BALAKRISHNAN Vs. SUMITHRA

JUDGEMENT

(1.) THIS Matrimonial Appeal is directed against the order dismissing original petition No. 426 of 2004 on the files of the Family Court, Manjery. The appellant is the petitioner and the respondent is the respondent in the above original petition. The above original petition was filed by the appellant herein, praying for an order granting a decree of divorce as provided in Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to for short as 'the Act' only). (The parties are referred to as in the original petition.) The averments in the O.P. can be recapitulated as follows: -

(2.) THE marriage between the petitioner and the respondent took place on 4.11.1997 and two children were born in the said wedlock. During the period of second pregnancy, on 4.8.2000, the respondent left the matrimonial house and went to her parental home. Thereafter, she refused to live with the company of the petitioner, in spite of repeated requests made by the petitioner and ultimately, he was constrained to file original petition No. 344 of 2001 before the Family Court, Manjeri seeking an order granting a decree for restitution of conjugal right. But, later the matter was settled between the parties and as per the terms of the settlement, the respondent along with the children started to reside with the petitioner. Even though she resumed cohabitation with the petitioner at the matrimonial house, she continued to harass the petitioner physically as well as mentally. She used to complain about the lack of facilities in the petitioner's residence and wanted to shift the residence. She refused to look after his mother. Once she assaulted the petitioner and he was injured and when he was admitted in the hospital, she refused to serve food to the petitioner and wash his cloths. When she gets angry, she used to throw whatever house hold article, which is being kept in the house. Thus, the matrimonial relationship between the petitioner and the respondent was totally strained. When the respondent's father came to know about the strained relationship between the petitioner and respondent, he came and took her away to the paternal house and a few days later, a quarters on rent was obtained and she started to reside there from 1.5.2004 along with her father and children. Due to physical and mental stress, to which the petitioner was put, he could not do any kind of job and he fell into debt. Thus, the petitioner decided to sell his house and property and the petitioner's own brother, when came to know his intention to sell the property and building thereon, he purchased the same to help the petitioner financially. The respondent when came to know about this, trespassed into the house along with the children and her father on 20.9.2004 and thereafter, they have been residing in the house, which was sold away to his brother. The marriage between the petitioner and the respondent has been broken irretrievably. Hence, he filed the above petition praying for dissolution of marriage on the ground of cruelty.

(3.) THE petitioner was examined as P.W. 1; but no documentary evidence had been produced. On the other hand, the respondent was examined as R.W. 1 and the certified copy of the petition in O.S. No. 15 of 2005 issued from the Munsiff Court, Parappanangadi was marked as Ext. B1. After appreciating the evidence on record, the learned Family Court Judge dismissed the petition on a finding that the petitioner himself failed to prove the allegation of cruelty meted out to him by the respondent. The legality, propriety and correctness of the findings whereby the court below dismissed the original petition are under challenge in this Matrimonial Appeal.