Dr. B. Radhakrishnan Nair vs M. Lakshmi

Pius C. Kuriakose, J.—The appeals are filed by the husband and the respondent is the wife. Mat. Appeal No. 155/2010 is directed against the judgment in O.P. No. 574/2007 of the Family Court Palakkad and Mat. Appeal No. 556/2010 is directed against the judgment and decree in O.P. No. 404/2008. Memorandum of Cross Objection is filed by the wife in respect of Mat. Appeal No. 556/2010. O.P. No. 574/2007 is filed before the Family Court by the appellant/husband seeking dissolution of his marriage with the respondent on the ground of cruelty (the ground u/s 13(1)(ia)) of the Hindu Marriage Act.

O.P. No. 404/2008 is filed by the wife seeking a decree for recovery of a sum of Rs. 15,12,000/-. She also claims return of 30 sovereigns of gold ornaments furnitures, household articles and a motor bike, alternatively, the values of these articles.

Substance of the pleadings of the husband in O.P. No. 574/07 was that the husband is a medical graduate specialized in Anesthesia and in the wed lock the parties have two children, a girl and boy. The wife made life miserable for him at Mysore where the couple resided after the marriage as the husband was doing diploma in Anesthesia at that time. After completion of the course at Mysore and a training programme in Bangalore, the husband joined a hospital at Ottappalam and the wife joined him in a rented house at Ottappalam after the delivery of the first child. The wife made life miserable for the husband at Ottappalam too. Hence, the husband shifted his practice to Ernakulam. The wife joined him after some time but she continued to be cruel towards him. The second child was born during such stay. Left with no other option, the husband filed original petition 159/97 for divorce in the Sub Court, Palakkad. The issue was mediated and a settlement arrived and hence the husband withdrew O.P. No. 159/97. After re-union the parties with their children resided at Ernakulam. The husband constructed a house and the family shifted to that house. The respondent/wife continued to be, as before, creating problems. The wife broke the husband''s mental peace. She did not care to cook food. She did not attend on the children. Petitioner had to bring his mother for house management. The couple now stay in one house but separately. The husband and the children and his mother occupy the upstairs. The wife stays in the ground floor. She prepared food for herself in a separate kitchen since 2004. She has no love and affection towards the children. She is not interested in the upbringing of the children. She even instigated the children to commit suicide. She did so to have her sadistic desire to defeat her husband. The daughter wrote a suicide note as forced by her mother. The boy attempted to commit suicide by hanging as inspired by the words of his mother. Though residing under the same roof, the wife occupies a separate room and never talks to the husband. She filed a false complaint against the husband before the Women''s Cell, Ernakulam alleging harassment. Another complaint of similar nature was submitted by her to the Sub-Inspector of Ernakulam.

The wife resisted the original petition by filing a counter. Inter alia it was contended that she was always a loyal wife. The husband never liked her mother''s presence in his house. Therefore, her mother who was suffering from cancer, had to be taken to Coimbatore for treatment. The wife''s life thereafter was miserable. Under the same roof, the petitioner and his mother occupy upstairs and the respondent and children the downstairs with separate mess. The wife was looking after her children till the first week of February 2007, i.e. till the children were compelled by the husband to leave the company of their mother. Thereafter, the wife was living in the ground floor all alone. She had to have her own mess. She was not cared by the husband who used to take his mother and children for outing. The husband and his mother harassed the wife to compel her to agree for divorce by mutual consent. Therefore, she was compelled to complain to the Women Cell. The marital life was not happy as the husband had no love and affection towards the respondent. The wife is even now ready and willing to live with him.

Substance of the wife''s pleadings in O.P. No. 404/2008 is that the wife was given 100 sovereigns of gold ornaments and Rs. 3 Lakhs at the time of marriage. Her 30 sovereigns of gold ornaments were appropriated by the husband for his needs. In July 1992, Rs. 1 Lakh was given for purchase of car. The wife''s brother entrusted Rs. 1,20,000/- with the husband for purchase of household articles, furniture and a motorbike. Rs. 2 Lakhs was entrusted with the husband by the wife''s mother in 2000 for purchase of the property at Kadavanthra., Ernakulam. Around Rs. 3 Lakhs was given by the wife''s brother on various occasions to respondent for his studies and to setup practice, etc. The husband shall refund the entire money with 12 % interest. He shall return the gold ornaments and other movable shown in the A and B schedules to the petition.

The husband would deny the allegations. He would contend that the allegation that he was given 100 sovereigns of gold ornaments and Rs. 3 Lakhs at the time of marriage is false. All the ornaments of the wife were always with her. She had taken all her ornaments when she left his house on 5/9/2007. At that time she signed a receipt prepared by the police. He never had taken or appropriated the wife''s ornaments. He was not given Rs. 1 Lakh to purchase a car. He has not received Rs. 1,20,000/- from any of the wife''s brother. The property at Kadavanthra was purchased by him with his own funds. He never misappropriated any money of his wife. The household articles and motor bike were used by the wife and she kept the same separately in the husband''s house. The Family Court ordered joint trial and the evidence was recorded in O.P. No. 574/2007. The evidence consisted or oral evidence of PWs 1 and 2 and Exts. A1 to A9 on the side of the husband. On the side of the wife, the same consisted of RWs 1 and 2 and Exts. B1 to B4. The points considered by the Family Court in O.P. No. 574/1997 were the following;

i). Did wife treat the husband with cruelty?

ii). Did husband take and appropriate the money, gold ornaments and other properties of the wife?

iii). To what reliefs, if any, the parties are entitled?

On evaluating the evidence, the Family Court would answer all the above points in favour of the respondent/wife.. Accordingly, it was held that the husband failed to prove that the wife treated him with cruelty and the above original petition was dismissed.

Coming to O.P. No. 404/2008 the Family Court would allow that Original Petition in part. The husband was directed to return to the movable shown in B schedule to the wife, failing which to pay the value as shown in the B schedule. The husband was also ordered to refund Rs. 1 Lakh to the wife with interest at the rate of 6 % p.a. from 1/8/1992 till the date of realisation.

In Mat Appeal No. 155/2010, the husband assails the decision in O.P. No. 574/2007 on various grounds and in Mat. Appeal No. 556/2010 the decision in the O.P. No. 404/2008 is assailed on various grounds.

Smt. Sumathi Dandapani learned senior counsel for the appellant would address extensive submissions before us based on the grounds in the respective appeal memoranda. Smt. Dandapani''s submissions were resisted by Sri. Rajesh Sivaramnkutty learned counsel for the respondent/wife.

Inviting our attention to the factual matrix of the case as unfolded in the pleadings and the evidence that came on record, Smt. Dandapani learned senior counsel narrated the circumstances under which O.P. No. 159/1997 filed by the appellant earlier for dissolution of the marriage u/s 13(1)(1-a) of the Hindu Marriage Act was withdrawn. According to Smt. Sumathi, on getting notice from the court, the respondent came to the appellant along with her uncle one Chandrasekharan Nair and agreed for settlement of all the issues between the parties undertaking that in future there will not be any problem and that the welfare of the children and husband will be looked after properly. According to Smt. Sumathi, believing this assurance the appellant withdrew O.P. No. 159/1997. Smt. Dandapani submitted that the appellant purchased the property in Kadavanthra and put up a double storied building and shifted his residence to that building in the year 2000 along with the respondent and the children. The respondent once again started creating problems. without taking care of the children and leaving them as destitute, without preparing food for the children as well as the appellant. The appellant became compelled to bring his 79 year old mother for looking after the children and for providing food for them. According to Smt. Dandapani, from 2002 onwards the relationship between the husband and the wife became more strained. It was only in 2004, when the mother of the respondent died and the appellant extended financial assistance for settling certain problems at Palaghat at her residence, the problems were sorted out for the time being. From March 2004 for a period of four months, the husband and the wife lived together peacefully. Again the respondent raised a demand for buying another item of property and the husband gave Rs. 3 Lakhs with which the respondent purchased the property. As and when the respondent went to Palakkad, she used to take the children disregarding the fact that they were to attend the school. After getting the property in Palakkad, she became unwilling to come over and reside with the appellant on the ground that she has her own residence at Palakkad. Towards the end of 2004, the respondent started living exclusively in the ground floor of the house while the appellant, children and his mother were occupying the upstairs portion. The respondent used to prepare food for her and she never bothered to bring up the children also. She never cared to speak to the children or her husband and the communications were through the letter only. Referring to Ext. B11 suicide note, Smt. Dandapani submitted that the daughter was instigated by her to commit suicide. She persuaded the son also to commit suicide. An attempt by the son to commit suicide by hanging could be prevented only due to the timely intervention by the appellant. Smt. Dandapani submitted that on coming to that the appellant was about to file divorce petition, she filed complaint before the Vanitha Cell, Ernakulam which later culminated in the registration of crime u/s 493 of IPC and the same is now pending before the Additional CJM Court, Ernakulam as C.C. No. 60/2008. On entering appearance in the present divorce petition, the respondent filed two petitions for custody of children and for return of gold ornaments and money before the Family Court, Ernakulam. Those cases were got transferred to the Family Court, Palakkad by the appellant as the divorce petition originally filed before the Ernakulam Family Court was got transferred to Palakkad Family Court by the respondent. The respondent filed a petition under the Divorce Act before the Additional CJM, Ernakulam for permission to reside in the appellant''s house and for getting custody of the children. The learned Magistrate as per Ext. A2 declined to grant custody of the children to the respondent. Thereafter, the respondent sought transferring all the criminal cases over to the CJM Court, Palakkad. This court did not grant the relief. Later Criminal M.P. No. 261/2008 filed under the provisions of the Divorce Act was dismissed by the CJM for default. Smt. Dandapani submitted that recently the respondent has filed M.C. No. 173/2010 before the Family Court Palakkad claiming maintenance at the rate of Rs. 50,000/- per month. The learned counsel submitted that the respondent is in the habit of filing cases against the appellant just for the sake of harassing the appellant. It was submitted that during the pendency of the present appeal, the respondent approached Vanitha Cell, Ernakulam for getting back her household articles and certificate which she herself kept closed in her almarah in the house of the appellant. Though the appellant agreed to return the entire articles to the respondent, she was not prepared to take back the articles. Despite the same, she filed O.P. No. 1109/2011 before the Family Court, Palakkad against the appellant for the same relief. The learned counsel submitted that even though the respondent has filed so many cases against the appellant till this moment, she did file any petition for restitution of conjugal rights. According to Smt. Dandapani, when the evidence of the respondent before the Family Court is read carefully, it will be seen that the respondent was not at all enthusiastic in continuing the martial bond with the appellant. The Family Court, under the impugned judgment declined relief to the appellant.

Smt. Dandapani relied on a catena of decisions in support of her arguments. The judgment of the Supreme Court in Naveen Kohli Vs. Neelu Kohli, was cited to argue that " it is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate. It has to be considered whether the complainant should be called upon to endure as a part of normal human life". It was submitted that the dictum in Naveen Kohil''s case (cited supra) is followed by this court in the decision in Manoj Vs. Vidhya, . Irretrievable break down of the relationship between the parties and parties living separately for a long period on account of such break down, will amount to matrimonial cruelty, according to Smt. Dandapani. Highlighting Ext. A2 order in criminal MP No. 261/2008, the learned senior counsel Smt. Sumathi argued that the respondent is not all inclined to bring up the children. It was pointed out that the court interacted with the children and likes and dislikes of the children were brought out. It was revealed that the children would like the relief to be given to their father in the form of divorce decree so that their father can have peace of mind. Referring to the complaint submitted before the Women Cell by the respondent, Smt. Dandapani argued that filing of false complaint amounts to harassment and cruelty. In this context, Smt. Sumathi referred to C.C. No. 60/2008. The learned senior counsel relied on the judgment of this court in P.K. Vijayappan Nair Vs. J. Ammini Amma, and argued that the appellant petitioner need only to establish that the respondent had treated him cruelly. Cruelty on the part of the respondent was such as to cause reasonable apprehension in the mind of the appellant that it will be harmful and injurious to the appellant. Referring to the Judgment of the Supreme Court in Suman Kapur Vs. Sudhir Kapur, , Smt. Dandapani submitted that continuous cessation of martial intercourse or total indifference on the part of the wife towards M.A. Nos. 155 & 556/2010 & C11/12 14 martial obligation would lead to legal cruelty. Mensrea is not essential. Relief could not be denied on the ground that there has been no deliberate or willful ill treatment. The learned counsel relying on the decision of this court in Megha v. Siddharth Suryanarayan (2007 (1) KLT SN 17) submitted that if parties living together under the same roof are not cohabiting or not living as husband and wife, they can be said to be living separately. The insistence of the court below, that the husband should prove that the wife treated him with cruelty after 2000 and that the evidence pertaining to the wife''s cruelty prior to the filing and withdrawal of O.P. No. 159/1997 will not be considered at all is not justified, according to Smt. Dandapani. The learned counsel referred to the judgment of the Rajasthan High Court in Smt. Leela Devi Vs. Suresh Kumar, and submitted that withdrawal of previous petition moved u/s 13 does not bar moving a fresh petition with additional grounds. It was submitted that in this case after 2004 the spouses were not living together and no co-habitation has taken place between them. The evidence of PW2, the attender of the Cochin Hospital will prove the indifference of wife in treating the appellant even while he was not keeping fit and was brought down from the hospital on couple of occasions.

Sri. Rajesh Sivaramankutty learned counsel for the respondent per contra would support the impugned judgment. According to him, it is a very sound and reasoned judgment which is written by the court below. Evidence has been appreciated correctly and findings are perfectly correct. Matrimonial cruelty has not been established by the evidence adduced by the appellant. The daughter is fast coming of age and allowing divorce at this stage will be detrimental to the matrimonial prospects of the daughter, so submitted Mr. Sivaramankutty.

We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully gone through the impugned order. We have made reappraisal of the evidence on record. We have considered the ratio emerging from the various decisions cited at the Bar by Smt. Dandapani. It is true that if the ratio of some of the decisions cited at the Bar by Smt. Dandapani are applied to the facts which obtained in this case, we may become impelled to interfere with the impugned judgment. On our reappraisal of the evidence, we find that in order that the decision cited by Smt. Dandapani are applied to this case, it may be necessary to permit adduction of some more evidence. The impression that we gathered from the interaction which we had with the parties is that the relationship between them has become strained to a point of no return. It is true that the respondent did not become willing for divorce by mutual consent. When a divorce was suggested to her as one of the several options for settlement of the issues between her and her husband, she sought time to consult her brother and her close relatives and finally informed us that she does not agree for divorce. We are sure that the relationship between the parties has turned from bad to worse after the court below passed the impugned judgment. Not that we are unmindful of the sentiments of the traditional Indian wife who would like to die rather than live separated from her husband we cannot shut our eyes to the grim reality that the present situation of the appellant and the respondent who still have years to go in their lives remaining single practically. One of the submissions of Smt. Dandapani was that the children of the appellant and the respondent, who are equal stake holders in the martial life of their parents, want matrimonial bond to be dissolved and that they have found out another life partner for their father. We feel that the evidence presently on record will not be sufficient for granting decree of divorce straight away. More evidence will have to be adduced so that the facts situation emerging from the evidence becomes homologous to those in some of the decisions cited by Smt. Dandapani. We are inclined to afford opportunity for adduction of more evidence. The result is therefore as follows;

1). We allow Mat. Appeal No. 155/2010 setting aside the impugned judgment. O.P. No. 574/2007 is remitted back to the Family Court, Palakkad. The Family Court is directed to permit both sides to adduce evidence. If the appellant is desirous he can examine his children or one of them as an additional witness. The court below will re-appreciate the evidence already on record and the evidence which comes to be adduced pursuant to this judgment and take a decision in accordance with law without undue delay.

2). The wife has filed the memorandum of Cross Objection (C.O. No. 11/2011) in Mat. Appeal No. 556/2010 requesting that the original petition be allowed in full. In fact, in the two appeals and the memorandum of Cross Objection, it was common submissions which were addressed by the learned counsel. As we have already interfered with the judgment in Original Petition filed by the husband for divorce and passed an order of remit and as the matter is going back to the Family Court, Palakkad, we set aside the judgment and decree in O.P. No. 404/2008 and remit that original petition also. The parties should be permitted by the Family Court to adduce further evidence in O.P. No. 404/2008 also. The revised judgment will be passed in that Original Petition also. Mat. Appeal No. 556/2010 and the Memorandum of Cross Objection (C.O. No. 11/2012) is allowed by way of remand. The Cross Objection is disposed of in view of the remit order passed in the appeal.

3). The parties will appear before the Court below on 22/3/2013. The court below will make one last attempt for a rapprochement of the issues between the parties by summoning them to the court hall or chambers and enquiry pursuant to this judgment need be started only when it is seen that rapprochement is impossible. Whole exercise will be completed by the learned Judge early and at any rate within three months of the parties entering appearance.