Kerala High Court
Reshma.K.M vs Rajeesh.O.P on 9 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TH
THURSDAY, THE 9 DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
MAT. APPEAL NO. 227 OF 2018
(AGAINST THE ORDER DATED 21.06.2017 IN OP 392/2016
OF FAMILY COURT, VATAKARA, KOZHIKODE)
APPELLANT/PETITIONER:
RESHMA.K.M, AGED 30 YEARS, D/O. BHASKARAN, CHERUVOTTU
THADATHIL HOUSE, P.O.MANADHAMKAVU, NADUVANNUR,
MANDHAMKAVU AMSOM & DESOM, KOYILANDY TALUK,
KOZHIKODE DISTRICT, PIN - 673 614.
BY ADV SRI.M.G.SREEJITH
RESPONDENT/RESPONDENT:
RAJEESH.O.P, AGED 34 YEARS,
S/O. RAMAKRISHNAN, KOTTACHERY POYIL HOUSE, P.O.MELUR,
MELUR AMSOM & DESOM, KOYILANDY TALUK, PIN - 673 306.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat. Appeal No.227 of 2018
2
A.MUHAMED MUSTAQUE &
DR.KAUSER EDAPPAGATH, JJ.
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Mat. Appeal No.227 of 2018
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Dated: 9th September, 2021
JUDGMENT
A.Muhamed Mustaque, J.
Appellant is the wife. She filed this appeal aggrieved by
dismissal of her petition for divorce under Section 13(1)(ia) of
the Hindu Marriage Act.
2. Appellant married the respondent on 27/12/2010
in accordance with the Hindu religious rites and ceremonies.
Appellant is working as a Staff Nurse in M.M.Hospital,
Koyilandy. According to the appellant, the marriage life from
the initial days itself was miserable as the respondent was
found to be a chronic alcoholic. She narrated instances of
physical and mental abuse.
Mat. Appeal No.227 of 2018
3. Apart from the physical and mental harassment, it
is also stated by her that, the respondent was having illicit
relationship with one lady and the fact was found out by her
while crosschecking the mobile calls and messages in the
mobile phone of the respondent. It is also stated by her that,
when she questioned the same, she was brutally assaulted.
4. Appellant has also raised an allegation that
respondent's father also made undesirable advances towards
her. Appellant was examined as PW1. Respondent entered
appearance and refuted all the allegations. According to the
respondent, he demanded the appellant to change the place of
her job and that resulted in certain difference of opinion
between the appellant and the respondent. Before the Family
Court, the respondent was examined as RW1.
5. The Family Court on appreciation of pleadings and
evidence came to the conclusion that there was no evidence to
establish cruelty. It was found that the appellant failed to prove
the respondent is a chronic alcoholic. The Family Court took
Mat. Appeal No.227 of 2018
particular note of the fact that the appellant failed to examine
one Sajeevan, who allegedly undertook the mediation between
the parties from the residence of the brother of the appellant.
6. The appellant gave evidence in tune with her
pleadings. There is no dispute to the fact that there was
difference of opinion between the parties from the initial days
of the marriage life itself. The Family Court refused to accept
the oral testimony of the appellant for the simple reason that
the appellant failed to examine any independent witness. The
Family Court also found that the appellant failed to produce
evidence to show that respondent used to make mobile calls
and sent messages from his phone to the lady with whom he
had alleged illicit relationship.
7. It is to be noted that in spite of notice in this matter,
respondent has not chosen to appear. According to us, the
Family Court erred in appreciating the evidence. The appellant
was having a consistent case that respondent used to mentally
and physically harass her. The evidence given by her is quite
Mat. Appeal No.227 of 2018
natural. The unshaken testimony clearly spells the instances of
cruelty meted out to her. The parties got married in the year
2010. Admittedly they were living separately for a long period.
If there was serious difference of opinion between the parties,
that would essentially show that somebody is at fault. If the
respondent was serious about restoring the marriage, he
would have filed petition for restitution of conjugal rights. It is
in this background, the court has to examine the veracity of
the oral testimony of the appellant. Her case of alcoholism
cannot be ruled out in this mater. The appellant also named
the lady with whom respondent was having illicit relationship.
The mobile phone belongs to the respondent. The appellant
cannot produce the details of the mobile messages or phone
calls made by the respondent. In a matter like this, court has to
give analysis of what would be available before a court, is the
oral testimony of the parties. If the narration of the incident in
the pleadings as well as in the oral testimony is natural and
there are no other circumstances to disbelieve the same, the
Mat. Appeal No.227 of 2018
court has to accept the same. The incidents referred to in the
pleadings as well as in the oral testimony clearly constitute
elements of established cruelty.
In the light of the findings as above, we are of the view
that the appellant has made out a case for dissolution of
marriage on the ground of cruelty. We therefore set aside the
impugned decree and judgment and allow this appeal. The
marriage between the appellant and the respondent
solemnized on 27/12/2010 is dissolved by a decree of divorce.
Sd/-
A.MUHAMED MUSTAQUE,
JUDGE
Sd/-
DR.KAUSER EDAPPAGATH,
ss JUDGE
