Sunday, 7 February 2016

Whether wife conducting press conference against husband raising unfounded defamatory allegation amounts to mental cruelty?


We have considered the effect of the above

allegations.    Conducting a press conference against

husband     raising  unfounded   defamatory      allegation
amounts to mental cruelty. The defamatory statements in

the pleading that petitioner was having illicit connection

with a lady lawyer, gave promise to marry her and stayed

with her in hotel amounts to another cruelty. In the press

report dated 10.8.2003 she alleged that the petitioner

eloped with a lady having two children before his

marriage.     Moreover filing false complaint against

husband and his family members in the Judicial First Class

Magistrate Court, Mattannur amounts to humiliation. She

stated that she tried her level best to reside with the

husband but we are of the opinion that this is not the way

for her to go back and reside with the husband. It is well

settled that the above conduct of the wife amounts to
mental cruelty.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

               THE HONOURABLE MR.JUSTICE V.K.MOHANAN
                                  &
                THE HONOURABLE MR. JUSTICE P.D.RAJAN

      WEDNESDAY, THE 11TH DAY OF FEBRUARY 2015/22ND MAGHA, 1936

                   Mat.Appeal.No. 244 of 2007 ( )
                 

       C.V.USHAKUMARI, 
Vs
       P.SUKUMARAN,
     Citation; AIR 2016(NOC)50 Kerala


       This appeal is directed against the judgment in

O.P.No.32 of 2006 of the Family Court, Kasargode which

was filed under Section 13(1)(ia)(ib) of Hindu Marriage

Act for divorce by the husband against his wife. Appellant

is the wife and respondent is the husband in this appeal.

     2. The case of respondent in the family court was

that he married the appellant on 12.5.1994 as per hindu

customary rites.     After the marriage, both of them

resided together in the parental house for fifteen days

and thereafter both of them went to their work place. At

the time of marriage, he was a Police Constable at

Vellarikundu police station and his wife was a teacher in a

government school. In the year 1995 he got selection as

S.I of Police, there arouse the difference between them.

After training he joined at Calicut for practical training, at

that time the wife refused to join with him. Subsequently,

he was transferred to Pandalam in the year 1995 where

he worked for one year and one month, there also his

wife did not join with him. In the year 1998, he was

transferred to Manjeshwaram. Thereafter to Ferook in

the year 2000 and there was no progress in her conduct.

According to the petitioner, the wife resided with him till

27.12.1998.    During the subsistence of the marriage,

wife aborted the pregnancy without his consent thereby,

petitioner's ambition for having a child was spoiled by his

wife. She usually ill treated him mentally by abusing him

over phone. She also complained to his superior officers

through telephone making baseless allegations against

him.       The settlement talks were failed,        in the

circumstance, the husband approached the Family Court

with the above petition.

   3. The appellant filed a written objection in the family

court and contended that after the marriage she obtained

transfer and resided along with the petitioner at his work

place in Malappuram and Kozhikode Districts. While they

were residing together she became pregnant but the

pregnancy was tubal pregnancy and         she underwent a

surgery with the consent of her husband.           She also

resided with him from 27.5.1997 to 13.5.1998 on medical

grounds. He had developed an illicit relationship with one

Shylaja Kurup, who is a lawyer at Pandalam, while he was

working at Ferook. The lady contacted him on the

impression that petitioner was a bachelor.             When

appellant became pregnant, the respondent took her to a

Gynaecologist at Edappal on 31.3.1999 and was satisfied

with himself about her health condition. While he was

working at Malappuram and Kozhikode, she stayed with

him at the official residence of the S.I at Nallalam till May

2000 and at Kelakam in Kannur District. The husband

also threatened her several times and forced her to obtain

divorce by mutual consent. There was no cruelty from

her side and she is ready and willing to reside with him.

       4.  Both parties adduced oral and documentary

evidence in the Family Court. The evidence consists of

oral testimony of PW1, PW2 and RW1 and documentary

evidence of Ext.A1 to A5, Ext.B1 to B4 and Ext.X1.

Family Court, after sifting and weighing the evidence on

record, allowed the application under Section 13(1)(ia)

and (ib) of the Hindu Marriage Act and the marriage was

dissolved with effect from the date of decree with cost of

the proceedings from the respondent. Aggrieved by that,

the wife approached this court with this appeal.

       5.  Learned counsel appearing for the appellant

contended that the alleged desertion under Section 13(1)

(ib) was not proved in this case. Appellant resided with

the respondent till May 2000 at Nallalam. Therefore, the

period of desertion for a continuous period not less than

two years immediately preceding the presentation of the

petition was not proved in this case and there was no

pleadings about the date of desertion and mental cruelty

in the petition.    When there was no pleadings and

evidence in a case, the respondent is not entitled for a

decree as claimed in the petition. Learned counsel relied

on the decision of the Apex Court in Adhyatma Bhattar

Alwar V. Adhyatma Bhattar Sri Devi (2002(1) SCC

308), Savitri Pandey V. Prem Chandra Pandey (2002
(2) SCC 73) and Pradeep Kumar V. Rekha (2013(2)

KLT Short Note 121, case No.153).

        6. Learned counsel appearing for the respondent

contended that there is specific pleading with regard to

desertion and cruelty. While they were residing together,

she made false complaint to the superior officers against

her husband through phone and that false allegation

amounts to cruelty. After filing the above petition, she

convened a press conference at Press Club, Kannur

raising false allegation which amounts to cruelty. Even

though the pleadings about press conference is not found,

in the petition which happened during the pendency of

this petition, he could not amend such pleadings at that

time, but she admitted that fact in her examination and

therefore   making     false allegation  through    Press

Conference amounts to cruelty. Besides that she aborted

the pregnancy without the consent of her husband and

put forged signature in the consent letter which also

amounts to cruelty.

       7.   Desertion is recognized as a good ground for
divorce under Section 13(1)(ib) of Hindu Marriage Act

1955. Any party after solemnization of marriage, has a

right to get the marriage dissolved by a decree of divorce

on the ground     that the other party has deserted the

petitioner for a continuous period of not less than two

years immediately preceding the presentation of the

petition.     The desertion for the purpose of seeking

divorce under the Act means an intentional permanent

abandonment of one spouse by the other without the

other's consent and without reasonable cause.    In other

words, one party repudiated the other totally in their life

without fulfilling any obligations of the marriage.

Desertion is not a withdrawal from one place to another

for a particular period. According to Hindu Marriage Act,

it involves both mental element and physical element.

The factum of separation and intention to bring the

cohabitation permanently to an end or animus dessirendi

are the two main ingredients necessary to constitute

desertion.

     8. The matter may be further examined on the basis

of the decision of the apex Court in Savithri Panday V.

Prem Chandra Pandey (2002(2) SCC 73) in which it was

held in paragraph 8 as follows.

     8.    "Desertion", for the purpose of seeking

     divorce under the Act, means the intentional

     permanent forsaking and abandonment of one

     spouse by the other without the other's

     consent and without reasonable cause.         In

     other words it is a total repudiation of the

     obligations of marriage. Desertion is not the

     withdrawal from a place but from a state of

     things.       Desertion,   therefore,    means

     withdrawing from the matrimonial obligations

     i.e not permitting or allowing and facilitating

     the cohabitation between the parties.       The

     proof of desertion has to be considered by

     taking into consideration the concept of

     marriage which in law legalises the sexual

     relationship between man and woman in the

     society for the perpetuation of race, permitting

     lawful indulgence in passion        to prevent

     licentiousness and for procreation of children.

     Desertion is not a single act complete in itself,

     it is a continuous course of conduct to be
      determined under the facts and circumstances

      of each case.    After referring to a host of

      authorities and the views of various authors,

      this Court in Bipinchandra Jaisinghbai Shal V.

      Prabhavati held that if a spouse abandons the

      other in a state of temporary passion, for

      example, anger or disgust without intending

      permanently to cease cohabitation, it will not

      amount to desertion".

      9. Desertion as a ground must be for a continuous

period of two years immediately prior to the filing the

petition. In this case PW1 deposed that both parties

resided together      till 8.4.2000 but the wife RW1

contended that she resided with him during onam

holidays of the year 2000. Even after filing this petition

in the year 2000, both of them resided together for 26

days. If that be the position, the animus deserendi as

stated    under Section 13(1)(ib) was not established in

this case. If the above evidence of RW1 is admitted, the

factum of separation with intention to desert the wife is

not proved for actual desertion.        While considering

desertion as a ground for divorce, the court has to
scrutinize the pleading and proof in support of such

desertion.   When there is no pleading and proof, no

decree of divorce could be granted on the ground of

desertion. Therefore the permanent abandonment of one

spouse by the other without other's consent and without

reasonable cause for the statutory period must be

pleaded    and    proved.    Desertion   is  a   continuing

matrimonial offence, once desertion begins, it continues

day by day till it come to an end by the conduct of the

deserting spouse. This also clarifies that desertion is not

complete even if the statutory period expires, it may

bring to an end by the act or conduct of the deserting

spouse. Therefore we conclude that desertion is not a

single act but it is a continuous act of conduct which is to

be determined under the facts and circumstances of each

case. Therefore, the contention of the husband that the

wife resided with him till 8.4.2000 and thereafter

deserted is unbelievable.

      10. A perusal of the pleading shows that the next

ground put forward by the the respondent was that the
appellant   treated him with cruelty while they were

residing together. Under Section 13(1)(ia) of the Act, a

marriage can be dissolved by a decree of divorce on a

petition presented by the husband or wife on the ground

that the other party, after solemnization of the marriage,

treated the petitioner with cruelty. PW1, the husband in

his evidence deposed that there was cruelty       from the

part of the wife throughout his life. In the oral evidence

he deposed that she made false allegations about him

and was not co-operating with him as a wife in his family

life. When he visited her at her residence, she was not

found in the house as she had gone to her family house

and was staying there.         While he was residing at

Pandalam in his official quarters, she was reluctant to

stay there. On several occasions, he adjusted with the

appellant by taking leave and resided there and at that

time also,   she was not co-operative.      In Ext.A5 she

alleged that he eloped with a lady having two children

and moreover while they were residing together, she

complained to the superior officers raising false allegation
which amounts to cruelty. After filing the above petition,

she convened a press conference at Press Club, Kannur

raising false allegation which amounts to cruelty.     She

admitted this fact in her cross examination. During the

pendency of divorce petition, he could not amend and

insert such pleadings in the OP, therefore he contended

that false allegation through Press Conference also

amounts to cruelty. Moreover, the respondent's ambition

to become a father was spoiled by the appellant for the

reason     that she aborted her pregnancy without the

consent of the husband. Besides this, she forged the

signature of the husband in the consent letter.       This

conduct of the appellant amounts to grave mental

cruelty.

      11.   We have considered the effect of the above

allegations.    Conducting a press conference against

husband     raising  unfounded   defamatory      allegation

amounts to mental cruelty. The defamatory statements in

the pleading that petitioner was having illicit connection

with a lady lawyer, gave promise to marry her and stayed
with her in hotel amounts to another cruelty. In the press

report dated 10.8.2003 she alleged that the petitioner

eloped with a lady having two children before his

marriage.     Moreover filing false complaint against

husband and his family members in the Judicial First Class

Magistrate Court, Mattannur amounts to humiliation. She

stated that she tried her level best to reside with the

husband but we are of the opinion that this is not the way

for her to go back and reside with the husband. It is well

settled that the above conduct of the wife amounts to

mental cruelty.

        12. Apex Court in K.Srinivas Rao V D.A.Deepa

(2013(5)SCC 226) held in paragraphs 16, 27 and 28 as

follows.

     " 16. Thus, to the instances illustrative of mental

     cruelty noted in Samar Ghosh, we could add a

     few    more.     Making    unfounded      indecent

     defamatory allegations against the spouse or his

     or her relatives in the pleadings, filing of

     complaints or issuing notices or news items

     which may have averse impact on the business

     prospect or the job of the spouse and filing
     repeated false complaints and cases in the court

     against the spouse would, in the facts of case,

     amount to causing mental cruelty to the other

     spouse.

 
     27. We need to now see the effect of the above

     events. In our opinion, the first instance of

     mental cruelty is seen in the scurrilous, vulgar

     and   defamatory    statement   made     by   the

     respondent     wife in   her   complaint   dated

     4.10.1999 addressed to the Superintendent of

     Police, Women Protection Cell. The statement

     that the mother of the appellant husband asked

     her to sleep with his father is bound to anger

     him. It is his case that this humiliation of his

     parents caused great anguish to him. He and

     his family were traumatised by the false and

     indecent statement made in the complaint. His

     grievance appears to us to be justified.     The

     complaint is a part of the record. It is a part of

     the pleadings. That this statement is false is

     evident from the evidence of the mother of the

     respondent wife, which we have already quoted.

     This statement cannot be explained away by

     stating that it was made because the respondent

     wife was anxious to go back to the appellant
     husband.      This is not the way to win the

     husband back.       It is well settled that such

     statements cause mental cruelty.      By sending

     this complaint the respondent wife has caused

     mental cruelty to the appellant husband.

     28.     The conduct of the respondent wife

     in filing a complaint making unfounded, indecent

     and defamatory allegation against her mother-

     in-law, in filing revision seeking enhancement of

     the sentence awarded to the appellant husband,

     in filing appeal questioning the acquittal of the

     appellant husband and acquittal of his parents

     indicates that she made all attempts to ensure

     that he and his parents are put in jail and he is

     removed from his job. We have no manner of

     doubt that this conduct has caused mental

     cruelty to the appellant husband".

       13.   Apex Court in      2002(2) SCC 73     Savitri

Pandey's case (supra) held in paragraph 6 as follows.

     "6. Treating the petitioner with cruelty is a

   ground for divorce under Section 13(1)(ia) of the

   Act. Cruelty has not been defined under the Act

   but in relation to matrimonial matters, it is

   contemplated as a conduct of such type which

   endangers the living of the petitioner with the
   respondent. Cruelty consists of acts which are

   dangerous to life, limb or health. Cruelty for the

   purpose of the Act means where one spouse has

   so treated the other and manifested such feelings

   towards her or him      as to have inflicted bodily

   injury, or to have caused reasonable apprehension

   of bodily injury, suffering or to have injured

   health.    Cruelty may be physical or mental.

   Mental cruelty is the conduct of other spouse

   which causes mental suffering or fear to the

   matrimonial life of the other. "Cruelty", therefore,

   postulates a treatment of the petitioner with such

   cruelty as to cause a reasonable apprehension in

   his or her mind that it would be harmful or

   injurious for the petitioner to live with the other

   party. Cruelty, however, has to be distinguished

   from the ordinary wear and tear of family life. It

   cannot be decided on the basis of the sensitivity

   of the petitioner and has to be adjudged on the

   basis of the course of conduct which would, in

   general, be dangerous for a spouse to live with

   the other.

   14. Considering the case in hand and on appreciation

of the evidence, it is seen that the actual desertion as

stated by the husband is not pleaded with the statutory
period mentioned under Section13(1)(ib) of the Act. The

animus deserendi or intention to desert and the factum

of separation which are the two essential elements to

constitute desertion are not properly found in the alleged

desertion. Even though there was factum of separation,

their rejoining after filing the petition shows that they

have no intention to bring the cohabitation permanently

to an end. This shows that the petitioner husband failed

to prove the ground of desertion and the judgment of the

lower court on the ground of desertion is to be set aside.

No decree of divorce could be granted on the ground of

desertion in the absence of pleading and proof with

regard to mental element and physical element.

     15. From the totality of the evidence, we are of the

opinion that the divorce granted under Section 13(1)(ib)

of the Hindu Marriage Act is only to be set aside and the

divorce granted under Section 13(1)(ia) is to be

confirmed.

    16.    In the result, we set aside the divorce granted

under section 13(1)(ib) of the Hindu Marriage Act 1955.


In all other aspect, we confirm the finding of the Family

Court. The appeal is allowed in part.     No order as to

costs.




                              V.K.MOHANAN, JUDGE




                              P.D.RAJAN, JUDGE





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