. The violent nature of the appellant and his ill-treatment towards the respondent and their daughter is also spoken to by CPW5. 13. It is evident from the deposition of PWs.1 and 2 and CPWs.1,2 and 5 that cruelty can be attributed to the appellant and not to the respondent/wife. The appellant has raised the allegation and also deposed before court to the effect that the respondent was leading immoral life has not been substantiated. It is specifically stated by CPW1 that she is not at all ready to the demand of divorce made by her husband. Though it is evident from the oral testimony of PW1 and CPW1 that the marital relationship between the appellant and the respondent got strained and there is evidence to show that the respondent filed petition before the Women's Commission against the appellant, those reasons are not sufficient to prove the allegations of cruelty against the respondent to seek a decree of divorce. On the other hand, there is sufficient evidence to show that the appellant used to ill-treat the respondent due to some mental disorder which can be corrected by taking medicines. It is not possible to apprehend human conduct and behaviour for all times to count and judge what is cruelty. The test to be applied is whether the cruelty is of such type that the appellant/petitioner cannot reasonably be expected to live with the respondent or living together with the spouse has become incompatible. The fact that the marriage has broken down is no reason in itself for a finding of cruelty. In the present case, there are allegations and counter allegations against each other as is evident from the petition and the counter statement which are indications of strain in the relationship between the parties and the same cannot be taken as a circumstance to grant the relief of divorce. The stand taken by the respondent/wife clearly shows that though there is strain in the relationship between parties, the marriage has not irretrievably broken down yet. 14. After considering the respective contentions of both parties and the arguments advanced by the learned counsel for the appellant and the respondent and evidence adduced by both parties in this case before the trial court, we find there is no evidence of any intention on the part of the wife/respondent to disrupt the marital life with the appellant, her husband. There is no evidence to sustain the allegations of cruelty against her. Instead the husband's behaviour establishes an intention to break the married life. So, there is no cause of action for the husband/appellant against the respondent to claim a decree for divorce. A contumacious spouse cannot be permitted to take advantage of his own inappropriate conduct and claim divorce on that ground. 15. After considering the facts and evidence in this case in detail as is evident from the judgment, the petition filed by the husband for divorce was correctly dismissed by the lower court. We agree with the reasons and conclusions of the trial court. We, therefore, find no reason to interfere with the judgment and decree passed by the trial Judge. This appeal is accordingly dismissed. Mat.Appeal NO.17/2005 1. The husband/appellant filed O.P.No.1265/2001 with the prayer for declaration that he is the absolute owner of the properties shown in Schedules A to C of the petition, which according to him were purchased under Exts.A6 to A8. He further prayed for a declaration that he is the title holder of the vehicle, Maruti Zen car shown in D schedule of the petition. The prayer was resisted by the respondent. She contended that those properties were purchased from the income obtained from the rubber estate and other properties. Such income was collected by her parents and given to her for the purchase of the same. It was found by the court below that no sufficient evidence was adduced by the appellant to indicate that he had purchased the properties