Ganga Rajanan vs K.P.Ranjanan
2022 Latest Caselaw 10851 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                 &
            THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
                   MAT.APPEAL NO. 1064 OF 2018
    AGAINST THE JUDGMENT AND DECREE DATED 28.07.2018 IN
       O.P.NO.646 OF 2013 OF THE FAMILY COURT, KANNUR
APPELLANT/RESPONDENT:

            GANGA RANJANAN
            AGED 51 YEARS, D/O GOVINDAN,
            SARIGA,CHELORA AMSOM AND DESOM,
            P.O VARAM, KANNUR-670594.
            BY ADVS.
            K.R.AVINASH (KUNNATH)
            SRI.ABDUL RAOOF PALLIPATH
            SRI.E.MOHAMMED SHAFI
            SRI.PRAJIT RATNAKARAN


RESPONDENT/PETITIONER:

            K.P.RANJANAN
            AGED 59 YEARS, S/O LATE P.P.KUNHIKANNAN,
            SARIGA, CHELORA AMSOM AND DESOM,
            P.O VARAM, KANNUR - 670594.
            BY ADV SRI.M.SASINDRAN



     THIS     MATRIMONIAL   APPEAL   HAVING   COME   UP   FOR   FINAL
HEARING ON 25.10.2022, THE COURT ON 03.11.2022 DELIVERED THE
FOLLOWING:
                                     2
Mat.Appeal No.1064 of 2018


                             JUDGMENT

Ajithkumar, J.

This is an appeal filed under Section 19(1) of the Family

Courts Act, 1984. The appellant was the respondent in

O.P.No.646 of 2013 on the file of the Family Court, Kannur.

The respondent filed the original petition for a decree of

dissolution of marriage under Sections 13(1)(ia), (ib) and

13(1)(iii) of the Hindu Marriage Act, 1965. The O.P. was

allowed and marriage between the appellant and respondent

was dissolved under Section 13(1)(a) of the Hindu Marriage

Act with effect from 28.07.2018, the date of that judgment.

The appellant assails that judgment in this appeal.

2. After condoning the delay in filing the appeal, this

court admitted the appeal to file on 24.01.2022.

3. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

respondent.

4. The facts constituting the ground of cruelty for

divorce alone require mention since the relief claimed by the

Mat.Appeal No.1064 of 2018

respondent on other grounds was declined by the Family

Court. The marriage was solemnised on 17.02.1991. The

appellant and the respondent were residing at the house of

the respondent. They have a son. It is alleged that for the last

more than 20 years, the appellant treated the respondent

with cruelty. His affairs were not looked after by the appellant.

She did not oblige to the directions of the respondent and also

his wishes. She never was loyal. The appellant did not show

any interest in looking after the affairs of the aged mother of

the respondent. She went for employment outside the State

and abroad, without even informing the respondent. She

attributed totally untrue allegations regarding his fidelity. Her

temperament was so rude and incoherent, resulting in total

incompatibility between them. The marriage has physically

and emotionally come to an end.

5. The appellant resisted the original petition by filing

a counter. She has also filed a counter-claim seeking a decree

of divorce on the ground of cruelty, a declaration of ownership

over the property in the name of the respondent and also

Mat.Appeal No.1064 of 2018

permanent alimony. She later gave up all such reliefs.

However, she resisted the claim for divorce. She has stated so

many instances, which really made her life miserable. It is her

contention that at no point of time the respondent allowed her

or her son to live peacefully. He wanted to even abort her

pregnancy. Many a time she was physically tortured and

manhandled. The respondent is portrayed as a short-

tempered man and irresponsible in any of the matters of the

appellant or their son, and a man too difficult to be lived along

with. A specific instance of assault is pleaded that on

14.10.2014, the respondent kicked with a lever and stabbed

using a knife resulting in her injury. She had to file a

complaint before the police and, upon which a crime was

registered and ultimately the respondent was charged. She

has been thus physically and emotionally tortured by the

respondent. Accordingly, she contended that it was the

respondent who meted out cruelty and that he is not entitled

to get a decree of divorce.

Mat.Appeal No.1064 of 2018

6. The respondent filed a rejoinder where he has set

forth a few more allegations against the appellant. The Family

Court examined PW1 and marked Exts.A1 to A3 on the side of

the respondent. RWs.1 to 3 were examined and Exts.B1 to B4

were marked on the side of the appellant. The Family Court,

after considering the evidence on record, found that the acts

and deeds of the appellant amounted to cruelty giving

sufficient cause for the respondent to claim a divorce.

7. The learned counsel appearing for the appellant

would submit that the evidence tendered by the respondent is

not enough to grant a decree of divorce. Moreover, both the

appellant and the respondent are residing under the same

roof even now, although they are not in good terms. In such

circumstances, the impugned decree is sought to be set aside.

8. The learned counsel appearing for the respondent,

on the other hand, would submit that the behaviour and

treatment of the appellant for the last more than 20 years

were such that the respondent was put to unbearable

tormentation and stress, so that it is unable for him by to go

Mat.Appeal No.1064 of 2018

forward with the marriage. So many instances have been

stated to by PW1, the respondent, including baseless allegations

levelled against him that he had illicit relationship with other

women. The version of RW1, the appellant, that she would not

have married the respondent, had she known that she had to

live in the family house of the respondent along with his mother,

sister and other near relatives. She alleged that all such

relatives have been depending for the livelihood on the

respondent and that was not acceptable to her.

9. In order to grant a decree of dissolution of

marriage under Section 13(1)(ia) of the Hindu Marriage Act, it

has to be proved that the spouse claiming divorce has been

treated with cruelty by the other spouse. Section 13(1)(ia) of

the Hindu Marriage Act reads,-

"(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- xx xx xx (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or"

Mat.Appeal No.1064 of 2018

10. The cruelty can be either physical or mental or

both. Only if the allegation of cruelty is established, the court

has jurisdiction to invoke the said provision to order

dissolution of the marriage. The question then is, what shall

be the standard of proof.

11. In Dr.N.G.Dastane v. Mrs.S.Dastane [AIR 1975

SC 1534], the three-Judge Bench of the Apex Court considered

as to what standard of proof has to be insisted while

appreciating the evidence in support of a plea for dissolution of

marriage or for a judicial separation. It was held,-

"25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature."

Mat.Appeal No.1064 of 2018

12. The Apex Court proceeded to hold that the

proceedings under the Act are essentially of civil nature and

therefore the word 'satisfied' used in Section 23 must be

understood as "satisfied on a preponderance of probabilities"

and not "satisfied beyond a reasonable doubt". The Apex

Court also explained when can it be said that the fact is

proved by preponderance of probabilities as follows:-

"The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second."

13. In the light of the law laid down by the Apex Court,

what is required is to consider whether on a comparative

analysis of the evidence let in by the respective parties the

Mat.Appeal No.1064 of 2018

allegation of cruelty has been established by preponderance of

probabilities.

14. The Family Court held that the insistence of the

appellant to have separate residence amounted to cruelty, for

which the learned counsel for the appellant placed reliance in

Narendra v. K.Meena [(2016) 9 SCC 455], where the

Apex Court held that if the wife wanted the husband to get

separated from his family and continuous and persistent

insistence for the same thereby disabling the husband from

discharging his obligations to his parents and others

amounted to cruelty towards the husband. On going through

the evidence of PW1 and RW1, it is quite clear that there has

been continuous insistence from the part of the appellant for

setting up independent residence. When the respondent

wanted to help his mother and other near relatives and the

appellant resisted the same, that would cause some sort of

stress on him. Of course, it is the obligation of the husband to

maintain and look after the affairs of his wife and children, but

at the same time, his obligation towards his parents and

Mat.Appeal No.1064 of 2018

siblings cannot be totally ignored. When the respondent says

that such an approach of the appellant was intolerable to him,

the same would amount to torture, creating discord in the

marital relationship. In that view of the matter, the finding of

the Family Court in this respect cannot be said to be incorrect.

15. RW1 admitted that in her view the respondent was

having illicit relationships with other ladies, especially

foreigners and that she was used to raise that issue with him.

The respondent was working in the Merchant Navy, and used

to go abroad. RW1 deposed so not on the basis of her direct

or personal information. Her claim is that the respondent

himself used to tell her like that. But the respondent denied.

When the allegations are raised regarding fidelity of a person,

it should be based on materials. Raising totally baseless

allegations of extra-marital relationships against a spouse

definitely amounts to cruelty. In this regard, the principle laid

down by the Apex Court in Vijay Kumar Ramachandra

Bhate v. Neela Vijayakumar Bhate [(2003) 6 SCC 334]

and Sreenivas Rao K. v. D.A.Deepa [(2013) 5 SCC 226]

Mat.Appeal No.1064 of 2018

was relied on by the respondent. It was held that levelling

disgusting accusations of unchastity and indecent familiarity

with a person outside wedlock and allegations of extramarital

relationship is a grave assault on the character, honour,

reputation, status as well as the health of the other spouse. In

the light of the evidence that came on record, it cannot be

said that the findings of the Family Court in this regard is in

any way unfounded or incorrect.

16. The appellant also levels several allegations against

the respondent of cruelty perpetrated against her. Of course,

she had withdrawn the claim for divorce based on such

allegations. Her evidence, however, would point to the fact

that the respondent did not treat her with love and warmth,

which is expected from a husband. There was no mutual

respect or understanding. Both of them were moving forward

with their independent decisions with the result there were

total misgivings and misunderstandings in their marital life.

When both of them state that the marital tie came to a state

of physical and emotional snap and they could not go forward

Mat.Appeal No.1064 of 2018

as husband and wife, the reason for which is proved to be the

cruel treatment to each other, it is appropriate and legal to

separate the marriage on the ground of cruelty.

17. In such circumstances, we are of the view that the

decree granted by the Family Court dissolving the marriage

between the appellant and respondent is not liable to be

interfered with. The appeal therefore fails. Accordingly, the

appeal is dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr