IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 174 of 2007()
1. VIJAYAMMA P.M., D/O. P.U.MOHANDAS,
... Petitioner
Vs
1. RADHAKRISHNAN, S/O. P.KESAVAN,
... Respondent
For Petitioner :SRI.A.P.SUBHASH
For Respondent :SRI.K.P.SHAHUL HAMEED
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :23/07/2008
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
----------------------------------------------------------------
MAT. APPEAL NO.174 OF 2007
----------------------------------------------------------------
Dated this the 23rd day of July, 2008
JUDGMENT
Harun-Ul-Rashid, J.
The appellant herein is the petitioner in O.P. No.384 of 2004 on the
file of the Family Court, Kottayam at Ettumanoor. The Original Petition
is filed by the wife for divorce under Section 13 B of the Hindu Marriage
Act. The respondent herein is her husband. By the impugned order, the
court below dismissed the Original Petition. Hence, this appeal. The
parties are hereafter referred to as petitioner and respondent as in the
Original Petition.
2. The marriage between the parties was solemnised on 16.5.1991
as per the religious rites prevalent in the community. At the time of
marriage, the petitioner was working as Military Nurse at Uttar Pradesh
and the respondent was a teacher working at Gujarat. They resided
together after marriage and two children were born in the wedlock. It is
the case of the petitioner/wife that the respondent is a drunkard and he is
not interested in looking after the affairs of the petitioner and the children.
Mat. Appeal No.174/2007 2
According to her, the respondent used to manhandle her and that
throughout the period of their married life the respondent continued to ill
treat her. She also narrated an incident that happened on 3.7.2004 on
which day the respondent manhandled and sent her out of the house. On
coming to know of the incident, the parents of the petitioner came and
took her to their house and on 5.7.2004, the petitioner filed the complaint
before the police.
3. The respondent filed objection denying all the allegations
levelled against him. According to him, he is not a drunkard and he had
been leading a peaceful life with the petitioner and the children. He also
contended that the petitioner filed the complaint using her influence as a
military officer and that the petitioner is living separately with the children
for no reason.
4. The petitioner/wife was examined as PW.1 and the respondent
was examined as RW.1. Ext.A1 is the marriage certificate issued by the
Sub Registrar, Ettumanoor. As PW.1, the petitioner testified before the
court below that her husband is a drunkard, that his conduct and
behaviour are not befitting to a teacher and that of the head of the family
and that he never took care of her and the children. She further testified
Mat. Appeal No.174/2007 3
that the respondent abused her in the presence of others and ill treated her
mentally and physically. She also stated that the entire money received by
the respondent by way of salary during the period he was employed as a
teacher was spent for taking liquor and he also extracted money from her
by intimidating her and the same was also spent for consumption of
alcohol. According to the petitioner, the respondent is a habitual drunkard.
She also stated that due to the mental and physical cruelty suffered by her,
she has deserted the respondent and has started living separately and that
she lost her mental peace during her stay with him. The respondent who
was examined as RW.1, denied the above allegations. He denied the
suggestion that he is a drunkard, but admitted that he used to consume
alcohol. He also denied the allegation that he lost his job due to drinking.
5. The parties are well placed in the society. The pleadings and
evidence would go to show that the parties did not live happily during the
period they lived as husband and wife. The scuffle and bickering started
from the early months of the marriage and the parties are fighting each
other from the very beginning. The incident narrated by the wife would
go to show that she was subjected to physical and mental cruelty and this
resulted in filing a petition under Section 498 A I.P.C. If the version of
PW.1 is to be believed, the mental torture continued while the parties co-
Mat. Appeal No.174/2007 4
habited, making her life with the respondent extremely intolerable,
miserable and overbearing and such cruel harassment reached intolerable
proportions. We also had occasion to interact with the parties. We had
also appointed mediators to settle the dispute between the parties. The
petitioner/wife expressed her desire to live separately. According to her
reconciliation is out of the question. The nature of the allegations levelled
against the respondent/husband shows her intense hatred and animosity
towards him. The parties appeared before us on 8.7.2008 and agreed to
file a joint petition under Section 13 B of the Hindu Marriage Act, 1955.
6. When the matter was taken up on 9.7.2008, it was submitted at
the Bar that the respondent refused to sign the joint petition and left the
place. Going by the versions of the petitioner as PW.1, we find that she
was subjected to physical and mental cruelty, making it impossible for her
to live with the respondent/husband. The situation is that the wronged
party cannot reasonably be asked to put up with such conduct and continue
to live with the other party. The facts pleaded and proved by the
petitioner/wife have to be appreciated and evaluated differently from the
facts pleaded by the respondent/husband. The versions of RW.1 cannot be
believed for the reason that he does not appear to be a trustworthy person.
He is not looking after his children, nor providing for them or protecting
Mat. Appeal No.174/2007 5
them. Hence, we are of the view that the petitioner is entitled to a decree of
divorce on the ground of cruelty.
7. In the decision of the Supreme Court reported in Naveen Kohli
v. Neelu Kohli, 2006(2) K.L.T. S.N. 29 (Case No.41)(SC) = (2006) 4
S.C.C. 558), the Supreme Court observed that once the parties have
separated and the separation has continued for sufficient length of time and
one of them has presented a petition for divorce, it can well be presumed
that the marriage has been broken beyond repair and that it would be
unrealistic for the law not to take notice of that fact and it would be
harmful to the society and injurious to the interests of the parties.
8. The parties are living separately since July, 2004. In the facts
and circumstances discussed above, we do not agree with the view taken
by the Family Court to the effect that the petitioner has not succeeded in
proving the grounds alleged in the petition for divorce. The parties were
living away from Kerala in places like Uttar Pradesh, Uttaranchal, Punjab
etc. Hence, the court below was not correct in observing that there was no
independent evidence to show that the respondent/husband treated the
petitioner/with cruelty and manhandled her. In the peculiar facts and
circumstances of the case, it is very difficult to cite witnesses in proof of
Mat. Appeal No.174/2007 6
the physical and mental cruelty alleged in the petition. The incidents
happened in the house where the parties resided. Ultimately, it is a matter
of inference to be drawn by taking into account the nature of the conduct
and its effect on the complaining spouse. After going through the oral
testimony of PW.1 and the pleadings in her petition, we are of the view
that the petitioner is entitled to get a decree of divorce as prayed for by
her. In the result, the order under challenge is set aside. The petition
filed under section 13(1)(i-a) of the Hindu Marriage Act is allowed. The
marriage between the petitioner and the respondent is dissolved with effect
from today.
The Matrimonial Appeal is allowed as above. There will be no
order as to costs.
(KURIAN JOSEPH, JUDGE)
(HARUN-UL-RASHID, JUDGE)
sp/
Mat. Appeal No.174/2007 7
KURIAN JOSEPH &
HAURN-UL-RASHID, JJ.
MAT.APPEALNO.174/2007
JUDGMENT
23rd July, 2008
Mat. Appeal No.174/2007 8