Kerala High Court
Preman @ Premachandra Varma vs Ambikadevi on 22 October, 2018
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY ,THE 22ND DAY OF OCTOBER 2018 / 30TH ASWINA, 1940
Mat.Appeal.No. 391 of 2007
AGAINST THE ORDER IN OP 603/2006 of FAMILY COURT, MALAPPURAM DATED
04-05-2007
APPELLANT/PETITIONER:
PREMAN @ PREMACHANDRA VARMA
S/O.UDHAYAVARMA RAJA, AGED 46 YEARS,, KOVILAKAM, EAST
GATE, VAIKOM P.O.,KOTTAYAM DISTRICT.
BY ADV. SMT.GIRIJA K GOPAL
RESPONDENT/RESPONDENT:
AMBIKADEVI, AGED 36 YEARS,
D/O.LATE KERALU PULLIYATHIRI, VALIYA AKATHUTTU
KOVILAKAM, VAIRANKODE P.O., TIRUR, MALAPPURAM, REP.
BY HER MOTHER & GUARDIAN SAROJINI PULIYATHIRI,
W/O.LATE KERALA PULIYATHIRI, VALIYA AKATHOOT,
KOVILAKAM, THIRUNAVAYA, VYRANKODE (P.O) TIRUR,
MALAPPURAM.
BY ADV. SRI.C.M.MOHAMMED IQUABAL
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
22.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal No.391/07 :2 :
JUDGMENT
Shaffique, J.
This appeal has been filed challenging the order passed by the Family Court, Malappuram in OP No.603/2006. The Original Petition has been filed by the appellant for divorce on the ground of cruelty and desertion and that the wife was suffering from mental disorder of such a kind that he is unable to live with her.
2. The parties got married on 3/5/2002. A son was born in the wedlock. The allegation raised by the petitioner is that immediately after marriage, it was noticed that she was not behaving properly and she was taking some medicines. When he made enquiries, he was informed that she was having head ache and therefore she was taking medicines. But later, it was noticed that she was suffering from mental disorder and though he had taken her to a Doctor and given some treatment, she was incapable of controlling herself on account of her disease. She delivered a male child and thereafter she was taken by her relatives to her parental home. After having left the matrimonial home in the year 2003, she did not come back. According to him, the aforesaid factual situation amounts to cruelty, desertion and also unsoundness of mind of the wife as a result of which he is not in a position to live with her.
3. The respondent denied the allegations. According to her, she was treated with cruelty by her husband's parents and he was only a Mat.Appeal No.391/07 :3 : puppet in their hands. After delivery, she was taken to her parental home and thereafter he had not cared to maintain her and she was not taken back to her matrimonial home.
4. Before the Family Court, oral testimony was adduced by the petitioner as well as the respondent. Respondent relied upon Exts.A1 to A5.
5. Family Court found that the case set up by the husband for divorce has not been proved. It is found that there was no evidence to show that the wife was suffering from any mental disorder whereas her attitude clearly indicates that she was a sane person and there was no abnormality in her behavior. The allegation of desertion was negatived on a finding that when she made a demand for restitution of conjugal rights by issuing a notice, Ext.A1, husband had sent a reply inter alia stating that she can be taken back only after her disease of mental disorder is cured. In the said circumstances, Family Court found that the ground of desertion cannot be sustained. As far as the allegation of cruelty is concerned, it is found that there was no evidence to prove either physical or mental cruelty.
6. Learned counsel for the appellant however argued that there is enough evidence to indicate that she was suffering from mental disorder. Reference is made to a report obtained by this Court through Dr.A.Prakash Chandran, who was a Consultant Psychologist and Mat.Appeal No.391/07 :4 : Counsellor.
7. It is apparent from the records that this Court had by an order dated 1/12/2007 asked the parties to appear before the aforesaid Dr.Prakash Chandran. The idea was to find out whether any treatment is required and whether the parties could be counselled to continue the marital relationship. Doctor in his report dated 17/12/2007 stated that the parties were admitted for three days for observation. Doctor opined that it was necessary to have a detailed evaluation and counselling and also psychiatric treatment for both the parties and the parties agreed to have a subsequent evaluation and treatment as well. By a report dated 10/1/2008, this Court was informed that though the appellant consulted the Doctor and expressed his willingness for treatment and counselling, the respondent did not consult him. By another report dated 17/3/2008, it was observed that without the co-operation of the respondent, further reports cannot be given. Doctor further reported: "when she called me over phone, I informed her about the need of consultation. But she expressed her misconception about counselling and psychological evaluation". It was also reported that the respondent is not co-operating and therefore the Doctor felt that it is very difficult to solve the marital disharmony. Yet another report has been sent to this Court on 21/5/2008 wherein it is stated that the appellant had agreed to take care of his wife and child and she agreed to stay with him in Vaikom. The last of such Mat.Appeal No.391/07 :5 : report is dated 21/8/2008, wherein it is reported as under:-
"As per the direction of the Court both parties consulted me and before the Honourable Court I had submitted my report on 17.12.2007. Ambikadevi and Premachandran were admitted in the hospital for two weeks for observation and treatment. In the hospital, even though Ambika co-operated for the treatment, she informed that she will not co-operate after her discharge from the hospital. Her behaviour towards the family was also hostile.
One of her relatives contacted me over phone when they were in the hospital and he also explained that it is very difficult to make Ambika understand about the situation. Even though she was advised to consult us and continue medication for better result but she did not consult us yet. In these circumstances, we are not in a position to continue her treatment.
Request the Honourable Court to look into this matter."
8. The aforesaid being the state of affairs, the main contention urged by the learned counsel for the appellant is that she was suffering from some sort of mental disorder and though the appellant tried to treat her, it was in vain. That apart, it is submitted that she in her evidence had categorically stated that she is not ready to go and live with him in the matrimonial home. On the other hand, learned counsel for the respondent while supporting the order of the Family Court submitted that the whole intention of the appellant/petitioner is only to get divorce one way or other and false and frivolous allegations have been raised against her. He had not cared to maintain his wife and child and had not even shown any attempt to take them back to the matrimonial home. Mat.Appeal No.391/07 :6 :
9. After hearing the learned counsel on either side, we are of the view that parties had been remaining separated for the last 15 years. There is allegation and counter allegation regarding cruelty. One of the main reason stated in the petition is that even before marriage, she was suffering from some sort of mental disorder which became worse during the matrimonial life. She used to quarrel with his parents and was creating a situation by which the family life could not be proceeded further and he had to take her to a Doctor for treatment. The subsequent events would show that her mental disorder has not been fully treated and she is still suffering from mental disorder. That apart, she has expressed herself by not making herself available before the Doctor deputed by this Court and she did not attend further follow-ups. That apart, the matrimonial life has become irretrievably broken and there is no chance for reunion. It is also the case of appellant that sufficient opportunity was not given to adduce medical evidence to prove the contentions of the appellant.
10. The appellant had only examined himself as RW1 to prove the alleged mental disorder. No medical evidence was forthcoming. If he had actually taken her to a Doctor, such evidence ought to have been adduced by him. We find from the records that this Court had also thought it fit to send the parties to a Psychiatrist for evaluation. During evaluation, the respondent at one stage kept out of further evaluations. It Mat.Appeal No.391/07 :7 : is also in evidence that respondent had a contention that she would come back to the matrimonial home only if the appellant takes another house and they could reside together.
11. Taking into consideration all these factual aspects, we are of the view that the matter requires some more evidence especially in the light of the fact that certain reports had been submitted before this Court by a Psychologist after consulting the parties to the lis.
In the result, this Mat.Appeal is allowed as under:-
(i) The judgment in OP No.603/2006 is hereby set aside and the matter is remitted back to the Family Court, which is presently Family Court, Tirur for fresh disposal to consider the question afresh.
(ii) Parties shall appear before the Family Court, Tirur on 19/11/2018.
(iii) Family Court shall give an opportunity to the parties to adduce evidence and shall take all endeavours to dispose of the matter within a period of six months from the date of appearance of the parties.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
P.SOMARAJAN
Rp //True Copy// JUDGE
PS to Judge