IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 3^RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 MAT.APPEAL NO. 104 OF 2017 AGAINST THE JUDGMENT IN OPDIV 318/2013 OF FAMILY COURT, PALA, KOTTAYAM APPELLANT/S:

'X'

BY ADVS.

SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.ANN MALU ALBI SMT.K.M.SUNU SRI.THOMAS T.VARGHESE RESPONDENT/S:

'Y'

BY ADVS.

SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR SRI.SHYAM PADMAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2021, ALONG WITH CO 53/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 3^RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 CO NO. 53 OF 2017 IN Mat.Appeal 104/2017 OF HIGH COURT OF KERALA, ERNAKULAM PETITIONER/S:

'Y'

BY ADVS.

SRI.SHYAM PADMAN SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR RESPONDENT/S:

'X'

BY ADV SRI.PHILIP T.VARGHESE THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2021, ALONG WITH MA 104/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

“C.R.”

A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.

=========================

Mat. Appeal No.104/2017 & Cross Objection 53/2017 ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 3^rd day of September, 2021 J U D G M E N T A.Muhamed Mustaque, J.

This appeal is filed at the instance of the wife. She challenges divorce granted to the respondent-husband on the ground of cruelty under the Divorce Act, 1869. The respondent-husband's claim for divorce on the ground of unsound mind of the appellant and desertion was rejected by the Family Court. The respondent filed cross objection raising a challenge to rejection of divorce on the grounds unsound mind and desertion.

2. On 1/9/2001, the marriage between the appellant and the respondent was solemnized as per the Christian rites and ceremonies.

3. The appellant is a qualified nurse. The respondent is an Ayurvedic Doctor. The appellant was employed in Visakhapatnam. The parties spent their initial phase of married life at Visakhapatnam. Two daughters were born in the wedlock. The date of birth of the eldest child is 2/12/2002 and the youngest is 31/3/2009.

4. On 16.07.2012, the divorce petition was filed. The Family Court noted that the appellant left the matrimonial home only during February, 2011 and, therefore, no case was made out for divorce on the ground of desertion.

5. The Court also did not accept the unsound mind of the appellant as a ground for divorce for the reason that the Court did not find anything wrong in the mental condition of the appellant while she was examined.

6. The Family Court, however, found that a case for divorce was made out on the ground of cruelty. This was mainly attributable to the behaviour of the appellant. The Court also found that the appellant suffers from Paranoid Schizophrenia.

7. Having gone through the impugned judgment, pleadings and evidence, we affirm the findings for rejection of divorce on the ground of unsound mind and desertion. Absolutely, there were no materials worth consideration to grant divorce on the aforesaid grounds.

8. The cruelty narrated and alleged in the petition and the oral testimony of the respondent, who was examined as PW1 will have to be considered in the background of the imputed illness to the appellant, ‘Paranoid Schizophrenia’. The appellant never admitted or acknowledged the fact that she suffers from the aforesaid disease.

9. PW1, in support of the case for divorce gave evidence in tune with his pleadings. In the petition itself he has stated the nature of abnormal behaviour and consequence of such behaviour. It is stated by him that the appellant threatened committing suicide on a couple of occasions. It is appropriate to refer para.11 of the impugned judgment, where the Family Court referred to various instances of her abnormal behaviour.

11. First ground, “incurable unsoundness