Allowed

Reshma.K.M v. Rajeesh.O.P

Kerala HC9 Sept 2021Mat.Appeal/227/2018

Case brief

AI extract

What is this about?

The High Court allowed a matrimonial appeal against a divorce petition dismissed by the Family Court. Finding that the appellant's testimony of cruelty, alcoholism, and illicit relationships was natural and credible despite lack of independent witnesses, the Court set aside the lower decree and granted divorce under Section 13(1)(ia) of the Hindu Marriage Act.

What did the court decide?

Impugned decree and judgment set aside; marriage dissolved by decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act.

Reshma.K.M Vs Rajeesh.O.P — Matrimonial and Divorce | Kerala HC (2021)

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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.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 9^TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943 MAT. APPEAL NO. 227 OF 2018

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(AGAINST THE ORDER DATED 21.06.2017 IN OP 392/2016 OF FAMILY COURT, VATAKARA, KOZHIKODE)

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APPELLANT/PETITIONER:

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RESHMA.K.M, AGED 30 YEARS, D/O. BHASKARAN, CHERUVOTTU THADATHIL HOUSE, P.O.MANADHAMKAVU, NADUVANNUR, MANDHAMKAVU AMSOM & DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 614.

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BY ADV SRI.M.G.SREEJITH

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RESPONDENT/RESPONDENT:

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RAJEESH.O.P, AGED 34 YEARS, S/O. RAMAKRISHNAN, KOTTACHERY POYIL HOUSE, P.O.MELUR, MELUR AMSOM & DESOM, KOYILANDY TALUK, PIN - 673 306.

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat. Appeal No.227 of 2018

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A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.

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Mat. Appeal No.227 of 2018

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Dated: 9^th September, 2021

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JUDGMENT

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A.Muhamed Mustaque, J.

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Appellant is the wife. She filed this appeal aggrieved by dismissal of her petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act.

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Appellant married the respondent on 27/12/2010 in accordance with the Hindu religious rites and ceremonies. Appellant is working as a Staff Nurse in M.M.Hospital, Koyilandy. According to the appellant, the marriage life from

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the initial days itself was miserable as the respondent was found to be a chronic alcoholic. She narrated instances of physical and mental abuse.

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Mat. Appeal No.227 of 2018

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Apart from the physical and mental harassment, it

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is also stated by her that, the respondent was having illicit relationship with one lady and the fact was found out by her while crosschecking the mobile calls and messages in the mobile phone of the respondent. It is also stated by her that, when she questioned the same, she was brutally assaulted.

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Appellant has also raised an allegation that respondent's father also made undesirable advances towards her. Appellant was examined as PW1. Respondent entered appearance and refuted all the allegations. According to the respondent, he demanded the appellant to change the place of her job and that resulted in certain difference of opinion between the appellant and the respondent. Before the Family Court, the respondent was examined as RW1.

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The Family Court on appreciation of pleadings and evidence came to the conclusion that there was no evidence to establish cruelty. It was found that the appellant failed to prove the respondent is a chronic alcoholic. The Family Court took

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Mat. Appeal No.227 of 2018

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particular note of the fact that the appellant failed to examine one Sajeevan, who allegedly undertook the mediation between the parties from the residence of the brother of the appellant.

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The appellant gave evidence in tune with her pleadings. There is no dispute to the fact that there was difference of opinion between the parties from the initial days of the marriage life itself. The Family Court refused to accept the oral testimony of the appellant for the simple reason that the appellant failed to examine any independent witness. The Family Court also found that the appellant failed to produce evidence to show that respondent used to make mobile calls and sent messages from his phone to the lady with whom he had alleged illicit relationship.

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It is to be noted that in spite of notice in this matter, respondent has not chosen to appear. According to us, the Family Court erred in appreciating the evidence. The appellant was having a consistent case that respondent used to mentally

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and physically harass her. The evidence given by her is quite

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Mat. Appeal No.227 of 2018

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natural. The unshaken testimony clearly spells the instances of cruelty meted out to her. The parties got married in the year 2010. Admittedly they were living separately for a long period. If there was serious difference of opinion between the parties, that would essentially show that somebody is at fault. If the respondent was serious about restoring the marriage, he would have filed petition for restitution of conjugal rights. It is in this background, the court has to examine the veracity of the oral testimony of the appellant. Her case of alcoholism cannot be ruled out in this mater. The appellant also named the lady with whom respondent was having illicit relationship. The mobile phone belongs to the respondent. The appellant cannot produce the details of the mobile messages or phone calls made by the respondent. In a matter like this, court has to give analysis of what would be available before a court, is the oral testimony of the parties. If the narration of the incident in the pleadings as well as in the oral testimony is natural and there are no other circumstances to disbelieve the same, the

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Mat. Appeal No.227 of 2018

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court has to accept the same. The incidents referred to in the pleadings as well as in the oral testimony clearly constitute elements of established cruelty.

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In the light of the findings as above, we are of the view that the appellant has made out a case for dissolution of marriage on the ground of cruelty. We therefore set aside the impugned decree and judgment and allow this appeal. The marriage between the appellant and the respondent solemnized on 27/12/2010 is dissolved by a decree of divorce.

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Sd/-

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A.MUHAMED MUSTAQUE, JUDGE

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Sd/-

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DR.KAUSER EDAPPAGATH, JUDGE

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Reshma.K.M v. Rajeesh.O.P

Case brief

What is this about?

What did the court decide?

Reshma.K.M v. Rajeesh.O.P

Case brief

What is this about?

What did the court decide?

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