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2013 Supreme(Ker) 502
High Court of Kerala
ANTONY DOMINIC & P.D. RAJAN, JJ.
M.N. Sabu
Versus
M.K. Seena
Mat. Appeal Nos. 166, 171 & 172 of 2011 & 153 of 2012
Decided On : 30-08-2013
For the Appellant:K.C. Eldho, Jijo Thomas, S. Suraj, Advocates.
For the Respondent:Mohan Jacob George, Mrs. P.V. Parvathi, Mrs. Reena Thomas, L. Ram Mohan, Advocates.
The main legal point established in the judgment is the requirement for substantial evidence to support claims of mental ailment and cruelty in matrimonial disputes, and the consideration of the child's welfare in guardianship matters.
Headnote:
Guardianship - Hindu Marriage Act - Matrimonial Property Dispute - Sections 13(1)(ia) and 13(iii) of the Hindu Marriage Act, Guardians and Wards Act - [13(1)(ia), 13(iii), 7]
Fact of the Case:
The appeals arose from a common order passed by the Family Court, Ernakulam in matrimonial disputes between a husband and wife. The husband filed for guardianship of the child and divorce, while the wife filed for exclusive title over the property and partition. The Family Court dismissed the husband's claims and allowed the wife's partition claim.
Finding of the Court:
The Family Court dismissed the husband's claims for guardianship and divorce, and allowed the wife's claim for partition of the property. The court found that there was no evidence to support the husband's allegations of mental ailment and cruelty by the wife.
Issues: The issues revolved around the husband's claims for guardianship and divorce, and the wife's claim for exclusive title over the property and partition.
Ratio Decidendi: The court found that there was insufficient evidence to support the husband's claims of mental ailment and cruelty by the wife, leading to the dismissal of his claims. The court also considered the welfare of the child in dismissing the husband's appeal for guardianship.
Final Decision: The appeals were dismissed by the court, upholding the Family Court's decision to dismiss the husband's claims and allow the wife's partition claim.
Antony Dominic, J.
1. These appeals arise from the common order passed by the Family Court, Ernakulam in OP.Nos.495/03, 496/03 and 97/05. Parties to these cases are husband and wife. Therefore, these appeals were heard together and are disposed of by this common judgment.
2. Mat.A.Nos.166/11, 171/11 and 172/11 are filed by the husband and Mat.A.No.153/12 is filed by the wife. Parties are Hindus and their marriage was solemnised on 27.6.1997. In their wedlock, a male child Arjun was born on 18.12.1998. On account of strain in the marital relationship, the wife returned to her parental home and the couple are residing separately since 27.7.2002.
3. OP.495/03 was filed by the husband for appointing him as the guardian of the child and OP.496/03 was also filed by him claiming divorce from the wife. OP.97/05 was filed by the wife for declaring her exclusive title over the scheduled property and also for consequential injunction against the husband restraining him from taking usufructs from the property. Alternatively, she also prayed that 35 cents of land standing in her name be separated by a decree of partition. In OP.97/05, husband raised a counter claim for declaration of his exclusive title over the entire extent of one Acre of land.
4. Cases were tried jointly and before the Family Court, the wife and husband were examined as PW1 and RW1 respectively. On behalf of the wife, Exts.A1 to A3 were marked and on behalf of the husband, Exts.B1 to B9 were also marked. By a common judgment, OP.495/03 filed by the husband for guardianship of the minor was dismissed by the Family Court, but it allowed access to him to the child on every third Saturday between 10.30 am and 12.30 pm. OP.496/03 filed by the husband for divorce was dismissed. In OP.97/05, the wife's claim for declaration of exclusive title and ownership over the scheduled property was rejected and she was allowed a decree of partition in respect of the 35 cents that stood in her name. Consequently, injunction in respect of that property was also allowed. Husband's claim to the extent of 65 cents which stood in his name was also allowed. It is challenging these orders that the husband has filed Mat.A.Nos.166/11, 171/11 and 172/11. Mat.A.153/12 has been filed by the wife aggrieved by the decree to the extent relief is denied to her in OP.97/05.
5. Having thus set out the basic facts, we shall now proceed to deal with the appeals. We shall first deal with Mat.A.171/11 filed by the husband aggrieved by the dismissal of OP.496/03 filed by him for divorce. The petition was filed invoking sections 13(1)(ia) and 13(iii) of the Hindu Marriage Act. The judgment of the Family Court shows that the facts narrated in OP.496/03 have been discussed in paragraphs 7 and 8 and in paragraphs 25 to 28, it has discussed the evidence also.
6. A reading of the judgment itself shows that although it was contended by the husband that the wife was suffering from mental ailments of incurable nature and that it is not possible to continue cohabitation with her, apart from the oral evidence that she was once taken to a Psychologist for consultation, there was no medical or other acceptable evidence enabling the Family Court to arrive at a conclusion that the wife was suffering from any mental ailment, be it of incurable nature or otherwise. Therefore, it was on account of the absence of any such dependable evidence that the Family Court declined to accept the case of the appellant husband that the wife was suffering from a mental disorder of incurable nature, disabling him from living with her.
7. Now what remains is the case of cruelty. The judgment shows that the separation between the parties which took place on 27.7.2002 was preceded by an incident in the matrimonial home. According to the wife, husband splashed hot milk on her body while the child was in her hands. This resulted in burn injuries not only to her but also to the child. It was alleged that the incident happened at 7 am on t
