IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN WEDNESDAY, THE11H DAY OF DECEMBER201320TH AGRAHAYANA, 1935 Mat.Appeal.No. 771 of 2013 () ------------------------------ AGAINST THE ORDER
/JUDGMENT
IN OP4272012 of FAMILYCOURT, MUVATTUPUZHA DATED3101-2013 APPELLANT(S)/PETITIONER: ---------------------------------------------- JOJO JOY AGED33YEARS S/O.JOY POOPPATH, RESIDING AT POOPATH HOUSE CHIRAPPADY, MUVATTUPUZHA, ERNAKULAM DISTRICT PIN68667. BY ADVS.SRI.D.NARENDRANATH SRI.M.HARISHARMA RESPONDENT(S)/RESPONDENT: -------------------------------------------------- ARUVI PRASOONAM, AGED24YEARS D/O.ARULAPPAN, RESIDING AT ARUVI HOUSE, PALOORKONAM PRAVACHAMBALAM, NEMOM P.O., THIRUVANANTHAPURAM-695020. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON1112-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: acd ANTONY DOMINIC & P.D. RAJAN, JJ.
------------------------------------------- Mat. Appeal No. 771 of 2013 ---------------------------------------------- Dated this the 11th day of December, 2013 JUDGMENT
ANTONY DOMINIC,J.
The appellant filed O.P.No.427/2012 on the file of the Family Court, Muvattupuzha. In that O.P., he sought decree of divorce on the grounds under Section 10 (1)(iii) and (x) of the Divorce Act, 1869.
2. Before the Family Court, Pws 1 and 2 were examined and the respondent was examined as RW1. Exts.A1 to A3(a), B1 to B5 and X1 medical records were marked in evidence. The Family Court, by its judgment under appeal dismissed the O.P.
3. In the pleading, the only ground urged by the appellant was that the respondent was suffering mental ailment and that even before the marriage, she was under treatment in the S.M.C.S.I. Medical College Hospital, Karakkonam, Thiruvananthapuram. It is on that basis, the appellant sought divorce under Section 10(1)(iii) and (x) of the Divorce Act. Mat. Appeal No.771/13 2 Section 10(1)(iii) of the Indian Divorce Act,1869 reads thus: "10. Grounds for dissolution of marriage.- (1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent - xxx xxx xxx (iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition;" 4. Reading of this provision shows that to sustain a claim for divorce, the respondent should be proved to be incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition.
5. Insofar as this case is concerned, on the issue of mental illness of the respondent, the medical evidence available is that of PW2, the Professor of Psychiatry in the S.M.C.S.I. Medical College Hospital, Karakkonam. This witness produced Ext.X1, medical records of the respondent and also gave details of the treatment that were given to the respondent. However, during the course of her evidence, she clearly deposed that the respondent recovered from her ailment and that her ailment is a curable one. If that be so, Mat. Appeal No.771/13 3 the requirement of Section 10(1) (iii) of the Divorce Act that the respondent should be incurably of unsound mind is not satisfied in this case.
6. Insofar as the ground of cruelty under Section 10(1) (x) of the Act pleaded is concerned, apart from the mental ailment and the related averments, there is no other averment or evidence to sustain the claim under this sub Section also. In such circumstances, the judgment of the Family Court holding that the appellant has failed to establish the case pleaded by him cannot be faulted and has to be sustained. The appeal therefore fails and is dismissed. ANTONY DOMINIC, JUDGE P.D. RAJAN, JUDGE. acd Mat. Appeal No.771/13 4 Mat. Appeal No.771/13 5