Aneece vs Kuriakose
2021 Latest Caselaw 5014 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                              &

              THE HONOURABLE MR.JUSTICE C.S.DIAS

THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

                  Mat.Appeal.No.418 OF 2014

 AGAINST THE ORDER/JUDGMENT IN OP 301/2012 DATED 12-11-
           2013 OF FAMILY COURT, MUVATTUPUZHA


APPELLANT:

              ANEECE, AGED 45 YEARS, D/O CHACKO, KONNANAL
              HOUSE, NELLIMATTOM KARA, KUTTAMANGALAM
              VILLAGE, KOTHAMANGALAM TALUK, NOW RESIDING AT
              PANACHIKUDY HOUSE, KUTHUKUZHY KARA,
              KUTHUKUZHI.P.O, KOTHAMANGALAM VILLAGE,
              KOTHAMANGALAM TALUK.

              BY ADV. SRI. M. CHANDRALEKHA

RESPONDENT:

              KURIAKOSE, AGED 52 YEARS, S/O.LATE
              PAULOSE,DRIVER, KSRTC, PANACHIKUDY HOUSE,
              KUTHUKUZHI KARA, KUTHUKUZHI.P.O, KOTHAMANGALAM
              VILLAGE, KOTHAMANGALAM TALUK.


     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal.No.418 OF 2014

                             ..2..




                          JUDGMENT

Dated this the 11th day of February 2021

A.Muhamed Mustaque, J

This Mat. Appeal was filed by the wife of the

respondent challenging the dismissal of the divorce

petition filed by her.

2. The appellant and the respondent have

married in accordance with the religious rites and

ceremonies applicable to Christian Community on

11.09.1997. Two children were born in the wedlock.

3. The appellant filed the petition for

divorce on the ground of cruelty and desertion.

4. Though notice was issued to the respondent,

he has not chosen to appear in this matter.

5. Heard the learned counsel for the

appellant.

Mat.Appeal.No.418 OF 2014

..3..

6. The precise case of the appellant is that

she was subjected to cruel mental and physical

torture by the respondent. It is her case that when

she became pregnant, the respondent wanted to abort

the pregnancy. It is further alleged that she was

driven out from the matrimonial home by the

respondent's father. It is specifically pleaded

that in June, 2001 at 10 pm she was driven out from

the house by the respondent and she had to remain

outside during the heavy rain for the entire night.

She also stated that she had lodged a complaint

before the police. It is also pleaded by the

appellant that the respondent, without any

reasonable cause, had deserted her. The appellant

also stated that she was taken to Medical Mission

Hospital, allegedly for treating mental illness at

the instance of the respondent.

7. The respondent entered appearance before

the Family Court and denied the allegations in the

petition for divorce. The respondent's case is that

the appellant had deserted him. According to the Mat.Appeal.No.418 OF 2014

..4..

respondent, the appellant left the matrimonial home

without any valid reason and he was taking care of

the appellant and the children.

8. The Family Court tried the matter along

with connected matter filed by the appellant for

recovery of the value of gold ornaments. Both

petitions were dismissed.

9. On the side of the appellant, the appellant

was examined as PW1. She narrated the alleged act

of cruelty in tune with what is stated in the

petition. The point that is to be considered is as

to whether that would be sufficient to prove the

ground for divorce. The case of the appellant that

she was forced to abort the pregnancy was not

believed by the Family Court stating that there was

no documentary evidence. The Family Court also

found that no copy of the police complaint has been

placed before the Court.

10. The incidents referred to in the pleadings Mat.Appeal.No.418 OF 2014

..5..

and evidence would clearly establish that the

marriage reached at a level where the parties could

not reconcile. The respondent's case is that the

appellant is leading an irresponsible life and she

left the matrimonial home to Bombay without stating

any reasons. It is on this background, the Court

has to analyse the ground for divorce. The Court

need not disbelieve the assertion of the appellant

that she was forced to abort pregnancy. She stated

that the respondent kicked on her abdomen and as a

result of which she had to abort the pregnancy.

Merely for the reason that the appellant had not

produced any documentary evidence to prove abortion,

that does not lead to disbelieve her claim that she

was forced to abort her pregnancy. She is the

mother of two children. No mother could have

aborted pregnancy without any valid reason. In the

petition as well as in the testimony, she has stated

that the respondent had kicked her on the abdomen

and that resulted in bleeding. This Court also need

not disbelieve her statement that she was driven out

from the house during night and she had to remain Mat.Appeal.No.418 OF 2014

..6..

outside for the entire night. The Family Court

found that these are all narration of the incidents

which have been put up to make a ground for divorce.

The want of proof and the credence of testimony are

two distinct aspects of evidence. If there is no

proof other than the testimony, the Court has to

consider the nature of testimony of such witnesses.

In the cross-examination, if nothing is brought out

to discredit such testimony, the Court has to weigh

such testimony of witnesses. Considering the

evidence, we are of the view that the appellant has

made out a case for divorce on the ground of

cruelty.

11. The Family Court found that the appellant

left the matrimonial home without any valid reason.

In fact, the Court found that no one would leave the

matrimonial home without any valid reason. In that

background, the allegation of cruelty could very

well be concluded that the appellant was forced to

leave the matrimonial home on account of the cruelty

meted out on her. In regard to desertion, the Mat.Appeal.No.418 OF 2014

..7..

Family Court was justified in declaring the divorce

on that ground. In such circumstances, we find no

reason to interfere with the dismissal of the

divorce petition on the ground of desertion.

However, in the light of the finding in

regard to cruelty, the impugned judgment has to be

set aside. Accordingly, the appeal is allowed and

the impugned judgment is set aside. The marriage

between the appellant and respondent is dissolved by

a decree of divorce.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

PR