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:
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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
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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
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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
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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