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Tanuja vs Tanuja on 2 April, 2019

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

-4-

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

-5-

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

-8-

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

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