The High Court of Kerala dismissed two matrimonial appeals filed by a husband against a Family Court order granting a divorce on grounds of cruelty and rejecting his claim for restitution of conjugal rights, upholding the lower court's evidence appraisal.
Both appeals were dismissed; parties to bear respective costs; interlocutory applications closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 3RD DAY OF MARCH 2017/12TH PHALGUNA, 1938
Mat.Appeal.No. 248 of 2005
AGAINST THE ORDER IN OP(DIV.)42/2003 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR, DATED 19-05-2005
APPELLANT/RESPONDENT:
EAPPAN V.E., S/O. V.E.EAPPAN, VAZHAYIL, AISWARYA, MARIYAPALLY P.O. NATTAKAM VILLAGE, KOTTAYAM.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENT/PETITIONER:
VINCY JOHN, D/O. K.M.YOHANNAN, KARIKKANNAMCHIRA, JOHN'S VILLA, KUNNAMTHANAM P.O. THIRUVALLA.
BY ADV. SRI.MATHEW JOHN (K) BY ADV. SRI.SUJESH MENON V.B.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2017, ALONG WITH MA. 249/2005, THE COURT ON 03-03-2017 DELIVERED THE FOLLOWING:
ami/
A.M.SHAFFIQUE & K.RAMAKRISHNAN, JJ.
Mat.Appeal Nos.248 and 249 of 2005
Dated this the 3rd day of March, 2017
J U D G M E N T
K.Ramakrishnan, J.
The respondent in O.P.(Div.)No.42/2003 on the file of the Family Court, Kottayam at Ettumanur, is the appellant in Mat.Appeal Nos.248/2005 and 249/2005, the same appellant in the Mat.Appeal is the petitioner in O.P.No.256/2001 of the same court. Respondent herein is the counter petitioner in that original petition and petitioner in the divorce petition on the file of the same court.
to them in the wedlock on 20.2.2000. According to the appellant, due to some misunderstanding, after 5 months of the
Mat.Appeal Nos.248 and 249 of 2005
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birth of the child, she began to quarrel with him unnecessarily. Though he adjusted for the sake of the family, she was not in an amenable condition to understand the peace-loving nature of the appellant and she became hard and arrogant day by day. On 26.8.2000, when he tried to take the child, she restrained him from taking the child and when he took the child, she quarrelled with him and left the home on 27.8.2000. Though he tried to pacify her and get her back, she was not amenable for the same. On 10.2.2001, he went to the house of the respondent along with his parents, but her parents told them that they will not send her back. He then sent a lawyer notice on 24.5.2001, asking her to come back to her matrimonial home. She sent an evasive reply. Since she did not come, he filed O.P.No.256/2001 on the file of the Family Court, Kottayam at Ettumanur, for restitution of conjugal rights.
Mat.Appeal Nos.248 and 249 of 2005
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not even care to look after the child. She was physically manhandled, making her living in the house difficult and it was so cruel that it was difficult for her to live in the house safely. So, on 24.8.2000, as per the instructions of the petitioner, his father sent her and child to her parental house and also instructed not to come back for the welfare of herself and the child. It was impossible for her to live in that house. The allegations that he was adjusting with the respondent for the sake of the family and it was she who was cruel to him were denied. She prayed for dismissal of the petition.
Mat.Appeal Nos.248 and 249 of 2005
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to 3 were examined and Exts.A1 to A3 were marked on the side of the appellant. Rws.1 to 4 were examined on the side of the respondent. After considering the evidence on record, the court below came to the conclusion that the respondent herein established cruelty on the part of the appellant making her life impossible in that house and that it was not safe for her to live there. Hence, the court below allowed the application for dissolution of marriage and dissolved the marriage between them. The court below had dismissed the application for restitution of conjugal rights filed by the appellant. Aggrieved by the same, both these appeals were filed by the appellant.
Mat.Appeal Nos.248 and 249 of 2005
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Further, the nature of the evidence adduced on the side of the respondent is not sufficient to grant the relief of dissolution of marriage and it can only be treated, at the most, as a usual quarrel among the spouses which is not a ground for the dissolution of marriage. Further, the appellant had filed the application for restitution of conjugal rights in the year 2001 and it is after 2 years of the same, as a counter blast, the respondent herein filed O.P.(Div.)No.42/2003 for dissolution of marriage with false allegation which is an after-thought. So, according to him, the court below was not justified in granting the relief of dissolution of marriage and in rejecting the application for restitution of conjugal rights.
Mat.Appeal Nos.248 and 249 of 2005
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went abroad and worked there for some time. It is also an admitted fact that for the purpose of delivery of the child, she came back to the native place and thereafter the relationship strained. According to the appellant, after the birth of the child, the attitude of the respondent changed and she became quarrelsome and picked up quarrel for silly reasons. He also alleged that the respondent was adamant and she did not even allowed him to take the child and on account of the same, there was some quarrel occurred on the fateful day on which day she left the home. But according to the respondent, the appellant was behaving like a mental patient and he had both physically and mentally caused cruelty to her making her life impossible in the matrimonial home. She was even locked in a room while she was working abroad along with the appellant and on the fateful day, she was brutally assaulted by him which he used to do even on earlier occasions also. In order to prove the case of the appellant, the appellant himself was examined as PW1 and two witnesses were examined as Pws.2 and 3. But their evidence is not sufficient to come to the conclusion that there was no cruelty and that the respondent left the house without any reasonable cause. RW1 is the respondent herself. She had narrated the
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incident of cruelty in detail. RW2 is her mother who had also deposed in the court below that the appellant used to beat her daughter while they were in their house. RW1 also deposed that on 24.8.2000, when she was brutally manhandled and dragged out of the room, the father of the appellant himself had come along with her in a car and left her in their house and told her parents not to send her back for the safety of herself and the child. This was also spoken to by RW2 as well. RW3, who was the neighbour, had deposed that she was residing near the house of the respondent and on one day during 2000, she had seen the respondent being brought to her house by the father of the appellant and he left her in the house. Now, she is residing in the house of the respondent. RW4 is the car driver who had deposed that it was he who had taken her from the house of the appellant to her house and the father of the appellant had accompanied her and after leaving the respondent in her house, they went back. Though they were cross examined in length, nothing brought on record to discredit their evidence on this aspect. In the written statement itself, the respondent had a case that she was taken to her parental house by the father of the appellant and left her in her house, and the father-in-law told her parents not to send her
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back, since she and her child will not be safe in her matrimonial home. But no attempt was made on the part of the appellant to examine his father who will be the best person to speak about the same and also the circumstances under which the respondent had to leave the house. However, he had not been examined in this case. So, under such circumstances, the court below on appreciation of available evidence came to the conclusion that the respondent had proved the mental as well as physical cruelty met by her at the hands of the appellant in her matrimonial home which made impossible for her to live there and also had proved the unsafe atmosphere present in her matrimonial house and had rightly granted a decree of dissolution of marriage dissolving the marriage between the parties and that finding does not call for any interference. Since the court below on appreciation of evidence came to the conclusion that the respondent is entitled to get dissolution of marriage, the court below was perfectly justified in denying the decree of restitution of conjugal rights and rightly dismissed the application filed by the appellant for that purpose. So, there is no merit in both the appeals and the same are liable to be dismissed.
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In the result, both the appeals fail and the same are hereby
dismissed. Considering the circumstances of the cases, the parties have to bear their respective costs in both the appeals.
All pending interlocutory applications are closed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
K.RAMAKRISHNAN JUDGE
ami/27.2.17
//True copy//
P.A.to Judge
3 issues framed by the court
Whether the evidence establishes cruelty sufficient to grant dissolution of marriage.
Whether the evidence justifies dismissal of the application for restitution of conjugal rights.
Whether the High Court is justified in dismissing the appeals against the Family Court's order.
2 provisions across 1 enactments
Eappan V.E.
Vincy John
A.M. Shaffique
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
