IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 439 of 1998(A)
1. N.RADHAKRISHNAN
... Petitioner
Vs
1. V.L.MINIKUTTY
... Respondent
For Petitioner :SRI.JOHN JOSEPH
For Respondent :SMT.V.L.MINIKUTTY(PARTY)
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :06/09/2007
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
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M.F.A.No.439 of 1998-A
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Dated: September 6, 2007
JUDGMENT
Harun-Ul-Rashid, J.
The petitioner in O.P (HMA) No.15/1996 on the file of the Sub
Court, Cherthala, is the appellant in this M.F.A. The appellant as
petitioner filed the above original petition for dissolution of his marriage
with the respondent under sec.13(1) of the HIndu Marriage Act. The
learned Sub Judge, after trial, held that the petitioner/husband has failed to
satisfy the court that the respondent was treating the petitioner with mental
and physical cruelty and that the respondent has deserted the petitioner
and therefore the relief sought for in the petition for dissolution of marriage
was denied and the petition was dismissed. Hence this appeal. The
parties are referred to as the petitioner and the respondent.
2. The petitioner married the respondent as per the Hindu religious
rites on 14.9.1991. They lived as husband and wife at the residence of the
husband. The respondent gave birth to a child. According to the
petitioner/husband, the respondent was not a dutiful wife, that he was
subjected to physical and mental cruelty from his wife, that she attempted
to commit suicide by pouring kerosene and set fire to her body and that
due to the timely interference of the petitioner, he was able to obstruct her
MFA 439/1998. Page numbers
from committing suicide. The petitioner also alleged that his wife had also
tried to kill their child by catching hold of the child on his neck and that
attempt failed due to his timely resistance. It is also alleged that his wife
frequently threatened him that she would commit suicide. According to the
petitioner, his life has become miserable due to the disorderly behaviour
from the respondent. According to the petitioner, one fine morning the
respondent left the residence of the petitioner and went to her parental
home and she started continuously residing there with her parents. The
petitioner further alleged that it is not possible for him to live with the
respondent as husband and wife. On the grounds of cruelty and
desertion, the above petition was filed praying for a decree of dissolution of
marriage.
3. The respondent entered appearance before the court below and
the allegations made against her in the petition for dissolution of marriage
are denied. According to the respondent, it is at the instance of the
appellant/petitioner that the respondent left the residence and started to
reside with her parents. The allegations of mental and physical cruelty and
misbehaviour are denied. It is also contended by the respondent that the
allegations regarding the attempt to commit suicide and the attempt to kill
the child are false allegations put forward to suit the convenience of the
appellant/petitioner. In fact, according to her, she did not abandon the
petitioner and left the residence of the petitioner, but she was taken to her
MFA 439/1998. Page numbers
parents’ house by the petitioner.
4. The trial court recorded the evidence of PWs.1 and 2 and
Exts.A1 to A3 on the side of the petitioner/husband and of RW.1 on the
side of the respondent. After analysing the evidence on record, the trial
court came to the conclusion that the petitioner/husband failed to prove
that the respondent was treating the petitioner with cruelty and that she
had deserted the petitioner.
5. Admittedly, the marriage between the petitioner and the
respondent took place on 14.9.1991. They resided together for a few years
and the respondent left the petitioner’s residence on 12.2.1996. As PW.1
the petitioner gave evidence stating that on two occasions the respondent
attempted to commit suicide and her life was saved only due to his timely
intervention by preventing the commission of the offence. He had also
narrated the fact that on one occasion she tried to kill her own child. The
trial court passed the observation that if the respondent had tried to
committ suicide and to kill the child, certainly that will amount to physical
and mental cruelty. The petitioner/husband had also given evidence
stating that his wife insisted for their stay at her own residence and the
petitioner was not amenable for such demand. Since the demand of the
wife for residence of the parties at her house was not consented to by the
petitioner, the respondent started all sorts of disorderly behaviour including
exertion of cruelty, both physical and mental which made it impossible for
MFA 439/1998. Page numbers
the petitioner to live with her. According to him, in spite of this disorderly
behaviour, he resided with her for few years. But, the respondent/wife on
her own will left the matrimonial home without assigning any reason and
never came back.
6. The testimony of the petitioner as PW.1 was supported by the
evidence of PW.2 who is a neighbour of the parties. PW.2 also deposed
about the attempt to commit suicide by the respondent. He had also
deposed that the respondent attempted to kill the child, which incident also
he happened to witness. PW.2 further stated that he had helped the
petitioner to break open the door by kicking and obstructed the suicide
attempt. This witness also testifies that he knows the couple very closely
and the respondent left the matrimonial home on her own free will.
7. On going through the evidence of the trial court, we have noticed
that PW.2’s evidence was discarded by the Sub Judge for trivial reasons.
One of the reasons stated is that he was watching the examination of
DW.1 (respondent) from the veranda of the court, that there was no need
for him to watch the examination of DW.1 and therefore he is an interested
witness. The trial court also held that since he is a toddy worker, he has to
go for work almost all the hours except at night and therefore there is no
possibility of this witness watching the incident which took place during day
time. According to us this is also not a sufficient reason to disbelieve the
evidence of PW.2. The trial court also stated various reasons for not
MFA 439/1998. Page numbers
granting a decree for dissolution of the marriage. One reason stated is
that the petitioner/husband did not apply for the custody of the child in
spite of the incident referred to earlier, that is, the attempt made by the
respondent/wife to kill the child. The court also finds fault with the
petitioner for not taking his wife for treatment and for not complaining
before the police authorities for her attempt to commit suicide.
8. We have examined the oral evidence adduced by the husband
and the wife and P.W.2. According to us, the reason stated for
discarding the evidence of PW.1 and disbelieving PW.2 are not correct. In
the facts and circumstances brought out in the case and the evidence
adduced in support thereof, we are of the view that the appellant/petitioner
has made out a case for dissolution of the marriage on the grounds of
cruelty and desertion. We have also noticed the fact that the parties are
separated for the last more than 11 years. We had directed both parties to
be present for making an attempt of reconciliation and mediation. The
respondent/wife did not turn up even though she was asked to appear
before court on two occasions. She refused to turn up on those two dates.
We are of the opinion that the marriage is irretrievably broken and there is
no chance, even remotest, for bringing them together. In the above facts
and circumstances, we are constrained to hold that the appellant/petitioner
is entitled to a decree for dissolution of the marriage on the grounds of
cruelty and desertion.
MFA 439/1998. Page numbers
In the result, the appeal is allowed. The judgment under appeal is
set aside. The marriage between the appellant and the respondent is
dissolved and decreed accordingly. There will be no order as to costs.
KURIAN JOSEPH, JUDGE
HARUN-UL-RASHID, JUDGE
mt/-
MFA 439/1998. Page numbers
KURIAN JOSEPH &
HARUN-UL-RASHID, JJ.
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M.F.A. No.439 OF 1998-A
JUDGMENT
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6.9.2007