Xxxxxx vs Xxxxxx
2021 Latest Caselaw 20652 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                 MAT.APPEAL NO. 722 OF 2015
    AGAINST THE JUDGMENT IN OP 846/2012 OF FAMILY COURT,
                          ALAPPUZHA
APPELLANT/PETITIONER:

          XXXXXXXXXX
          XXXXXXXXXX XXXXXXXXXX

          BY ADVS.SRI.S.SANAL KUMAR
          SMT.BHAVANA VELAYUDHAN
          SRI.M.T.SURESHKUMAR
          SMT.T.J.SEEMA
          SMT.SMITHA PHILIPOSE


RESPONDENTS/RESPONDENT & ADDL.CP2:

    1     XXXXXXXXXX
          XXXXXXXXXX XXXXXXXXXX

    2     XXXXXXXXXX
          XXXXXXXXXX XXXXXXXXXX

          BY ADVS.K.S.MADHUSOODANAN
          M.M.VINOD KUMAR
          P.K.RAKESH KUMAR
          K.S.MIZVER
          S.JESSIN
          C.C.BINDHYA

     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
28.9.2021, THE COURT ON 5.10.2021 DELIVERED THE FOLLOWING:
 Mat.Appeal No.722/2015

                               -:2:-




                         J U D G M E N T

Dated this the 5th day of October, 2021

Kauser Edappagath, J.

This is an appeal filed u/s 19 of the Family Courts Act, 1984

against the judgment and decree in OP No. 846/2012 dated

26/5/2015 on the file of the Family Court, Alappuzha (for short,

'the court below').

2. The original petition has been filed by the husband,

who is the appellant, for dissolution of marriage on the ground of

adultery and cruelty and also for return of gold ornaments. The 1 st

respondent is his wife. The 2nd respondent is the alleged

adulterer. The marriage between the appellant and the 1 st

respondent was solemnized on 10/9/2001 at the residence of the

1st respondent as per Hindu religious rites and ceremonies. A girl

child was born in the wedlock on 11/7/2002. At the time of

marriage, the appellant was employed at NEST. According to the

appellant, right from the inception of the marriage, the 1 st

respondent used to quarrel with him and his family members Mat.Appeal No.722/2015

unnecessarily. It is alleged that 1 st respondent did not allow him

to lead a peaceful life and constantly nagged him. It is further

alleged that the 1st respondent wanted to lead a luxurious life

which the appellant could not afford to. In May, 2008, the

appellant got transfer to Bangalore. Thereafter, she started

wayward life of her own and used to contact the appellant over

phone only when she needed money and failed to discharge her

marital obligation. In March, 2009, the appellant went to Gulf for

job. Thereafter, she started illicit relationship with the 2 nd

respondent and when he came to know of it, he quit his job and

returned home on 31/5/2010. It is alleged that the 1 st respondent

has been maintaining illicit relationship with the 2 nd respondent.

The appellant has projected a specific instance of adulterous act

of the 1st respondent. It is alleged that on 11/11/2010 at 10.00

a.m., the 1st respondent was caught red handed from the house

of the 2nd respondent. It was witnessed by the appellant, his

father, the mother of the 1st respondent and local people.

Thereafter, the 1st respondent's mother took her into an

autorickshaw to her own house and since then, they are living

separately. It was in these circumstances the divorce on the Mat.Appeal No.722/2015

ground of adultery and cruelty was sought. The appellant also

claimed back wedding chain weighing 6 sovereigns of gold

ornaments given by him to the 1st respondent.

3. The 1st respondent filed objection statement denying

the averments in the original petition. She specifically denied

various instances of cruelty allegedly exercised by her on the

appellant and pleaded in the original petition. According to her, it

was the appellant who often quarrelled with her and failed to

discharge the marital obligation. It was contended that the

appellant misappropriated 42 sovereigns of gold ornaments and

`50,000/- received by her as gift at the time of her marriage. It is

further contended that the appellant did not pay any amount to

maintain her or the child. The case of illicit relationship between

the 1st respondent and 2nd respondent alleged in the original

petition as well as the incident allegedly took place on

11/11/2010 was also denied. The 1st respondent sought for

dismissal of the petition.

4. The appellant has also filed OP No.570/2013 for the

custody of the minor child. Both the original petitions were tried

together. The appellant was examined as PW1. His neighbour Mat.Appeal No.722/2015

was examined as PW2. Exts.A1 to A4 were marked on the side of

the appellant. The 1st respondent was examined as CPW1. Ext.B1

was marked on the side of the respondent. After trial, the court

below found that the appellant failed to prove cruelty as well as

adultery on the part of the 1 st respondent. The court below also

found that the appellant cannot claim back the wedding chain

given by him to the 1st respondent so long as the marital

relationship continues. Accordingly, the original petition was

dismissed as per the impugned judgment. Challenging the

dismissal of the prayer for dissolution of marriage, the appellant

has preferred this appeal. The appellant has not challenged the

dismissal of his claim for return of gold ornaments.

5. We have heard Sri.S.Sanal Kumar, the learned counsel

for the appellant and Sri.K.S.Madhusoodanan the learned counsel

for the respondent.

6. Assailing the finding of the court below on adultery

and cruelty, the learned counsel for the appellant vehemently

argued that the court below was unreasonable and unrealistic in

the appreciation of evidence. The learned counsel submitted that

the evidence on record were sufficient to prove adultery and Mat.Appeal No.722/2015

cruelty alleged so as to grant a decree for dissolution of marriage

u/s 13(1)(i) and (ia) of the Hindu Marriage Act, 1955. The learned

counsel for the 1st respondent, per contra, submitted that the

burden is entirely upon the appellant to prove the alleged cruelty

and adultery which he miserably failed to prove. The court below

rightly dismissed the petition, argued the counsel

7. First, we will consider the ground of cruelty canvassed

by the appellant. In order to prove adultery, the appellant relied

on his own oral evidence and the evidence of his neighbour who

was examined as PW2. It has come out in evidence that at the

time of marriage the appellant was employed at NEST, Kakkanad.

Thereafter in the year 2008, he was transferred to Bangalore and

then he left to Gulf in 2009 March. In the original petition, the

appellant has pleaded that after he left to the Gulf, the 1 st

respondent started to lead luxurious life and she developed

unholy and illicit relationship with the 2 nd respondent. He quit the

job at Gulf and came back on 31st May, 2010. According to him,

he came back when he knew about the illicit relationship between

the respondents. The appellant has specifically pleaded an

instance where the 1st and 2nd respondents were caught red Mat.Appeal No.722/2015

handed at the residence of the 2 nd respondent. According to the

appellant, on 11/11/2010 at 10.00 a.m., the respondents were

found alone together at the house of the 2 nd respondent and they

were caught by him, his father, the mother of the 1 st respondent

and few neighbours. Thereafter, the mother of the 1 st respondent

took her in an autorickshaw to her house. PW1 also gave

evidence in tune with the pleadings mentioned above. The

specific instance took place on 11/11/2010 was spoken to by PW1

in the evidence. PW2 has been examined to prove the incident

that has taken place on 11/11/2010. He is the neighbour of the

appellant. He deposed that he knew the respondents well and

they were leading an illicit relationship. He further deposed that

the 1st respondent used to visit the house of the 2 nd respondent

and he had seen both of them spending together in the closed

room therein on so many occasions. He also deposed that he saw

them together moving around intimately. He specifically deposed

that on 11/11/2010, at about 10.00-10.15 a.m., while he was

standing outside the house of the 2 nd respondent, he saw the 1st

respondent going to the house of the 2nd respondent. At that

time, the parents of the 2nd respondent were not there. Mat.Appeal No.722/2015

Immediately, he intimated the matter to the appellant over

phone. After 45 minutes, the appellant along with his father and

mother of the 1st respondent came and the 1st and 2nd

respondents got out of the house and they were caught red

handed. Thereafter, the 1 st respondent along with her mother left

in an autorickshaw.

8. The evidence of PW1 and PW2 have to be evaluated in

the light of certain admissions and attended circumstances.

Even though the 1st respondent has denied the alleged incident

that has taken place at the house of the 2 nd respondent on

11/11/2010, in her objection statement as well as in the chief

affidavit, she has admitted that on 11/11/2010, the appellant

quarreled with her unnecessarily and the appellant called her

mother over phone who came and she went along with her

mother to her house. In cross-examination, the 1 st respondent

has admitted that she knew the 2nd respondent. The 1st

respondent has also admitted in cross-examination that she knew

PW2. Though PW2 gave positive evidence that he witnessed the

incident on 11/11/2010, nothing has been stated by the 1 st

respondent in her chief examination about PW2 or his evidence. Mat.Appeal No.722/2015

The 1st respondent gave evidence much after the evidence of

PW2. The 1st respondent has also no case that PW2 has any

animosity with her. Even though PW2 has been cross-examined

in length, nothing has been brought out in cross-examination to

discredit his testimony. In the pleadings itself the appellant has

stated that the incident on 11/11/2010 has been witnessed by the

local people, though name of PW2 has not been specifically

mentioned. We have perused the cross-examination of PW1.

There is no effective cross-examination on the positive evidence

given by PW1 regarding the illicit relationship between the

respondents, specifically regarding the incident on 11/11/2010.

We see no reason to disbelieve the evidence given by PW1 and

PW2 about the illicit relationship between the 1 st and 2nd

respondents especially about the incident that has taken place on

11/11/2010.

9. The court below disbelieved the evidence of PW2

highlighting certain minor discrepancies in his evidence with

regard to slight difference in time. The court below also found

fault with the appellant for not examining his father or mother of

the 1st respondent who witnessed the incident on 11/11/2010. Mat.Appeal No.722/2015

True, either of them could have been examined. But, for the

mere reason that they were not examined, the evidence given by

PW1 and PW2 cannot be discarded. Discrepancies in the

evidence of PW2 pointed out by the court below are minor in

nature and insignificant. We have already found that there is

nothing to disbelieve the evidence given by PW2.

10. In a case where divorce is sought on the ground of

adultery, the proof required to establish adultery need not

necessarily be proof beyond a shadow of doubt. Proof by

preponderance of probabilities would be sufficient. Direct proof of

adultery can rarely be given. The circumstantial evidence is all

that can normally be expected in proof of the charge of adultery.

However, the circumstances must be such as lead to it by fair

inference as a necessary conclusion. The allegation must be

reasonably proved, there must be high degree of probability. As

stated already, the oral testimony tendered by PW1 and PW2 is

credible and trustworthy. We do not find any reason to reject it.

The 1st respondent has also admitted that on 11/11/2010 there

was some quarrel between her and the appellant and her mother

came and took her to her house. She has also admitted that she Mat.Appeal No.722/2015

knew both the 2nd respondent and PW2. PW2 has not come

forward to the court and denied the allegations levelled against

him. For all these reasons, we are of the view that the

preponderance of probabilities are in favour of the appellant. The

appellant has succeeded in proving that after the solemnization

of marriage, the 1st respondent had sexual intercourse with a

person other than him so as to attract S.13(1)(i) of the Hindu

Marriage Act.

11. In so far as the ground of cruelty is concerned, various

acts of cruelty, both physical and mental, as well as harassment

meted out by the appellant at the hands of the respondent have

been spoken to in detail by him. Even though he has been cross-

examined in length, nothing could be elicited to discredit his

testimony. PW1 specifically deposed that right from the inception

of marriage, the 1st respondent used to pick up quarrel with him.

He further deposed that the 1 st respondent wanted to lead a

luxurious and wayward life and since he could not accede to the

said demand, he was abused and humiliated. He has also

highlighted a specific instance where she threw away the thali

chain when she got angry. Regular instances of outrage and Mat.Appeal No.722/2015

resentment on the part of the 1st respondent has been spoken to

by the appellant. It has also come out in evidence that the 1 st

respondent has even physically assaulted their child. The

appellant specifically deposed that right from the first day of

marriage, there has been a sustained cause of abusive and

humiliating treatment and reprehensible conduct on the part of

the 1st respondent. As stated already, in 2009, the appellant went

to Gulf seeking a better job. But he had to quit the job and come

back when he knew about the illicit relationship of the 1 st

respondent with the 2nd respondent. The evidence shows that

even after he came back from Gulf, the 1 st respondent continued

her illicit relationship with the 2nd respondent and they were

caught red handed at the house of the 2 nd respondent on

11/11/2010. This act of the 1 st respondent has caused much

mental strain and agony to the appellant which is nothing but

mental cruelty. The physical violence is not absolutely essential to

constitute cruelty. 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/her to continue the marital tie. The evidence on Mat.Appeal No.722/2015

record shows that the parties have been living separately since

11/11/2010. The allegations and counter allegations levelled

against each other establish that there is no further chance of

rapprochement. Thus, we hold that the appellant has made out a

case for granting a decree for dissolution of marriage on the

ground of cruelty as well.

In the light of the above findings, we allow the appeal and

set aside the impugned judgment to the extent it rejected the

relief of dissolution of marriage on the ground of adultery and

cruelty. OP No.846/2012 stands allowed u/s 13(1)(i) and (ia) of

the Hindu Marriage Act, 1955. The marriage between the

appellant and the 1st respondent solemnized on 10/9/2001 is

hereby dissolved. The parties shall bear their costs.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp //True copy// PS to Judge