JOSE MATHEW, S/O. MATHEW Vs. BINDHU, D/O. JOSEPH, PARAMBIL HOUSE, MANKUVA
LAWS(KER)-2017-5-134
HIGH COURT OF KERALA
Decided on May 30,2017

Jose Mathew, S/O. Mathew Appellant
VERSUS
Bindhu, D/O. Joseph, Parambil House, Mankuva Respondents

JUDGEMENT

A.M.SHAFFIQUE,J. - (1.) The appeal is filed by the petitioner in OP (Div) No.302/2013 of the Family Court, Thodupuzha by which a petition for divorce under Section 10(1)(ix) and (x) of the Indian Divorce Act was dismissed.
(2.) Parties are referred to as shown in the original petition. The short facts arising in the case are as under:- The petitioner married the respondent as per Christian religious rites and ceremonies on 21/5/2007. A male child was born to them on 18/9/2009. Petitioner is an autorickshaw driver and the respondent is working as postmistress. Petitioner submits that on account of her employment, she was regularly staying at her paternal house and she used to come to the matrimonial home on all weekends. It is contended that after a few weeks of their marriage, her behaviour became strained and she was not behaving like an obedient wife. She was not in the habit of preparing food for any person and was interested in buying food from hotels. After delivery, she did not care to come back to the matrimonial home. Mediators intervened and advised her to come back. However, her father demanded that certain item of property belonging to the petitioner should be transferred in the name of the respondent. When such conditions have been imposed, the mediation did not fructify. Petitioner therefore filed OP No.124/10 for restitution of conjugal rights. The matter was settled between the parties and the couple started living together. Petitioner however contends that the character of the respondent did not change and therefore the marital life was not smooth. She would shout at the respondent without any reason and used obscene words whenever she got angry. She also quarrelled with the family members of the petitioner on silly reasons. She even started throwing household utensils and the same were damaged. Petitioner was also threatened that she will kill him. Petitioner found that she is a person of having some sort of mental ailment or personality disorder. She was not even looking after the child or cooked any food. She did not do any domestic work and even the life became difficult for the child. He was therefore physically and mentally upset and the petitioner has an apprehension that residing with her would be harmful and injurious. It is further alleged that on 26/8/2010, without his consent, she went away from the matrimonial home and she is living at her paternal house. Though the petitioner tried to contact his wife and child, the family members of the respondent did not permit him to contact her. Mediation also failed. It is alleged that on 26/8/2010, respondent deserted the petitioner and they are living separately. Further contention raised is that respondent had filed a complaint before the Judicial First Class Magistrate Court, Adimali which were later withdrawn. Petitioner filed OP(G and W) 418/2012 for custody of the minor child which was allowed ex parte. Hence, claiming divorce on the ground of cruelty and desertion, the original petition is filed.
(3.) Respondent filed counter affidavit inter alia denying the allegations raised against her. She contended that at the time of marriage, she had 27 sovereigns of gold ornaments. Except 5 sovereigns of gold ornaments, balance was appropriated by the petitioner for one or other reasons. It is further contended that the petitioner used to harass the respondent by demanding more dowry and she had been subjected to mental as well as physical torture. When she was pregnant and about to deliver a child, she went to her house and she gave birth to a child on 18/9/2009. None cared to provide any gold ornaments or other amounts to the child as per the conventional practice and the petitioner was ready to take the respondent and the child to his house. When such a request was made by the father of the respondent, he filed a petition for restitution of conjugal rights. On 7/7/2010, respondent appeared along with the child and expressed her willingness to go with the petitioner and accordingly she was taken to the matrimonial house. It was also alleged that petitioner had withdrawn an amount of Rs. 18,500/- from the account of the respondent . On receiving the amount, he agreed that he will ill-treat the petitioner in any manner and contrary to the same he started torturing the respondent and injury was caused to her eyebrow and he intimidated her. The matter was informed to the Thodupuzha Police Station. The Vanitha Police Cell had taken cognizance of the matter. It is further alleged that petitioner used to abuse the respondent and on 25/8/2010, she was brutally attacked and he also caused criminal intimidation. The respondent took shelter in a neighbouring house belonging to the elder brother of the petitioner. On 26/8/2010, as per the advice of the Counsellor of the Family Court, Thodupuzha, she set the law in motion. It is further contended that a case was chargesheeted before the Chief Judicial Magistrate Court, Thodupuzha under the Domestic Violence Act which is still pending. It is stated that after the complaint was filed, the petitioner has apologized that he will illtreat the respondent any more and requested to pardon him. With the said assurance, the matter pending before the Chief Judicial Magistrate Court, Thodupuzha and the Judicial First Class Magistrate Court, Adimali was settled.;


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