{"id":152266,"date":"2009-06-25T00:00:00","date_gmt":"2009-06-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-r-suresh-babu-vs-beena-on-25-june-2009"},"modified":"2016-09-17T00:43:20","modified_gmt":"2016-09-16T19:13:20","slug":"s-r-suresh-babu-vs-beena-on-25-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-r-suresh-babu-vs-beena-on-25-june-2009","title":{"rendered":"S.R.Suresh Babu vs Beena on 25 June, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
S.R.Suresh Babu vs Beena on 25 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMat.Appeal.No. 16 of 2005()\n\n\n1. S.R.SURESH BABU, S\/O.RAMAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. BEENA, D\/O.PRABHAKARAN,\n                       ...       Respondent\n\n                For Petitioner  :SRI.ELVIN PETER P.J.\n\n                For Respondent  :SRI.R.S.KALKURA\n\nThe Hon'ble MR. Justice R.BASANT\nThe Hon'ble MRS. Justice M.C.HARI RANI\n\n Dated :25\/06\/2009\n\n O R D E R\n               R.BASANT & M.C. HARI RANI,JJ\n\n         ==============================\n\n           MAT APPEAL NOS.15,16 & 17 OF 2005\n\n           ============================\n\n         DATED THIS THE 25TH DAY OF JUNE 2009\n\n                          JUDGMENT\n<\/pre>\n
Hari Rani,J.\n<\/p>\n<\/p>\n
     These appeals are preferred by the      appellant\/husband \/<\/p>\n
father against the common judgment passed by the Family Court<\/p>\n
in  O.P.Nos.1193\/2001,    387\/2001     and   1265\/2001.     The<\/p>\n
respondent in Mat.Appeal Nos.16 & 17\/2005 is the wife of the<\/p>\n
appellant. Respondents 1 and 2 in Mat.Appeal No.15\/2005 are<\/p>\n
the wife and daughter of the appellant.\n<\/p>\n
     2. Mat.Appeal No.15\/2005 is preferred by the appellant<\/p>\n
against the judgment and decree in O.P.No.1193\/2001 filed by<\/p>\n
respondents 1 and 2, his wife and daughter for maintenance.<\/p>\n
That petition was allowed in part and maintenance allowance at<\/p>\n
the rate of Rs.7500\/- per month was awarded in favour of the<\/p>\n
second respondent\/daughter from the date of petition till her<\/p>\n
marriage. That order is challenged in this appeal.<\/p>\n
     3. Mat.Appeal No.16\/2005 is preferred by the appellant\/<\/p>\n
husband challenging dismissal of his claim in O.P.No.387\/2001<\/p>\n
for divorce of the respondent\/wife filed under Section 13(1) of<\/p>\n
the Hindu Marriage Act,1955<\/p>\n
     4. Mat.Appeal No.17\/2005 is preferred by the appellant\/<\/p>\n
husband against the judgment and decree in O.P.No.1265\/2001<\/p>\n
filed by the appellant for declaration that he is the absolute<\/p>\n
owner of A to C schedule properties purchased under Exts.A6 to<\/p>\n
A8 and that he is the title holder of the vehicle, Maruti Zen car<\/p>\n
shown in D schedule of the petition. That petition was dismissed<\/p>\n
by the Family Court. For sake of convenience, these appeals are<\/p>\n
dealt with separately.<\/p>\n
\n\nMat.Appeal No. 15\/2005\n\n     1.   The    appellant   herein   is   the    respondent   in\n\n<\/pre>\n
O.P.No.1193\/2001 filed by respondents 1 and 2 claiming<\/p>\n
maintenance to the first respondent\/wife at the rate of<\/p>\n
Rs.25,000\/- per mensem and at the rate of Rs.10,000\/- per<\/p>\n
mensem for the second respondent\/daughter. Another claim was<\/p>\n
also made for return of Rs.5 lakhs with interest thereon from the<\/p>\n
appellant. That claim for return of Rs.5 lakhs has been given up<\/p>\n
by the first respondent at the time of trial.  She admitted that<\/p>\n
she had withdrawn that amount by herself.         As regards the<\/p>\n
maintenance of the first respondent, the court below has held<\/p>\n
that she is not entitled for maintenance. That finding has not<\/p>\n
been challenged and has become final.           As regards the<\/p>\n
maintenance of the second respondent\/daughter, Rs.7500\/- per<\/p>\n
mensem was allowed by the court below for her maintenance as<\/p>\n
against the claim of Rs.10,000\/- made in the petition.      That<\/p>\n
direction is challenged in this appeal.\n<\/p>\n
     2. It is submitted by the learned counsel for the<\/p>\n
appellant\/father that the maintenance amount awarded in favour<\/p>\n
of the second respondent at the rate of Rs.7,500\/-per mensem is<\/p>\n
highly unreasonable and without considering the evidence on<\/p>\n
record. A reasonable amount may be fixed, it is prayed. This<\/p>\n
prayer is opposed by the learned counsel for respondents.<\/p>\n
     3. The appellant is admittedly residing     separately from<\/p>\n
respondents 1 and 2. It is contended by the first respondent\/wife<\/p>\n
that the appellant had abandoned them. They were driven out of<\/p>\n
his house in April 2001. The appellant has no case that he has<\/p>\n
ever asked his wife and daughter to come back and reside along<\/p>\n
with him. Thus the appellant is not maintaining his daughter, the<\/p>\n
second respondent and as the father of the second respondent,<\/p>\n
he is bound to maintain her whatever be the reason for separate<\/p>\n
residence.\n<\/p>\n
      4. In the counter statement filed by the appellant it was<\/p>\n
admitted that he has legal and moral obligation to maintain his<\/p>\n
child, the 2nd respondent\/petitioner.    According to him, he is<\/p>\n
ready to pay Rs.500\/- per month to her. Thus the only dispute in<\/p>\n
this appeal is regarding the quantum of maintenance awarded in<\/p>\n
favour of the second respondent and whether the amount           of<\/p>\n
Rs.7,500\/- per mensem in favour of the second respondent as<\/p>\n
fixed by the court below is excessive as contended in this appeal.<\/p>\n
      5. It is well settled that while assessing the rate of<\/p>\n
maintenance to be awarded, the requirements of the person who<\/p>\n
claims maintenance has to be borne in mind.              The first<\/p>\n
respondent as CPW1 has deposed that the second respondent,<\/p>\n
their daughter is studying and that maintenance claim of<\/p>\n
Rs.10,000\/- per month was made in the petition which is<\/p>\n
reasonable. The different heads has not been specified in the<\/p>\n
petition. According to the 1st respondent, the appellant who is the<\/p>\n
father of the child, is conducting a very good business at Dubai<\/p>\n
with a monthly profit of more than Rupees five lakhs. This has<\/p>\n
not been denied in the counter statement filed by the appellant.<\/p>\n
     6. Considering the evidence on record, the lower court has<\/p>\n
found that the first respondent is able to maintain herself and no<\/p>\n
maintenance allowance can be awarded in her favour. Regarding<\/p>\n
the second respondent, it is conceded by the appellant in the<\/p>\n
counter statement itself that he is ready and willing to pay<\/p>\n
Rs.500\/- per month as maintenance allowance to the second<\/p>\n
respondent. Rs.10,000\/- per month was claimed as maintenance<\/p>\n
allowance to the second respondent, which according to CPW1,<\/p>\n
her mother, is the amount required for the food, clothing and<\/p>\n
educational expenses of their daughter who is studying. Ext.X3<\/p>\n
has been relied on by the lower court to conclude that more than<\/p>\n
Rs.11 lakhs is in deposit in the credit of the appellant.     The<\/p>\n
admission on the part of the appellant that he has got other bank<\/p>\n
accounts also has been taken into consideration by the trial<\/p>\n
Judge. Considering the affluence and the income and status of<\/p>\n
the parties,  the appellant was directed to pay Rs.7500\/- per<\/p>\n
mensem to the second petitioner as maintenance with effect from<\/p>\n
the date of petition till her marriage .   She was allowed     to<\/p>\n
recover the same from the appellant and his assets. We find no<\/p>\n
reason to interfere with that finding and there is nothing     on<\/p>\n
record to reduce that amount of maintenance allowed in favour of<\/p>\n
the second respondent herein who is the daughter of the<\/p>\n
appellant. Thus, we find that the quantum of maintenance at<\/p>\n
the rate of Rs.7,500\/- per mensem fixed by the lower court in<\/p>\n
favour of the second respondent herein is reasonable and there is<\/p>\n
no ground to reduce the same.        This appeal is   accordingly<\/p>\n
dismissed.\n<\/p>\n
Mat.Appeal No.16\/2005<\/p>\n
     1. The appellant and the respondent married on 10-7-1985<\/p>\n
and one daughter was born in that wedlock. The marriage and<\/p>\n
paternity is admitted. At the time of marriage, the appellant was<\/p>\n
working in Dubai and they admittedly stayed there for 10 years.<\/p>\n
Subsequently,     they  returned   to   India   and   stayed    at<\/p>\n
Thiruvananthapuram. This is also admitted. It is contended by<\/p>\n
the appellant in the petition that thereafter the wife\/respondent<\/p>\n
began to ill-treat him and he was insulted and humiliated in front<\/p>\n
of others. She used to pick up quarrels for silly matters and<\/p>\n
would leave the marital home without his consent.       She was<\/p>\n
leading loose life. The life of the appellant became extremely<\/p>\n
miserable due to the irrational behaviour of the respondent. She<\/p>\n
was leading infamous life. She exploited him for money. She<\/p>\n
filed petition before the Women’s Commission against him which<\/p>\n
was withdrawn later. The marriage between the appellant and<\/p>\n
the respondent has irretrievably broken down due to the cruelty<\/p>\n
and desertion     by the respondent.   On these allegations the<\/p>\n
appellant prayed for divorce on the ground of cruelty and<\/p>\n
desertion.\n<\/p>\n
      2. The respondent resisted the case of the appellant.<\/p>\n
According to her, the appellant ill-treated her with cruelty. He<\/p>\n
used to come to house in late hours and quarrel with her without<\/p>\n
any reason.     After taking liquor he used to beat her several<\/p>\n
times.   She suffered everything for the sake of the daughter.<\/p>\n
She was loyal to the appellant whereas the appellant was very<\/p>\n
cruel towards her. Later, she came to know that the appellant<\/p>\n
was suffering from mental disorder.       He took treatment as<\/p>\n
instructed by the doctor. But he discontinued to take medicine<\/p>\n
as advised by the Doctor and thereafter he became violent again.<\/p>\n
The appellant is under the control of some anti-social elements<\/p>\n
who compelled him to marry one lady Anila and they are now<\/p>\n
living as husband and wife. The respondent prayed the petition<\/p>\n
may be dismissed .\n<\/p>\n
      3. The evidence in this case on the side of the appellant<\/p>\n
consists of oral testimony of PWs.1 to 4 and documentary<\/p>\n
evidence of Exts.A1 to A12 and Exts.X1 to X7. CPWS.1 to 5 were<\/p>\n
examined on the side of the respondent and Exts.B1 to B24 were<\/p>\n
marked.    The learned trial Judge on consideration of the<\/p>\n
respective cases of the parties and the evidence adduced by them<\/p>\n
both oral and documentary came to the conclusion that the<\/p>\n
appellant\/petitioner had failed to prove such cruelty on the part<\/p>\n
of the respondent so as to pass a decree for dissolution of<\/p>\n
marriage. The petition was hence dismissed.\n<\/p>\n
      4. Heard the learned counsel appearing for the appellant<\/p>\n
and the learned counsel appearing for the respondent.<\/p>\n
      5. This petition is filed by the appellant\/husband under<\/p>\n
Section 13(1) of the Hindu Marriage Act, 1955 against the<\/p>\n
respondent\/wife for dissolution of marriage on the ground of<\/p>\n
cruelty and desertion.     When this appeal was taken up for<\/p>\n
hearing, it was submitted by the learned counsel for the appellant<\/p>\n
that the appellant is not pressing the ground of desertion as it<\/p>\n
was mentioned before the trial Judge also and is claiming divorce<\/p>\n
of the respondent, his wife on the ground of cruelty only, that is<\/p>\n
under Section 13(1)(ia) of the Act.\n<\/p>\n
      6.   Clause (ia) of Section 13 (1) specifies cruelty as one of<\/p>\n
the grounds for divorce. The relevant portion of Section 13 reads<\/p>\n
as follows:\n<\/p>\n
      “13. Divorce,-(1)Any marriage solemnised, whether
\n      before or after the commencement of this Act, may, on
\n      a petition presented by either the husband or the wife,
\n      be dissolved by a decree of divorce on the ground that
\n      the other party-\n<\/p><\/blockquote>\n
      xx               xx              xx<\/p>\n
     (ia) has, after the solemnisation of the marriage,<\/p>\n
     treated the petitioner with cruelty; “<\/p><\/blockquote>\n
      7.   Cruelty contemplated by sub-clause (ia) of Section 13<\/p>\n
(1) is both physical and mental. We are concerned herein with<\/p>\n
the latter as the learned counsel for the appellant submitted that<\/p>\n
the appellant is relying on the mental cruelty only for claiming<\/p>\n
divorce against the respondent.      It is not possible to define<\/p>\n
mental cruelty `exhaustively’. According to the learned counsel,<\/p>\n
the pleadings of the respondent before the courts below           in<\/p>\n
different cases are itself sufficient to constitute mental cruelty.<\/p>\n
      8.   Mental cruelty in Section 13(1)(ia) can broadly be<\/p>\n
defined as that conduct which inflicts upon the other party such<\/p>\n
mental pain and suffering as would make it not possible for that<\/p>\n
party to live with the other. In other words, mental cruelty must<\/p>\n
be of such a nature that the parties           cannot reasonably be<\/p>\n
expected to live together. The situation must be such that the<\/p>\n
wronged party cannot reasonably be asked to put up with such<\/p>\n
conduct and continue to live with the other party.          It is not<\/p>\n
necessary to prove that the mental cruelty is such as to cause<\/p>\n
injury to the health of the petitioner. What is cruelty in one case<\/p>\n
may not amount to cruelty in another case.           The fact that a<\/p>\n
marriage has irretrievably broken down does not permit<\/p>\n
dissolution of marriage on that ground.       The same may have to<\/p>\n
be kept in mind as a circumstance while ascertaining the type of<\/p>\n
cruelty contemplated by Section 13(1)(ia). Merely because there<\/p>\n
are allegations and counter allegations, a decree of divorce<\/p>\n
cannot    follow.   There must be         really some extraordinary<\/p>\n
features to warrant grant of divorce on the basis of pleadings<\/p>\n
and evidence.   In the instant case the husband had filed divorce<\/p>\n
petition against the wife on the ground of cruelty and the wife<\/p>\n
denied the allegations of cruelty levelled against her.   In the<\/p>\n
counter statement filed by the wife and the questions put by her<\/p>\n
counsel to the first petitioner\/PW1 in cross examination,<\/p>\n
allegations\/suggestions had been made that the conduct of the<\/p>\n
petitioner\/husband amounts to cruelty in the eye of law and<\/p>\n
therefore,the first petitioner cannot claim divorce.       It is<\/p>\n
significant to note that this is not a case where the allegations<\/p>\n
are made only by one party against the other. Both have levelled<\/p>\n
serious allegations against the other. It is settled    law that<\/p>\n
physical violence is not a necessary ingredient of cruelty and<\/p>\n
also that making reckless allegations of immorality against the<\/p>\n
other spouse amounts to mental cruelty. Mental cruelty is now<\/p>\n
well recognized as a ground for divorce. While evaluating the<\/p>\n
same, every act must be judged with reference to its attendant<\/p>\n
circumstance, and the physical or mental conditions or<\/p>\n
susceptibility of the innocent spouse and the intention of the<\/p>\n
offending spouse are all matters of decisive importance. It is<\/p>\n
not possible to compartmentalise the concept of cruelty.       In<\/p>\n
each case the facts have to be considered. The whole matter<\/p>\n
must be taken together.\n<\/p>\n
      9.   It is argued by the learned counsel for the appellant<\/p>\n
that the cruelty alleged by the appellant claiming divorce of his<\/p>\n
wife is not of violent acts but of injurious reproaches, complaints<\/p>\n
and accusations of immorality against the appellant and also the<\/p>\n
allegation of mental illness against him which is not proved.<\/p>\n
These amount to cruelty, it is contended. The respondent raised<\/p>\n
false contentions in the counter statement in O.P.No.1265\/2001<\/p>\n
that the appellant has withdrawn various amounts that stood in<\/p>\n
her name by practising impersonation and cheating which are<\/p>\n
also false.    The respondent raised scandalous allegations of<\/p>\n
impersonation, cruelty etc. against the appellant and even then<\/p>\n
she refused the claim of divorce made by the appellant which<\/p>\n
also revealed the cruel behaviour of the respondent.           The<\/p>\n
respondent kidnapped the appellant and administered some<\/p>\n
unknown medicines to him from J.J.Hospital under the guise of<\/p>\n
treatment of mental illness by CPW2 from where he was rescued<\/p>\n
and admitted at Sree Uthradam Thirunal Hospital for proper<\/p>\n
treatment.    False allegations of infidelity against the appellant<\/p>\n
that he married one Anila and is living with her as husband and<\/p>\n
wife also amount to cruelty.       The learned counsel for the<\/p>\n
respondent submitted that all the allegations regarding the<\/p>\n
cruelty set out in the petition and the behavioural problems etc.<\/p>\n
attributed to the respondent are false which would show the<\/p>\n
intolerance, jealousy etc. of the appellant and no specific<\/p>\n
incidents have been pointed out by the appellant regarding<\/p>\n
cruelty alleged against the respondent. The definite case of the<\/p>\n
respondent that the appellant was suffering from slight mental<\/p>\n
illness and he had consulted the Doctor who was examined as<\/p>\n
CPW2 and he was reluctant to take medicines etc.are proved<\/p>\n
from the testimony of CPWs.1 and 2.           According to the<\/p>\n
respondent, if medicines are regularly taken by the appellant,<\/p>\n
there would be no problems between them and that the appellant<\/p>\n
is a loyal and loving husband. Due to the interventions of the<\/p>\n
friends and relatives of the appellant he was reluctant to take<\/p>\n
medicines which ended in the family problems between the<\/p>\n
husband and the wife, it is submitted.\n<\/p>\n
      10. The appellant was examined as PW1. The marriage<\/p>\n
between the appellant and the respondent was solemnized on<\/p>\n
10-7-1985.    According to PW1, after the marriage, they were<\/p>\n
living together as husband and wife in Dubai for about 10 years<\/p>\n
peacefully and then they returned      from Dubai and settled at<\/p>\n
Thiruvananthapuram.       Thereafter, the respondent had been<\/p>\n
behaving cruelly towards him and consequently he filed the<\/p>\n
petition claiming divorce on the ground of cruelty.        It was<\/p>\n
deposed by the appellant that the respondent started quarrel<\/p>\n
with the petitioner for silly matters and used to go to her house<\/p>\n
without his permission. He was humiliated and insulted by the<\/p>\n
respondent in the presence of others.        Due to intolerance,<\/p>\n
disobedience and tendency to quarrel for silly reasons on the part<\/p>\n
of the respondent created the life of the appellant extremely<\/p>\n
miserable.   In the petitions also, the respondent raised false<\/p>\n
contentions against him which also amount to cruelty.<\/p>\n
      11. PW2 was examined to prove the case of the appellant<\/p>\n
against the respondent regarding her cruel behaviour towards<\/p>\n
him. He is the cousin brother of PW1. PW2 has deposed that he<\/p>\n
saw the respondent along with tuition master of the daughter of<\/p>\n
PW1 and the respondent was talking to him from their bed room.<\/p>\n
PW1 has no case that there was any illicit relationship between<\/p>\n
the respondent and the said tuition master. The circumstance<\/p>\n
spoken to by PW2 as the cruel behaviour of the respondent<\/p>\n
towards the appellant has not been accepted by the trial judge.<\/p>\n
Though several allegations were made against the respondent<\/p>\n
regarding her cruel nature, none of the same has been<\/p>\n
substantiated by the appellant. The case of the appellant that<\/p>\n
the respondent stayed in a Family Suite in Y.W.C.A.Guest house<\/p>\n
has been admitted by the respondent and according to her, she<\/p>\n
stayed there along with her daughter for           preparation of<\/p>\n
examination of her daughter due to the problems in their marital<\/p>\n
home which arose due to the mental illness of the appellant.<\/p>\n
Only some general and vague allegations are made by the<\/p>\n
appellant regarding cruelty alleged against the respondent. None<\/p>\n
of the same can be accepted by a court of law to break a marital<\/p>\n
tie between the spouses.       So also the examination of PW2,<\/p>\n
cousin brother of the appellant will not help the appellant to<\/p>\n
substantiate the immoral     or loose life of the respondent as<\/p>\n
alleged by the appellant in the petition. Talking with another<\/p>\n
person that too, to the tuition master of her daughter from the<\/p>\n
bed room cannot be given much weight to hold that the<\/p>\n
respondent is of immoral character.\n<\/p>\n
     12. Respondent as CPW1 has denied all the allegations<\/p>\n
against her. She has deposed that the appellant has abnormal<\/p>\n
behaviour due to his mental disorder and she never wanted the<\/p>\n
marital tie to be broken. CPW3, the Vice Principal of Nirmala<\/p>\n
Bhavan School was examined to prove that the daughter of the<\/p>\n
appellant and the respondent was gloomy and moody when she<\/p>\n
was studying in that school which CPW3 understood          during<\/p>\n
counselling of the student.   According to CPW3, she came to<\/p>\n
know that the gloomy nature of the daughter of the appellant<\/p>\n
and the respondent was due to the behaviour of her father at<\/p>\n
home.    CPW1 has admitted that she preferred a complaint<\/p>\n
against the appellant before the Women’s Commission which was<\/p>\n
withdrawn by her after the appellant agreed to take medicines to<\/p>\n
control his mental illness. Cruel nature has been attributed by<\/p>\n
the respondent against the appellant which according to her is<\/p>\n
due to the mental disorder of the appellant which can be cured by<\/p>\n
taking medicines regularly. CPW2, the doctor in the J.J.Hospital<\/p>\n
deposed that the appellant was suffering from paranoid<\/p>\n
schizophrenia. Ext.B24 and the testimony of CPW2 would reveal<\/p>\n
that the appellant was suffering from mental illness for which he<\/p>\n
was admitted at G.G.Hospital and J.J.Hospital and advised to take<\/p>\n
medicines.    According to CPW1\/respondent, her husband PW1<\/p>\n
was reluctant to take medicines regularly due to the intervention<\/p>\n
of his relatives and friends which created marital problems<\/p>\n
between them. The allegations of cruelty and immorality against<\/p>\n
the respondent were attributed due to the mental illness of the<\/p>\n
appellant which can be corrected only by proper treatment for<\/p>\n
which dissolution of marriage is not the proper remedy. So, she<\/p>\n
is not prepared to break the marital tie and is opposing the<\/p>\n
petition. The evidence of CPW5, who is the brother-in-law of the<\/p>\n
appellant, and the respondent also would reveal that the<\/p>\n
appellant was suffering from mental ailment which aggravated<\/p>\n
due to failure to take medicines.     The violent nature of the<\/p>\n
appellant and his ill-treatment towards the respondent and their<\/p>\n
daughter is also spoken to by CPW5.\n<\/p>\n
      13. It is evident from the deposition of PWs.1 and 2 and<\/p>\n
CPWs.1,2 and 5 that cruelty can be attributed to the appellant<\/p>\n
and not to the respondent\/wife. The appellant has raised the<\/p>\n
allegation and also deposed before court to the effect that the<\/p>\n
respondent was leading immoral life has not been substantiated.<\/p>\n
It is specifically stated by CPW1 that she is not at all ready to the<\/p>\n
demand of divorce made by her husband. Though it is evident<\/p>\n
from the oral testimony of PW1 and CPW1 that the marital<\/p>\n
relationship between the appellant and the respondent got<\/p>\n
strained and there is evidence to show that the respondent filed<\/p>\n
petition before the Women’s Commission against the appellant,<\/p>\n
those reasons are not sufficient to prove the allegations of cruelty<\/p>\n
against the respondent to seek a decree of divorce. On the<\/p>\n
other hand, there is sufficient evidence to show that the appellant<\/p>\n
used to ill-treat the respondent due to some mental disorder<\/p>\n
which can be corrected by taking medicines. It is not possible to<\/p>\n
apprehend human conduct and behaviour for all times to count<\/p>\n
and judge what is cruelty.       The test to be applied is whether<\/p>\n
the cruelty is of such type that the appellant\/petitioner cannot<\/p>\n
reasonably be expected to live with the respondent or living<\/p>\n
together with the spouse has become incompatible. The fact that<\/p>\n
the marriage has broken down is no reason in itself for a finding<\/p>\n
of cruelty. In the present case, there are allegations and counter<\/p>\n
allegations against each other as is evident from the petition and<\/p>\n
the counter statement which are indications of strain in the<\/p>\n
relationship between the parties and the same cannot be taken<\/p>\n
as a circumstance to grant the relief of divorce. The stand<\/p>\n
taken by the respondent\/wife clearly shows that though there is<\/p>\n
strain in the relationship between parties, the marriage has not<\/p>\n
irretrievably broken down yet.\n<\/p>\n
      14. After considering the respective contentions    of both<\/p>\n
parties and the arguments advanced by the learned counsel for<\/p>\n
the appellant and the respondent and evidence adduced by both<\/p>\n
parties in this case before the trial court, we find there is no<\/p>\n
evidence of any intention on the part of the wife\/respondent to<\/p>\n
disrupt the marital life with the appellant, her husband. There is<\/p>\n
no evidence to sustain the allegations of cruelty against her.<\/p>\n
Instead the husband’s behaviour establishes an intention to break<\/p>\n
the married life.    So, there    is no cause of action for the<\/p>\n
husband\/appellant against the respondent to claim a decree for<\/p>\n
divorce. A contumacious spouse cannot be permitted to take<\/p>\n
advantage of his own inappropriate conduct and claim divorce on<\/p>\n
that ground.\n<\/p>\n
      15. After considering the facts and evidence in this case in<\/p>\n
detail as is evident from the judgment, the petition filed by the<\/p>\n
husband for divorce was correctly dismissed by the lower court.<\/p>\n
We agree with the reasons and conclusions of the trial court.<\/p>\n
We, therefore, find no reason to interfere with the judgment and<\/p>\n
decree passed by the trial Judge.     This appeal is accordingly<\/p>\n
dismissed.\n<\/p>\n
Mat.Appeal NO.17\/2005<\/p>\n
     1. The husband\/appellant filed O.P.No.1265\/2001 with the<\/p>\n
prayer for declaration that he is the absolute owner of the<\/p>\n
properties shown in Schedules A to C of the petition, which<\/p>\n
according to him were purchased under Exts.A6 to A8. He further<\/p>\n
prayed for a declaration that he is the title holder of the vehicle,<\/p>\n
Maruti Zen car shown in D schedule of the petition. The prayer<\/p>\n
was resisted by the respondent.      She contended that those<\/p>\n
properties were purchased from the income obtained from the<\/p>\n
rubber estate and other properties. Such income was collected<\/p>\n
by her parents and given to her for the purchase of the same. It<\/p>\n
was found by the court below that no sufficient evidence was<\/p>\n
adduced by the appellant to indicate that he had purchased the<\/p>\n
properties with his funds and consequently the claim for<\/p>\n
declaration   that he is the title holder of     A to C schedule<\/p>\n
properties was rejected.\n<\/p>\n
     2. Heard the learned counsel for the appellant and the<\/p>\n
learned counsel for the respondent.\n<\/p>\n
     3. It is argued by the learned counsel for the appellant that<\/p>\n
there are inconsistent versions of the respondent regarding the<\/p>\n
source of the     money and the learned trial Judge without<\/p>\n
considering those inconsistent versions of the respondent has<\/p>\n
rejected the prayer for declaration as sought for by the appellant.<\/p>\n
According to the learned counsel for the respondent, those<\/p>\n
properties were purchased by the respondent and the sale<\/p>\n
consideration was paid by her father, Prabhakaran for and on her<\/p>\n
behalf as recited specifically in the assignment deeds, Exts.A6 to<\/p>\n
A8.\n<\/p>\n
     4. The properties shown in schedule A to C of the petition<\/p>\n
were admittedly purchased on 14-10-1991, 14-10-1991 and<\/p>\n
23-12-1991 respectively as revealed from Exts.A6, A8 and A7<\/p>\n
which is not disputed. The marriage between the spouses took<\/p>\n
place on 10-7-1985. The above mentioned sale deeds were<\/p>\n
executed in favour of and in the name of the respondent alone.<\/p>\n
In all the documents it was stated unambiguously that the sale<\/p>\n
consideration was received from the father of the respondent<\/p>\n
named Prabhakaran for and on behalf of the respondent, Beena<\/p>\n
Babu.    According to the appellant, though the purchases under<\/p>\n
Exts.A6 to A8 were in the name of the respondent, the same<\/p>\n
were purchased with his own funds and not by the money given<\/p>\n
by the father of the respondent as mentioned in the documents<\/p>\n
or from the income of the rubber estate of the respondent as<\/p>\n
contended in the counter statement filed by her. Thus the point<\/p>\n
in dispute is regarding the source of the sale consideration<\/p>\n
covered under    Exts.A6 to A8 in respect of   A to C schedule<\/p>\n
properties shown in the petition.\n<\/p>\n
      5. The appellant as PW1 has deposed before the trial court<\/p>\n
that on 1-6-1991 Rs.one lakh was deposited by him in the<\/p>\n
account of his father-in-law and that amount was utilised for<\/p>\n
purchasing the properties. The documents of acquisitions of the<\/p>\n
properties are admittedly covered under Exts.A6 to A8 which<\/p>\n
would show that all the acquisitions were in the name of the<\/p>\n
respondent\/wife alone.     It is also recited therein that the<\/p>\n
respondent has to enjoy the properties by paying tax etc.<\/p>\n
     6. Before the court below the appellant was examined as<\/p>\n
PW1. According to PW1, the entry on 1-6-1991 in Ext.A3 pass<\/p>\n
book would reveal that Rs.one lakh had been paid by him to his<\/p>\n
father-in-law, Prabhakaran.      That amount was utilised to<\/p>\n
purchase the properties covered under Exts.A6 to A8.         The<\/p>\n
respondent,CPW1 has deposed that the said amount of Rs.one<\/p>\n
lakh was utilised to purchase the property covered under Ext.B5<\/p>\n
executed on 5-6-1991 in the name of PW1. The father-in-law of<\/p>\n
the appellant    examined as CPW4, who is the father of the<\/p>\n
respondent, has deposed that the property covered under Ext.B5<\/p>\n
was purchased by him on 5-6-1991 after withdrawing Rs.one lakh<\/p>\n
on 1-6-1991 from the Bank and by paying the balance amount by<\/p>\n
himself. Exts.B5, B6, B7 and B9 were marked on the side of the<\/p>\n
respondent wherein it was mentioned that the sale consideration<\/p>\n
was paid by Prabhakaran,CPW4 and it was provided by the<\/p>\n
appellant. On the other hand in Exts.A6 to A8 it is recited that<\/p>\n
the sale consideration for the purchase of those properties were<\/p>\n
given by CPW4, the father of the respondent on her behalf to the<\/p>\n
vendees therein. Thus on facts and in the light of the relevant<\/p>\n
recitals in Exts.A6 to A8 it cannot be disputed that the purchase<\/p>\n
of the properties covered therein was in the name of the<\/p>\n
respondent\/wife for her enjoyment. Funds to purchase the above<\/p>\n
properties were raised from the hands of CPW4, the father-in-<\/p>\n
law. The appellant had not contributed any amount towards the<\/p>\n
sale consideration of the properties as revealed from the<\/p>\n
documents itself. The clear and unambiguous recitals in Exts.A6<\/p>\n
to A8 clinches the issue as to who had paid the sale consideration<\/p>\n
and from whose fund the consideration has been given entirely<\/p>\n
and exclusively, that is from the hands of CPW4 undoubtedly.<\/p>\n
There is    recital in the document that the purchases under<\/p>\n
Exts.A6 to A8 were in the name of the respondent\/wife<\/p>\n
exclusively and sale consideration        covered under all the<\/p>\n
documents were contributed by CPW4,her father.            Thus the<\/p>\n
consideration was paid entirely by the father of the respondent-<\/p>\n
vendee and not from the funds of the appellant as alleged in the<\/p>\n
petition. Thus it is revealed that the entire consideration covered<\/p>\n
under the sale deeds of the properties shown in Schedule A to C<\/p>\n
of the petition were paid out of the exclusive funds of the father<\/p>\n
of the respondent on her behalf for her enjoyment and not out of<\/p>\n
the funds of the appellant as claimed.         There is nothing to<\/p>\n
suggest that the purchase of the abovesaid properties in the<\/p>\n
name of the respondent were utilisiing the consideration which<\/p>\n
came from the funds of the appellant exclusively. In the nature<\/p>\n
of the pleadings and evidence adduced by the parties, it is<\/p>\n
impossible to hold that the purchases of the properties covered<\/p>\n
under Exts.A6 to A8 were made by the appellant for and on<\/p>\n
behalf of the respondent which is proved otherwise from the<\/p>\n
specific recitals in the documents. Though Ext.A6 to A8 were<\/p>\n
executed     after the solemnization of marriage between the<\/p>\n
appellant and the respondent, in the light of the unambiguous<\/p>\n
recitals in all the documents that consideration came entirely<\/p>\n
from the father-in-law of the appellant, we are satisfied that the<\/p>\n
view of the trial Judge that the appellant is not entitled to get a<\/p>\n
declaration that he is the title holder of A to C schedule<\/p>\n
properties is absolutely correct and no interference of this Court<\/p>\n
is required.\n<\/p>\n
     7. The appellant has also claimed a declaration to the effect<\/p>\n
that he is the absolute owner of Maruti Zen car shown in D<\/p>\n
schedule of the petition. According to him, it was purchased<\/p>\n
with his own funds and a direction may be given to the<\/p>\n
respondent to surrender the R.C.book to him and further<\/p>\n
direction to the Regional Transport Officer to transfer the<\/p>\n
ownership in his name. The appellant as PW1 has deposed that<\/p>\n
the car was purchased by him on 6-8-1999 while he was working<\/p>\n
abroad as per his instruction given to the respondent,his wife<\/p>\n
availed a loan from the State Bank of Travancore account in her<\/p>\n
name. This is disputed by the respondent.      The appellant has<\/p>\n
relied on Exts.X1 to X4 and also the evidence of PW3, the Bank<\/p>\n
Manager. Ext.X1 is the letter sent to the appellant from State<\/p>\n
Bank of Travancore wherein it was mentioned that loan          of<\/p>\n
Rs.2,96,000\/- was sanctioned as per loan No.MTC 3\/99 in the<\/p>\n
name of Smt.Beena Babu, the respondent herein for the purchase<\/p>\n
of one Maruti Zen Car. It is also stated therein that the account<\/p>\n
was closed on 21-10-1999 from the proceeds of term deposit.<\/p>\n
Exts.X2 to X4 were also proved through PW3 which were relied<\/p>\n
on by the appellant to substantiate his contentions regarding the<\/p>\n
loan transaction with the State Bank of Travancore. From the<\/p>\n
evidence of PW3 and Ext.X1 it is clear that the car loan was<\/p>\n
availed by the respondent and the account was closed from the<\/p>\n
proceeds of the term deposit in the name of Suresh Babu, the<\/p>\n
appellant. In the cross examination of PW3, he has stated that<\/p>\n
loan No.MTC.3\/99 was sanctioned to Beena Babu, the respondent<\/p>\n
and it was for the purchase of Maruti car and the registered<\/p>\n
owner of the car is Beena Babu.         The vehicle was given as<\/p>\n
primary security which was hypothecated to the Bank. Ext.X3<\/p>\n
would indicate that the loan transaction was closed by crediting<\/p>\n
an amount of Rs.3,11,944\/- on 21-10-1999 but it would not<\/p>\n
reveal that the amount shown therein had come from the account<\/p>\n
of the appellant. The pass book or other documents were not<\/p>\n
produced by the appellant to show that the amount was actually<\/p>\n
transferred from his term deposit covered under Ext.X2. It is<\/p>\n
revealed from the evidence of PW3 and from Exts.X1 to X3 that<\/p>\n
the respondent had availed loan for purchase of Maruti Zen Car<\/p>\n
and the appellant was only a guarantor and the vehicle stands in<\/p>\n
the name of the respondent.        The appellant who stood as<\/p>\n
guarantor for the purchase of said car cannot claim that he is the<\/p>\n
title holder of the vehicle. It is worthwhile to note that in the<\/p>\n
claim for maintenance of the wife, it is the very specific defence<\/p>\n
of the appellant that she is affluent and has sufficient means.<\/p>\n
Compelling evidence must be placed before the court to<\/p>\n
persuade the court to accept his version that the purchases of<\/p>\n
properties exclusively in the name of the wife were made using<\/p>\n
his   exclusive funds.   No such evidence was made available<\/p>\n
before the Family court. Considering the evidence on record, the<\/p>\n
trial Judge has found that the appellant is not entitled to get a<\/p>\n
declaration that he is the absolute owner of Maruti Zen car as<\/p>\n
claimed by him. We hold that the said finding of the court below<\/p>\n
is correct.   The same is hence confirmed.       This appeal is<\/p>\n
accordingly dismissed<\/p>\n
      8. Considering the facts and evidence    of these cases in<\/p>\n
detail, we find no reason to interfere with the judgments and<\/p>\n
decrees in the above cases passed by the trial Judge and the<\/p>\n
same are confirmed. These appeals are accordingly dismissed.<\/p>\n
No costs.\n<\/p>\n<\/p>\n
                                     R. BASANT, JUDGE<\/p>\n
                                  M.C. HARI RANI,JUDGE
\nks.\n<\/p>\n
\nks.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court S.R.Suresh Babu vs Beena on 25 June, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM Mat.Appeal.No. 16 of 2005() 1. S.R.SURESH BABU, S\/O.RAMAN, … Petitioner Vs 1. BEENA, D\/O.PRABHAKARAN, … Respondent For Petitioner :SRI.ELVIN PETER P.J. For Respondent :SRI.R.S.KALKURA The Hon’ble MR. Justice R.BASANT The Hon’ble MRS. Justice M.C.HARI RANI Dated […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-152266","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nS.R.Suresh Babu vs Beena on 25 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-r-suresh-babu-vs-beena-on-25-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.R.Suresh Babu vs Beena on 25 June, 2009 - 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