IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 Mat.Appeal.No. 261 of 2008() ---------------------------- OP.265/2006 of FAMILY COURT, PALAKKAD .................... PETITIONER: --------------- VIJAYASREE,AGED 24,D/O.RUDRA NAMBOOTHIRI KIZHAKKANETH MANAYIL,PERUMPALAM DESOM, ANAKKARA AMSOM,OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SMT.PRIYA VIJAYAN RESPONDENT: --------------- KRISHNAKUMAR,AGED 34,S/O.BALAKRISHNAN NAMBOOTHIRI,CHARAZHIVATTATH MANA,MUPPATHADAM P.O, ALUVA TALUK,ERNAKULAM DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.Appeal No. 261 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of January 2011 JUDGMENT Joseph Francis J., This appeal is filed by the petitioner in O.P. No. 265 of 2006 on the file of the Family Court, Palakkad. The respondent herein was the respondent husband in that case which was filed by the petitioner wife under Sec.13(1)(ia) of the Hindu Marriage Act for a decree for divorce on the ground of cruelty. 2. The case of the appellant/ petitioner is as briefly as follows. The marriage between the parties was solemnised on 10.,2.2002 as per their religious rites. One girl child was born in the wedlock. The appellant's case is that at the time of marriage she was a student of Sree Sankaracharya Sanskrit College Kalady where she was doing B.A.Bharathanatyam course and there was an Mat. Appeal No. 261 of 2008 :2: assurance that respondent will permit her to continue the course even after marriage. But after marriage respondent and his relatives changed their words and they compelled the appellant to discontinue her course. The respondent husband and his mother treated the appellant with cruelty and they always assaulted her. They always tried to despite and insult the appellant in front of guests and disregard her. After four months of marriage when the appellant was physically ill, the respondent and his relatives were not even ready to take her to hospital and finally she was taken to hospital at the request of a servant. The respondent husband left hospital immediately when the appellant's parents came and did not enquire about her physical condition after that. From the hospital she was taken to her house by her parents and returned to her matrimonial house after some mediation talks. Ill-treatment and torturing continued and she was totally neglected by her husband. The respondent husband was not interested to take care of her even at the time of pregnancy and at that time also assaulted and ill- Mat. Appeal No. 261 of 2008 :3: treated her. After delivery the appellant was in her house and she was taken to the matrimonial house at the request of the appellant's father. The respondent was not interested in the affairs of his child also. When she returned back to the matrimonial home there was no change in circumstances and her husband and his mother again subjected her to cruelty. The appellant was taken to her home by respondent husband on 29.11.2004 and after that the respondent is not bothered about his wife and child till date and is not enquiring about her. Since the appellant felt that her life is in danger if she continues to live with the husband and since left with no other remedy the appellant filed a petition for divorce before Family Court. 3. The respondent in his counter statement denied every allegation against him and his mother. His remaining contentions are as follows. The petitioner wanted to reside away at Kalady and continue her studies. The respondent was not agreeable for that. Therefore the petitioner had grudge against the respondent. The Mat. Appeal No. 261 of 2008 :4: real conflict was between petitioner and respondent's mother. As a result of such conflict, the petitioner became unfriendly to the respondent. She wanted to shift residence in order to go away from his mother. But he was not amenable to leave his mother alone in the house. The petitioner finally left her matrimonial home after quarreling with a servant. 4. In the Family Court, on the side of the petitioner Pws 1 and 2 were examined and Exts.A1 to 3 were marked. On the side of the respondent RW1 was examined. The learned Family Court on considering the evidence found that the husband was not a responsible husband and that he was not ready to fulfill his obligations as a husband and that the conduct of the husband does not amount to cruelty and the petition was dismissed. Against that judgment, the petitioner wife filed this appeal. 5. Though served there is no appearance for the respondent. Heard the learned counsel for the appellant. Learned counsel for the appellant submitted that the Family Court ought to have held Mat. Appeal No. 261 of 2008 :5: that failure of the respondent husband to do his duty as a husband would definitely amount to cruelty. The learned counsel for the appellant submitted that the Family Court ought to have found that cruelty not only includes physical cruelty but also mental torturing. Learned counsel for appellant submitted that the respondent husband had filed a petition for divorce against the wife which was allowed exparte and decree for divorce was passed and thereafter the husband married another woman and they have a child and subsequently that exparte decree for divorce was set aside at the instance of the petitioner wife and that case is pending. Learned counsel for the appellant submitted that if for any reason it is found that this appeal is not allowable on merits the case may be remanded back to the Family Court. Considering the subsequent events also, we are of the view that the prayer for remand can be allowed in the interest of justice and therefore we are not going into the merits of the judgment of the Family Court. Mat. Appeal No. 261 of 2008 :6: 6. Accordingly this appeal is allowed. The judgment in O.P. No. 265 of 2006 on the file of Family Court, Palakkad is set aside and the case is remanded back to the Family Court Palakkad for fresh disposal in accordance with law. The appellant is allowed to adduce further evidence. Both the parties are directed to appear before the Family Court Palakkad on 28.2.2011. The Family Court is directed to dispose of the case as early as possible. Send back the lower Court records immediately. K.M. JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/