IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 Mat.Appeal.No. 220 of 2004 ---------------------------- OP(DIV).53/2002 of DISTRICT COURT,WYNAD,KALPETTA .................... PETITIONER: --------------- P.M.DEVASSIA, S/O.MATHAI, AGED 50 YEARS, PONAMPANAYIL HOUSE, RESIDING AT MUNDERI, KALPETTA P.O., WYNAD DISTRICT. BY ADV. SRI.P.M.MOHAMMED SHIRAZ RESPONDENT: --------------- K.A.ELSY, D/O.ABRAHAM, AGED 48 YEARS, KOOTHAMPARAMBIL HOUSE, NOW WORKING AS TEACHER, ASSUMPTION A.U.P.SHOOL, SULTHAN BATTERY, WYNAD DISTRICT. ADV. SMT.K.V.BHADRA KUMARI SMT.C.M.CUCKOO THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== M.A. NO. 220 OF 2004 ============================ DATED THIS THE 26TH DAY OF JUNE 2009 JUDGMENT Hari Rani,J. This appeal is preferred by the appellant/husband against the order passed by the District Court in O.P.No.53/2002 filed under Section 10 of the Indian Divorce Act, 1869 claiming divorce of the respondent/wife on the ground of cruelty and desertion. The learned District Judge as per order dated 19-8-2004 dismissed the petition filed by the appellant. That order is challenged in this appeal. 2. The appellant has alleged cruelty and desertion against the respondent, his wife which according to him was intolerable. He prayed for a decree for divorce. The case of the appellant was resisted by the respondent, his wife. MAT.APPEAL 220/2004 -2- 3. The petitioner was examined as PW1 and no documentary evidence has been adduced on his side. The respondent was examined as RW1 and Exts.B1 to B4 and Ext.X1 were marked on her side. After evaluating the evidence on record both oral and documentary,the learned District Judge came to the conclusion that the appellant has failed to prove the allegations of cruelty raised against the respondent. The learned District Judge found that it was the appellant who treated the respondent with cruelty. It was also found that due to the cruelty and the ill-treatment of the appellant, the respondent had taken up separate residence from the appellant from 21-12-1998 along with their three children who were driven out from the house by the appellant on 20-12-1998 at 11 p.m. This separate residence is justified, it was held. Accordingly, the petition was dismissed. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 5. It is submitted by the learned counsel appearing for the MAT.APPEAL 220/2004 -3- appellant that sufficient evidence have been adduced on the side of the appellant before the court below to substantiate the grounds of cruelty and desertion alleged against the respondent. These were not taken into consideration, contends counsel. So, also the case of the respondent that the appellant was treating the respondent cruelly has not been proved by acceptable evidence and the court below ought to have granted a decree of divorce as prayed for. It is submitted by the learned counsel for the respondent that the appellant was treating the respondent, his wife and three children born in the wedlock in a very cruel manner and they were expelled from their house on 20-12-1998. The appellant was not maintaining them and even caused mental and physical agony to them. The appellant raised false allegations against the respondent that she has mental illness etc. Thus, according to the learned counsel for the respondent, it is the appellant who was guilty of desertion and cruelty against the respondent. 6. The appellant and the respondent are Christians and their MAT.APPEAL 220/2004 -4- marriage was solemnized at Fathima Matha Church, Theneri on 30-5-1983 in accordance with their religious rites. The marriage is admitted. Three children are born to them in the wedlock This is also admitted. The appellant when examined as PW1 has deposed about the cruel nature of the respondent which is disputed by the respondent as RW1 by raising allegations of cruelty as against the appellant towards her and to their three children. The appellant has filed the petition for divorce and it is for him to prove the allegations of cruelty levelled against the respondent by adducing satisfactory and cogent evidence. The allegations in the petition and the evidence of the appellant as PW1 is to the effect that the married life of the appellant with the respondent was not at all happy from the very beginning itself on account of the behavioural problems of the respondent due to her mental illness. According to him, he has suggested the respondent to have consultation of a psychiatrist which had worsened the situation. The respondent had suicidal tendency and attempted to commit suicide for three times. After the MAT.APPEAL 220/2004 -5- marriage, they were residing together along with his parents. Subsequently due to the compulsion made by the respondent, they started separate residence from 1986 in a new house. From there also the respondent behaved against the appellant with quarrelsome attitude and used to abuse him in the presence of others. She even tried to kill him by using a kitchen knife. In 1994, they shifted their residence to Kalpetta due to the pressure of the wife. Even then there was no change in the quarrelsome attitude of the respondent. The respondent used to behave in such a manner generating the apprehension in the mind of the appellant that his life will be in danger if continued residence with her. The appellant was working in the Commercial Taxes Department as the Sales Tax Inspector and the respondent sent false complaints against him to his superior officers with a view to torture and tarnish him. She has filed a false complaint against him under Section 498-A of the Indian Penal Code. On 21-12-1998 when the appellant came to his house, he did not see the respondent and their children. MAT.APPEAL 220/2004 -6- Thereafter, on 27-12-1998 he received summons from the Sub Inspector of Police, Kalpetta on the basis of a complaint filed by the respondent against him and to meet the Dy.S.P. on 28-12-1998. He went to the office of the Deputy Superintendent of Police, Kalpetta on 28-12-1998 wherein the respondent was present there along with a lady doctor. On that day, she took her belongings from the house in the presence of the Police Constable and the lady doctor. The respondent did not come and reside with the appellant in spite of the notice sent by him on 7-5-1999 as demanded. Instead, she filed a maintenance case against him which revealed that the respondent does not want to live with the petitioner. 7. The above versions of the appellant have been denied by the respondent as RW1. She has stated that from the very inception of their marital life, the parents of the appellant and also the appellant used to torture her and behave in a very cruel manner by demanding more dowry. They shifted their residence to Munderi from Vazhavatta for the convenience of the appellant MAT.APPEAL 220/2004 -7- as he was employed at Kalpetta at that time. According to RW1, the appellant and his parents used to abuse her and torture her in front of their children and others. On 20-12-1998 at 11.00 p.m. she was beaten by the appellant and driven out from the house along with their children and she was hospitalized at Fathima Matha Hospital, Kalpetta as an inpatient for six days. She has produced Ext.B1 wound certificate and Ext.X1 case sheet issued from the Fathima Matha Hospital, Kalpetta to prove that she sustained injuries at the hands of the appellant. According to RW1,she was taken forcibly to mental Hospital at the instance of the appellant. She has not acceded to the demand of the appellant to reside along with him as demanded in the lawyer notice, Ext.B4 sent on 6-5-1999 due to the cruel nature of the appellant as revealed from Ext.B1 and Ext.X1 and for the reason that the respondent and their children were driven out by the appellant without any mercy. He is not at all bothered about their welfare and maintenance. She was compelled to file M.C. claiming maintenance for herself and her children. The eldest MAT.APPEAL 220/2004 -8- child is more than 19 years and the appellant was ignorant about the education of his eldest child as admitted by him in the cross examination. He admitted that he does not know whether that child is studying for B.Sc. Nursing. The appellant does not know whether his wife and children are residing in a rented house at Kalpetta. The respondent was compelled to file a suit against the appellant for past maintenance to her and to the children. This also proved the indifferent attitude of the husband/father who is bound to look after them. The mental illness attributed against the wife, which according to the husband was a reason for her cruel nature cannot be taken as a ground for the grant of divorce as claimed by the appellant. 8. It is admitted by the appellant that the respondent and his children are residing separately from 21-12-1998 and no attempt is seen made by him till 6-5-1999 to enquire about their residence and welfare. He did not maintain them. On 6-5-1999 without even enquiring about their whereabouts, he sent a lawyer notice with a demand to come and reside along with him which MAT.APPEAL 220/2004 -9- can only be treated as a device to avoid giving maintenance to the wife and children and also to file a petition for divorce. In a case like this we cannot expect any evidence of independent witnesses and we have to rely on the interested evidence of the parties. 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. It is evident from the deposition of PW1 and RW1 that there are sufficient reasons for the respondent-wife to reside separately from the appellant/husband and she cannot be blamed for desertion, cruelty etc. On the other hand, cruelty and desertion are to be attributed to the appellant. Considering the evidence adduced by the parties to this petition both oral and documentary, the learned District Judge has found that the respondent is justified in living separately from the appellant and hence, the appellant is not entitled to get the relief of divorce as claimed in the petition. 9. Considering the facts and circumstances of this case and MAT.APPEAL 220/2004 -10- also the evidence on record both oral and documentary, we find that the finding of the court below is correct and it requires no interference. 10. In the result, the Mat appeal is dismissed. When this appeal was admitted on 4-2-2005,it was directed to deposit Rs.2,500/- by the appellant which can be withdrawn by the respondent to meet the cost of conducting the proceedings. If that amount is still in deposit, it can be withdrawn by the respondent as already directed. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.