Rajesh Chandrasekhar vs Prathibha Rijesh
2021 Latest Caselaw 17103 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
                 MAT.APPEAL NO. 454 OF 2018
   AGAINST THE   JUDGMENT IN OP 484/2012 OF FAMILY COURT,
                   IRINJALAKUDA, THRISSUR
APPELLANT/PETITIONER:

         RAJESH CHANDRASEKHAR
         AGED 35 YEARS
         S/O.KOLATHEKAT CHANDRASEKHARAN,VALSALYAM, NGP
         IX/269,THRIPRAYAR,NATTIKA VILLAGE,VALAPPAD
         P.O.,THRISSUR DISTRICT,KERALA-680 567.
         BY ADVS.
         SMT.SUMATHY DANDAPANI (SR.)
         SRI.MILLU DANDAPANI


RESPONDENT/RESPONDENT:

         PRATHIBHA RIJESH
         AGED 33 YEARS,D/O.P.A.VIJAYAN,PONNETH
         HOUSE,ELINJIPRA P.O., CHALAKUDY,
         THRISSUR,KERALA-680 721.
         BY ADV SRI.K.B.GANGESH

     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
6.08.2021, THE COURT ON 13.08.2021 DELIVERED THE FOLLOWING:
 Mat.Appeal No.454/2018

                              -:2:-




                         J U D G M E N T

Dated this the 13th day of August, 2021

Kauser Edappagath, J.

The husband is the appellant. The wife is the respondent.

The original petition for dissolution of marriage on the ground of

cruelty filed by the husband as OP No.484/2012 at the Family

Court, Irinjalakuda was dismissed as per the judgment dated

24/2/2018. The said judgment is under challenge in this appeal.

2. The marriage between the appellant and the

respondent was solemnised on 19/4/2008 as per religious rites

and ceremonies. In the wedlock, a child was born on 8/5/2011. At

the time of marriage, the appellant was working as Assistant

Manger in ICICI Securities at Ahmadabad. After the marriage, the

respondent went to Ahmadabad and joined the appellant. They

were residing at an apartment at Ahmadabad. According to the

appellant, during the initial days, the respondent was exhibiting

love and affection towards him and by passage of time, she

started to argue, pick up quarrel and fight for silly incidents. It

was alleged that the respondent was bad tempered, constantly

using filthy language and arguing with him without any reason. Mat.Appeal No.454/2018

She showed complete disinterest in all household functions and

refused to attend her duties as a wife. He alleged that there were

regular instances of outrage and resentment causing serious

mental agony and pain to him. According to him, she was

dancing in tune with the directions of her mother. He added that

there were instances of inflicting assault and physical injury by

the respondent on him. He specifically alleged that on

13/4/2009, in the evening, while he and respondent were

returning in their car to the flat after shopping, she started

fighting ferociously, slapped and scribbled on his face with nails

and when he stopped the car, she opened the door and ran away.

After the said incident, on the next day, she left the flat and went

to her parents' place. She was staying with her parents till

August, 2009 and on 2/9/2009, after the intervention of the

relatives, she came back to his flat and they again started to

reside together. Thereafter, the appellant was transferred to

Bombay and the respondent accompanied him. In the month of

September 2010, the respondent became pregnant and on the

seventh month of her pregnancy she went to her parental home.

It was alleged that thereafter even though the appellant made

several attempts to call over phone to enquire about her well- Mat.Appeal No.454/2018

being and health conditions, the respondent did not positively

respond instead, again she started to pick up quarrel with him. It

was further alleged that her parents even did not allow him to

talk with her over phone. According to the appellant, the

respondent and her parents abused and humiliated him and also

threatened him by saying that he would not be allowed to see the

face of the child. Even though the baby was delivered, he was not

informed in time or he was not even informed details regarding

the delivery of the child. It was further alleged that when the

appellant went to see the newborn child, the respondent and her

family members fully disregarded him and engaged in scolding

and abusing. The appellant was not allowed to take the child

even. According to him, he was under tremendous pain and

pressure since he was unable to see the child. The child was fully

alienated from him. The appellant has also highlighted another

incident in which the police was called to the apartment at

Bombay and created a scene and he was ridiculed in front of the

police and local public who gathered there. The appellant

specifically stated that the respondent has never been a loving,

faithful and caring wife, on the contrary, she made his life

miserable. It was in these circumstances, the appellant preferred Mat.Appeal No.454/2018

the original petition for dissolution of marriage on the ground of

cruelty.

3. The respondent entered appearance before the court

below and filed detailed counter statement. She specifically

denied various instances of cruelty allegedly exercised by her on

the appellant and pleaded in the original petition. According to

her, she was very loving and cordial with the appellant and it was

the appellant who often quarreled with her and failed to

discharge the marital obligation. She sought for the dismissal of

the petition.

4. The parties went on trial. The appellant himself gave

evidence as PW1 and four witnesses were examined as PWs 2 to

5. Exts. A1 to A8 were marked on his side. The respondent

herself gave evidence as RW1. Exts. B1 to B8 were marked on her

side. After trial, the court below dismissed the petition holding

that the evidence on record is insufficient to prove the cruelty as

per the impugned judgment. Challenging the said judgment, this

appeal has been preferred.

5. Heard Smt. Sumathi Dandapani, the learned Senior

Counsel for the appellant and Sri. K.B. Gangesh, the learned

Counsel for the respondent.

Mat.Appeal No.454/2018

6. Normally, the matrimonial cruelty - be physical or

mental - takes place within the four walls of the matrimonial

home and, therefore, independent witness may not be available.

However, in this case, the appellant, apart from his own oral

testimony, has examined four witnesses, PWs 2 to 5. The definite

case of the appellant is that over the course of marriage with

him, the respondent has exercised cruelty, both physical and

mental, ranging from several mental agony by constantly using

filthy language, abdicating all shared household duties, physically

assaulting him, willfully alienating his child from him etc. making

his life miserable. The various acts of cruelty, both physical and

mental, as well as harassment, meted out by him at the hands of

the respondent at Ahmadabad, Bombay as well as at native place

have been spoken to in detail by the appellant. Even though he

has been cross-examined in length, nothing tangible has been

brought out in the cross-examination to discredit his testimony. It

has come out in his evidence that the respondent has caused

innumerable mental stress and pain by constantly showering

abusive words and filthy language towards him while they were

living at Ahmadabad, Mumbai and during their short stays at the

native place. Regular instances of outrage and resentment on Mat.Appeal No.454/2018

the part of the respondent has been spoken to in detail by the

appellant. It has come out in evidence that the mother of the

respondent also used to pick up quarrel with him and abuse him.

The evidence would further show that after the delivery of the

child, the appellant was denied even access to the child by the

respondent and her mother. The appellant has even spoken few

instances where he was physically assaulted by the respondent.

There is nothing to disbelieve the said version. It has further

come out in evidence that several mediation were taken place

and they were reunited several times. Still, the respondent

continued to exercise cruelty on the appellant. There was also an

instance where on the basis of a complaint filed by the

respondent, the police came to the apartment, local people also

gathered there and the appellant was ridiculed and humiliated in

front of them. The said complaint was not pursued further. The

appellant specifically deposed that after short while of the

marriage, there has been a sustained cause of abusive and

humiliating treatment and reprehensible conduct on the part of

the respondent.

7. The evidence given by PW1 gets corroboration from

the oral testimony of PWs2 to 5 and Exts. A2, A4 and A7. PW2 is Mat.Appeal No.454/2018

the uncle of the appellant. He has been examined to prove

Ext.A2. Ext.A2 is a statement signed and given by the father of

the respondent. PW2 is a witness to Ext.A2. It is dated 2/9/2009.

A reading of Ext.A2 would show that there was some serious

issue between the appellant and the respondent at the instance

of the respondent and the respondent has assured that she would

not repeat the same. PW3 is the mother of the appellant. She

gave evidence in tune with the evidence given by the appellant.

She has also reiterated various acts of cruelty, both physical and

mental, exercised by the respondent on the appellant. PW4 and

PW5 are independent witnesses. They knew the appellant and the

respondent. PW4 deposed that on so many occasions, the

appellant had told him about the cruelty exercised by the

respondent. True, mostly his evidence is in the form of hearsay.

But, his evidence would show that on one occasion when he

asked the respondent about the issues between her and the

appellant, she responded in a rude manner. PW5 deposed that

while the appellant and the respondent were residing at Mumbai,

he had gone to their flat in 2009 December and he had witnessed

the respondent behaving with the appellant in a rude and

indifferent manner in front of him. He further deposed that he Mat.Appeal No.454/2018

had also witnessed an occasion where a police reached their flat

at Mumbai on the basis of a false complaint made by the

respondent. There is nothing to disbelieve the evidence of PWs 2

to 4 as well. Ext. A4 is an undertaking given by the respondent

dated 16/4/2009. In the said document the respondent has stated

that if her parents misbehave with the appellant, she is agreeable

for divorce. Ext. A7 is a copy of the complaint dated 1/8/2011

given by the appellant to the Inspector in Charge, Kharghar Police

Station, Mumbai alleging harassment on the part of the

respondent.

8. It is settled that to constitute cruelty, the conduct

complained of need not necessarily be so grave and severe so as

to make cohabitation virtually unendurable or of such character

so as to cause danger to life, limb or health. It is sufficient if the

conduct and behaviour of one spouse towards the other is of such

a nature that it causes reasonable apprehension in the mind of

the latter that it is not safe for him or her to continue the marital

tie. Mental cruelty may also consist of verbal abuses and insults

by using filthy and abusive language leading to constant

disturbance of mental peace of the other party. The intentional

alienation of the child by one parent from the other parent also Mat.Appeal No.454/2018

amount to mental cruelty. From the kind of attitude, conduct and

treatment discussed in the preceding paragraphs, it can readily

be inferred that the appellant has every reason to apprehend that

it is not safe for him to continue the matrimonial relationship with

the respondent.

9. On an over all appreciation of the pleadings and

evidence, we find that the appellant and the respondent were at

loggerheads soon after their marriage. The marriage is virtually

shattered. The couple has been unable to patch up their

differences so far. The allegations and counter allegations

levelled against each other establish that there is no further

chance of rapprochement. The appellant has pleaded and proved

specific instances of cruelty meted out by him at the hands of the

respondent which have been discussed in the preceding

paragraphs. Admittedly, they are residing separately since

30/7/2011. The Supreme Court of India in Samar Ghosh v. Jaya

Ghosh [(2007) 4 SCC 511] has held that insistence by one

spouse to preserve the dead marriage could be treated as an act

of cruelty. For all these reasons, we hold that the appellant has

made out a case for granting a dissolution of marriage on the

ground of cruelly u/s 13(1)(ia) of the Act. The court below went Mat.Appeal No.454/2018

wrong in dismissing the original petition for dissolution of

marriage.

Accordingly, we allow the appeal, set aside the impugned

judgment and allow OP No.484/2012 of the Family Court,

Irinjalakuda. The marriage between the appellant and the

respondent solemnized on 19/4/2008 stands dissolved. No order

as to costs.

Sd/-

A.MUHAMED MUSTAQUE JUDGE Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp Mat.Appeal No.454/2018

APPENDIX OF Mat.Appeal No.454/2018

APPELLANT'S EXHIBITS

ANNEXURE A1 TRUE COPY OF THE LIST PUBLISHED IN THE WEBSITE OF ST.THOMAS PUBLIC SCHOOL, DIPKA, KORBA OF THE YEAR 2013.

ANNEXURE A2 TRUE COPY OF THE LIST OF THE TEACHING STAFF PUBLISHED IN THE WEBSITE OF DELHI PUBLIC SCHOOL DATED 27/10/2018.