Allowed

Sunil Kumar.K. v. Reji R.

Kerala HC19 Feb 2019Mat.Appeal/932/2010

Case brief

AI extract

What is this about?

This High Court allowed the husband's appeal against the Family Court's dismissal of his divorce petition. The court held that oral testimony from the husband and his mother established cruelty by the wife and that the marriage had irretrievably broken down.

What did the court decide?

The judgment in OP(HMA) No. 1018/2009 set aside and the petition allowed; marriage dissolved by decree for divorce.

Sunil Kumar.K. Vs Reji R. — 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 A.M.BABU

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TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940

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Mat.Appeal.No. 932 of 2010

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AGAINST THE JUDGMENT IN OPHMA 1018/2009 of FAMILY COURT, THIRUVALLA DATED 28-05-2010

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APPELLANT/PETITIONER:

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SUNIL KUMAR.K. AGED 36 YEARS, S/O.LATE KUMARA SWAMY,THUNDIYIL HOUSE,, VELLOOR.P.O,KARAPPUZHA,KOTTAYAM DISTRICT.

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BY ADV. SRI.SANTHEEP ANKARATH

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RESPONDENT/RESPONDENT:

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REJI R., AGED 33 YEARS, D/O.RAJAPPANACHARI.V.K,VALIAKALA KALEECKAL, CHITTOOR MUKKU,KONNI.P.O.-689 691,KONNY VILLAGE, KOZHENCHERRY TALUK,PATHANAMTHITTA DISTRICT.

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BY ADV.M.R.SARITH PANICKER

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2019, THE COURT ON 19.02.2019 DELIVERED THE FOLLOWING:

Mat.Appeal No.932/10

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J U D G M E N T

Shaffique, J.

This appeal is filed by the petitioner in OP(HMA) No. 1018/2009 challenging judgment dated 28/5/2010 of the Family Court, Thiruvalla, by which his petition for divorce on the ground of cruelty has been dismissed.

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The contention urged by the petitioner/appellant is that the marriage between the parties was solemnized on 27/8/2006. His wife was in the habit of insulting him alleging that he hails from a low income family. According to him, he was constantly harassed by her alleging that he was having illicit relationship with other women and she was suspicious of all women who acquaints with the petitioner. She was advised to undergo treatment for mental disorder. But she was not willing for the same. He also alleged that he and his mother were assaulted by his wife.

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Respondent denied the allegations. According to her, she was cruelly treated by the petitioner. She had filed two

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Mat.Appeal No.932/10

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petitions, one for custody of the minor child and the other for return of gold ornaments or its value. The Family Court heard the cases jointly and common evidence was adduced. From the side of the respondent/wife, PW1 and PW2 were examined. They relied upon Exts.A1 to A15. On the side of the appellant, RW1 and RW2 were examined and they relied upon Exts.B1 to B3 documents.

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As far as the present appeal is concerned, the only question to be considered is whether the appellant is entitled for a decree for divorce on the ground of cruelty. There is no dispute about the factum of marriage and that a male child was born in the wedlock on 20/3/2008. The parties were employed at Delhi at the time of marriage. They got separated since 2008. The contention urged by the petitioner/appellant was that his wife was suffering from paranoid disorder and she was treated at the Medical College Hospital, Kozhikode. But it is relevant to note that this is not a case filed alleging mental disorder. The allegation is that of cruelty.

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Apparently, the contention of the appellant is that, on account of mental disorder of his wife, she is behaving in a cruel manner against him. Other than producing Ext.B2, a medical

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Mat.Appeal No.932/10

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prescription, no medical evidence is adduced on behalf of the appellant in order to prove that she was suffering from any mental disorder.

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In his evidence, RW1 has narrated various instances of cruelty. Basically his contention is that the wife was quarrelling with him and she had told him that she was having intimacy with her cousin before marriage. Further, she used to call his colleagues and neighbours and make scandalous allegations against him. She had even openly informed him that she will live with her cousin with whom she had intimacy. He further deposed that, after 29 days of delivery, she quarrelled with his mother and slapped her. Later, a Psychiatrist was consulted, who had given Ext.B2 prescription. He further deposed that she threatened to commit suicide. She unleashed attack towards him on 15/11/2008 and it was on 13/12/2008 she consumed overdose of Erythrosine capsules attempting to commit suicide.

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To support the contention urged by the petitioner, he examined RW2, the 2^nd respondent, who is the appellant's mother. She also deposed that she was assaulted by the respondent on the 29^th day after delivery of the child. She also

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Mat.Appeal No.932/10

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stated that she was behaving according to her own wishes and never heeds to the request of others. Unable to live peacefully, she had to file a complaint to the police. She also stated that when her husband comes, they will start quarrelling and she used to make allegations against him connecting other women. She used to manhandle the appellant. She also stated that since the child's life was in danger, the child was entrusted to her. Though she was cross-examined at length, nothing has been brought out to discredit her version.

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The Family Court however proceeded on the basis that there is no supporting material to assume that the respondent wife was behaving in a cruel manner towards her husband, colleagues or relatives. But it is relevant to note that evidence of RW1 is supported by the evidence of RW2, mother. She had categorically stated the incident in which she was slapped and she stood by the said statement.

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It is relevant to note that there are several instances of cruelty which had been alleged, which is proved by the oral testimony of RW1 corroborated by RW2. It might be correct to say that none of the friends from Delhi had been examined to

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Mat.Appeal No.932/10

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prove the allegations made by the wife against the petitioner husband. But it seems that the parties were living separately since 2008 and the marriage has been irretrievably broken. There is no chance for a reunion. The matter was referred for mediation and could not be settled.

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In the light of the factual situation arising in the case, the allegations of cruelty stand proved by the oral testimony of RW1 and RW2. We are of the view that the same would suffice to grant a decree for divorce.

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In the result, this appeal is allowed as under:-

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(a) The judgment in OP(HMA) No. 1018/2009 is set aside and the OP is allowed.

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(b) The marriage between the appellant/petitioner and the respondent shall stand dissolved by a decree for divorce.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU

//True Copy// PS to Judge

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JUDGE

Sunil Kumar.K. v. Reji R.

Case brief

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Sunil Kumar.K. v. Reji R.

Case brief

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