Krupa K. Nair v. P.B. Binukumar (Mat.Appeal Nos. 386 & 400 of 2012)

Mat.A Nos.386 & 400/2012 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942** **Mat.Appeal.No.386 OF 2012** **AGAINST THE JUDGMENT IN OP 1551/2010 DATED 16-02-2012 OF FAMILY COURT, KOTTAYAM** ## **APPELLANT/PETITIONER:** **KRUPA K.NAIR AGED 27 YEARS D/O.KRISHNANKUTTY NAIR, 27 YEARS OF OLD, RESIDING AT KIZHAKKEPARAMBIL, P.O.VAKATHANAM, VAKATHANAM VILLAGE, CHANGANASSERY TALUK, KOTTAYAM.** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI** ## **RESPONDENT/RESPONDENT:** **P.B. BINUKUMAR S/O.BALAN NAIR, 28 YEARS OLD, PUTHUPARAMBIL HOUSE, KOORALI KARA, ELANGULAM VILLAGE, KANHIRAPPALLY TALUK PRESENTLY RESIDING AT PUTHUPARAMBIL HOUSE, MADAPPALLY P.O., MADAPPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM, PIN-686546.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2021, ALONG WITH Mat.Appeal.400/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.A Nos.386 & 400/2012 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942** **Mat.Appeal.No.400 OF 2012** **AGAINST THE JUDGMENT IN OP 32/2011 DATED 16-02-2012 OF FAMILY COURT, KOTTAYAM** ## **APPELLANT/PETITIONER:** **KRUPA K.NAIR AGED 27 YEARS D/O KRISHNANKUTTAY NAIR, RESIDING AT KIZHAKKEPARAMBIL, P.O, VAKATHANAM, VAKATHANAM VILLAGE, CHANGANASSERY TALUK, KOTTAYAM** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI** ## **RESPONDENT/RESPONDENT:** **P.B.BINUKUMAR S/O BALAN NAIR, PUTHUPARAMBIL HOUSE, KOORALI KARA, ELANGULAM VILLAGE, KANHIRAPPALLY TALUK, PRESENTLY RESIDING AT PUTHUPARMABIL HOUSE, MADAPPALLY P.O, MADAPPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM 686546** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2021, ALONG WITH Mat.Appeal.386/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.A Nos.386 & 400/2012 3 ## **JUDGMENT** ## **Dated this the 5th day of February 2021** ## **C.S.Dias, J.** As these appeals arise out of a common judgment passed by the Family Court, Kottayam in O.P. Nos.1551/2010 and 32/2011 and the parties are the same, they are being disposed of by this common judgment. 2. Krupa K.Nair – the wife of P.B.Binu Kumar had filed O.P. 1551/2010 under Section 13 (1)(ia) of the Hindu Marriage Act, 1955, ( in short 'the Act') seeking a decree of divorce for dissolution of her marriage. P.B.Binu Kumar filed O.P.No.32/2011 under Section 9 of the Act, seeking a decree for restitution of conjugal rights. The Family Court by the impugned common judgment dismissed O.P. No.1551/2010 filed by Krupa K.Nair and allowed O.P. 32/2011 filed by P.B.Binu Kumar. Mat.A Nos.386 & 400/2012 4 3. Being aggrieved by the dismissal of O.P. No.1551/2010 and the allowing of O.P. No.32/2011, Krupa K.Nair is before this Court. For the sake of convenience, Krupa K.Nair is being referred to as 'petitioner' and P.B.Binukumar is being referred to as 'respondent' as per their status in O.P No.1551/2010. 4. The concise case of the petitioner in OP No.1551/2010 is as follows: The respondent is the husband of the petitioner. Their marriage was solemnised on 26.3.2005 at Sree Dharma Shasta Temple, Melampara, as per the Hindu religious rites and ceremonies. The petitioner was given 50 sovereigns of gold ornaments and Rs.2,00,000/- as patrimony. On the date of marriage itself, the respondent took custody of the petitioner's gold ornaments except for 4½ sovereigns. The respondent did not show any love or affection towards the petitioner. He was not a responsible Mat.A Nos.386 & 400/2012 5 husband and treated her with cruelty. She was only an instrument to satisfy his lust. He always harassed, humiliated and tortured the petitioner and found fault with her for anything and everything. On the date of marriage itself, the respondent beat her with a belt for mingling with her co-sister. The respondent was an alcoholic and used to spend all his money for his alcoholic traits. He misused and misappropriated the petitioner's gold ornaments and money for his vices. When the respondent became penniless, he demanded the petitioner to get more dowry from her parents. When she refused to adhere to the demand, the respondent manhandled her. Even during the period the petitioner was pregnant, the respondent did not show love or affection towards her. On any 9.7.2009, the petitioner gave birth to a female child. The respondent left the petitioner at her parental home alleging that there was no one to look after to Mat.A Nos.386 & 400/2012 6 the mother and child in their rented house. Thereafter, the respondent has neglected the mother and the child. The marriage between the couple is irretrievably broken. The petitioner is apprehensive of her life and limb, if she continues with the marriage. Hence the original petition. 5. The respondent filed a written objection, refuting the allegations in the original petition. It was his case that the petitioner and the respondent were in love from their school days. On 3.3.2005, the petitioner ran away with the respondent and they entered into a marriage agreement on the following day at the Sub Registrar's Office, Meenachil. Although the petitioner's parents filed a complaint before the Circle Inspector of Police, Erattupetta, alleging that the petitioner was abducted by the respondent, the petitioner's parents did not turn up to the Police Station. Subsequently, on 26.3.2005, their marriage was solemnised. One Mat.A Nos.386 & 400/2012 7 and half years after the marriage, the couple shifted to a rented premises. It was the respondent who took care of all the needs and necessities of the petitioner. Even after the delivery of the child, the parents of the petitioner did not turn up to see the mother and the child. The respondent was a loving husband and a caring father. The couple were leading a happy married life. However, the petitioner's parents were dead against the marriage right from the initial days and they always attempted to separate the couple. The petitioner was always having a suspicious eye on the respondent. She did not relish him talking to any other person. On 26.10.2010, while the respondent was at his workplace, the petitioner returned with the child to her natal home. The respondent filed a complaint before the Thrikkovilthanam Police Station. However, the petitioner was not prepared to resume cohabitation. She was always trying to Mat.A Nos.386 & 400/2012 8 avoid the respondent at the instigation of her parents. Though several attempts were made for a reconciliation between the couple, the the petitioner and her parents were adamant that the marital relationship should not be restored. The petitioner is liable to perform her marital obligations. She has withdrawn from the marital consortium of the respondent without any sufficient cause. Hence, the respondent prayed that the original petition be dismissed. 6. The respondent filed O.P. 32/2011 on the very same lines as in the pleadings in the written objection in O.P. No.1551/2010. The petitioner filed a written objection in O.P.32/2011 in tune with her case in O.P No.1551/2010. 7. The Family Court consolidated and jointly tried the original petitions. The petitioner and a witness were examined as PW1 and PW2 and Ext.A1 – marriage certificate was marked through the Mat.A Nos.386 & 400/2012 9 petitioner. The respondent and a witness were examined as RW1 and RW2 and Exts.B1 to B5 were marked through them. 8. The Family Court, after evaluating the pleadings and materials on record, by the impugned common judgment, dismissed O.P. No.1551/2010 and allowed O.P. No.32/2011 by granting a decree in favour of the respondent for restitution of conjugal rights and directed the petitioner to resume cohabitation with respondent within one month from the date of judgment. 9. Heard Sri.M.Gopikrishnan Nambiar, the learned counsel appearing for the appellant. Although notice was issued to the respondent, the same had returned with an endorsement that 'addressee not known'. Subsequently, the appellant effected notice on the respondent by substituted service - paper publication. 10. On 21.1.2021, this Court directed the 10 Mat.A Nos.386 & 400/2012 Legal Services Authority to ascertain the reason for the non-appearance of the respondent in the appeals. The District Legal Services Authority, Kottayam, conducted an enquiry through its para legal volunteers and through the Station House Officer of Thrikkovilthanam Police Station. However, it was reported that the respondent could not be found. In the said circumstances, we decided to dispose of the appeals on its merits. 11. The learned counsel appearing for the appellant vehementally argued that the Family Court has gone wrong in allowing O.P. No.32/2011 and dismissing O.P. No.1551/2010. It was submitted that the Family Court has given undue emphasis to the love affair between the parties and incidents prior to the solemnization of the marriage, which has no relevance for deciding the original petition and the cruelty that was meted out on the appellant. Similarly, the Family Court has placed heavy 11 Mat.A Nos.386 & 400/2012 reliance on Ext.B1 undated letter purportedly written by the appellant wherein she had stated that she loved the respondent. It was submitted that the Family Court ought to have considered the specific instances of cruelty that were meted out on the appellant by the respondent. Hence, the learned counsel prayed that the appeals be allowed and the decree for restitution of conjugal rights be set aside and a decree of divorce be granted in favour of the appellant. 12. The question that emerges for consideration in these appeals is whether the common judgment passed by the Family Court is correct or not? 13. The marriage and paternity of the child are not disputed. The appellant/petitioner had filed O.P. 1551/2010 seeking a decree of divorce to dissolve her marriage with the respondent on the ground that the respondent had treated her with Mat.A Nos.386 & 400/2012 12 cruelty. 14. In **Samar Ghosh** v **Jaya Ghosh** [(2007) 4 SCC 511], a three-Judge Bench of the Honourable Supreme Court has laid down exhaustive guidelines on the acts that constitute 'cruelty'. The ultimate conclusions are relevant, which reads as under: _“98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No Court in our considered view should even attempt to give a comprehensive definition of mental cruelty._ _99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system._ _100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc., etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice-versa._ Mat.A Nos.386 & 400/2012 13 _There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration._ _101. 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’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive —_ - _(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty._ - _(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party._ - _(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable._ - _(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty._ Mat.A Nos.386 & 400/2012 14 - _(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse._ - _(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty._ - _(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty._ - _(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty._ - _(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty._ - _(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty._ Mat.A Nos.386 & 400/2012 15 _x x x x x x x x x_ - _(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”_ 15. The specific instances of cruelty alleged by by the appellant in the original petition are: (i) The respondent misappropriated the petitioner's gold ornaments and Rs.2,00,000/- which was given as her share in her parental properties immediately after the marriage; (ii) The respondent did not show any love or affection towards the petitioner, but treated her with cruelty; (iii) The respondent saw the petitioner only as an instrument to satisfy his lust; (iv) On the date of marriage itself, the respondent beat the petitioner with his belt; Mat.A Nos.386 & 400/2012 16 (v) The respondent was an alcoholic; (vi) The respondent did not care for the petitioner even during her pregnancy and postdelivery; (vii) The respondent after the birth of the child, left the mother and child in the petitioner's natal home on 16.7.2009; and (viii)The couple are living separately since 16.7.2009. 16. In order to substantiate the pleadings in the original petition, the petitioner and a witness were examined as PW1 and PW2. The respondent and his brother were examined as RW1 and RW2. 17. We have re-appreciated the oral testimonies of the above witnesses. Although PW1 and PW2 were cross-examined at length, we do not find any clinching piece of evidence to discredit their oral testimonies. Mat.A Nos.386 & 400/2012 17 18. On an analysis of the findings in the impugned judgment, we find that the Family court has given undue emphasis to the love affair between the parties, which led to their marriage, which according to us, is totally irrelevant and immaterial. The allegations of cruelty levelled against the respondent are all after the marriage, which is the pivotal aspect. It is also seen that the Family Court has placed heavy reliance on the oral testimonies of RW1 and RW2 especially Ext.B3 complaint lodged by the respondent regarding the refusal of the petitioner to resume cohabitation with him. The fact remains that, the couple is living separately since 16.7.2009. 19. Another relevant aspect to be considered is that although the Family Court had allowed O.P.32/2011 passing a decree for restitution of conjugal rights, there has been no resumption of cohabitation even after the impugned decree. Mat.A Nos.386 & 400/2012 18 ## 20. Sec.13(1A) of the Hindu Marriage Act, 1955 reads thus: (1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground - (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. 21. After the amendment of Section 13 (1A) by Act 44 of 1964, the Parliament in its wisdom has used the term either party to the marriage can present a petition for dissolution of marriage by a decree of divorce, if there is no resumption of cohabitation between the parties even after the expiry of one year after passing of a decree for restitution of conjugal rights. 22. In the cases on hand, we find that although Mat.A Nos.386 & 400/2012 19 the decree for restitution of conjugal rights was passed as early as on 16.2.2012, there has been no cohabitation between the appellant and the respondent. The respondent has admittedly not attempted to execute the decree. It is discernible from the pleadings and materials on record that the couple have not lived together from the date of passing of the decree. Hence, after 16.2.2013, either party can move the Family Court for divorce on the no-fault ground provided under Section 13 (1A) (ii) of the Act. Taking into consideration the subsequent events that have occurred after the passing of the decree and also the fact that the petitioner has pleaded and proved that the respondent has treated her with cruelty falling within the para-meters in **Samar Ghosh** (supra) and that there has been no resumption of cohabitation after the passing of the impugned decree and that the respondent has not contested 20 Mat.A Nos.386 & 400/2012 these appeals, we are of the opinion that no useful purpose would be served in directing the parties to resume cohabitation after more than a decade of estrangement. 23. On an overall re-appreciation of the pleadings and materials on record, we are of the considered opinion that the marriage between the appellant and the respondent is shattered beyond redemption and has become a deadwood. The appellant has pleaded and proved specific instances of cruelty that was meted out on her by the respondent. In the above discussed legal and factual background, our inevitable conclusion is that the appellant is entitled for a decree of divorce. In the result, the Mat.Appeals are allowed as follows: (i) The judgments and decrees in O.P Nos. 1551/2010 and 32/2011 are set aside. Mat.A Nos.386 & 400/2012 21 (ii) O.P. No.1551/2010 is allowed and the marriage between the appellant and the respondent solemnised on 26.3.2005 is dissolved by a decree of divorce. (iii) O.P. No.32/2011 is dismissed. (iv) In the facts and circumstances of the case, the parties shall bear their respective costs. **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** **Sd/-** **C.S.DIAS JUDGE** ## **/True copy/** ma/09/02/2021