B.A. Benny vs Smt. Raichal Bindu

D. Sreedevi, J.—Petition under Sections 18 and 19 of the Indian Divorce Act. Petitioner is the husband and the respondent is the wife. Petitioner is a Latin Catholic by birth and faith, while the respondent is Syrian Jacobite faith.

The marriage between the petitioner and the respondent was solemnised on 1.3.1992 as per the Latin Catholic rites at Pius X Church, Kalamassery. They lived together at the respondent''s house and a female child was born to them on 23.12.1992. While so, it is alleged for the petitioner that the respondent left the house of the petitioner on 26.8.1993. Petitioner has filed this O.P. for a declaration that the marriage between the petitioner and the respondent is null and void.

In the year 1992, it is alleged by the petitioner that the parents of the respondent approached the petitioner through a friend with the marriage proposal for the petitioner. According to the petitioner, the respondent''s parents made him believe that the respondent is a post-graduate, cultured, hailing from an aristocratic influential family in Central Travancore and is awaiting a job as Lecturer in an educational institution and that she will switch on to his faith and follow the religious rites and rituals of Latin Catholic community. Petitioner would allege that his consent was obtained by the respondent and her parents by exercising fraud by suppressing that the respondent promised to follow the petitioner''s religious rites, but she never did so and even refused to go to the Church and attend the Mass given in Latin Catholic Church and when he saw the respondent''s refusal to keep up the promise, his religious sentiments were wounded. Petitioner has also a case that the respondent''s behaviour was abnormal and she started misbehaving in a cruel manner and even assaulted the petitioner. She even attempted to commit suicide. Petitioner later came to know that the respondent is not a graduate and that she is not physically fit and financially sound. According to him, she has left the house without his knowledge on 30.3.1994. Therefore, he filed a complaint to the police and when he went to the police station he came to know that she filed a complaint against him u/s 125, Cr.P.C. for her maintenance and also for the maintenance of the child.

The respondent filed a counter denying the allegation that fraud was practised upon him in getting his consent for the marriage. She would contend that before marriage she became a member of the Latin Catholic Church and had followed the custom and practice prevailing among the members of the Latin Catholic Church. She also denied the allegation that she had treated him with cruelty and had behaved in an abnormal manner. She denied the allegation that she had attempted to commit suicide. According to her, it was the petitioner''s parents who approached the respondent with the marriage proposal. She has stated that the petitioner and his parents misbehaved towards her and his parents manhandled her and her right hand was burned by the mother-in-law. She was not treated as a member of the family and hence her life was made miserable.

Admittedly, the respondent, who was following the Jacobite Christian faith, has agreed to follow the practice and faith followed in the petitioner''s church. The petitioner would allege that she did not follow the custom and rituals of his church and this caused mental agony to him. The petitioner as P.W. 1 has deposed that at the time of marriage, he was made to believe that she is a post-graduate. At the time of marriage, the petitioner was only 18 years of age. So the statement that the petitioner was made to believe that she was a post-graduate cannot be accepted as true and correct as an 18 years old girl cannot secure a post-graduate degree. He wanted his wife following the rules of his church. He states that he has agreed to marry the respondent as she had agreed to abide by the rules of his church. The respondent has deposed that even before the marriage she became a member of Latin Catholic Church. This is not challenged by the petitioner. Therefore, the allegation that she failed to follow the practice in the Catholic Church cannot be accepted as true and correct. The respondent''s parents agreed to pay one lakh rupees towards the value of share of the respondent. This is admitted by the petitioner. Out of this, Rs. 60,000/- was paid to him in cash. With this amount, he had purchased clothes and ornaments for the wife. For the balance amount a post-dated cheque was issued, which was not encashed by the petitioner. So the allegation that the respondent and her people made him to believe that she belongs to a financially sound family cannot be said to be a misrepresentation as what is agreed to towards the value of respondent''s share has been paid. As P.W. 1 the petitioner has deposed that the respondent was taken away by her parents on 26.8.1993. Thus, regarding the date of separation, there is dispute. But it is admitted that when he filed a complaint to the police station, he came to know that his wife has filed complaint u/s 125, Cr.P.C. That shows that on the date of complaint the respondent was not living with him. He has a case that the wife has taken away Rs. 50,000/- kept by him in his almirah, after selling away his property. This is also denied by the respondent as R.W. 1.

No independent evidence has been let in to prove fraud. There is only the interested testimony of the petitioner. Therefore, he is not entitled to get a decree as prayed for. Petitioner failed to establish the fraud alleged in the petition.

The respondent prays for a decree of divorce on the ground that her husband treated her with cruelty. The respondent as R.W. 1 has deposed that her husband has treated her with cruelty and the mother-in-law has burned her hand. She states that after delivery of the child, the petitioner visited her only once and she was not paid any maintenance. The petitioner has no case that he had paid maintenance to her. So she filed a petition for maintenance and got an order for maintenance. Against this he filed appeal but the same was dismissed. This itself goes to show that the petitioner has treated the respondent with cruelty. The fact that she was granted maintenance goes to show that there were sufficient grounds for her to live separately and to claim maintenance. The child is now 7 years of age. Thus, it is evident that the petitioner and the respondent are living separately for more than a period of 7 years. To prove that the petitioner has not shown any cruelty, petitioner relies on Ext. P3 letter dated 23.8.1993. This letter is admittedly written by the respondent. Relying on this it is submitted that the petitioner has never treated her with cruelty. This is not a letter despatched by her. It was a letter written to the parents of the respondent. This does not mention any cruelty alleged by her. Ext. R5, copy of the plaint in O.S. No. 1087 of 1993 goes to show that her mother-in-law and father-in-law together filed a suit against the petitioner and the respondent for a decree of permanent injunction restraining the petitioner and the respondent from entering into the house of the petitioner. That goes to show that the relationship between the in-laws and the respondent is not cordial. Ext. R6 is an affidavit and petition filed by the mother-in-law of the respondent in O.S. No. 1037 of 1993, for an order of injunction restraining the respondent from entering the house. Ext. R7 is the counter filed by the respondent, wherein she has admitted that she was living with her husband till Onam Holidays, 1993 and as directed by him, her parents took her and the child to her house. Ext. R8 is the written statement filed by her in the suit. Ext. R9 is the copy of the petition filed by the respondent and her daughter for realising maintenance from the petitioner oh 19.10.1994 wherein it is alleged that she has been living separately from August, 1993. That petition was allowed granting maintenance, against which the petitioner filed Crl.R.P. 1160 of 1996. This Court by Ext. RIO dismissed the said revision petition. Ext: R11 is the order in the M.C. Case. From Ext. R11 it is seen that the petitioner had even denied, the validity of the marriage. Maintenance will be granted to the wife only if there is justifiable reason to live separately from the husband. Therefore, it has to be found that at the time when Ext. R11 order for maintenance was passed, there was justifiable reason for the respondent to live separately from her husband. All these go to show that the respondent and her child were not maintained by the petitioner for about 7 years. That itself amounts to cruelty. In Ext. R11 the petitioner even denied the factum of a valid marriage. According to him, the marriage is a nullity. That itself amounts to cruelty to the wife. Therefore, on the ground that the husband has treated the respondent with cruelty, the wife is entitled to a decree of divorce. There is nothing to show that there is collusion between the petitioner and the respondent in filing this O.P.

In the result, this O.P. is disposed of dissolving the marriage between the petitioner and the respondent solemnised at the Pius X Church, Kalamassery on 1.3.1992 by a decree nisi. The prayer of the petitioner to declare that the marriage between him and the respondent is null and void is disallowed.