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.
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M.F.A.NO. 78 OF 2002
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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
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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