Oshin James v. Tinto Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945** **MAT.APPEAL NO. 107 OF 2023** **AGAINST THE JUDGMENT DTD 24.11.2022 IN OP 187/2020 OF** **FAMILY COURT, KALPETTA** ## **APPELLANT/RESPONDENT:** **OSHIN JAMES AGED 30 YEARS D/O. JAMES MANGALAM HOUSE, KAPPAMKOLLY, MEPPADI P.O., MEPPADI VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT, PIN - 673595** **BY ADV CELINE JOSEPH** ## **RESPONDENT/PETITIONER:** **TINTO VARGHESE AGED 33 YEARS S/O. (LATE) VARGHESE KANNAMBARAMBIL HOUSE, SULTHAN BATHERY P.O., KUPPADI VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DIST., PIN - 673592** **BY ADV NIRMAL V NAIR** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 04.12.2023, THE COURT ON 11.12.2023 DELIVERED THE FOLLOWING:** 2 **Mat.Appeal No.107 of 2023** **AMIT RAWAL & C.S.SUDHA, JJ.** **----------------------------------------------------Mat.Appeal No.107 of 2023 ----------------------------------------------------Dated this the 11[th] day of December, 2023** ## **J U D G M E N T** ## **C.S.Sudha, J.** This appeal under Section 19(1) of the Family Courts Act, 1984, has been filed by the respondent/wife against the order dated 24/11/2022 in O.P.No.187/2020 on the file of the Family Court, Kalpetta. The respondent herein/husband is the petitioner in the original petition. The parties in this appeal will be referred to as described in the original petition. 2. O.P.No.187/2020 was filed seeking divorce on the ground of cruelty. According to the petitioner/husband, the marriage with the respondent was solemnised on 06/11/2016 as per the rites and customs of the community to which they belong. In the wedlock, they have a girl child. The respondent/wife lived with the petitioner till 28/07/2019. In July 2019, when the marriage proposal of the petitioner's brother was going on, the respondent showed signs of mental disturbance. When her parents were informed, they took her for counseling on 24/07/2019 and 25/07/2019. It was found that the respondent had mental issues since childhood. The respondent was to attend psychiatric counseling on 01/08/2019 with 3 ## **Mat.Appeal No.107 of 2023** Dr.Rajmohan.B., M.D. Psychiatry, Baby Memorial Hospital, Kozhikode. The respondent went to her mother's house on 28/07/2019 for attending the psychiatric counseling and treatment in the aforesaid hospital. On the day fixed for counseling, the petitioner and his family members were present in the hospital, but the respondent never turned up. On enquiry over telephone, the respondent informed him that as the counseling would be done in the hospital, there would be records of the same and therefore she was not amenable for the counseling at the hospital and that she would attend counselling before Fr.Thomas, their former Vicar residing at Moolankavu, Sulthan Bathery. Thereafter when the petitioner went to the house of the respondent with his brother to bring the respondent home, she refused to join him. The parents of the respondent informed the petitioner that the marriage of the petitioner's brother is the reason for the mental depression of the respondent and demanded that the respondent continue her residence in her parents house and that the petitioner should visit her once in a week. The petitioner and his family were threatened that if they did not accede to the demands of the respondent, criminal complaints would be preferred against them. There were several attempts by the petitioner to bring the respondent back to the matrimonial home. However, all such attempts failed. Thereafter on 02/08/2019, the respondent filed M.C.No.119/2019 claiming maintenance. The very next day, i.e. on 03/08/2019, a false crime was 4 ## **Mat.Appeal No.107 of 2023** registered alleging commission of the offences punishable under Section 498A, 323, 354, 354A read with Section 34 IPC against the petitioner and his family members. The Sulthan Batheri Police without affording an opportunity to restore the marital relationship, attempted to arrest the petitioner and his family members. This incident caused considerable humiliation and agony to the petitioner and his family members. Hence the respondent is not interested in continuing with the marital relation with the petitioner. The attempt of the respondent is to see that the marriage of the petitioner's brother never takes place. During the time the respondent lived in the matrimonial home, she used to frequently visit her parents home on the pretext that she is going home for treatment of migraine. However, the petitioner later came to know that it was actually for mental depression that she used to go home for taking treatment. The respondent had mental issues right from her childhood days and due to the high dose of medicines that she was taking continuously, the same has even affected their child. The respondent is not taking proper care of the child also. The petitioner filed O.P.No.59/2020 seeking permanent custody of the child as the respondent was not taking care of the child due to her mental illness. Though several attempts were made to restore the marital relationship, the respondent and her parents are quite adamant and therefore the petition seeking divorce on the ground of cruelty. 5 ## **Mat.Appeal No.107 of 2023** 3. The respondent/wife filed counter denying all the allegations in the petition. The respondent had to file M.C.No.119/2019 claiming maintenance as the petitioner refused and neglected to maintain them. As the respondent was continuously harassed by the petitioner and his family demanding more dowry, she was constrained to prefer a complaint on the basis of which the crime was registered. On 15/07/2018, when the respondent was alone at her marital home, the petitioner's brother molested her. When the respondent resisted his attempts, he slapped her and left the place. When the respondent informed the incident to the petitioner and his mother, they physically assaulted her and in order to save herself she locked herself in a room and contacted her father over the phone. When the respondent's father arrived at the matrimonial home, the petitioner's mother asked the former to take the petitioner home accusing the petitioner to be under some misunderstanding. Thereafter, the relatives of the petitioner came to her residence and the petitioner's brother confessed and apologized for the incident on 15/07/2018. The petitioner as well as the relatives promised her that no such acts would be repeated. Therefore the respondent returned to the matrimonial home. But the petitioner and his family continued with the harassment demanding more dowry. The allegation that she was having mental disorder right from her childhood days is incorrect and false. The allegation that because of the heavy dose of medicines that 6 ## **Mat.Appeal No.107 of 2023** she was taking continuously, the health of the child had also been affected is incorrect and false. It was only because the petitioner refused to maintain the respondent and her child, she was constrained to move the court seeking maintenance. The continuous harassment, both physical and mental, was the reason why she had moved the police, pursuant to which a crime had been registered for the offences punishable under Sections 498A, 323, 354 and 354 A read with Section 34 IPC. The petitioner does not have any cause of action and therefore, he is not entitled to the reliefs prayed for, contended the respondent. 4. On completion of pleadings, the parties went to trial. PW1 was examined and Exts.A1 to A13 were marked on the side of the petitioner. RW1 was examined and Exts.B1 to B4 were marked on the side of the respondent. Ext.X1 is the medical records issued by Leo Hospital, Kalpetta. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, allowed the petition by which the marriage between the petitioner and the respondent has been dissolved on the ground of cruelty. Aggrieved, the respondent/wife has come up in appeal. 5. The only point that arises for consideration is whether there is any infirmity in the findings of the trial court calling for an interference by this Court. 6. Heard both sides. 7 ## **Mat.Appeal No.107 of 2023** 7. It was argued by the learned counsel appearing for the respondent/wife that it was the bounden duty of the petitioner/husband who alleged cruelty to establish the same. But, the petitioner had failed in doing so. However, the trial court relying on the contentions of the respondent, granted divorce, which is illegal and incorrect and hence needs to be interfered with. _Per contra,_ it was submitted by the learned counsel for the petitioner/husband that the trial court was right in granting a decree for divorce because when the marital relationship has completely broken down and there are no chances of re-union, compelling the petitioner to continue the marital relationship itself would be an act of cruelty. There is no infirmity in the findings or conclusions of the trial court calling for an interference, goes the argument of the petitioner/husband. 8. On going through the pleadings, it can be seen that both the spouses alleged cruelty against each other. Both have cited specific instances also. The respondent/wife has also a case that the petitioner's brother had molested her due to which she had to return to her parental home. According to her, pursuant to the said incident, the petitioner and his family came home and apologized for the act of the petitioner's brother and hence she returned to the matrimonial home. Admittedly, a crime has been registered against the petitioner and his family members alleging the commission of the offences punishable under Sections 498A IPC, 323, 354, 354A read with Section 34 8 ## **Mat.Appeal No.107 of 2023** IPC. It is not clear from the records as to the stage of the said case. According to the petitioner/husband, the said crime has been registered on the basis of false allegations raised by the respondent. He and his family have been humiliated as the police took them into custody pursuant to the registration of the crime. In these circumstances, he is not ready to continue the marital relationship with the respondent. 9. As held by the Apex Court in **Samar Ghosh v. Jaya Ghosh 2007(4) SCC 511 : 2007(2) KHC 231** , there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. 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. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. What is cruelty in one case may not amount to cruelty in another case. The concept of cruelty differs from person to person depending upon a person's upbringing, level of sensitivity, education, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. On a consideration of the complete matrimonial life of the parties, if mental pain, agony and suffering as would make it not 9 ## **Mat.Appeal No.107 of 2023** possible for the parties to live with each other is made out, then the same would come within the broad parameters of mental cruelty. The wronged party then cannot be reasonably be asked to put up with such conduct. 9.1. If the conduct and character of a party causes misery and agony to the other spouse, the said conduct would certainly be an act of cruelty to the spouse justifying grant of divorce. When the parties cannot live together and when there is no possibility of the relationship being revived, there is no point in continuing the relationship. In such situations, refusal by one spouse to consent for divorce on mutual consent would certainly be an act of cruelty to the wronged spouse. [ **Naveen Kohli v. Neelu Kohli, 2006 KHC 621: (2006) 4 SCC 558** and **Beena M.S. v. Shino G.Babu, 2022(2) KHC 11]** . Here the petitioner/husband in the aforesaid circumstances is not ready to continue the marital relationship. Though the respondent/wife also contends that she was physically and mentally harassed as well as molested in the matrimonial home, she is not ready for separation and she insists on continuing the relationship. 9.2. In **K.Srinivas Rao v. D.A.Deepa, (2013)5 SCC 226** , it has been held that making unfounded allegations against the spouse or his/her relatives in the pleadings, filing repeated false complaints and cases in the court against the spouse would amount to causing mental cruelty to the other spouse. Whether the allegations of the respondent/wife in the aforesaid 10 ## **Mat.Appeal No.107 of 2023** crime is true or not has to be tested in the said case. According to the petitioner/husband they are all false allegations and because of the registration of the crime he and his family members were humiliated in public as the police had taken them into custody. In these circumstances, it may not be fair to insist on the petitioner/husband to continue with the marital relationship. 10. We find no infirmity in the findings in the impugned judgment calling for an interference by this Court. In the result, the appeal is dismissed. No costs. Interlocutory applications, if any pending, shall stand closed. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/