## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE**
**&**
**THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 28[TH] DAY OF JUNE 2021 / 7TH ASHADHA, 1943 MAT.APPEAL NO. 682 OF 2017 AGAINST THE JUDGMENT IN OP 280/2015 OF FAMILY COURT, THALASSERY, KANNUR**
## **APPELLANT/S:**
XXXXX BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.ARJUN RAGHAVAN SRI.ADITHYA RAJEEV SRI.T.R.HARIKUMAR
## **RESPONDENT/S:**
XXXXX BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22/6/2021, THIS COURT ON 28.06.2021 DELIVERED THE FOLLOWING:
A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.
========================= Mat. Appeal No.682/2017 ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28[th] day of June, 2021
## J U D G M E N T
## A.Muhamed Mustaque, J.
This appeal was filed assailing the judgment in O.P.No. 280/2015 filed by the appellant herein before the Family Court, Thalassery. The above original petition was filed by the appellant under Section 13(1) (ia) of Hindu Marriage Act, 1955 for the dissolution of marriage with the respondent. The Family Court dismissed the original petition.
2. The appellant is the husband and respondent is the wife. They married in accordance with the rites and customs of the Hindu community on 27/4/2014. The appellant at that time was 68 years and the respondent was 49 years old. It was second marriage for the appellant and first marriage for the respondent. The
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appellant's first wife died in the year 2003. In that wedlock he has a son who is an army officer. The appellant retired from the Indian Army as a Major. According to him, he married the respondent only to have a support in the evening of life for his care. The marriage ran into a rough weather from the initial phase of the married life itself. As seen from the pleadings and evidence, they lived together as husband and wife only for a period of three months. On 18/3/2015, the appellant sent a registered notice through his lawyer demanding respondent to agree for divorce by mutual consent. The appellant raised three major reasons for the strained relationship which are referred hereunder:
- I. Respondent forced the appellant to remove two photographs of his deceased wife kept in the apartment where they reside. According to the appellant, the son had kept these photographs in obeisance to his departed mother. The removal of those photographs at the instance of the respondent, according to the appellant, has caused mental agony to him
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as well as to his son.
II. The second reason set out in the notice is about sexual conduct of the respondent. According to the appellant, the sexual overdrive and hyper sexuality of the respondent ran amok leading to his physical and mental strain.
- III. The third main reason set out in the notice was casting aspersion on the appellant for having sexual relationship with their part-time maid servant.
Though there are many allegations set out in the notice, none of them were specific. Hence we are not referring to those aspects herein.
3. The above notice was responded through a reply notice by a lawyer. In the reply notice, the respondent denied all the allegations except one related to the sexual relationship with the part-time maid. In the respondent's lawyer notice, it was specifically stated that the appellant used to have oral sex with 'Zeenath', their maid servant in her
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presence, and on one occasion the appellant forcibly had oral sex with the respondent and captured the same in a nokia cell phone bearing No.9947222117. It is also specifically stated that one Vijayalakshmi, a family friend of the appellant had seen such pornographic snap of the respondent. The respondent also referred to certain instances of physical cruelty alleged to have been meted out to her by the appellant. Besides all these counter allegations, the respondent also mentioned in the reply that the appellant badly needs psychiatric/psychological treatment.
4. The evidence in this matter mainly consists of oral evidence of the appellant and the respondent. Apart from the lawyer notice of both sides, marriage certificate and medical prescriptions of the hospital treating the respondent were also produced. The family court on perusal of the pleadings and oral evidence came to a conclusion that the appellant failed to make out a case of divorce on the ground of cruelty. According to the family court, the ordinary wear and tear in the marital life cannot be treated as cruelty.
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5. We heard Senior Counsel Shri S.Sreekumar assisted by Shri Adithya Rajeev for the appellant. We also heard Smt.Jeena Joseph, learned counsel for the respondent.
6. Both husband and wife levelled allegations against each other in regard to their sexual behaviour. We have to remind ourselves that parties lived together only for three months. Any sort of understanding or misunderstanding on sexual misconduct cannot be snowballed into a ground for divorce. In any marriage, the parties may have likes and dislikes including their approach to sex. If the conduct as such is not grave enough to make one unbearable, such spouse cannot seek divorce alleging cruelty. Physical and mental conditions of the spouses may be different towards sex. It is only in a situation where the conduct of a spouse makes it impossible to the other spouse to live together that will become cruelty. Over the years, the approach of the Court in analysing the cruelty has undergone changes. Physical violence is not a prerequisite to constitute a ground for cruelty. Any sort of mental cruelty including one results from sexual behaviour may also amount to cruelty. Having adverted
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to the pleadings, evidence and findings, we find that the allegations in regard to sexual conduct and other behaviour of the parties have not constituted the ground of cruelty for any weighty consideration by us; except the accusation of the illicit relationship of the appellant with the part-time maid servant. Perhaps that requires a deeper consideration in this appeal.
7. In the lawyer notice preceded the original petition, the appellant stated about such accusation levelled by the respondent about the sexual relationship of the appellant with the part-time maid servant. There was no denial of the fact of accusation of illicit relationship of the appellant with the maid servant. In the reply notice itself, the respondent stated as follows:
“7. My client adds that subsequently when both of them shifted their residence to Oceanic, at Beach Road, Calicut, even in front of my client your client used to have oral sex with Zeenath the said maid servant. When questioned, your client has forcibly inserted his erected organ, which is highly infected too, in to the mouth of my client, against her will and taken the snap in his Nokia cell phone bearing No.9947222117, to be used for pornographic purpose and threatened my client that if she disclosed it to anybody, it will be used against her by spreading it in the internet. My client says that few months before your client's family friend Mrs. Vijayalakshmi, W/o.Rajendran, Kuttimakkool, Thalasserry has told my client that your client has shown the said pornographic snap to her, and several others,
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needless to say that which is punishable in law. My client says that she is having telephonic records to prove the indecent, illegal and immoral activities of your client which are offences punishable under provisions of I.T.Act.”
8. The appellant in the petition for divorce stated that the above attribution had cast aspersion on him. The respondent in the counter statement filed before the family court and in the evidence, reiterated the appellant's relationship with the part-time maid servant, namely, Zeenath. The appellant in his testimony had stated that this accusation has caused mental agony. The learned Senior Counsel for the appellant submitted that when serious aspersions have been made denigrating the character of a person in the absence of proof, that remains only imputations and therefore, such imputation will constitute cruelty. The learned counsel for the respondent submitted that the illicit relationship being a fact and one remaining steadfast in establishing the truth, that cannot be used to penalise her. The learned counsel further submitted that the respondent condoned such sexual conduct of the appellant for the sake of her life. It is further argued that merely for the reason she endured such misconduct, that should not result in
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throwing out her from wedlock for no fault of her.
9. In Samar Ghosh V. Jaya Ghosh [(2007) 4 SCC 511] at para.101, the apex court illustrated certain instances of human behaviour which constitute mental cruelty as guidance to be followed. Those guidelines would clearly show that any kind of accusation casting aspersions on the character of one's spouse may also amount to mental cruelty. The accusation by the respondent that the appellant is having sexual relationship with the maid servant remain unsubstantiated. If the accusations are not true, no doubt, such allegations would constitute a mental cruelty to the appellant. Alleging illicit relationship of the spouse will have serious repercussion in the married life. It is quite improbable, a wife would tolerate such illicit relation of her husband, especially alleged to have occurred in her presence. It is also quite strange that the respondent expressed her willingness to live with the appellant despite she finds that the appellant is having an extra marital relationship with the servant. Perhaps the character evidence would have been relevant in this case as against the appellant when the
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respondent specifically alleges that pornographic snaps involving her, as seen by one Vijayalakshmi, whose name was referred in the reply notice. If there is something on record to show the character of the husband as stated in the reply notice and counter, we would have been persuaded to believe that the accusations of the respondent that the husband is having illicit relationship with the maid servant have semblance of the truth. It may be true, adultery is difficult to be proved before a court of law. However, when there exist evidence to prove probablize the character of a person like the alleged pornographic snap of the respondent circulated through phone, non adducing of such evidence is fatal to the case of the respondent.
10. The Courts never had a fixed line to divide what acts constituted cruelty and what not. Many unjustified act itself may not constitute cruelty. In a society like ours, accusation of illicit relationship would have a serious repercussion and would remain a stigma on a person. The unsubstantiated allegations of adultery would certainly amount to cruelty. In Savitri Pandey v. Prem Chandra Pandey [(2002) 2 SCC 73] cruelty
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is referred as something which would cause reasonable apprehension in his or her mind as harmful or injurious to live with other party. Therefore, accusation of adultery of one spouse to other is certainly harmful for one to continue in that relationship. If that be so, we have no hesitation to hold that unsubstantiated allegations of adultery would amount to cruelty. Unfortunately, the family court failed to consider these aspects in the impugned judgment. We therefore, set aside the impugned judgment and allow this appeal. A decree of divorce is granted dissolving the marriage between the appellant and the respondent conducted on 27/4/2014. No order as to costs.
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## A.MUHAMED MUSTAQUE, JUDGE
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## DR.KAUSER EDAPPAGATH, JUDGE
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