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Gayathri vs Gayathri on 23 October, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941

Mat.Appeal.No.173 OF 2012

AGAINST THE ORDER IN OP 1173/2006 DATED 16-02-2012 OF FAMILY
COURT,THRISSUR

APPELLANT/RESPONDENT:

GAYATHRI
AGED 31 YEARS
D/O.MOHANAN, PANAKKAL HOUSE, MANATHALA P.O.,
CHAVAKKAD TALUK, THRISSUR.

BY ADV. SRI.RAJIT

RESPONDENT/PETITIONER:

MANOJ
S/O.PUSHPANGADHAN, MANAYIL HOUSE,
CHAKKAMKANDAM P O., PALUVAL, CHAVAKKAD-680522.

BY ADV.T.K.VIPINDAS, B/O
BY ADV.PRIYA.P.K
BY ADV.SREEVINAYAKAN.K.V., FOR CAVEATOR
BY ADV. SRI.K.M.ANEESH

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
23.10.2019, ALONG WITH Mat.Appeal.280/2012, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal Nos.173 and 280 of 2012

:-2-:

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941

Mat.Appeal.No.280 OF 2012

AGAINST THE ORDER IN OP 1173/2006 DATED 16-02-2012 OF FAMILY
COURT,THRISSUR

APPELLANT/PETITIONER:

MANOJ
AGED 37 YEARS
S/O PUSHPANGADAN,MANAYIL HOUSE, CHAKKUMKANDOM
P.O., PALUVAI, CHAVAKKAD.

BY ADVS.
SRI.T.K.VIPINDAS
SMT.P.K.PRIYA

RESPONDENT/RESPONDENT:

GAYATHRI
AGED 29 YEARS
D/O MOHANAN, PANAKKAL HOUSE, MANATHALA P.O.,
CHAVAKKAD – 680506

BY ADV. SRI.RAJIT

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
23.10.2019, ALONG WITH Mat.Appeal.173/2012, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal Nos.173 and 280 of 2012

:-3-:

Dated this the 23rd day of October, 2019

J U D G M E N T

SHAFFIQUE, J.

These two appeals arise from the matrimonial

issues that arose between a couple. O.P.No.1173 of

2006 has been filed by the husband for a

declaration that the marriage between the couple is

null and void. Alternatively, he sought for

dissolution of marriage on the ground of cruelty.

2. The short facts of the case is as under;

The parties are described as shown in the original

petition unless otherwise stated. The marriage

between the couple was solemnised on 26.10.2003 as

per the Hindu religious rites and ceremonies. A

child was born in the wedlock on 24.2.2006.

According to the petitioner, while his wife was

pregnant, she was taken to Raja Hospital at

Chavakkad. From there, she was referred to Jubilee
Mat.Appeal Nos.173 and 280 of 2012

:-4-:

Mission Hospital, Thrissur and during the

treatment, it was noticed that she was suffering

from Idiopathic Thrombocytopenic Purpura (ITP). He

later found that she was suffering from the said

disease even before the marriage and she was

undergoing treatment for the same. He contended

that it is an incurable disease which fact was not

brought to his notice prior to the marriage. At the

time of delivery she was provided with 11 bottles

of blood. Even the hospital authorities were not

willing to undertake her delivery on account of the

risk involved in the matter. According to him, in

so far as this fact was not brought to his notice

prior to the marriage, he seeks for a declaration

that the marriage is null and void. It is further

contended that after delivery, the wife was taken

to the parental home and thereafter they did not

live together as husband and wife. He attempted to
Mat.Appeal Nos.173 and 280 of 2012

:-5-:

visit her on a few occasions at her house but the

attitude towards him was not cordial and he was

abused by his wife and her parents. He was unable

to visit his child and she was not interested to

continue the marital life. Every time when he

attempted to visit his child, he was abused and he

was asked to go away from her residence. The change

in the attitude of the respondent, according to

him, was on account of the fact that the petitioner

and his family members had came to know about the

disease she was suffering. The attitude which was

shown against him by the respondent and her parents

amounts to cruelty and therefore he sought for

dissolution of marriage as well. The respondent

denied the allegations. According to her, she was

not aware of any such disease. She has irregular

periods which has been treated and therefore there

was no reason for concealing any particular fact
Mat.Appeal Nos.173 and 280 of 2012

:-6-:

which would affect the marital relationship at all.

Her complaint was that demanding dowry, she was

being harassed and the respondent had taken away

all her gold ornaments, except a gold chain, an ear

ring and five bangles and the rest of the gold

ornaments were misappropriated. She also stated

that she was subjected to cruelty. She denied

having abused the petitioner by herself or her

parents. According to her, the petitioner did not

come to enquire about her nor has visited the

child. Since no maintenance has been paid, she had

to file a case demanding maintenance.

3. In order to prove the case, three witnesses

were examined from the side of the petitioner as

PWs. 1 to 3. Respondent was examined as RW1.

Exts.A1 to A12 and Ext.B1 were the documents relied

upon. The Family Court found that a declaration as

sought for cannot be granted, but having considered
Mat.Appeal Nos.173 and 280 of 2012

:-7-:

the question of dissolution of marriage, it was

found that from the attitude of the wife it is

clear that there was mental cruelty and accordingly

granted divorce as sought for.

4. The learned counsel for the appellant

submits that the entire issue between the parties

was relating to the so called ITP, which by itself

was not a contagious disease that could prevent a

person having a marital relationship. The

petitioner had proceeded on a wrong assumption that

the disease was contagious and it may affect the

generations to come. The Doctor in Ext.B1 had

clearly indicated that there was nothing wrong with

the respondent, while prevents her from continuing

the marital relationship. It is submitted that all

along the respondent was ready and willing to join

the petitioner, but it was only on account of his

attitude that the marital relationship had failed.
Mat.Appeal Nos.173 and 280 of 2012

:-8-:

5. On the other hand, the learned counsel

appearing for the husband would submit that after

the petitioner having known about the problem faced

by the respondent, he had rendered necessary

assistance to treat her. He had come to know about

the complication that she had, only when she

visited the hospital at the time of pregnancy. The

complication arising from the particular situation

is that the platelet count will be much less than

what is actually required. From Raja’s Hospital she

was therefore referred to Jubilee Mission Hospital

at Thrissur, where the particular disease was

diagnosed and she continues to have the same

problem as there was discoloration and scratches on

her skin and scratches. It is further submitted

that despite all this, the petitioner was willing

to take her to the matrimonial home but she was not

willing and the parents of the respondent having
Mat.Appeal Nos.173 and 280 of 2012

:-9-:

known about the fact that the disease was made

known to the petitioner, they started behaving in a

rude manner. When it was noticed that she was not

interested to live with him and he was not even

permitted to see the child, he had no other option

other than to file a petition seeking nullity of

marriage and in the alternative, dissolution of

marriage. Having known about the same, she

preferred a police complaint, on the basis of

which, the police had come and searched the house

and in her presence, all the gold ornaments

belonging to her were taken from the almirah with

the key which was provided by her. Even thereafter,

she filed a case against the petitioner alleging

offence punishable under Section 498A and Section

406 of IPC. The police had referred the matter by

stating that those were false allegations, but

still a private complaint was filed which
Mat.Appeal Nos.173 and 280 of 2012

:-10-:

ultimately resulted in acquittal. It is therefore

contended that despite the cruelty meted out

against the petitioner, during the whole period,

she was prosecuting false cases against the

petitioner which also has to be taken into account.

The matrimonial relationship has irretrievably

broken and there is no chance for a reunion. Under

such circumstances, the learned counsel seeks for

sustaining the order of divorce.

6. Having heard the learned counsel on either

side and having perused the records, we are of the

view that the evidence of PW1 clearly narrates the

incidents which happened immediately after the

delivery of the child. Of course, it was shocking

for the petitioner, when he had come to know about

the particular physical situation of his wife. But

still, he ensured her proper treatment, as she was

in the advanced stage of pregnancy. Even according
Mat.Appeal Nos.173 and 280 of 2012

:-11-:

to the Doctors who treated her, at the time of

delivery, sufficient quantity of blood had to be

given for effecting the delivery, as loss of blood

is a situation that may arise on account of profuse

bleeding since the platelet count was reduced. But

from the evidence of PW1, it is further seen that

the wife had come to the matrimonial home on

21.5.2006 to perform the functions in connection

with the birth of the child and she left back on

25.5.2006. The argument of the appellant is that

once it is admitted that she had come back from the

parental home to the matrimonial home, the

allegation of cruelty was totally misconceived. But

this is a case, in which, even PW1 had clearly

narrated the attitude of the respondent against him

which was immediately after the delivery. Her

parents had also abused him and that apart, he was

not permitted to see the child. Though these facts
Mat.Appeal Nos.173 and 280 of 2012

:-12-:

were denied by RW1 in her evidence, the plight of a

person being abused when he goes to visit his

child, in his wife’s house can be imagined, and it

amounts to mental cruelty. That apart, from the

evidence it is rather clear that immediately on

receiving notice in the divorce petition, a

complaint has been filed and at the instance of the

police, the house of the petitioner was searched

and the gold ornaments and other articles of the

respondent were taken away. The fact that she had

taken away all her gold ornaments by itself means

that the petitioner or his family members had not

misappropriated the gold ornaments. But still, she

filed a complaint against them under Sections 498A

and Section406 of IPC. Though it was referred by the

police, she continued to prosecute the matter by

filing a private complaint, which ultimately ended

in acquittal. On the aforesaid facts, it is rather
Mat.Appeal Nos.173 and 280 of 2012

:-13-:

clear that false complaints have been filed by the

respondent against the petitioner and his family

members which also amounts to cruelty. Of course,

there is nothing wrong in filing cases if the

complaint is genuine, but when it is rather proved

by cogent evidence that the complaint was

absolutely false, the very act of filing such

complaints itself amounts to cruelty. Taking into

account all these facts, we do not think that the

Family Court committed any error in granting a

decree for divorce. As far as the claim for nullity

of marriage is concerned, the materials placed on

record are not sufficient enough to arrive at a

conclusion that the respondent was aware of the

fact that the said disease may affect the marital

relationship. Even otherwise, Ext.B1 proves the

fact that such a disease by itself cannot affect

the marital relationship between the couple.
Mat.Appeal Nos.173 and 280 of 2012

:-14-:

Therefore, we do not think that the Family Court

erred in rejecting the prayer for a declaration

that the marriage is null and void.

In the result, we do not find any grounds to

interfere in either of these appeals. Mat.Appeals

fail and the same are accordingly dismissed.

All pending interlocutory applications are

closed.

Sd/-

A.M.SHAFFIQUE
JUDGE

Sd/-

T.V.ANILKUMAR
JUDGE
ami/

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