Partly allowed

Janaki v. C.a.Gopi

Kerala HC19 Dec 2018Mat.Appeal/441/2017

Case brief

AI extract

What is this about?

In matrimonial appeals, the Court set aside the divorce decree based on adultery due to non-impleadment of the co-respondent and failed proof of adultery. Conversely, the Court confirmed the divorce decree based on mental cruelty arising from the wife's indiscreet relationship. The wife's claim for property title was dismissed for lack of evidence.

What did the court decide?

Decree of divorce on ground of adultery set aside; decree on ground of cruelty confirmed; wife's property claim dismissed.

Janaki Vs C.a.Gopi — Matrimonial and Divorce | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶4

¶5

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940

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Mat.Appeal.No. 441 of 2017

¶8

AGAINST THE JUDGMENT DATED 10.03.2017 IN OP 471/2016 of FAMILY COURT,ERNAKULAM

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APPELLANT/RESPONDENT IN O.P:

¶10

JANAKI

¶11

D/O.KANU KURUMBAN, AGED 51 YEARS, OWNER OF VASANA COLLECTIONS(TEXTILES), NEAR CHITTATH KARA, NEAR DISTRICT JAIL, VALAVAN COLONY, NEAR SPECIAL ECONOMIC ZONE P.O., COCHIN-682037(PRESENTLY & ACTUALLY RESIDING AT CHATHANAMCHIRA VEEDU, THUTHIYOORKARA, NEAR MANAKATHAZAM BUS STOP, KAKKANAD VILLAGE, COCHIN682037

¶12

BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH

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RESPONDENT/PETITIONER IN O.P.:

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C.A.GOPI

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S/O.LATE AYYAPPAN, AGED 63 YEARS, CHATHANAMCHIRA VEEDU, THUTHIYOOR, KAKKANAD, COCHIN-682037

¶16

BY ADVS.

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SRI.MATHAI EAPPEN VETTATH SRI.VETTATH EAPEN MATHAI

¶18

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2018, ALONG WITH Mat.Appeal.483/2017, THE COURT ON 19.12.2018 DELIVERED THE FOLLOWING:

¶19

Mat.A.Nos.441/2017 & 483/2017

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶22

PRESENT

¶23

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶24

¶25

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

¶26

WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940

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Mat.Appeal.No. 483 of 2017

¶28

AGAINST THE JUDGMENT DATED 10.03.2017 IN OP 1657/2015 of FAMILY COURT,ERNAKULAM

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APPELLANT:

¶30

JANAKI W/O. C.A GOPI, AGED 51 YEARS, CHATHANAMCHIRA HOUSE,SEZ P.O, THUTHIYOORKARA, NEAR MANAKATHAZHAM BUS STOP,KAKKANADU VILLAGE PIN - 682 037.

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BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH

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RESPONDENT:

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C.A.GOPI

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S/O. LATE AYYAPPAN AGED 63 YEARS, CHATHANAMCHIRA VEEDU,SEZ P.O, NEAR MANAKATHAZHAM BUS STOP, THUTHIYOOR, KAKKANAD,COCHIN - 682 037.

¶35

BY ADVS. SRI.MATHAI EAPPEN VETTATH SRI.VETTATH EAPEN MATHAI

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2018, ALONG WITH Mat.Appeal.441/2017, THE COURT ON 19.12.2018 DELIVERED THE FOLLOWING:

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Mat.A.Nos.441/2017 & 483/2017

C.K.ABDUL REHIM

R.NARAYANA PISHARADI, JJ.

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************************** Mat.Appeal Nos. 441 of 2017 &

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483 of 2017

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Dated this the 19^th day of December, 2018

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JUDGMENT

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R.Narayana Pisharadi, J

¶47

Mat.Appeal No.441/2017 arises out of the judgment and decree passed by the Family Court, Ernakulam in O.P.No.471/2016 filed by the respondent against the appellant. Mat.Appeal No.483/2017 arises out of the judgment and decree passed by the Family Court, Ernakulam in O.P.No.1657/2015 which was filed by the appellant against the respondent.

¶48

The appellant in both appeals is the wife and the respondent therein is the husband. The parties shall be hereinafter referred to as the husband and the wife.

¶49

The husband filed O.P.No.471/2016 in the Family Court

¶50

for granting a decree of divorce on the grounds of cruelty and

¶51

adultery. The marriage between the parties had taken place on

¶52

Mat.A.Nos.441/2017 & 483/2017

¶53

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30.04.1986. It is alleged by the husband in the petition for

¶55

divorce that the wife is guilty of committing the act of adultery with her paramour one P.K.Muraleedharan. The husband also alleged in the petition for divorce various acts of cruelty committed by the wife.

¶56

The wife filed written statement in O.P.No.471/2016 denying the allegations made against her by the husband. She denied illicit relationship and committing any act of adultery with P.K.Muraleedharan. She also denied the allegations of cruelty alleged against her by the husband.

¶57

The wife filed O.P.No.1657/2015 in the Family Court for granting a decree of declaration of her title and possession over the petition schedule property and the building therein. She also prayed for granting a decree of prohibitory injunction restraining the husband from creating any document in respect of the petition schedule property.

¶58

The husband filed written statement in

¶59

O.P.No.1657/2015 denying the allegations raised against him by the wife. He contended that the wife has no right in the petition schedule property which absolutely belonged to him. The husband also denied the allegation that he had made attempt to sell his

¶60

Mat.A.Nos.441/2017 & 483/2017

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property.

¶63

The Family Court conducted joint trial of the two cases. On the side of the husband, PW1 to PW4 were examined and Exts.A1 to A35 documents were marked. On the side of the wife, RW1 to RW5 were examined and Exts.B1 to B24 documents were marked.

¶64

After appreciating the evidence on record, the Family Court came to the conclusion that the wife failed to establish title and possession over the petition schedule property in O.P.No.1657/2015 and dismissed that case. The Family Court found that the husband is entitled to get a decree of divorce on the grounds of cruelty and adultery by the wife and accordingly, granted a decree in O.P.No.471/2016, dissolving the marriage between the parties. Aggrieved by the decree of divorce granted in O.P.No.471/2016 and also the dismissal of O.P.No.1657/2015, the wife has preferred these two appeals.

¶65

We have heard learned counsel for the appellant and also the respondent in both appeals. We have also perused the records in both cases.

¶66

The parties are Hindus. Their marriage was solemnised on 30.4.1986. The petition for divorce was filed by the husband

Mat.A.Nos.441/2017 &

483/2017

under Sections 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955, on the grounds of adultery and cruelty.

¶71

The decree of divorce granted in favour of the husband by the lower court on the ground of adultery is not sustainable in law for the sole reason that the adulterer is not made a corespondent in the petition for divorce.

¶72

Rule 7(4) of the Hindu Marriage (Kerala) Rules, 1963 states that in every petition presented by a husband for divorce on the ground that his wife is living in adultery with any person or persons or for judicial separation on the ground that his wife has, after the solemnization of the marriage, had sexual intercourse with any person or persons other than him, the petitioner shall state the name, occupation and place of residence of such person or persons so far as they can be ascertained. Rule 11(a) of the aforesaid Rules envisages that in every petition for divorce on the ground that the respondent is living in adultery or has, after the solemnisation of the marriage, had sexual intercourse with any person, the petitioner shall make such person a co-respondent. This is a mandatory Rule.

¶73

Rule 11(d) of the Hindu Marriage (Kerala) Rules reads as follows:

Mat.A.Nos.441/2017

& 483/2017

“(d) The petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of the co-respondent in cases covered by sub-rule (a) above on any of the following grounds:-

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(i) that the name of such person is unknown to the petitioner although he has made due efforts for discovery,

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(ii) that such person is dead,

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(iii) that the respondent being the wife is leading the life of a prostitute and the petitioner knows of no person with whom she has committed adultery or has had sexual intercourse,

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(iv) for any other reason that the Court may deem fit and sufficient to consider."

¶82

The requirements under Rules 7(4) and 11(a) of the

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Hindu Marriage (Kerala) Rules, 1963 are mandatory. Impleading of the alleged adulterer or adulteress is not a mere formality. It is based on a public policy. The object is to prevent collusion between husband and wife. If the requirements under Rules 7(4) and 11(d) of the aforesaid Rules are not complied with, a petition for divorce on the ground of adultery, is not maintainable. When the petitioner, in a petition for divorce, is not able to implead the adulterer or adulteress as a co-respondent for any of the reasons mentioned in Clauses (i) to (iv) of Rule 11(d), he/she has to file

¶84

Mat.A.Nos.441/2017 & 483/2017

¶85

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an application seeking the permission of the court to excuse him/her from doing so. A formal application, supported by affidavit, has to be filed. In such an application, the petitioner has to specifically state the reasons for his/her inability to implead the adulterer or adulteress as a co-respondent in the petition for divorce.

¶87

In the instant case, the husband has got a definite case that the wife committed adultery with P.K.Muraleedharan. The husband has no case that he was not aware of the address of P.K.Muraleedharan. He did not implead P.K.Muraleedharan as a co-respondent in the petition for divorce. He also did not obtain the permission of the court for not impleading the adulterer as a co-respondent in the petition for divorce. Since the adulterer is not made a co-respondent in the petition for divorce and since permission from the court was not obtained for not impleading the adulterer as a co-respondent, the petition for divorce on the ground of adultery is not maintainable (See Kunhiraman v. Santha: 1998 (1) KLT 556 and Ayyappan v. Vasantha: 1987(1) KLT 504 ).

¶88

In the aforesaid circumstances, we are of the view that, the husband is not entitled to get a decree of divorce on the

¶89

Mat.A.Nos.441/2017 & 483/2017

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ground that the wife committed adultery.

¶92

Now, we shall examine whether the husband is entitled to get a decree of divorce on the ground of any act of cruelty committed towards him by the wife. In this context, we may notice that Rule 7(3) of the Hindu Marriage (Kerala) Rules, 1963 provides that in cases where cruelty is alleged, the petitioner shall state the specific acts of cruelty. We have already found that the petition for divorce, on the ground of commission of adultery by the wife, is not maintainable. But, the husband is entitled to prove that, an act of adultery committed by the wife, amounts to an act of cruelty towards him.

¶93

There is no direct evidence to prove that the wife committed adultery with P.K.Muraleedharan. The husband was examined as PW1. He has not given any evidence that he saw his wife committing sexual intercourse with Muraleedharan. None of the witnesses examined by the husband has also not given any evidence to that effect. The husband and the witnesses examined by him have not even given any evidence that they saw the wife and Muraleedhran in such circumstances or in such situations from which one could infer that they had sexual intercourse with each other. The husband and one witness examined by him have

Mat.A.Nos.441/2017 &

483/2017

given evidence that they had seen the wife and Muraleedharan in the company of each other. It is not sufficient to prove that the wife had committed an act of adultery.

¶98

The husband has got a plea that Muraleedharan had written Ext.A1 series love letters to the wife. We shall later examine whether this allegation is proved. Even assuming that Muraleedharan had written and given Ext.A1 series love letters to the wife of PW1, it cannot be found that the wife of PW1 had sexual intercourse with Muraleedharan. These letters contain only the imaginations and fancies of Muraleedharan. They do not indicate that he had any real sexual intercourse with the wife of PW1.

¶99

In this context, the observations made by the Hon'ble Supreme Court in Chandra Mohini v. Avinash Prasad : AIR 1967 SC 581 are very relevant. The Apex Court has stated as follows:

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“But assuming that those two letters were received by the appellant, that does not in our opinion prove that there was any adultery between the appellant and Chandra Prakash in 1955. We have read those letters and we must say that they are most improper and should not have been written by a person like Chandra Prakash who was

¶101

Mat.A.Nos.441/2017 & 483/2017

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¶103

married to the cousin of the appellant. But the first thing that strikes us is that the mere fact that some male relation writes such letters to a married woman, does not necessarily prove that there was any illicit relationship between the writer of the letters and the married woman who received them. The matter may have been different if any letters of the appellant written to Chandra Prakash had been proved. Further there is intrinsic evidence in the letters themselves which shows that whatever might have been the feelings of Chanda Prakash towards the appellant, they were not necessarily reciprocated by the appellant. ....... When we have the clear denial of the appellant to the effect that she never had any sexual intercourse with Chandra Prakash, we have no hesitation in accepting that denial, for there is nothing in these letters which would even suggest that the denial was false”.

¶104

Even assuming that Muraleedharan had written Ext.A1

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series letters and given them to the wife of PW1, it is significant that the husband has got no plea that the wife had reciprocated any of those letters. In the letters dated 20.10.2014 and 01.11.2014 allegedly written by Muraleedharan to the wife of PW1, it is mentioned that he did not receive any reply from the wife of PW1. When examined as RW2, the wife denied any illicit relationship with Muraleedharan. In such circumstances, on the basis of Ext.A1 series letters, it cannot be found that the wife had

¶106

Mat.A.Nos.441/2017 & 483/2017

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¶108

committed adultery.

¶109

Now, we shall examine whether the husband had proved that the wife had any intimacy with Muraleedharan, of lesser degree than an act of adultery, which would amount to an act of cruelty by the wife. Here, the question arises whether the husband has proved that Ext.A1 series letters, allegedly written by Muraleedharan and given to the wife, were found in the possession of the wife.

¶110

It is alleged in the petition for divorce that David, the driver of the wife, approached the brother of the husband with a set of letters and the driver and the brother of the husband showed the letters to the husband. The original letters were not produced before the court. Only photocopies of the letters were produced. It is alleged in the petition for divorce that the husband handed over the original letters to David for safe keeping. It is also alleged that the wife threatened David and the husband and then the husband gave the original love letters in the Thirkkakkara Police Station along with a complaint but, the Sub Inspector returned the original love letters to David for safe keeping. It is further alleged in the petition for divorce that the wife filed a false case against David in the Vanitha Cell of the

Mat.A.Nos.441/2017 &

483/2017

Ernakulam North Police Station and David was summoned by the

¶115

Sub Inspector of Vanitha Cell and he handed over the original letters to the Sub Inspector.

¶116

The explanation offered by the husband for nonproduction of the original of Ext.A1 series letters is not at all convincing. It cannot be believed that the original letters given at Thrikkakkara Police Station by the husband along with a compliant were returned by the Sub Inspector to the driver David. If at all David had thereafter given the original letters to the Sub Inspector of Vanitha Cell, the husband did not take any steps to summon those original letters from the Vanitha Cell of the Ernakulam North Police Station.

¶117

When examined as PW1, the husband has stated that the love letters written to his wife by Muraleedharan were obtained by David from the car used by the wife. When examined as PW2, David has stated that he was the driver of the car of the wife from 01.01.2008 to 01.01.2009. He has stated that the letters written by Muraleedharan and given to the wife of PW1 had been kept in the car by the wife. PW2 has also stated that he handed over those letters to the brother of the husband by name Purushan.

Mat.A.Nos.441/2017 &

483/2017

There is a specific plea in the petition for divorce that the relationship between the wife and Muraleedharan began in the year 2014. Ext.A1 series letters are seen written in the months of October and November, 2014. PW2 has not given any evidence that he was a driver employed by the wife of PW1 during the year 2014 or thereafter. According to him, he was the driver employed by the wife of PW1 during the period from 01.01.2008 to 01.01.2009. If that be so, it is not explained how PW2 could have obtained from the car the letters which were allegedly written by Muraleedharan in the year 2014. Therefore, no reliance can be placed upon the testimony of PW2 that he found Ext.A1 series letters in the car used by the wife of PW1 and that he entrusted the letters with the brother of PW1.

¶122

RW5 is the Public Relations Officer of Bharathiya Vidya Bhavan. He has given evidence that David was the driver of Bharathiya Vidhya Bhavan from 01.06.1996 to 31.05.2012. There is no evidence to find that while working as a driver in Bharathiya Vidhya Bhavan, David was also working as a part-time driver under the wife of PW1.

¶123

The wife was examined as RW2. She has stated on cross-examination that she had not seen the love letters written

Mat.A.Nos.441/2017 &

483/2017

by Muraleedharan and she had not read them. Inspite of such evidence given by her, during the cross-examination of RW2, she was not confronted with Ext.A1 series letters.

¶128

In the aforesaid circumstances, the husband was not able to prove that Ext.A1 series letters were found in the possession of his wife or that they are really letters written by Muraleedharan and given to her.

¶129

When examined as PW2, David has given evidence that he used to take the wife of PW1, to the house of Muraleedharan and that the wife of PW1 used to stay in the house of Muraleedharan for about one and a half hours. As noticed earlier, the specific plea of the husband is that the love affair between his wife and Muraleedharan began in the year 2014. Since David was a driver under the employment of the wife of PW1 only during the period from 01.01.2008 to 01.01.2009, his evidence to the above effect cannot be believed.

¶130

However, there is other evidence to find that there was intimate relationship between the wife of PW1 and Muraleedharan. When examined as PW1, the husband has given evidence that he saw his wife travelling on a scooter with Muraleedharan. The evidence given by PW1 in this regard in

¶131

Mat.A.Nos.441/2017 & 483/2017

¶132

¶133

examination-in-chief has not been challenged in the crossexamination. PW1 has also given evidence in examination-inchief that on 02.11.2014, he saw his wife and Muraleedharan in a car and that he obstructed the car in front of Infopark. His evidence in this regard also remains unchallenged in the crossexamination.

¶134

It is found that there is no proof that Ext.A1 series letters had been actually written by Muraleedharan and given by him to the wife of PW1. But, it does not mean that Muraleedharan had not written any letters to the wife of PW1. There are circumstances to infer that Muraleedharan had written letters to her. The husband and the wife were members of Kerala Pulayar Maha Sabha (in short 'KPMS'). The husband had given a complaint dated 16.02.2015 to the KPMS against the wife. Ext.A2 is the copy of the decision taken by the Ernakulam Union Committee of KPMS on the complaint made by the husband. Ext.A2 shows that the husband had complained that Muraleedharan had written obscene letters to the wife. Ext.A2 shows that P.K.Muraleedharan, who was also an office-bearer of KPMS, was removed from such position, on the basis of the complaint of the husband. Ext.A2 further reveals that the wife

¶135

Mat.A.Nos.441/2017 & 483/2017

¶136

¶137

was removed from the position of the Secretary of KPMS, Manakkathazham branch. It is relevant here to note that Ext.A2 decision was taken on 21.02.2015, more than one year before the filing of the petition for divorce. It cannot be found that the husband had raised the allegation against the wife and Muraleedharan in February, 2015 with a view to create evidence in a petition for divorce which was filed only in March, 2016.

¶138

What is significant is not that Muraleedharan had written obscene letters to the wife of PW1 but the fact that the wife of PW1 did not make any complaint in that regard to any authority. It means that she had no objection to such letters being written to her by Muraleedharan. This circumstance, coupled with the fact that she used to travel together with Muraleedharan on scooter and in car, indicates the intimate relationship they had with each other. There are no circumstances to find that it was a pure friendship between the wife of PW1 and Muraleedharan.

¶139

There is an allegation raised by the husband that the wife had not permitted him to have sex with her for the past sixteen years. PW1 has stated in examination-in-chief that they have not been living as husband and wife for the past sixteen

Mat.A.Nos.441/2017 &

483/2017

years. His evidence in this regard does not mean that the wife did not permit him to have sex with her. PW1 has not specifically stated that his wife did not permit him to have sex with her. Therefore, this allegation is not proved.

¶144

The petition for divorce contains allegations to the effect that the wife had assaulted the husband on different occasions and that she used to hit and slap him on the face. It is alleged that she had physically assaulted the husband in front of the driver David and also in front of the leaders of KPMS. But, when examined as PW1, the husband has not given any evidence in this regard. David has also not given any evidence that he saw the wife of PW1 hitting PW1. None of the leaders of KPMS was examined to prove that the wife had hit or slapped PW1 in front of them.

¶145

It is alleged in the petition for divorce that when the leaders of KPMS came to the house of the husband to enquire about the immoral relationship of his wife with Muraleedharan and when they talked to the wife, she threatened to commit suicide and she also hit on the face of the husband and slapped him. PW1 has not given any evidence in this regard. No leader of KPMS was also examined to prove this incident. There is an

Mat.A.Nos.441/2017 &

483/2017

allegation in the petition for divorce that on 13.01.2016 the wife tried to murder the husband by keeping the pillow pressed on his face. PW1 has not given any evidence in this regard also. Therefore, this allegation is also not proved.

¶150

However, as already found, there is evidence that there was close relationship and intimacy between the wife of PW1 and Muraleedharan. Having such relationship with a man, other than her husband by a married woman, without the permission of the husband, would amount to an act of cruelty towards the husband. It amounts to inflicting mental cruelty on the husband. Therefore, in the instant case, the husband is entitled to get a decree of divorce on the ground of cruelty.

¶151

The wife filed O.P.No.1657/2015 seeking a decree of declaration that she has got title and possession over the property described in the schedule of that petition. The property shown in the schedule of O.P.No.1657/2015 is having an extent of 9.800 cents and it is situated in Kakkanad Village in Kanayannur Taluk and it is comprised in re-survey No.525/7.

¶152

There is no document produced by the wife which would show that she has got title or possession over the petition schedule property.

¶153

Mat.A.Nos.441/2017 & 483/2017

¶154

¶155

The plea of the wife is that after the marriage, her father had gifted property jointly to her and the husband and the husband later sold the aforesaid property and used the entire sale consideration for development of his business activities. Therefore, the wife has claimed right over the petition schedule property which belongs to the husband. The specific plea in paragraph 9 of the original petition (O.P.No.1657/2015) is that the husband caused development of his business activities by spending the entire assets of the wife and therefore, the wife has acquired the status of a co-owner of the petition schedule property.

¶156

The aforesaid claim made by the wife regarding right over the property of the husband is not maintainable. She has no case that the aforesaid property was purchased by the husband using her money. If she has got a plea that the amount obtained by the husband by selling the property which was gifted to him by her father was misappropriated by him, the remedy is to seek a decree for realisation of that amount. It will not confer upon her any right or title over the property which belongs to the husband.

¶157

Ext.B2 document would show that 7½ cents of property which belonged to the father of the wife was gifted by

Mat.A.Nos.441/2017 &

483/2017

him jointly to the wife and the husband in the year 1987. Ext.B3 document would show that on 21.12.2006, the property covered by Ext.B2 document along with the remaining property of the father of the wife, was sold by the wife and her father and the husband. In Ext.B3 document, the consideration for the property belonging to the father of the wife is shown as Rs.55,000/- and the consideration for the property belonging to the wife and the husband is shown as Rs.1,05,000/-.

¶162

The description of the property given in the schedule in O.P.No.1657/2015 shows that the husband acquired purchase certificate in respect of that property in the year 1997. The wife has got no specific plea that the money obtained by the husband by selling the property as per Ext.B3 document was used by him for purchasing the property shown in the schedule in O.P.No.1657/2015.

¶163

When examined as RW2, the wife has given evidence in examination-in-chief that she has got right over the property of the husband in her capacity as the wife and also for the reason that money belonging to her was spent for the construction of the house therein. In this connection, it is relevant to note that in the description of the property given in the schedule of

Mat.A.Nos.441/2017 &

483/2017

O.P.No.1657/2015, no house is mentioned. Further, in the

¶168

original petition, there is no specific plea that the money of the wife was used for construction of any house in the petition schedule property.

¶169

The wife had given a complaint at the Thadiyittaparamba police station against her mother on 18.07.2009. Ext.A12 is the copy of this complaint. The wife has not denied or disputed Ext.A12 document. It is specifically stated in Ext.A12 complaint given by the wife in the police station that it was at the instance of her parents that her husband agreed to sell the property covered by Ext.B2 document. It is also stated in this complaint that her husband was not at all aware how the money obtained by selling the property (as per Ext.B3 document) was used or spent. The plea of the wife is that Ext.A12 is a complaint given at the instance of her husband on account of the pressure exerted on her by him. There is no convincing evidence to find that Ext.A12 complaint given by the wife in the police station was on account of undue influence or coercion made on her by the husband.

¶170

In the aforesaid circumstances, the wife has not proved that she has got any right or title over the property

¶171

Mat.A.Nos.441/2017 & 483/2017

¶172

¶173

mentioned in the schedule of O.P.No.1657/2015. The Family

¶174

Court has rightly dismissed her claim for granting a decree of declaration of title over the property.

¶175

The discussion above would show that the decree of divorce granted by the Family Court in favour of the husband on the ground of adultery is liable to be set aside, but the decree of divorce granted on the ground of cruelty has to be confirmed. There is no reason to interfere with the finding of the Family Court that the wife failed to prove any right or title over the petition schedule property.

¶176

Consequently, Mat.Appeal No.441/2017 is allowed in part and the decree of divorce granted in favour of the husband on the ground of adultery is set aside but the decree of divorce

¶177

granted on the ground of cruelty is confirmed. Mat.Appeal No.483/2017 is dismissed. No costs in both appeals.

¶178

(sd/-)

¶179

C.K.ABDUL REHIM, JUDGE

¶180

(sd/-)

¶181

R.NARAYANA PISHARADI, JUDGE

¶182

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