PRASEENA Vs. GIRISH KUMAR

JUDGEMENT

(1.) This appeal is filed by the wife in a matrimonial relationship challenging the order passed by the Family Court, Kozhikode in O.P. No.845/2010 granting a decree for dissolution of marriage on the ground of cruelty and desertion. The Original Petition was filed under Section 13(1)(ia) and (ib) of the Hindu Marriage Act , 1955 seeking dissolution of marriage on grounds of cruelty and desertion by the husband of the appellant. For the sake of convenience, the parties will be referred to hereinafter as the petitioner and the respondent.

(2.) The marriage of the petitioner and the respondent was solemnized on 23.4.2004 at Palakkal Durga Devi Temple and since then they lived as husband and wife at the residence of the petitioner. A male child was also born in the wed lock. After one month of their marriage, the respondent went to her house and stayed there for a few days and thereafter she did not return. After repeated calls by the petitioner, she returned to the matrimonial home. But, she continued raising complaints openly about the inconveniences at the matrimonial home. She was also frequent in insulting and humiliating the petitioner in front of her parents. When she became pregnant, she went to her house to stay there and did not return thereafter. Eventhough the petitioner visited her house to take her back for medical consultation and treatment, she did not turn up. The respondent avoided the taking home for delivery ceremony despite her undertaking to attend. Though the petitioner went to the house of the respondent to take her for the ceremony, she did not turn up. When she was admitted in the hospital for delivery, the entire expenses were met by the petitioner himself. After the delivery, the petitioner went her house to see the child but, he was denied access. Though several months passed after the delivery, the respondent has taken a stand not to return to the matrimonial home. The request of the petitioner's parents to join the matrimonial home was turned down by her. The ceremony of feeding rice to the child was not informed to the petitioner. Though the petitioner was admitted at the ESI Hospital, for some ailments, despite the information transpired, the respondent did not visit him. After attending a mediation process, though she joined the petitioner in the matrimonial home with the child, it lasted only for a shortwhile and she returned to her house. After a few days, the respondent was admitted at Medical College Hospital and underwent an operation. The petitioner visited her on obtaining the information and see the requisites done for her. But, after getting discharged from the hospital on 03.11.2007, she returned to her own house and thus expressed her reluctance to join the petitioner. The petitioner is the only son of his parents and due to their old age and illness, he is constrained to attend his job regularly. The aged parents' wish to see the child and pamper him was also turned down by the respondent. On 14.10.2009 a registered lawyer notice was sent to the respondent, but she did not respond. On 15.12.2009, the father of the petitioner died and despite the information transpired in that regard, neither the respondent nor her relatives visited his house to attend the funeral. A criminal complaint was filed by her against the petitioner, his mother and sister alleging harassment by them and that caused their arrest by the Police. Only after the death ceremony of the father, the petitioner, his mother and sister were enlarged on bail in the case by Judicial First Class Magistrate Court, Parappanangadi. Respondent also filed MC before the Family Court, Malappuram claiming maintenance allowance. The MC was allowed and maintenance allowance is being paid regularly by the petitioner to the respondent. Since 3.11.2007 onwards, the respondent was living separately from the petitioner without performing her duties as a wife. In view of the cruel treatment meted out by the petitioner at the hands of the respondent and neglect and desertion without a valid reason, the petitioner was constrained to file the petition on hand seeking dissolution of marriage. For the reason that the parties were living separate without any attempt from either side to join in matrimony, the contention that the marriage was irretrievably broken was also taken in the original petition.

(3.) In the counter statement filed, the respondent denied the entire averments in the original petition. The marriage and the birth of the child were admitted. The contentions specifically taken were that during pregnancy, she was not looked after by the petitioner, that the in-laws did not visit her house to call her to accompany them for the conduct of the ceremony of taking home for delivery, that she was ill-treated for not having brought sufficient gold ornaments, that she was insisted to abort the pregnancy, that she was denied food by the in-laws, that her demand to take her to a hospital in times of pain and bleeding was not attended to by the in-laws, that even after the delivery, the petitioner neglected herself and the child for 1 1/2 years, that the entire expenses for her treatment and other needs were meted out by her own family members, that additional ornaments and cash worth Rs.1 lakh were demanded by the petitioner after the birth of the child, that the husband and the in-laws had never been affectionate to her and the child, that what they wanted was only money, that the neighbours who took her to the matrimonial home were insulted and humiliated for the reason that the gold ornaments given to her is insufficient, that the gold ornaments already given to the respondent were taken by the petitioner on various occasions, that she was denied permission to attend her mother during her illness, that her father was scolded at the hospital while she was undergoing treatment for tubular pregnancy, that evenafter getting discharged from the hospital, the petitioner was not willing to take her back to the matrimonial home, that the child was taken by the petitioner once and was not returned and the custody of the child was obtained by the respondent after mediation, that the lawyer notice was issued by the petitioner only to get himself escaped from the criminal liability and that following the filing of MC seeking maintenance, the petitioner reached the house of the respondent to talk, which resulted in a scuffle there and based on that a criminal case was registered at the instance of the respondent against the petitioner and his family members. It is also contended that the petition itself is not maintainable and the only intention of the petitioner behind the filing of the same is to hurt the respondent mentally and physically and to marry another woman after avoiding her. It is stated by the respondent that she is not willing for a divorce from the petitioner. Raising contentions as above, the original petition is sought to be dismissed.