{"id":46781,"date":"2007-04-13T00:00:00","date_gmt":"2007-04-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suchithra-vs-anil-krishnan-on-13-april-2007"},"modified":"2018-11-24T22:50:54","modified_gmt":"2018-11-24T17:20:54","slug":"suchithra-vs-anil-krishnan-on-13-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suchithra-vs-anil-krishnan-on-13-april-2007","title":{"rendered":"Suchithra vs Anil Krishnan on 13 April, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Suchithra vs Anil Krishnan on 13 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMFA No. 78 of 2002(B)\n\n\n1. SUCHITHRA D\/O. M.RADHAKRISHNAN NAIR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. ANIL KRISHNAN, S\/O. G.K.PILLAI,\n                       ...       Respondent\n\n                For Petitioner  :SMT.ELIZABETH MATHAI IDICULLA\n\n                For Respondent  :SRI.P.RADHAKRISHNAN (1)\n\nThe Hon'ble MR. Justice K.K.DENESAN\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :13\/04\/2007\n\n O R D E R\n                    K.K.DENESAN & V. RAMKUMAR, JJ.\n\n                         ------------------------------------\n\n                            M.F.A.NO. 78 OF 2002\n\n                         ------------------------------------\n\n                          Dated,  13th April    2007\n\n\n                                   JUDGMENT\n<\/pre>\n
Ramkumar, J.\n<\/p>\n<\/p>\n
      This   is   the   wife’s   appeal   under   sec.19(1)(i)   of   the   Family<\/p>\n
Court’s   Act,   1984   challenging   the   order   dt.   24.11.2001   in<\/p>\n
O.P.No.363\/1999 on the file of the Family Court, Ernakulam.   The<\/p>\n
said O.P. was filed by the respondent\/husband under sec.13(1)(ia)<\/p>\n
of   the   Hindu   Marriage   Act,   1955   on   the   ground   of   cruelty   and<\/p>\n
sec.13 (1) (ib) on the ground of desertion.\n<\/p>\n<\/p>\n
                        THE HUSBAND’S PLEADINGS<\/p>\n
      2.     The   case   of   the   respondent\/husband   in   the   petition   for<\/p>\n
divorce is  as follows:-\n<\/p>\n<\/p>\n
      The     petitioner     (Anil   Krishnan)     and   the   respondent<\/p>\n
(Suchitra)   are   Hindus   belonging   to   the   Nair   community.     Their<\/p>\n
marriage was solemnized according to the customary rites at Sree<\/p>\n
Rama   Mandir   in   Alappuzha   on   8.6.1991.     On   the   same   day   the<\/p>\n
petitioner and the respondent came to  the petitioner’s  house at<\/p>\n
Ernakulam and thereafter they were living together at Ernakulam.<\/p>\n
Right   from   the   beginning   of   their   stay   in   the   petitioner’s   family<\/p>\n
MFA 78\/02                               2<\/span><\/p>\n
house,   the   petitioner   found   the   respondent     behaving   very<\/p>\n
strangely towards him and his parents.  She exhibited anger and<\/p>\n
annoyance   towards   the   petitioner  and   his   parents.     At   first   the<\/p>\n
petitioner   thought   that   the   respondent’s   behaviour   was   due   to<\/p>\n
her  initial  inability   to  adjust  to  the life  of  a  newly married  wife.<\/p>\n
He tolerated her behaviour and lived as a loving husband.   The<\/p>\n
respondent   continued   exhibiting     cold   behaviour   and   informed<\/p>\n
the petitioner that she had dislike for   him and his parents and<\/p>\n
wanted   to   leave   the   matrimonial   home.     On   24.7.1991   the<\/p>\n
respondent   went   to   her   parental             house   at   Alappuzha.<\/p>\n
Thereafter on 26.7.1991 the parents of the respondent informed<\/p>\n
the petitioner that the respondent was pregnant.  The petitioner<\/p>\n
and his parents immediately went to the respondent’s house at<\/p>\n
Alappuzha   to   take   her   back   to   the   matrimonial   home.     Initially<\/p>\n
the respondent refused to go with them.   She did  not offer any<\/p>\n
explanation   for   her   dislike   to   return   to   the   matrimonial   home.<\/p>\n
The   respondent,  however,   came   back   to   the   matrimonial   home<\/p>\n
on 4.8.1991 after much persuasion from the petitioner and also<\/p>\n
from   the   parents   of   both   the   petitioner   and   the   respondent.<\/p>\n
MFA 78\/02                               3<\/span><\/p>\n
After   returning   to   the   matrimonial   home,   the   respondent<\/p>\n
continued   to   be   indifferent   towards   the   petitioner   and   insisted<\/p>\n
that she be taken to her parental house.  She had to be taken to<\/p>\n
Alappuzha on  30.8.1991.    She  was  brought  back  on 20.9.1991,<\/p>\n
but   on   2.10.1991   on   her   insistence   the   respondent   was   taken<\/p>\n
again to Alappuzha.  Her parents brought her back on 3.10.1991.<\/p>\n
On 5.11.1991 she again went to her parental home at Alappuzha.<\/p>\n
The parents of the petitioner went to Alappuzha on the request<\/p>\n
of the petitioner to persuade the respondent to come and stay in<\/p>\n
the   matrimonial   home   with   the   petitioner.     As   there   was   no<\/p>\n
justifiable cause for the respondent’s failure to go and stay with<\/p>\n
the   petitioner   in   the   matrimonial   home,   her   father   brought   her<\/p>\n
back to Ernakulam on 24.11.1991.  On 12.12.1991 the parents of<\/p>\n
the respondent formally came to the petitioner’s family house at<\/p>\n
Ernakulam to take her to Alappuzha for delivery.   The abnormal<\/p>\n
and   unreasonable   attitude   of   the   respondent   had   upset   the<\/p>\n
petitioner very much.   He had made many attempts to set right<\/p>\n
her   attitude.     The   parents   of   the   respondent   informed   the<\/p>\n
petitioner and his parents that the respondent’s pregnancy had<\/p>\n
MFA 78\/02                                4<\/span><\/p>\n
adversely   affected   her.     The   respondent   once   informed   the<\/p>\n
petitioner   that   she   disliked   him   talking   to   his   parents,  relatives<\/p>\n
and close friends and that that was the reason for her anger and<\/p>\n
annoyance   towards   him.     The   petitioner   tried   to   convince   her<\/p>\n
that   he   was   the   only   son   of   his   parents,   that   he   had   duties<\/p>\n
towards   his   parents   and   that   both   the   petitioner   and   the<\/p>\n
respondent   should   together   socialise   with   close   relatives   and<\/p>\n
friends.   The   respondent,  however,  appeared  to   be   unwilling   to<\/p>\n
change   her   attitude   and   to   communicate   and   mingle   with<\/p>\n
everyone   including   the   petitioner.     During   the   period   of<\/p>\n
pregnancy while the respondent was in Alappuzha, the petitioner<\/p>\n
and his parents had bestowed much   care and attention on her<\/p>\n
by   visiting   her   on   27.12.1991,   17.1.1992   and   26.2.1992.     On<\/p>\n
2.3.1992   also   when   the   child   was   born,   the   petitioner   and   his<\/p>\n
parents had visited the respondent and thereafter also on many<\/p>\n
occasions after the birth of the child.   The naming ceremony of<\/p>\n
the   child   was   attended   by   the   petitioner   and   his   parents   at<\/p>\n
Alappuzha and  the  child  was   named  as Gouri.     The  respondent<\/p>\n
showed   over-possessiveness   over   her   daughter.     She   showed<\/p>\n
MFA 78\/02                              5<\/span><\/p>\n
repugnance to any physical contact which the petitioner had with<\/p>\n
the   baby   girl.        The   respondent         displayed   insufferable<\/p>\n
temperament   and   unrelenting   anger   towards   the   petitioner   for<\/p>\n
no   reason.     She   informed   the   petitioner   on   the   date   of   the<\/p>\n
naming ceremony that their daughter would live in her parental<\/p>\n
home and that the petitioner should not make any claim over the<\/p>\n
child.     When   the   petitioner   showed   signs   of   reacting   to   the<\/p>\n
respondent’s statements, his parents tried to reason out with him<\/p>\n
saying that the respondent was behaving abnormally due to the<\/p>\n
fact of her pregnancy at a very early age and that the petitioner<\/p>\n
should   tolerate   her   behaviour   for   some   time.     The   petitioner<\/p>\n
could   not   understand   the   reason   for   the   over-possessiveness<\/p>\n
shown   by   the   respondent   towards   the   baby   child   because   she<\/p>\n
had told him that she was basically a career-oriented person and<\/p>\n
did   not   want   children.     The   respondent   showed   no   sign   of<\/p>\n
wanting to come and stay in the matrimonial home.  On 3.9.1992<\/p>\n
the respondent left for Alappuzha.  On 6.9.1992 the rice-feeding<\/p>\n
ceremony   of   the   baby   was   conducted   at   Chottanikkara   temple<\/p>\n
and the respondent had returned to the matrimonial home.  The<\/p>\n
MFA 78\/02                                6<\/span><\/p>\n
respondent   never   changed   her   attitude   towards   the   petitioner<\/p>\n
even   after   7   months   of   delivery.     The   respondent’s   attitude<\/p>\n
towards the petitioner was not like one towards a husband.  She<\/p>\n
never gave him affection or consideration.   She never attended<\/p>\n
to   any  work   in   the   family.     She   always   seemed  to   be   brooding<\/p>\n
over   imaginative   issues   and   even   started   picking   up   quarrels<\/p>\n
with   the   petitioner   for   no   reason.     The   petitioner   was   put   to<\/p>\n
considerable agony on account of the respondent’s words as well<\/p>\n
as behaviour.   On 25.10.1992 the respondent again went to her<\/p>\n
parental   house   along   with   the   daughter.     On   8.11.1992   she,<\/p>\n
along  with her daughter, was   brought back to  the matrimonial<\/p>\n
home by her father.  On 1.12.1992 he parents of the respondent<\/p>\n
had to come and console the petitioner who had suffered agony<\/p>\n
due to the unreasonable anger of the respondent.  On 17.1.1993<\/p>\n
the respondent insisted to go to her parental home to attend a<\/p>\n
marriage.    She was brought back  by  her parents on 25.1.1993.<\/p>\n
On 9.2.1993 she again went to her parental house to attend her<\/p>\n
father’s   60th  birthday   celebrations.   She   did   not   return   to   her<\/p>\n
matrimonial home.  The petitioner’s parents went over to her and<\/p>\n
MFA 78\/02                               7<\/span><\/p>\n
persuaded   her   to   come   back   to   Ernakulam   to   celebrate   the<\/p>\n
daughter’s   first   birthday   at   Ernakulam.     She   came   back   to   the<\/p>\n
matrimonial   home   on   11.2.1993   and   resided   there   with   the<\/p>\n
petitioner till 28.2.1993 on which day without giving any reason<\/p>\n
she   left   the   matrimonial   home   along   with   her   daughter.       The<\/p>\n
petitioner had not given his consent to the respondent to leave<\/p>\n
the matrimonial home.   It  was  without the  consent and  against<\/p>\n
the wish of the petitioner that the respondent left for  Alappuzha.<\/p>\n
There was no reasonable cause or any conduct on the part of the<\/p>\n
petitioner   so   as   to   induce   the   respondent   to   leave   her<\/p>\n
matrimonial home.   The petitioner and his parents attempted to<\/p>\n
persuade the respondent to come back to her matrimonial home.<\/p>\n
On 16.5.1993 and on 4.7.1993 even though the respondent was<\/p>\n
brought back to the matrimonial home   by her parents, she did<\/p>\n
not   reside   there   with   the   petitioner,   but   went   away   to   her<\/p>\n
parental   house   without   the   consent   of   the   petitioner.     Her<\/p>\n
parents   had   again   brought   her   to   the   matrimonial   home   on<\/p>\n
19.9.1993, but she left along with her parents on that day.  Again<\/p>\n
on 31.10.1993 the respondent’s parents brought her back to the<\/p>\n
MFA 78\/02                                8<\/span><\/p>\n
matrimonial home.   On both the above occasions she expressed<\/p>\n
her   unwillingness   to   reside   with   the   petitioner.     She   behaved<\/p>\n
very indifferently towards the petitioner and left the matrimonial<\/p>\n
home.    She   did   not   permit   the  petitioner  to   have   access   to   his<\/p>\n
daughter.   Her parents pleaded with the petitioner not to make<\/p>\n
an issue regarding the child until the respondent’s temperament<\/p>\n
became normal.  The respondent had taken her ornaments from<\/p>\n
the matrimonial home during the occasions when she had visited<\/p>\n
her   own   house   while   staying   in   the   matrimonial   home.     The<\/p>\n
respondent   refused   money   from   the   petitioner   for   the<\/p>\n
maintenance   of   her   daughter   stating   that   it   was   a   ruse   on   the<\/p>\n
part   of   the   petitioner   to   get   hold   of   his   daughter.     The<\/p>\n
respondent’s   parents   continued   to   entertain   the   respondent’s<\/p>\n
strange   attitude   stating   that   time   would   heal   her   unreasonable<\/p>\n
behaviour and pleaded with the petitioner not to react and upset<\/p>\n
their daughter.  On the advice of her parents and out of goodwill<\/p>\n
towards her family, the petitioner waited for the return of his wife<\/p>\n
to the matrimonial home till March, 1976.     When the parents of<\/p>\n
the   petitioner   enquired   with   the   respondent   as   to   whether   her<\/p>\n
MFA 78\/02                                9<\/span><\/p>\n
intention   was   to   divorce   their   son,   she   replied   that   she   would<\/p>\n
make   the   petitioner’s   life   miserable.     She,   however,   did   not<\/p>\n
reveal   any   reason   for   proclaiming   so.     Thereafter   during   the<\/p>\n
years   1996-99   well-wishers   of   the   family   unsuccessfully<\/p>\n
attempted   an   amicable   settlement.     The   respondent   did   not,<\/p>\n
however,   come   back   to   her   matrimonial   home   and   reside   with<\/p>\n
the   petitioner  after   28.2.1993.     The   respondent   abandoned   the<\/p>\n
petitioner   and   deprived   him   of   the   company   of   his   daughter<\/p>\n
without   any   reasonable   cause.     With   effect   from   28.2.1993   the<\/p>\n
respondent   deserted   the   petitioner.     She   left   the   matrimonial<\/p>\n
home on that day with the intention of bringing to an end her co-<\/p>\n
habitation   with   the   petitioner.     There   has   been   continuous<\/p>\n
separation of the respondent from the petitioner with effect from<\/p>\n
28.2.1993   causing   desertion.     During   this   long   period   of   more<\/p>\n
than   six   years,   the   respondent   had   never   enquired   about   the<\/p>\n
petitioner.     There   has   been   total   repudiation   of   her   marital<\/p>\n
obligations by the respondent.  All efforts made by the petitioner<\/p>\n
and his parents to provide for the daughter of the petitioner did<\/p>\n
not   succeed.     His   daughter   is   living   with   the   respondent’s<\/p>\n
MFA 78\/02                             10<\/span><\/p>\n
parents.   Till  recently the respondent was living  in her parental<\/p>\n
home.  Now it is understood that she has left the parental home<\/p>\n
so as to study for degree in law at Cochin University leaving the<\/p>\n
daughter with her parents.   The petitioner had not attempted to<\/p>\n
precipitate these issues with the respondent fearing that it would<\/p>\n
affect   their   daughter.     Moreover,   the   petitioner   thought   that<\/p>\n
being   a   tender  child,   she   would  require  the   care of   the   mother<\/p>\n
during her early years.   Since the child is presently deprived of<\/p>\n
her mother’s company also, the petitioner is desirous of gaining<\/p>\n
custody   of   the   child.     The   respondent’s   attitude   towards   the<\/p>\n
petitioner while in the matrimonial home had made the life of the<\/p>\n
petitioner   miserable.     Her   persistent   anger   and   aloofness   had<\/p>\n
inflicted   great   pain   and   misery   on   the   petitioner.     She   had<\/p>\n
caused   mental   cruelty   towards   the   petitioner   by   means   of<\/p>\n
constant ill-treatment.   While leaving the matrimonial home she<\/p>\n
had collected her remaining ornaments and saris thus indicating<\/p>\n
her   animus   deserendi.     The   respondent   had   thus   willfully<\/p>\n
terminated co-habitation with the petitioner without his consent<\/p>\n
and   against   his   will.       The   marriage   was   solemnized   at<\/p>\n
MFA 78\/02                              11<\/span><\/p>\n
Alappuzha.     The   petitioner   and   the   respondent   set   up   their<\/p>\n
matrimonial  home   at   Ernakulam  and   they   last  resided   together<\/p>\n
at   Ernakulam.     The   petitioner   is   residing   at   Ernakulam   and   the<\/p>\n
respondent is residing at Alappuzha.  The cause of action for the<\/p>\n
petition   arose   during   the   period   1991-93   when   the   respondent<\/p>\n
deserted   the   petitioner.   Hence   the   marriage   of   the   petitioner<\/p>\n
with the respondent may be dissolved on the ground of desertion<\/p>\n
and cruelty.\n<\/p>\n<\/p>\n
                    THE WIFE’S PLEADINGS IN REPLY<\/p>\n
      3.     The   respondent   wife,   namely   Suchitra,   filed   her<\/p>\n
objections contending inter alia as follows:-<\/p>\n
      The petition is not maintainable either on law or on facts.<\/p>\n
Except   to   the   extent   expressly   admitted   hereunder,   this<\/p>\n
respondent   denies  all   the  averments   in   the   petition.     The   date<\/p>\n
and   place   of   marriage   between   the   petitioner   and   this<\/p>\n
respondent are admitted.  After the marriage they were residing<\/p>\n
together as man and wife in the petitioner’s house at Ernakulam.<\/p>\n
MFA 78\/02                              12<\/span><\/p>\n
The petitioner’s allegation that this respondent did not show any<\/p>\n
love and affection towards the petitioner and his parents is not<\/p>\n
true.  This respondent was never angry towards the petitioner or<\/p>\n
his parents.  She loved the petitioner and respected his parents.<\/p>\n
There   was   no   occasion   for   this   respondent   to   become   angry<\/p>\n
towards the petitioner or his parents.   The petitioner’s parents,<\/p>\n
particularly   his   father,   had   daughterly   affection   towards   this<\/p>\n
respondent.     Even   now   she   loves   the   petitioner   and   holds   his<\/p>\n
parents in high esteem.   The averments in the petition that this<\/p>\n
respondent had told the petitioner that she disliked him and his<\/p>\n
parents   and   had   expressed   a   desire   to   leave   the   matrimonial<\/p>\n
home is absolutely false and hence denied.   To begin with, this<\/p>\n
respondent   had   a   happy   married   life   with   the   petitioner.     The<\/p>\n
petitioner’s father hails from a family of noble traditions and his<\/p>\n
parents   and   other   relatives   were   closely   known   to   this<\/p>\n
respondent’s   parents.     Therefore,   when   the   proposal   for   the<\/p>\n
marriage   came,   there   was   no   necessity   for   this   respondent’s<\/p>\n
parents   to   think   twice   about   the   marriage.     The   proposal   was<\/p>\n
immediately accepted and the marriage also took place within a<\/p>\n
MFA 78\/02                                 13<\/span><\/p>\n
month.     After   the   marriage   this   respondent   was   living     in   the<\/p>\n
marital home discharging all her marital obligations towards the<\/p>\n
petitioner   as   a   dutiful   wife.     The   parents   of   the   petitioner   and<\/p>\n
other   relatives   also   treated   this   respondent   with   love   and<\/p>\n
affection.   On 14.6.1991 there was a family get-together in this<\/p>\n
respondent’s   parental   home.     The   petitioner,   his   parents   and<\/p>\n
many of his close relatives participated in the said function.  This<\/p>\n
respondent’s   father   presented   a   valuable   jewel-studded   ring<\/p>\n
(Navaratna   Mothiram)   to   the   petitioner   on   that   occasion   as   a<\/p>\n
token   of   his   love   and   affection.     The   petitioner   along   with   his<\/p>\n
parents   and   this   respondent   went   to   Bangalore   on   19.6.1991.<\/p>\n
They returned to Ernakulam on 24.6.1991.   The petitioner who<\/p>\n
was an M.B.A., got a job in the Birla Tyres and the entire family<\/p>\n
was   happy   over   this   assignment.     Thereafter,   on   1.7.1991,<\/p>\n
6.7.1991   and   7.7.1991   this   respondent   and   the   petitioner   had<\/p>\n
resided together at Alappuzha at this respondent’s house.  It was<\/p>\n
not   on   her   own   accord   that   this   respondent   had   gone   to<\/p>\n
Alappuzha on   24.7.1991.     The petitioner’s  father’s  birthday   fell<\/p>\n
on that day and it was for celebrating the same that the entire<\/p>\n
MFA 78\/02                              14<\/span><\/p>\n
family went to Chavara in the evening of 23.7.1991.    After the<\/p>\n
birthday celebration, this respondent had felt exhausted and she<\/p>\n
had stayed back at Alappuzha as advised by the petitioner.  On<\/p>\n
25.7.1991   this   respondent   was   taken   to   a   lady   doctor   for<\/p>\n
medical examination and she was reported to be pregnant.  This<\/p>\n
news   was   conveyed   to   the   petitioner.     Hearing   the   said   news,<\/p>\n
the   petitioner   and   his   parents   came   down   to   Alappuzha   on<\/p>\n
26.7.1991.     On  that   day   the  petitioner   and   his  parents   did   not<\/p>\n
ask   this   respondent   to   return   to   Ernakulam   because   the   90th<\/p>\n
birthday   of   this   respondent’s   paternal   grandmother   was   on<\/p>\n
1.8.1991  and  this respondent wanted  to participate  in  the  said<\/p>\n
function   along   with   the   other   members   of   her   family.     Since<\/p>\n
Fridays   and   Saturdays   were   not   astrologically   auspicious   days<\/p>\n
for   a   pregnant   woman   to   return   to   her   matrimonial   home   this<\/p>\n
respondent   was   taken   to   her   marital   home   on   Sunday   i.e.<\/p>\n
4.8.1991  by  her  father and  sister.    The  petitioner had  come  to<\/p>\n
Ernakulam   South   Railway   Station   to   take   them   to   his   house.<\/p>\n
These   facts   have   been   deliberately   suppressed   in   the   petition.<\/p>\n
The   petitioner   and   this   respondent   were   residing   happily   at<\/p>\n
MFA 78\/02                              15<\/span><\/p>\n
Ernakulam.     This   respondent   did   not   show   any   indifference<\/p>\n
towards   the   petitioner   as   alleged   nor   had   she   insisted   on<\/p>\n
returning to Alappuzha.   This respondent’s 23rd  birthday was on<\/p>\n
2.9.1991   and   for   that   purpose   she   was   taken   to   Alappuzha   by<\/p>\n
the petitioner on 30.8.1991.  The petitioner did not come for the<\/p>\n
birthday   and   this   was   not   deliberate.   His   parents,   however,<\/p>\n
came to Alappuzha and gave birthday presents and had greeted<\/p>\n
this respondent on that occasion.   On 20.9.1991 tis respondent<\/p>\n
was taken to Ernakulam  by her parents-in-law.  It is true that on<\/p>\n
2.10.1991   this   respondent   had   gone   back   to   Alappuzha   along<\/p>\n
with   her   parents-in-law.     This   respondent’s   father-in-law   is   a<\/p>\n
native of Chavara and he used to go there frequently to meet his<\/p>\n
aged   parents.     Therefore,   on   2.10.1991   when   they   went   to<\/p>\n
Chavara, they wanted this respondent also to accompany them.<\/p>\n
When   they   returned   on   3.10.1991,   this   respondent   also   went<\/p>\n
back  to  Ernakulam  along  with   them.    It  is  false  to   state   that it<\/p>\n
was   this   respondent’s   parents   who   took   her   to   Ernakulam   on<\/p>\n
3.10.1991.     On   5.11.1991   i.e.   on   the   Deepavali   day,   this<\/p>\n
respondent’s parents had come over to Ernakulam with various<\/p>\n
MFA 78\/02                                 16<\/span><\/p>\n
items of sweets to this respondent as she was pregnant at that<\/p>\n
time.  This was done in accordance with the custom prevalent in<\/p>\n
the community.  This respondent was informed that her husband<\/p>\n
was   leaving   for   Madras   on   the   next   day   and,   therefore,   if   she<\/p>\n
wanted, she could also go to Alappuzha along with her parents.<\/p>\n
This respondent also wanted to attend her friend’s marriage at<\/p>\n
Alappuzha   on   8.11.1991.     Therefore,   as   permitted   by   the<\/p>\n
petitioner and his parents, on 5.11.1991 this respondent went to<\/p>\n
Alappuzha   with   her   parents.     It   is   not   correct   to   say   that   the<\/p>\n
petitioner’s   parents   had   come   to   Alappuzha   to   persuade   this<\/p>\n
respondent   to   return   to   Ernakulam   and   resume   co-habitation.<\/p>\n
Though   the   petitioner’s   parents   had   come   to   Alappuzha   on<\/p>\n
19.11.1991,   they   advised   this   respondent   to   stay   back   as<\/p>\n
Tuesday   was   not   considered   auspicious   to   undertake   a   travel.<\/p>\n
So   this   respondent   was   taken   to   Ernakulam   by   her   parents   on<\/p>\n
24.11.1991.    On 12.12.1991  this  respondent was brought back<\/p>\n
to   her   parental   home   for   confinement   in   accordance   with   the<\/p>\n
customary rites.   There was no abnormality in the behaviour of<\/p>\n
this   respondent   either   towards   the   petitioner   or   towards   his<\/p>\n
MFA 78\/02                                17<\/span><\/p>\n
parents.  She was sociable and mingled with all the members of<\/p>\n
the family.  Although she was fresh from the college, she looked<\/p>\n
after   the   household   affairs   and   helped   her   mother-in-law   in<\/p>\n
cooking food and managing the house.  She never kept aloof as<\/p>\n
stated   in   the   petition.     This   respondent’s   parents   are   cultured<\/p>\n
and they had brought up all their children in an ideal way.  While<\/p>\n
she was a student, this respondent had actively participated in<\/p>\n
all   the   cultural,   social   and   educational   activities   in   the   school<\/p>\n
and also in the college.   The averment that this respondent did<\/p>\n
not like the petitioner talking to his parents etc. is only a figment<\/p>\n
of   his   imagination.   This   respondent   knows   the   elementary<\/p>\n
principles   of   family   life   and   how   to   behave   towards   family<\/p>\n
members.     There   was   no   occasion   for   the   petitioner   to   advice<\/p>\n
this   respondent   as   to   how   she   should   behave   towards   his<\/p>\n
parents.  Although her mother-in-law had quite often found fault<\/p>\n
with this respondent even on silly matters and used to chastise<\/p>\n
her, she respected her and did not react to her comments.  The<\/p>\n
only   person   who   had   real   affection,   love   and   regard   for   this<\/p>\n
respondent   was   her   father-in-law.     He   is   an   engineer   and   had<\/p>\n
MFA 78\/02                                18<\/span><\/p>\n
worked as the head of a premier institution in Kerala for several<\/p>\n
decades.     It   is   too   much   to   say   that   this   respondent   had<\/p>\n
entertained   a   hostile   animus   towards   such   a   venerable<\/p>\n
gentleman.     It   is   true   that   the   parents   of   the   petitioner   had<\/p>\n
called   on   this   respondent   on   27.12.1991,   17.1.1992   and<\/p>\n
26.2.1992   on   their   way   to   Chavara.     But   the   petitioner<\/p>\n
deliberately   avoided   paying   any   visit   on   her   after   she   had   left<\/p>\n
the matrimonial home for confinement.  After the child was born<\/p>\n
he came on 2.3.1992 and on 7.3.1992 with some of his friends.<\/p>\n
He   had   attended   the   naming   ceremony   of   the   child.     But   it   is<\/p>\n
false   to   state   that   there   was   an   altercation   between   them<\/p>\n
regarding  the custody of the child  on that day.   After the child<\/p>\n
was   born   there   was   visible   change   in   the   attitude   of   the<\/p>\n
petitioner and his mother towards this respondent.  Although the<\/p>\n
petitioner’s parents made occasional visits to Alappuzha, neither<\/p>\n
the   petitioner   nor   his   mother   wanted   to   take   back   this<\/p>\n
respondent   and   the   new-born   baby   to   the   matrimonial   home.<\/p>\n
Though   this   respondent   had   made   repeated   requests   to   the<\/p>\n
petitioner   and   his   mother   to   take   her   back   to   the   matrimonial<\/p>\n
MFA 78\/02                                19<\/span><\/p>\n
home, they did not pay any heed to the same.  The rice-feeding<\/p>\n
ceremony   of   the   child   was   performed   at   Chottanikkara   temple<\/p>\n
on   6.9.1992.     The   petitioner   and   his   parents   were   informed   of<\/p>\n
the   said   ceremony   in   advance.     This   respondent   had   on<\/p>\n
31.8.1992 written a letter also to the petitioner reminding him of<\/p>\n
the   importance   of   the   function   and   requesting   his   personal<\/p>\n
presence   on   the   occasion.     This   respondent’s   father   had<\/p>\n
extended   a   personal   invitation   to   the   petitioner   when   he   met<\/p>\n
him   at   his   office   on   2.9.1992.     Though   the   petitioner   was<\/p>\n
physically   present   at   his   house   on   that   day,   he   deliberately<\/p>\n
refused  to   come  and   bless   the  child   on   that  occasion.    But  his<\/p>\n
parents had come and  attended the function.   This respondent<\/p>\n
genuinely   believes     that   the   petitioner   did   not   attend   the<\/p>\n
function  as  he might  have been prevented  by  his  mother  from<\/p>\n
participating   in   the   function.     She   disallowed   any   type   of<\/p>\n
association of the petitioner with the child.  From the conduct of<\/p>\n
the   petitioner   and   his   mother   it   was   evident   that   they   had   no<\/p>\n
intention to take back this respondent to her matrimonial home<\/p>\n
even   in   the   distant   future.     Therefore,   on   22.9.1992   this<\/p>\n
MFA 78\/02                               20<\/span><\/p>\n
respondent’s brother, who is an engineer by profession, went to<\/p>\n
Ernakulam and met the petitioner and his father and requested<\/p>\n
them to facilitate the return of this respondent and her daughter<\/p>\n
to   her  husband’s  house.    Since  his  attempt   did  not   fructify,   on<\/p>\n
28.9.1992   this   respondent   along   with   her   parents   and   brother<\/p>\n
went   to   the   petitioner’s   residence   at   Ernakulam.     But   the<\/p>\n
petitioner   did   not   permit   this  respondent  to   stay   with  him.     As<\/p>\n
there   was   torrential   rain   attended   by   thunder   and   lightning   on<\/p>\n
that day, this respondent requested the petitioner to permit her<\/p>\n
at-least to spend the night in his house along with the child.  He,<\/p>\n
however, turned a deaf ear to her request and she was forced to<\/p>\n
leave   the   house   and   go   back   to   Alappuzha   along   with   her<\/p>\n
parents.     She   was   thus   virtually   turned   out   of   the   petitioner’s<\/p>\n
house at 9.30 p.m. in the night.  As there was heavy rain on the<\/p>\n
way, she could reach home only by 12 midnight.   The inhuman<\/p>\n
conduct   on   the   part   of   the   petitioner   had   caused   excruciating<\/p>\n
mental   pain   to   this   respondent.     This   respondent,   however,<\/p>\n
admits that for a short period from 8.11.1992 till 28.2.1993 this<\/p>\n
respondent   and   her   daughter   were   permitted   to   reside   in   the<\/p>\n
MFA 78\/02                                 21<\/span><\/p>\n
petitioner’s   house   at   Ernakulam.     However,   that   was   the   worst<\/p>\n
period in the entire married life of this respondent.   During this<\/p>\n
period   the   petitioner’s   mother   did   not   allow   any   sort   of<\/p>\n
association   of   this   respondent   and   her   daughter   with   the<\/p>\n
petitioner.  This respondent was given a room in the ground floor<\/p>\n
to   sleep   with   her   daughter   and   her   mother-in-law   was   also<\/p>\n
sleeping   in the same room.   This respondent was asked by her<\/p>\n
mother-in-law that she should not go to the petitioner’s room on<\/p>\n
the first floor or talk to him.  Every night the mother-in-law kept<\/p>\n
a constant vigil on this respondent to make sure that she did not<\/p>\n
slip   out   of   the   room   and   meet   her   husband   on   the   first   floor.<\/p>\n
This respondent submits that she was confined to that room in<\/p>\n
the   ground   floor   and   on   account   of   that   she   suffered   severe<\/p>\n
mental pain and agony.   On 16.1.1993 this respondent and her<\/p>\n
child   were   taken   to   Alappuzha   by   her   parents-in-law   as   this<\/p>\n
respondent   wanted   to   attend   the   marriage   of   her   mother’s<\/p>\n
sister’s   daughter   at   Thiruvananthapuram   on   18.1.1993.     After<\/p>\n
the marriage this respondent went back to her husband’s house<\/p>\n
on   25.1.1993   and   she   stayed   there   till   9.2.1993   on   which   day<\/p>\n
MFA 78\/02                               22<\/span><\/p>\n
she came to Alappuzha along with the petitioner and his parents<\/p>\n
to attend the birthday celebrations of her father.   Thereafter on<\/p>\n
11.2.1993   this   respondent   returned   to   Ernakulam   after<\/p>\n
attending   her   husband’s   grandfather’s   birthday   celebrations   at<\/p>\n
Chavara.  She had returned to her matrimonial home voluntarily<\/p>\n
and   not   on   the   basis   of   any   persuasion   of   her   parents-in-law.<\/p>\n
The first birthday of this respondent’s daughter was celebrated<\/p>\n
at Ernakulam on 19.2.1993.   Thereafter this respondent lived in<\/p>\n
her matrimonial home only till 28.2.1993 on which day she was<\/p>\n
taken   back   to   her   house   at   Alappuzha   by   the   parents   of   the<\/p>\n
petitioner.        The   petitioner   and   his   mother   wanted   this<\/p>\n
respondent to leave the matrimonial home and accordingly she<\/p>\n
was   forced   to   go   to   her   parental   home   much   against   her   will.<\/p>\n
Thereafter   several   attempts   were   made   by   this   respondent   to<\/p>\n
return to the matrimonial home and resume co-habitation.   But<\/p>\n
her   attempts   did   not   succeed   on   account   of   the   intransigent<\/p>\n
attitude   of   the   petitioner   and   his   mother.     On   21.3.1999   this<\/p>\n
respondent   again   went   to   the   petitioner’s   house   with   the   child<\/p>\n
with the intention to stay there permanently.   After leaving this<\/p>\n
MFA 78\/02                              23<\/span><\/p>\n
respondent and the child in the house, her parents went to the<\/p>\n
residence of Mr. M.N.Sukumaran Nair, a senior advocate of the<\/p>\n
High   Court   and   a   close   associate   and   well-wisher     of   the<\/p>\n
respondent’s   family.     As   desired   by   his   mother,   the   petitioner<\/p>\n
telephoned   Mr.M.N.Sukumaran   Nair   and   contacted   the<\/p>\n
respondent’s father over the phone.   The petitioner wanted him<\/p>\n
to   go   to   his   residence   immediately   and   take   back   the<\/p>\n
respondent   and   the   child   from   his   house.     This   respondent’s<\/p>\n
parents   immediately   came   there.     In   their   presence   this<\/p>\n
respondent   and   the   child   were   literally   necked   out   of   the<\/p>\n
matrimonial home by the petitioner in front of his parents.  This<\/p>\n
caused   severe   mental   pain,   agony   and   distress   to   this<\/p>\n
respondent.  However, she suffered  the ill-treatment meted out<\/p>\n
to her by the petitioner and his mother in the fervent hope that<\/p>\n
time   would   change  their   attitude   towards   this   respondent.    On<\/p>\n
16.5.1993  the  petitioner’s father came  alone to  Alappuzha  and<\/p>\n
took this respondent and the child to North Parur to attend the<\/p>\n
marriage of this respondent’s mother-in-law’s   sister’s daughter<\/p>\n
scheduled   to   be   held   on   the   17th.     After   the   marriage   this<\/p>\n
MFA 78\/02                               24<\/span><\/p>\n
respondent   and   the   child   were   taken   to   Ernakulam   by   the<\/p>\n
petitioner and his parents.   In the evening news came that the<\/p>\n
petitioner’s   father’s   uncle   Narayana   Pillai   had   passed   away   at<\/p>\n
Thiruvananthapuram.  The petitioner’s parents wanted to attend<\/p>\n
the   funeral   and   they   were   getting   ready   to   leave   for<\/p>\n
Thiruvananthapuram   on   the   next   day.                  Thereupon   this<\/p>\n
respondent virtually  cringed with the petitioner and his mother<\/p>\n
to   permit   her   and   her   child   to   live   in   the   matrimonial   home<\/p>\n
atleast   for   some   days.     The   petitioner   and   his   mother   were<\/p>\n
adamant and they informed this respondent that she would not<\/p>\n
be   permitted   to   live   in   their   house.     The   petitioner   had   even<\/p>\n
threatened this respondent with physical injury if she refused to<\/p>\n
leave   the   matrimonial   home   the   very   next   day   along   with   his<\/p>\n
parents.  In the presence of his parents  he uttered that in case<\/p>\n
she   stayed   back,   he   would   slap   her   face   and   make   it   out   of<\/p>\n
shape.  The exact words spoken  by him was the following:-<\/p>\n
             ”\n<\/p><\/blockquote>\n
<\/blockquote>\n
             shape        ”\n<\/p><\/blockquote>\n
\n
Thus,   the   attempt   made   by   this   respondent   to   resume   co-<\/p>\n<\/blockquote>\n
habitation failed and she had to return to Alappuzha along with<\/p>\n
MFA 78\/02                               25<\/span><\/p>\n
the petitioner’s parents on 18.5.1993.  However, this respondent<\/p>\n
sent a letter to her mother-in-law owning the entire responsibility<\/p>\n
for   the   incident   which   took   place   on   17.5.1993   and   requesting<\/p>\n
them   to   permit   her   to   return   to   the   matrimonial   home.     This<\/p>\n
respondent   had   passed   M.A.   Degree   in   1991   just   before   her<\/p>\n
marriage.   She was desirous of gong for further studies.   It was<\/p>\n
because   of   her   marriage   that   she   dropped   the   idea   of   further<\/p>\n
studies in the hope that she could become a good housewife.  As<\/p>\n
the   married   life   was  not   successful  as  originally     not   expected,<\/p>\n
this respondent wanted to resume her studies.   Accordingly, on<\/p>\n
6.10.1994 she got herself admitted to the Journalism Course   at<\/p>\n
the   Press   Academy,   Kakkanad,   Ernakulam,     She   passed   the<\/p>\n
course   on   8.1.1996   in   First   Class   securing   third   rank   in   the<\/p>\n
examination.  During   the   entire  period   of  her  study  in   the  Press<\/p>\n
Academy,   she   was   staying   in   the   ladies’   hostel   as   she   was<\/p>\n
absolutely   sure   that   the   petitioner   and   his   mother   would   not<\/p>\n
permit her to live permanently at their residence.   Her parents-<\/p>\n
in-law visited her only once while she was in the hostel.   But she<\/p>\n
used   to   visit   them   occasionally   to   pay   her   respect   and   regards<\/p>\n
MFA 78\/02                                 26<\/span><\/p>\n
for   them.    By   the  end   of   1995,   as   part   of   th   Journalism  Course<\/p>\n
this respondent had to undergo a day’s training at the Malayala<\/p>\n
Manorama Office at Panampilly Nagar which is situated close to<\/p>\n
the petitioner’s house.   On that day this respondent went to her<\/p>\n
matrimonial home  and  took  food  along   with her parents-in-law.<\/p>\n
Part   of   the   training   was   at   night   and,   therefore,   after   the   work<\/p>\n
this respondent thought that her mother-in-law would permit her<\/p>\n
to   sleep   in   the   matrimonial   home   during   the   night.     But   her<\/p>\n
mother-in-law did not allow this respondent to sleep there and so<\/p>\n
this   respondent   had   to   go   and   spend   the   night   at   her   friend’s<\/p>\n
house.   There   were   many   such   incidents   of   cruel   treatment<\/p>\n
extended   by   the  petitioner and   his  mother    to   this   respondent.<\/p>\n
In   spite   of   that   this   respondent   bears   no   ill-will   towards   the<\/p>\n
petitioner   or   his   mother.     This   respondent   has   only   love   and<\/p>\n
affection for the entire family.  This respondent has always been<\/p>\n
and still  is ready and  willing to return to her matrimonial home<\/p>\n
and   resume   co-habitation   with   the   petitioner   and   discharge   all<\/p>\n
her marital obligations.  This respondent is not guilty of cruelty or<\/p>\n
desertion   as   stated   in   the   petition.     She   has   not   left   the<\/p>\n
MFA 78\/02                              27<\/span><\/p>\n
matrimonial   home   on   28.2.1993   with   the   intention   of   bringing<\/p>\n
the   co-habitation   to   an   end   permanently   as   alleged   by   the<\/p>\n
petitioner.  She has not entertained any animus deserendi when<\/p>\n
the   petitioner’s   parents   took   this   respondent   to   her   house   on<\/p>\n
28.2.1993   on   their   way   to   Chavara.     The   conduct   of   this<\/p>\n
respondent subsequent to 28.2.1993 will reveal that she had no<\/p>\n
intention to terminate the marital relationship with the petitioner.<\/p>\n
The   parents   of   the   petitioner   also   did   not   persuade   this<\/p>\n
respondent to return to her matrimonial home as alleged in the<\/p>\n
petition.   This was because they were aware that the petitioner<\/p>\n
would not permit this respondent to live in his house.  Therefore,<\/p>\n
the attempt made by the petitioner and his parents to re-install<\/p>\n
this respondent in her matrimonial home is only a cock and bull<\/p>\n
story.  On 16.5.1993 this respondent was taken to North Parur by<\/p>\n
her father-in-law for the marriage of the petitioner’s cousin.  But<\/p>\n
on the next day she was driven out of her matrimonial home by<\/p>\n
the   petitioner.     On   4.7.1993   this   respondent,   her   sister   and<\/p>\n
father   went   to   the   petitioner’s   residence.     But   on   seeing   this<\/p>\n
respondent the petitioner left his house immediately in his car.  It<\/p>\n
MFA 78\/02                              28<\/span><\/p>\n
is not correct to say that this respondent’s parents had brought<\/p>\n
her to the matrimonial home on 19.9.1993.  On that day neither<\/p>\n
this   respondent   nor   her   parents   had   gone   to   the   petitioner’s<\/p>\n
house.         On   the   contrary,   on   19.9.1993   the   petitioner’s<\/p>\n
grandparents, Govinda Kurup alias Chellappa Kurup and his wife<\/p>\n
came to   this respondent’s house  in  the morning  along  with  the<\/p>\n
petitioner’s father on their way to Ernakulam from Chavara.  The<\/p>\n
petitioner’s   grandfather   had   gone   to   Ernakulam   on   that   day   in<\/p>\n
connection   with   an   eye-operation   and   this   respondent   did   not<\/p>\n
accompany   them   on   that   day.     The   parents   of   this   respondent<\/p>\n
took the petitioner’s daughter to Sahrudaya Hospital, Alappuzha<\/p>\n
for triple injunction.  The Hospital records would reveal the falsity<\/p>\n
of   the   claim   made   by   the   petitioner.     On   1.10.1993   also   this<\/p>\n
respondent did not go to the petitioner’s residence.  On that day<\/p>\n
the petitioner’s mother had sent some dresses to the petitioner’s<\/p>\n
daughter  through Mrs. Vidyavathi who is a retired teacher and a<\/p>\n
close neighbour of this respondent.  The averment in the petition<\/p>\n
that this respondent was indifferent towards the petitioner   and<\/p>\n
had treated him with cruelty is palpably false.   It is also not true<\/p>\n
MFA 78\/02                              29<\/span><\/p>\n
to   say   that   this   respondent     had   prevented   the   petitioner   from<\/p>\n
having any access to  the  child.      In  fact, it   was  the petitioner’s<\/p>\n
mother who was not permitting   him to have any access to the<\/p>\n
child.   Whenever she saw the petitioner carrying    his daughter,<\/p>\n
she   would   immediately   snatch   the   girl   from   his   hands   and   go<\/p>\n
away.   The allegation that this respondent had collected all her<\/p>\n
ornaments from the petitioner’s house while she was leaving  the<\/p>\n
matrimonial home is utterly false.   The petitioner’s father who is<\/p>\n
honest   and   a   man   of   integrity   had   assured   this   respondent’s<\/p>\n
father that he would either return the  entire gold  ornaments or<\/p>\n
pay   to   this   respondent   Rs.2   lakhs   as   the   value   of   the   gold<\/p>\n
ornaments.  This respondent did not initiate any proceedings for<\/p>\n
recovery of ornaments or for the enforcement of her other  legal<\/p>\n
rights only because she thought that any such unilateral on her<\/p>\n
part would only further estrange the marital relationship between<\/p>\n
the   parties.     The   case   of   the   petitioner   that   this   respondent<\/p>\n
refused to accept money from the petitioner for the maintenance<\/p>\n
of his daughter is devoid of any truth.  The petitioner’s father had<\/p>\n
on   two   or   three   occasions   offered   money   to   this   respondent<\/p>\n
MFA 78\/02                                 30<\/span><\/p>\n
which she had gladly accepted.   The case of the petitioner that<\/p>\n
he waited till March 1996 for the return of this respondent to her<\/p>\n
matrimonial   home   as   requested   by   her   parents   is   not   true.<\/p>\n
Similarly, she had never declared that she would make the life of<\/p>\n
the petitioner miserable.  It is true that on two occasions certain<\/p>\n
well-wishers of the family attempted to effect a re-union between<\/p>\n
the   parties.     But   their   attempts   did   not   fructify   due   to   the<\/p>\n
uncompromising attitude of the petitioner.  It is not true that this<\/p>\n
respondent did not go to the matrimonial home after 28.2.1993<\/p>\n
for   resumption   of   co-habitation   with   the   petitioner.     She   had<\/p>\n
made innumerable attempts to do so, but on all those occasions<\/p>\n
she   was   prevented   by   the   petitioner   and   his   mother   from<\/p>\n
resuming co-habitation.  She did not leave the matrimonial home<\/p>\n
on   28.2.1993   on   her   own   accord.     It   is   false   to   say   that   from<\/p>\n
February   1993   till   the   date   of   presentation   of   this   petition   i.e.<\/p>\n
2.6.1999   there   had   been   total   repudiation   of   the   marital<\/p>\n
obligations   by   this   respondent.     At   the   trial   of   this   case   this<\/p>\n
respondent   will   be   able   to   prove   by   oral   and   documentary<\/p>\n
evidence  that  this respondent  did   not  desert  the petitioner and<\/p>\n
MFA 78\/02                                31<\/span><\/p>\n
that it was the petitioner who was guilty of constructive desertion<\/p>\n
and   cruelty.       Until   16.10.1996   this   respondent   had   been<\/p>\n
frequently visiting the petitioner and his parents.  On 16.10.1996<\/p>\n
this   respondent   had   gone   to   her   matrimonial   home   and   had<\/p>\n
lodged  with her parents in law.  On 18.12.1996 at the behest of<\/p>\n
the   petitioner   an   advocate   who   later   acted   as   a   mediator<\/p>\n
telephoned   this   respondent’s   father   and   informed   him   that   the<\/p>\n
petitioner   wanted   dissolution   of   the   marriage.     Since   the<\/p>\n
petitioner had taken such a decision, as advised by her parents<\/p>\n
this   respondent   did   not   go   to   her   matrimonial   home   after<\/p>\n
18.12.1996.     This   respondent   is   at   present   studying   for   Law   in<\/p>\n
the Cochin University.   This respondent’s father is a lawyer and,<\/p>\n
therefore, she has got all facilities to set up practice as a lawyer<\/p>\n
along with her father.   This petition is devoid of any bona fides.<\/p>\n
The   brain   behind   the   filing   of   this   petition   is   the   petitioner’s<\/p>\n
mother.     The   petitioner   is   guilty   of   constructive   desertion   and<\/p>\n
cruelty.    This respondent is not guilty of any of the matrimonial<\/p>\n
offences   alleged   against   her.     The   O.P.   may,   therefore,   be<\/p>\n
dismissed with costs to the respondent.\n<\/p>\n
\nMFA 78\/02                                32<\/span><\/p>\n
                                  THE TRIAL<\/p>\n
      4.     On   the   side   of   the   petitioner\/husband   five   witnesses<\/p>\n
were examined as PWs.1 to 5 and one document was  marked as<\/p>\n
Ext.A1.   On the side of the respondent\/wife two witnesses were<\/p>\n
examined   as   RWs.1   and   2   and   no   documentary   evidence   was<\/p>\n
adduced.\n<\/p>\n<\/p>\n
      5.     The   Family   Court,   as   per   order   dt.   24.11.2001,<\/p>\n
disallowed   divorce   on   the   ground   of   desertion,   but   granted   a<\/p>\n
decree for divorce on the ground of cruelty.  It is the said decree<\/p>\n
which is assailed in this appeal by the wife. During the course of<\/p>\n
arguments   the   learned   counsel   for   the   respondent\/husband<\/p>\n
submitted   that   he   is   entitled   to   canvas   the   correctness   of   the<\/p>\n
findings of the Family Court disallowing divorce on the ground of<\/p>\n
desertion.\n<\/p>\n<\/p>\n
      6.   The points which arise for determination in this appeal<\/p>\n
are the following:-\n<\/p>\n<\/p>\n
              A) Whether the impugned order passed by the Family<\/p>\n
              Court granting a decree of divorce to the husband on<\/p>\n
              the ground of cruelty by the wife is sustainable or not?<\/p>\n
              B)  Whether in the appeal filed by the wife challenging<\/p>\n
              the   decree   of   divorce   on   the   ground   of   cruelty,   the<\/p>\n
MFA 78\/02                               33<\/span><\/p>\n
             husband   can   canvass   the   correctness   of   the   finding<\/p>\n
             recorded by the Family Court disallowing a decree of<\/p>\n
             divorce on the ground of desertion?\n<\/p><\/blockquote>\n
\n             C)  If the husband is entitled to canvas the correctness<\/p>\n
             of   the   finding   regarding   desertion,   whether   the<\/p>\n
             respondent\/husband   has   proved   desertion   for   the<\/p>\n
             purpose of obtaining a decree of divorce?<\/p>\n
             D) Whether the  second marriage allegedly contracted<\/p>\n
             by   the   husband   within   two   days   of   the   impugned<\/p>\n
             decree   stands   in   the   way   of   a   consideration   of   this<\/p>\n
             appeal on the merits ?\n<\/p><\/blockquote>\n
\n             E)   To what reliefs and costs are the parties entitled ?<\/p>\n<\/blockquote>\n
Point No.B.\n<\/p>\n<\/p>\n
      7.   Adv. Smt. Elizabeth Mathai Idicula, the learned counsel<\/p>\n
appearing for the appellant\/wife raised a preliminary objection to<\/p>\n
the   effect   that   the   respondent   is   not   entitled   to   question   the<\/p>\n
impugned order so far as it relates to desertion since no decree<\/p>\n
for   divorce   was   granted   to   the   husband   on   the   ground   of<\/p>\n
desertion.  According to the learned counsel, the refusal to grant<\/p>\n
a   decree   for   divorce   on   the   ground   of   desertion   is   a   decree<\/p>\n
against   the   appellant\/husband   who   is   not   entitled   to   challenge<\/p>\n
the finding regarding desertion without filing a memorandum of<\/p>\n
cross-objection   in   view   of   Order   41   Rule   22   C.P.C.     Elaborating<\/p>\n
MFA 78\/02                                34<\/span><\/p>\n
the   said   point   the   learned   counsel   argued   that   the<\/p>\n
respondent\/husband   is   not   entitled   to   challenge   the   decree<\/p>\n
disallowing   divorce   on   the   ground   of   desertion   as   he   has   not<\/p>\n
preferred either a memorandum of cross-objection or a separate<\/p>\n
appeal against that part of the decree and the decree which has<\/p>\n
been granted by the Family Court is only one for divorce on the<\/p>\n
ground of cruelty alone.  The counsel for the appellant\/wife relied<\/p>\n
on   the   decisions   reported   in  Choudhary   Sahu   v.   State   of<\/p>\n
Bihar   –  1982(1)   SCC   232   and   Leena   Mathew   v.   Kerala<\/p>\n
Shipping Corporation<\/a> – 1988(1) KLT 212.\n<\/p>\n<\/p>\n
      8.   We are not inclined to sustain the preliminary objection<\/p>\n
raised   by   the   appellant\/wife   to   the   effect   that   the<\/p>\n
respondent\/husband   cannot   assail   the   finding   with   regard   to<\/p>\n
desertion. Whichever may be the grounds of divorce, the decree<\/p>\n
that is passed     is only one decree, whether it be on the ground<\/p>\n
of cruelty, desertion or any of the other grounds.  It is analogous<\/p>\n
to a claim  for eviction on various grounds available to a landlord.<\/p>\n
If the landlord seeks eviction on three grounds and a decree for<\/p>\n
eviction   is   granted   only   on   one   ground,   it   cannot   be   said   that<\/p>\n
MFA 78\/02                                   35<\/span><\/p>\n
there is no decree for eviction.   May be, the decree for eviction is<\/p>\n
granted on one ground only.  Hence, with regard to the other two<\/p>\n
grounds   on which no eviction is granted, the landlord can   in a<\/p>\n
tenant’s appeal not only support the decree but also   assail the<\/p>\n
findings disallowing eviction on the remaining  two grounds even<\/p>\n
without   a   cross-objection.     The   scope   of   order     41   R.   22   C.P.C.<\/p>\n
both before the   1976 amendment   of the C.P.C.     and after the<\/p>\n
said   amendment     has   been   considered   by   the   Apex   Court   in<\/p>\n
Raveendar   Kumar   Sharma     v.   State   of   Assam   –   1999  (7)<\/p>\n
SCC   435.     It   was   inat   alia   observed   that   before   the   1976<\/p>\n
amendment   it   was   open   to   the   respondent\/defendant   who   had<\/p>\n
not   taken   any   cross-objection   to   the   partial   decree   passed<\/p>\n
against him, to urge,  in  opposition to the appeal of the plaintiff,<\/p>\n
a   contention   which   if   accepted   by   the   trial   court   would   have<\/p>\n
resulted   in   the   total   dismissal   of   the   suit.     It   has   further     been<\/p>\n
held that the filing of cross-objection after the 1976 amendment<\/p>\n
is purely optional   and not mandatory.   Such being the position,<\/p>\n
the preliminary objection with regard to the husband’s contention<\/p>\n
that   he   is   entitled   to     canvass   the   correctness   of   the   finding<\/p>\n
MFA 78\/02                               36<\/span><\/p>\n
recorded by the  Family Court disallowing a decree of divorce on<\/p>\n
the ground of desertion even without a cross-objection  is without<\/p>\n
any force and is accordingly overruled.   This point is accordingly<\/p>\n
answered   against   the   respondent   wife   and   in   favour   of   the<\/p>\n
appellant\/husband.\n<\/p>\n
\nPOINT NO. A  –  CRUELTY- Husband’s arguments in appeal<\/p>\n
      9.     Adv.   Sri.     P.   Radhakrishnan,   the   learned   counsel<\/p>\n
appearing   for   the   respondent\/husband   made   the   following<\/p>\n
submissions   before   us   in   support   of   the   husband’s     claim     or<\/p>\n
divorce on the ground of cruelty:-\n<\/p>\n<\/p>\n
      The pleadings in support of the husband’s claim are to  be<\/p>\n
found from paragraph 2 onwards of the original petition.   It has<\/p>\n
been   definitely   alleged   that   the   wife   was   behaving       very<\/p>\n
strangely   towards   her   husband   and   his   parents   and     she<\/p>\n
exhibited   anger   and     annoyance   towards   them.     Again   in<\/p>\n
paragraph   3   of   the   O.P.   it   has   been   alleged   that   the   wife<\/p>\n
continued   exhibiting   cold   behaviour   and   told   her   husband   that<\/p>\n
she   had   dislike   for   him   and   his   parents.     She   had   altogether<\/p>\n
made 11 visits to  her parental home at Alappuzha totaling to 57<\/p>\n
MFA 78\/02                               37<\/span><\/p>\n
days   within six months   of   the marriage.   This displayed     her<\/p>\n
disinclination   to   stay   in   the   matrimonial   home     and   her<\/p>\n
eagerness   to   go   to   her   own   house.     8-6-1991   was   the   date   of<\/p>\n
marriage   which   was   solemnized   at   Alappuzha.     From   that   day<\/p>\n
onwards she started cohabiting with the  husband at Ernakulam.<\/p>\n
On   24-7-1991   she   went   to   her   house   at   Alappuzha   and   stayed<\/p>\n
there  for   11   days   till   4-8-1991.     Even  though  on  26-7-1991  the<\/p>\n
husband   and   his   parents   went   to   Alappuzha   to   bring   her   back,<\/p>\n
she     refused   to   return   to   the   matrimonial   home.     On   4-8-1991<\/p>\n
she returned to her matrimonial home.   On 30-8-1991, the wife<\/p>\n
went   again   to   Alappuzha   for   21   days   till   20-09-1991   on   which<\/p>\n
day she was brought back to her matrimonial home.   On   2-10-<\/p>\n
1991   she again went to her parental home and returned on the<\/p>\n
next   day.     Again   from   5-11-1991   to     24-11-1991   she   went   to<\/p>\n
Alappuzha   and   stayed   in   her   parental   home   for   20   days.     She<\/p>\n
returned to her matrimonial home on 24-11-1991.   Again on 12-<\/p>\n
12-1991   her   parents     came   to   Ernakulam   and   took   her   to<\/p>\n
Alappuzha   for   delivery.     The   husband   and   his   parents   visited<\/p>\n
Suchitra at Alappuzha on three days namely 27-12-1991 and 17-<\/p>\n
MFA 78\/02                                 38<\/span><\/p>\n
2-1992  and  26-2-1992.    Gouri    a female  child   was  born  to    the<\/p>\n
spouses   on   2-3-1992.     On   6-9-1992,   she   returned   to   her<\/p>\n
matrimonial home after delivery.   On 16-1-1993 she went again<\/p>\n
to   Alappuzha   to   attend   a     marriage.         She   returned   to   the<\/p>\n
matrimonial home on   25-1-1993.   On 9-2-1993 she again   went<\/p>\n
to   her   parental   home     to   attend   a   birthday   and   returned     to<\/p>\n
Ernakulam on 11-2-1993.     On   28-2-1993   she peremptorily left<\/p>\n
her   matrimonial   home   along   with   her   daughter   without   the<\/p>\n
consent   of   her   husband.   Even   though,   subsequently   on   16-5-<\/p>\n
1993,   4-7-1993,   19-9-1993   and   31-10-1993   her   parents   had<\/p>\n
brought her  to her matrimonial home, she returned to Alappuzha<\/p>\n
on the very same dates. The  husband  expected  her to return to<\/p>\n
her   matrimonial   home   but   in   vain.     It   is   not   necessary   for   the<\/p>\n
petitioner   in   a   matrimonial   proceedings   to   plead   specific<\/p>\n
instances.  It would be sufficient  if a general plea is made in the<\/p>\n
petition.     Order   6   Rule   2   C.P.C.   also   indicates   that   it   is   not<\/p>\n
necessary   to   plead   evidence     but   only   material   facts.     Even   if<\/p>\n
there is no pleading or if the pleadings are vague or non-specific<\/p>\n
the court has to   consider the totality of the materials.       If the<\/p>\n
MFA 78\/02                                39<\/span><\/p>\n
parties went to trial knowing fully well what they    had to prove,<\/p>\n
no objection   can be   taken regarding the absence of pleadings.<\/p>\n
Vide  Sardul Singh  v. Pritam Singh and Others<\/a> – 1999 (3)<\/p>\n
SCC 522,  Indian Oil corporation v. Municipal corporation,<\/p>\n
Jullundhar – 1993 (1) SCC 333 and  Kali Prasad Agarwalla<\/p>\n
v.   M\/s.   Bharat   Coking   Coal   Limited   and   Others<\/a>   –   1989<\/p>\n
(Supp)   1   SCC   628.    The   husband   has   clearly   averred   the<\/p>\n
ground   of   desertion   and     cruelty.     It   is   discernible   from   the<\/p>\n
averments     in paragraph 5 of the petition that Suchitra showed<\/p>\n
over   possessiveness   over   her   daughter   and   repugnance   to   any<\/p>\n
physical   contact   which   the   husband   had   with     the   baby   girl.<\/p>\n
Again   it   is   averred   that   the   wife         suffered   insufferable<\/p>\n
temperament and unrelenting anger towards the husband for no<\/p>\n
reason.   Again paragraph  8 of the petition it is averred that the<\/p>\n
wife never changed her attitude towards her husband even after<\/p>\n
seven months of delivery. 10.            She never attended to any work<\/p>\n
in   the   family.     She   always   seemed   to   be   brooding     over<\/p>\n
imaginative issues and would pick up quarrels with the petitioner<\/p>\n
for   no   reason.     Anger   was   a   trait   in   her   character.     She   was<\/p>\n
MFA 78\/02                                40<\/span><\/p>\n
basically   a   career   oriented   person.     She   did   not   want   children.<\/p>\n
There   was   a     total   repudiation   of   the     marital   obligations.<\/p>\n
Matrimony   becomes   an   empty   shell   without   co-habitation.<\/p>\n
According   to   Suchitra,   her   parents   took   her   to   the   matrimonial<\/p>\n
house and   after leaving suchitra and the child there   they went<\/p>\n
to    the house  of  Adv. Sri.  M.N.Sukumaran Nair.    She would  say<\/p>\n
that P.W.1  called   Sri.  M.N.  Sukumaran Nair  over the  phone and<\/p>\n
asked his parents-in-law  to take Suchitra  to Alappuzha.  But she<\/p>\n
has    admitted   that  she     went   to  the   matrimonial  home  without<\/p>\n
informing   her   husband   in   advance.     “Cruelty”   is   not   defined<\/p>\n
under   the   Hindu     Marriage     Act.     It   is   something   which   can   be<\/p>\n
inferred.   A   number of acts   can constitute a cumulative act of<\/p>\n
cruelty   which   may   be     the   result   of   physical   or   mental   ill-<\/p>\n
treatment.   The court has to consider  the particular spouse and<\/p>\n
not     any   hypothetical   or   ideal   spouses  (See   Shobha   Rani   v.<\/p>\n
Madhukar Reddi<\/a> –  AIR 1988  SC 121).  Cruelty is a behaviour<\/p>\n
by   one   spouse   towards   the   other   which   causes   reasonable<\/p>\n
apprehension in the mind of the latter that it  is not safe for him<\/p>\n
or   her   to   continue   the   matrimonial   relationship   with   the   other.<\/p>\n
MFA 78\/02                                  41<\/span><\/p>\n
An   inference   of   cruelty   can   be   drawn   from   the   attending   facts<\/p>\n
and the circumstance taken cumulatively.  (Vide Parven Mehta<\/p>\n
v. Inderjit Mehta<\/a> – 2002 (5) SCC 706).   No   explanation has<\/p>\n
been offered   by Suchitra   for leaving the matrimonial home on<\/p>\n
28-2-1993.  On 19-2-1993 the  child’s birthday was celebrated at<\/p>\n
the matrimonial home with all pomp and pageantry.   If so, what<\/p>\n
was   the   driving   force   which   compelled     her   to   leave   the<\/p>\n
matrimonial   home     within   9   days   of   the   child’s   birthday   ?<\/p>\n
Whenever   she   wanted   to   go   to   Alappuzha   and   either   her<\/p>\n
husband or her in-laws dissuaded   her from   going, she used to<\/p>\n
show tantrums.   RW. 2,  father of Suchitra has admitted at page<\/p>\n
10  of his deposition that until  28-2-1993 there was  no objection<\/p>\n
raised   from   the   side   of   the   husband   or   his   people.       If   so,   the<\/p>\n
force which impelled her to leave the matrimonial home eludes.<\/p>\n
The pivotal cause for her matrimonial misfortune is attributed by<\/p>\n
Suchitra to her mother-in-law (PW4).       But what we find is that<\/p>\n
even on 28-1-1994 Suchitra has only glowing tributes to be paid<\/p>\n
to her mother-in-law on Ext. A1 letter sent by her.  If her mother-<\/p>\n
in-law was over-possessive  as Suchitra would have it, she would<\/p>\n
MFA 78\/02                                42<\/span><\/p>\n
not   have   taken   the   initiative   to   persuade   her   to   take   a   rented<\/p>\n
building and stay apart.   Suchitra   left the matrimonial home on<\/p>\n
28-2-1993.         Thereafter   she     did   not   return     for   good   to   her<\/p>\n
matrimonial   home.     The   husband   waited     for   days   and   months<\/p>\n
and     years     until  at  last   on  26-11-2001   i.e.   two   days   after  the<\/p>\n
impugned decree he married again.   The occasional visits of the<\/p>\n
wife   at   the     matrimonial   home   thereafter   were   not   to   resume<\/p>\n
cohabitation or to return to the matrimonial home permanently.<\/p>\n
                 APPRECIATION OF ORAL EVIDENCE<\/p>\n
      10. A)        P.W.1 (Anil Krishnan)   is the husband.  A reading<\/p>\n
of   his   testimony   will   go   to   show   that     he   does   not   remember<\/p>\n
many   of   the   dates   and   events.     According   to   him,   his   wife<\/p>\n
Suchitra @ Chithra was cold and indifferent  after marriage, that<\/p>\n
her  behavioural pattern was arrogant and self centered that she<\/p>\n
was very indifferent towards his parents,  that she  used to spend<\/p>\n
the day  confining herself to her room itself watching the T.V. or<\/p>\n
reading something, that she   used to get up in the morning at 10<\/p>\n
a.m. after he left for office at 9.30 a.m.  that he  was  Marketing<\/p>\n
Executive in the Premier Tyres at the time of his marriage,   later,<\/p>\n
MFA 78\/02                               43<\/span><\/p>\n
he  joined   Birla   Tyres   and   sometime   in  March   1992   he  resigned<\/p>\n
his job and started his own business, that his wife  was behaving<\/p>\n
as if she was forced to marry against her wish.  He has no case in<\/p>\n
the pleadings that his wife was a loner in her matrimonial home<\/p>\n
staying   confined to her   room reading books  and watching the<\/p>\n
T.V. or that she never got up before he left for office.  It was only<\/p>\n
at   the  stage   of     evidence  that he  developed   such  a  case.    It   is<\/p>\n
well  settled  that  no  amount   of   evidence  can  be   looked   into     to<\/p>\n
find a case for which there has been absolutely no foundation in<\/p>\n
the pleadings.   (Vide AIR 1930 P.C. 57 – Siddik Mohammed<\/p>\n
Shah   v.   Mt.   Saran   and   others,     Elizabeth   v.   Saramma   –<\/p>\n
1984 K.L.T. 606,    Trojan & Co., v. Nagappa<\/a> – AIR 1953 SC<\/p>\n
235   ,     Bhagwadi   Prasad   v.   Chandramaul<\/a>   –     AIR   1966   SC<\/p>\n
735).      P.W.1     admitted   that   after   28-2-1993,   even  though   his<\/p>\n
wife had  not stayed in his house, she  used to come there during<\/p>\n
day   time,     that   he   has   not   sent   any   money   towards   the<\/p>\n
maintenance   of his wife or child, that his parents used to offer<\/p>\n
maintenance to child and his wife refused to  receive  the same.<\/p>\n
He has no case that he offered any maintenance to his   wife or<\/p>\n
MFA 78\/02                               44<\/span><\/p>\n
child.   At page 26 of of his deposition he would say that his wife<\/p>\n
was not on good terms with his mother.   In the same breath he<\/p>\n
would   say   that   they   were   maintaining   good   relationship.     He<\/p>\n
deposed that his mother sleeps on the ground floor whereas his<\/p>\n
bedroom is on the first floor.    Regarding the attempt made  for<\/p>\n
re-conciliation, he  deposed   before  court  that  a   joint  petition   for<\/p>\n
divorce   was   got   prepared   through   retired   District   Judge   Sri.<\/p>\n
Sukumaran   who   was  one   of   the   mediators   but   she   backed   out.<\/p>\n
This   indicates   that   it   was   P.W.1   who   wanted   a   divorce   and   he<\/p>\n
blames   her for not agreeing to the same.   The  fact that P.W.1<\/p>\n
was   planning   to   marry   another   woman   after   getting   a   divorce<\/p>\n
from Suchitra  becomes more clear from his subsequent conduct<\/p>\n
of   marrying   another   lady   within   two   days   of   the     impugned<\/p>\n
decree.   We will have occasion to refer  to this aspect  later.<\/p>\n
      10. B)        P.W.2  (G.P. Pillai) is the father of  P.W.1.  He is a<\/p>\n
very   respectable   person   even   according   to   Suchitra   and   was<\/p>\n
aged 65 years while  giving evidence before court on 18-1-2001.<\/p>\n
He   was   working   as   Manager   of   Premier   Tyres   and   he       retired<\/p>\n
from   service       10   years   prior   to   his     examination   in   Court.<\/p>\n
MFA 78\/02                                 45<\/span><\/p>\n
Notwithstanding his respectability and dignified nature, being the<\/p>\n
father of P.W.1 he could only tow the line of his son.  Even while<\/p>\n
supporting     his   son   P.W.1,   he   was   not   inclined   to   sketch   his<\/p>\n
daughter-in-law as intransigent as his wife or son would attempt<\/p>\n
to do.  The admission made by P.W.4 (Gouri Pillai)  at page 10 of<\/p>\n
her   deposition   that   her   daughter-in-law   was   always   home   sick<\/p>\n
”                   “home   sick”       ”  explains     the<\/p>\n
yearning,   if  at all shown Suchitra,   to go to her parental home<\/p>\n
during  the first few months of marriage.  Hence the statement of<\/p>\n
P.W.2   that   Suchitra     always   wanted   to   go   to   her   parents   at<\/p>\n
Alappuzha and used to  show tantrums in this behalf can only be<\/p>\n
a   manifestation   of   her   homesickness       consequent   on   her<\/p>\n
transplantation to another family.   P.W.2 who stated that   it was<\/p>\n
from the side of Suchitra that the talk of divorce first sprang up,<\/p>\n
quoted Suchitra’s own words as follows:\n<\/p>\n<\/p>\n
               \"      divorce                            let   him\n\n\n               have it\".\n\n\n\nIf   these   were   the   words   spoken       by   Suchitra   then   it   was   Anil\n\n\nKrishnan who wanted  a divorce.   P.W.2 stated that   his     wife's\n\n\nMFA 78\/02                                 46<\/span>\n\n\n\n\n\n<\/pre>\n
sister   and   her   husband   besides   their   common   friends   one   K.M.<\/p>\n
Nair   and   retired   District   Judge   Sri.   Sukumaran   were   the<\/p>\n
mediators .  According to P.W.2 before 1996, the mediators were<\/p>\n
trying   for   a   re-union   and   after   1996   they   were   talking   for   a<\/p>\n
divorce   and   that  it   was    eventually  decided   to  have   divorce   by<\/p>\n
filing a joint petition.  He also confessed that it was the girl’s side<\/p>\n
who did not agree for divorce during the last meeting.   At page<\/p>\n
16 of his deposition, P.W.2 has admitted that Suchitra had come<\/p>\n
to her matrimonial  home along with her child  several times from<\/p>\n
1992 till the filing of the petition for divorce.  This indicates that<\/p>\n
Suchitra   had   not   permanently   snapped   her   relations   with   Anil<\/p>\n
Krishnan or his family.   After the re-conciliation talks, P.W.2 and<\/p>\n
his   wife   had   visited   Suchitra   in   her     hostel   two   or   three   times.<\/p>\n
She   was   at       that   time   studying   for   Journalism   which   she<\/p>\n
subsequently passed with flying colours by securing a rank.   Six<\/p>\n
months prior to the petition he had gone and met Suchitra in the<\/p>\n
hostel to talk to her about a proposal for divorce put forward  by<\/p>\n
retired District  Judge Sri. Sukumaran.  P.W.2 confessed that she<\/p>\n
was not agreeable for the same   and she told that she was not<\/p>\n
MFA 78\/02                               47<\/span><\/p>\n
aware of any proposal for filing a joint petition for divorce.   This<\/p>\n
also indicates that it was Anil Krishnan’s side who were   eagerly<\/p>\n
wanting   a divorce.   At page 7 of his deposition, P.W.2 admitted<\/p>\n
that even though from the conciliation   talks he could make out<\/p>\n
that Suchitra’s parents were agreeable for a divorce she was not<\/p>\n
and that was  why P.W.2 went and met  her in the hostel.  Again<\/p>\n
at   page   8   of   his   deposition,   P.W.2   deposed   that   the   mediation<\/p>\n
talks started with     a demand for 2 lakhs of rupees   payable for<\/p>\n
appropriating  the ornaments of   Suchitra.\n<\/p>\n<\/p>\n
      10. C).       P.W.3     (Ammini   Amma)   aged   78   years   is   a<\/p>\n
retired Principal of Kerala Varma College, Thrissur.   She was the<\/p>\n
President of the Ernakulam Women’s Association of which P.w.4<\/p>\n
(Gouri Pillai) was also a member.  She was examined to say that<\/p>\n
she had never seen Gouri Pillai misbehaving with her daughter-<\/p>\n
in-law.     According   to   P.w.3   Gouri   Pillai     and     Suchitra   were<\/p>\n
moving   together   as   if   they   were   mother   and   daughter.     She,<\/p>\n
however, confessed that she cannot say how Gouri Pillai behaves<\/p>\n
in her own house.   She also admitted that she came to court in<\/p>\n
the company  of Gouri Pillai.\n<\/p>\n
\nMFA 78\/02                                48<\/span><\/p>\n
       `10. D).    P.W.4   (Gouri   Pillai)   who   is   the   mother   of   P.w.1<\/p>\n
and   the   wife   of   P.W.2   is   alleged   to   be   the   destructive   factor<\/p>\n
which is   said to have marred the matrimonial prospects of Anil<\/p>\n
Krishnan  and   Suchitra.     According   to   P.w.4   Suchitra   used   to   go<\/p>\n
home once in a week and she was taken either by her parents or<\/p>\n
by P.W.2 and P.W.4.   She would  also corroborate the version of<\/p>\n
her son P.W.1  to say that Suchitra did  not show any interest in<\/p>\n
the   household   affairs   and   she   was   keeping   confined   to   the<\/p>\n
upstairs either reading  books or   watching     the T.V. and would<\/p>\n
get up   and come down only after 9.30 a.m. when P.W.1 would<\/p>\n
have   left   for     his   office.     But   P.W.4   confessed   that   there   were<\/p>\n
servants in the house both in the kitchen as well as for doing the<\/p>\n
external jobs.       If   in such a house, the daughter-in-law did not<\/p>\n
go   to   the   kitchen       for   helping   the   cooking,   one   fails   to<\/p>\n
understand   as   to   how   could   that       amount   to   matrimonial<\/p>\n
cruelty.  The admission by P.W.3 that her daughter-in-law    who<\/p>\n
was called Suchitra was always “home sick” explains the longing<\/p>\n
exhibited   by   Suchitra  go   to  her  parental  home  during   the  early<\/p>\n
months of marriage.   P.w.4   who stuck to her son’s version that<\/p>\n
MFA 78\/02                               49<\/span><\/p>\n
on 28-2-1993 Suchitra left       her matrimonial home   on her own<\/p>\n
accord,   admitted     that   she   does   not   remember   as   to   who<\/p>\n
accompanied Suchitra on 28-2-1993 (See P.W.4 page 17).     Her<\/p>\n
admission at page 19 of her deposition to the effect that  on 17-<\/p>\n
5-1993   her  sister’s   daughter  was   getting  married   at    Parur  and<\/p>\n
on   that   day   her   husband   P.W.2   went   to     Alappuzha   to   fetch<\/p>\n
Suchitra and Anil Krishnan attended the marriage by   coming in<\/p>\n
the company of P.W.2 and Suchitra will   show that Suchitra had<\/p>\n
not bid farewell to her matrimonial home once and for all.   The<\/p>\n
evidence   of   P.W.4   at   page   19   further   shows   that   after   the<\/p>\n
marriage   at   North   Parur     Suchitra   had   gone   with   them   to<\/p>\n
Ernakulam and by that time news was conveyed about  the sad<\/p>\n
demise   of   P.W.2’s   uncle   at   Thiruvananthapuram   and   P.W.4<\/p>\n
proceeded to Thiruvananthapuram and on their way Suchitra and<\/p>\n
her   child were taken and dropped at Alappuzha.  At page 25 of<\/p>\n
the deposition of P.W.4 there is a   noting by  the   Family    court<\/p>\n
Judge that since P.W.4 was standing  in the witness box from 10<\/p>\n
a.m. to 12.50 a.m. continuously for about three hours , the Judge<\/p>\n
asked   her   to   sit   down   if   she   so   wished   whereupon   the   counsel<\/p>\n
MFA 78\/02                                 50<\/span><\/p>\n
appearing   for   Suchitra   is   stated   to   have   made   a   comment   that<\/p>\n
there  is  nothing wrong  in  keeping the witness standing  as   she<\/p>\n
had   left   a   woman   and   her   child   in   the   lurch.     To   the   said<\/p>\n
comment the Family Court Judge has noted  in the deposition  of<\/p>\n
P.W.4   that   the   above   attitude   and   comments   are   deprecated.<\/p>\n
We   do   not know    whether  the  above   indiscretion  shown  by   the<\/p>\n
counsel   for   which   the     client   is   no   way   responsible     had<\/p>\n
prejudiced   the   mind   of   the   trial   judge.     At   page   26   of   her<\/p>\n
deposition P.W.4 stated that she had not seen her granddaughter<\/p>\n
for   about   3-4   years   and     that   she   does   not   know   the   class   in<\/p>\n
which the girl studies or the name of her school.<\/p>\n
       10.D).        P.W.5 (Renu Mohandas) is a friend of P.W.4  from<\/p>\n
1984   onwards.    This  witness was examined  to  prove that when<\/p>\n
once   she   was   in   the   house   of   P.W.4   the   baby   cried   and   when<\/p>\n
P.W.4 took the baby, Suchitra suddenly came and snatched the<\/p>\n
baby   from   the   hands     of   P.W.4   and   this   appeared   to   be   very<\/p>\n
strange to  P.W.5.   P.W.5 confessed that she is  a good  friend of<\/p>\n
P.W.4 and she had come to Court   along with P.W.4   and during<\/p>\n
the journey P.W.4 had asked her to tell the court about the above<\/p>\n
MFA 78\/02                               51<\/span><\/p>\n
episode.    P.W.5  confessed  that Anil  Krishnan had    told   her that<\/p>\n
Suchitra  was home sick.  P.W.5  who deposed that Suchitra was<\/p>\n
not friendly with her   admitted that Suchitra had sent her a letter<\/p>\n
inviting her  for her  daughter’s birthday.\n<\/p>\n<\/p>\n
      10.E)         R.W.1   (Suchitra)   is   the   wife   of   P.W.1.     She<\/p>\n
deposed in terms of the defence set up by her and there is a ring<\/p>\n
of truth and candour in  her testimony.\n<\/p>\n<\/p>\n
      10. F).       R.W.2   (Radhakrishnan   Nair)   is   the   father   of<\/p>\n
Suchitra.  A reading of his testimony will show that  he is  a very<\/p>\n
dignified   and   candid   person   who     had   not   shown   any   special<\/p>\n
concern   or anxiety to magnify    every syllable  of his daughters<\/p>\n
post nuptial miseries.\n<\/p>\n<\/p>\n
                   CRUELTY – JUDICIAL CONCLUSION<\/p>\n
      11.      We are afraid that we find ourselves unable to agree<\/p>\n
with   the     submissions   made   on   behalf   of   the   husband.       The<\/p>\n
parties   are   Hindus     belonging   to   the   Nair   community.     The<\/p>\n
marriage   between   Anil   Krishnan   and     Suchitra   was   solemnised<\/p>\n
according   to   their   customary   rites   in   the   Sree   Rama   Mandir   at<\/p>\n
MFA 78\/02                               52<\/span><\/p>\n
Alappuzha   on   8-6-1991.     Anil   Krishnan   examined   as   P.W.1   was<\/p>\n
residing     at   “Gouri”   in   Panampalli  Nagar,   Ernakulam   which  was<\/p>\n
his parental home.   Anil Krishnan is the only  son  of his parents<\/p>\n
(PW2 and P.W.4) and he has no brother or sister.  He is an M.B.A.<\/p>\n
graduate.     Suchitra     examined   as   R.W.1   belongs   to   Alappuzha<\/p>\n
which is about 62 kilometer to the south of Ernakulam.  Suchitra<\/p>\n
has   a   sister   and   a   brother   and   at   the   time   of   her   marriage<\/p>\n
Suchitra was an M.A. in English.\n<\/p>\n<\/p>\n
             12.    The husband has not pleaded  the alleged visit of<\/p>\n
Suchitra to Alappuzha on 1-6-1991 and 6-7-1991.  Therefore, it is<\/p>\n
not open to Anil Krishnan to come out with a case based on the<\/p>\n
aforementioned two dates.  With regard to the period from 24-7-<\/p>\n
1991 to 4-8-1991 during which the wife is alleged to have left the<\/p>\n
matrimonial   home   and   remained   in   her   parent   home,   Suchitra<\/p>\n
has answered  at page 3 of her objection  that  it was not on her<\/p>\n
own accord that she went to Alappuzha on 24-7-1991.  That day<\/p>\n
was Anil Krishnan’s father’s  birthday.  P.W.2  is the father of Anil<\/p>\n
Krishnan.     The   entire   family   was   celebrating   the   birthday   at<\/p>\n
Chavara and for this purpose  all of them went to Chavara on the<\/p>\n
MFA 78\/02                                53<\/span><\/p>\n
23rd  evening.   After   the   birthday   celebration,     on   her   way   back,<\/p>\n
Suchitra got down at   Alappuzha.   This was with the permission<\/p>\n
of   Anil   Krishnan.     She   felt   exhausted     and   was   advised   by   Anil<\/p>\n
Krishnan himself to stay back at Alappuzha.   On 25-7-1991, she<\/p>\n
was   taken   to   a   lady   doctor   for   a   medical   check   up.     After<\/p>\n
examining   her,    the   doctor   announced   that   she  was     pregnant.<\/p>\n
The     news   was   conveyed   to     Anil   Krishnan   who   along   with   his<\/p>\n
parents came  in an excited mood to Alappuzha on the next day.<\/p>\n
Since on 1-8-1991 it was the 90th birthday of Suchitra’s  paternal<\/p>\n
grandmother   and   since   Suchitra   wanted   to   participate   for   the<\/p>\n
birthday, neither her husband nor her in-laws asked her to return<\/p>\n
to   Ernakulam.     The   ensuing   days       were     Friday   and   Saturday<\/p>\n
which were not  astrologically  auspicious for a pregnant woman<\/p>\n
to  return to her matrimonial home.  She was taken to Ernakulam<\/p>\n
by her   father and sister on 4-8-1991 by train and Anil Krishnan<\/p>\n
had     come to Ernakulam South Railway Station to take them to<\/p>\n
his house.    The above  version of  Suchitra    has  been  practically<\/p>\n
admitted by Anil Krishnan   when   examined as     P.W.1 at pages<\/p>\n
15 and 17 of his deposition.   Hence, it was uncharitable   on the<\/p>\n
MFA 78\/02                                54<\/span><\/p>\n
part of Anil Krishnan to allege that his wife had intentionally kept<\/p>\n
herself away from the matrimonial home.\n<\/p>\n<\/p>\n
      13.    The   allegation   made   by   Anil   Krishnan   regarding   his<\/p>\n
wife’s visit   of her   parental home from 30-8-1991 to 20-9-1991<\/p>\n
has been replied in paragraph 6 of her objection.   According   to<\/p>\n
Suchitra she did not insist on going to  Alappuzha on 30-8-1991.<\/p>\n
2-9-1991  was  her 23rd  birthday.   It  was   her  husband who   took<\/p>\n
her to Alappuzha for the said purpose on 30-8-1991.   He did not,<\/p>\n
however,  turn up for the birthday and it was not deliberate.  But<\/p>\n
his  parents had   come   to   Alappuzha   and     had   greeted    her  and<\/p>\n
had given her birthday presents.  On 20-9-1991 she was taken to<\/p>\n
Ernakulam   by   her   parents.     While   examined   as   R.W.1   Suchitra<\/p>\n
deposed that it was her husband  who had told her that he would<\/p>\n
be   going   to   Madras   for   21   days   and   therefore,   it   was   he   who<\/p>\n
asked her to remain at Alappuzha during his absence.  It was  his<\/p>\n
parents who  later took her from Alappuzha to Ernakulam.<\/p>\n
      14.    Regarding     the   further   visit   on     2-10-1991,   in<\/p>\n
paragraph   6   of   the   objections,   Suchitra     has     given   sufficient<\/p>\n
explanation.     Her father-in-law    (P.W.2)   is  a native  of Chavara.<\/p>\n
MFA 78\/02                               55<\/span><\/p>\n
He used to go over Chavara frequently to meet his aged parents.<\/p>\n
On   2-10-1991   when   they   went   to   Chavara,   they   wanted   their<\/p>\n
daughter-in-law Suchitra also  to accompany them.   She obliged<\/p>\n
them and   when they returned to Ernakulam on 3-10-1991, she<\/p>\n
also accompanied   them to Ernakulam.   Suchitra has denied her<\/p>\n
husband’s   allegation   that   it   was   her   parents   who   took   her   to<\/p>\n
Ernakulam on 3-10-1991.\n<\/p>\n<\/p>\n
      15.    The period from 5-11-1991 to 24-11-1991 is the next<\/p>\n
period of absence of the wife from the matrimonial home.   5-11-<\/p>\n
1991   was   Deepavali     day.     As   Suchitra     was   pregnant,   her<\/p>\n
parents   paid     her   a   visit   at   Ernakulam   with   various   items   of<\/p>\n
sweets.  It was part of the custom prevailing   in their community.<\/p>\n
Suchitra was informed that her husband was leaving for Madras<\/p>\n
on the next  day and therefore, if she wanted,  she could also go<\/p>\n
to Allappuzha    along  with her parents.   Suchitra also wanted to<\/p>\n
attend   her   friend’s   marriage   on     8-11-1991.     Therefore,   as<\/p>\n
permitted by Anil Krishnan’s parents   on 5-11-1991, she went  to<\/p>\n
Alappuzha   along   with   her   parents.     Therafter,   Anil   Krishnan’s<\/p>\n
parents   did   not   come   to     Alappuzha   and   hence     there   was   no<\/p>\n
MFA 78\/02                                56<\/span><\/p>\n
occasion   for   them   to   persuade   Suchitra   to   return   to   Ernakulam<\/p>\n
and resume co-habitation.  Although Anil Krishnan’s parents  had<\/p>\n
come   to   Alappuzha   on   19-11-1991,     they   advised   her   to   stay<\/p>\n
back for one more day as Tuesday was not considered auspicious<\/p>\n
to undertake a journey.  So she was  taken to Ernakulam  only on<\/p>\n
24-11-1991. She has given corroboration to this version     in her<\/p>\n
objections   while   examined   as   R.W.1   (Pages   33   to   36).     Anil<\/p>\n
Krishnan   examined   as   P.W.1   would   say   that   he   does   not<\/p>\n
remember whether he had gone to Madras in   November 1991 in<\/p>\n
connection with his business.  It was on 12-12-1991 that Suchitra<\/p>\n
was taken for delivery.   In paragraphs 9 to 11 of her objections<\/p>\n
Suchitra   has   stated   that   after   delivery,     in   spite   of   repeated<\/p>\n
requests she was not taken back to her matrimonial home    and<\/p>\n
that from 8-11-1992 to 28-2-1993 she was   not allowed to stay<\/p>\n
there   with   the   child.     P.W.4,   the   mother   of   Anil   Krishnan   has<\/p>\n
admitted     at   page   27   of   her   deposition   that   after   the   rice   –<\/p>\n
feeding ceremony of the baby    on 6-9-1992 at Tripunithura   all<\/p>\n
of   them   came   to   Ernakulam   and   they   returned   to   Alappuzha   .<\/p>\n
So,  there was no possibility of Suchitra  staying in the  house of<\/p>\n
MFA 78\/02                                 57<\/span><\/p>\n
P.W.4  from 6-9-1992 and leaving  the  matrimonial home on 25-<\/p>\n
10-1992.\n<\/p>\n<\/p>\n
       16.      The case of Anil Krishnan with regard to     his wife’s<\/p>\n
conduct   in     insisting   to   go   to   her   parental  home   for   the   period<\/p>\n
from   8-11-1992   to   25-1-1993   and   regarding   her   return       to<\/p>\n
Alappuzha on 9-2-2003  has also been traversed at pages 11 and<\/p>\n
12 of Suchitra’s  objections.    It is the  case of Suchitra that after<\/p>\n
the  delivery     she   was   brought   back   to   her  husband’s   house   by<\/p>\n
her parents on 8-11-1992.  Suchitra has stated that on 16-1-1993<\/p>\n
she and her  child were taken to Alappuzha by the parents of her<\/p>\n
husband   as   she   had   to   attend   the   marriage   of   her   mother’s<\/p>\n
sister’s daughter at Thiruvananthapuram on 18-1-1993. After the<\/p>\n
marriage, she came back to her matrimonial home on 25-1-1993<\/p>\n
and resided there till 9-2-1993.   She again went to her paternal<\/p>\n
home on 9-2-1993  to attend the birthday of her father and came<\/p>\n
back to the matrimonial home on 11-2-1993 after attending her<\/p>\n
husband’s   grandfather’s   birthday   at   Chavara   and   resided   there<\/p>\n
with her husband till 28-2-1993. Likewise,                    Anil   Krishnan’s<\/p>\n
accusation that  after delivery on 2-3-1992, Suchitra did not care<\/p>\n
MFA 78\/02                                58<\/span><\/p>\n
to return to her matrimonial home for a long time  has been met<\/p>\n
by Suchitra by stating that in spite of repeated requests she  was<\/p>\n
not brought back   to her matrimonial home by her husband and<\/p>\n
his parents and that when she was taken there     by her parents<\/p>\n
on   28-9-1992,   she   was   not   entertained   by   those   in   her<\/p>\n
matrimonial   home     and   thereafter,   on   8-11-1992,   it   was   her<\/p>\n
parents who took  her again to her  matrimonial home.<\/p>\n
      17.    There   is     no   dispute   that   the   parental   home   of<\/p>\n
Suchitra   at   Alappuzha     is   only   less   than   65   kms.   from   her<\/p>\n
matrimonial   home   at   Panampally   Nagar   in   Ernakulam.<\/p>\n
Admittedly, Alappuzha is on the way from Ernakulam to Chavara<\/p>\n
where the grandparents   of Anil Krishnan parents   are residing.<\/p>\n
Both the parties belonging to respectable  Nair families.  Suchitra<\/p>\n
was   born   and   brought   up   at   Alappuzha     until   her   marriage.<\/p>\n
Hence,   if   she   found   it   yearning   to   meet   her   parents   frequently<\/p>\n
during   the   first   few   months   of   marriage,   there   was   nothing<\/p>\n
abnormal or extraordinary in her behaviour.  Some of her visits to<\/p>\n
Alappuzha   were     for     very   valid     reasons   and     on   some   of   the<\/p>\n
occasions   it   was   none   other     than   her   own   father-in-law   and<\/p>\n
MFA 78\/02                                   59<\/span><\/p>\n
mother-in-law who dropped her at  Alappuzha while on their way<\/p>\n
to   Chavara.       Anil   Krishnan   has   not   even   a   whisper   in   the<\/p>\n
pleadings    that the journeys undertaken by his wife to her own<\/p>\n
parental   home which is  not far off, were  without his consent or<\/p>\n
against   his   wish   or   that   he   had   warned   her   against   frequently<\/p>\n
visiting her parents.   Hence, the only possible conclusion is that<\/p>\n
all   the   visits   made   by   Suchitra   to   her   own   house   at   Alappuzha<\/p>\n
was with the permission of her husband who was either expressly<\/p>\n
or   tacitly   allowing   her   to   go   to   her   paternal   home.     It   is   really<\/p>\n
surprising   that   Anil   Krishnan   has   chosen   to     come   out   with<\/p>\n
specific     dates to develop a contention that his wife was acting<\/p>\n
cruelly when she undertook those journeys to her paternal home.<\/p>\n
At     no   point   of   time   until   the   presentation   of   O.P.   in   the   year<\/p>\n
1999 had Anil Krishnan taken exception to his wife   visiting her<\/p>\n
own parents.   Some amount  of  homesickness  can be expected<\/p>\n
in   a newly wedded bride and   if she had evinced a desire to go<\/p>\n
to her parental  home  with a view to meet her parents who had<\/p>\n
brought her up right from   childhood till her marriage,    we    fail<\/p>\n
to see  any semblance of cruelty on the part  of Suchitra on that<\/p>\n
MFA 78\/02                             60<\/span><\/p>\n
score.   In   fact,     her   own   mother-in-law   has   admitted   in<\/p>\n
unequivocal     terms   that   Suchitra   was   always   home   sick.     (See<\/p>\n
P.W. 4 – Page 10).\n<\/p>\n<\/p>\n
      18.    The allegations of cruelty in the O.P. are very   vague,<\/p>\n
non-specific and general.  Anil Krishnan has no past   instance to<\/p>\n
quote when his   wife even without his permission   had defiantly<\/p>\n
left her matrimonial home  and proceeded to  her parental  home<\/p>\n
causing     great   mental   angusih   to   Anil   Krishnan.     All   the<\/p>\n
allegations in  this regard  are  general allegations casually  made<\/p>\n
without reference  to any particular  incident  or    episode  in   their<\/p>\n
post marital life.\n<\/p>\n<\/p>\n
      19.      We   are     unable   to   accept   the   contention   of   Anil<\/p>\n
Krishnan  that   specific instances  are matters of  evidence  which<\/p>\n
are   not  required to be   pleaded  and that     the parties went to<\/p>\n
trial knowing fully well the case which they had to meet.   When<\/p>\n
no specific instance amounting to cruelty has been pleaded,  it is<\/p>\n
idle  for Anil Krishnan to contend that his wife fully knew the case<\/p>\n
which she had to meet.    Admittedly, the case before the  Family<\/p>\n
Court was one  for divorce filed under Sec. 13 (1) (ia)   and 13 (1)<\/p>\n
MFA 78\/02                                61<\/span><\/p>\n
(ib)of   the   Hindu   Marriage   Act,   1955.     Rule   7   of   the   Hindu<\/p>\n
Marriage (Kerala) Rules, 1963  reads as follows:<\/p>\n
         “7.   Contents of petition.  In addition to the particulars<\/p>\n
         required to be given  under order VII, rule (1) of the Code<\/p>\n
         and   Section   20(1)   of   the   Act,   every   petition   for   judicial<\/p>\n
         separation,   nullity   of   marriage,   or   divorce   shall   contain<\/p>\n
         the following particulars:-\n<\/p><\/blockquote>\n
                       a)     the   place   and   the   date   of   marriage,   the<\/p>\n
         names of the parties and their occupation, the place and<\/p>\n
         address where the parties reside or last resided together<\/p>\n
         within the jurisdiction of the Court;\n<\/p><\/blockquote>\n
<\/blockquote>\n
                       b)   the name, status and domicile of the wife<\/p>\n
         and husband before and after the marriage;<\/p>\n<\/blockquote>\n
                       c)     whether   there   is   living   any   issue   of   the<\/p>\n
         marriage and if so, the name and date of birth or age of<\/p>\n
         such issue, or all such issues;\n<\/p><\/blockquote>\n
<\/blockquote>\n
                       d)     whether   there   have   been   any   previous<\/p>\n
         proceedings  in   any  Court  in  India,   with reference  to   the<\/p>\n
         marriage, by  or  on  behalf  of  either of  the  parties  and  if<\/p>\n
         so, what proceedings and the result of such proceedings;<\/p>\n<\/blockquote>\n
                       e)   the matrimonial offence or offences if any<\/p>\n
         charged,   set   out   in   separate   paragraphs   with   the   time<\/p>\n
         and place of the alleged commission;\n<\/p><\/blockquote>\n
<\/blockquote>\n
                       f)  the property mentioned in Section 27 of the<\/p>\n
         Act any; and<\/p>\n<\/blockquote>\n
                       g)  the relief or reliefs prayed for:\n<\/p><\/blockquote>\n
\n                (2)    If   the   petition     is   for   restitution   of   conjugal<\/p>\n
         rights, the date from which and the circumstances under<\/p>\n
MFA 78\/02                                62<\/span><\/p>\n
         which   the   respondent   withdrew   from   the   society   of   the<\/p>\n
         petitioner shall be  stated in the petition.<\/p>\n<\/blockquote>\n
                (3)    In   cases   where   desertion   and\/or   cruelty   are<\/p>\n
         alleged,   the   petitioner   shall   state   the   date   and   the<\/p>\n
         circumstances  under  which   the   alleged   desertion  began<\/p>\n
         and\/or the specific acts of cruelty.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                4)     In   every   petition   presented   by   a   husband   for<\/p>\n
         divorce   on   the   ground   that   his   wife   is   living   in   adultery<\/p>\n
         with   any  person  or  persons  or   for  judicial  separation   on<\/p>\n
         the  ground   that   his   wife   has,  after   the   solemnization   of<\/p>\n
         the marriage, had sexual intercourse with any person or<\/p>\n
         persons   other   than   him,   the   petitioner   shall   state   the<\/p>\n
         name, occupation and place of residence of such person<\/p>\n
         or persons so far as they can be ascertained.<\/p>\n<\/blockquote>\n
                (5)    In   every   petition   presented   by   a   wife   for<\/p>\n
         divorce   on   the   ground   that   her   husband   is   living   in<\/p>\n
         adultery   with   any   woman   or   women   or   for   judicial<\/p>\n
         separation on the ground that her husband has after the<\/p>\n
         solemnization   of   the   marriage   had   sexual   intercourse<\/p>\n
         with any person or persons other than her, the petitioner<\/p>\n
         shall state the  name, occupation and place of residence<\/p>\n
         of   such   woman   or   women   so   far   as   they   can   be<\/p>\n
         ascertained”.<\/p><\/blockquote>\n
                                                    (Emphasis supplied)<\/p>\n
Thus,   Clause   (e)   of   the   above   Rule   enjoins     the   petitioner   to<\/p>\n
state   out   in   separate   paragraphs       the   time   and   place   of   the<\/p>\n
alleged     commission   of   the   matrimonial   offence   or   offences<\/p>\n
charged   against   the   respondent   spouse.     Similarly   Rule   7   (3)<\/p>\n
MFA 78\/02                               63<\/span><\/p>\n
mandates   that   in   cases   where   desertion   and\/or   cruelty   are<\/p>\n
alleged,   the   petitioner   shall   state   the   date   and                the<\/p>\n
circumstances under which the alleged desertion   began and\/or<\/p>\n
the  specific   acts   of   cruelty.  As   mentioned   earlier,   there   is   no<\/p>\n
allegation   of   any   specific   act   of   cruelty   in   the   petition.     A<\/p>\n
generalised statement of the conduct of the respondent spouse<\/p>\n
without   reference   to   any     concrete   instance   of   cruel   behaviour<\/p>\n
cannot constitute cruelty.\n<\/p>\n<\/p>\n
      20.      Differences of opinion are bound to crop up   even in<\/p>\n
the post nuptial life of the most ideal couple.       Minor bickerings<\/p>\n
may   exacerbate   into   simmering   conflicts     at   times   driving   the<\/p>\n
marital   partners   to   a   stage   of     no   return.     No   such   thing<\/p>\n
happened in this case   as a result of  the   frequent visits   of the<\/p>\n
wife     to   her   parental   home   so   as   to   spell   an   irretrievable<\/p>\n
breakdown   of   the   marriage.     Marriage   of     Anil   Krishnan   and<\/p>\n
Suchitra    was  on  8-6-1991.     Eversince  the  marriage   she   was  in<\/p>\n
her   matrimonial   home   at   Ernakulam   except   during   occasional<\/p>\n
visits made by her to her parental home.   One cannot loose sight<\/p>\n
of  the fact  that after Anil Krishnan goes to office  at 9.30   a.m.,<\/p>\n
MFA 78\/02                                 64<\/span><\/p>\n
Suchitra has to spend the whole day in the company of two old<\/p>\n
people – P.W.2 and P.w.4.  It is too early for a newly wed bride to<\/p>\n
think of  geriatry  in her husband’s abode.  Hence, if Suchitra had<\/p>\n
made   frequent   visits   to   her   parental   home   during   those   days,<\/p>\n
there is nothing strange or abnormal about it.   She was taken for<\/p>\n
delivery to Alappuzha on 12-12-1991.   A female child   was born<\/p>\n
to them on   2-3-1992.   The rice-feeding   ceremony   of the baby<\/p>\n
girl   was   conducted   at   Chottanikkara   on   6-9-1992   for   which<\/p>\n
purpose alone Suchitra was taken to Ernaklulam.   She   was sent<\/p>\n
back     to   her   parental   home.       Since   there   was   no   gesture<\/p>\n
forthcoming   from   the   side   of   Anil   Krishnan   and   his   people   to<\/p>\n
bring   back   Suchitra   and   the   baby   girl   after   she   was   taken   for<\/p>\n
delivery , an attempt was made by Suchitra’s brother to facilitate<\/p>\n
her return to the matrimonial home.   This attempt was on 22-9-<\/p>\n
1992.  Pursuant to the said attempt on 28-9-1992, Suchitra along<\/p>\n
with her parents  and brother went to her matrimonial home.  But<\/p>\n
Suchitra   and   her   baby   were   not             welcome   guests   at<\/p>\n
Panampally Nagar.     In       that                       night during         thunder<\/p>\n
and   heavy   down   pour     she   was     virtually   turned   out   of   her<\/p>\n
MFA 78\/02                                  65<\/span><\/p>\n
matrimonial     home.     Her   entreaties   to   allow   her   to   stay   in   the<\/p>\n
matrimonial   home   fell   on   deaf   ears.   Thereafter   the   only   period<\/p>\n
during which Suchitra and her daughter were allowed to stay in<\/p>\n
the   matrimonial   home   was   from   8-11-1992   to   28-2-1993.     This<\/p>\n
was the most bitter   chapter in the post nuptial life of Suchitra.<\/p>\n
After she again   stepped into her matrimonial home subsequent<\/p>\n
to   childbirth   she   was     virtually   a   prisoner   of   her   mother-in-law<\/p>\n
who kept a constant surveillance over  her daughter-in-law.  The<\/p>\n
daughter -in-law  was made to confine herself in the bedroom of<\/p>\n
the mother-in-law on the ground floor   whereas her husband was<\/p>\n
occupying the bedroom on the upstairs.     The suggestion put to<\/p>\n
P.W.4   that   she   was     unable   to   bear   the   sharing   of   love   and<\/p>\n
affection   of   her   only   son   to   his   wife,     though   denied   by   P.W.4,<\/p>\n
looms   large in this context.     The mother-in-law   saw to it that<\/p>\n
Suchitra does not meet her husband.   It was unable to   endure<\/p>\n
any   longer   the   agony   which   she   was   suffering   in   silence   that<\/p>\n
Suchitra   finally   bid   farewell   to   her   matrimonial   home   on   28-2-<\/p>\n
1993.  She did not go alone.  She was taken to Alappuzha by her<\/p>\n
parents-in-law.         This   in   short,     is   the   story   of   Suchitra.     The<\/p>\n
MFA 78\/02                                   66<\/span><\/p>\n
sojourns of the newly wedded bride to her parental home did not<\/p>\n
result  in a  ruptured marriage.  After perusing  the oral evidence<\/p>\n
of   the   parties   and   their   witnesses,   we   have   no   hesitation     to<\/p>\n
conclude that it was Anil Krishnan (P.W.1)   and his mother Gouri<\/p>\n
Pillai   (PW4)   who   have              really   paved   the   way   for   the<\/p>\n
irreconcilable   separation    of   the   marital   partners.    No   doubt,   in<\/p>\n
Ext.A1   letter  written  by   Suchitra  to  her mother-in-law   on   28-1-<\/p>\n
1994 she had paid  rich encomiums and  tributes to her mother-<\/p>\n
in-law.     We   are   not   inclined   to   accept   the   contention   made   on<\/p>\n
behalf   of   Anil   Krishnan   that   if   P.W.4   (the   mother-in-law   of<\/p>\n
Suchitra) was the real villain of the peace, Suchitra   would   not<\/p>\n
have   given     such   admiration     to   her   mother-in-law     whom<\/p>\n
Suchitra   would   characterise   as   a   proverbial   mother-in-law<\/p>\n
determined   to   alienate   the   nuptial   partners.     Both   the   marital<\/p>\n
partners are from aristocratic Nair families and Suchitra   cannot<\/p>\n
be expected to paint her mother-in-law black in letters written by<\/p>\n
her     notwithstanding   her   misgivings   and   acrimony   towards   her<\/p>\n
mother-in-law.  No sensible and diplomatic lady will dare to  write<\/p>\n
ill   of   her   mother-in-law     even   if   she,     in   her   heart   of   hearts   ,<\/p>\n
MFA 78\/02                                   67<\/span><\/p>\n
hates her   mother-in-law.   P.W.4   the mother-in-law   of Suchitra<\/p>\n
was     highly   possessive     towards   her   only   son   and   she   was<\/p>\n
virtually     keeping   Suchitra   under   house   arrest.   Whereever<\/p>\n
Suchitra went she was shadowed by her mother-in-law.    It is an<\/p>\n
admitted   fact   that   Suchitra’s   parents-in-law   had   accompanied<\/p>\n
her   when   she   and   her   husband   had   gone   to   Bangalore   for<\/p>\n
honeymoon.     During   Suchitra’s   last   spell   in   her   matrimonial<\/p>\n
home, P.W.4   saw to it  that her daughter-in-law  does not come<\/p>\n
upstairs   and   meet   her   husband   in   his     bedroom.     P.W.1   Anil<\/p>\n
Krishnan  was   virtually   a  “mother-pecked”   husband  who  did   not<\/p>\n
show the courage   of calling his wife to his bedroom upstairs by<\/p>\n
defying   the   orders   of   his   mother.     We   have   no   hesitation   to<\/p>\n
conclude   that   the   allegation   of   cruelty   apart   from   being   vague<\/p>\n
and   non-specific,     is         too   puerile   for   any   court   of   law   to   take<\/p>\n
serious notice of.     It was made by   the husband with a   view to<\/p>\n
secure a divorce somehow or other, so that he could    translate<\/p>\n
into reality his  intention   of contracting    another marriage  after<\/p>\n
making unfounded allegations against Suchitra whom  he did not<\/p>\n
love anymore.       With due respect, we are unable to agree with<\/p>\n
MFA 78\/02                               68<\/span><\/p>\n
the conclusions reached by the   learned Judge, Family Court   to<\/p>\n
the effect that Suchitra was guilty of matrimonial cruelty entitling<\/p>\n
Anil   Krishnan   to   a   decree   of   divorce   on   that   ground.     On   the<\/p>\n
contrary, it   was Anil Krishnan, who was being uncharitable and<\/p>\n
cruel to his wife who was always loving and affectionate towards<\/p>\n
her husband and who wanted to be a  faithful and  dutiful wife for<\/p>\n
all   times   to   come.     We,   therefore,   disagree     with   the   finding<\/p>\n
recorded by the court below that Anil Krishnan has substantiated<\/p>\n
his ground of cruelty so as to   entitle him to a decree of divorce<\/p>\n
on that score .   We   set aside the said finding and hold that the<\/p>\n
ground of cruelty   apart from being vague and non-specific has<\/p>\n
not been  substantiated  at all by Anil Krishnan so as to justify a<\/p>\n
decree of divorce on that ground.\n<\/p>\n<\/p>\n
                                 POINT –  C<\/p>\n
         DESERTION – Husband’s contention in appeal.\n<\/p>\n<\/p>\n
      21.    Advocate Sri.  P.  Radhakrishnan,  the   learned counsel<\/p>\n
appearing   for   Anil   Krishnan   made   the   following   submissions<\/p>\n
before us in support of his ground based on desertion:-<\/p>\n
      As   per   the   explanation   to   Section   13(1)(ib)   of   Hindu<\/p>\n
MFA 78\/02                               69<\/span><\/p>\n
marriage Act, “desertion” means  “the desertion of the petitioner<\/p>\n
by     the   other   party     to   the   marriage   without   reasonable   cause<\/p>\n
and without the consent or against the wishes of such party and<\/p>\n
includes the “willful neglect” of the petitioner by the other party<\/p>\n
to   the   marriage.     Thus,   there   need   not   even   be     a   physical<\/p>\n
withdrawal from the society of the spouse by the other spouse.<\/p>\n
“Willful neglect” can be  inferred if there is    failure to  discharge<\/p>\n
the   matrimonial   obligations.    Vide   1961     All   Eng.   Reporter<\/p>\n
129.    The commentaries at page 701 in the 8th Edition of Hindu<\/p>\n
Law by Raghavachariyar will also  show that abstention from  an<\/p>\n
obvious marital duty or abandonment  or willful  disregard of the<\/p>\n
marital   obligations   may   amount   to   “willful   neglect”   within   the<\/p>\n
meaning of the above provision.   Suchitra has no case that she<\/p>\n
was treated badly by her husband.  On the contrary, she was the<\/p>\n
one who  had created disharmony in the family.  She was unable<\/p>\n
to   get   along   with   her   husband’s   people   and   she   eventually<\/p>\n
walked   away     from   the   matrimonial   home.       In   her   objections<\/p>\n
Suchitra    would  say  that her  mother-in-law disliked     her having<\/p>\n
any type of relationship with  her  husband and would allege that<\/p>\n
MFA 78\/02                               70<\/span><\/p>\n
her   mother-in-law     was   the   brain   behind     the   filing   of   this<\/p>\n
petition.     A   lady   who   has   abstained   from   fulfilling   her   marital<\/p>\n
obligations   towards   her   husband   can   certainly   be   said   to   be<\/p>\n
guilty of desertion.\n<\/p>\n<\/p>\n
                     DESERTION -Judicial  Conclusion<\/p>\n
      22.    We   find   ourselves   unable   to   agree   with   the   above<\/p>\n
submissions   made     on   behalf   of     Anil   Krishnan.     Going   by   the<\/p>\n
credible  testimony of  Suchitra (RW1)  on   none of the occasions<\/p>\n
both   prior   to   28-2-1993   and   after   the   said   date   had     she<\/p>\n
expressed any disinclination to return to her matrimonial home.<\/p>\n
After every visit to her parental home, she had come back to her<\/p>\n
matrimonial   home.     The   very   fact   that     both   of   them     begot   a<\/p>\n
child   in   lawful   wedlock   will   show   that   Suchitra   cannot   be   held<\/p>\n
guilty   of   not   performing   her   conjugal   obligations.     There   is<\/p>\n
nothing on record to show that Suchitra disliked the company of<\/p>\n
her husband.  On the contrary, the credible testimony of Suchitra<\/p>\n
examined as R.W.1 will go to show  that it was her husband and<\/p>\n
mother-in-law   who   disliked   the   smooth   sail   of   the   matrimony<\/p>\n
MFA 78\/02                               71<\/span><\/p>\n
between Suchitra and Anil Krishnan.  Far from Suchitra deserting<\/p>\n
her   husband   and   her     matrimonial   home,   it   was     Anil   Krishnan<\/p>\n
who was  trying to avoid her company.   The subsequent event of<\/p>\n
Anil   Krishnan   contracting   another   marriage   within   two   days   of<\/p>\n
the impugned  decree will fortify our conclusion that Suchitra had<\/p>\n
never deserted her husband   so as to entitle   Anil Krishnan to a<\/p>\n
decree   of   divorce     on   the   ground   of     desertion.   We,   therefore,<\/p>\n
fully concur with the   finding recorded by the  Family Court that<\/p>\n
Anil Krishnan has not substantiated the ground of desertion so as<\/p>\n
to get a decree on that ground.\n<\/p>\n
\nPOINT  D<\/p>\n
       23.    One of the submissions made before us by the learned<\/p>\n
counsel appearing for Anil Krishnan was that in the light of     the<\/p>\n
2nd  marriage contracted by Anil Krishnan within two days of the<\/p>\n
impugned decree   of divorce, a consideration of   this appeal on<\/p>\n
the   merits   is   unwarranted   and   it     becomes   a   purely   academic<\/p>\n
exercise.  According to the learned counsel, the 2nd marriage has<\/p>\n
been contracted after the passing of the decree for divorce and<\/p>\n
it,   therefore, does   not   offend  Sec.   5  of   the   Hindu  Marriage  Act,<\/p>\n
MFA 78\/02                               72<\/span><\/p>\n
1955.   The Submission, in short,   is that the second marriage is<\/p>\n
not   contracted     during   the   subsistence   of   the   earlier   marriage<\/p>\n
which has been validly dissolved by a decree of divorce.   On 25-<\/p>\n
10-2005   Anil Krishnan had filed   petition along with an affidavit<\/p>\n
in   this   Court   for   reception   in   evidence   the   marriage   certificate<\/p>\n
under   the   Hindu   Marriage   Act   to   show   that   on   26-11-2001,   he<\/p>\n
married   one   Sujatha   Menon   hailing   from   Cheroor   in   Thrissur<\/p>\n
District.  The said certificate is marked in this appeal as Ext.A2.<\/p>\n
      24.    We are again afraid that we are unable to accept the<\/p>\n
above  contention.   Sec. 15 of  the Hindu   Marriage  Act reads as<\/p>\n
follows:\n<\/p>\n<\/p>\n
        “15. Divorced   persons   when   may   marry   again   :-<\/p>\n
        When a marriage has been dissolved by a decree of<\/p>\n
        divorce and either there is no right of appeal against<\/p>\n
        the decree or, if  there is such a right of  appeal the<\/p>\n
        time   for   appealing   has   expired   without   an   appeal<\/p>\n
        having   been   presented   or   an   appeal   has   been<\/p>\n
        presented but has been dismissed, it shall be lawful<\/p>\n
        for either party to the marriage to marry again”.<\/p>\n<\/blockquote>\n
Under sub section 4 of  Section 28 of the Hindu marriage Act, the<\/p>\n
time for  filing an appeal  against a decree of divorce is 90 days.<\/p>\n
Thus,   the   respondent\/husband   ought   to   have   waited   for     a<\/p>\n
minimum 90 days from the date of decree to remarry.  Instead,<\/p>\n
MFA 78\/02                                73<\/span><\/p>\n
by   getting   married   again   within   two   days   of   the   impugned<\/p>\n
decree, he cannot pre-empt  the appeal filed by the wife.  In AIR<\/p>\n
1967   SC       581   –   Smt.   Chandra   Mohini   Srivastava   v.   Shri<\/p>\n
Avinash Prasad Srivastava and Another,  the<\/a> question arose<\/p>\n
as   to   whether   the   contracting   of   a     second   marriage     by   the<\/p>\n
husband  after the appellate  decree and during the pendency of<\/p>\n
an   application for special leave to appeal to the Supreme Court<\/p>\n
was legal and valid so as to revoke  the special leave granted to<\/p>\n
the wife and dismiss  the resultant  appeal as infructous.  Dealing<\/p>\n
with that question, the Apex court held as follows:<\/p>\n
             “Before we deal with the merits of the appeal, we may<\/p>\n
             refer to an application (CMP No. 2935 of 1966) filed on<\/p>\n
             behalf   of   the   first   respondent,   in   which   he   prays   that<\/p>\n
             the special leave granted to the appellant be revoked.<\/p>\n
             The  grounds   taken  for   revocation  of   special   leave   are<\/p>\n
             that   the   High   Court   granted   divorce   to   the   first<\/p>\n
             respondent   and   ordered   that   its   decree   should   take<\/p>\n
             effect   forthwith,   with   the   result   that   the   marriage<\/p>\n
             between   the   appellant   and   the   first   respondent   stood<\/p>\n
             dissolved   on   January   87,   1964,   when   the   High   Court<\/p>\n
             allowed   the   appeal.     The     special   leave   petition   was<\/p>\n
             presented   in   this   Court   on   April   7,   1964   and   the<\/p>\n
             appellant   did   not   convey   to   the   first   respondent   that<\/p>\n
             she was intending to challenge the decision of the High<\/p>\n
             Court.   She also did not pray for the stay of operation<\/p>\n
             of   the   order   of   the   High   Court.     The   first   respondent<\/p>\n
MFA 78\/02                                 74<\/span><\/p>\n
             therefore believed that she had submitted to the order<\/p>\n
             of the High Court and married another woman on July<\/p>\n
             2, 1964.     Special   leave was granted to the appellant<\/p>\n
             by this Court on August 25, 1964,   and it was only on<\/p>\n
             September   9,   1964   when   the     first   respondent   got<\/p>\n
             notice   of   the   grant   of   special   leave   that   he   came   to<\/p>\n
             know   that   the   judgment   of   the   High   Court   was   under<\/p>\n
             appeal in this Court.    In the meantime he had already<\/p>\n
             married   another   woman   and   a   son   was   born   to   that<\/p>\n
             woman   on   May   20,   1965.     The   first   respondent<\/p>\n
             therefore contended that because of the negligence of<\/p>\n
             the   appellant   in   not   informing   him   that   she   was<\/p>\n
             applying to this Court for special leave, he had married<\/p>\n
             again and his new wife had given birth to a son, and  in<\/p>\n
             consequence  this Court should now revoke the special<\/p>\n
             leave that was granted so that the new child might not<\/p>\n
             become illegitimate.\n<\/p><\/blockquote>\n
<\/blockquote>\n
             6)   The application has been opposed on behalf of the<\/p>\n
             appellant and it is contended that it was no part of her<\/p>\n
             duty   to   inform   the   first   respondent   that   she   was<\/p>\n
             intending   to   apply   to   this   Court   for   special   leave.     It<\/p>\n
             was   also   contended   that     it   was     for   the   first<\/p>\n
             respondent     to   make   sure   before   marrying   that   no<\/p>\n
             further steps had been taken by the appellant after the<\/p>\n
             judgment of the High Court and in this connection she<\/p>\n
             relied on   Sec. 15 and 28   of the Act.   In any case it is<\/p>\n
             urged   that   the   fact   that   the   first   respondent   took   the<\/p>\n
             risk   of   marrying   without   making   sure   whether   any<\/p>\n
             further steps had been taken by the appellant was no<\/p>\n
             ground   for   revocation   of   special   leave.     It   was   also<\/p>\n
             pointed out that though the first respondent had been<\/p>\n
             served as far back as September 9, 1964, he made the<\/p>\n
             application for revocation of special   leave.  It was also<\/p>\n
             pointed out that though the first respondent had been<\/p>\n
             served  as  far    back   as  September    9,   1964, he made<\/p>\n
             the application  for revocation of  special  leave only on<\/p>\n
             September   15,   1966,   when   the   appeal   was   ready   for<\/p>\n
MFA 78\/02                                  75<\/span><\/p>\n
             hearing.\n<\/p><\/blockquote>\n
<\/blockquote>\n
             7)     We   are   of   opinion   that   special   leave   cannot   be<\/p>\n
             revoked  on  grounds put forward on behalf of the first<\/p>\n
             respondent.     section   28   of   the   Act   inter   alia   provides<\/p>\n
             that all  decrees and   others  made  by  the  Court in   any<\/p>\n
             proceedings   under   the   Act   may   be   appealed   from<\/p>\n
             under   any   law   for   the   time   being   in   force,   as   if   they<\/p>\n
             were   decrees   and   orders   of   the   Court   made   in   the<\/p>\n
             exercise   of   its   original   civil   jurisdiction.     Section   15<\/p>\n
             provides that “when a marriage has been dissolved by<\/p>\n
             a   decree   of   divorce   and   there   is   no   right   of   appeal<\/p>\n
             against the decree, or, if there is such a right of appeal,<\/p>\n
             the   time   for   appealing   has   expired   without   an   appeal<\/p>\n
             having been presented but has been dismissed, it shall<\/p>\n
             be   lawful   for     either   party   to   the   marriage   to   marry<\/p>\n
             again”.  These two sections make it clear that where a<\/p>\n
             marriage   has   been   dissolved,   either   party   to   the<\/p>\n
             marriage can lawfully marry only when there is no right<\/p>\n
             of   appeal   against   the   decree   dissolving   the   marriage<\/p>\n
             or, if there    is such a right of appeal, the time for filing<\/p>\n
             appeal   has   expired   without   an   appeal   having   been<\/p>\n
             presented,   or   if   an   appeal   has   been   presented   it   has<\/p>\n
             been dismissed.  It is true that S. 15 does not in terms<\/p>\n
             apply   to   a   case   of   an   application   for   special   leave   to<\/p>\n
             this Court.  Even so, we are of  opinion   that the party<\/p>\n
             who   has   won   in   the   High   Court   and   got   a   decree   of<\/p>\n
             dissolution   of   marriage   cannot   be   marrying<\/p>\n
             immediately   after   the   High   Court’s     decree   and   thus<\/p>\n
             take     away   from   the   losing   party   the   chance   of<\/p>\n
             presenting   an   application   for   special   leave.     Event<\/p>\n
             hough   S.   15   may   not   apply   in   terms    and   it   may   not<\/p>\n
             have   been   lawful   for   the   first   respondent   to     have<\/p>\n
             married immediately after the High Court’s decree, for<\/p>\n
             no appeal as of right lies from the decree of the High<\/p>\n
             Court to his Court in this   matter, we still think that it<\/p>\n
             was for the first respondent to make sure whether an<\/p>\n
             application for special leave had been filed in this Court<\/p>\n
MFA 78\/02                               76<\/span><\/p>\n
             and he could not by marrying   immediately    after the<\/p>\n
             High   Court’s   decree   deprive   the   appellant   of   the<\/p>\n
             chance to present a special leave petition to this Court.<\/p>\n
             If a person does so, he takes a risk and cannot ask this<\/p>\n
             Court to revoke the   special leave on this ground.   We<\/p>\n
             need not consider the question as to whether the child<\/p>\n
             born   to   the   new   wife   on   May   20,   1965   would   be<\/p>\n
             legitimate or not, except to say that in such a situation<\/p>\n
             S. 16 of the Act may come to the aid of the  new child.<\/p>\n
             We cannot, therefore, revoke the special leave on the<\/p>\n
             grounds   put   forward   on   behalf   of   the   first   respondent<\/p>\n
             and     hereby   dismiss   his   application   for   revocation   of<\/p>\n
             special leave”.<\/p><\/blockquote>\n
      25.     We, therefore, hold that the conduct of the husband in<\/p>\n
contracting   a   second     marriage     during   the   statutory   waiting<\/p>\n
period   does not and cannot stand in the way of a consideration<\/p>\n
of this appeal on the merits.   This point is answered against the<\/p>\n
husband and in favour of the wife.\n<\/p>\n
\nPOINT NO. E.\n<\/p>\n<\/p>\n
      26.   There are a few interlocutory applications which have<\/p>\n
been   hanging   fire   for   some   time.     I.A.   2285\/2005   is   an<\/p>\n
application   filed   on   27-7-2005   in   this   appeal   by   Suchitra   under<\/p>\n
Section   24   of   the   Hindu   Marriage   Act   claiming   interim<\/p>\n
maintenance to   herself and  her minor daughter at   the rate of<\/p>\n
Rs.   15,000\/-   and   750o\/-   per   month   respectively   from   2-6-1999<\/p>\n
MFA 78\/02                                77<\/span><\/p>\n
onwards (i.e. the date of original petition) till the disposal of this<\/p>\n
appeal.   Another Bench of this Court, after considering the rival<\/p>\n
contentions   of   the   parties   had   as   per   order   dated   25-10-2005<\/p>\n
relegated the question oF ordering separate maintenance to the<\/p>\n
wife   to   a     later   stage   but   directed   the   husband   to   pay   interim<\/p>\n
maintenance   to   his   child   at   the   rate   of   Rs.   2,000\/-   per   month<\/p>\n
from   1-1-2000   till   31-7-2005   and     thereafter   at   the   rate   of   Rs.<\/p>\n
2,500\/-   per   month.     Eventhough   it   is   now   contended   before   us<\/p>\n
that   under   Section   24   of   the   Act   no   interim   maintenance   is<\/p>\n
awardable   to   the   child,   no   such   objection   was   raised   by   the<\/p>\n
husband  in his counter to the said I.A.  That apart, in the light of<\/p>\n
the   decisions   in  Jasbir   Kaur   Sehgal   v.   District   Judge,<\/p>\n
Dehradun   and   Others<\/a>   –   1997   (7)   SCC   7  and      Praveen<\/p>\n
Menon     v.   Ajitha   K.   Pillai<\/a>   –   2001   (3)   KLT   450   and<\/p>\n
Damodaran   v.   Meera   –   1986   KLT   1020,  wife’s   right     to<\/p>\n
maintenance includes maintenance to the child as well.<\/p>\n
       27.    Anil Krishnan is   stated to be employed at present as<\/p>\n
General Manager of Hotel Sudarsan at Kollam.  He has a car and<\/p>\n
he   comes  to   Ernakulam   in   that   Car.      The   house  at   Panampilly<\/p>\n
MFA 78\/02                                 78<\/span><\/p>\n
Nagar   which   according   to   Suchitra   is   worth   more   than   Rs.   75<\/p>\n
lakhs   has   admittedly   been  sold.     Except   stating   that   the   house<\/p>\n
belonged to his father, Anil Krishnan has not chosen to produce<\/p>\n
any material in support of the same.   He  is a member of Lotus<\/p>\n
Club at  Ernakulam.   He is maintaining another wife.   As against<\/p>\n
this,   after   the   matrimonial   estrangement,   Suchitra   studied   and<\/p>\n
creditably passed   journalism, she did her L.L.B and L.L.M   all at<\/p>\n
her own expense.   Anil Krishnan has no case   that he had spent<\/p>\n
the money for her studies.  Suchitra has now joined the office of<\/p>\n
her father who is an Advocate practicing at Alappuzha.  The wife<\/p>\n
is   entitled   to   live   a   life   in   accordance   with   the   status   of   her<\/p>\n
husband.    (Vide   Ramdass v. Malathi – 2000 (1)   KLT (SN)<\/p>\n
12).    Unlike   Anil   Krishnan,   she       has   not   contracted   another<\/p>\n
marriage.   When the wife  says   that   she is unable  to maintain<\/p>\n
herself,   it   is   for   the   husband   who   contends   otherwise   to<\/p>\n
substantiate his contention.  No attempt in that behalf  has been<\/p>\n
made by Anil Krishnan.  Considering the totality of the facts and<\/p>\n
circumstances of the case we are of the view   that Anil Krishnan<\/p>\n
is liable to pay interim maintenance to Suchitra at the rate of Rs.<\/p>\n
MFA 78\/02                                79<\/span><\/p>\n
3000\/-   (Rupees   three   thousand   only)   per   month   from   7-1-2002<\/p>\n
(date of filing this appeal) till this date.    He is given two months<\/p>\n
to pay the said amount to Suchitra failing which Suchitra will be<\/p>\n
entitled to levy execution proceedings  to recover the same.<\/p>\n
       28.    I.A.   1092\/2006   is   an   application   filed   by   Suchitra   on<\/p>\n
16-6-2006   seeking  enhancement  of   the  interim  maintenance  to<\/p>\n
Gouri to Rs. 5,000\/- per month.  Gouri has now attained 15 years<\/p>\n
of age.   Anil Krishnan has not cared to see the child for the last<\/p>\n
14 years.  Instead, he was more interested in contracting another<\/p>\n
marriage.  We are of the view that having regard to the growing<\/p>\n
age   of   Gouri   and   the   increased   demand   for   her    expenses   and<\/p>\n
the   capacity   and   obligation   of   Anil   Krishnan   to     bare   the<\/p>\n
expenses   of   his   daughter,     Gouri     is   entitled   to   a   sum   of   Rs.<\/p>\n
4,000\/-   (Rupees   four   thousand   only)     per   month     from   25-10-<\/p>\n
2005   that   is,     the   date   on   which   the   earlier     Division   Bench<\/p>\n
passed  orders       on I.A.   2285   of  2005.     The   enhanced      liability<\/p>\n
shall also be co-terminus with the   disposal of this appeal.   Anil<\/p>\n
Krishnan shall pay all arrears   including     those at the enhanced<\/p>\n
rate   to   Gouri     within   two   months   from     today   failing   which<\/p>\n
MFA 78\/02                               80<\/span><\/p>\n
Suchitra   shall   be   entitled   to   levy   execution   proceedings   for<\/p>\n
recovery of the same.\n<\/p>\n<\/p>\n
      29.     I.A.   144\/07   is   an   application   filed   by   Anil     Krishnan<\/p>\n
under Section   26 of the Hindu Marriage Act, seeking custody of<\/p>\n
his     daughter   Gouri     so   as   to   allow   him     to   look   after   her<\/p>\n
maintenance,   education   and   other   needs.                   Suchitra   has<\/p>\n
vehemently opposed this application by filing  a detailed counter.<\/p>\n
Anil Krishnan is a father who has not cared to see his daughter<\/p>\n
for the past 14 years.  It is well settled that it is the welfare of the<\/p>\n
child   which   is   of   paramount   consideration     while   ordering<\/p>\n
custody.         The   present   surge   of   love   and   affection   suddenly<\/p>\n
exhibited   by   Anil   Krishnan   towards     his   adolescent   daughter   is<\/p>\n
nothing   but   a   facade   to   camouflage     his   real   intention     of<\/p>\n
avoiding   the   payment   of   maintenance   to   his   daughter.<\/p>\n
Admittedly, he has married one Sujatha Menon on   26-11-2001.<\/p>\n
A   father   who   contracts   another     marriage   after   divorce   cannot<\/p>\n
ordinarily be held entitled to custody of the minor     girl.   ( See<\/p>\n
Yusuf v. Sakkeena<\/a> – AIR 1999 Kerala 54 ).  Having  regard to<\/p>\n
the   normal   course   of   human   conduct   Gouri   may   not   be   a<\/p>\n
MFA 78\/02                                81<\/span><\/p>\n
welcome   guest     in   her       father’s   house   where       she   cannot<\/p>\n
ordinarily expect her stepmother  ( a stranger) to shower on her<\/p>\n
the nectar of love and affection.  We are,  therefore, not inclined<\/p>\n
to give custody  of  Gouri to   Anil Krishnan.    We, however, leave<\/p>\n
the matter open for Anil  Krishnan to move the Family  Court for<\/p>\n
appropriate  orders including one for visiting  rights.<\/p>\n
        In the result, we  allow this appeal and set aside the  decree<\/p>\n
of   divorce   passed   by   the   Family   Court.       O.P.   No.   363   of   1999<\/p>\n
filed   by   Anil   Krishnan   before   the   Family   Court     will     stand<\/p>\n
dismissed with costs.     Suchitra shall be entitled to her costs in<\/p>\n
this appeal.  We also dispose  of the interlocutory applications in<\/p>\n
the manner indicated herein above.\n<\/p>\n<\/p>\n
                                                  (K.K.DENESAN, JUDGE)<\/p>\n
                                                 (V.RAMKUMAR, JUDGE)<\/p>\n
ani.\n<\/p>\n<\/p>\n
MFA 78\/02    82\n\n\n\n\n\n             K.K.DENESAN & V. RAMKUMAR, JJ.\n\n                       -------------------------------\n\n\n\n\n\n                        M.F.A.NO.78 OF 2002\n\n\n\n\n                                      JUDGMENT\n\n\n\n\n\n                       -------------------------------\n\n\n\n\n                     Dt.           APRIL   , 2007\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Suchithra vs Anil Krishnan on 13 April, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM MFA No. 78 of 2002(B) 1. SUCHITHRA D\/O. M.RADHAKRISHNAN NAIR, … Petitioner Vs 1. ANIL KRISHNAN, S\/O. G.K.PILLAI, … Respondent For Petitioner :SMT.ELIZABETH MATHAI IDICULLA For Respondent :SRI.P.RADHAKRISHNAN (1) The Hon’ble MR. Justice K.K.DENESAN The Hon’ble […]<\/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-46781","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSuchithra vs Anil Krishnan on 13 April, 2007 - 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\/suchithra-vs-anil-krishnan-on-13-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Suchithra vs Anil Krishnan on 13 April, 2007 - 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