Binu Kumar v. A. Anusree

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941** **Mat.Appeal.No.828 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OP 1302/2013 DATED 15-05-2018 OF FAMILY COURT, TRIVANDRUM** ## **APPELLANT/RESPONDENT:** **BINU KUMAR, AGED 38 YEARS, S/O. EASWARAN POTTY, KUMBIKODE MADOM, MALAMEL, EDAMULAKKAL PANCHAYATH, KOTTARKKARA.** **BY ADV. SRI.MVS.NAMBOOTHIRY** ## **RESPONDENT/PETITIONER:** **A. ANUSREE, AGED 32 YEARS, D/O. NARAYANAN POTTY, PUTHALATHU MADHAM, MADHAVA PILLA LANE, CHERUVAKKAL VILLAGE, SREEKARIAM P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.T.M.CHANDRAN (CAVEATOR) SRI.P.R.NEELAKANTAN NAMBOODIRI (CAVEATOR)** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26-06-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal.No.828 OF 2018 2 ## **JUDGMENT** ## **Harilal, J** The appellant is the husband of the respondent. The respondent filed O.P.No.1302/2013 under Section 13 (1)(i)(a) of the Hindu Marriage Act before the Family Court, Thiruvananthapuram seeking a decree for the dissolution of marriage between the appellant and respondent on the ground of cruelty. The respondent resisted the prayer for dissolution of marriage and after considering the evidence adduced by both parties, the family court passed the impugned judgment and decree dissolving the marriage between the appellant and respondent. The legality and correctness of the findings, whereby the family court passed the impugned judgment Mat.Appeal.No.828 OF 2018 3 and decree the are dissolving marriage, challenged in this appeal. 2. The brief facts of the case can be summarized as follows: The marriage between the appellant and the respondent was solemnized on 02.02.2012. At the time of marriage the appellant was working in Japan. Before the marriage, the appellant promised that the respondent would be taken to Japan, where he is working, after the marriage. The appellant and the respondent lived together till 11.02.2012 and the appellant went to Japan on 11.02.2012. On 14.02.2012, the respondent went to Delhi where the parents of the appellant were residing. The respondent was given 60 sovereigns of gold ornaments at the time of marriage, and the said gold ornaments were Mat.Appeal.No.828 OF 2018 4 taken away by the parents of the appellant saying that it would not be safe, if the respondent keeps the gold ornaments in her custody. After one month, the parents of the appellant persuaded the petitioner to demand Rs.5,00,000/- as pocket money from her parents or to get a house in Thiruvananthapuram city. When the respondent intimated the appellant that his parents demanded Rs.5,00,000/- or a house at Thiruvananthapuram, the appellant replied that the respondent has to obey the demand of his parents. The parents of the appellant treated the respondent with cruelty and she was not allowed to communicate with the appellant freely and independently. She was allowed to contact with the appellant in the presence of the parents of Mat.Appeal.No.828 OF 2018 5 the appellant only. She was not allowed to contact anybody other than the parents of the appellant. Eventually they started to manhandle her and assaulted her. They treated her as a servant only. The parents of the appellant took her mobile and did not allow her to call anybody. She was not allowed to contact with her parents also. Thus the respondent lived along with the parents of the appellant for two months only; but they tortured her mentally and physically. Even though the respondent repeatedly made complaints alleging cruelty from the part of the parents of the appellant to the appellant, he did not respond to her grievance and eventually he stopped all kinds of communications to her through electronic media. At last her father came Mat.Appeal.No.828 OF 2018 6 to Delhi and she went along with her father to her house. On 13.04.2014 she went to her house after taking her necessary dresses, one chain, two bangles and one pair of ear-stud only. On the above premises the respondent prayed for dissolution of marriage on the ground of cruelty under Section 13(1)(i)(a) of the Act. 3. The appellant resisted the claim for dissolution of marriage. According to the averments in the written statement, the facts pleaded in the original petition are absolutely false and unfounded. He denied the allegation that he himself and his parents treated the respondent with cruelty. He admitted the marriage, which was held on 02.02.2012. It is also admitted that he lived along with the respondent for nine days Mat.Appeal.No.828 OF 2018 7 only, from 02.02.2012 t0 11.02.2012 and thereafter he went to Japan, the place where he was working and thereafter, the respondent lived with his parents, in their flat at Delhi till 13.04.2012. But, according to him, during the said period his parents never treated the respondent with cruelty. They were living in a harmonious relationship with mutual love and affection. The parents of the appellant did not interfere with the marital life of the appellant and the respondent. The respondent was a toy in the hands of her parents. As per the instructions and demand of her parents, she left to the house of his parents at Delhi on her own volition. He denied the allegation that his parents were entrusted with 64 sovereigns of gold ornaments and they have Mat.Appeal.No.828 OF 2018 8 not returned the same to her. He denied the allegation that his parents have prevented her from contacting him by all means. According to him, it is false to say that the respondent was not provided with food, kept her in darkness; on the other hand, she had full freedom. He denied the allegation that his parents had demanded Rs.5,00,000/- as pocket money and persuaded her to get land and building in Thiruvananthapuram from her parents as gift to her. He used to contact her through telephone, e-mail and skype and continued till March 2013. He prayed for dismissing the original petition. 4. On the aforesaid rival pleadings, both parties adduced evidence, which consists of the oral evidence of PW1 and documentary evidence Mat.Appeal.No.828 OF 2018 9 Exts.A1 to A5 from the part of the respondent and the oral evidence of CPW1 to CPW3 and Exts.B1 to B4 from the part of the appellant. After considering the aforesaid evidence, the family court passed the impugned decree and judgment, dissolving the marriage on a finding that the respondent has succeeded to prove the act of cruelty from the part of the appellant and his parents. 5. Heard the learned counsel for the appellant/respondent and the learned counsel appearing for the respondent/petitioner. 6. The learned counsel appearing for the appellant advanced arguments challenging the findings, whereby the family court granted a decree for dissolving the marriage, on the ground of cruelty Mat.Appeal.No.828 OF 2018 10 and mainly contended that the appellant and respondent lived together for nine days only after the marriage and thereafter the appellant left to Japan to resume his employment abroad. Therefore, there was no occasion to treat the respondent with cruelty as alleged in the petition. has no or Since the respondent complaint grievance against the appellant alleging any kind of ill-treatment or misbehaviour or misconduct, during the said period of nine days when they lived together, no kind of cruelty can be attributed against the appellant, so as to get a decree dissolving the marriage on the ground of cruelty, according to the learned counsel for the appellant. It is also contended that cohabitation of the spouses under the same roof is essentially Mat.Appeal.No.828 OF 2018 **==> picture [11 x 6] intentionally omitted <==** required to constitute an act of cruelty, either physical or mental, as envisaged under Section 13 (1)(i)(a) of the Act. Further, the learned counsel for the appellant focused to the point that no kind of cruelty can be alleged against the husband, who is living abroad, except for nine days immediately after the marriage, during the entire span of matrimony. Thus there is no sufficient evidence to prove the cruelty as envisaged under Section 13(1)(i)(a) of the Act from the part of the appellant towards the respondent. 7. On the other hand, the learned counsel for the respondent submits that cruelty can be inferred even in the absence of cohabitation under the same roof, as the husband who is working abroad also can cause mental agony and pain in the mind Mat.Appeal.No.828 OF 2018 12 of the wife, who is living along with his parents in the matrimonial home. In order to substantiate the aforesaid contention, he has drawn our attention to Ext.B4 print out of g-mail produced by the appellant and contended that the communication between the respondent and the appellant evidenced by Ext.B4 is more than sufficient to arrive at a finding that he has caused mental cruelty. The mental agony, pain, depression, frustration and loneliness caused by the behaviour from the part of the appellant is apparently manifested in B4 communication. According to the learned counsel, cohabitation under the same roof during the period of matrimony is not essentially required to constitute mental cruelty as envisaged under Mat.Appeal.No.828 OF 2018 13 ## Section 13(1)(i)(a) of the Act. 8. The admitted facts can be summarised as follows: The marriage between the respondent and the appellant was solemnized on 02.12.2012. Both the respondent and the appellant are engineers by profession. At the time of marriage, the appellant was working in Japan. On 11.02.2012, after nine days from the date of marriage, he left to Japan, leaving the respondent along with her parents in her house at Thiruvananthapuram. On 14.02.2012 the respondent along with her parents and the parents of the appellant left to Delhi, where the were parents of the appellant permanently settled. Thus, the respondent started to live along with the parents of the appellant from 16.02.2012. She lived along with the parents of Mat.Appeal.No.828 OF 2018 **==> picture [11 x 6] intentionally omitted <==** the appellant in their flat at Delhi and she returned from the company of the parents of the appellant on 13.04.2012. Thereafter the original petition was filed on 23.08.2013, seeking a decree for dissolution of the marriage. 9. It is the specific case of the respondent that during this period of hardly two months, between 16.02.2012 and 13.04.2012 the parents of the appellant treated her with cruelty in a way causing mental agony, pain, depression, frustration in her mind and when it became intolerable she left from Delhi on 13.04.2012. Though the appellant was living abroad, he caused mental agony, depression, pain and frustration to her by his dead silence, irresponsibility and state of inertia to her Mat.Appeal.No.828 OF 2018 15 grievance . 10. When the parents of the appellant treated her with cruelty, the respondent informed the appellant then and there by e-mail, skype, etc. But, he did not respond to her complaint or grievance and gradually he was found reluctant to communicate with her. Eventually the appellant has cut his contact with her by blocking the skype, not taking telephone calls and not responding to her e-mails. In short, the appellant deliberately remained in silence towards the grievance and complaints of his wife. 11. In order to prove the aforesaid facts, the respondent was examined as PW1. She has testified in tune with the aforesaid averments in the original petition. She was cross examined at Mat.Appeal.No.828 OF 2018 16 length. After evaluating, weighing and testing the oral evidence with the standard of preponderance of probability, the family court reposed confidence in the oral testimony of PW1. The family court specifically observed that nothing has been brought out in cross examination of PW1 to make her oral unbelievable or testimony unreliable. We have meticulously read the oral testimony of PW1 and we also find that she stood by her oral assertions in chief examination, during the course of cross examination. Nothing has been brought out to discredit her oral testimony. 12. Ext.B4 copy of the e-mail sent by the appellant to the respondent is the crucial as well as the decisive evidence, from which we can read the mind of the respondent. Ext.B4 reads the mind of Mat.Appeal.No.828 OF 2018 17 the respondent from 14.03.2012 to 04.03.2013 thus: - ➢ remember the between Hope you days engagement and marriage over skype. Now skype contacts blocked. I do not understand your behaving like this to me, when I believe you completely. Hope you remember. - ➢ More than a marriage you wanted a servant to your home at Delhi to serve your parents need. Your father was telling that he will give a six months training and only then he will sent me to you. - ➢ To talk me when you feel like and then keeping quite for months. What was your intention behind this marriage – a free servant for your Mat.Appeal.No.828 OF 2018 18 parents needs. Ever enquired if I am dead or alive? - ➢ You are not responding to our e-mails. Is it that you will respond only to your brother and father. ➢ You did not pick my calls or my parents call. I blindly believed your words and your parents words. Now understand what is true and what is not true. Remember running away is not an answer. Cowards do that. If anything happens to me only you and your family will be responsible. Tried to calling you and old number I had, going to voice mail. Please call me back or share a number I can reach you. - ➢ Do you have probes or issues to respond my Mat.Appeal.No.828 OF 2018 19 calls. I want you update your daily routine by mails. Sorry to ask but that is the only way to make you work. If you think it is not necessary and then no probes at all carry on with your dread world. - ➢ Need to talk to you, when can we talk. - ➢ Even I did not understand what and where exactly is the problem. - ➢ Don't understand you are not even willing to talk? - ➢ No expectation about response in this regard. 13. We have meticulously read out the aforesaid e-mails sent by the respondent to the appellant. We are of the opinion that the wounded mind of the respondent can be read out from these Mat.Appeal.No.828 OF 2018 20 letters. These letters were sent before taking a decision to go for divorce. Even in the last letter dated 04.03.2013, she had an expectation that the matrimonial relationship can be resumed again. But, he blocked the skype, did not take telephone calls and did not respond to e-mails. In short, he remained in silence towards the grievance and complaint of his wife. 14. In the above context the question to be considered is : ➢ whether the mere silence for a long time from the part of the husband, who is working abroad towards the wife, who is residing along with the in-laws, would amount to cruelty envisaged as a ground for dissolution of marriage. - ➢ Whether any positive overt act, by physical Mat.Appeal.No.828 OF 2018 **==> picture [11 x 6] intentionally omitted <==** attack or by words, when the spouses living together under the same roof are essentially required to constitute matrimonial cruelty envisaged under the matrimonial laws. 14. In _**Samargosh v. Jayagosh**_ **2007 (4) SCC 511** the Supreme Court while dealing with the expression 'cruelty' envisaged as a ground for dissolution of marriage in various enactments held in **Para 79 &80** that “No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'”. Thereafter, the Supreme Court has given certain illustrations, though not exhaustive. As an illustration, the Supreme Court held that sustained reprehensible conduct studied Mat.Appeal.No.828 OF 2018 22 neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure also amount to mental cruelty. Mental cruelty is a state of mind. The feeling of deep frustration in one anguish, disappointment, spouse caused by the conduct of other spouse for a long time may lead to mental cruelty. 15. In the above view, we find that mental agony or any kind of reprehensible conduct causing injury to mental health would amount to cruelty and such reprehensible conduct would not be confined to physical attack or mental injury by spoken words by one of the spouses to the other spouse. We are of the opinion that sometimes long dead silence is eloquent and painful, as such Mat.Appeal.No.828 OF 2018 23 a behaviour of one of the spouses to the other is so abnormal and below the expected norms of matrimony and that the other spouse could not reasonably be expected to put up with it. Mutual conjugal concern and kindness are the expected norms of matrimony. So, the wilfull cessation of communication between spouses by one of them is more injurious and painful than speaking with harsh words, when the other spouse is reeling under mental pain and agony caused by the inlaws. Thus, physical attack or spoken words, while living together under the same roof is not an element essentially required to constitute matrimonial cruelty, invariably in all cases, and it can be caused by the long deliberate dead silence from the part of the husband, who is working Mat.Appeal.No.828 OF 2018 24 abroad, when his wife is suffering from ill treatment of the in-laws. 16. We have already found that the appellant remained in silence and pretended to be deaf and dumb when his wife was reeling under the misbehaviour from the part of his parents. He has no case that he was not aware of such a misbehaviour from the part of his parents. It is evident from Ext.B4 that his silence was a wilfull one amounting to cruelty. 17. The above view is supported by the admission from the part of the appellant, when he was examined in evidence as RW1. Admittedly, they lived together for nine days only and he left to Japan leaving his wife with his parents. When the behaviour from his parents became intolerable, Mat.Appeal.No.828 OF 2018 25 his wife left from their company and started to live along with her parents at Thiruvananthapuram. Thereafter she has sent several e-mails narrating her grievance and apprehensions in his mind. It is pertinent to note that in the year 2012 and 2013, he came to India and visited Delhi and Chennai in connection with his professional matters. But, he has not made any attempt to meet his wife by either visiting her at Thiruvananthapuram or calling her to Chennai or Delhi. He has not informed her about his visit. When he was cross examined on this point, he replied that Japanese will not mix family matters with professional matters. Therefore, Japanese culture will not permit to visit even parents. We are unable to accept the above version of the Mat.Appeal.No.828 OF 2018 26 appellant. The appellant should not have forgotten the fact that his wife is an Indian woman born and brought up in an orthodox brahmin family and he is liable to consider her feelings also. That apart, the above version is diametrically opposed to the Indian culture and family bondage. 18. We are of the opinion that the thirst for conjugal visits in the mind of the spouses is not only a matrimonial passion, but also a reasonable expectation and right that exist in both, in matrimony; more so, when one among them is living abroad. Therefore, the wilfull abstention of a spouse from such conjugal visits, in spite of recurring opportunities and total disregards to those opportunities available in hand, would Mat.Appeal.No.828 OF 2018 27 amount to denial of reasonable expectation and right of the other spouse, which would constitute cruelty falling under section 13(1)(i)(a) of the Hindu Marriage Act. 19. In the above perspective, we find that the wilfull abstention of the appellant, an NRI, from visiting or contacting his wife, with whom he cohabited for nine days only after the marriage, during the long span of two years, despite his presence in India twice would amount to cruelty falling under Section 13(1)(i)(a) of the Act. So also, Ext.B4 is corroborated by the admission from the part of the appellant in this respect. 20. In the above analysis, we find that the respondent has succeeded in proving that the appellant treated the respondent with mental Mat.Appeal.No.828 OF 2018 28 cruelty and thereby she is entitled to get the marriage dissolved. The family court has appreciated the evidence on record in its correct perspective and there is no reason to interfere with the findings of the family court, whereby the family court dissolved the marriage. This appeal is dismissed. Sd/- **K.HARILAL, JUDGE** sd/- **ANNIE JOHN, JUDGE** AMV/27/07/2019