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2012 DIGILAW 738 (KER)

SHINOJ GEORGE JOSEPH v. HIMA GEORGE

2012-08-03

K.T.SANKARAN, M.L.JOSEPH FRANCIS

body2012
JUDGMENT Joseph Francis, J. This appeal is filed by the petitioner(husband) in O.P. (Divorce) No.480 of 2009 on the file of the Family Court, Thiruvalla. The respondent(wife) herein was the respondent in that Original Petition, which was filed by the husband for divorce under Section 10 of the Divorce Act. The facts of the case are briefly as follows : The marriage between the petitioner and the respondent was solemnized on 21.8.2006 at Laka St.Thomas Marthoma Church, Edayaranmula, according to the Christian religious rites. At the time of marriage, the petitioner was working with Air India Express and the respondent was a student at Ernakulam. An amount of `2.05 lakhs was offered as share amount and the respondent was wearing about 25 sovereigns of gold ornaments. But subsequently it was found that those are imitation ornaments. In December, 2006, the petitioner got an employment in Qatar Airways and the respondent was taken to the petitioner's house. But she stayed there only for few days and left to her house. Thereafter, she worked at several places and during this period she was changing her mobile phones very often. She grabbed money from her employees, pledged her ornaments in fake addresses and she even committed theft of the petitioner's mother's gold ornaments. While she was working with NIFE for three months, there were several complaints of irregular dealings of money and whenever the same was enquired by the petitioner, she became violent and threatened the petitioner. She was harassing the petitioner mentally and physically and she was disobedient. She often picked up quarrels with the petitioner and threatened to commit suicide. She used to make telephone calls even during midnight and to avoid checking of the calls, she changed mobile phones frequently. On 10.5.2009 when the petitioner enquired her about the pledging of ornaments, she became violent and slapped the petitioner and then left the house. Even consent for the marriage was obtained by fraud. On these grounds, the petitioner sought dissolution of marriage. 2. In the Family Court, the respondent appeared, but she did not file any counter and she remained ex parte during trial. Before the Family Court, the petitioner was examined as PW1 and Exts.A1 to A4 series were marked. The Family Court, on considering the evidence on record, dismissed the petition, on finding that cruelty was not proved by the petitioner against the respondent. Before the Family Court, the petitioner was examined as PW1 and Exts.A1 to A4 series were marked. The Family Court, on considering the evidence on record, dismissed the petition, on finding that cruelty was not proved by the petitioner against the respondent. Against that judgment and decree, the petitioner filed this appeal. 3. In this appeal also, the respondent did not appear, even though notice was served on her. The learned counsel for the appellant submitted that the respondent has already deserted the appellant long ago and now, it is learnt that she has settled in U.S.A. and has also contracted a second marriage. The learned counsel for the appellant submitted that the court below went wrong in concluding that there was no instance of cruelty committed by the respondent towards the appellant, so as to make a ground for divorce. The court below ought to have understood the gravity of agony faced by the appellant throughout the marital life because of the unbearable behaviour of the respondent. 4. In the Original Petition, the petitioner seeks dissolution of marriage under Section 10 of the Divorce Act, but no sub section is specifically mentioned therein. But the specific allegations raised in the petition would show that the petitioner is claiming divorce on the ground cruelty under Section 10(1)(x) of the Divorce Act. Section 10(1)(x) of the Divorce Act provides that a marriage solemnized before or after the commence of Indian Divorce Act (Amendment) Act, 2001 may, on a petition presented either by the husband or wife, can be dissolved on the ground that since the solemnization of marriage, the respondent has treated the petitioner with cruelty so as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent. 5. Cruelty is a ground for matrimonial reliefs under all matrimonial laws. But, the term "cruelty" is nowhere defined nor is capable of any definition. The concept of cruelty has varied from time to time and from place to place and from individual to individual in its application to social status of persons involved and the economic conditions and other matters. The cruelty must be of such a nature that the parties cannot, reasonably be expected to reside together. It has to be determined in the facts and circumstances of the case. The cruelty must be of such a nature that the parties cannot, reasonably be expected to reside together. It has to be determined in the facts and circumstances of the case. A particular behaviour of the parties may amount to cruelty in one set of circumstances and may not be so, in another set of circumstances. The facts like environment, status in society, education, local customs, physical and mental conditions of the parties and also the subsequent events can be taken note of. 6. In the petition, it is alleged that the respondent always mentally and physically harassed the petitioner and threatened the petitioner that she will commit suicide and sometimes, she even physically tortured the petitioner and she used to beat and slap the petitioner when she becomes angry. In the petition, it is further alleged that on 10.5.2009, the respondent left the petitioner's house, after beating the petitioner and parents, along with her father. 7. In this case, the respondent appeared before the Family Court in the initial stages, but she did not file any counter, disputing the correctness of the allegations made by the petitioner in the petition. When the petitioner was examined as PW1, he deposed that the facts mentioned in the petition are true and that the respondent assaulted him on 10.5.2009 and left his house along with her father. PW1 deposed that while the respondent was working at NIFE, she misappropriated money from that company and that Exts.A4 series are the documents relating to that matter. Ext.A4(a) is the copy of the letter dated 13.5.2009 written by the respondent to the Director of NIFE, Kochi, admitting that there was irregularity in the accounts and an amount of `1,05,650/- was due to the company from her and that she was ready to pay the amount in instalments. It has come out in evidence that the respondent/wife is residing separately from the petitioner from 10.5.2009 onwards without any reasonable cause. Leaving the matrimonial home by the respondent without the consent of the petitioner and not returning to the matrimonial home and deprivation of the company and denial of enjoyment of married life with the petitioner amounts to cruelty on the part of the respondent. Since the respondent/wife used to quarrel with the appellant/husband, used to assault him and used to threaten him to commit suicide, she is guilty of cruelty. Since the respondent/wife used to quarrel with the appellant/husband, used to assault him and used to threaten him to commit suicide, she is guilty of cruelty. It would be harmful and injurious to the appellant to reside with such a type of person. Therefore, we are of the view that the petitioner is entitled to get a decree of divorce on the ground of cruelty under Section 10(1)(x) of the Divorce Act and that the Family Court was not justified in dismissing the Original Petition. Accordingly, this appeal is allowed and the judgment and decree in O.P.No.480 of 2009 on the file of the Family Court, Thiruvalla is set aside and that Original Petition is allowed and the marriage between the appellant and the respondent is dissolved with effect from today. The parties are directed to suffer their respective costs in this appeal.