The High Court of Kerala dismissed a matrimonial appeal challenging a divorce decree. The Family Court found that the respondent was not interested in consummating the marriage, establishing cruelty. The High Court held no reappreciation of evidence was required and dismissed the appeal.
Appeal dismissed; Family Court decree for divorce confirmed.
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
THURSDAY, THE 2ND DAY OF FEBRUARY 2017/13TH MAGHA, 1938
Mat.Appeal.No. 382 of 2014 ()
AGAINST THE ORDER/JUDGMENT IN OP 785/2012 of FAMILY COURT, KANNUR DATED 28/1/2014
APPELLANT(S)/RESPONDENT:
JINJU RAM P.M. AGED 28 YEARS,
D/O.RAJARAM P M, K M HOUSE, CHANDERA, P O MANIYAT, VIA TRIKARIPUR, KASARAGOD-671310
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENT(S)/PETITIONER:
SABU M.V.
S/O.A RAGHAVAN, 'SANAM, ANNUR, KARIVELLUR P O, KARIVELLUR VILLAGE, TALIPARAMBA TALUK, KANNUR DIST
R1 BY ADV. SRI.M.SASINDRAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 9-12017, THE COURT ON 02-02-2017 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.
=========================== Mat.Appeal No. 382 of 2014
==================
Dated this, the 2nd day of February, 2017
J U D G M E N T
Shaffique, J.
This appeal is filed by the respondent in OP No.785/2012 on the file of the Family Court, Kannur. The original petition is filed by the respondent herein seeking for a decree for dissolution of the marriage between the appellant and the respondent on the ground of cruelty and desertion. The Family Court granted a decree for divorce on the ground of cruelty.
The respondent married the appellant on 2/1/2011. It is alleged that the appellant was not at all reconcilable for a proper marital life. She behaved like a 6 year old child and never considered other members of the family with respect. She
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misbehaved with the respondent's father and mother and insulted and abused them. The respondent was informed that she had worked as a teacher prior to marriage and she got another employment as a sales girl in a private establishment. According to the respondent, she stayed in the house only for three months and thereafter left the matrimonial home. She did not come back for about four months. However, she was brought to the matrimonial home in August 2011 and she stayed till October, 2011. By that time the respondent got a job at HDFC Bank at Manjeri and he requested the appellant to accompany him. This was objected by the appellant as well as her relatives as she does not know how to prepare food or look after family affairs. When the respondent left to Manjeri to join duty, the appellant also left the matrimonial home. It is alleged that the marriage between appellant and the respondent was never consummated. She did not permit him to have sexual intercourse as according to her she was not interested. The respondent alleges that he later got information that the marriage between them was not the first marriage of the appellant. She was married to another person earlier and on enquiry it was found that she was married to one
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Muraleedharan on 12/4/2009 and they stayed together as husband and wife for a few days. The appellant filed a petition against Sri.Muraleedharan, his mother and sister alleging offence under Section 498A of the Indian Penal Code which is pending before the Magistrate Court, Kanhangad. Sri.Muraleedharan also filed OP No.769/09 for declaring the marriage as null and void. The appellant did not contest the said petition and the said marriage was declared as a nullity. It is alleged that the factum of earlier marriage was suppressed by the appellant and consent of marriage was obtained by misrepresentation which amounts to cruelty and the respondent does not intend to proceed with the marital life.
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further contended that after the failure of the first marriage, she never thought for another marriage but it was at the constant pressure and repeated requests of the respondent that she agreed for a remarriage. It is also contended that the respondent was fully aware of the first marriage and the background of the appellant and there was no suppression as alleged. In the said circumstances, the appellant sought for dismissal of the original petition.
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clear finding that the allegation of misrepresentation alleged by the respondent was found unbelievable, there was no evidence to indicate that the appellant was not agreeing for a normal sexual intercourse with the respondent.
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marriage was null and void on the allegation that there was no consummation of marriage. He had a contention that the appellant was not intended to have sexual relationship with him and therefore sought for a decree of nullity. Ext.A6 is the certified copy of the judgment in OP No.769/2009 by which the Court granted a decree of nullity of marriage. The Court below apparently took note of the judgment and found that it is admissible in evidence under Section 41 of the Indian Evidence Act and therefore placing reliance on the judgment of the Apex Court in Smt.Satya v. Teja Singh (AIR 1975 SC 105) found that the findings in the judgment proved the allegation raised by the respondent. The said fact amounts to a mental cruelty. In the said circumstances, the Family Court came to a finding that it can be concluded that there was reluctance on the part of the appellant in having sexual intercourse with the respondent which amounts to cruelty and therefore, the respondent was entitled for a divorce.
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matter. In fact, the Court below mainly relied upon Exs.A5 and A6. As far as the capacity of the appellant to have sexual intercourse is concerned, the finding of the Court below cannot be disputed especially on account of the finding by a Court that there was no consummation of marriage between the former husband and the appellant. The respondent also had raised the very same ground. In R v. P (supra), a Division Bench of this Court held that in a petition seeking nullity of marriage, the burden is on the petitioner to prove affirmative and to the satisfaction of the Court that the non consummation is due to incapacity or wilful neglect to consummate on the part of the respondent. The Andhra Pradesh judgment relied upon the learned counsel for the appellant is also referring to divorce on the ground of impotency. That was a case in which the petitioner sought for restitution of conjugal rights wherein the wife took up a contention that the husband suffers from impotency and filed a counter claim for a decree for divorce on the ground of impotency. It was held that impotency is one of the grounds for divorce. But, it cannot be proved without proper medical examination. In Sharda (supra), the Apex Court considered a matrimonial issue and it was held
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that though there is no provision to compel a person to submit for medical examination, it does not preclude the court from passing such an order. In Gabriel Antony (supra), learned Single Judge of this Court, was considering the interpretation of Section 19 of the Indian Evidence Act which apparently has no application to the present facts.
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suffer a decree of Ext.A6 on the ground of settlement was not accepted by the Court below as no one will remain ex parte and suffer an ex parte decree on such a grave allegation.
Agrawal v. Sau. Sarla Vishwanath Agrawal (AIR 2012 SC 2586), the Apex Court has held that in the case of mental cruelty, it must be proved by the party alleging the same that the cruelty is of such nature which will make the parties to live together. It is also held in the same decision that it cannot be proved by direct evidence and necessary inference can be drawn from the conduct of parties on the basis of evidence and by preponderance of probability. Further, in the decision reported in Sanjan v. Azara (2013 (2) KLT S.N. 137), it has been held that wilful abstination from having sexual intercourse and refusal to consummate the marriage will amount to mental cruelty as a ground of divorce.
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his case that there is no consummation of marriage and the appellant/respondent has no interest in sexual intercourse and rightly held that the mental cruelty has been established.
We do not find any perversity or illegality in the said finding warranting interference in exercise of appellate jurisdiction. Since no grounds are made out for interference, the appeal is dismissed.
Sd/-
A.M. SHAFFIQUE, JUDGE
Sd/-
K.RAMAKRISHNAN, JUDGE
Rp
//True Copy//
P.S to Judge
2 issues framed by the court
Whether the Family Court erred in decreeing dissolution by finding that the appellant's refusal to consummate marriage amounts to mental cruelty.
Whether the evidence of previous nullity decree and respondent's testimony established wilful abstention sufficient for divorce.
Colour shows how this judgement treated each authority
Prayag Raj v. Sreevani alias VaniDistinguished¶7
Prayag Raj v. Sreevani alias Vani (AIR 2013 AP 22) · Who else cites this
Sharda v. DharmpalExplained¶7
Sharda v. Dharmpal [(2003) 4 SCC 493] · Who else cites this
Gabriel Antony v. Thressya GracyDistinguished¶7
Gabriel Antony v. Thressya Gracy (1987 (1) KLT 690)
Smt.Satya v. Teja SinghApplied¶44
Smt.Satya v. Teja Singh (AIR 1975 SC 105) · Who else cites this
Vishwanath Sitaram Agrawal v. Sau. Sarla Vishwanath AgrawalApplied¶12
Vishwanath Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal (AIR 2012 SC 2586) · Who else cites this
Sanjan v. AzaraApplied¶12
Sanjan v. Azara (2013 (2) KLT S.N. 137)
1 provisions across 1 enactments
JINJU RAM P.M.
SABU M.V.
A.M. SHAFFIQUE
K.RAMAKRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
