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2020 DIGILAW 107 (KER)

Renju S/o Gopi v. Vijitha D/o Vijayan

2020-01-29

A.M.SHAFFIQUE, MARY JOSEPH

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JUDGMENT : A.M. SHAFFIQUE, J. 1. This appeal is filed by the petitioner in O.P. No. 37 of 2012 challenging judgment dated 29.01.2013, by which his petition for divorce on the ground of cruelty had been rejected by the Family Court, Muvattupuzha. 2. The couple got married on 14.12.2006 and they lived together only till 10.11.2010, in the meantime a child was born in the wed lock. Petitioner raised a contention that he was suffering mental cruelty at the hands of the respondent. She always raised allegation that he was having relationship with another lady and also with several other women. The respondent always suspected him and alleged illicit relationship with other women, which amounts to severe mental cruelty. It is further contended that while they were residing together, one fine morning, she had abused him and even slapped him. In January, 2009, she deserted the house. The respondent denied the allegations and before the Family court petitioner was examined as PW-1 and his relative was examined as PW-2. The respondent was examined as RW-1. Exts.A1 to A4 were the documents marked. The Family Court found that the allegation of cruelty as well as the desertion has not been proved and accordingly dismissed the petition. 3. The learned counsel for the appellant submits that the wife had made specific allegation against the petitioner that he was having relationship with another lady and even with other females. While being cross-examined as RW-1, she could not state from where she got the information, she only stated that she got information from other sources. The allegations were absolutely false and she always suspected the petitioner, which amounts to mental cruelty. That apart, she had left the matrimonial home in January, 2009. Therefore, this is a fit case in which divorce ought to have been granted on ground of cruelty as well as of desertion. The learned counsel also placed reliance on the judgment of the Apex Court in Narendra vs. K. Meena, (2016) 9 SCC 455 , wherein the Apex Court held that when allegations are made by the wife against her husband on extra marital affairs and it remain unsubstantiated, it amounts to mental cruelty. 4. The learned counsel for the respondent however urged that the Family Court was justified in dismissing the petition for divorce. 4. The learned counsel for the respondent however urged that the Family Court was justified in dismissing the petition for divorce. The wife had specifically stated that though they were residing in the same house, the husband used to sleep in a separate room and she and their child had to sleep in a separate room. After dinner husband used to enter his room at 8 pm and thereafter he would close the door. He used to speak to many people including his women friends over telephone for a long period and therefore her suspicion is well founded. That part, she had expressed her intention very clearly to live with the husband. 5. Yet another allegation that was made by the husband was that before marriage, she had a love affair with a person named Shahul and she eloped with him. The petitioner has produced Exts.A1 to A4 to prove the said fact. It was the contention of the petitioner that this fact was concealed. He also alleged that she continued to have relationship with him. But, the wife in her objection has stated that the said fact had been made known to the petitioner before marriage. It is therefore urged by the learned counsel for the respondent that the husband also had alleged in his petition that she was having relationship with said Shahul and she continued the said relationship. 6. Having heard the learned counsel on either side and having perused the records, we find this is a case in which there is specific allegation made by the wife against the husband. She had stated that her husband was having relationship with one Girija and many other women. But, while being examined as RW-1, she stated that she got information about the same from other sources. But, what was the source under which she had got information has not been specifically stated. She left the matrimonial home on 10.11.2010 and according to the husband there was no valid reason for her to remain away from his company and therefore it amounts to desertion also. But, this is a case in which the husband also was fed up with the wife on account of the suspicion she had against him. Therefore the contention that she had deserted the petitioner and he was willing to take her back cannot be sustained. But, this is a case in which the husband also was fed up with the wife on account of the suspicion she had against him. Therefore the contention that she had deserted the petitioner and he was willing to take her back cannot be sustained. But having regard to the law laid down by the Apex Court in Narendra’s case, it is a clear case where the wife was unable to establish at least by a probable evidence that husband was having any illegal relationship with other women, and when the allegation remains unsubstantiated, such allegation amounts to mental cruelty. That apart even while living together, the parties were living separately in two different rooms in the same house. There is some problem between them which prevented them from living together in a single room. That apart, since 2010 there had been no attempt to conciliate the matter. Even-though the matter was referred for mediation, the matter could not be settled. 7. Taking into consideration all these facts, we are of the view that this is a case in which the marriage is irretrievably broken and under such circumstances, the Family Court committed error in not granting the divorce. The evidence in the case was not properly appreciated and specific allegation raised by the petitioner regarding the suspicion of the wife/respondent was not properly evaluated. 8. In the light of the aforesaid discussions, we are of the view that the appeal requires to be allowed. In the result, the judgment in O.P. No. 37 of 2012 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.