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2017 Supreme(Ker) 757
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. SHAFFIQUE, ANU SIVARAMAN, JJ.
R. Ajithakumari – Appellant
Versus
A.S. Subhagan – Respondent
Mat. Appeal No. 182 of 2010
Decided On : 03-07-2017
For the Appellant : B. Pramod.
For the Respondents: V.M. Syam Kumar, Kripa Elizabeth Mathews and P.F. Rosy.
The evidence of mental cruelty and desertion, as established by the witnesses, supported the grant of divorce under the Hindu Marriage Act, 1955.
Headnote:
Divorce - Mental Cruelty - Desertion - Evidence of PWs. 1 to 3 indicate mental harassment by the wife, and desertion by leaving matrimonial home - Acts and Sections: Hindu Marriage Act, 1955 - Sections 13(1)(i-a) and 13(1)(i-b) - Summary: The court found evidence of mental harassment and desertion by the wife, leading to a decree for divorce - The court relied on the evidence of PWs. 1 to 3 to establish mental cruelty and desertion, and found that the wife's behavior caused loss of reputation to the husband, amounting to mental cruelty - The wife's failure to resume cohabitation after leaving the matrimonial home further supported the husband's case - The court dismissed the appeal against the Family Court's judgment granting divorce.
Fact of the Case:
The husband filed for divorce alleging mental cruelty and desertion by the wife, who denied the allegations and counter-alleged cruelty by the husband.
Finding of the Court:
The court found evidence of mental harassment by the wife and desertion by leaving the matrimonial home, leading to a decree for divorce.
Issues: Allegations of mental cruelty and desertion by the wife, and counter-allegations of cruelty by the husband.
Ratio Decidendi: The evidence of mental harassment and desertion by the wife, as established by PWs. 1 to 3, supported the husband's case for divorce.
Final Decision: The court dismissed the appeal, upholding the Family Court's judgment granting divorce to the husband.
A.M. Shaffique, J.
1. This appeal is filed by the respondent in OP (HMA) No. 184/2006 by which the Family Court by judgment dated 16.12.2009 granted a decree for divorce. The parties are referred to as shown in the original petition.
2. The short facts involved in the case would show that the petitioner and respondent got married on 11.9.1990. Allegation raised by the petitioner/husband was that from the very beginning of the marriage, she was picking up quarrels with her in-laws and false complaints were being raised in order to have a separate residence. Ultimately, he constructed a house in 7 cents of land and resided away from the parental house. He further alleges that in the separate residence also, she treated him with cruelty as she used filthy words against him in the presence of strangers. Further she was in the habit of wandering in the neighbouring house and spreading false allegations against the petitioner to his friends, relatives etc. which had tarnished his reputation. It is further contended that on 8.4.2003 at 7 p.m. her father, brothers and some rowdies manhandled him which was silently observed by the respondent without causing any interference. Since the said incident, there was no cohabitation between the spouses and alleging cruelty and permanent desertion, divorce is sought.
3. In the objection filed by the respondent/wife she denied all the allegations. According to her, she never quarreled with him and did not insist for any separate residence whereas he was in the habit of drinking and once he was under the influence of alcohol, he started misbehaving with her and the children. He used to manhandle her by demanding money and gold. He used to pick up quarrels time and often. She also denied having spread any sort of gossip and other information to the neighbours, friends or relatives which has caused any lack of reputation. In regard to incident on 9.4.2003, she contended that the petitioner had come fully drunk and assaulted her severely and thereafter there was no cohabitation between the couple. She filed MC No. 16/2008 for maintenance, but so far no amount had been paid.
4. The above case was considered along with original petition filed by the husband seeking custody of the minor children. Common evidence was taken in the case. The husband was examined as PW-1 and he relied upon the evidence of PW-2 and PW-3. Wife was examined as DW-1. Petitioner placed reliance upon Exts.A1 to A10(a) documents and respondent placed reliance upon Exts.B1 to B4. The Family Court on an appreciation of the evidence found that the evidence of PWs. 1 to 3 clearly indicate that the wife was causing mental harassment to the petitioner and taking into account the said evidence it was found that a case of mental cruelty as well as desertion had been established and accordingly a decree had been granted.
5. Learned counsel for the appellant while impugning the aforesaid judgment submits that the court below had misread the evidence in the case and therefore a re-appreciation of the evidence is required, in which event it could be found that the judgment of the Family Court was erroneous. Learned counsel also placed reliance on the following judgments:-
(i) Beena S.S. vs. Sundaresan and Others, 2016 (1) KLT 546. In this case, the Division Bench held that in order to establish mental cruelty, there should be sufficient pleading and evidence which is substantial and material in nature to the extent of creating a permanent mental distress and everlasting disturbance in the mind of the person alleging cruelty. It is also held that flimsy, shallow and baseless allegations shall not constitute cruelty.
(ii) Mahesh Chander Sharma vs. Renu Sharma, 2016 KHC 3889. This judgment is rendered by a learned Single Judge of Himachal Pradesh High Court wherein it is held that if the husband has condoned the acts of the respondent wife, the same has to be borne in mind while granting or refusing the relief of divorce. In this case, the C
