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Santhosh Kumar.S vs Jayasree Damodaran on 18 February, 2020

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
-:2:-

“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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
-:13:-

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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
M.A.No.547/2013
-:16:-

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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
M.A.No.547/2013
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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
M.A.No.547/2013
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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

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