High Court Kerala High Court

Suchithra vs Anil Krishnan on 13 April, 2007

Kerala High Court
Suchithra vs Anil Krishnan on 13 April, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA No. 78 of 2002(B)


1. SUCHITHRA D/O. M.RADHAKRISHNAN NAIR,
                      ...  Petitioner

                        Vs



1. ANIL KRISHNAN, S/O. G.K.PILLAI,
                       ...       Respondent

                For Petitioner  :SMT.ELIZABETH MATHAI IDICULLA

                For Respondent  :SRI.P.RADHAKRISHNAN (1)

The Hon'ble MR. Justice K.K.DENESAN
The Hon'ble MR. Justice V.RAMKUMAR

 Dated :13/04/2007

 O R D E R
                    K.K.DENESAN & V. RAMKUMAR, JJ.

                         ------------------------------------

                            M.F.A.NO. 78 OF 2002

                         ------------------------------------

                          Dated,  13th April    2007


                                   JUDGMENT

Ramkumar, J.

This is the wife’s appeal under sec.19(1)(i) of the Family

Court’s Act, 1984 challenging the order dt. 24.11.2001 in

O.P.No.363/1999 on the file of the Family Court, Ernakulam. The

said O.P. was filed by the respondent/husband under sec.13(1)(ia)

of the Hindu Marriage Act, 1955 on the ground of cruelty and

sec.13 (1) (ib) on the ground of desertion.

THE HUSBAND’S PLEADINGS

2. The case of the respondent/husband in the petition for

divorce is as follows:-

The petitioner (Anil Krishnan) and the respondent

(Suchitra) are Hindus belonging to the Nair community. Their

marriage was solemnized according to the customary rites at Sree

Rama Mandir in Alappuzha on 8.6.1991. On the same day the

petitioner and the respondent came to the petitioner’s house at

Ernakulam and thereafter they were living together at Ernakulam.

Right from the beginning of their stay in the petitioner’s family

MFA 78/02 2

house, the petitioner found the respondent behaving very

strangely towards him and his parents. She exhibited anger and

annoyance towards the petitioner and his parents. At first the

petitioner thought that the respondent’s behaviour was due to

her initial inability to adjust to the life of a newly married wife.

He tolerated her behaviour and lived as a loving husband. The

respondent continued exhibiting cold behaviour and informed

the petitioner that she had dislike for him and his parents and

wanted to leave the matrimonial home. On 24.7.1991 the

respondent went to her parental house at Alappuzha.

Thereafter on 26.7.1991 the parents of the respondent informed

the petitioner that the respondent was pregnant. The petitioner

and his parents immediately went to the respondent’s house at

Alappuzha to take her back to the matrimonial home. Initially

the respondent refused to go with them. She did not offer any

explanation for her dislike to return to the matrimonial home.

The respondent, however, came back to the matrimonial home

on 4.8.1991 after much persuasion from the petitioner and also

from the parents of both the petitioner and the respondent.

MFA 78/02 3

After returning to the matrimonial home, the respondent

continued to be indifferent towards the petitioner and insisted

that she be taken to her parental house. She had to be taken to

Alappuzha on 30.8.1991. She was brought back on 20.9.1991,

but on 2.10.1991 on her insistence the respondent was taken

again to Alappuzha. Her parents brought her back on 3.10.1991.

On 5.11.1991 she again went to her parental home at Alappuzha.

The parents of the petitioner went to Alappuzha on the request

of the petitioner to persuade the respondent to come and stay in

the matrimonial home with the petitioner. As there was no

justifiable cause for the respondent’s failure to go and stay with

the petitioner in the matrimonial home, her father brought her

back to Ernakulam on 24.11.1991. On 12.12.1991 the parents of

the respondent formally came to the petitioner’s family house at

Ernakulam to take her to Alappuzha for delivery. The abnormal

and unreasonable attitude of the respondent had upset the

petitioner very much. He had made many attempts to set right

her attitude. The parents of the respondent informed the

petitioner and his parents that the respondent’s pregnancy had

MFA 78/02 4

adversely affected her. The respondent once informed the

petitioner that she disliked him talking to his parents, relatives

and close friends and that that was the reason for her anger and

annoyance towards him. The petitioner tried to convince her

that he was the only son of his parents, that he had duties

towards his parents and that both the petitioner and the

respondent should together socialise with close relatives and

friends. The respondent, however, appeared to be unwilling to

change her attitude and to communicate and mingle with

everyone including the petitioner. During the period of

pregnancy while the respondent was in Alappuzha, the petitioner

and his parents had bestowed much care and attention on her

by visiting her on 27.12.1991, 17.1.1992 and 26.2.1992. On

2.3.1992 also when the child was born, the petitioner and his

parents had visited the respondent and thereafter also on many

occasions after the birth of the child. The naming ceremony of

the child was attended by the petitioner and his parents at

Alappuzha and the child was named as Gouri. The respondent

showed over-possessiveness over her daughter. She showed

MFA 78/02 5

repugnance to any physical contact which the petitioner had with

the baby girl. The respondent displayed insufferable

temperament and unrelenting anger towards the petitioner for

no reason. She informed the petitioner on the date of the

naming ceremony that their daughter would live in her parental

home and that the petitioner should not make any claim over the

child. When the petitioner showed signs of reacting to the

respondent’s statements, his parents tried to reason out with him

saying that the respondent was behaving abnormally due to the

fact of her pregnancy at a very early age and that the petitioner

should tolerate her behaviour for some time. The petitioner

could not understand the reason for the over-possessiveness

shown by the respondent towards the baby child because she

had told him that she was basically a career-oriented person and

did not want children. The respondent showed no sign of

wanting to come and stay in the matrimonial home. On 3.9.1992

the respondent left for Alappuzha. On 6.9.1992 the rice-feeding

ceremony of the baby was conducted at Chottanikkara temple

and the respondent had returned to the matrimonial home. The

MFA 78/02 6

respondent never changed her attitude towards the petitioner

even after 7 months of delivery. The respondent’s attitude

towards the petitioner was not like one towards a husband. She

never gave him affection or consideration. She never attended

to any work in the family. She always seemed to be brooding

over imaginative issues and even started picking up quarrels

with the petitioner for no reason. The petitioner was put to

considerable agony on account of the respondent’s words as well

as behaviour. On 25.10.1992 the respondent again went to her

parental house along with the daughter. On 8.11.1992 she,

along with her daughter, was brought back to the matrimonial

home by her father. On 1.12.1992 he parents of the respondent

had to come and console the petitioner who had suffered agony

due to the unreasonable anger of the respondent. On 17.1.1993

the respondent insisted to go to her parental home to attend a

marriage. She was brought back by her parents on 25.1.1993.

On 9.2.1993 she again went to her parental house to attend her

father’s 60th birthday celebrations. She did not return to her

matrimonial home. The petitioner’s parents went over to her and

MFA 78/02 7

persuaded her to come back to Ernakulam to celebrate the

daughter’s first birthday at Ernakulam. She came back to the

matrimonial home on 11.2.1993 and resided there with the

petitioner till 28.2.1993 on which day without giving any reason

she left the matrimonial home along with her daughter. The

petitioner had not given his consent to the respondent to leave

the matrimonial home. It was without the consent and against

the wish of the petitioner that the respondent left for Alappuzha.

There was no reasonable cause or any conduct on the part of the

petitioner so as to induce the respondent to leave her

matrimonial home. The petitioner and his parents attempted to

persuade the respondent to come back to her matrimonial home.

On 16.5.1993 and on 4.7.1993 even though the respondent was

brought back to the matrimonial home by her parents, she did

not reside there with the petitioner, but went away to her

parental house without the consent of the petitioner. Her

parents had again brought her to the matrimonial home on

19.9.1993, but she left along with her parents on that day. Again

on 31.10.1993 the respondent’s parents brought her back to the

MFA 78/02 8

matrimonial home. On both the above occasions she expressed

her unwillingness to reside with the petitioner. She behaved

very indifferently towards the petitioner and left the matrimonial

home. She did not permit the petitioner to have access to his

daughter. Her parents pleaded with the petitioner not to make

an issue regarding the child until the respondent’s temperament

became normal. The respondent had taken her ornaments from

the matrimonial home during the occasions when she had visited

her own house while staying in the matrimonial home. The

respondent refused money from the petitioner for the

maintenance of her daughter stating that it was a ruse on the

part of the petitioner to get hold of his daughter. The

respondent’s parents continued to entertain the respondent’s

strange attitude stating that time would heal her unreasonable

behaviour and pleaded with the petitioner not to react and upset

their daughter. On the advice of her parents and out of goodwill

towards her family, the petitioner waited for the return of his wife

to the matrimonial home till March, 1976. When the parents of

the petitioner enquired with the respondent as to whether her

MFA 78/02 9

intention was to divorce their son, she replied that she would

make the petitioner’s life miserable. She, however, did not

reveal any reason for proclaiming so. Thereafter during the

years 1996-99 well-wishers of the family unsuccessfully

attempted an amicable settlement. The respondent did not,

however, come back to her matrimonial home and reside with

the petitioner after 28.2.1993. The respondent abandoned the

petitioner and deprived him of the company of his daughter

without any reasonable cause. With effect from 28.2.1993 the

respondent deserted the petitioner. She left the matrimonial

home on that day with the intention of bringing to an end her co-

habitation with the petitioner. There has been continuous

separation of the respondent from the petitioner with effect from

28.2.1993 causing desertion. During this long period of more

than six years, the respondent had never enquired about the

petitioner. There has been total repudiation of her marital

obligations by the respondent. All efforts made by the petitioner

and his parents to provide for the daughter of the petitioner did

not succeed. His daughter is living with the respondent’s

MFA 78/02 10

parents. Till recently the respondent was living in her parental

home. Now it is understood that she has left the parental home

so as to study for degree in law at Cochin University leaving the

daughter with her parents. The petitioner had not attempted to

precipitate these issues with the respondent fearing that it would

affect their daughter. Moreover, the petitioner thought that

being a tender child, she would require the care of the mother

during her early years. Since the child is presently deprived of

her mother’s company also, the petitioner is desirous of gaining

custody of the child. The respondent’s attitude towards the

petitioner while in the matrimonial home had made the life of the

petitioner miserable. Her persistent anger and aloofness had

inflicted great pain and misery on the petitioner. She had

caused mental cruelty towards the petitioner by means of

constant ill-treatment. While leaving the matrimonial home she

had collected her remaining ornaments and saris thus indicating

her animus deserendi. The respondent had thus willfully

terminated co-habitation with the petitioner without his consent

and against his will. The marriage was solemnized at

MFA 78/02 11

Alappuzha. The petitioner and the respondent set up their

matrimonial home at Ernakulam and they last resided together

at Ernakulam. The petitioner is residing at Ernakulam and the

respondent is residing at Alappuzha. The cause of action for the

petition arose during the period 1991-93 when the respondent

deserted the petitioner. Hence the marriage of the petitioner

with the respondent may be dissolved on the ground of desertion

and cruelty.

THE WIFE’S PLEADINGS IN REPLY

3. The respondent wife, namely Suchitra, filed her

objections contending inter alia as follows:-

The petition is not maintainable either on law or on facts.

Except to the extent expressly admitted hereunder, this

respondent denies all the averments in the petition. The date

and place of marriage between the petitioner and this

respondent are admitted. After the marriage they were residing

together as man and wife in the petitioner’s house at Ernakulam.

MFA 78/02 12

The petitioner’s allegation that this respondent did not show any

love and affection towards the petitioner and his parents is not

true. This respondent was never angry towards the petitioner or

his parents. She loved the petitioner and respected his parents.

There was no occasion for this respondent to become angry

towards the petitioner or his parents. The petitioner’s parents,

particularly his father, had daughterly affection towards this

respondent. Even now she loves the petitioner and holds his

parents in high esteem. The averments in the petition that this

respondent had told the petitioner that she disliked him and his

parents and had expressed a desire to leave the matrimonial

home is absolutely false and hence denied. To begin with, this

respondent had a happy married life with the petitioner. The

petitioner’s father hails from a family of noble traditions and his

parents and other relatives were closely known to this

respondent’s parents. Therefore, when the proposal for the

marriage came, there was no necessity for this respondent’s

parents to think twice about the marriage. The proposal was

immediately accepted and the marriage also took place within a

MFA 78/02 13

month. After the marriage this respondent was living in the

marital home discharging all her marital obligations towards the

petitioner as a dutiful wife. The parents of the petitioner and

other relatives also treated this respondent with love and

affection. On 14.6.1991 there was a family get-together in this

respondent’s parental home. The petitioner, his parents and

many of his close relatives participated in the said function. This

respondent’s father presented a valuable jewel-studded ring

(Navaratna Mothiram) to the petitioner on that occasion as a

token of his love and affection. The petitioner along with his

parents and this respondent went to Bangalore on 19.6.1991.

They returned to Ernakulam on 24.6.1991. The petitioner who

was an M.B.A., got a job in the Birla Tyres and the entire family

was happy over this assignment. Thereafter, on 1.7.1991,

6.7.1991 and 7.7.1991 this respondent and the petitioner had

resided together at Alappuzha at this respondent’s house. It was

not on her own accord that this respondent had gone to

Alappuzha on 24.7.1991. The petitioner’s father’s birthday fell

on that day and it was for celebrating the same that the entire

MFA 78/02 14

family went to Chavara in the evening of 23.7.1991. After the

birthday celebration, this respondent had felt exhausted and she

had stayed back at Alappuzha as advised by the petitioner. On

25.7.1991 this respondent was taken to a lady doctor for

medical examination and she was reported to be pregnant. This

news was conveyed to the petitioner. Hearing the said news,

the petitioner and his parents came down to Alappuzha on

26.7.1991. On that day the petitioner and his parents did not

ask this respondent to return to Ernakulam because the 90th

birthday of this respondent’s paternal grandmother was on

1.8.1991 and this respondent wanted to participate in the said

function along with the other members of her family. Since

Fridays and Saturdays were not astrologically auspicious days

for a pregnant woman to return to her matrimonial home this

respondent was taken to her marital home on Sunday i.e.

4.8.1991 by her father and sister. The petitioner had come to

Ernakulam South Railway Station to take them to his house.

These facts have been deliberately suppressed in the petition.

The petitioner and this respondent were residing happily at

MFA 78/02 15

Ernakulam. This respondent did not show any indifference

towards the petitioner as alleged nor had she insisted on

returning to Alappuzha. This respondent’s 23rd birthday was on

2.9.1991 and for that purpose she was taken to Alappuzha by

the petitioner on 30.8.1991. The petitioner did not come for the

birthday and this was not deliberate. His parents, however,

came to Alappuzha and gave birthday presents and had greeted

this respondent on that occasion. On 20.9.1991 tis respondent

was taken to Ernakulam by her parents-in-law. It is true that on

2.10.1991 this respondent had gone back to Alappuzha along

with her parents-in-law. This respondent’s father-in-law is a

native of Chavara and he used to go there frequently to meet his

aged parents. Therefore, on 2.10.1991 when they went to

Chavara, they wanted this respondent also to accompany them.

When they returned on 3.10.1991, this respondent also went

back to Ernakulam along with them. It is false to state that it

was this respondent’s parents who took her to Ernakulam on

3.10.1991. On 5.11.1991 i.e. on the Deepavali day, this

respondent’s parents had come over to Ernakulam with various

MFA 78/02 16

items of sweets to this respondent as she was pregnant at that

time. This was done in accordance with the custom prevalent in

the community. This respondent was informed that her husband

was leaving for Madras on the next day and, therefore, if she

wanted, she could also go to Alappuzha along with her parents.

This respondent also wanted to attend her friend’s marriage at

Alappuzha on 8.11.1991. Therefore, as permitted by the

petitioner and his parents, on 5.11.1991 this respondent went to

Alappuzha with her parents. It is not correct to say that the

petitioner’s parents had come to Alappuzha to persuade this

respondent to return to Ernakulam and resume co-habitation.

Though the petitioner’s parents had come to Alappuzha on

19.11.1991, they advised this respondent to stay back as

Tuesday was not considered auspicious to undertake a travel.

So this respondent was taken to Ernakulam by her parents on

24.11.1991. On 12.12.1991 this respondent was brought back

to her parental home for confinement in accordance with the

customary rites. There was no abnormality in the behaviour of

this respondent either towards the petitioner or towards his

MFA 78/02 17

parents. She was sociable and mingled with all the members of

the family. Although she was fresh from the college, she looked

after the household affairs and helped her mother-in-law in

cooking food and managing the house. She never kept aloof as

stated in the petition. This respondent’s parents are cultured

and they had brought up all their children in an ideal way. While

she was a student, this respondent had actively participated in

all the cultural, social and educational activities in the school

and also in the college. The averment that this respondent did

not like the petitioner talking to his parents etc. is only a figment

of his imagination. This respondent knows the elementary

principles of family life and how to behave towards family

members. There was no occasion for the petitioner to advice

this respondent as to how she should behave towards his

parents. Although her mother-in-law had quite often found fault

with this respondent even on silly matters and used to chastise

her, she respected her and did not react to her comments. The

only person who had real affection, love and regard for this

respondent was her father-in-law. He is an engineer and had

MFA 78/02 18

worked as the head of a premier institution in Kerala for several

decades. It is too much to say that this respondent had

entertained a hostile animus towards such a venerable

gentleman. It is true that the parents of the petitioner had

called on this respondent on 27.12.1991, 17.1.1992 and

26.2.1992 on their way to Chavara. But the petitioner

deliberately avoided paying any visit on her after she had left

the matrimonial home for confinement. After the child was born

he came on 2.3.1992 and on 7.3.1992 with some of his friends.

He had attended the naming ceremony of the child. But it is

false to state that there was an altercation between them

regarding the custody of the child on that day. After the child

was born there was visible change in the attitude of the

petitioner and his mother towards this respondent. Although the

petitioner’s parents made occasional visits to Alappuzha, neither

the petitioner nor his mother wanted to take back this

respondent and the new-born baby to the matrimonial home.

Though this respondent had made repeated requests to the

petitioner and his mother to take her back to the matrimonial

MFA 78/02 19

home, they did not pay any heed to the same. The rice-feeding

ceremony of the child was performed at Chottanikkara temple

on 6.9.1992. The petitioner and his parents were informed of

the said ceremony in advance. This respondent had on

31.8.1992 written a letter also to the petitioner reminding him of

the importance of the function and requesting his personal

presence on the occasion. This respondent’s father had

extended a personal invitation to the petitioner when he met

him at his office on 2.9.1992. Though the petitioner was

physically present at his house on that day, he deliberately

refused to come and bless the child on that occasion. But his

parents had come and attended the function. This respondent

genuinely believes that the petitioner did not attend the

function as he might have been prevented by his mother from

participating in the function. She disallowed any type of

association of the petitioner with the child. From the conduct of

the petitioner and his mother it was evident that they had no

intention to take back this respondent to her matrimonial home

even in the distant future. Therefore, on 22.9.1992 this

MFA 78/02 20

respondent’s brother, who is an engineer by profession, went to

Ernakulam and met the petitioner and his father and requested

them to facilitate the return of this respondent and her daughter

to her husband’s house. Since his attempt did not fructify, on

28.9.1992 this respondent along with her parents and brother

went to the petitioner’s residence at Ernakulam. But the

petitioner did not permit this respondent to stay with him. As

there was torrential rain attended by thunder and lightning on

that day, this respondent requested the petitioner to permit her

at-least to spend the night in his house along with the child. He,

however, turned a deaf ear to her request and she was forced to

leave the house and go back to Alappuzha along with her

parents. She was thus virtually turned out of the petitioner’s

house at 9.30 p.m. in the night. As there was heavy rain on the

way, she could reach home only by 12 midnight. The inhuman

conduct on the part of the petitioner had caused excruciating

mental pain to this respondent. This respondent, however,

admits that for a short period from 8.11.1992 till 28.2.1993 this

respondent and her daughter were permitted to reside in the

MFA 78/02 21

petitioner’s house at Ernakulam. However, that was the worst

period in the entire married life of this respondent. During this

period the petitioner’s mother did not allow any sort of

association of this respondent and her daughter with the

petitioner. This respondent was given a room in the ground floor

to sleep with her daughter and her mother-in-law was also

sleeping in the same room. This respondent was asked by her

mother-in-law that she should not go to the petitioner’s room on

the first floor or talk to him. Every night the mother-in-law kept

a constant vigil on this respondent to make sure that she did not

slip out of the room and meet her husband on the first floor.

This respondent submits that she was confined to that room in

the ground floor and on account of that she suffered severe

mental pain and agony. On 16.1.1993 this respondent and her

child were taken to Alappuzha by her parents-in-law as this

respondent wanted to attend the marriage of her mother’s

sister’s daughter at Thiruvananthapuram on 18.1.1993. After

the marriage this respondent went back to her husband’s house

on 25.1.1993 and she stayed there till 9.2.1993 on which day

MFA 78/02 22

she came to Alappuzha along with the petitioner and his parents

to attend the birthday celebrations of her father. Thereafter on

11.2.1993 this respondent returned to Ernakulam after

attending her husband’s grandfather’s birthday celebrations at

Chavara. She had returned to her matrimonial home voluntarily

and not on the basis of any persuasion of her parents-in-law.

The first birthday of this respondent’s daughter was celebrated

at Ernakulam on 19.2.1993. Thereafter this respondent lived in

her matrimonial home only till 28.2.1993 on which day she was

taken back to her house at Alappuzha by the parents of the

petitioner. The petitioner and his mother wanted this

respondent to leave the matrimonial home and accordingly she

was forced to go to her parental home much against her will.

Thereafter several attempts were made by this respondent to

return to the matrimonial home and resume co-habitation. But

her attempts did not succeed on account of the intransigent

attitude of the petitioner and his mother. On 21.3.1999 this

respondent again went to the petitioner’s house with the child

with the intention to stay there permanently. After leaving this

MFA 78/02 23

respondent and the child in the house, her parents went to the

residence of Mr. M.N.Sukumaran Nair, a senior advocate of the

High Court and a close associate and well-wisher of the

respondent’s family. As desired by his mother, the petitioner

telephoned Mr.M.N.Sukumaran Nair and contacted the

respondent’s father over the phone. The petitioner wanted him

to go to his residence immediately and take back the

respondent and the child from his house. This respondent’s

parents immediately came there. In their presence this

respondent and the child were literally necked out of the

matrimonial home by the petitioner in front of his parents. This

caused severe mental pain, agony and distress to this

respondent. However, she suffered the ill-treatment meted out

to her by the petitioner and his mother in the fervent hope that

time would change their attitude towards this respondent. On

16.5.1993 the petitioner’s father came alone to Alappuzha and

took this respondent and the child to North Parur to attend the

marriage of this respondent’s mother-in-law’s sister’s daughter

scheduled to be held on the 17th. After the marriage this

MFA 78/02 24

respondent and the child were taken to Ernakulam by the

petitioner and his parents. In the evening news came that the

petitioner’s father’s uncle Narayana Pillai had passed away at

Thiruvananthapuram. The petitioner’s parents wanted to attend

the funeral and they were getting ready to leave for

Thiruvananthapuram on the next day. Thereupon this

respondent virtually cringed with the petitioner and his mother

to permit her and her child to live in the matrimonial home

atleast for some days. The petitioner and his mother were

adamant and they informed this respondent that she would not

be permitted to live in their house. The petitioner had even

threatened this respondent with physical injury if she refused to

leave the matrimonial home the very next day along with his

parents. In the presence of his parents he uttered that in case

she stayed back, he would slap her face and make it out of

shape. The exact words spoken by him was the following:-

shape ”

Thus, the attempt made by this respondent to resume co-

habitation failed and she had to return to Alappuzha along with

MFA 78/02 25

the petitioner’s parents on 18.5.1993. However, this respondent

sent a letter to her mother-in-law owning the entire responsibility

for the incident which took place on 17.5.1993 and requesting

them to permit her to return to the matrimonial home. This

respondent had passed M.A. Degree in 1991 just before her

marriage. She was desirous of gong for further studies. It was

because of her marriage that she dropped the idea of further

studies in the hope that she could become a good housewife. As

the married life was not successful as originally not expected,

this respondent wanted to resume her studies. Accordingly, on

6.10.1994 she got herself admitted to the Journalism Course at

the Press Academy, Kakkanad, Ernakulam, She passed the

course on 8.1.1996 in First Class securing third rank in the

examination. During the entire period of her study in the Press

Academy, she was staying in the ladies’ hostel as she was

absolutely sure that the petitioner and his mother would not

permit her to live permanently at their residence. Her parents-

in-law visited her only once while she was in the hostel. But she

used to visit them occasionally to pay her respect and regards

MFA 78/02 26

for them. By the end of 1995, as part of th Journalism Course

this respondent had to undergo a day’s training at the Malayala

Manorama Office at Panampilly Nagar which is situated close to

the petitioner’s house. On that day this respondent went to her

matrimonial home and took food along with her parents-in-law.

Part of the training was at night and, therefore, after the work

this respondent thought that her mother-in-law would permit her

to sleep in the matrimonial home during the night. But her

mother-in-law did not allow this respondent to sleep there and so

this respondent had to go and spend the night at her friend’s

house. There were many such incidents of cruel treatment

extended by the petitioner and his mother to this respondent.

In spite of that this respondent bears no ill-will towards the

petitioner or his mother. This respondent has only love and

affection for the entire family. This respondent has always been

and still is ready and willing to return to her matrimonial home

and resume co-habitation with the petitioner and discharge all

her marital obligations. This respondent is not guilty of cruelty or

desertion as stated in the petition. She has not left the

MFA 78/02 27

matrimonial home on 28.2.1993 with the intention of bringing

the co-habitation to an end permanently as alleged by the

petitioner. She has not entertained any animus deserendi when

the petitioner’s parents took this respondent to her house on

28.2.1993 on their way to Chavara. The conduct of this

respondent subsequent to 28.2.1993 will reveal that she had no

intention to terminate the marital relationship with the petitioner.

The parents of the petitioner also did not persuade this

respondent to return to her matrimonial home as alleged in the

petition. This was because they were aware that the petitioner

would not permit this respondent to live in his house. Therefore,

the attempt made by the petitioner and his parents to re-install

this respondent in her matrimonial home is only a cock and bull

story. On 16.5.1993 this respondent was taken to North Parur by

her father-in-law for the marriage of the petitioner’s cousin. But

on the next day she was driven out of her matrimonial home by

the petitioner. On 4.7.1993 this respondent, her sister and

father went to the petitioner’s residence. But on seeing this

respondent the petitioner left his house immediately in his car. It

MFA 78/02 28

is not correct to say that this respondent’s parents had brought

her to the matrimonial home on 19.9.1993. On that day neither

this respondent nor her parents had gone to the petitioner’s

house. On the contrary, on 19.9.1993 the petitioner’s

grandparents, Govinda Kurup alias Chellappa Kurup and his wife

came to this respondent’s house in the morning along with the

petitioner’s father on their way to Ernakulam from Chavara. The

petitioner’s grandfather had gone to Ernakulam on that day in

connection with an eye-operation and this respondent did not

accompany them on that day. The parents of this respondent

took the petitioner’s daughter to Sahrudaya Hospital, Alappuzha

for triple injunction. The Hospital records would reveal the falsity

of the claim made by the petitioner. On 1.10.1993 also this

respondent did not go to the petitioner’s residence. On that day

the petitioner’s mother had sent some dresses to the petitioner’s

daughter through Mrs. Vidyavathi who is a retired teacher and a

close neighbour of this respondent. The averment in the petition

that this respondent was indifferent towards the petitioner and

had treated him with cruelty is palpably false. It is also not true

MFA 78/02 29

to say that this respondent had prevented the petitioner from

having any access to the child. In fact, it was the petitioner’s

mother who was not permitting him to have any access to the

child. Whenever she saw the petitioner carrying his daughter,

she would immediately snatch the girl from his hands and go

away. The allegation that this respondent had collected all her

ornaments from the petitioner’s house while she was leaving the

matrimonial home is utterly false. The petitioner’s father who is

honest and a man of integrity had assured this respondent’s

father that he would either return the entire gold ornaments or

pay to this respondent Rs.2 lakhs as the value of the gold

ornaments. This respondent did not initiate any proceedings for

recovery of ornaments or for the enforcement of her other legal

rights only because she thought that any such unilateral on her

part would only further estrange the marital relationship between

the parties. The case of the petitioner that this respondent

refused to accept money from the petitioner for the maintenance

of his daughter is devoid of any truth. The petitioner’s father had

on two or three occasions offered money to this respondent

MFA 78/02 30

which she had gladly accepted. The case of the petitioner that

he waited till March 1996 for the return of this respondent to her

matrimonial home as requested by her parents is not true.

Similarly, she had never declared that she would make the life of

the petitioner miserable. It is true that on two occasions certain

well-wishers of the family attempted to effect a re-union between

the parties. But their attempts did not fructify due to the

uncompromising attitude of the petitioner. It is not true that this

respondent did not go to the matrimonial home after 28.2.1993

for resumption of co-habitation with the petitioner. She had

made innumerable attempts to do so, but on all those occasions

she was prevented by the petitioner and his mother from

resuming co-habitation. She did not leave the matrimonial home

on 28.2.1993 on her own accord. It is false to say that from

February 1993 till the date of presentation of this petition i.e.

2.6.1999 there had been total repudiation of the marital

obligations by this respondent. At the trial of this case this

respondent will be able to prove by oral and documentary

evidence that this respondent did not desert the petitioner and

MFA 78/02 31

that it was the petitioner who was guilty of constructive desertion

and cruelty. Until 16.10.1996 this respondent had been

frequently visiting the petitioner and his parents. On 16.10.1996

this respondent had gone to her matrimonial home and had

lodged with her parents in law. On 18.12.1996 at the behest of

the petitioner an advocate who later acted as a mediator

telephoned this respondent’s father and informed him that the

petitioner wanted dissolution of the marriage. Since the

petitioner had taken such a decision, as advised by her parents

this respondent did not go to her matrimonial home after

18.12.1996. This respondent is at present studying for Law in

the Cochin University. This respondent’s father is a lawyer and,

therefore, she has got all facilities to set up practice as a lawyer

along with her father. This petition is devoid of any bona fides.

The brain behind the filing of this petition is the petitioner’s

mother. The petitioner is guilty of constructive desertion and

cruelty. This respondent is not guilty of any of the matrimonial

offences alleged against her. The O.P. may, therefore, be

dismissed with costs to the respondent.

MFA 78/02 32

THE TRIAL

4. On the side of the petitioner/husband five witnesses

were examined as PWs.1 to 5 and one document was marked as

Ext.A1. On the side of the respondent/wife two witnesses were

examined as RWs.1 and 2 and no documentary evidence was

adduced.

5. The Family Court, as per order dt. 24.11.2001,

disallowed divorce on the ground of desertion, but granted a

decree for divorce on the ground of cruelty. It is the said decree

which is assailed in this appeal by the wife. During the course of

arguments the learned counsel for the respondent/husband

submitted that he is entitled to canvas the correctness of the

findings of the Family Court disallowing divorce on the ground of

desertion.

6. The points which arise for determination in this appeal

are the following:-

A) Whether the impugned order passed by the Family

Court granting a decree of divorce to the husband on

the ground of cruelty by the wife is sustainable or not?

B) Whether in the appeal filed by the wife challenging

the decree of divorce on the ground of cruelty, the

MFA 78/02 33

husband can canvass the correctness of the finding

recorded by the Family Court disallowing a decree of

divorce on the ground of desertion?

C) If the husband is entitled to canvas the correctness

of the finding regarding desertion, whether the

respondent/husband has proved desertion for the

purpose of obtaining a decree of divorce?

D) Whether the second marriage allegedly contracted

by the husband within two days of the impugned

decree stands in the way of a consideration of this

appeal on the merits ?

E) To what reliefs and costs are the parties entitled ?

Point No.B.

7. Adv. Smt. Elizabeth Mathai Idicula, the learned counsel

appearing for the appellant/wife raised a preliminary objection to

the effect that the respondent is not entitled to question the

impugned order so far as it relates to desertion since no decree

for divorce was granted to the husband on the ground of

desertion. According to the learned counsel, the refusal to grant

a decree for divorce on the ground of desertion is a decree

against the appellant/husband who is not entitled to challenge

the finding regarding desertion without filing a memorandum of

cross-objection in view of Order 41 Rule 22 C.P.C. Elaborating

MFA 78/02 34

the said point the learned counsel argued that the

respondent/husband is not entitled to challenge the decree

disallowing divorce on the ground of desertion as he has not

preferred either a memorandum of cross-objection or a separate

appeal against that part of the decree and the decree which has

been granted by the Family Court is only one for divorce on the

ground of cruelty alone. The counsel for the appellant/wife relied

on the decisions reported in Choudhary Sahu v. State of

Bihar – 1982(1) SCC 232 and Leena Mathew v. Kerala

Shipping Corporation – 1988(1) KLT 212.

8. We are not inclined to sustain the preliminary objection

raised by the appellant/wife to the effect that the

respondent/husband cannot assail the finding with regard to

desertion. Whichever may be the grounds of divorce, the decree

that is passed is only one decree, whether it be on the ground

of cruelty, desertion or any of the other grounds. It is analogous

to a claim for eviction on various grounds available to a landlord.

If the landlord seeks eviction on three grounds and a decree for

eviction is granted only on one ground, it cannot be said that

MFA 78/02 35

there is no decree for eviction. May be, the decree for eviction is

granted on one ground only. Hence, with regard to the other two

grounds on which no eviction is granted, the landlord can in a

tenant’s appeal not only support the decree but also assail the

findings disallowing eviction on the remaining two grounds even

without a cross-objection. The scope of order 41 R. 22 C.P.C.

both before the 1976 amendment of the C.P.C. and after the

said amendment has been considered by the Apex Court in

Raveendar Kumar Sharma v. State of Assam – 1999 (7)

SCC 435. It was inat alia observed that before the 1976

amendment it was open to the respondent/defendant who had

not taken any cross-objection to the partial decree passed

against him, to urge, in opposition to the appeal of the plaintiff,

a contention which if accepted by the trial court would have

resulted in the total dismissal of the suit. It has further been

held that the filing of cross-objection after the 1976 amendment

is purely optional and not mandatory. Such being the position,

the preliminary objection with regard to the husband’s contention

that he is entitled to canvass the correctness of the finding

MFA 78/02 36

recorded by the Family Court disallowing a decree of divorce on

the ground of desertion even without a cross-objection is without

any force and is accordingly overruled. This point is accordingly

answered against the respondent wife and in favour of the

appellant/husband.

POINT NO. A – CRUELTY- Husband’s arguments in appeal

9. Adv. Sri. P. Radhakrishnan, the learned counsel

appearing for the respondent/husband made the following

submissions before us in support of the husband’s claim or

divorce on the ground of cruelty:-

The pleadings in support of the husband’s claim are to be

found from paragraph 2 onwards of the original petition. It has

been definitely alleged that the wife was behaving very

strangely towards her husband and his parents and she

exhibited anger and annoyance towards them. Again in

paragraph 3 of the O.P. it has been alleged that the wife

continued exhibiting cold behaviour and told her husband that

she had dislike for him and his parents. She had altogether

made 11 visits to her parental home at Alappuzha totaling to 57

MFA 78/02 37

days within six months of the marriage. This displayed her

disinclination to stay in the matrimonial home and her

eagerness to go to her own house. 8-6-1991 was the date of

marriage which was solemnized at Alappuzha. From that day

onwards she started cohabiting with the husband at Ernakulam.

On 24-7-1991 she went to her house at Alappuzha and stayed

there for 11 days till 4-8-1991. Even though on 26-7-1991 the

husband and his parents went to Alappuzha to bring her back,

she refused to return to the matrimonial home. On 4-8-1991

she returned to her matrimonial home. On 30-8-1991, the wife

went again to Alappuzha for 21 days till 20-09-1991 on which

day she was brought back to her matrimonial home. On 2-10-

1991 she again went to her parental home and returned on the

next day. Again from 5-11-1991 to 24-11-1991 she went to

Alappuzha and stayed in her parental home for 20 days. She

returned to her matrimonial home on 24-11-1991. Again on 12-

12-1991 her parents came to Ernakulam and took her to

Alappuzha for delivery. The husband and his parents visited

Suchitra at Alappuzha on three days namely 27-12-1991 and 17-

MFA 78/02 38

2-1992 and 26-2-1992. Gouri a female child was born to the

spouses on 2-3-1992. On 6-9-1992, she returned to her

matrimonial home after delivery. On 16-1-1993 she went again

to Alappuzha to attend a marriage. She returned to the

matrimonial home on 25-1-1993. On 9-2-1993 she again went

to her parental home to attend a birthday and returned to

Ernakulam on 11-2-1993. On 28-2-1993 she peremptorily left

her matrimonial home along with her daughter without the

consent of her husband. Even though, subsequently on 16-5-

1993, 4-7-1993, 19-9-1993 and 31-10-1993 her parents had

brought her to her matrimonial home, she returned to Alappuzha

on the very same dates. The husband expected her to return to

her matrimonial home but in vain. It is not necessary for the

petitioner in a matrimonial proceedings to plead specific

instances. It would be sufficient if a general plea is made in the

petition. Order 6 Rule 2 C.P.C. also indicates that it is not

necessary to plead evidence but only material facts. Even if

there is no pleading or if the pleadings are vague or non-specific

the court has to consider the totality of the materials. If the

MFA 78/02 39

parties went to trial knowing fully well what they had to prove,

no objection can be taken regarding the absence of pleadings.

Vide Sardul Singh v. Pritam Singh and Others – 1999 (3)

SCC 522, Indian Oil corporation v. Municipal corporation,

Jullundhar – 1993 (1) SCC 333 and Kali Prasad Agarwalla

v. M/s. Bharat Coking Coal Limited and Others – 1989

(Supp) 1 SCC 628. The husband has clearly averred the

ground of desertion and cruelty. It is discernible from the

averments in paragraph 5 of the petition that Suchitra showed

over possessiveness over her daughter and repugnance to any

physical contact which the husband had with the baby girl.

Again it is averred that the wife suffered insufferable

temperament and unrelenting anger towards the husband for no

reason. Again paragraph 8 of the petition it is averred that the

wife never changed her attitude towards her husband even after

seven months of delivery. 10. She never attended to any work

in the family. She always seemed to be brooding over

imaginative issues and would pick up quarrels with the petitioner

for no reason. Anger was a trait in her character. She was

MFA 78/02 40

basically a career oriented person. She did not want children.

There was a total repudiation of the marital obligations.

Matrimony becomes an empty shell without co-habitation.

According to Suchitra, her parents took her to the matrimonial

house and after leaving suchitra and the child there they went

to the house of Adv. Sri. M.N.Sukumaran Nair. She would say

that P.W.1 called Sri. M.N. Sukumaran Nair over the phone and

asked his parents-in-law to take Suchitra to Alappuzha. But she

has admitted that she went to the matrimonial home without

informing her husband in advance. “Cruelty” is not defined

under the Hindu Marriage Act. It is something which can be

inferred. A number of acts can constitute a cumulative act of

cruelty which may be the result of physical or mental ill-

treatment. The court has to consider the particular spouse and

not any hypothetical or ideal spouses (See Shobha Rani v.

Madhukar Reddi – AIR 1988 SC 121). Cruelty is a behaviour

by one spouse towards the other which causes reasonable

apprehension in the mind of the latter that it is not safe for him

or her to continue the matrimonial relationship with the other.

MFA 78/02 41

An inference of cruelty can be drawn from the attending facts

and the circumstance taken cumulatively. (Vide Parven Mehta

v. Inderjit Mehta – 2002 (5) SCC 706). No explanation has

been offered by Suchitra for leaving the matrimonial home on

28-2-1993. On 19-2-1993 the child’s birthday was celebrated at

the matrimonial home with all pomp and pageantry. If so, what

was the driving force which compelled her to leave the

matrimonial home within 9 days of the child’s birthday ?

Whenever she wanted to go to Alappuzha and either her

husband or her in-laws dissuaded her from going, she used to

show tantrums. RW. 2, father of Suchitra has admitted at page

10 of his deposition that until 28-2-1993 there was no objection

raised from the side of the husband or his people. If so, the

force which impelled her to leave the matrimonial home eludes.

The pivotal cause for her matrimonial misfortune is attributed by

Suchitra to her mother-in-law (PW4). But what we find is that

even on 28-1-1994 Suchitra has only glowing tributes to be paid

to her mother-in-law on Ext. A1 letter sent by her. If her mother-

in-law was over-possessive as Suchitra would have it, she would

MFA 78/02 42

not have taken the initiative to persuade her to take a rented

building and stay apart. Suchitra left the matrimonial home on

28-2-1993. Thereafter she did not return for good to her

matrimonial home. The husband waited for days and months

and years until at last on 26-11-2001 i.e. two days after the

impugned decree he married again. The occasional visits of the

wife at the matrimonial home thereafter were not to resume

cohabitation or to return to the matrimonial home permanently.

APPRECIATION OF ORAL EVIDENCE

10. A) P.W.1 (Anil Krishnan) is the husband. A reading

of his testimony will go to show that he does not remember

many of the dates and events. According to him, his wife

Suchitra @ Chithra was cold and indifferent after marriage, that

her behavioural pattern was arrogant and self centered that she

was very indifferent towards his parents, that she used to spend

the day confining herself to her room itself watching the T.V. or

reading something, that she used to get up in the morning at 10

a.m. after he left for office at 9.30 a.m. that he was Marketing

Executive in the Premier Tyres at the time of his marriage, later,

MFA 78/02 43

he joined Birla Tyres and sometime in March 1992 he resigned

his job and started his own business, that his wife was behaving

as if she was forced to marry against her wish. He has no case in

the pleadings that his wife was a loner in her matrimonial home

staying confined to her room reading books and watching the

T.V. or that she never got up before he left for office. It was only

at the stage of evidence that he developed such a case. It is

well settled that no amount of evidence can be looked into to

find a case for which there has been absolutely no foundation in

the pleadings. (Vide AIR 1930 P.C. 57 – Siddik Mohammed

Shah v. Mt. Saran and others, Elizabeth v. Saramma –

1984 K.L.T. 606, Trojan & Co., v. Nagappa – AIR 1953 SC

235 , Bhagwadi Prasad v. Chandramaul – AIR 1966 SC

735). P.W.1 admitted that after 28-2-1993, even though his

wife had not stayed in his house, she used to come there during

day time, that he has not sent any money towards the

maintenance of his wife or child, that his parents used to offer

maintenance to child and his wife refused to receive the same.

He has no case that he offered any maintenance to his wife or

MFA 78/02 44

child. At page 26 of of his deposition he would say that his wife

was not on good terms with his mother. In the same breath he

would say that they were maintaining good relationship. He

deposed that his mother sleeps on the ground floor whereas his

bedroom is on the first floor. Regarding the attempt made for

re-conciliation, he deposed before court that a joint petition for

divorce was got prepared through retired District Judge Sri.

Sukumaran who was one of the mediators but she backed out.

This indicates that it was P.W.1 who wanted a divorce and he

blames her for not agreeing to the same. The fact that P.W.1

was planning to marry another woman after getting a divorce

from Suchitra becomes more clear from his subsequent conduct

of marrying another lady within two days of the impugned

decree. We will have occasion to refer to this aspect later.

10. B) P.W.2 (G.P. Pillai) is the father of P.W.1. He is a

very respectable person even according to Suchitra and was

aged 65 years while giving evidence before court on 18-1-2001.

He was working as Manager of Premier Tyres and he retired

from service 10 years prior to his examination in Court.

MFA 78/02 45

Notwithstanding his respectability and dignified nature, being the

father of P.W.1 he could only tow the line of his son. Even while

supporting his son P.W.1, he was not inclined to sketch his

daughter-in-law as intransigent as his wife or son would attempt

to do. The admission made by P.W.4 (Gouri Pillai) at page 10 of

her deposition that her daughter-in-law was always home sick

” “home sick” ” explains the

yearning, if at all shown Suchitra, to go to her parental home

during the first few months of marriage. Hence the statement of

P.W.2 that Suchitra always wanted to go to her parents at

Alappuzha and used to show tantrums in this behalf can only be

a manifestation of her homesickness consequent on her

transplantation to another family. P.W.2 who stated that it was

from the side of Suchitra that the talk of divorce first sprang up,

quoted Suchitra’s own words as follows:

               "      divorce                            let   him


               have it".



If   these   were   the   words   spoken       by   Suchitra   then   it   was   Anil


Krishnan who wanted  a divorce.   P.W.2 stated that   his     wife's


MFA 78/02                                 46





sister and her husband besides their common friends one K.M.

Nair and retired District Judge Sri. Sukumaran were the

mediators . According to P.W.2 before 1996, the mediators were

trying for a re-union and after 1996 they were talking for a

divorce and that it was eventually decided to have divorce by

filing a joint petition. He also confessed that it was the girl’s side

who did not agree for divorce during the last meeting. At page

16 of his deposition, P.W.2 has admitted that Suchitra had come

to her matrimonial home along with her child several times from

1992 till the filing of the petition for divorce. This indicates that

Suchitra had not permanently snapped her relations with Anil

Krishnan or his family. After the re-conciliation talks, P.W.2 and

his wife had visited Suchitra in her hostel two or three times.

She was at that time studying for Journalism which she

subsequently passed with flying colours by securing a rank. Six

months prior to the petition he had gone and met Suchitra in the

hostel to talk to her about a proposal for divorce put forward by

retired District Judge Sri. Sukumaran. P.W.2 confessed that she

was not agreeable for the same and she told that she was not

MFA 78/02 47

aware of any proposal for filing a joint petition for divorce. This

also indicates that it was Anil Krishnan’s side who were eagerly

wanting a divorce. At page 7 of his deposition, P.W.2 admitted

that even though from the conciliation talks he could make out

that Suchitra’s parents were agreeable for a divorce she was not

and that was why P.W.2 went and met her in the hostel. Again

at page 8 of his deposition, P.W.2 deposed that the mediation

talks started with a demand for 2 lakhs of rupees payable for

appropriating the ornaments of Suchitra.

10. C). P.W.3 (Ammini Amma) aged 78 years is a

retired Principal of Kerala Varma College, Thrissur. She was the

President of the Ernakulam Women’s Association of which P.w.4

(Gouri Pillai) was also a member. She was examined to say that

she had never seen Gouri Pillai misbehaving with her daughter-

in-law. According to P.w.3 Gouri Pillai and Suchitra were

moving together as if they were mother and daughter. She,

however, confessed that she cannot say how Gouri Pillai behaves

in her own house. She also admitted that she came to court in

the company of Gouri Pillai.

MFA 78/02 48

`10. D). P.W.4 (Gouri Pillai) who is the mother of P.w.1

and the wife of P.W.2 is alleged to be the destructive factor

which is said to have marred the matrimonial prospects of Anil

Krishnan and Suchitra. According to P.w.4 Suchitra used to go

home once in a week and she was taken either by her parents or

by P.W.2 and P.W.4. She would also corroborate the version of

her son P.W.1 to say that Suchitra did not show any interest in

the household affairs and she was keeping confined to the

upstairs either reading books or watching the T.V. and would

get up and come down only after 9.30 a.m. when P.W.1 would

have left for his office. But P.W.4 confessed that there were

servants in the house both in the kitchen as well as for doing the

external jobs. If in such a house, the daughter-in-law did not

go to the kitchen for helping the cooking, one fails to

understand as to how could that amount to matrimonial

cruelty. The admission by P.W.3 that her daughter-in-law who

was called Suchitra was always “home sick” explains the longing

exhibited by Suchitra go to her parental home during the early

months of marriage. P.w.4 who stuck to her son’s version that

MFA 78/02 49

on 28-2-1993 Suchitra left her matrimonial home on her own

accord, admitted that she does not remember as to who

accompanied Suchitra on 28-2-1993 (See P.W.4 page 17). Her

admission at page 19 of her deposition to the effect that on 17-

5-1993 her sister’s daughter was getting married at Parur and

on that day her husband P.W.2 went to Alappuzha to fetch

Suchitra and Anil Krishnan attended the marriage by coming in

the company of P.W.2 and Suchitra will show that Suchitra had

not bid farewell to her matrimonial home once and for all. The

evidence of P.W.4 at page 19 further shows that after the

marriage at North Parur Suchitra had gone with them to

Ernakulam and by that time news was conveyed about the sad

demise of P.W.2’s uncle at Thiruvananthapuram and P.W.4

proceeded to Thiruvananthapuram and on their way Suchitra and

her child were taken and dropped at Alappuzha. At page 25 of

the deposition of P.W.4 there is a noting by the Family court

Judge that since P.W.4 was standing in the witness box from 10

a.m. to 12.50 a.m. continuously for about three hours , the Judge

asked her to sit down if she so wished whereupon the counsel

MFA 78/02 50

appearing for Suchitra is stated to have made a comment that

there is nothing wrong in keeping the witness standing as she

had left a woman and her child in the lurch. To the said

comment the Family Court Judge has noted in the deposition of

P.W.4 that the above attitude and comments are deprecated.

We do not know whether the above indiscretion shown by the

counsel for which the client is no way responsible had

prejudiced the mind of the trial judge. At page 26 of her

deposition P.W.4 stated that she had not seen her granddaughter

for about 3-4 years and that she does not know the class in

which the girl studies or the name of her school.

10.D). P.W.5 (Renu Mohandas) is a friend of P.W.4 from

1984 onwards. This witness was examined to prove that when

once she was in the house of P.W.4 the baby cried and when

P.W.4 took the baby, Suchitra suddenly came and snatched the

baby from the hands of P.W.4 and this appeared to be very

strange to P.W.5. P.W.5 confessed that she is a good friend of

P.W.4 and she had come to Court along with P.W.4 and during

the journey P.W.4 had asked her to tell the court about the above

MFA 78/02 51

episode. P.W.5 confessed that Anil Krishnan had told her that

Suchitra was home sick. P.W.5 who deposed that Suchitra was

not friendly with her admitted that Suchitra had sent her a letter

inviting her for her daughter’s birthday.

10.E) R.W.1 (Suchitra) is the wife of P.W.1. She

deposed in terms of the defence set up by her and there is a ring

of truth and candour in her testimony.

10. F). R.W.2 (Radhakrishnan Nair) is the father of

Suchitra. A reading of his testimony will show that he is a very

dignified and candid person who had not shown any special

concern or anxiety to magnify every syllable of his daughters

post nuptial miseries.

CRUELTY – JUDICIAL CONCLUSION

11. We are afraid that we find ourselves unable to agree

with the submissions made on behalf of the husband. The

parties are Hindus belonging to the Nair community. The

marriage between Anil Krishnan and Suchitra was solemnised

according to their customary rites in the Sree Rama Mandir at

MFA 78/02 52

Alappuzha on 8-6-1991. Anil Krishnan examined as P.W.1 was

residing at “Gouri” in Panampalli Nagar, Ernakulam which was

his parental home. Anil Krishnan is the only son of his parents

(PW2 and P.W.4) and he has no brother or sister. He is an M.B.A.

graduate. Suchitra examined as R.W.1 belongs to Alappuzha

which is about 62 kilometer to the south of Ernakulam. Suchitra

has a sister and a brother and at the time of her marriage

Suchitra was an M.A. in English.

12. The husband has not pleaded the alleged visit of

Suchitra to Alappuzha on 1-6-1991 and 6-7-1991. Therefore, it is

not open to Anil Krishnan to come out with a case based on the

aforementioned two dates. With regard to the period from 24-7-

1991 to 4-8-1991 during which the wife is alleged to have left the

matrimonial home and remained in her parent home, Suchitra

has answered at page 3 of her objection that it was not on her

own accord that she went to Alappuzha on 24-7-1991. That day

was Anil Krishnan’s father’s birthday. P.W.2 is the father of Anil

Krishnan. The entire family was celebrating the birthday at

Chavara and for this purpose all of them went to Chavara on the

MFA 78/02 53

23rd evening. After the birthday celebration, on her way back,

Suchitra got down at Alappuzha. This was with the permission

of Anil Krishnan. She felt exhausted and was advised by Anil

Krishnan himself to stay back at Alappuzha. On 25-7-1991, she

was taken to a lady doctor for a medical check up. After

examining her, the doctor announced that she was pregnant.

The news was conveyed to Anil Krishnan who along with his

parents came in an excited mood to Alappuzha on the next day.

Since on 1-8-1991 it was the 90th birthday of Suchitra’s paternal

grandmother and since Suchitra wanted to participate for the

birthday, neither her husband nor her in-laws asked her to return

to Ernakulam. The ensuing days were Friday and Saturday

which were not astrologically auspicious for a pregnant woman

to return to her matrimonial home. She was taken to Ernakulam

by her father and sister on 4-8-1991 by train and Anil Krishnan

had come to Ernakulam South Railway Station to take them to

his house. The above version of Suchitra has been practically

admitted by Anil Krishnan when examined as P.W.1 at pages

15 and 17 of his deposition. Hence, it was uncharitable on the

MFA 78/02 54

part of Anil Krishnan to allege that his wife had intentionally kept

herself away from the matrimonial home.

13. The allegation made by Anil Krishnan regarding his

wife’s visit of her parental home from 30-8-1991 to 20-9-1991

has been replied in paragraph 6 of her objection. According to

Suchitra she did not insist on going to Alappuzha on 30-8-1991.

2-9-1991 was her 23rd birthday. It was her husband who took

her to Alappuzha for the said purpose on 30-8-1991. He did not,

however, turn up for the birthday and it was not deliberate. But

his parents had come to Alappuzha and had greeted her and

had given her birthday presents. On 20-9-1991 she was taken to

Ernakulam by her parents. While examined as R.W.1 Suchitra

deposed that it was her husband who had told her that he would

be going to Madras for 21 days and therefore, it was he who

asked her to remain at Alappuzha during his absence. It was his

parents who later took her from Alappuzha to Ernakulam.

14. Regarding the further visit on 2-10-1991, in

paragraph 6 of the objections, Suchitra has given sufficient

explanation. Her father-in-law (P.W.2) is a native of Chavara.

MFA 78/02 55

He used to go over Chavara frequently to meet his aged parents.

On 2-10-1991 when they went to Chavara, they wanted their

daughter-in-law Suchitra also to accompany them. She obliged

them and when they returned to Ernakulam on 3-10-1991, she

also accompanied them to Ernakulam. Suchitra has denied her

husband’s allegation that it was her parents who took her to

Ernakulam on 3-10-1991.

15. The period from 5-11-1991 to 24-11-1991 is the next

period of absence of the wife from the matrimonial home. 5-11-

1991 was Deepavali day. As Suchitra was pregnant, her

parents paid her a visit at Ernakulam with various items of

sweets. It was part of the custom prevailing in their community.

Suchitra was informed that her husband was leaving for Madras

on the next day and therefore, if she wanted, she could also go

to Allappuzha along with her parents. Suchitra also wanted to

attend her friend’s marriage on 8-11-1991. Therefore, as

permitted by Anil Krishnan’s parents on 5-11-1991, she went to

Alappuzha along with her parents. Therafter, Anil Krishnan’s

parents did not come to Alappuzha and hence there was no

MFA 78/02 56

occasion for them to persuade Suchitra to return to Ernakulam

and resume co-habitation. Although Anil Krishnan’s parents had

come to Alappuzha on 19-11-1991, they advised her to stay

back for one more day as Tuesday was not considered auspicious

to undertake a journey. So she was taken to Ernakulam only on

24-11-1991. She has given corroboration to this version in her

objections while examined as R.W.1 (Pages 33 to 36). Anil

Krishnan examined as P.W.1 would say that he does not

remember whether he had gone to Madras in November 1991 in

connection with his business. It was on 12-12-1991 that Suchitra

was taken for delivery. In paragraphs 9 to 11 of her objections

Suchitra has stated that after delivery, in spite of repeated

requests she was not taken back to her matrimonial home and

that from 8-11-1992 to 28-2-1993 she was not allowed to stay

there with the child. P.W.4, the mother of Anil Krishnan has

admitted at page 27 of her deposition that after the rice –

feeding ceremony of the baby on 6-9-1992 at Tripunithura all

of them came to Ernakulam and they returned to Alappuzha .

So, there was no possibility of Suchitra staying in the house of

MFA 78/02 57

P.W.4 from 6-9-1992 and leaving the matrimonial home on 25-

10-1992.

16. The case of Anil Krishnan with regard to his wife’s

conduct in insisting to go to her parental home for the period

from 8-11-1992 to 25-1-1993 and regarding her return to

Alappuzha on 9-2-2003 has also been traversed at pages 11 and

12 of Suchitra’s objections. It is the case of Suchitra that after

the delivery she was brought back to her husband’s house by

her parents on 8-11-1992. Suchitra has stated that on 16-1-1993

she and her child were taken to Alappuzha by the parents of her

husband as she had to attend the marriage of her mother’s

sister’s daughter at Thiruvananthapuram on 18-1-1993. After the

marriage, she came back to her matrimonial home on 25-1-1993

and resided there till 9-2-1993. She again went to her paternal

home on 9-2-1993 to attend the birthday of her father and came

back to the matrimonial home on 11-2-1993 after attending her

husband’s grandfather’s birthday at Chavara and resided there

with her husband till 28-2-1993. Likewise, Anil Krishnan’s

accusation that after delivery on 2-3-1992, Suchitra did not care

MFA 78/02 58

to return to her matrimonial home for a long time has been met

by Suchitra by stating that in spite of repeated requests she was

not brought back to her matrimonial home by her husband and

his parents and that when she was taken there by her parents

on 28-9-1992, she was not entertained by those in her

matrimonial home and thereafter, on 8-11-1992, it was her

parents who took her again to her matrimonial home.

17. There is no dispute that the parental home of

Suchitra at Alappuzha is only less than 65 kms. from her

matrimonial home at Panampally Nagar in Ernakulam.

Admittedly, Alappuzha is on the way from Ernakulam to Chavara

where the grandparents of Anil Krishnan parents are residing.

Both the parties belonging to respectable Nair families. Suchitra

was born and brought up at Alappuzha until her marriage.

Hence, if she found it yearning to meet her parents frequently

during the first few months of marriage, there was nothing

abnormal or extraordinary in her behaviour. Some of her visits to

Alappuzha were for very valid reasons and on some of the

occasions it was none other than her own father-in-law and

MFA 78/02 59

mother-in-law who dropped her at Alappuzha while on their way

to Chavara. Anil Krishnan has not even a whisper in the

pleadings that the journeys undertaken by his wife to her own

parental home which is not far off, were without his consent or

against his wish or that he had warned her against frequently

visiting her parents. Hence, the only possible conclusion is that

all the visits made by Suchitra to her own house at Alappuzha

was with the permission of her husband who was either expressly

or tacitly allowing her to go to her paternal home. It is really

surprising that Anil Krishnan has chosen to come out with

specific dates to develop a contention that his wife was acting

cruelly when she undertook those journeys to her paternal home.

At no point of time until the presentation of O.P. in the year

1999 had Anil Krishnan taken exception to his wife visiting her

own parents. Some amount of homesickness can be expected

in a newly wedded bride and if she had evinced a desire to go

to her parental home with a view to meet her parents who had

brought her up right from childhood till her marriage, we fail

to see any semblance of cruelty on the part of Suchitra on that

MFA 78/02 60

score. In fact, her own mother-in-law has admitted in

unequivocal terms that Suchitra was always home sick. (See

P.W. 4 – Page 10).

18. The allegations of cruelty in the O.P. are very vague,

non-specific and general. Anil Krishnan has no past instance to

quote when his wife even without his permission had defiantly

left her matrimonial home and proceeded to her parental home

causing great mental angusih to Anil Krishnan. All the

allegations in this regard are general allegations casually made

without reference to any particular incident or episode in their

post marital life.

19. We are unable to accept the contention of Anil

Krishnan that specific instances are matters of evidence which

are not required to be pleaded and that the parties went to

trial knowing fully well the case which they had to meet. When

no specific instance amounting to cruelty has been pleaded, it is

idle for Anil Krishnan to contend that his wife fully knew the case

which she had to meet. Admittedly, the case before the Family

Court was one for divorce filed under Sec. 13 (1) (ia) and 13 (1)

MFA 78/02 61

(ib)of the Hindu Marriage Act, 1955. Rule 7 of the Hindu

Marriage (Kerala) Rules, 1963 reads as follows:

“7. Contents of petition. In addition to the particulars

required to be given under order VII, rule (1) of the Code

and Section 20(1) of the Act, every petition for judicial

separation, nullity of marriage, or divorce shall contain

the following particulars:-

a) the place and the date of marriage, the

names of the parties and their occupation, the place and

address where the parties reside or last resided together

within the jurisdiction of the Court;

b) the name, status and domicile of the wife

and husband before and after the marriage;

c) whether there is living any issue of the

marriage and if so, the name and date of birth or age of

such issue, or all such issues;

d) whether there have been any previous

proceedings in any Court in India, with reference to the

marriage, by or on behalf of either of the parties and if

so, what proceedings and the result of such proceedings;

e) the matrimonial offence or offences if any

charged, set out in separate paragraphs with the time

and place of the alleged commission;

f) the property mentioned in Section 27 of the

Act any; and

g) the relief or reliefs prayed for:

(2) If the petition is for restitution of conjugal

rights, the date from which and the circumstances under

MFA 78/02 62

which the respondent withdrew from the society of the

petitioner shall be stated in the petition.

(3) In cases where desertion and/or cruelty are

alleged, the petitioner shall state the date and the

circumstances under which the alleged desertion began

and/or the specific acts of cruelty.

4) In every petition presented by a husband for

divorce on the ground that his wife is living in adultery

with any person or persons or for judicial separation on

the ground that his wife has, after the solemnization of

the marriage, had sexual intercourse with any person or

persons other than him, the petitioner shall state the

name, occupation and place of residence of such person

or persons so far as they can be ascertained.

(5) In every petition presented by a wife for

divorce on the ground that her husband is living in

adultery with any woman or women or for judicial

separation on the ground that her husband has after the

solemnization of the marriage had sexual intercourse

with any person or persons other than her, the petitioner

shall state the name, occupation and place of residence

of such woman or women so far as they can be

ascertained”.

(Emphasis supplied)

Thus, Clause (e) of the above Rule enjoins the petitioner to

state out in separate paragraphs the time and place of the

alleged commission of the matrimonial offence or offences

charged against the respondent spouse. Similarly Rule 7 (3)

MFA 78/02 63

mandates that in cases where desertion and/or cruelty are

alleged, the petitioner shall state the date and the

circumstances under which the alleged desertion began and/or

the specific acts of cruelty. As mentioned earlier, there is no

allegation of any specific act of cruelty in the petition. A

generalised statement of the conduct of the respondent spouse

without reference to any concrete instance of cruel behaviour

cannot constitute cruelty.

20. Differences of opinion are bound to crop up even in

the post nuptial life of the most ideal couple. Minor bickerings

may exacerbate into simmering conflicts at times driving the

marital partners to a stage of no return. No such thing

happened in this case as a result of the frequent visits of the

wife to her parental home so as to spell an irretrievable

breakdown of the marriage. Marriage of Anil Krishnan and

Suchitra was on 8-6-1991. Eversince the marriage she was in

her matrimonial home at Ernakulam except during occasional

visits made by her to her parental home. One cannot loose sight

of the fact that after Anil Krishnan goes to office at 9.30 a.m.,

MFA 78/02 64

Suchitra has to spend the whole day in the company of two old

people – P.W.2 and P.w.4. It is too early for a newly wed bride to

think of geriatry in her husband’s abode. Hence, if Suchitra had

made frequent visits to her parental home during those days,

there is nothing strange or abnormal about it. She was taken for

delivery to Alappuzha on 12-12-1991. A female child was born

to them on 2-3-1992. The rice-feeding ceremony of the baby

girl was conducted at Chottanikkara on 6-9-1992 for which

purpose alone Suchitra was taken to Ernaklulam. She was sent

back to her parental home. Since there was no gesture

forthcoming from the side of Anil Krishnan and his people to

bring back Suchitra and the baby girl after she was taken for

delivery , an attempt was made by Suchitra’s brother to facilitate

her return to the matrimonial home. This attempt was on 22-9-

1992. Pursuant to the said attempt on 28-9-1992, Suchitra along

with her parents and brother went to her matrimonial home. But

Suchitra and her baby were not welcome guests at

Panampally Nagar. In that night during thunder

and heavy down pour she was virtually turned out of her

MFA 78/02 65

matrimonial home. Her entreaties to allow her to stay in the

matrimonial home fell on deaf ears. Thereafter the only period

during which Suchitra and her daughter were allowed to stay in

the matrimonial home was from 8-11-1992 to 28-2-1993. This

was the most bitter chapter in the post nuptial life of Suchitra.

After she again stepped into her matrimonial home subsequent

to childbirth she was virtually a prisoner of her mother-in-law

who kept a constant surveillance over her daughter-in-law. The

daughter -in-law was made to confine herself in the bedroom of

the mother-in-law on the ground floor whereas her husband was

occupying the bedroom on the upstairs. The suggestion put to

P.W.4 that she was unable to bear the sharing of love and

affection of her only son to his wife, though denied by P.W.4,

looms large in this context. The mother-in-law saw to it that

Suchitra does not meet her husband. It was unable to endure

any longer the agony which she was suffering in silence that

Suchitra finally bid farewell to her matrimonial home on 28-2-

1993. She did not go alone. She was taken to Alappuzha by her

parents-in-law. This in short, is the story of Suchitra. The

MFA 78/02 66

sojourns of the newly wedded bride to her parental home did not

result in a ruptured marriage. After perusing the oral evidence

of the parties and their witnesses, we have no hesitation to

conclude that it was Anil Krishnan (P.W.1) and his mother Gouri

Pillai (PW4) who have really paved the way for the

irreconcilable separation of the marital partners. No doubt, in

Ext.A1 letter written by Suchitra to her mother-in-law on 28-1-

1994 she had paid rich encomiums and tributes to her mother-

in-law. We are not inclined to accept the contention made on

behalf of Anil Krishnan that if P.W.4 (the mother-in-law of

Suchitra) was the real villain of the peace, Suchitra would not

have given such admiration to her mother-in-law whom

Suchitra would characterise as a proverbial mother-in-law

determined to alienate the nuptial partners. Both the marital

partners are from aristocratic Nair families and Suchitra cannot

be expected to paint her mother-in-law black in letters written by

her notwithstanding her misgivings and acrimony towards her

mother-in-law. No sensible and diplomatic lady will dare to write

ill of her mother-in-law even if she, in her heart of hearts ,

MFA 78/02 67

hates her mother-in-law. P.W.4 the mother-in-law of Suchitra

was highly possessive towards her only son and she was

virtually keeping Suchitra under house arrest. Whereever

Suchitra went she was shadowed by her mother-in-law. It is an

admitted fact that Suchitra’s parents-in-law had accompanied

her when she and her husband had gone to Bangalore for

honeymoon. During Suchitra’s last spell in her matrimonial

home, P.W.4 saw to it that her daughter-in-law does not come

upstairs and meet her husband in his bedroom. P.W.1 Anil

Krishnan was virtually a “mother-pecked” husband who did not

show the courage of calling his wife to his bedroom upstairs by

defying the orders of his mother. We have no hesitation to

conclude that the allegation of cruelty apart from being vague

and non-specific, is too puerile for any court of law to take

serious notice of. It was made by the husband with a view to

secure a divorce somehow or other, so that he could translate

into reality his intention of contracting another marriage after

making unfounded allegations against Suchitra whom he did not

love anymore. With due respect, we are unable to agree with

MFA 78/02 68

the conclusions reached by the learned Judge, Family Court to

the effect that Suchitra was guilty of matrimonial cruelty entitling

Anil Krishnan to a decree of divorce on that ground. On the

contrary, it was Anil Krishnan, who was being uncharitable and

cruel to his wife who was always loving and affectionate towards

her husband and who wanted to be a faithful and dutiful wife for

all times to come. We, therefore, disagree with the finding

recorded by the court below that Anil Krishnan has substantiated

his ground of cruelty so as to entitle him to a decree of divorce

on that score . We set aside the said finding and hold that the

ground of cruelty apart from being vague and non-specific has

not been substantiated at all by Anil Krishnan so as to justify a

decree of divorce on that ground.

POINT – C

DESERTION – Husband’s contention in appeal.

21. Advocate Sri. P. Radhakrishnan, the learned counsel

appearing for Anil Krishnan made the following submissions

before us in support of his ground based on desertion:-

As per the explanation to Section 13(1)(ib) of Hindu

MFA 78/02 69

marriage Act, “desertion” means “the desertion of the petitioner

by the other party to the marriage without reasonable cause

and without the consent or against the wishes of such party and

includes the “willful neglect” of the petitioner by the other party

to the marriage. Thus, there need not even be a physical

withdrawal from the society of the spouse by the other spouse.

“Willful neglect” can be inferred if there is failure to discharge

the matrimonial obligations. Vide 1961 All Eng. Reporter

129. The commentaries at page 701 in the 8th Edition of Hindu

Law by Raghavachariyar will also show that abstention from an

obvious marital duty or abandonment or willful disregard of the

marital obligations may amount to “willful neglect” within the

meaning of the above provision. Suchitra has no case that she

was treated badly by her husband. On the contrary, she was the

one who had created disharmony in the family. She was unable

to get along with her husband’s people and she eventually

walked away from the matrimonial home. In her objections

Suchitra would say that her mother-in-law disliked her having

any type of relationship with her husband and would allege that

MFA 78/02 70

her mother-in-law was the brain behind the filing of this

petition. A lady who has abstained from fulfilling her marital

obligations towards her husband can certainly be said to be

guilty of desertion.

DESERTION -Judicial Conclusion

22. We find ourselves unable to agree with the above

submissions made on behalf of Anil Krishnan. Going by the

credible testimony of Suchitra (RW1) on none of the occasions

both prior to 28-2-1993 and after the said date had she

expressed any disinclination to return to her matrimonial home.

After every visit to her parental home, she had come back to her

matrimonial home. The very fact that both of them begot a

child in lawful wedlock will show that Suchitra cannot be held

guilty of not performing her conjugal obligations. There is

nothing on record to show that Suchitra disliked the company of

her husband. On the contrary, the credible testimony of Suchitra

examined as R.W.1 will go to show that it was her husband and

mother-in-law who disliked the smooth sail of the matrimony

MFA 78/02 71

between Suchitra and Anil Krishnan. Far from Suchitra deserting

her husband and her matrimonial home, it was Anil Krishnan

who was trying to avoid her company. The subsequent event of

Anil Krishnan contracting another marriage within two days of

the impugned decree will fortify our conclusion that Suchitra had

never deserted her husband so as to entitle Anil Krishnan to a

decree of divorce on the ground of desertion. We, therefore,

fully concur with the finding recorded by the Family Court that

Anil Krishnan has not substantiated the ground of desertion so as

to get a decree on that ground.

POINT D

23. One of the submissions made before us by the learned

counsel appearing for Anil Krishnan was that in the light of the

2nd marriage contracted by Anil Krishnan within two days of the

impugned decree of divorce, a consideration of this appeal on

the merits is unwarranted and it becomes a purely academic

exercise. According to the learned counsel, the 2nd marriage has

been contracted after the passing of the decree for divorce and

it, therefore, does not offend Sec. 5 of the Hindu Marriage Act,

MFA 78/02 72

1955. The Submission, in short, is that the second marriage is

not contracted during the subsistence of the earlier marriage

which has been validly dissolved by a decree of divorce. On 25-

10-2005 Anil Krishnan had filed petition along with an affidavit

in this Court for reception in evidence the marriage certificate

under the Hindu Marriage Act to show that on 26-11-2001, he

married one Sujatha Menon hailing from Cheroor in Thrissur

District. The said certificate is marked in this appeal as Ext.A2.

24. We are again afraid that we are unable to accept the

above contention. Sec. 15 of the Hindu Marriage Act reads as

follows:

“15. Divorced persons when may marry again :-

When a marriage has been dissolved by a decree of

divorce and either there is no right of appeal against

the decree or, if there is such a right of appeal the

time for appealing has expired without an appeal

having been presented or an appeal has been

presented but has been dismissed, it shall be lawful

for either party to the marriage to marry again”.

Under sub section 4 of Section 28 of the Hindu marriage Act, the

time for filing an appeal against a decree of divorce is 90 days.

Thus, the respondent/husband ought to have waited for a

minimum 90 days from the date of decree to remarry. Instead,

MFA 78/02 73

by getting married again within two days of the impugned

decree, he cannot pre-empt the appeal filed by the wife. In AIR

1967 SC 581 – Smt. Chandra Mohini Srivastava v. Shri

Avinash Prasad Srivastava and Another, the question arose

as to whether the contracting of a second marriage by the

husband after the appellate decree and during the pendency of

an application for special leave to appeal to the Supreme Court

was legal and valid so as to revoke the special leave granted to

the wife and dismiss the resultant appeal as infructous. Dealing

with that question, the Apex court held as follows:

“Before we deal with the merits of the appeal, we may

refer to an application (CMP No. 2935 of 1966) filed on

behalf of the first respondent, in which he prays that

the special leave granted to the appellant be revoked.

The grounds taken for revocation of special leave are

that the High Court granted divorce to the first

respondent and ordered that its decree should take

effect forthwith, with the result that the marriage

between the appellant and the first respondent stood

dissolved on January 87, 1964, when the High Court

allowed the appeal. The special leave petition was

presented in this Court on April 7, 1964 and the

appellant did not convey to the first respondent that

she was intending to challenge the decision of the High

Court. She also did not pray for the stay of operation

of the order of the High Court. The first respondent

MFA 78/02 74

therefore believed that she had submitted to the order

of the High Court and married another woman on July

2, 1964. Special leave was granted to the appellant

by this Court on August 25, 1964, and it was only on

September 9, 1964 when the first respondent got

notice of the grant of special leave that he came to

know that the judgment of the High Court was under

appeal in this Court. In the meantime he had already

married another woman and a son was born to that

woman on May 20, 1965. The first respondent

therefore contended that because of the negligence of

the appellant in not informing him that she was

applying to this Court for special leave, he had married

again and his new wife had given birth to a son, and in

consequence this Court should now revoke the special

leave that was granted so that the new child might not

become illegitimate.

6) The application has been opposed on behalf of the

appellant and it is contended that it was no part of her

duty to inform the first respondent that she was

intending to apply to this Court for special leave. It

was also contended that it was for the first

respondent to make sure before marrying that no

further steps had been taken by the appellant after the

judgment of the High Court and in this connection she

relied on Sec. 15 and 28 of the Act. In any case it is

urged that the fact that the first respondent took the

risk of marrying without making sure whether any

further steps had been taken by the appellant was no

ground for revocation of special leave. It was also

pointed out that though the first respondent had been

served as far back as September 9, 1964, he made the

application for revocation of special leave. It was also

pointed out that though the first respondent had been

served as far back as September 9, 1964, he made

the application for revocation of special leave only on

September 15, 1966, when the appeal was ready for

MFA 78/02 75

hearing.

7) We are of opinion that special leave cannot be

revoked on grounds put forward on behalf of the first

respondent. section 28 of the Act inter alia provides

that all decrees and others made by the Court in any

proceedings under the Act may be appealed from

under any law for the time being in force, as if they

were decrees and orders of the Court made in the

exercise of its original civil jurisdiction. Section 15

provides that “when a marriage has been dissolved by

a decree of divorce and there is no right of appeal

against the decree, or, if there is such a right of appeal,

the time for appealing has expired without an appeal

having been presented but has been dismissed, it shall

be lawful for either party to the marriage to marry

again”. These two sections make it clear that where a

marriage has been dissolved, either party to the

marriage can lawfully marry only when there is no right

of appeal against the decree dissolving the marriage

or, if there is such a right of appeal, the time for filing

appeal has expired without an appeal having been

presented, or if an appeal has been presented it has

been dismissed. It is true that S. 15 does not in terms

apply to a case of an application for special leave to

this Court. Even so, we are of opinion that the party

who has won in the High Court and got a decree of

dissolution of marriage cannot be marrying

immediately after the High Court’s decree and thus

take away from the losing party the chance of

presenting an application for special leave. Event

hough S. 15 may not apply in terms and it may not

have been lawful for the first respondent to have

married immediately after the High Court’s decree, for

no appeal as of right lies from the decree of the High

Court to his Court in this matter, we still think that it

was for the first respondent to make sure whether an

application for special leave had been filed in this Court

MFA 78/02 76

and he could not by marrying immediately after the

High Court’s decree deprive the appellant of the

chance to present a special leave petition to this Court.

If a person does so, he takes a risk and cannot ask this

Court to revoke the special leave on this ground. We

need not consider the question as to whether the child

born to the new wife on May 20, 1965 would be

legitimate or not, except to say that in such a situation

S. 16 of the Act may come to the aid of the new child.

We cannot, therefore, revoke the special leave on the

grounds put forward on behalf of the first respondent

and hereby dismiss his application for revocation of

special leave”.

25. We, therefore, hold that the conduct of the husband in

contracting a second marriage during the statutory waiting

period does not and cannot stand in the way of a consideration

of this appeal on the merits. This point is answered against the

husband and in favour of the wife.

POINT NO. E.

26. There are a few interlocutory applications which have

been hanging fire for some time. I.A. 2285/2005 is an

application filed on 27-7-2005 in this appeal by Suchitra under

Section 24 of the Hindu Marriage Act claiming interim

maintenance to herself and her minor daughter at the rate of

Rs. 15,000/- and 750o/- per month respectively from 2-6-1999

MFA 78/02 77

onwards (i.e. the date of original petition) till the disposal of this

appeal. Another Bench of this Court, after considering the rival

contentions of the parties had as per order dated 25-10-2005

relegated the question oF ordering separate maintenance to the

wife to a later stage but directed the husband to pay interim

maintenance to his child at the rate of Rs. 2,000/- per month

from 1-1-2000 till 31-7-2005 and thereafter at the rate of Rs.

2,500/- per month. Eventhough it is now contended before us

that under Section 24 of the Act no interim maintenance is

awardable to the child, no such objection was raised by the

husband in his counter to the said I.A. That apart, in the light of

the decisions in Jasbir Kaur Sehgal v. District Judge,

Dehradun and Others – 1997 (7) SCC 7 and Praveen

Menon v. Ajitha K. Pillai – 2001 (3) KLT 450 and

Damodaran v. Meera – 1986 KLT 1020, wife’s right to

maintenance includes maintenance to the child as well.

27. Anil Krishnan is stated to be employed at present as

General Manager of Hotel Sudarsan at Kollam. He has a car and

he comes to Ernakulam in that Car. The house at Panampilly

MFA 78/02 78

Nagar which according to Suchitra is worth more than Rs. 75

lakhs has admittedly been sold. Except stating that the house

belonged to his father, Anil Krishnan has not chosen to produce

any material in support of the same. He is a member of Lotus

Club at Ernakulam. He is maintaining another wife. As against

this, after the matrimonial estrangement, Suchitra studied and

creditably passed journalism, she did her L.L.B and L.L.M all at

her own expense. Anil Krishnan has no case that he had spent

the money for her studies. Suchitra has now joined the office of

her father who is an Advocate practicing at Alappuzha. The wife

is entitled to live a life in accordance with the status of her

husband. (Vide Ramdass v. Malathi – 2000 (1) KLT (SN)

12). Unlike Anil Krishnan, she has not contracted another

marriage. When the wife says that she is unable to maintain

herself, it is for the husband who contends otherwise to

substantiate his contention. No attempt in that behalf has been

made by Anil Krishnan. Considering the totality of the facts and

circumstances of the case we are of the view that Anil Krishnan

is liable to pay interim maintenance to Suchitra at the rate of Rs.

MFA 78/02 79

3000/- (Rupees three thousand only) per month from 7-1-2002

(date of filing this appeal) till this date. He is given two months

to pay the said amount to Suchitra failing which Suchitra will be

entitled to levy execution proceedings to recover the same.

28. I.A. 1092/2006 is an application filed by Suchitra on

16-6-2006 seeking enhancement of the interim maintenance to

Gouri to Rs. 5,000/- per month. Gouri has now attained 15 years

of age. Anil Krishnan has not cared to see the child for the last

14 years. Instead, he was more interested in contracting another

marriage. We are of the view that having regard to the growing

age of Gouri and the increased demand for her expenses and

the capacity and obligation of Anil Krishnan to bare the

expenses of his daughter, Gouri is entitled to a sum of Rs.

4,000/- (Rupees four thousand only) per month from 25-10-

2005 that is, the date on which the earlier Division Bench

passed orders on I.A. 2285 of 2005. The enhanced liability

shall also be co-terminus with the disposal of this appeal. Anil

Krishnan shall pay all arrears including those at the enhanced

rate to Gouri within two months from today failing which

MFA 78/02 80

Suchitra shall be entitled to levy execution proceedings for

recovery of the same.

29. I.A. 144/07 is an application filed by Anil Krishnan

under Section 26 of the Hindu Marriage Act, seeking custody of

his daughter Gouri so as to allow him to look after her

maintenance, education and other needs. Suchitra has

vehemently opposed this application by filing a detailed counter.

Anil Krishnan is a father who has not cared to see his daughter

for the past 14 years. It is well settled that it is the welfare of the

child which is of paramount consideration while ordering

custody. The present surge of love and affection suddenly

exhibited by Anil Krishnan towards his adolescent daughter is

nothing but a facade to camouflage his real intention of

avoiding the payment of maintenance to his daughter.

Admittedly, he has married one Sujatha Menon on 26-11-2001.

A father who contracts another marriage after divorce cannot

ordinarily be held entitled to custody of the minor girl. ( See

Yusuf v. Sakkeena – AIR 1999 Kerala 54 ). Having regard to

the normal course of human conduct Gouri may not be a

MFA 78/02 81

welcome guest in her father’s house where she cannot

ordinarily expect her stepmother ( a stranger) to shower on her

the nectar of love and affection. We are, therefore, not inclined

to give custody of Gouri to Anil Krishnan. We, however, leave

the matter open for Anil Krishnan to move the Family Court for

appropriate orders including one for visiting rights.

In the result, we allow this appeal and set aside the decree

of divorce passed by the Family Court. O.P. No. 363 of 1999

filed by Anil Krishnan before the Family Court will stand

dismissed with costs. Suchitra shall be entitled to her costs in

this appeal. We also dispose of the interlocutory applications in

the manner indicated herein above.

(K.K.DENESAN, JUDGE)

(V.RAMKUMAR, JUDGE)

ani.

MFA 78/02    82





             K.K.DENESAN & V. RAMKUMAR, JJ.

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                        M.F.A.NO.78 OF 2002




                                      JUDGMENT





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                     Dt.           APRIL   , 2007