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2019 DIGILAW 852 (KER)

Gayathri D/o. Mohanan v. Manoj S/o. Pushpangadhan

2019-10-23

A.M.SHAFFIQUE, T.V.ANILKUMAR

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JUDGMENT : SHAFFIQUE, J. These two appeals arise from the matrimonial issues that arose between a couple. O.P.No.1173 of 2006 has been filed by the husband for a declaration that the marriage between the couple is null and void. Alternatively, he sought for dissolution of marriage on the ground of cruelty. 2. The short facts of the case is as under; The parties are described as shown in the original petition unless otherwise stated. The marriage between the couple was solemnised on 26.10.2003 as per the Hindu religious rites and ceremonies. A child was born in the wedlock on 24.2.2006. According to the petitioner, while his wife was pregnant, she was taken to Raja Hospital at Chavakkad. From there, she was referred to Jubilee Mission Hospital, Thrissur and during the treatment, it was noticed that she was suffering from Idiopathic Thrombocytopenic Purpura (ITP). He later found that she was suffering from the said disease even before the marriage and she was undergoing treatment for the same. He contended that it is an incurable disease which fact was not brought to his notice prior to the marriage. At the time of delivery she was provided with 11 bottles of blood. Even the hospital authorities were not willing to undertake her delivery on account of the risk involved in the matter. According to him, in so far as this fact was not brought to his notice prior to the marriage, he seeks for a declaration that the marriage is null and void. It is further contended that after delivery, the wife was taken to the parental home and thereafter they did not live together as husband and wife. He attempted to visit her on a few occasions at her house but the attitude towards him was not cordial and he was abused by his wife and her parents. He was unable to visit his child and she was not interested to continue the marital life. Every time when he attempted to visit his child, he was abused and he was asked to go away from her residence. The change in the attitude of the respondent, according to him, was on account of the fact that the petitioner and his family members had came to know about the disease she was suffering. Every time when he attempted to visit his child, he was abused and he was asked to go away from her residence. The change in the attitude of the respondent, according to him, was on account of the fact that the petitioner and his family members had came to know about the disease she was suffering. The attitude which was shown against him by the respondent and her parents amounts to cruelty and therefore he sought for dissolution of marriage as well. The respondent denied the allegations. According to her, she was not aware of any such disease. She has irregular periods which has been treated and therefore there was no reason for concealing any particular fact which would affect the marital relationship at all. Her complaint was that demanding dowry, she was being harassed and the respondent had taken away all her gold ornaments, except a gold chain, an ear ring and five bangles and the rest of the gold ornaments were misappropriated. She also stated that she was subjected to cruelty. She denied having abused the petitioner by herself or her parents. According to her, the petitioner did not come to enquire about her nor has visited the child. Since no maintenance has been paid, she had to file a case demanding maintenance. 3. In order to prove the case, three witnesses were examined from the side of the petitioner as PWs. 1 to 3. Respondent was examined as RW1. Exts.A1 to A12 and Ext.B1 were the documents relied upon. The Family Court found that a declaration as sought for cannot be granted, but having considered the question of dissolution of marriage, it was found that from the attitude of the wife it is clear that there was mental cruelty and accordingly granted divorce as sought for. 4. The learned counsel for the appellant submits that the entire issue between the parties was relating to the so called ITP, which by itself was not a contagious disease that could prevent a person having a marital relationship. The petitioner had proceeded on a wrong assumption that the disease was contagious and it may affect the generations to come. The Doctor in Ext.B1 had clearly indicated that there was nothing wrong with the respondent, while prevents her from continuing the marital relationship. The petitioner had proceeded on a wrong assumption that the disease was contagious and it may affect the generations to come. The Doctor in Ext.B1 had clearly indicated that there was nothing wrong with the respondent, while prevents her from continuing the marital relationship. It is submitted that all along the respondent was ready and willing to join the petitioner, but it was only on account of his attitude that the marital relationship had failed. 5. On the other hand, the learned counsel appearing for the husband would submit that after the petitioner having known about the problem faced by the respondent, he had rendered necessary assistance to treat her. He had come to know about the complication that she had, only when she visited the hospital at the time of pregnancy. The complication arising from the particular situation is that the platelet count will be much less than what is actually required. From Raja's Hospital she was therefore referred to Jubilee Mission Hospital at Thrissur, where the particular disease was diagnosed and she continues to have the same problem as there was discoloration and scratches on her skin and scratches. It is further submitted that despite all this, the petitioner was willing to take her to the matrimonial home but she was not willing and the parents of the respondent having known about the fact that the disease was made known to the petitioner, they started behaving in a rude manner. When it was noticed that she was not interested to live with him and he was not even permitted to see the child, he had no other option other than to file a petition seeking nullity of marriage and in the alternative, dissolution of marriage. Having known about the same, she preferred a police complaint, on the basis of which, the police had come and searched the house and in her presence, all the gold ornaments belonging to her were taken from the almirah with the key which was provided by her. Even thereafter, she filed a case against the petitioner alleging offence punishable under Section 498A and Section 406 of IPC. The police had referred the matter by stating that those were false allegations, but still a private complaint was filed which ultimately resulted in acquittal. Even thereafter, she filed a case against the petitioner alleging offence punishable under Section 498A and Section 406 of IPC. The police had referred the matter by stating that those were false allegations, but still a private complaint was filed which ultimately resulted in acquittal. It is therefore contended that despite the cruelty meted out against the petitioner, during the whole period, she was prosecuting false cases against the petitioner which also has to be taken into account. The matrimonial relationship has irretrievably broken and there is no chance for a reunion. Under such circumstances, the learned counsel seeks for sustaining the order of divorce. 6. Having heard the learned counsel on either side and having perused the records, we are of the view that the evidence of PW1 clearly narrates the incidents which happened immediately after the delivery of the child. Of course, it was shocking for the petitioner, when he had come to know about the particular physical situation of his wife. But still, he ensured her proper treatment, as she was in the advanced stage of pregnancy. Even according to the Doctors who treated her, at the time of delivery, sufficient quantity of blood had to be given for effecting the delivery, as loss of blood is a situation that may arise on account of profuse bleeding since the platelet count was reduced. But from the evidence of PW1, it is further seen that the wife had come to the matrimonial home on 21.5.2006 to perform the functions in connection with the birth of the child and she left back on 25.5.2006. The argument of the appellant is that once it is admitted that she had come back from the parental home to the matrimonial home, the allegation of cruelty was totally misconceived. But this is a case, in which, even PW1 had clearly narrated the attitude of the respondent against him which was immediately after the delivery. Her parents had also abused him and that apart, he was not permitted to see the child. Though these facts were denied by RW1 in her evidence, the plight of a person being abused when he goes to visit his child, in his wife's house can be imagined, and it amounts to mental cruelty. Her parents had also abused him and that apart, he was not permitted to see the child. Though these facts were denied by RW1 in her evidence, the plight of a person being abused when he goes to visit his child, in his wife's house can be imagined, and it amounts to mental cruelty. That apart, from the evidence it is rather clear that immediately on receiving notice in the divorce petition, a complaint has been filed and at the instance of the police, the house of the petitioner was searched and the gold ornaments and other articles of the respondent were taken away. The fact that she had taken away all her gold ornaments by itself means that the petitioner or his family members had not misappropriated the gold ornaments. But still, she filed a complaint against them under Sections 498A and 406 of IPC. Though it was referred by the police, she continued to prosecute the matter by filing a private complaint, which ultimately ended in acquittal. On the aforesaid facts, it is rather clear that false complaints have been filed by the respondent against the petitioner and his family members which also amounts to cruelty. Of course, there is nothing wrong in filing cases if the complaint is genuine, but when it is rather proved by cogent evidence that the complaint was absolutely false, the very act of filing such complaints itself amounts to cruelty. Taking into account all these facts, we do not think that the Family Court committed any error in granting a decree for divorce. As far as the claim for nullity of marriage is concerned, the materials placed on record are not sufficient enough to arrive at a conclusion that the respondent was aware of the fact that the said disease may affect the marital relationship. Even otherwise, Ext.B1 proves the fact that such a disease by itself cannot affect the marital relationship between the couple. Therefore, we do not think that the Family Court erred in rejecting the prayer for a declaration that the marriage is null and void. In the result, we do not find any grounds to interfere in either of these appeals. Mat. Appeals fail and the same are accordingly dismissed. All pending interlocutory applications are closed.