IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941
Mat.Appeal.No.547 OF 2013
AGAINST THE JUDGMENT DATED 21-06-2013 IN OP NO.84/2013 OF FAMILY
COURT, PALAKKAD
APPELLANT/PETITIONER:
SANTHOSH KUMAR.S.,
AGED 30 YEARS,
S/O.RAJU, MANGALATH HOUSE, MAZHUVANNOOR SOUTH P.O.,
ERNAKULAM DISTRICT.
BY ADVS.SRI.ALEXANDER JOSEPH
SRI.P.M.SANEER
RESPONDENT/RESPONDENT:
JAYASREE DAMODARAN, AGED 25 YEARS,
D/O.LATE DAMODARAN, ATTAPALLAM HOUSE, PAMPAM PALLAM
P.O., KANJIKODE, PALAKKAD.
BY ADVS. SRI.T.C.GOVINDA SWAMY
SMT.KALA T.GOPI
SMT.T.N.SREEKALA
SRI.K.B.SOUNDER RAJAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
29-01-2020, THE COURT ON 18-02-2020 DELIVERED THE FOLLOWING:
M.A.No.547/2013
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“CR”
Dated this the 18th day of February, 2020
J U D G M E N T
T.V.ANILKUMAR J.
The husband, who filed O.P. No.84/2013 before
the Family Court, Palakkad, for dissolution of
marriage on the grounds of desertion and cruelty, is
in appeal.
2. The original petition was earlier filed in
the Family Court, Ernakulam and numbered as O.P.
No.143/2009 before it was transferred to the Family
Court, Palakkad. The court below dismissed the
original petition holding that appellant/husband
failed to prove the grounds of dissolution taken
under Sections 13(1)(i-a) and (i-b) of the Hindu
Marriage Act, 1955(for short ‘the HM Act’).
3. The respondent/wife is the own cousin of
appellant and their marriage was solemnized on
22.08.2004. Appellant married her while she was
studying for B.Sc. Botany in Chittur Government Arts
and Science College, Palakkad. After the marriage, a
male child by name ‘Kannan’ was born to the spouses.
4. The allegation of the appellant against the
respondent is that, after 1½ months since the date
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of their marriage, his life with her became
intolerable and miserable. It is alleged that she is
of such a peculiar type of woman that she used to
pick up quarrels with him and other inmates of the
matrimonial house for no good reasons and further
she is so short tempered that she used to break
plates, glasses and household utensils by throwing
them away during quarrels. It was usual for her to
leave for her parental home in Palakkad after
picking up quarrel and many a time appellant was
persuaded to follow her to such a long place from
Ernakulam, even at odd night hours. Once she broke
her thali chain and threw it at his face. She often
challenged appellant to divorce him and claimed that
she would well be taken care of by her relatives in
Palakkad and Coimbatore. She refused to get up in
usual hours of morning nor was she prepared to make
tea or food for him. She led an easy going life,
without showing any loyalty and love for appellant
and failed to discharge her matrimonial duties. She
manhandled appellant more than once and even
threatened to kill him. After the spouses shifted to
a flat in another part of Ernakulam Town also, her
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character did not improve and his life with her
became all the more intolerable. She developed
unholy relationship with one ‘Vadivelu’, a close
relative of her, when she used to be in Coimbatore
without appellant’s consent. Ultimately in the month
of December, 2008, she deserted him and left for
Palakkad taking away the child and all her
belongings. On these allegations, appellant sought
dissolution of marriage.
5. The respondent denied allegations of cruelty
and desertion and claimed that appellant was taking
advantage of his own wrong. According to her, he is
a drunkard, who came home with a group of friends in
drunken state and harassed her both physically and
mentally demanding to raise more gold and cash from
her mother. He was interested only in her assets and
did not love nor maintain her and child. In fact,
she had been tolerating his cruel acts all the years
since their marriage.
6. The court below examined appellant as PW1
and three independent witnesses as PWs 2 to 4 on his
side and admitted Exts.A1 and A2 in evidence.
Respondent was examined as RW.1 and on her side, no
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documents were admitted in evidence.
7. After hearing both sides, the court below
was not pleased to order dissolution of marriage,
since according to it, the allegations of cruelty as
well as desertion could not be established by
appellant. It was said that evidence of PW1 was
interested and was not corroborated by direct eye
witnesses to alleged cruelties. It was observed that
allegations of cruelty were vague and general and
did not contain any material particulars.
Testimonies of PWs 2 to 4 were rejected holding that
their knowledge of cruelty was only from hearsay
sources. It was commented that appellant chose to
seek dissolution of marriage taking advantage of his
own wrong.
8. We heard the learned counsel for the
appellant and the respondent.
9. It was contended on behalf of the appellant
that the court below failed to appreciate evidence
adduced by the appellant in its correct perspective
and to note that there was enough and satisfactory
evidence to prove that respondent treated appellant
with mental and physical cruelty. It was further
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contended that the purpose for which PWs 2 to 4 were
cited, was not correctly understood by the court
below and there was absolutely no reason for
disbelieving the independent witnesses. It was also
contended that the allegations of cruelty were
clear, transparent and very specific and in fact,
allegations of respondent were unspecific and very
vague.
10. On the other hand, the learned counsel for
the respondent sought to sustain the impugned order
of dismissal and contended that the conduct of the
appellant amounted to condoning the alleged acts of
cruelties, especially when the spouses lived
together for sometime after the institution of the
original petition at the direction of the Legal
Service Authorities.
11. So far as the dissolution of marriage on the
ground of desertion is concerned, in our view, the
court below rightly dismissed the original petition
holding that the ground is not legally sustainable
on the facts of the case. O.P.No.143 of 2009 was
filed in the Family Court, Ernakulam in the month of
January, 2009, before it was transferred and
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re-numbered as O.P.No.84 of 2013 in the Family
Court, Palakkad. The alleged desertion was in the
month of December, 2008. Section 13(1)(i-b) of the
HM Act does not permit a spouse to sue for divorce
on the ground of desertion before the continuous
period of desertion completes two years. Therefore,
the order refusing dissolution of marriage claimed
on the ground of desertion is absolutely correct and
liable to be confirmed.
12. What hereafter survives is the sole question
as to whether the appellant has succeeded in proving
that he was treated by the respondent with mental
and physical cruelty and is entitled to an order of
dissolution on that ground.
13. The view taken by the court below that
appellant is very vague and unspecific in his
pleadings relating to cruelties does not appear to
be factually correct. In both of his pleadings and
testimony, he has narrated specific situations and
incidents wherein he sustained physical and mental
cruelties at the hands of the respondent. The major
reason for the court below to disbelieve PW1’s
testimony was that it was quite interested and
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lacked corroboration from independent sources.
14. In proof of matrimonial cruelties both
mental and physical, it is quite insensible and
impractical for courts to insist on adduction of
independent oral evidence, since in most of the
matrimonial cases, such cruelties usually take place
only within the four walls of one’s own house. This
gives no opportunity to outsiders of the house to
witness the alleged acts of cruelties. The Family
courts, therefore will have to proceed with inquiry
into the truth of the allegations, confined to the
sole testimonies of the spouses before them, rather
than rejecting them as being interested. It is
unfair for courts in such cases, to insist for
corroborative evidence from independent witnesses
instead of endeavouring to appreciate the
testimonies of the spouses on their own merit and
intrinsic worth.
15. There is no eye witness in this case to the
alleged acts of cruelty since PWs.2 to 4 cited on
the side of the appellant have only hearsay
information about the allegations of cruelty. They
were cited only to prove that despite having
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undertaken repeated rounds of conciliations in order
to bring the parties together, their attempts only
failed and further the matrimonial relationship
between the spouses was irretrievably broken down.
PW2, the Secretary of NSS Karayogam, in which the
appellant is the Member, initiated reconciliatory
efforts based on Ext.A1 request dated 18.12.2008
submitted by the appellant before him. PW3 is a
close neighbour of the respondent. PW4 is the
brother-in-law of the appellant. All these three
witnesses said in their uniform voice that the
spouses reached such an estranged state of mind that
they could never be made to live together and lead a
normal matrimonial life.
16. The appellant testified a few incidents in
which he sustained acts of physical cruelty besides
mental cruelty. He said that in the month of
July,2005, he was manhandled with a knife and was
threatened with death also. This was repeated on
subsequent occasions also at the matrimonial house.
Another allegation is that respondent maintained
unholy relationship with a close relative of her by
name Vadivelu when she used to stay in Coimbatore
M.A.No.547/2013
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without the consent of the appellant. On going
through these allegations, we are not inclined to
accept them as proved. If there was physical
assault, there could have been some medical or
similar evidence. The allegation of unholy
relationship was also not proved. Further these
allegations were denied by the respondent in her
pleading as well as testimony.
17. But with respect to the allegations of
mental cruelty, we are inclined to disagree with the
view taken by the court below and come to a
different conclusion. The appellant said that after
a few weeks of marriage and on 02.12.2004,
respondent picked up quarrel with him without any
tangible reason and broke a few household utensils
by throwing them away. She is quarrelsome by nature
and short tempered also. Similar incidents of
breaking away of household utensils were stated to
have occurred in the month of February, 2005 and on
subsequent occasions also. He said that picking up
of quarrels without any rhyme or reason and breaking
of household utensils were quite usual and he had no
other go than to tolerate her conduct all through
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out. He further said that it was her habit to leave
for her parental home in Palakkad immediately after
creating such scenes and without his consent. He
said that on many occasions, he had to follow her
from Ernakulam to Palakkad even at odd night hours.
On one occasion, at midnight, after picking up
quarrel she left for Palakkad in a taxi without
permitting him to travel with her and therefore, he
had to follow her in a motor bike. Another instance
of mental cruelty which appellant alleges is that
she deliberately chose to rise only late in the
morning and refused to cook and make food for him in
time. She used to humiliate him in the presence of
strangers and guests in the house.
18. The question that now arises is whether
uncorroborated testimony of appellant vis-a-vis RW1,
respondent is convincing and inspires truth. We find
that the respondent denied all the allegations of
physical and mental cruelties in her deposition and
sought to rebut them by contending that she was in
fact, the victim of cruelties at the hand of
appellant. She alleged appellant to be a drunkard,
who used to beat her demanding dowry. He was always
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in the midst of his friends, who also came in
drunken state to the house and thus failed to
discharge the matrimonial duties of her husband.
19. We have meticulously gone through the rival
versions testified by the spouses and find that
appellant’s version of cruelty is trustworthy and
convincing. If the respondent was ill-treated with
demands for dowry as claimed by her, one would only
expect her to have complained to the authorities
against such domestic violences. No evidence of such
a complaint was ever adduced or proved. On the other
hand, her stand is that she is prepared to live with
him. This readiness can only be a pretension and
this itself improbablises her allegation as to
domestic violence on her. In the counter statement
to the original petition for divorce, she did not at
all indicate any specific dates or the amount of
gold and cash allegedly demanded by the appellant.
So also, the names of the friends, who allegedly
used to join appellant’s company for sharing liquor
in the house were also not disclosed in her
pleadings. These material facts were introduced for
the first time only when she testified in court.
M.A.No.547/2013
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This belated disclosure has materially affected the
reliability of her allegation that appellant was
taking advantage of his own wrong, after suppressing
his alleged acts of cruelty.
20. It was pointed out on behalf of the
appellant that none of the allegations of mental
cruelty narrated in Paragraph No.17 of this judgment
as well as pleadings in the original petition was
specifically denied by the respondent in her counter
statement and therefore, they must be deemed to be
admissions in proof of allegations of cruelty by
virtue of the principle as to evasive denial
incorporated in Order VIII Rule 5 of the Code of
Civil Procedure, 1908 (for short, ‘the C.P.C.’).
21. The rules of pleading incorporated in the
C.P.C. equally apply to the proceedings before the
family Courts also by virtue of Section 10 of the
Family Courts Act, 1984. The general principle
flowing from Order VIII Rules 3 and 5 of the C.P.C.
that a defendant who proposes to deny the truth of
an allegation against him/her ought to do it either
specifically or necessary implication in lieu of
mere general or evasive denial, applies to the
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family courts also. Evasive denial in the pleadings
of a defendant is treated by law to be an admission
of the truth of allegations made against him, unless
the court in its discretion is of the opinion that
the undenied fact must, nonetheless, be proved
otherwise than by such deemed admission. In other
words, the courts have necessary discretion to take
exception to such admissions and to look for
independent evidence instead of fully relying on
them. The exceptional cases for such exercise of
discretion ordinarily relate to decisions involving
issues as to status, relationship of parties and
also matters of which court cannot possibly draw
inference as to the truth having regard to their
evidentiality. In this context, Section 23(1) of the
HM Act in its application to matrimonial courts
dealing with cases arising under the said Act is
also very relevant. The aforesaid Section mandates
that in the proceedings under the Act whether
defended or not, the courts are to arrive at just
decisions based only on total satisfaction drawn
from the entirety of materials on record apart from
the deemed admission flowing from the evasive denial
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referable to Order VIII Rule 5 of the C.P.C. by
following the guidelines mentioned in Section 23(1).
This Section does not permit passing of a decree for
divorce on the ground of cruelty when the wronged
spouse is proved to have condoned the cruelty of the
offending spouse. So also, when the spouse sues for
dissolution of marriage after taking advantage of
his or her own wrong or disability also, the said
provision empowers the court to refuse the relief
sought notwithstanding that the truth of the
allegation was not denied specifically or by
necessary implication.
22. Even if the conduct of the respondent in not
specifically denying the allegation of cruelty in
her counter statement is brushed aside also, on an
overall consideration of evidence, it could be seen
that there is enough material from the testimony of
PW1 and circumstances of the case to prove that
respondent treated him with cruelty. The proved
conduct of the respondent shows that the acts
complained of against her are not mere trivial and
negligible irritations or quarrels arising out of
the normal wear and tear of a matrimonial life which
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happens in all families of the society. On the other
hand, they are acts and conduct which obviously have
affected the peace and security of the family life
of the appellant creating apprehension in his mind
that it would be harmful or injurious for him to
live or lead a normal and decent life with the
respondent. The decisions of the Hon’ble Supreme
Court reported in Samar Ghosh v. Jaya Ghosh[(2007)4
SCC 511], Vishwanath Agrawal v. Sarla Vishwanath
Agrawal [(2012) 7 SCC 288], Savitri Pandey v. Prem
Chandra Pandey [2002 KHC 265(SC)] and Gurbux Singh
v. Harminder Kaur [2010 KHC 4767(SC)] are relevant
in this context. The court below failed to
appreciate the facts, evidence and law in proper
perspective and came to the wrong conclusion.
23. It was argued by the learned counsel for the
respondent that during the pendency of the
proceeding before the Family Court, the spouses
lived together for a few months after settling the
matrimonial issues at the intervention of the Lok
Adalath and therefore in view of reunion, the
appellant was disentitled to pursue his case any
further since his conduct amounted to condoning the
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alleged cruelties. Either party does not deny that
they lived together at the matrimonial house for a
short period at the intervention of Lok Adalath. The
evidence given by the spouses shows that the spousal
relationship could not continue for long and they
again separated leaving the pending proceedings
before the Family Court, to take its logical
conclusion.
24. The reunion of spouses for a temporary
period during the pendency of the proceeding for
divorce pursuant to settlement of matrimonial
issues will not defeat the claim for dissolution
of marriage on the ground of alleged
condonation of cruelty nor will it bar
continuance of the proceeding when their
relationship is again estranged. The alleged
condonation can put an end to the proceeding
only when the complaining spouse has led a
normal and intimate life uninfluenced by the
conduct of the offending spouse, in such a manner
that the wronged spouse has pardoned and restored
the offending spouse to the original status.
Nothing of that sort happened in this case.
The reunion lasted only for a temporary period and the
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spouses failed to carry on a normal and harmonious
life. Therefore, the plea raised by the learned
counsel for the respondent for dismissal of the
original petition on the ground of alleged
condonation of cruelty is liable only to be refused.
25. Condonation of cruelty is a benevolent and
generous act of an offended spouse forgiving the
misdeeds of the offending spouse and restoring the
latter to the original company. In every condonation
there is an implied condition that the excused
spouse will not repeat or commit matrimonial wrongs
in future. No wrong is permanently wiped out by
condonation; but is only hibernated. An act of
cruelty once condoned could certainly revive and
give rise to a cause of action for dissolution of
marriage, when the offending spouse exploits and
takes unfair advantage of the generosity or the
benevolence shown by the wronged spouse and takes to
matrimonial misdeeds over again. This principle of
law could be gathered from the decision of the
Hon’ble Apex Court in Dr. N.G. Dastane v. Mrs. S.
Dasane [AIR 1975 SC 1534] wherein Their Lordships
in paragraph No.57 of the decision held that ‘but
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condonation of a matrimonial offence is not to be
likened to a full Presidential pardon under Art.72
of the Constitution which, once granted, wipes out
the guilt beyond the possibility of revival.’
26. In the light of re-appreciation of evidence
and discussion of law made by us, we are fully
satisfied that the respondent treated appellant with
such cruelty that he was disabled from leading a
normal and decent matrimonial life. There is nothing
to prove that the acts of cruelty were ever condoned
by the appellant. The court below came to a wrong
conclusion that appellant’s version of cruelty was
untrustworthy and his attempt was to take advantage
of his own wrong.
27. We are also satisfied that all efforts taken
by the Family Court to reunite the parties by
settling the issues between them have failed and
their relationship has become emotionally dead. In
fact, the evidence given by PWs 2 to 4 the
mediators, who intervened in the matter is so
convincing that the spousal relationship has been
broken down for ever. For all these matters
together, we are of the opinion that the court below
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was not justified in having refused appellant’s
demand for dissolution of marriage. Therefore, we
find him to be entitled to a decree for dissolution
of marriage on the ground of mental cruelty and the
impugned judgment is liable to be reversed.
In the result, appeal succeeds and in reversal
of the judgment and decree of the court below, we
grant the appellant a decree for dissolution of
marriage on the ground of cruelty. Parties will
suffer their respective costs.
Sd/-
A.M.SHAFFIQUE,JUDGE
Sd/-
T.V.ANILKUMAR,JUDGE
DST/ami /True copy//
P.A.To Judge