Court: Kerela High Court
Bench: JUSTICE A.M. Shaffique, J. & Anu Sivaraman
Vijayalakshmi Vs. Vinod Nair On 4 July 2017
Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Conduct of appellant-wife is indicative of mental cruelty — During subsistence of valid marriage between parties, respondent-husband suffered major accident — He was admitted to hospital and undergone major surgeries — Respondent-husband alleged to be assaulted by respondent’s brother and brother-in-law and wife made no attempt to intervene — PW2, father of respondent supported this testimony as a witness to assault — Conduct of appellant-wife as brought out in evidence is clearly indicative of mental cruelty of such a nature which would enable respondent-husband to seek dissolution of marriage under Section 13(1)(ia) of HM Act.
JUDGEMENT
This appeal is preferred by the respondent wife against the judgment dated 23.11.2012 of the Family Court, Muvattupuzha in O.P. No. 206 of 2012. The original petition had been preferred by the respondent herein under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
2. The case in the original petition was that the parties were married on 28.8.2005 at Manthrakkal Temple, Kummanodu in accordance with the customary rites of the Hindu Nair community. The petitioner was working as Constable in the BSF and the respondent was a Post Graduate in Commerce. They lived together at the husband’s parental house after the marriage and the wife was of adamant nature and created problems in the marital life. The spouses thereafter proceeded to Jalandhar, where the husband was posted. When he was transferred to Rajasthan in February, 2006, the wife was brought back to his parental house. It is alleged that on 20.8.2006, she quarrelled with his parents and left the matrimonial home taking all her belongings. It is further stated that the respondent husband came on leave for ten days on 1.10.2006, but the appellant did not join him at his parental house. But they stayed in hotels at Trivandrum and Munnar. He again came on leave on 28.12.2006 and due to her reluctance to stay at his house, they had to stay at a tourist home at Mavelikkara. Thereafter the appellant came on leave for 45 days on 20.4.2007 and they underwent counselling with a psychologist at Aluva. The respondent contended that he had taken his wife along with him to Rajasthan on 13.10.2007 and she conceived in January 2008. She was brought back home and gave birth to a baby girl on 20.10.2008. It is alleged that the respondent husband met with a major road accident at Rajasthan on 3.1.2009 and suffered grievous injury. After undergoing prolonged treatment at the Military Hospital, he was brought home on a stretcher on 3.7.2009 and was admitted to the Medical Trust Hospital, Ernakulam on 7.7.2009. He underwent major surgeries on 18.8.2009, but the respondent did not care to visit him or look after him during the stay in the hospital. After being discharged from the hospital, the respondent had gone to the appellant’s house on 27.9.2009 to see his child, but her father and brother quarelled with him and assaulted him and he sustained a refracture to his hand and had to undergo a major surgery on 29.9.2009 and thereafter, on 2.10.2009, 7.10.2009 and 4.11.2009 and he was discharged on 14.11.2009. The respondent did not visit him during the said period also. It was alleged that her conduct amounted to cruelty and desertion.
3. Written objections were filed by the appellant wife contending that the difference of opinion between the parties had arisen only due to the interference of the respondent’s mother and that the allegations of cruelty and desertion as also refusal to live in his parental house were all false. It is stated that on 30.8.2009, the respondent had attacked her with his crutches and she sustained a fracture on her left hand. She alleged cruelty against the husband and his family members. PW1 and PW2 were examined and Exhibits A1 to A7 were marked by the respondent husband. The wife examined herself as RW1 and a relative of the husband was examined as RW2. Considering the extensive treatment records produced by the husband as well as the oral testimony adduced, the Family Court came to the conclusion that the appellant had treated the respondent with mental cruelty. The marriage was therefore dissolved as sought for.
4. Heard learned Counsel for the appellant and the learned Counsel appearing for the respondent.
5. The learned Counsel for the appellant would submit that the conclusion arrived at by the Court below that the respondent husband had proved cruelty of such a nature which would enable him to obtain dissolution of marriage was totally unwarranted in the nature of the evidence adduced in the case. It is stated that the evidence adduced would show that the appellant herself had been subjected to physical assaults by the respondent leading to a fracture of her arm and this aspect had been totally lost sight of the Family Court. It is further argued that the contentions raised by the appellant that she had been looking after the respondent even when he was hospitalised and that she had not been present in the hospital at all times only due to the fact that she had a baby child to look after and that the respondent had refused to allow her to take leave were also not considered by the Family Court. It is therefore contended that the judgment and decree of the Family Court is unsustainable.
6. The learned Counsel appearing for the respondent would, on the other hand, contend that the Family Court had clearly taken note of the fact that the respondent husband had undergone grievous injury and had been subjected to several surgeries in the Medical Trust Hospital, Ernakulam. His treatment records and discharge summery were produced in evidence. The attendance register of the appellant wife at the College where she was working was also produced and duly marked in evidence. It is contended that it was taking note of the documentary evidence available in the case that the Family Court had come to the conclusion that the appellant had clearly refused to care for or attend to any of the needs of the husband at the time when he was undergoing treatment in the hospital. The oral evidence of PW1 and PW2 has been relied upon in support of the pleading regarding assault by the petitioner’s father and brother on him immediately after he was discharged from the hospital on 27.9.2009. The medical records showed that he had suffered a refracture and that another major surgery had to be undergone on 29.9.2009. It is submitted that the evidence on record clearly shows that the appellant had acted with cruelty towards the husband.
7. We have considered the contentions in the light of the pleadings and materials on record. The oral and documentary evidence adduced in this case, including the medical records, clearly substantiate the contention of the respondent husband that he had been treated with cruelty by the wife. It is during the subsistence of a valid marriage between the parties that the respondent husband admittedly suffered a major accident. He had been admitted to the Medical Trust Hospital, Ernakulam on 7.7.2009 and had undergone several surgeries. Exhibit A5 attendance register of the College where the respondent was working had been produced and marked in support of the contention that she was regularly attending College on all the days of hospitalisation. Apart from giving reasons for her absence from his side during the relevant time, the appellant wife has no serious contention that she had looked after her husband in the hospital or at home. The husband, as PW1, had given evidence that he had been physically assaulted by the respondent’s brother and brother-in-law on 27.9.2009 and that the respondent, who was present at the time, had made no attempt to intervene. PW2, the father of the appellant, had also supported this testimony as a witness to the assault on 27.9.2009. The said assault led to a refracture and further complications, it is stated in the testimony. In view of these statements, we are of the opinion that the conduct of the appellant as brought out in evidence is clearly indicative of mental cruelty of such a nature which would enable the respondent to seek a dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955. We are therefore in agreement with the findings of the Family Court that the petitioner has substantiated his allegations of cruelty and would therefore be entitled to a decree of dissolution of marriage.
In the result, the appeal fails and the same is dismissed.
No order as to costs.
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