Allowed

Shobhana v. Sukumaran N.

Kerala HC3 Mar 2017Mat.Appeal/619/2007

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the marital appeal, setting aside the Family Court's dismissal of a divorce petition. The court found the petitioner's evidence regarding husband's alcoholism, physical assault causing injuries, and verbal abuse credible, as the husband failed to explain the wife's injuries. Divorce was decreed on cruelty grounds.

What did the court decide?

Opposing appeal judgment set aside; O.P. No.79 of 2006 allowed; marriage dissolved by decree of divorce on ground of cruelty.

Shobhana Vs Sukumaran N. — Matrimonial and Divorce | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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FRIDAY, THE 3RD DAY OF MARCH 2017/12TH PHALGUNA, 1938 Mat.Appeal.No. 619 of 2007 ( ) ------------------------------OP. 79/2006 OF FAMILY COURT, KASARAGOD

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APPELLANT(S)/APPELLANT:

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SHOBANA V.V., AGED 42 YEARS, D/O.LAKSHMI, PALLIKKERE QUARTERS, NEAR T.B.ROAD JUNCTION, P.O.KANHANGAD, HOSDURG VILLAGE.

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BY ADVS.SRI.VINOD SINGH CHERIYAN SRI.R.SUDHISH

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RESPONDENT(S)/RESPONDENT:

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SUKUMARAN N., AGED 44 YEARS, S/O.KUNHIKANNAN, AMBETADY, KARINDALAM VILLAGE, P.O.KARINDALAM, HOSDURG TALUK.

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BY ADV. SRI.S.RAJEEV

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SKG

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Mat.Appeal.No. 619 of 2007 ( )

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APPENDIX

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PETITIONER(S)' ANNEXURES

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A1 COPY OF THE COMPLAINT FILED BY THE RESPONDENT BEFORE THE STATION HOUSE OFFICER, HOSDURG, KASAROD DATED 8.5.2014

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A2 FIRST INFORMATION REPORT HAS BEEN REGISTERED AS F.I.R. NO.769 OF 2014 OF HOSDURG POLICE STATION DATED 11.7.2014

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RESPONDENT(S)' ANNEXURES

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A-R1A TRUE COPY OF THE REPLY DATED 19.6.2007 SUBMITTED BY THE PETITIONER HEREIN

/TRUE COPY/

P.S. TO JUDGE

SKG

A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.

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Mat. Appeal No.619 of 2007

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Dated this the 3^rd day of March, 2017

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JUDGMENT

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A.M. Shaffique, J.

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This appeal is filed by the petitioner in O.P. No.79 of 2006. Parties are described as shown in the original petition.

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In the original petition, it is stated that the petitioner and the respondent got married on 05.05.1991 and they had three children in their wedlock. It is contended that all along her life, she was under severe pressure from the respondent in so far as she was abused and assaulted. He used to consume alcohol and use filthy languages and quite often in front of their children. While so, on 29.05.2005, she was assaulted and she had to be hospitalised. The police also had recorded her statement. She had to shift the residence and stayed away with her children. The

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Mat. Appeal No.619 of 2007

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respondent thereafter broke open the house on 06.07.2005 and stayed there for a day and the petitioner had obtained police help. It is alleged that under the fear of death at the hands of the respondent, she had to shift her residence and the respondent followed her, took away her personal cloths and certificates. Based on the said allegations, it is contended that she was living separately since 06.07.2005 and a divorce petition was filed alleging cruelty.

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The respondent filed objections denying the aforesaid facts and complaining that the petitioner is a whimsical woman, leading on a standard life. He had purchased land in her name in the year 1999. He alleges that the said property was sold by the petitioner and invested in a private channel without the permission of the respondent. Because of her peculiar behaviour, he found it difficult to adjust with her. He also denied the fact that he had committed any act of cruelty, whereas according to him, she has suicidal tendency and is also hysterical and she had assaulted her own son on one occasion. According to him, it is on

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Mat. Appeal No.619 of 2007

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account of her own fault that she is living separately.

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Before the Family Court, petitioner was examined as PW1 and the respondent was examined as RW1. The petitioner relied upon Exts.A1 to A7 and the respondent relied upon Ext.B1. The Family Court on an overall consideration of the facts and circumstances of the case found that there is no evidence to prove cruelty and accordingly the application was dismissed.

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Heard the learned counsel for the appellant and the learned counsel appearing for the respondent.

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The main contention urged by the learned counsel for the appellant is that the Family Court failed to properly consider the evidence that had been adduced in the matter. There is enough evidence to show cruelty being the respondent and the Family Court had dismissed the original petition on a wrong appreciation of the facts and evidence in the case.

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The learned counsel for the petitioner on the other hand supports the view taken by the Family Court. It is stated that the petitioner had left the matrimonial home on her own. Even the

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Mat. Appeal No.619 of 2007

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Family Court had found that it is not safe for the children to live with the petitioner and therefore, OP No.250 of 2006 was filed by the respondent for custody of the children, and custody was given to the father.

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The short question to be considered in the above appeal is whether the evidence adduced by the petitioner warrants grant of decree of divorce on the ground of cruelty. PW1 is the petitioner. In her evidence, she had stated that the respondent was behaving in cruel manner all along. She had stated that on 29.05.2005 she was manhandled by the respondent and she had to go to hospital. Ext.A1 is the certified copy of the Wound Certificate. In Ext.A1, it is stated that she had suffered certain injuries. In Ext.A1, it is further indicated that her complaint was that she was caught by her neck and she was slapped, he caught hold her by her hair and she was hit against wall. The Doctor also finds certain injuries on her head and her body. It is therefore submitted that this material evidence had been completely ignored by the Family Court. PW1 was cross-examined by the

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Mat. Appeal No.619 of 2007

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learned counsel for the respondent. It is pertinent to note that when there is a clear pleading by the petitioner in regard to the incident on 29.05.2005 and she has adduced evidence clearly indicating that the respondent was the cause for the injury being committed on her, there is no valid explanation for the respondent in that regard. He only denied the fact that he had manhandled her. But he does not have a contention as to how she had suffered these injuries. Even in the cross-examination of PW1, there is no case as to how the injuries happened other than denying the fact that he has not assaulted her. He does not have a case as to how she suffered such an injury. Being the husband, who was living with the wife, he was expected to give a valid explanation as to how she had suffered the injury and under what circumstances she had go to the hospital. This fact itself is enough to come to a conclusion that the case put up by the petitioner was believable. That apart, he has got a contention that she is a person having suicidal tendency and is hysterical. But no evidence had been adduced to prove the said fact as well.

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It can only be characterised as a mere allegation in order to get over the contentions raised by the petitioner. Petitioner in her evidence has also narrated that all along she was being ill-treated and he was an alcoholic. Ext.A7 is a document produced to prove the fact that he was caught by the police for having consumed alcohol. Ext.A7 is the report of police in which indicates that the respondent was subjected to medical examination. The opinion of the Medical Officer is that he has consumed alcohol but he was not under its influence. The fact remains that her contention that he was consuming alcohol is proved by the said evidence. Therefore, once it is found that her evidence is believable on account of the circumstances narrated above, we do not find any reason not to accept her version.

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The Family Court proceeded on the basis that she had only made certain vague allegations, for which there was no proof. When a specific incident of manhandling had been proved, that itself shows that her contentions regarding cruelty being inflicted on her on the previous occasions also stands proved.

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Mat. Appeal No.619 of 2007

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True that they were living together for about 15 years and they had three children. Her contention is that all along she was suffering and tolerating him some or how for the sake of children. Her version is believable and therefore there is no reason why her evidence should not be taken into consideration for proving the fact of cruelty.

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Coming to the evidence of RW1 as already indicated above though he denies certain facts and he made certain allegations against her, there is no independent proof regarding such allegations. But according to him she had expended fabulous amount by selling the property, which was purchased with his funds, she was suicidal, she was hysterical and she was behaving abnormally etc. But other than his own statement, there is no other evidence. Further his evidence does not instill confidence in this Court, to accept his version on account of the infirmities pointed out above, especially when the petitioner had proved her case.

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In the result, we are of the view that the above original

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petition can be allowed.

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Accordingly, this appeal is allowed as under:

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(i) The judgment dated 22.06.2007 in O.P. No.79 of 2006 is

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set aside.

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(ii) O.P. No.79 of 2006 is allowed. Marriage between the

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petitioner/appellant and the respondent/respondent is hereby dissolved by a decree of divorce on the ground of cruelty.

Sd/-

A.M.SHAFFIQUE,

JUDGE.

Sd/-

K. RAMAKRISHNAN,

JUDGE.

sp/04/03/17

//True Copy//

P.A. to Judge

Shobhana v. Sukumaran N.

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Shobhana v. Sukumaran N.

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