Court: Kerela High Court
Bench: JUSTICE A.M. Shaffique, J. & Anu Sivaraman
Kochurani Chacko & Ors. Vs. K.M. Chackochen On 5 July 2017
Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Physical and Mental — Grant of divorce — Petitioner-husband alleged of having relationship with another lady — Husband suffering manhandling from wife’s brothers as a result of which he is forced to leave his own house, clearly amounts to case of physical and mental cruelty — Wife did not make attempt to take legal proceedings for entering the building which is her matrimonial house or shared house, but forcefully entered building after throwing husband out from his residence — This action of wife amounts to cruelty — Though not on the ground of desertion or irretrievable breakdown of marriages, Family Court ought to have granted divorce on ground of cruelty — Directions.
JUDGEMENT
These appeals are filed challenging the common judgment dated 22.7.2009 of the Family Court, Alappuzha in OP (Div) No. 5/2005 and OP Nos. 947/2005 & 523/2006.
2. OP (Div) No. 5/2005 for divorce is filed by the respondent in Mat. Appeal No. 833/2009. OP (OS) No. 523/2006 is filed by the appellant in Mat. Appeal No. 832/2009. The said original petition was filed for past and future maintenance for herself and the minor children. OP No. 947/2005 is filed by the respondent in Mat. Appeal No. 834/2009 seeking for a declaration of title and recovery of possession of the petition schedule items.
3. Mat. Appeal No. 832/09 has been filed by the wife and children of Sri, K.M. Chackochen who is the respondent. Nos. 833/09 and 834/09 are filed by the wife alone and Mat.Appeal No. 77/2010 has been filed by the husband Chackochen challenging the judgment in OP No. 523/2006.Since the cases arise out of the common judgment, all the appeals are heard and decided together.
4. The short facts leading to the above case are as under:
Chackochen and Kochurani Chacko are the parties to marriage. The marriage was on 21.9.1987 as per Christian religious rites and ceremonies and three children were born to them in their wedlock. Husband by filing OP (Div) No. 5/2005 contended that the wife had deserted him in the month of April, 1996 and was residing at her parental house. Further, while he was residing alone at his residence at Kalakettuparambu Veedu in Thakazhi, his wife and her brothers trespassed into his house on 1.10.1999 and physically manhandled him. He was expelled from his house. Therefore, he alleges cruelty also and sought for a decree of divorce. He has also alleged that he was harassed by the respondent throughout the marital relationship.
5. The respondent wife in her objection denied the allegation of desertion and cruelty. According to her, petitioner was a bank employee and was in the habit of drinking and once he is drunk, he used to manhandle her without any reason. She and her children were driven out of the house. Though police complaints were filed, there was no improvement in the situation. On 1.10.1999, she along with the children returned to the petitioner’s house and had come to know that he was having illicit relationship with a lady by name Mary Jaquilin of Punnapra. When the respondent questioned him, she was assaulted.
6. In OP No. 947/2005, petitioner/husband sought for a declaration that he is the absolute owner of petition schedule items 1 and 2 property which were acquired in his name as per two gift deeds and a partition deed. His contention is that the respondent/wife had trespassed into the said property and building and were in wrongful possession of the same. Hence, he sought for declaration of title and recovery of possession. In the above petition, respondent wife filed objection admitting title of the petitioner but according to her, it is her matrimonial home and she has a right to reside with her children. She also denied the allegation of trespass. It was also contended that though the petitioner filed a suit for injunction before the Munsiff’s Court as OP No. 409/2000 seeking an injunction to restrain the respondent from entering into the property, the said suit has been dismissed and therefore the present lis is not maintainable.
7. OP No. 523/06 has been filed by the wife and children seeking past and future maintenance. Out of the three children, second petitioner attained majority on 17.5.2007. She also claimed return of 50 sovereigns of gold and an amount of Rs. 2 lakh given as patrimony. It is stated that the gold and money were entrusted to the respondent husband and he had appropriated the same. She alleges that the respondent husband deserted her in the month of April, 1996 and he has not been looking after their affairs and not maintaining them. The children are studying in local schools and therefore she has to incur substantial expenditure. Accordingly, she made a claim for past maintenance of Rs. 1,98,000 , future maintenance at Rs. 2,000 for herself, Rs. 1,500 for second petitioner, Rs. 1,250 for third petitioner and Rs. 750 for the fourth petitioner. She also made a claim for return of 50 sovereigns of gold ornaments and Rs. 2 lakh. The respondent/husband in his objection denied having appropriated any of the gold ornaments or having received any money. He also denied the fact that he has an income of Rs. 15,000 as alleged whereas according to him, his income was below Rs. 5,000.
8. The original petitions were jointly tried and evidence was recorded in OP No. 947/2005 which was treated as the leading case. The petitioner in OP No. 947/2005, the husband, examined himself as PW1 and relied upon Exts.A1 to A4 documents. The respondent wife relied upon the oral testimony of RW1 to RW4 and Exts.B1 to B35. The Family Court on an appreciation of the evidence in the case declared the marriage between the parties as dissolved by a decree of divorce. OP No. 947/2005 was allowed declaring right and title of the petitioner over the schedule properties and he was allowed to recover possession from the respondent. OP No. 523/2006 was allowed permitting the petitioners to recover Rs. 1,44,000 as arrears of past maintenance and direction was also issued to pay maintenance for petitioners 1, 3, and 4 at Rs. 1,000 per month from the date of petition and the maintenance was limited to the 2nd petitioner till she attains majority. The first petitioner was also given a decree to recover Rs. 2 lakh and also to pay Rs. 1,75,000 towards value of 50 sovereigns of gold ornaments. It was also declared that the wife and children will have a right to have continued residence in the building which is the shared household of the first petitioner wife until the claim for amount decreed is satisfied.
9. In Mat Appeal No. 832/2009, the appellant/wife and the children are dissatisfied with the award of maintenance. Family Court found that the respondent was not maintaining the petitioners since April 1996. Claim was for Rs. 2,000 per month for the first petitioner/wife, Rs. 1,500, Rs. 1250 and Rs. 750 for petitioners 2 to 4. Exts.B27 to B34 were the documents produced by the petitioner to prove the educational expenses incurred by her for sending the children to school. Respondent is a senior clerk of the State Bank of Travancore, Alappuzha Branch. He did not produce any records to prove his salary though he contended that there are a few recoveries from his salary and hence his income is very low.
10. Taking into account the nature of work of the petitioner, the Family Court observed that it would be appropriate to grant monthly maintenance for each of the petitioners at Rs. 1,000. Accordingly, Family Court fixed the monthly maintenance at Rs. 1,000 each for the petitioners for the preceding three years from the date of petition and accordingly fixed the past maintenance at Rs. 1,44,000. Having gone through the materials placed on record and the fact that maintenance had to be paid for four of them and the total maintenance would come to Rs. 4,000, we do not think that the award of maintenance calls for any interference by this Court.
11. Out of the petitioners, second petitioner attained majority during the pendency of the petition, on 17.5.2007. The Family Court restricted the claim for maintenance of the 2nd petitioner till 17.5.2007. Learned Counsel for the appellant placed reliance on the judgment of the learned Single Judge of this Court in P.M. Devassia v. Ancy and Others, II (2007) DMC 677=(2007) 1 ILR Ker. 206, to contend that a girl child is entitled for maintenance until her marriage.
12. On the other hand, learned Counsel for the respondent placed reliance on the judgment of a Division Bench of this Court in Cholamarakkar and Another v. Pathummamma, 2008 (3) KHC 973. This judgment is relied upon for the proposition that a minor girl on attaining majority is not entitled for maintenance. That was a case in which a Division Bench was considering the entitlement of an unmarried daughter after attaining the age of majority and belonging to Muslim community. It is held that unless it is established that the inability to maintain herself is on account of the physical or mental abnormality or injury, she will not be entitled to claim maintenance. After referring to the case law on the point, it was held that “thus the physical or mental abnormality or injury leading to the inability to maintain herself is a precondition for a child who has attained majority and also in the case of an unmarried daughter to claim maintenance from the parents”. This case was decided with reference to the grant of maintenance under Section 125(1)(c) of the Criminal Procedure Code, where the Court is bound by the statutory prescription. But in Ismayil v. Fathima, III (2011) DMC 502 (DB)=2011 (4) KLT 40, another Division Bench had occasion to consider a claim for marriage expenses by a Muslim daughter. This Court after a detailed analysis held at para 30 as under:
“30. The above discussions lead us to the conclusion that the right/obligation to maintain the unmarried daughter includes the right/obligation to meet the marriage expenses of the unmarried daughters. This is so for all fathers be they Hindus, Muslims, Christians or others. We adopt the following process of reasoning to reach that conclusion. They all have the duty under their personal law to maintain their children. Even ignoring the personal law, as declared in Mathew Varghese (supra), such a right/duty can be spelt out from Article 21 of the Constitution. Duty to maintain is not limited to provide for food, raiment and lodging. It includes the duty of the obligee to do all acts for the physical, mental and moral well being of the child. That duty has to be understood in the context of the Indian society in the modern constitutional republic. The concept has to be understood identically for persons belonging to all religious faiths in the secular polity. Where the interpretor has elbow room, he must invoke the power of interpretation as a functionary of the State consistent with the mandate of Article 44 of the Constitution. The interpretor need not wait for the Parliament to enact a uniform civil code. Till that is done by the Parliament, the interpretor as a functionary of the State must draw inspiration from Article 44 of the Constitution in performing the duty/power of interpretation. So reckoned the duty to maintain the unmarried daughters under the personal law must in the present day Indian context include the obligation to meet the marriage expenses of the unmarried daughters. For all members of the Indian polity, this has to apply. The Muslim father also, we hence hold, has the obligation to pay/meet the marriage expenses of his unmarried daughter. We must hasten to observe that the right/duty is only to meet the reasonable expenses, that too only when the daughter is dependent on the father.”
13. Though in Ismayil’s case (supra), the Court was concerned with the question as to whether marriage expenses are to be paid to a daughter, from the principle laid down, it is apparently clear that the daughters are to be maintained until they are given in marriage or until they are capable of maintaining themselves. In the light of the above discussion, we are of the view that the Family Court was not justified in restricting the maintenance to the daughters until the age of majority. They are entitled for maintenance until their marriage or until they are gainfully employed, whichever is earlier.
14. In regard to the other claim for recovery of Rs. 2 lakh and 50 sovereigns of gold ornaments, the petitioner’s case was that on 9.9.1987, the date of betrothal, the respondent made a demand to the first petitioner’s parents that an amount of Rs. 2 lakh and 50 sovereigns of gold ornaments should be given as Sthreedhanam and that the amount should be paid before the marriage. Accordingly, Rs. 2 lakh was paid to the respondent on 20.9.1987, a day prior to the marriage. Further, on the day of marriage, 1st petitioner was given 50 sovereigns of gold ornaments. It is alleged that the first petitioner entrusted the same with the respondent. It is further alleged that the respondent demanded more dowry and her life became miserable on account of she being manhandled and threatened using filthy and abusive language, which compelled her to leave the matrimonial home. It is further alleged that in the month of May, 1996, respondent forced the petitioner to leave the matrimonial home and she was compelled to go to her house at Kasargod. In regard to the appropriation of Rs. 2 lakh and gold ornaments, it is contended that the respondent without the consent of the petitioner appropriated Rs. 2 lakh and the gold ornaments on different occasions for his personal use. In the objection filed, the respondent denied the receipt of the amount as well as gold ornaments. To prove the aforesaid contention, petitioner was examined as RW1 and reliance is placed to the evidence of RW3 who is a family friend of the first petitioner’s father. He had stated that Rs. 2 lakh was given to the respondent on the eve of marriage and he accompanied the first petitioner’s father to the residence of the respondent. He also identified the wedding photos which were marked as Ext.B35 series. According to the respondent, he admitted that she was having some gold ornaments. When RW1 was cross examined, a suggestion was made to her stating that the gold ornaments were pledged in the State Bank of India, Alappuzha branch and it was later sold by the Bank and the first petitioner has received the balance amount. According to the appellant, there is no evidence to prove the said suggestion. The Family Court found that RW3’s evidence could be accepted, he being a natural witness. His evidence coupled with the evidence of RW1 would prove the fact of payment of Rs. 2 lakh on 20.9.1987. In regard to the gold ornaments also, the respondent denied the entrustment of gold ornaments. Family Court therefore found that there is justification in directing payment of Rs. 2 lakh as well and Family Court therefore granted a decree for recovering the value of gold ornaments and also Rs. 2 lakh based on the evidence adduced in the case. On a reading of the evidence of RW1 and RW3, the same is convincing enough to arrive at a conclusion that there was appropriation of money and gold by the respondent.
15. Respondent/husband has filed an appeal against the aforesaid judgment as Mat. Appeal No. 77/2010. Learned Counsel contended that there is no evidence to support the direction to pay Rs. 2 lakh and for recovery of value of gold ornaments. He also challenged the direction to pay past and future maintenance. But as already indicated, when the Family Court had correctly appreciated the evidence available on record, and directed refund of payment of Rs. 2 lakh and the value of gold ornaments along with past and future maintenance, in the absence of any perversity in the said finding, we do not think that a different view could be taken and therefore, we sustain the decree which directs payment of Rs. 2 lakh as well as value of gold ornaments. Mat. Appeal 77/2010 is therefore liable to be dismissed.
16. Mat. Appeal 833/2009 has been filed by the respondent/wife in OP No. 5/2005 challenging the decree of divorce. It is her contention that the allegations raised against her were totally unsustainable and the Family Court committed serious error of law in decreeing the said petition. The main contention urged by the petitioner/husband is that since April, 1996, respondent wife is residing separately with her children and she has deserted him for a continuous period of two years leaving the petitioner. He also alleges cruelty by the wife and hence he is entitled for dissolution of marriage under Section 10(ix) and (x) of the Divorce Act. His evidence consists of his own statement as PW1. According to him, after desertion, in April, 1996, on 1.12.1999, the respondent and her brothers came to his house. He was manhandled and was expelled. The respondent on the other hand contended that petitioner is a habitual drunkard and on several occasions she was kept out of the house along with the children and entry was denied. Further, respondent had a contention that the petitioner was having an illicit relationship with one Mary Jacquilin who is examined as RW2. Exts.B4 to B24 letters were proved through her. She admitted to have sent such letters during her cross-examination. Those were letters written by the petitioner to her when they were in love. The Family Court observed that there is no convincing evidence to prove that the respondent had deserted the petitioner. However, it is found that since April, 1996, there has been no cohabitation between the spouses and they were living separately. Though a case of desertion was not made out, the Family Court further proceeded to observe that the relationship between the parties have been irretrievably broken. Several attempts were made to bring them together and therefore, it is only just and fair to declare the marriage between the parties dissolved. The contention is that the Court below was not justified in granting a decree for divorce on account of irretrievable break down of the marriage in so far as it is not a ground for divorce under the Divorce Act.
17. On the other hand, learned Counsel for the respondent submits that the parties had been living separately since April, 1996. More than 20 years had lapsed which clearly amounts to an instance of irretrievable breakdown of marriage and therefore, this is a fit case in which the judgment of the Family Court requires to be confirmed. Learned Counsel also submits that irretrievable breakdown of marriage can also be considered as a ground for divorce in exceptional circumstances though there is no statutory provision enabling the same.
18. There is no doubt about the proposition that Section 10 of the Divorce Act does not contemplate a divorce on the ground of irretrievable break down of marriage. The contention urged by the petitioner is that his wife had deserted him since April 1996 and at the time of filing the petition, desertion was for a period of more than two years. The Family Court on the available evidence had arrived at a finding that the respondent had not deserted the petitioner whereas he was trying to avoid the respondent and their children. On a reappreciation of the evidence adduced in the case, especially that of PW1, RW1 and RW2, we do not think that a different view could be taken. There is material to indicate that the petitioner was having a relationship with RW2 as borne out by Exts.B4 to B24 letters. Therefore, there is justification on the part of the respondent in contending that she was thrown out from the matrimonial home or there was reasonable excuse for her to keep away from her matrimonial home. When there is justifiable cause for the wife to remain away from the matrimonial home, a case of desertion cannot be found in favour of the petitioner/husband.
19. Learned Counsel for the appellant placed reliance on the following judgments in support of his contention:
(i)
Vishnu Dutt Sharma v. Manju Sharma, I (2009) DMC 515 (SC)=II (2009) SLT 382=(2009) 6 SCC 379. In the above case arising under the Hindu Marriage Act, 1955, it is held that divorce can be granted only on the grounds mentioned under Section 13. Irretrievable breakdown of marriage is not a ground for divorce as provided by the Legislature and the Supreme Court cannot add such a ground to Section 13 of the Act which would amount to amending the Act which is the function of the legislature.
(ii)
In Anil Kumar Jain v. Maya Jain, II (2009) DMC 449 (SC)=VIII (2009) SLT 204=III (2009) CLT 317 (SC)=(2009) 10 SCC 415, it is held that in several cases, Supreme Court has invoked its extra-ordinary powers under Article 142 of the Constitution of India in order to provide complete justice to the parties when faced with a situation, where the marriage ties have completely broken, and there was no possibility whatsoever of the spouses coming back together again. It is further held that although irretrievable break-down of marriage is not one of the grounds indicated either under Section 13 or Section 13B for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. While observing that under Article 142, Supreme Court can grant relief to parties without even waiting for the statutory period of six months stipulated in Section 13B of the Act, it was held that none of the other Courts can exercise such powers and the doctrine of irretrievable break down of marriage is not available even to other High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142.
20. On the other hand, learned Counsel appearing for the respondent placed reliance upon a judgment in Naveen Kohli v. Neelu Kohli, I (2006) DMC 489 (SC)=128 (2006) DLT 360 (SC)=III (2006) SLT 43=II (2006) CLT 100 (SC)=(2006) 4 SCC 558, to contend that when parties are living separately for a sufficient length of time, and one of them bring a petition for divorce decree, it has to be presumed that the marriage has broken down irretrievably and it will be against the interest of both the parties as well as the interest of the society to refuse to grant decree of divorce in such cases. This was a case in which the Family Court ordered dissolution of marriage between the parties. On appeal to the High Court, the decree was set aside. Special leave petition was filed challenging the said decision of the High Court. The allegation in the case was that the couple got married on 20.11.1975. They have three sons and they were living together. However, the wife was bad tempered and she was a woman of rude behaviour. Ultimately, the appellant was compelled to leave the parental house and started residing in a rented premises. He alleged that he noticed that the respondent was indulging in an indecent manner and was found in a compromising position with another person. Immediately he started living separately since May, 1994. He alleged that he has suffered instances of physical and mental torture. Other allegations were also made. From the factual circumstances involved, the Apex Court considered whether the acts alleged by the appellant amounts to cruelty. Ultimately, it is held at paragraphs 83 to 89 and 91 as under:
“83. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.
84. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.
85. Undoubtedly, it is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.
86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.
87. The High Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties.
88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.
89. In our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties.”
“91. Before we part with this case, on consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps.”
21. The learned Counsel for respondent also placed reliance on judgment in K. Srinivas Rao v. D.A. Deepa, I (2013) DMC 458 (SC)=II (2013) SLT 338=(2013) 5 SCC 226. This was a case in which the Apex Court considered as to what amounts to cruelty. It is contended that in addition to a ground taken for desertion, petitioner has also alleged cruelty against the wife which was not considered by the Family Court.
22. In the petition for divorce, he has specifically stated that the respondent along with the children deserted the petitioner in April, 1996 and left to her father’s residence and though he made sincere efforts to bring her back, on account of the adamant attitude, no compromise could be worked out. Further he had also alleged cruelty by stating that while he was residing in his house at Kalakettuparambu Veedu at Thakazhy, on 1st October, 1999, counter petitioner along with her brothers with certain anti-social elements trespassed upon the said residence and physically manhandled the petitioner and expelled him from the house. This incident according to him amounts to mental and physical cruelty to which the respondent is responsible. In the objection filed by the respondent, it is stated that she was driven out of the house in the year 1996. On 11.5.1996, she along with the children had gone back but he refused to accept them. In fact, he prevented them from entering the house. She made a complaint to the Sub-Inspector of Police and thereafter he permitted her to enter the house. On the very same day, he started beating her. She along with the respondent and children were made to stand outside the house during that night. The next day, the respondent’s brother took her and children to her home. In March, 1998, the plaintiff filed a habeas corpus petition before the High Court seeking custody of the children. The said petition was dismissed observing that the children are in the custody of the mother. In November 1999, he sought for police protection against the defendant and her brothers. On 1.10.1999, respondent and her three children returned to the petitioner’s residence. It is alleged that in the meantime, respondent had started an illicit relationship with another lady Mary Jaquilin. She further states that they have filed indigent OP No. 49/1999 seeking for recovery of arrears of maintenance which was later numbered as OS No. 56/01 and thereafter as OP No. 523/2006.
23. But it is to be noted that the petitioner was residing in his home upto 1.10.1999 and even according to the respondent, on 1.10.1999, the respondent and her three children returned to the petitioner’s residence. When she noticed that he was having relationship with another lady and when the respondent questioned the same, petitioner along with the said lady left the residence and began to reside with the said lady. But it could be noticed that in the petition, petitioner had made a specific allegation that while he was residing in his house at Kalakettuparambu in Thakazhy on 1.10.1999, the counter petitioner and her brothers along with certain anti-social elements trespassed upon the said residence of the petitioner and physically manhandled the petitioner and expelled him from his house. The fact that he was physically manhandled on 1.10.1999 at his residence is not disputed by the respondent whereas according to her, he along with the children had returned to the petitioner’s residence and she found that the respondent was having relationship with another lady and when questioned, she left the place with the lady. But when a specific instance of cruelty of manhandling is alleged and it is not denied, it is deemed to be admitted. A person suffering manhandling from the wife’s brothers as a result of which he is forced to leave his own house clearly amounts to a case of physical and mental cruelty. The respondent did not attempt to take legal proceedings for entering the building which is her matrimonial home or shared house, but had forcefully entered the building after throwing him out from his residence. This action of the respondent amounts to cruelty and therefore there is justification on the part of the learned Counsel for appellant to contend that the Family Court did not consider the allegation of cruelty at all. PW1 in his chief affidavit has stated about the incident that happened on 1.12.1999. But it appears to be a mistake in the date. The respondent also admits to have entered into the building on 1.10.1999. During cross-examination, the petitioner was asked whether his wife and children were residing in his house since 1.10.1999, his answer was that it was from 1.12.1999. No questions were put regarding the discrepancy in the date as seen from the petition. Therefore, it has to be found that the incident had occurred on 1.12.1999 and not on 1.10.1999. The fact remains that there is no cross-examination in regard to the fact of manhandling by the respondent’s brother and his friends. In the said circumstance, the contention of the petitioner that he was manhandled on 1.12.1999 stands proved and the Family Court was not justified in not considering the allegation of cruelty. In the said circumstance, we are of the view that though not on the ground of desertion or irretrievable breakdown of marriage, the Family Court ought to have granted divorce on the ground of cruelty. Under such circumstances, we do not think it necessary to interfere with the judgment other than coming to a conclusion that the divorce can be granted on the ground of cruelty by the respondent and not on the ground of irretrievable break-down of marriage.
24. Mat. Appeal No. 834/2009 has been filed by the respondent in OP No. 947/2005. The original petition is filed by the husband seeking for a declaration that plaint schedule items 1 and 2 have been acquired by him in his name as per two separate gift deeds and a partition deed. He contended that the respondent wife along with certain anti-social elements trespassed into the property on 1.12.1999 and had taken the same to their possession. He also sought for recovery of possession of the scheduled properties. The respondent in the counter affidavit contended that the suit was not maintainable since the petitioner had filed an earlier suit as OS No. 409/2000 which was dismissed for default on 25.7.2002. The Family Court found that OS No. 409/2000 was only a suit for injunction to restrain the respondents from interfering with the right of the petitioner which shall not preclude the petitioner from filing a petition for recovery of tile and possession. However, the Family Court observed that until their claim for maintenance is satisfied, the respondent has every right to be in occupation of the house and since the title was clear, the declaration was granted. It is further made clear that the right of the petitioner would be subject to charge in favour of children. Claim for maintenance is upheld, which has also been decreed in the case. Under such circumstances, we do not think it necessary for us to interfere with the said judgment as admittedly petitioner has title in respect of the property and he is entitled for recovery of possession subject to the restrictions imposed by the Family Court. Mat. Appeal No. 834/2009 is therefore liable to be dismissed.
Mat. Appeal Nos. 833/2009, 834/2009 and 77/2010 are dismissed. Mat. Appeal No. 832/2009 is partly allowed directing the respondent father to pay maintenance for the girl children until their marriage or until they are capable of maintaining themselves, whichever is earlier.
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