IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY ,THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941
Mat.Appeal.No. 161 of 2013
AGAINST THE ORDER/JUDGMENT IN OP 258/2010 of FAMILY COURT,
PALAKKAD DATED 31-10-2012
APPELLANT/RESPONDENT:
TANUJA
AGED 38 YEARS
W/O.SURESH, SARANGI, CHITRA NAGAR, AKATHETHARA,
PALAKKAD TALUK.
BY ADVS.
SRI.ABDUL JAWAD K.
SMT.N.M.SHEENA DAS
SRI.MATHEW A KUZHALANADAN
SRI.U.MUHAMMED MUSTHAFA
RESPONDENT/PETITIONER:
SURESH
AGED 43 YEARS
S/O.PRABAKARAN, TRIPASADAM, DURGA NAGAR, AKATHETARA,
PALAKKAD TALUK-678002.
BY ADV. SRI.U.BALAGANGADHARAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02.04.2019,
ALONG WITH Mat.Appeal.178/2013, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Mat.Appeals 161 178/2013
-2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY ,THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941
Mat.Appeal.No. 178 of 2013
AGAINST THE ORDER/JUDGMENT IN OP 625/2010 of FAMILY COURT,
PALAKKAD DATED 31-10-2012
APPELLANT/PETITIONER:
TANUJA
AGED 38 YEARS
W/O.SURESH,SARANGI, CHITRA NAGAR, AKATHETHARA,
PALAKKAD TALUK.
BY ADVS.
SRI.ABDUL JAWAD K.
SMT.N.M.SHEENA DAS
SRI.MATHEW A KUZHALANADAN
SRI.U.MUHAMMED MUSTHAFA
RESPONDENT/RESPONDENT:
SURESH
AGED 43 YEARS
S/O.PRABHAKARAN, TRIPASADAM, DURGA NAGAR,
AKATHETARA, PALAKKAD TALUK.
BY ADV. SRI.U.BALAGANGADHARAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
02.04.2019, ALONG WITH Mat.Appeal.161/2013, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeals 161 178/2013
-3-
JUDGMENT
[ Mat.Appeal Nos.161 and 178 of 2013 ]
Shaffique, J.
These Mat. Appeals arise from the matrimonial disputes arising
between the parties. Mat. Appeal No.178/2013 has been filed by the
petitioner-wife in OP No.625/2010 and Mat. Appeal No.161/2013 has
been filed by the respondent-wife in OP No.258/2010 on the file of
Family Court, Palakkad. OP No.625/2010 was filed by the wife
seeking divorce on the ground of cruelty and OP No.258/2010 was
filed by the husband seeking restitution of conjugal rights. By
common judgment dated 31.10.2012, the Family Court allowed the
petition for restitution of conjugal rights and dismissed the petition for
divorce, against which the wife has preferred these Mat. Appeals.
2. The short facts of the case are as under:-
The parties are described as shown in OP No.625/2010, unless
otherwise stated. The petitioner married the respondent on
05.09.2001 as per Hindu religious rites and ceremonies. A girl child
was born in the wedlock. The petitioner contended that the husband
Mat.Appeals 161 178/2013
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was behaving in a cruel manner against her. Ten days after the
marriage itself, he started his cruel activities. He used to consume
liquor and used to come home very late and thereafter she was
subjected to cruelty, both mentally and physically. She had narrated
several incidents of harassment, which she had to suffer on different
occasions. Initially, they were living in a rented house and thereafter
they shifted to the house of the petitioner’s sister-in-law. When the
petitioner requested the respondent to pay rent of the said premises,
on 13.01.2010 at about 10 p.m., he forcefully took the thali chain from
her and went away. Thereafter he did not come back. All along,
according to the petitioner, she was suffering only to avoid break up in
the matrimonial life to take care of the child. She also alleged that he
was not looking after the need of the petitioner and the minor child and
for the previous three years, she was depending on her family for their
livelihood. It reached a stage when the suffering the cruelty became
intolerable, and therefore she sought for divorce.
3. The respondent denied the allegation. According to him,
she has some problem and she was unable to adjust with his mother
and sister. It was the petitioner who had abandoned the thali chain
Mat.Appeals 161 178/2013
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and she was creating several problems in the matrimonial home and
on 31.01.2010 onwards, the petitioner had abandoned him, and
therefore while seeking dismissal of the divorce petition, he also filed
OP No.258/2010 for restitution of the conjugal rights.
4. Before the Family Court, evidence consisted of oral
testimony of PW1 and RW1 and documents marked as Exts.A1 and
B1 to B4. The Family Court after considering the matter found that the
wife was unable to prove cruelty and accordingly, her petition seeking
divorce was dismissed and having found that she was remaining away
from the matrimonial home without sufficient cause, the petition for
restitution of conjugal rights was allowed.
5. The learned counsel for the appellant-wife argued that the
Family Court had not considered the matter in the proper perspective,
and the evidence in the case was not properly appreciated.
6. This is a case in which the petitioner and the respondent
were living together for about nine years. The specific contention
raised by the petitioner was that all along the nine years, from the 10 th
day of the marriage itself, she was being harassed, ill-treated and she
suffered severe mental cruelty. She sustained the marital relationship
Mat.Appeals 161 178/2013
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only for the daughter. He used to consume liquor and thereafter she
was physically and mentally tortured. She also had complained that
he was not taking care of the needs of the petitioner and the minor
child and for three years prior to the filing of the divorce petition, she
had to seek the assistance of her relatives for the purpose of their
livelihood. That apart, when they were residing in her sister-in-law’s
house, he was not paying any rent and when rent was demanded, he
had forcefully taken her thali chain and left the place. Thereafter he
did not return.
7. The respondent, however, alleges that it was the wife who
was creating problems. She was extra hygienic and she was not
cordial to his mother and sister. It was the wife, who had abandoned
the husband.
8. This is a case in which the wife having a 7 year old
daughter had approached the court alleging cruelty from her husband.
In the petition, she had narrated the factual aspects involved, which
reflected mental as well as physical cruelty. However, the Family
Court did not appreciate the same, placing reliance on the testimony
of RW1. The question is whose version has to be believed. In the
Mat.Appeals 161 178/2013
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normal circumstances, in our society when a lady comes to the court
stating that she want divorce on the ground of cruelty, the Family
Court will have to consider whether there are specific pleadings of
cruelty, either physical or mental or both. The case has to be decided
on preponderance of probability. This is a case in which the couple
lived together for about nine years and when at the end of the 9 th year,
the wife comes and states that she was suffering cruelty, there is no
reason to disbelieve her version. That apart, she had clearly indicated
that he was not taking care of her needs for the previous three years
of their separation. He had even forcefully taken her thali chain and
she was abandoned with the minor child. We do not find any reason
to disbelieve her version.
9. Taking into consideration all these facts, we are of the view
that this is a case in which the petitioner was suffering mental cruelty
and the court below had committed serious error in dismissing the
petition for divorce and allowing the petition for restitution of conjugal
rights. The fact that she had to suffer cruelty at the hands of the
respondent-husband itself is a valid reason for her to remain away
from the matrimonial home.
Mat.Appeals 161 178/2013
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Under such circumstances, these Mat. Appeals are allowed as
under:
The common judgment in OP Nos.258/2010 and 625/2010 is set
aside. OP No.258/2010 stands dismissed. OP No.625/2010
stands allowed as under:
The marriage between the petitioner and the respondent
shall stand dissolved by a decree for divorce.
No costs.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
ASHOK MENON
JUDGE
jg
