Dismissed

S.Sreekandan Nair v. P.S.Leela

Kerala HC8 Jun 2018Mat.Appeal/290/2006

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a matrimonial appeal challenging a Family Court order rejecting a petition for divorce. The court upheld the lower court's findings that the appellant failed to prove cruelty due to lack of specific pleadings and that the claim of desertion was time-barred as the parties resumed cohabitation before filing the petition.

What did the court decide?

The appeal was dismissed and the pending interlocutory applications were closed.

S.Sreekandan Nair Vs P.S.Leela — Matrimonial and Divorce | Kerala HC (2018)

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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 K.HARILAL &

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THE HONOURABLE MR. JUSTICE A.M.BABU

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FRIDAY, THE 8TH DAY OF JUNE 2018 / 18TH JYAISHTA, 1940

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Mat.Appeal.No. 290 of 2006

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AGAINST THE JUDGMENT DATED 16-02-2006 IN OP 349/1998 of FAMILY COURT,TRIVANDRUM

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APPELLANTS/PETITIONERS IN O.P.349 OF 1998:-

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--------------------------------------------

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S.SREEKANDAN NAIR, S/O.SANKARA PILLAI, KALPAKASSERI VEEDU, PAPPANAMCODE, NEMOM VILLAGE, THIRUVANANTHAPURAM.

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BY ADVS.SRI.POOVAPPALLY M.RAMACHANDRAN NAIR SRI.R.V.ABHISHEK

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RESPONDENTS/RESPONDENT IN O.P.349 OF 1998:-

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P.S.LEELA, D/O.SARASWATHY, ANITHA BHAVAN, T.C.17/755, CHATHARAKONAM, POOJAPPURA, THIRUMALA VILLAGE, THIRUVANANTHAPURAM.

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BY ADVS. SRI.M.AJAY (IRUMPANAM) SRI.HARISH GOPINATH SRI.R.S.KALKURA SRI.M.S.KALESH SRI.V.VINAY MENON

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08-06-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL & A.M. BABU,JJ.

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= = = = = = = = = = = = = = = = = Mat. Appeal No.290 of 2006

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- - - - - - -- - - - - - - - - - - - - - Dated this the 8^th day of June, 2018

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J U D G M E N T

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K. Harilal, J.

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The appellant herein is the husband of the respondent and he filed O.P.(HMA) No.349 of 1998 before the Family Court, Thiruvananthapuram, under Section 13(1)(ia) and (ib) of the Hindu Marriage Act,1955 (hereinafter referred to as 'the Act'), on the ground that the respondent treated him with cruelty and she deserted him from 12^th September, 1994. The respondent denied the averments in the petition and opposed the claim for dissolution of marriage.

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Both parties adduced oral evidence and the appellant/petitioner produced Exts.A1 to A8 also. After considering the evidence on record, the Family

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Court dismissed the petition, on a finding that the

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appellant/petitioner failed to prove the alleged fact that the respondent treated him with cruelty and she deserted him for a continuous period of not less than two years, immediately preceding the presentation of the petition. The legality and correctness of the aforesaid findings, whereby the Family Court dismissed the Original Petition, are challenged in this appeal.

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Heard the learned counsel for the appellant

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and the learned counsel for the respondent.

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In view of the arguments at the Bar, the

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point that emerges for consideration in this appeal is, whether the Family Court is justified in rejecting the claim for dissolution of marriage, on the ground that the appellant/petitioner failed to prove the alleged act that the respondent treated

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him with cruelty and deserted him for a continuous period of not less than two years?

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It is the case of the appellant/petitioner

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that the marriage between the appellant/petitioner and the respondent was solemnized on 13.06.1992 and a child was born in the said wedlock in the year 1993. Subsequently, the marital relationship between the appellant/petitioner and the respondent got strained due to the difference of opinion

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between them and they fell apart and started to live separately in the year 1994. According to the appellant/petitioner, the respondent had some intimacy to another man. She lived in accordance with her whims and fancy only. She openly declared

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in front of his relatives that the

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appellant/petitioner is not an able bodied man. Though, his relatives and friends tried their level

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best to persuade her and advised her to live as a dutiful devoted wife, she did not accept the said advice. She was always arrogant in nature. Eventually, they decided to dissolve the marriage by filing a petition for dissolution of marriage under Section 13(B) of the Act and entered into an agreement. As per that agreement, the

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appellant/petitioner agreed to deposit `25,000/- in the name of the son for his maintenance and said

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amount was deposited in the State Bank of Travancore, Poojappuram Branch and the respondent was allowed to receive monthly interest to be accrued from the said deposit. Unfortunately, in violation of the terms of the agreement, the

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respondent voluntarily withdrew from the said agreement and the petition was dismissed on 08.06.1995. Thereafter, they united and lived

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together for a short period. From 1994 onwards, the

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appellant/petitioner and the respondent have been living separately and there is no chance for them to live together. According to him, the respondent deserted the appellant at first on 12^th September, 1994.

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The respondent filed counter-statement,

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denying the averments in the petition. According to her, she has not treated the appellant/petitioner with cruelty. The respondent was always keeping a harmonious relationship with the appellant/ petitioner and she was not arrogant, as alleged by the appellant. On the other hand, the appellant is an addict to alcohol and he was behaving very cruelly towards the respondent and their child. He was acting in accordance with the interest and direction of his sister. She denied the allegation

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that she had intimacy with another man. She further

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contended that the appellant/petitioner had fraudulently caused the respondent to file some

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papers and knowing the fraudulent act of the appellant/petitioner, she withdrew the agreement for dissolution of marriage and enlightened the court with regard to that. Accordingly, O.P.(HMA) No.636 of 2014 was dismissed. They resided together as husband and wife from June,1996 till April, 1997. The appellant/petitioner failed to pay maintenance allowance to the respondent, after their separation, though the respondent is not having any income. She denied the allegation that she deserted the appellant/petitioner from 1994 onwards.

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On the aforesaid rival pleadings, both parties adduced evidence. We have meticulously gone through the averments in the Original Petition in

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view of the findings of the Family Court that the

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averments in the petition are not in conformity with Rule 7(3) of the Hindu Marriage Rules 1963 (Kerala) (hereinafter referred to as 'the Rules'). On a close reading of the averments in the petition, we also find that there is no specific pleadings disclosing the particulars of the alleged act of cruelty, or specific incident of cruelty, as rightly observed by the Family Court. Though, it is averred that the respondent had intimacy with another man, the identity of that person is not disclosed in the Original Petition or in the evidence. Therefore, the Family Court is justified in finding that the averments in the petition are not in conformity with Rule 7(3) of the Rules. In this context, it is to be remembered that false allegations unchastity about the wife, without bonafides would amount to

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cruelty to the wife. Here, unchastity is alleged against the respondent without disclosing the identity of the person with whom the respondent has any connection. So, it can be said that unchastity was alleged against the respondent without bonafide and the said conduct of the appellant would amount to cruelty to the respondent.

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Similarly, though it was brought up in evidence that the respondent slapped on the cheek of the appellant/petitioner, while both were in the bedroom and the child was present in the bedroom, at that time, there is no such pleadings in the Original Petition. It is trite law that the evidence without pleadings cannot be looked into, in the process of decision making.

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On an analysis of the evidence given by PW.1, as rightly observed by the Family Court, even

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if the allegations are true, though not proved, that

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cannot be treated as cruelty falling under Section 13(1)(ia) of the Act and the decision quoted by the Family Court is squarely applicable to the instant case. In the absence of pleadings and evidence to the effect that the respondent behaved wilfully with an intention to cause physical and mental sufferings to the appellant/petitioner, it cannot be said that the respondent treated the appellant/petitioner with cruelty. In this context, the decision of the Supreme Court in Jayachandra v, Aneel Kaur [2005(1) KLT 26(SC)] is relevant and significant. In this decision, the Supreme Court held that cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not

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amount to cruelty, though it may amount to

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misconduct. Therefore, we do not find any reason to interfere with the findings, on the allegations of cruelty and we affirm the findings of the Family Court.

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Coming to desertion, it is the case of the appellant/petitioner that the respondent deserted him 12.09.1994. But, in his own evidence, he admitted that after the dismissal of the petition filed under Section 13(B) of the Act, they united and lived together in the year 1997 and lived together up to 1998. It is specifically stated that they started to live together after 1997 April,15. The Original Petition was filed on 25.04.1998. If the aforesaid evidence given appellant/petitioner himself is taken as its face value and admitted, it cannot be said that the respondent deserted the

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appellant for a continuous period of not less than

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two years, immediately preceding the presentation of the petition. In the above view, the Original Petition on the ground of desertion is a premature one. In the above analysis, the Family Court is justified in dismissing the Original Petition. There is no reason to interfere with the impugned judgment under challenge.

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Hence, this appeal will stand dismissed. All pending Interlocutory Applications will stand closed.

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Sd/-

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K. HARILAL, JUDGE

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Sd/- A.M. BABU, JUDGE

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DST

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//True copy//

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P.A. To Judge

S.Sreekandan Nair v. P.S.Leela

Case brief

What is this about?

What did the court decide?

S.Sreekandan Nair v. P.S.Leela

Case brief

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