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V.Girish Kumar vs N.S.Subitha on 30 January, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE A.M.BABU

WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940

Mat.Appeal.No. 716 of 2011

AGAINST THE ORDER/JUDGMENT IN OP 1045/2010 of FAMILY
COURT,KOZHIKODE DATED 14-06-2011

APPELLANT/S:

V.GIRISH KUMAR
AGED 46 YEARS
S/O.LATE RAGHAVAN, VIVYA, FLORIKKAL ROAD,,
MALAPPARAMBU P.O., KOZHIKODE.

BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRA KRISHNAN

RESPONDENT/S:
N.S.SUBITHA
D/O SREEPALAN, REP. BY GUARDIAN/FATHER SREEPALAN,,
AGED 70 YEARS, NEDUNGALIL HOUSE, MANIATHOOR LANE,,
POOVANTHOOR, KAKKODI P.O., KOZHIKODE-673 611.

BY ADVS.
SMT.A.SIMI
SMT.VIDYA V.DEVAN
SRI.A.RANJITH NARAYANAN
SRI.S.K.SAJU

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Mat.Appeal.No. 716 of 2011

JUDGMENT

A.M.SHAFFIQUE, J.

This appeal is filed by the petitioner in O.P 1045/2010 of the

Family Court, Kozhikode. The original petition has been filed for

divorce under Sec.13 (1) (ia) and (iii) of the Hindu Marriage Act.

2. The petitioner and the respondent got married on 23.4.2008

as per the Hindu religious rites and ceremonies. Contention raised by

the petitioner was that immediately after the marriage it was noticed

that the respondent was behaving in an unusual manner and she was

not interested to have any sexual contact. On the second day of the

marriage itself she was taken to a doctor as she had profuse bleeding.

It was noticed that she was having fibroid and a doubt was expressed

by the Doctor as to whether she would conceive. Later, her fibroids

were operated as advised by the Doctor. The petitioner further alleged

that after discharge she was taken to her own house. Then she told

that if she is taking to the matrimonial home, she will commit suicide

and implicate the petitioner and his family members in the case.

Thereafter also it was found that the respondent/wife was not

behaving in a proper manner. Mediators also intervened in the matter.

Later on she made it clear that she has no interest to live with the

petitioner. He also alleged that she did not take care of him as a wife.
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Mat.Appeal.No. 716 of 2011

It is also alleged that on 14.11.2009, she attempted to commit suicide

and she was taken to the Medical College Hospital, Kozhikode for

treatment. Subsequently, she suffered depression and she was taken

to consult a Psychiatrist. She was treated at Viveka Hospital, Kozhikode

on 16.11.2009 and Dr Sabu Rahman examined her and prescribed

medicines. The respondent’s mental illness and her unusual behaviour

constrained the petitioner to file the above original petition seeking

divorce.

3. The respondent denied the allegations. According to her,

she does not suffer from any mental illness and allegations of cruelty

are absolutely baseless.

4. The petitioner adduced evidence in the form of oral

testimony of PW1 to PW3 and Exts A1 to A14. The respondent was

examined as RW1. She relied upon Exts B1 to B3 documents. Ext X1

is the document summoned and produced before the court . It relates

to the treatment records of the respondent from Viveka Hospital.

5. The court below found that there is no evidence to prove

either mental illness or allegation of cruelty and accordingly the

petition was dismissed.

6. We heard the learned counsel appearing on either side.

7. PW1 is the petitioner himself. He had given evidence in the
4
Mat.Appeal.No. 716 of 2011

manner in which he had stated in the petition. PW2 is Dr Sabu

Rahman, Psychiatrist, who had treated the respondent for mental

illness. PW2 in his evidence stated that at the time when he examined

the respondent, she had suicidal mania. According to him, the illness

is known as ‘moderate depression with anxiety’. He examined her

and prescribed medicines. However, he observed that her illness

would be totally cured and only thing is that she had to complete the

course of the medicine. In the light of the evidence of PW2, the Family

Court found that her mental illness would be cured and divorce should

not be granted on the ground of mental disorder.

8. The learned counsel for the appellant submitted that, due

to her mental illness, the respondent may commit suicide at any time.

The respondent had attempted to commit suicide on 14.11.2009 by

cutting her vein which fact remains proved and the court below

committed serious error in not taking note of the said fact.

9. On the other hand, the learned counsel appearing for the

respondent submitted that the court below had correctly understood

the factual aspects in the matter. In the absence of any evidence to

prove that she attempted suicide, the court below was justified in

denying divorce on the ground of cruelty as well.

10. There cannot be any dispute about the fact that an attempt
5
Mat.Appeal.No. 716 of 2011

to commit suicide itself would amount to cruelty to the spouse. In the

case on hand, we find from the pleadings and evidence is that right

from the beginning of the matrimonial life, the parties were not on

cordial terms. It appears that it was on account of the fact that she

had fibroid in her uterus and an operation had been done immediately

after the marriage. Later on, there came an opinion that she could not

conceive a child. Apparently, this might be the reason to have the

mental problem which was termed by the Doctor as moderate

depression with anxiety. According to the petitioner, she threatened

that if she is taken to the matrimonial home, she will commit suicide.

This fact is proved by the examination of PW1 and PW3. The court

below did not believe his version on the ground that none of the other

inmates of the house were examined to prove the said fact. We do not

think that the said finding can be sustained. In a case where the

petitioner himself has given oral testimony that he has a threat by

respondent/wife who had attempted to suicide and the said fact is

proved by Ext A4 and A4 (a) which are the OP tickets from the Medical

College Hospital, Kozhikode, which proves that a wound in her hand

was sutured, that by itself would be sufficient enough to prove that she

suffered an injury on her hand at the relevant time. The OP tickets and

records of the District Co-operative Hospital, viz., Ext A5, dated
6
Mat.Appeal.No. 716 of 2011

18.11.2009 would also prove the aforesaid fact.

11. The learned counsel for the respondent submitted that this

fact has been disputed by the respondent and therefore in the absence

of any other evidence, her version has to be accepted. But it is

relevant to note that RW1 while being examined before the court has

clearly stated during cross-examination that what the Doctor has

recorded in Exts A4 and A4 (a) is a statement given by the respondent

herself. In the light of the aforesaid fact, it cannot be denied that she

attempted suicide on 14.11.2009. Hence, we are of the view that

when the respondent had attempted to commit suicide as proclaimed

by her even earlier, it amounts to cruelty. Of course, her attempt

might be on account of the depression that she had suffered after

having known that she will not be in a position to conceive a child. It is

also stated that after separation, she had filed a complaint against the

petitioner under Sec.498A of IPC. It is brought to our notice that in the

said complaint the petitioner and his family members were made

accused and had been acquitted by judgment dated 31.10.2017. In

the light of the aforesaid factual situation, we are of the view that,

there is evidence to prove cruelty as discussed above. It is also a case

that the marriage has irretrievably broken and there is no chance for

reunion. Under such circumstances, it would only be appropriate that
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Mat.Appeal.No. 716 of 2011

divorce be granted to the parties.

12. Accordingly, this appeal is allowed. We set aside the

judgment of the Family Court. The Original Petition is allowed and the

marriage between the petitioner and the respondent shall stand

dissolved by a decree for divorce. No costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU

SKS/31.1.2019 JUDGE

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