IMPORTANT POINT
If wife makes false allegations against husband and children, that itself will amount to mental cruelty.

P.D. Rajan, J.—M.A. Nos. 696/2007 and 356/2008 are preferred by the husband against the judgment of Family Court, Kottayam at Ettumanoor in O.P.Nos.72 of 2005 and 235 of 2005. In Mat. Appeal No.696/2007 his wife is the respondent and in Mat. Appeal No.356/2008, the wife and the children of appellant are respondents 1 to 3.

2. O.P.No.72/2005 was filed by the husband under Section 10 of Indian Divorce Act and O.P.No.235/2005 was filed by the wife against the husband and his children for decree of permanent prohibitory injunction.

3. In O.P.No.72/2005 the appellant’s case was that on 8.10.1999 his first wife died and after that he married the respondent on 13.11.2000 as per the Christian customary rites and that they lived together in the matrimonial house. While so, respondent demanded share in the appellant’s property and she quarrelled with his children, born in the first wife. At the time of marriage, respondent had suppressed the fact of removal of her uterus. After retirement from KSEB in the year 1996, appellant was serving as the Secretary of a Church, and during that period, respondent quarrelled with the appellant and threw away the accounts book of the Church and disobeyed him. It was alleged that she always behaved cruelly, filed false complaints before various forums like Women’s Commission and Lok Ayuktha and filed criminal cases against him u/s. 498A IPC and in the year 2002 she made an attempt to commit suicide. After that incident, there was a mediation talk and as per the compromise, 3½ cents of property and a house was purchased for the residence of the respondent. In spite of it, she was not willing for a divorce and that the appellant is now paying Rs.1000 per month as maintenance. When he realised that it was not possible to live with the respondent in the matrimonial house due to her cruelty and harassment, he shifted to a rented house and was living there. Hence the petition for divorce.

4. In the Lower Court, respondent filed her objection, and contended that there was no suppression of facts at the time of marriage. According to her, at the time of marriage, appellant agreed to give her one acre of property and a house within three months after the marriage. As per the agreement, 89.4 cents of property had been given to her by virtue of a settlement deed and subsequently appellant cancelled it on 31.10.2003. While residing so, appellant made an attempt to oust her from the house and treated her with cruelty, by disconnecting telephone and electricity connections and also stopped the newspaper and milk supply to her house. On 9.4.2004, the petitioner and his children closed the gate of the matrimonial house and she entered into the house using a ladder and spent four days in the house and the gate was opened with the help of police.

5. Hence she filed O.P.No.235/05 seeking a permanent prohibitory injunction restraining the respondents therein from ousting her forcibly from the matrimonial house. Appellant filed written objection in O.P.No.235/05 and contended that permanent prohibitory injunction prayed by the petitioner is not allowable and she has no right to reside in the petition schedule property. He preferred a counter claim in O.P.No.235/05 and contended that as per the agreement, respondent is bound to vacate from the plaint schedule property and he sought for a mandatory and prohibitory injunction.

6. Respondent filed a replication to the counter claim and contended that she never agreed to vacate the plaint schedule property.

7. Both cases (O.P.No.72 of 2005 and O.P.No.235 of 2005) were tried jointly and evidence was recorded in O.P.No.72 of 2005. The evidences consist of the oral testimony of PWs 1 to 4 and RW1 and the documentary evidences consist of Exs. A1 to A36 and Exs. B1 to B4. After detailed examination of the evidence on record, Family Court dismissed O.P .No. 72 of 2005 and partly allowed O.P.No.235 of 2005. It is aggrieved by this common judgment of the Family Court, these a