Kerala High Court

P.K. Vijayappan Nair vs J. Ammini Amma on 30/1/1997

JUDGMENT

Sreedevi, J.

1. This appeal is filed against the decree and judgment in H.M.O.P. No. 85 of
1985 on the file of the Sub Court, Ernakulam.

2. The appellant’s case is this: The appellant is the petitioner before the
lower Court. His first wife passed away on 31-5-1978. He has three children in
that wed-lock. Subsequently, he married the respondent on 2-2-1979. According to
him, the relationship between him and the respondent got strained within a week,
as the respondent did not like him showing any love and affection to his
children. He therefore converted his residential building into a girls’ hostel
and his daughters were put up there. His son was admitted to a boarding school.
He and the respondent shifted their residence and even after the said
adjustment, the respondent did not change her attitude. According to him, the
couple lived together till 15-7-1984, while the respondent would contend that
she lived with him peacefully till 17th May, 1985. The appellant sued for a
decree of divorce on the ground of cruelty. She denies the allegation of
cruelty. According to her, it was the husband who had treated her with cruelty.
The Court below dismissed the petition. Hence this appeal.

3. According to the appellant, the Court below went wrong in finding that
there is no cruelty on the part of the respondent, that it has not correctly
appreciated the evidence and documents, Exts, A7, and A9, that it failed to
consider Exts. A10 to A14 and A16 and that it failed to draw the proper
inference from Exts. B1 to B3 series, which showed the improper conduct on the
part of the respondent.

4. To prove cruelty on her part, the appellant relied on Exts. A1 to A17. He
as PW 1 has deposed that as he had three children he wanted to marry the
respondent with the intention of looking after the children. But she wanted to
get away from the children, and hence he had to put up his children in the
hostel. He has also deposed that the wife used to scratch his face and pick up
quarrels with him as also with the children, and thereby she had hurt his
feelings. It is an admitted fact that there was an attempt on the part of the
respondent to commit suicide. Ext. Al is a suicide note written by her to the
Sub Inspector of Police, wherein she has written that for her death nobody in
the house is responsible. Ext. A3 is a letter written by her to the appellant,
wherein she had expressed her intention to dissolve the marriage. This letter
also goes to show that she has no love and affection towards her husband. She
has contended that the appellant developed illicit intimacy with a lady by name
Komalavally, who was the matron of the ladies hostel put up by him. To prove
that he had illicit intimacy with Komalavally, no evidence had been let in. At
the time when the respondent was examined, she had admitted that she had filed
several civil and criminal complaints against him. She had also filed complaints
before the Electricity Board, where he was working. The appellant had deposed
that once she made an attempt to commit suicide by dousing in kerosene oil and
setting fire. She also picked up quarrels with him and attempted to commit
suicide. So she cannot be said to be a woman who has love and affection towards
her husband. All these amounts to cruelty as it, causes mental agony and torture
to the appellant. Filing cases one after another against the husband and
children definited amounts to cruelty.

5. On going through the evidence of the appellant and also of the witnesses,
PWs 3, 4 and 5, we find that the wife had treated the husband with cruelty. PW 2
is the brother-in-law of the appellant. He had deposed that when the
relationship between the appellant and the respondent got strained, he along
with the appellant’s brother-Balakrishnan Nair intervened in the matter but the
parties could not settle their differences. PW 4 was examined to prove that the
respondent had attempted to commit suicide. He had deposed that when he was
returning after the film show, he had seen the appellant along with one Rajan
going in search of the respondent at about 12.30 in the night and the respondent
was found sitting by the side of a pond. PW 5 also has deposed that at about
12.00 in the night on 19th September, 1980, the appellant was going in search of
his wife. PW 6 has deposed that on 11th July, 1984 when she went to the hostel
put up by the appellant, she had seen the respondent attempting to commit
suicide by dousing in kerosene oil. She has stated that she was saved by the
appellant and his children. The appellant produced 11 documents to prove his
case. Those documents are admitted by the respondent. Hence they were marked as
Exts. A18 to A28.

6. It is an admitted fact that the respondent filed a criminal complaint
before the Judicial First Class Magistrate, Muvattupuzha for criminal trespass
against the appellant and two others as is seen in Ext. A18. She has also
registered a crime case against the appellant. The appellant was forced to move
anticipatory bail in Crl. M.P. 794 of 1990, which was allowed by the Additional
Sessions Judge, Ernakulam. Ext. A20 is the copy of the order granting
anticipatory bail. She had filed a civil suit against him for realisation of
money as O.P. (Ind.) 8 of 1991. Ext. A21 is the copy of plaint in that case. In
that case she had applied for attachment before judgment of the building
belonging to the appellant. Ext. A 23 is the notice issued to the appellant to
show cause why he should not furnish security for Rs. 5,00,000/-. She has filed
another suit, O.S. No. 232 of 1985 before the Munsiff’s Court, Muvattupuzha
against the appellant and his daughter and obtained Ext. A24 decree for
injunction. That decree was put under execution, but the E.P. was dismissed by
the Court, finding that the proceedings under Order XXI, Rule 32, C.P.C., which
are quasi-criminal in nature, breach for injunction must be strictly proved and
punishment should not be awarded on mere suspicion. The Court also held that the
decree-holder failed to prove the alleged breach of injunction, Ext. A24, is the
order in that case. At the instance of the respondent, C.C. No. 371 of 1991 was
launched by the Sub Inspector of Police, Kothamangalam against the appellant and
his children under Section 498-A read with Section 34, I.P.C. Ext. A25 is the
order whereby the appellant was acquitted. She has also filed another suit, O.S.
No. 46 of 1986, against the appellant and one Komalavally, with whom she has
alleged that the appellant had illicit connection. Ext. A26 is the copy of
judgment dismissing the said suit. She filed another suit, O.S. No. 34 of 1986
against the appellant for realisation of money. That was also dismissed. Ext.
A27 is the copy of judgment in that case. Against the said docree and judgment,
the respondent filed A. S. No. 68 of 1990, which was also dismissed, against
which she has preferred S.A. No. 430 of 1991 and that was also dismissed by Ext.
A28. All these go to show that the respondent with intent to harass him had
filed false civil and criminal cases one after another. The Court below held,
that for an act to amount to cruelty, there must be such treatment by the
parties which causes suffering in body or mind which is harmful or injurious to
life.

7. But the Supreme Court in Dastane v. Dastane, AIR 1975 SC 1534, held, that
—

“harm or injury to health, reputation, the working career or the like would
be an important consideration to know whether the responsdent’s conduct amounts
to cruelty”.

8. After the Hindu Marriage (Amendment) Act, 1976, the petitioner need only
establish that the respondent had treated him with cruelty. He need not show
that cruelty must be such as to cause reasonable apprehension that it would be
harmful or injurious to the appellant. Cruelty should be of the type which will
satisfy the conscience of the Court that the relationship between the parties
has deteriorated to such an extent that it has become impossible for them to
live together without mental agony.

In Ext. A22 affidavit filed by the respondent she had admitted that in
between the husband and wife six civil cases and four criminal cases are
pending. On going through the evidence adduced in this case, we are satisfied
that the appellant has proved that the appellant and the respondent cannot live
together without mental agony. Thereafter, the appellant is entitled to get a
decree of divorce as prayed for. The Court below went wrong in appreciating the
evidence adduced in the case regarding cruelty. Hence the decree and judgment of
the Court below are set aside and the appeal is allowed. A decree is granted
dissolving the marriage between the appellant and the respondent.

The M.F.A. is accordingly allowed.