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2020 DIGILAW 417 (KER)

PRASEENA v. GIRISH KUMAR

2020-05-20

A.M.SHAFFIQUE, MARY JOSEPH

body2020
JUDGMENT Mary Joseph, J. - This appeal is filed by the wife in a matrimonial relationship challenging the order passed by the Family Court, Kozhikode in O.P. No.845/2010 granting a decree for dissolution of marriage on the ground of cruelty and desertion. The Original Petition was filed under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 seeking dissolution of marriage on grounds of cruelty and desertion by the husband of the appellant. For the sake of convenience, the parties will be referred to hereinafter as the petitioner and the respondent. 2. The marriage of the petitioner and the respondent was solemnized on 23.4.2004 at Palakkal Durga Devi Temple and since then they lived as husband and wife at the residence of the petitioner. A male child was also born in the wed lock. After one month of their marriage, the respondent went to her house and stayed there for a few days and thereafter she did not return. After repeated calls by the petitioner, she returned to the matrimonial home. But, she continued raising complaints openly about the inconveniences at the matrimonial home. She was also frequent in insulting and humiliating the petitioner in front of her parents. When she became pregnant, she went to her house to stay there and did not return thereafter. Even though the petitioner visited her house to take her back for medical consultation and treatment, she did not turn up. The respondent avoided the taking home for delivery ceremony despite her undertaking to attend. Though the petitioner went to the house of the respondent to take her for the ceremony, she did not turn up. When she was admitted in the hospital for delivery, the entire expenses were met by the petitioner himself. After the delivery, the petitioner went her house to see the child but, he was denied access. Though several months passed after the delivery, the respondent has taken a stand not to return to the matrimonial home. The request of the petitioner's parents to join the matrimonial home was turned down by her. The ceremony of feeding rice to the child was not informed to the petitioner. Though the petitioner was admitted at the ESI Hospital, for some ailments, despite the information transpired, the respondent did not visit him. The request of the petitioner's parents to join the matrimonial home was turned down by her. The ceremony of feeding rice to the child was not informed to the petitioner. Though the petitioner was admitted at the ESI Hospital, for some ailments, despite the information transpired, the respondent did not visit him. After attending a mediation process, though she joined the petitioner in the matrimonial home with the child, it lasted only for a short while and she returned to her house. After a few days, the respondent was admitted at Medical College Hospital and underwent an operation. The petitioner visited her on obtaining the information and see the requisites done for her. But, after getting discharged from the hospital on 03.11.2007, she returned to her own house and thus expressed her reluctance to join the petitioner. The petitioner is the only son of his parents and due to their old age and illness, he is constrained to attend his job regularly. The aged parents' wish to see the child and pamper him was also turned down by the respondent. On 14.10.2009 a registered lawyer notice was sent to the respondent, but she did not respond. On 15.12.2009, the father of the petitioner died and despite the information transpired in that regard, neither the respondent nor her relatives visited his house to attend the funeral. A criminal complaint was filed by her against the petitioner, his mother and sister alleging harassment by them and that caused their arrest by the Police. Only after the death ceremony of the father, the petitioner, his mother and sister were enlarged on bail in the case by Judicial First Class Magistrate Court, Parappanangadi. Respondent also filed MC before the Family Court, Malappuram claiming maintenance allowance. The MC was allowed and maintenance allowance is being paid regularly by the petitioner to the respondent. Since 3.11.2007 onwards, the respondent was living separately from the petitioner without performing her duties as a wife. In view of the cruel treatment meted out by the petitioner at the hands of the respondent and neglect and desertion without a valid reason, the petitioner was constrained to file the petition on hand seeking dissolution of marriage. For the reason that the parties were living separate without any attempt from either side to join in matrimony, the contention that the marriage was irretrievably broken was also taken in the original petition. 3. For the reason that the parties were living separate without any attempt from either side to join in matrimony, the contention that the marriage was irretrievably broken was also taken in the original petition. 3. In the counter statement filed, the respondent denied the entire averments in the original petition. The marriage and the birth of the child were admitted. For the reason that the parties were living separate without any attempt from either side to join in matrimony, the contention that the marriage was irretrievably broken was also taken in the original petition. 3. In the counter statement filed, the respondent denied the entire averments in the original petition. The marriage and the birth of the child were admitted. The contentions specifically taken were that during pregnancy, she was not looked after by the petitioner, that the in-laws did not visit her house to call her to accompany them for the conduct of the ceremony of taking home for delivery, that she was ill-treated for not having brought sufficient gold ornaments, that she was insisted to abort the pregnancy, that she was denied food by the in-laws, that her demand to take her to a hospital in times of pain and bleeding was not attended to by the in-laws, that even after the delivery, the petitioner neglected herself and the child for IV 2 years, that the entire expenses for her treatment and other needs were meted out by her own family members, that additional ornaments and cash worth Rs.1 lakh were demanded by the petitioner after the birth of the child, that the husband and the in-laws had never been affectionate to her and the child, that what they wanted was only money, that the neighbours who took her to the matrimonial home were insulted and humiliated for the reason that the gold ornaments given to her is insufficient, that the gold ornaments already given to the respondent were taken by the petitioner on various occasions, that she was denied permission to attend her mother during her illness, that her father was scolded at the hospital while she was undergoing treatment for tubular pregnancy, that even after getting discharged from the hospital, the petitioner was not willing to take her back to the matrimonial home, that the child was taken by the petitioner once and was not returned and the custody of the child was obtained by the respondent after mediation, that the lawyer notice was issued by the petitioner only to get himself escaped from the criminal liability and that following the filing of MC seeking maintenance, the petitioner reached the house of the respondent to talk, which resulted in a scuffle there and based on that a criminal case was registered at the instance of the respondent against the petitioner and his family members. It is also contended that the petition itself is not maintainable and the only intention of the petitioner behind the filing of the same is to hurt the respondent mentally and physically and to marry another woman after avoiding her. It is stated by the respondent that she is not willing for a divorce from the petitioner. Raising contentions as above, the original petition is sought to be dismissed. 4. Before the Family Court, the petitioner and the respondent respectively tendered oral evidence as PW1 and RW1. The documentary evidence from either side consist of Exts.A1 & A2 series and Exts.B1 to B8 series. Both sides were also heard by the Family Court and after appreciation of the evidence and the arguments advanced, the Family Court found that the petitioner is entitled to obtain a decree for dissolution of marriage on grounds of cruelty as well as desertion. Aggrieved by the judgment passed as above, the respondent is now before us. 5. As PW1, the petitioner has deposed in tune with the entire pleadings in the Original Petition precisely and categorically. It is pertinent to note that the evidence tendered by PW1 was not supported by independent evidence. RW1 has also deposed in tune with the pleadings in the objection filed by her. Ext.A2 is a diary written by RW1. The relevant page of Ext.A2 is marked as Ext.A2(a) wherefrom it is seen that the respondent had entrusted a counsel to file a divorce petition. When confronted with that, RW1 has taken a stand of total denial. RW1 was also found addressed in Ext.A2 as "???. ". But, the context in which Ext.A2 diary was written by the respondent was not spoken by her. 6. On a scrutiny of the evidence of PW1 and RW1 discussed as above, the Family Court did not find any sufficient, valid and genuine reason for the separated life of the parties. It is not disclosed from the version of RW1 that she had made any complaint before any authority regarding the ill-treatment by PW1 and his family members as spoken by her. According to PW1, a lawyer notice was sent by him demanding restitution of conjugal rights and after receiving the notice, MC was filed by the respondent before the Family Court, Malappuram claiming maintenance allowance. A private complaint alleging woman harassment was also preferred by her against PW1 and his family members. According to PW1, a lawyer notice was sent by him demanding restitution of conjugal rights and after receiving the notice, MC was filed by the respondent before the Family Court, Malappuram claiming maintenance allowance. A private complaint alleging woman harassment was also preferred by her against PW1 and his family members. RW1 had also insulted PW1 in front of his friends and relatives by keeping away from attending the ceremony of taking for delivery from the matrimonial home. The aged and bed ridden father of PW1 was also denied with the opportunity to see the child, despite a demand made by him. After a few days, the father of PW1 died without his desire to see his grand child fulfilled. PW1 has also spoken categorically about the frequent complaints of RW1 about want of conveniences in the matrimonial home. 7. The testimony of PW1 was denied by RW1 in its entirety. Therefore, it is incumbent upon the petitioner to adduce independent evidence supportive of his claim that he suffered ill treatment at the hands of the respondent. In the absence of independent evidence to support the version of PW1 regarding the ill treatment alleged, cruelty as a ground to obtain a decree for dissolution of marriage cannot be taken as proved. Since he failed in doing so, we have no hesitation to hold that the Family Court was not justified in granting a decree for dissolution of marriage on the ground of cruelty based on his solitary evidence. 8. It is discernible from the evidence on record that after the delivery of the child, RW1 did not return to the matrimonial home. The factum also remains undisputed that RW1 was living separated in her parental home from 3.11.2007 onwards. From the oral as well as documentary evidence tendered by RW1, it is clear that she was also desirous of getting a divorce from the petitioner and therefore that she had contacted an Advocate for preparation of a divorce petition. In the absence of any evidence to indicate that steps have been taken by the respondent to join the petitioner in the matrimonial home or demands were made by her to the petitioner to take her to the matrimonial home, we are constrained to take a view that the marital relationship among the parties has been broken beyond repair since 2007. The Original Petition was filed in the year 2010. The Original Petition was filed in the year 2010. The judgment under challenge was passed on 28.1.2011 and the appeal on hand was pending consideration before this Court from 2012 onwards. If the respondent actually intended to live with the petitioner, she must have taken efforts to join him. The evidence pointedly establish that the parties were living separated from 3.11.2007 onwards. 8. It is revealed from the evidence on record that the respondent has started living separated from the petitioner from 3.11.2007 onwards. As evidenced, she did not take any effort to join the petitioner and restore the matrimonial relationship at any point of time in the two year period prior to the filing of the Original Petition on hand. The two completed years of separated life by the wife itself is testimony of desertion. Evidence in the above regard will suffice to grant a decree for dissolution of marriage on the ground of desertion. The Family Court has also observed correctly and found the petitioner entitled to get a decree on that ground. Therefore, the finding of the Family Court in that regard is only to be confirmed. In view of the adamant attitude of the parties for two completed years, we are constrained to take a view that the marital relationship of the parties has also been irretrievably broken. For the foregoing reasons, the Mat. Appeal is allowed in part. The impugned order passed by the Family Court to the extent it granted the decree for dissolution of marriage on the ground of cruelty is set aside. The impugned order to the extent of grant a decree for dissolution of marriage on the ground of desertion is maintained.