IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN MONDAY, THE21T DAY OF OCTOBER201329TH ASWINA, 1935 Mat.Appeal.No. 840 of 2011 (C) ------------------------------- AGAINST THE ORDER
IN OP10852008 of FAMILY COURT,THRISSUR DATED3006.2011 APPELLANT / PETITIONER : - ------------------------------------------- SANALKUMAR, AGED34YEARS, S/O.GOPALAKRISHNAN, AMPADATH, PARAMBUSSERYHOUSE, KURUMASSERY P.O, ERNAKULAM DISTRICT. BY ADV. SRI.AYPE JOSEPH RESPONDENT / RESPONDENT : - -------------------------------------------------- ANJU, AGED22YEARS, D/O.RADHAKRISHNAN, VADAKEVEETIL HOUSE, PUTHENCHIRA DESOM, PUTHENCHIRA VILLAGE, PUTHENCHIRA P.O - 680 682, MUKUNDAPURAM TALUK. R1 BY ADV. SMT.SADHANA KUMARI ESWARI R1 BY ADV. SMT.C.K.UDAYAKUMARY THIS MATRIMONIALAPPEAL HAVING BEEN FINALLY HEARD ON2110-2013 ALONG WITH M.A. No. 258 OF2012 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DMR/- ANTONY DOMINIC & P.D. RAJAN, JJ.
--------------------------------------- M.A.No. 840 OF2011& M.A. No. 258 OF2012--------------------------------------- Dated this the 21st day of October, 2013. JUDGMENT
Antony Dominic, J.
These appeals are filed against the judgment passed by the Family Court, Thrissur, in O.P. No.1085/2008 and O.P. No.748/2008.
2. O.P.No.748/2008 was filed by the wife praying for divorce on the ground of cruelty as provided under Section 13 (1) (1a) of the Hindu Marriage Act. O.P. No.1085/2008 was filed by the husband seeking Restitution of Conjugal Rights under Section 9 of the said Act. Before the Family Court, the husband was examined as PW1 and wife and her mother were examined as RW1 and 2. Exhibits A1 to A6 and B1 to B4 were marked by the parties. Thereafter, the Family Court rendered a common judgment dated 30.06.2011 dismissing both the OPs. It is aggrieved by this judgment, the husband has filed M.A. No. 840/2011 against the dismissal of O.P. No.1085/2008 and the wife has filed M.A. No.258/2012 against the dismissal of O.P. No.748/2008 filed by her. M.A.No. 840 OF2011& M.A. No. 258 OF20122 3. Parties are Hindus and their marriage was solemnized on 10.05.2007 in accordance with the customary rights. Pleadings of the parties show that the marriage survived only till 25.09.2007 when the wife admittedly left for her parental home. On 03.01.2008 she filed M.C No.02/2008 for maintenance. After the filing of M.C. No.02/2008, the husband filed O.P. No.169/2008 before the Family Court, Ernakulam, for restitution of conjugal rights. That O.P. was subsequently transferred to the Family Court, Thrissur, and was renumbered as O.P.No.1085/2008. It was in the meanwhile that on 03.06.2008, the wife filed O.P. No.748/2008 for divorce.
4. As already stated, the ground urged by the wife for divorce is cruelty as provided under Section 13 (1) (1a) of the Hindu Marriage Act, 1955. The finding of the Family Court is that her allegation regarding the incidents were vague and general in nature and the incident that allegedly occurred on 25.09.2007 was supported by only the interested testimony of RW1 and 2. Therefore, according to the Family Court, except the usual wear and tear of the marital life, there was no proof that the husband was guilty of cruelty justifying an order dissolving the marriage M.A.No. 840 OF2011& M.A. No. 258 OF20123 by way of divorce. It is on this reasoning that the Family Court dismissed O.P. No.748/2008 filed by the wife.
5. According to the wife, although her initial life in the matrimonial home was peaceful and happy, subsequently, the husband and his relatives subjected her to both physical and mental cruelty in various ways. It was alleged that the husband has been making unlawful demands for money and gold, that he used to find fault with her for anything done by her. She also alleged that it was suppressing the fact that he is a diabetic patient that her consent was obtained and the marriage was conducted. It is also stated that on account of the sickness of the husband her pregnancy had to be aborted on medical advice.
6. She also alleged that, soon after the abortion, disobeying medical advice, husband subjected her to sexual intercourse. She also alleged that he used to insult her by disclosing to others matters which transpired in the bed room. She also contended that even regarding his qualification, there was suppression.
7. After making the aforesaid allegations, she referred to a specific incident which took place on 25.09.2007, M.A.No. 840 OF2011& M.A. No. 258 OF20124 when according to her, husband and his relatives cruelly assaulted her and took her to her parental house and left her there. She alleged that he threatened her that she will be accepted in his house only if she returns with the money that he demanded. Although the incidents prior to 25.09.2007 are lacking in particulars, still fact remains that the petitioner wife has pleaded these facts in the petition. In the objection filed by the respondent there is only a vague denial of these allegations. Even in the cross examination of RW1 and 2, the wife and her mother, they were not questioned on any one of these allegations. This therefore means that the incidents prior to 25.09.2007, pleaded and deposed before the Family Court, remained unchallenged.
8. In so far as the incident that took place on 25.09.2007 itself, in the petition filed by RW1 she has specifically alleged that on that day she was assaulted by the husband and his relatives and that thereafter she was taken to her parental home and was left there with the warning that she will be accepted in his house, only if she brings the amount demanded by him. In the objection filed by PW1, there is no specific denial M.A.No. 840 OF2011& M.A. No. 258 OF20125 of this incident. Similar is the case with the proof affidavit filed by him, where also apart from a general statement that he has not assaulted RW1 at any time, there is no specific denial of the incident alleged on 25.09.2007. On the other hand, both RW1 and RW2 not only in their pleadings, but also in the proof affidavit have given in clear language the details of the incident on 25.09.2007.
9. RW1 also has a case that the respondent is an acute diabetic patient. On the other hand, this allegation of the wife was denied by the husband. However, he himself admitted that he was an inpatient in the Taluk Head Quarters Hospital. The discharge summary from that hospital is marked as Ext.B1. The genuineness of Ext.B1 has been admitted by the husband during his examination as PW1. In this document, it is specifically stated that he is a diabetic patient and that he was under insulin injection. The fact that he is a diabetic patient is evident from Ext.A1 produced by the husband himself which shows that his diabetes is under control. These facts proves the allegation of the wife that his being a diabetic, was not disclosed to her before marriage. M.A.No. 840 OF2011& M.A. No. 258 OF20126 10. It is also the specific case of the respondent wife that when she advised him to undergo treatment for diabetic, he refused to do so and assaulted her. It is also her case that the Gynecologist had advised her that the child in her womb had defects on account of the illness of her husband. It is also in evidence that accepting the medical evidence of the Gynecologist, the pregnancy had to be medically terminated. Although in the pleadings, husband had a case that the abortion was done without his knowledge or consent, in the box he admitted that the abortion was with his knowledge and that after abortion the wife was sent to her parental home for rest.
11. We should also in this context refer to the case of the wife that after the abortion she was subjected to sexual intercourse disregarding the medical advice. These facts could have been spoken only by the wife and the incident on 25.09.2007 could have been spoken by the wife and at best by her mother also. Therefore, the Family Court was not right in say that the only evidence available is that of RW1 and 2 which is an interested testimony and therefore unacceptable. In our view, the evidence tendered by the wife, coupled with the documents that M.A.No. 840 OF2011& M.A. No. 258 OF20127 were available established her case of cruelty, which entitled the wife for a decree of divorce.
12. In view of the above, we are unable to uphold the judgment of the Family Court, Thrissur, dismissing O.P.No.748/2008. Therefore, we set aside the said judgment and allow O.P. No.748/2008 and dissolve the marriage between the appellant in M.A. No.258/2012 and the respondent therein by a decree of divorce under Section 13 (1) (1a) of the Hindu Marriage Act, with effect from today.
13. Since we have accepted the ground of cruelty urged by the wife and allowed O.P. No.748/2008, the husband is not entitled to a decree for restitution of conjugal rights. Accordingly, O.P.No. 1085/2008 filed by him will stand dismissed. In the result, M.A. No.258/2012 is allowed and M.A. No.840/2011 is dismissed. No costs. ANTONY DOMINIC, JUDGE P.D. RAJAN, JUDGE DMR/-