Dismissed

Jayasree.K.v v. Shibukumar.N.S

Kerala HC24 Jun 2019Mat.Appeal/769/2011

Case brief

AI extract

What is this about?

The High Court dismissed a matrimonial appeal seeking to set aside a divorce decree. Upholding the Family Court's finding of cruelty and the breakdown of the matrimonial relationship, the Court held that the petitioner could not reasonably expect to lead a normal life with the respondent and no interference was warranted.

What did the court decide?

The matrimonial appeal was dismissed; the decree of divorce of the Family Court was affirmed.

Jayasree.K.v Vs Shibukumar.N.S — Matrimonial and Divorce | Kerala HC (2019)

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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 N.ANIL KUMAR

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MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941

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Mat.Appeal.No.769 of 2011

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AGAINST THE JUDGMENT IN OPHMA 1021/2009 of FAMILY COURT, ALAPPUZHA DATED 27-06-2011

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APPELLANT/RESPONDENT:

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JAYASREE.K.V D/O.C.R. VASU, SREENILAYAM HOUSE, AYYAMKOICKAL MURI, ERATHU VILLAGE, PATHANAMTHITTA DISTRICT.

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BY ADVS. SRI.P.VIJAYAKUMAR SRI.B.HARRYLAL SRI.C.R.REGHUNATHAN SRI.M.V.ASHIM

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RESPONDENT/PETITIONER:

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SHIBUKUMAR.N.S, S/O.P.S.NEELAKANDAN,MANIMANDIRAM, ANGADICKAL SOUTH, KODUMON, ADOOR, NOW RESIDING AT NO.553, 6TH A CROSS, 10TH MAIN, HAL(HINDUSTAN AERONAUTICS LTD.), IIIRD STAGE, JEEVAN BHIMA NAGAR, BANGALORE-560 075.

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BY ADVS. SRI.ARUN BABU SRI.G.HARIPRASAD SRI.R.KISHORE

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Mat.A.No.769/2011

JUDGMENT

ANIL KUMAR, J

This appeal is filed against the judgment dated 27.06.2011 in O.P.,(HMA).No. 1021/2009 of the Family Court, Alappuzha granting dissolution of marriage.

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The appellant is the wife of the respondent. Respondent filed the original petition before the court below seeking dissolution of marriage with appellant. The parties are hereinafter referred to as petitioner and respondent as stated in the original petition unless otherwise stated.

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The petitioner's case is that the petitioner married the respondent on 2.2.2006. At the time of the marriage, the petitioner was employed in Bangalore where he took his wife also. After three days of the marriage on 5.2.2006, according to the petitioner, his life with the respondent at Bangalore was miserable and the respondent treated him with cruelty. To put it differently, the petitioner stated that the respondent was quite quarrelsome and very abusive to him. She was also sceptical in nature and suspect him to have illicit relationship with strange woman. The petitioner also stated that the respondent belittled him and abused him in front of the friends, relatives and public. According to the petitioner, the matrimonial relationship has

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Mat.A.No.769/2011

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irretrievably broken down and it is not possible for him to lead a normal life with the respondent. It is further alleged that the respondent went to the extent of filing a complaint before the Station House Officer, Halasur Gate Police Station alleging offence under Section 498A IPC against the petitioner. In connection with the crime, the police arrested the petitioner and put him behind the bars. The petitioner further alleged that, for no reasons the respondent became violent and she attempted to break away the Thali and threw away plates and other household items in the house making his life miserable.

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Per contra, the respondent alleges that after the delivery of the child at Adoor, the petitioner deserted her refusing to take her back to Bangalore. She maintained that she is willing to reside with the petitioner in Bangalore and that she is prepared to take care of the petitioner. Her only complaint is that the petitioner deserted her without providing maintenance to her and her child.

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The evidence in this case consists of the oral evidence of PW1 and PW2 and Exts.A1 to A4 on the petitioner's side. On the side of the respondent RW1 and RW2 were examined and marked Exts.B1 and B2.

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On a consideration of the entire aspects in detail, the trial court has come to a conclusion that the respondent was not leading a

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Mat.A.No.769/2011

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cordial and healthy life with the petitioner for no fault of the petitioner. By applying the test of cruelty in the facts and evidence of the case, the lower court granted a decree for divorce.

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The learned counsel for the appellant/wife submits that apart from the vague allegations, not even a single instance of cruelty is either pleaded or sought to be proved by the petitioner/husband. The learned counsel further submits that the petitioner has been at fault in maintaining and discharging his matrimonial obligation towards the respondent/wife.

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On a consideration of the evidence adduced, particularly with reference to the evidence let in by PW1 and PW2 as Exts.A1 to A4, it is brought on record that the respondent was living apart from the petitioner since 20.5.2008. It is also a fact that the respondent is living in a rented building along with the child. Her case is that she is willing to cohabit with the petitioner and to lead a normal life discharging her duties as a good wife. Her case is that it was the petitioner who purposefully deserted her with the intention of avoiding her from his life. On the other hand, there is contra evidence given by PW1 and PW2 to the effect that it is the respondent who deserted the petitioner. On a perusal of the evidence let in by PW1 and PW2, there are sufficient reason to believe that the respondent treated the petitioner with matrimonial cruelty. On going through the pleadings

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Mat.A.No.769/2011

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and evidence let in by the respondent, it is clear that she has no rival allegation of cruelty against the petitioner. On cross-examination, she denied the allegation of desertion. However, the fact remains that the parties have been residing separately for a considerably long period of time. Evidence tendered by RW1 and RW2 does not inspire confidence. Respondent's case that the respondent is willing to live with the petitioner and to lead a normal life is not established.

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The petitioner's definite stand is that the respondent unreasonably doubted him and have a sceptical attitude whenever the respondent mingled with other ladies. It has come out in evidence that the respondent deserted the petitioner and went to her native place. PW2 stated before court that on 20.5.2008, he witnessed the respondent leaving the house deserting the petitioner and taking away the child. PW1 and PW2 adduced evidence to show that the respondent broke the Thali chain and declare that she did not want to live with the petitioner. The fact that the respondent used to pick up quarrel with the petitioner without reasonable cause is proved on record. The respondent did not have a case that the petitioner is either a drunkard or he had illicit relationship as alleged by her. Before commencement of the trial, the Family Court made every effort to bring them together and make them lead a reunited life. All the efforts made by the Family Court failed and under such circumstances, the

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Mat.A.No.769/2011

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Family Court came to the conclusion that the petitioner's allegation of cruelty on him by the respondent is probable. In view of the circumstances, the court below is of the view that the petitioner is willing to live with the petitioner lacks bonafides.

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On a consideration of the entire evidence, we are of the view that the respondent treated the petitioner with cruelty enabling him to pass a decree for divorce. The test of cruelty under the matrimonial law is whether the aggrieved spouse could be reasonably expected to lead a normal and pleasant life with the other. Judged by the above standards, we are of the view that this is a case where the petitioner could not be reasonably expected to lead a normal and pleasant life with the respondent. In view of the above, we are of the view that the Family Court dissolved the marriage between the petitioner and respondent by a decree of divorce in accordance with the law. No interference is warranted.

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The Mat. Appeal is dismissed.

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Sd/-

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A.M.SHAFFIQUE, JUDGE

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Sd/-

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True copy N.ANIL KUMAR, JUDGE

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P.A. To Judge.

Jayasree.K.v v. Shibukumar.N.S

Case brief

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Jayasree.K.v v. Shibukumar.N.S

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