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2018 DIGILAW 981 (KER)

Hiroshmi v. Govindan

2018-11-30

A.M.SHAFFIQUE, SHIRCY V.

body2018
JUDGMENT : A.M. Shaffique, J. This appeal has been filed by the petitioner in O.P.No.5 of 2005 of the Family Court, Thrissur by which her petition for divorce on the ground of cruelty had been dismissed. 2. The petitioner married the respondent on 2.2.1985. They got separated in the year 2004. According to the petitioner, right from the beginning of the marriage, the respondent/husband was behaving in a cruel manner. She was being harassed in one way or other. He used to consume alcohol and has become a drunkard and all through his life he is continuing the same activity. He used to bring his friends to the house and drink alcohol in the house. He is an ex-military person and will get the military quota of liquor as well. Two children were born in the wedlock. Later, during the late stages of marital life there occurred certain instances by which she left the matrimonial home. According to her, she was man-handled by the respondent and she was admitted in the hospital on 7.6.2004 and discharged from hospital on 14.6.2004. She was an employee in the BSNL and was working in Mangalore during the relevant time. She also had a case that after she came back from Mangalore in September, 2004, the respondent came and attempted to man-handle her and her children. Her brother interfered and the people in the locality also assembled. It was seen that the respondent was fully drunk and he was abusing everyone. They locked him up in a room and a complaint was given to the Police and the Police warned him. According to her, all along her life, she and her children were not being taken care by the respondent, but was being harassed and man-handled by the respondent and therefore she sought for divorce on the ground of physical and mental cruelty. 3. The respondent denied the allegations. According to him, he had not committed any act of cruelty. He has taken care of his wife and children and all the allegations are absolutely false. 4. Before the Family Court the petitioner and two other witnesses were examined as PW1 to PW3 and she relied upon Exts.A1 to A3. Respondent placed reliance on the evidence of RW1 and RW2. The case was heard along with O.P.No.528 of 2008 filed for partition of the plaint schedule property. 4. Before the Family Court the petitioner and two other witnesses were examined as PW1 to PW3 and she relied upon Exts.A1 to A3. Respondent placed reliance on the evidence of RW1 and RW2. The case was heard along with O.P.No.528 of 2008 filed for partition of the plaint schedule property. In fact, common evidence was taken in the case and the Family Court found that the contention regarding cruelty had not been proved and accordingly divorce was denied. 5. The learned counsel for the appellant contends that the court below had not considered the evidence in the proper perspective. PW1, the petitioner herself had clearly spoken about the cruelty meted out against her by her husband. Her evidence was supported by their own son PW2 and her brother PW3. Evidence of PW3 clearly supports the contention of the petitioner and his evidence could not have been ignored by the Family Court. The Family Court relied upon the evidence of a friend of the respondent who is examined as RW2 and had come to a finding that the version of the respondent is believable and no specific instance of cruelty had been proved in the case. 6. On the other hand, learned counsel appearing for the respondent would submit that the case set up by the petitioner has no basis at all. There are several discrepancies in the pleadings as well as in the evidence of the petitioner and therefore the court below was justified in arriving at a finding that cruelty had not been proved. It is pointed out that though the petitioner has a contention that she had come back from Mangalore during the Onam season and during the said period the respondent had threatened her at the parental home. It was found that Onam was during the 1st week of September, 2004, whereas, according to the petitioner her husband had threatened her on 25.9.2004. The court below had therefore rightly disbelieved the version of the petitioner and therefore there is no reason why this Court should interfere with the judgment of the Family Court. 7. After having heard the learned counsel on either side and after having perused the records it is rather clear that the petitioner was living with the respondent for more than 20 years. Two children were born in the wedlock. It is her case that she was being mentally and physically tortured. 7. After having heard the learned counsel on either side and after having perused the records it is rather clear that the petitioner was living with the respondent for more than 20 years. Two children were born in the wedlock. It is her case that she was being mentally and physically tortured. She also had specifically spoken about the fact that she was being man-handled on 7.6.2004, the day on which she has been admitted in the hospital and she was discharged on 14.6.2004. During evidence she also produced Ext.A2, a complaint given to the Police dated 26.8.2004, wherein allegation was that the respondent had come to her parental house and when he tried to man-handle her, her brother intervened in the matter. Police called the parties and warned the respondent. 8. Yet another instance regarding the attempt of the respondent coming to her parental home and threatening her on 25.09.2004 on which date there was a confrontation between her brother and the respondent as well. The oral testimony of PW1 is supported by the evidence of PW2. He in his evidence had clearly stated that all along, the respondent used to harass the petitioner and the respondent had never taken care of his wife or his children. He never loved them and was always abusing them. His mother had suffered substantially and ultimately, she had to leave the matrimonial home. He also narrated the incident by which her mother was hospitalized on account of the ill-treatment by his father. The evidence of PW1 again is supported by the evidence of PW3, the brother of the petitioner, who also reiterated various acts of cruelty meted out against her. He also stated about an instance he had a fight with the respondent, when the respondent tried to abuse PW3’s mother. 9. Apparently, the case projected by the petitioner shows the cruel treatment suffered by her at the hands of the respondent. Several specific instances of cruelty has also been pointed out. But as pointed out by the learned counsel for the respondent, there are some discrepancies regarding the date on which the incident had happened. But that by itself may not indicate that the alleged cruelty which had been proved by the petitioner by examining her son and brother, who had supported her version, can be discarded. 10. But as pointed out by the learned counsel for the respondent, there are some discrepancies regarding the date on which the incident had happened. But that by itself may not indicate that the alleged cruelty which had been proved by the petitioner by examining her son and brother, who had supported her version, can be discarded. 10. Learned counsel for the appellant relied on the judgment of the Apex Court in Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 ) wherein it is held that in matrimonial disputes, it would be inappropriate to expect outsiders to come and depose. The family members and the relatives are the most natural witnesses. 11. The Family Court placed much reliance on the testimony of RW2, friend of RW1. Apparently, the evidence of RW2 is partisan in nature. He is not a person who is closely connected with the couple. Only the person who lives with the petitioner and respondent will know the exact problems. In the case on hand, PW2 their son himself had supported the version of his mother. He stated that his mother had to suffer cruelty at the hands of his father. We don’t think that anything further is required to be considered to arrive at a conclusion that the petitioner had suffered mental as well as physical cruelty at the hands of the respondent. 12. In the light of the aforesaid finding, we are of the view that the Family Court committed serious error in not granting divorce as sought for. In the result, this appeal is allowed. The judgment of the Family Court in O.P.No.5 of 2005 is set aside and the Original Petition is allowed as under: The marriage between the petitioner and the respondent shall stand dissolved by a decree of divorce. No costs.