Kerala High Court
B.Vijayan Nair vs S.Thankamani Amma on 30 September, 2015
Author: Shaji P. Chaly
Bench: C.K.Abdul Rehim, Shaji P.Chaly
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR.JUSTICE SHAJI P.CHALY
MONDAY,THE 25TH DAY OF JANUARY 2016/5TH MAGHA, 1937
Mat. Appeal No. 1112 of 2015 ()
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AGAINST THE JUDGMENT AND DECREE IN O.P. NO. 1813/2013 of FAMILY COURT,
ATTINGAL DATED 30.09.2015.
APPELLANT(S):
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B.VIJAYAN NAIR, AGED 55 YEARS,
HINDU-NAIR, EX-SERVICE MAN,
S/O BALAN PILLAI OF PIRIYATHU VEEDU, KAROOR,
POTHENCODE P.O.,
THIRUVANANTHAPURAM TALUK AND DISTRICT.
BY SRI. B.VIJAYAN NAIR [PARTY IN PERSON]
RESPONDENT(S):
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S.THANKAMANI AMMA, AGED 51 YEARS,
HINDU NAIR, HOUSE WIFE, RESIDING AT VIDHYA BHAVAN,
VAVARAMBALAM, POTHENCODE P.O., FROM MARANGATTU VEEDU,
PATTATHINKARA, THONNAKKAL P.O.,
THIRUVANANTHAPURAM TALUK AND DISTRICT.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2016, THE
COURT ON 25.01.2016 DELIVERED THE FOLLOWING:
P.T.O.
C.R.
C.K. ABDUL REHIM
&
SHAJI P. CHALY, JJ.
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Mat. Appeal No.1112 of 2015
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Dated this the 25th day of January, 2016
JUDGMENT
Shaji P. Chaly, J.
This appeal is preferred by the petitioner against the judgment of the Family Court, Attingal in O.P.No.1813 of 2013 dated 30.09.2015, whereby the Family Court has dismissed the petition filed by the appellant seeking dissolution of marriage under Sec.13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. The Original Petition was initially filed before the Family Court, Thiruvananthapuram as O.P.No.1302 of 2012, later transferred to the Family Court, Attingal and re- numbered. Earlier, the Family Court had dismissed the petition filed by the appellant as per its judgment dated 31.10.2013, which was subjected to appeal before this Court in Mat. Appeal No.482 of 2014 and, by judgment dated 28.05.2015 it was remitted back to the Family Court for fresh disposal after providing sufficient opportunity to the parties to adduce evidence.
Mat. Appeal No.1112 of 2015 2
2. The facts required for the disposal of this Appeal are as follows:
3. The appellant and 1st respondent are husband and wife and they got married as per the custom and rituals prevailing in Hindu religion and Nair caste, at "Sree Panimoola Bhagavathy Temple", Pothencode on 23.10.1987. In the marital wedlock, a daughter and son were born during October, 2004 and April, 2009 respectively. The appellant was in the service of the Defence Department, Government of India as Clerk (Control) in the Civil Wing of Indian Army and retired from service on 31.07.1994.
4. It is the case of the appellant that he has looked after and maintained his wife and children with utmost love and responsibility, giving them maximum care and protection with special care and interest on the education of his children. While the appellant was in service, he had taken his wife and children along with him in all his places of avocation and they resided together and thereupon he extended maximum care and protection to the respondent and children. It is also the case of the appellant that, the appellant and the respondent led a happy marital life along with the children born in the Mat. Appeal No.1112 of 2015 3 wedlock.
5. It is the contention of the appellant that, after retirement from service, his income was reduced and at the same time the family expenses like food, clothing, education of children etc. have multiplied. Therefore, the appellant was compelled to strive hard to get both ends met, and apart from the temporary job he obtained in the Army Welfare Department as special Clerk of Amalgamated Funds, he started a small business also at his native place, in order to tide over the financial situations. But, unfortunately, the Respondent could not adjust with the income of the appellant. The Respondent had failed to give support to the appellant in his fervent endeavours to secure more money for the well-being of the family. Respondent was in the habit of misusing money and also was in the habit of spending money lavishly, which has affected the family budget. Respondent also wanted to share all family secrets with outsiders, so as to ridicule the appellant. Respondent started to disobey the appellant and also opted her own choices beyond the limits of family restraints. In short, the Respondent has cheated the appellant in all respects. The acts, approaches and attitude of the Mat. Appeal No.1112 of 2015 4 Respondent as a whole has put the appellant in severe mental stress and agony. Since the appellant was very much anxious about future of the children and also worried about a way out to complete the education of the children, he has shown a blind eye towards the wrong doings of the Respondent and tried his level best to pull on.
6. It is the further contention of the appellant that, because of the Respondent's misdeeds and misappropriation of money, the business of the appellant collapsed and thereby a source of income was also lost. The appellant was relieved from the temporary job also and he had to depend upon his pension alone. Respondent's cruel behaviour and defamatory comments were to such an extent that the appellant could not continue under the same roof with the Respondent and finally the Respondent openly expressed her decision to desert the appellant. Since the appellant alone could not look after the routine affairs of the children, especially that of the daughter, the appellant has finally decided to suffer. Thus, on 27.04.2009, he went out of the house constructed by him in his own property. Actually the appellant was driven out from his own house by the Respondent by exerting cruelty on him. Mat. Appeal No.1112 of 2015 5 Thereafter, the appellant is wandering on various places without food and shelter. It was also the contention of the appellant that, even at the time of filing of the Original Petition the Respondent was continuing insult and humiliation to the appellant through her acts and deeds. In the circumstances, the appellant felt that continuation of the marital bond with the Respondent is detrimental to both sides and the appellant is fed up with the cruelty and desertion and harassment and humiliation inflicted by the Respondent. It is thus contending so, the appellant has approached the Family Court, seeking dissolution of the marriage.
7. Even though the Respondent entered appearance in the proceedings before the Family Court, she did not care to file any objection or written statement. The appellant had adduced evidence as PW1. The Respondent was examined as RW1. After evaluating the facts and circumstances, the Family Court by its judgment, dated 31.10.2013 declined dissolution of marriage. But at the same time, ordering judicial separation. Aggrieved by the same the appellant himself had approached this Court by filing Mat. Appeal No.482 of 2013, and after evaluating the facts and circumstances, this Court Mat. Appeal No.1112 of 2015 6 has found that the Family Court had not shown sufficient reasons to enter into the finding with regard to the judicial separation ordered. It was also found that the Family Court had not evaluated the nature of the contentions made by the rival parties and it was in that background the judgment of the Family Court was set aside and the same was remitted for fresh consideration.
8. After remand, the Respondent has filed objection to the Original Petition refuting the allegations and also contending that she is prepared to rejoin the appellant to continue the matrimonial bond on condition that the appellant undergoes treatment for his mental disorder. In the counter affidavit, the Respondent has also stated in detail the circumstances which led to the appellant leaving the matrimonial home. It is also contended in the written statement that the Respondent has taken enough and more efforts to bring back the appellant to the matrimonial home and to reside together along with the Respondent and the children. It is also alleged that the appellant has not cared to attend the wedding of the daughter, in spite of earnest efforts of the Respondent. Apart from all these, the Respondent has Mat. Appeal No.1112 of 2015 7 contended that she has undergone severe mental stress due to the illegal activities of the appellant. In spite of all these, it is stated by the Respondent that, she is prepared to accept the appellant on the appellant undergoing treatment for his mental disorder.
9. The appellant has also filed a reply to the written statement and stated several things, including attributing illicit relationship for the Respondent, which led to the matrimonial discord and therefore the appellant contended that he is entitled for dissolution of marriage as sought for in the Original Petition.
10. Appellant was examined as PW1 and Ext.C1 Psychological Assessment report relating to the appellant is marked as Ext.C1, during cross-examination. Respondent adduced evidence as RW1 and three points were raised for consideration which are as follows:
"1) Is it proved that respondent treated the petitioner with cruelty?
2) Is it proved that respondent deserted the petitioner as prayed for?
3) Whether the petitioner is entitled to get a decree of divorce on the ground of cruelty or on the ground of desertion under Sec. 13(ia) and 13(ib) of the Mat. Appeal No.1112 of 2015 8 Hindu Marriage Act?"
11. The Family Court, after evaluating the pleadings and the evidence tendered by the parties has entered into a finding that the contentions and allegations raised in the Original Petition were not sufficient enough to constitute the ground of cruelty and desertion alleged by the appellant, so as to dissolve the marriage by and between the parties. It was also found by the Family Court that as per the deposition of PW1 in the cross-examination, the appellant maintained only a shallow relationship with his family members. That apart, it was found by the Family Court that his depositions before the court has no bearing at all to the pleadings in the Original Petition. The Family Court has extracted the nature of evidence tendered by the appellant in his deposition. In the deposition the appellant states that, the Respondent joined hand with certain political parties and extremist organizations to isolate the appellant and to destroy his employment, wealth, reputation and the family life. It was the result of a conspiracy. By the time he discovered the conspiracy, everything was lost. It was also deposed by him that he was separated from his children, and SIMI, PFI and SDPI Welfare Party and other communal Mat. Appeal No.1112 of 2015 9 organizations were in the conspiracy. It was further deposed that even the Kerala faction of a national party joined with the backward community front and spearheaded their attack against him and even international terrorist or extremist organizations were involved. It was also deposed that there were various attempts to kill him and he was not allowed to live in peace even in lodges. It was also deposed by the appellant that even though the Respondent had no part in the atrocities committed outside the house, the same persons were used by the Respondent to injure the appellant at home. To a pinpointed question in the cross-examination as to why the said aspects were not raised in the pleadings, the appellant has answered that the Respondent had conveyed to him that if he files an application seeking dissolution of the marriage, the same will not be opposed by the Respondent. It was under
such circumstances, the appellant had not pleaded those aspects in the Original Petition.
12. The Family Court, after assimilating the situations and law involved in the subject matter, has arrived at a finding that the Respondent has not deserted the appellant and the appellant has left the matrimonial home on his own volition Mat. Appeal No.1112 of 2015 10 and therefore it was held that appellant is not entitled to get dissolution of the marriage on the ground of cruelty and desertion.
13. Heard; the appellant in person and evaluated the evidence tendered by the rival parties and perused the pleadings and the documents.
14. The pleadings in the Original Petition reveals that there are no circumstances stated in the Original Petition so as to constitute matrimonial cruelty to order dissolution of marriage between the appellant and the Respondent. We have narrated above the pleadings of the appellant in the Original Petition. But, deviating from the averments in the Original Petition, the appellant has attributed wild allegations against the Respondent for which he has not tendered any evidence to substantiate. Moreover, those allegations are made in the proof affidavit without any pleading and therefore the same cannot be taken into account while appreciating evidence of the appellant. Further, the Respondent has deposed that the appellant has left the matrimonial home without much reasons and he has done so due to the mental illness suffered by him. It was also deposed by the Respondent that if the appellant is Mat. Appeal No.1112 of 2015 11 prepared to undergo treatment for the mental disorder, the Respondent is prepared to accept him and to continue the matrimonial life with him. With this evidence in the background, we cannot find fault with the findings of the Family Court and the conclusions arrived at by it in refusing to dissolve the marriage between the appellant and the Respondent.
15. But, going by the deposition of the appellant in the proof affidavit and in the cross-examination, we have strong doubts in our mind as to whether the appellant was participating in the proceedings being able to understand the nature of proceedings he was prosecuting. The kind of statements made in the deposition by the appellant which we have narrated above would go to indicate that the appellant was not capable of understanding the true nature of the proceedings that took place before the Family Court. The said doubt expressed by us is very well substantiated by the finding of the Family Court that the appellant was referred for counselling by Clinical Psychologist of the General Hospital, Thiruvananthapuram, who has filed Ext.C1 report. The report reads that the mental stage examination of the appellant Mat. Appeal No.1112 of 2015 12 reveals that he is suffering from severe Psycho Pathology and strong delusions were presented. The Clinical Psychologist has recommended that the appellant should undergo medical treatment. When the question with regard to the said aspect was put to the appellant in cross-examination, the appellant has stated that he do not know anything about such a report and he has not appeared before any doctor in order to undergo any test. While arguing the case before us in person, the appellant has repeated the said aspect, which thus means that the appellant did not even understand the nature of examination he was put to on the basis of the orders of the Family Court. In that view of the matter, we are immediately reminded of the provisions contained under Order XXXII of the Code of Civil Procedure, wherein the manner in which the proceedings in Court have to be carried on under such circumstance is prescribed. Rule 15 of Order XXXII in that background reads as follows:
"R.15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind.-- Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be Mat. Appeal No.1112 of 2015 13 incapable, by reason of any mental infirmity, of protecting their interests when suing or being sued."
16. On a reading of the said rule, it can be seen that Rules 1 to 14 apply not only to persons adjudged before or during pendency of the suit to be of unsound mind, but shall also apply to persons who have not so adjudged are found by the Court on enquiry to be incapable, by reason of any mental infirmity of protecting their interests when suing or being sued. Therefore, the Court in which a proceeding is going on is duty bound to see whether the parties to the litigation are suffering from any sort of incapacity contemplated under Rule 15 of Order XXXII of C.P.C., and if the Court has any reasonable apprehension that any party to the litigation is incapable of understanding the proceedings that is taking place before the Court, and by that incapacity he is unable to conduct the proceedings in a manner contemplated under law, then the Court is bound to follow the provisions of law contained under Order XXXII. The requirement contained under Order XXXII is a mandatory requirement to see that every litigant, irrespective of his mental or physical status, is not denied justice.
Mat. Appeal No.1112 of 2015 14
17. In our view, the signalling feature of Order XXXII C.P.C is nothing but upholding the principles of natural justice in its absolute form. The litigant participating in a legal proceeding is entitled as of right to protect his interest by understanding the implications of law and facts. The Legislature has incorporated the provisions of Order XXXII C.P.C with the avowed and noble object of ensuring that no litigant is deprived of his right to institute and conduct proceedings in a court of law by observing the principles of natural justice. It is not sufficient that a litigant is heard by the court but should be heard by ensuring that the litigant has the capacity to understand and capable of protecting his interest. It is with this object in mind that the Legislature has contemplated an enquiry under Rule 15 of Order XXXII C.P.C., which can even be done suo-motu. Even though Sections 10 and 20 of the Family Courts Act have the appearance of overriding effect of the provisions of the Code of Civil Procedure, it is not so, so far as Order XXXII is concerned, for the reasons that the said provisions are not only not inconsistent with any of the provisions of the Family Courts Act but is also a mandatory requirement in compliance with the Mat. Appeal No.1112 of 2015 15 principles of natural justice.
18. When the facts and circumstances in the case at hand is taken into account, it can be seen that specific allegations are made by the Respondent with respect to the mental status of the appellant. Therefore, the Court while considering the case was duty bound to keep a vigil in order to find out whether the allegations raised by the Respondent against the appellant had any truth. The Family Court had also extracted the nature of evidence tendered by the appellant in cross-examination and the deposition so made are leaving suspicion in our mind that the same are not reasonable answers expected from a man with normal behaviour and attitude. Moreover, even the appellant went to the extent of stating that he did not undergo any clinical examination before a Clinical Psychologist. When Ext.C1 report was put against him in cross-examination, the appellant pleaded ignorance about it, which is also a factor indicative of creating a doubt in our mind that the appellant was not capable of understanding the proceedings and thereby protect his interest in the proceedings before the Family Court. In our view, the provisions contained under Order XXXII is very explicit, clear Mat. Appeal No.1112 of 2015 16 and vivid as to the nature of steps that are to be taken by the Court in a case where any party to the litigation is incapable of understanding the proceedings before it. Even though the Family Court has taken note of these aspects, it has overlooked the mandatory requirement of law to conduct an enquiry in order to continue the proceedings by taking suitable steps as provided under Order XXXII of C.P.C. This is a manifest and jurisdictional error committed by the Family Court.
19. For the foregoing reasons, we are of the considered opinion that, without complying with the procedure contemplated under Order XXXII, C.P.C., the evaluation done by the Family Court based on the evidence let in by the parties to the litigation, cannot be said to be a fair and lawful procedure adopted. Therefore, we can only reach the irresistible conclusion that the judgment of the Family Court is not in accordance with law and therefore the same is liable to be set aside, accordingly we do so.
In the circumstances, we remand the matter to the Family Court for fresh consideration. The Family Court is directed to conduct an enquiry as to whether, the appellant Mat. Appeal No.1112 of 2015 17 herein requires the support of a guardian in order to continue the proceedings before it. Such a decision shall be taken within a period of two months from the date of receipt of a copy of this judgment, after issuing notice to the parties. The Original Petition shall be disposed of within a further period of two months thereafter. However, the said directions contained above will not stand in the way of the Family Court taking any steps for amicably settling the matter. The Registry is directed to send back the records forthwith.
Sd/-
C.K. ABDUL REHIM JUDGE Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
25.01.2016