R. Sajeev v. K. Lekha

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942** **Mat.Appeal.No.1113 OF 2014** **AGAINST THE JUDGMENT IN OP(HMA) 319/2011 DATED 11-08-2014 OF FAMILY COURT, THIRUVALLA** **AGAINST THE JUDGMENT IN OP(HMA) 897/2011 OF FAMILY COURT, THIRUVALLA** ## **APPELLANT/COUNTER PETITIONER:** **R.SAJEEV AGED 46 YEARS S/O.RAGHAVAN, GURUMANDIRAM HOUSE, NEAR MARKET JUNCTION, ATTINGAL P.O, AND VILLAGE, THIRUVANANTHAPURAM 695 101.** **BY ADVS. SRI.M.R.RAJESH SMT.E.S.SANDHYA** ## **RESPONDENT/PETITIONER:** **K.LEKHA D/O.KAMALA BHAI, PALATHUMTHALACKAL HOUSE, AZHOOR MURI, PATHANAMTHITTA P.O AND VILLAGE, KOZHANCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **R1 BY ADV. SRI.M.V.ASHIM R1 BY ADV. SRI.R.BALAKRISHNAN R1 BY ADV. SRI.B.HARRYLAL R1 BY ADV. SRI.T.S.MOHANAN R1 BY ADV. SRI.C.R.REGHUNATHAN R1 BY ADV. SRI.SUVIN.R.MENON R1 BY ADV. SRI.P.VIJAYAKUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02.02.2021 ALONG WITH MAT.A 1116/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.Nos.1113 & 1116/2014** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942 Mat.Appeal.No.1116 OF 2014** **AGAINST THE JUDGMENT IN OP(HMA) 319/2011 OF FAMILY COURT, THIRUVALLA AGAINST THE JUDGMENT IN OP(HMA) 897/2011 OF FAMILY COURT, THIRUVALLA** ## **APPELLANT/COUNTER PETITIONER:** **R.SAJEEV S/O.RAGHAVAN, GURUMANDIRAM HOUSE, NEAR MARKET JUNCTION, ATTINGAL P.O, AND VILLAGE, THIRUVANANTHAPURAM 695 101.** **BY ADVS. SRI.M.R.RAJESH SMT.E.S.SANDHYA** ## **RESPONDENT/PETITIONER:** **K.LEKHA D/O.KAMALA BHAI, PALATHUMTHALACKAL HOUSE, AZHOOR MURI, PATHANAMTHITTA P.O, AND VILLAGE, KOZHANCHERY TALUK, PATHANAMTHITTA DISTRICT.** **R1 BY ADV. SRI.M.V.ASHIM R1 BY ADV. SRI.R.BALAKRISHNAN R1 BY ADV. SRI.B.HARRYLAL R1 BY ADV. SRI.T.S.MOHANAN R1 BY ADV. SRI.C.R.REGHUNATHAN R1 BY ADV. SRI.SUVIN.R.MENON R1 BY ADV. SRI.P.VIJAYAKUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02.02.2021 ALONG WITH MAT.A 1113/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING** **Mat.Appeal.Nos.1113 & 1116/2014** **3** ## **COMMON JUDGMENT** ## **Dated this the 2nd day of February 2021** ## **C.S.Dias, J.** As these appeals arise out of a common judgment passed by the Family Court, Thiruvalla in O.P (HMA) No.319/2011 and O.P.(HMA) No.897/2011 between the same parties, they are being disposed of by this common judgment. 2. K.Lekha – the wife of M.R.Sajeev had filed O.P. (HMA) No.319/2011 seeking a decree of divorce to dissolve her marriage with M.R.Sajeev as provided under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (in short 'the Act). M.R.Sajeev filed O.P. (HMA)No.897/2011 against K.Lekha seeking a decree for restitution of conjugal rights as provided under Sec.9 of the Act. 3. The Family Court by a common judgment allowed O.P.(HMA) No.319/2011 filed by K.Lekha and dismissed O.P. (HMA)No.897/2011 filed by M.R.Sajeev. **Mat.Appeal.Nos.1113 & 1116/2014** **4** 4. Being aggrieved by the allowing of O.P. (HMA)No.319/2011, M.R.Sjaeev has filed Mat.A No.1113/2014, and by the dismissal of O.P. (HMA)No.897/2011, M.R.Sajeev has filed Mat.A No.1116/2014. For the sake of convenience, K.Lekha (wife) and M.R.Sajeev(husband) are being referred to as 'petitioner' and 'respondent' as per their status in O.P (HMA) No.319/2011. 5. The compendious facts of the petitioner in O.P (HMA) No.319/2011 is as follows: The petitioner and the respondent belong to the Hindu Ezhava Community. Their marriage was solemnized on 19.4.2009. It was the second marriage for both the petitioner and the respondent. The respondent has a daughter born in his first marriage. The petitioner is a Dentist by profession. The alliance between the couple was finalised as per a matrimonial advertisement. The petitioner was affected by a mild psychological disorder while she was pursuing her **Mat.Appeal.Nos.1113 & 1116/2014** **5** BDS course. The disorder has not in way affected her education, profession or married life. On the date of the marriage and subsequent days, the petitioner came to understand that the respondent's real personality was different from one that she was made to believe. On the first night itself, the respondent showed a music album in which he acted with a woman in a romantic way, but he refused to disclose the identity of the actress. The petitioner expressed her disinterest in viewing the compact disc which infuriated the respondent. The respondent proclaimed that he was a womanizer. The respondent always preferred woman. He was seen talking with different women, including the wives of others, over telephone for long hours. The respondent was under the intoxication of romance and ignored the petitioner. Whenever he saw a beautiful woman, he got infatuated. The respondent used to intentionally quarrel with the petitioner and sleep in a separate **Mat.Appeal.Nos.1113 & 1116/2014** **6** bed room. Whenever the petitioner objected to the respondent's immoral behaviour, he physically mantled her even in public places. The respondent was seen attached to the wife of his close friend. The petitioner felt that the relationship was not straight or morally right. The respondent perceived a strong feeling that the petitioner did not have an attractive figure. He was not interested in any sort of physical relationship with the petitioner. The petitioner expressed her desire to have an offspring, but the respondent refused to have physical relationship with her. Although the petitioner requested the respondent on several occasions to meet a Doctor, he refused to accede to her request. He declared that he did not want another child, as he had a daughter in his first marriage. The respondent used to pick quarrels with the petitioner for trivial issues. The respondent used to call the petitioner as an 'insane' woman. When the atrocities and cruel acts of the respondent became **Mat.Appeal.Nos.1113 & 1116/2014** **7** incorrigible, the petitioner returned to her parental home. on 26.6.2010. She filed M.C No.202/2010 before the jurisdictional Magistrate, inter alia, seeking an order for return of her gold ornaments, money and movable properties that were entrusted at the time of marriage. The respondent, as a counterblast, filed an original petition seeking a decree for restitution of conjugal rights. Hence, the petitioner prayed that the original petition be allowed and her marriage be dissolved by a decree of divorce. 6. The respondent filed a written objection, inter alia, contending that it was the petitioner who left his marital consortium without any ostensible reason or cause. The reason for the dissolution of the petitioner's first marriage was due to her mental illness. The respondent admitted that he had acted in a music album and the petitioner had access to the same. But on seeing the album, the petitioner turned disturbed which was the main reason for the **Mat.Appeal.Nos.1113 & 1116/2014** **8** estrangement. The respondent has many friends and he is well connected in the society. However, the petitioner has misconstrued such friendship in a biased manner. The respondent is ready to examine each of his friends to prove the falsity of the allegations in the original petition. The respondent is satisfied with the beauty of the petitioner, but his complaint is with regard to her behavioural disorder. The respondent treated the petitioner with love, care and affection. Nevertheless, she is unaware of the same due to her mental derangement. The petitioner had taken all her gold ornaments, when she left the matrimonial home. The respondent has not misappropriated any of the petitioner's money or movable property. Hence the original petition be dismissed. 7. The respondent filed O.P.(HMA) No.1496/2010, which was later transferred to the Family Court, Thiruvalla as per the order of this Court ## **Mat.Appeal.Nos.1113 & 1116/2014** **9** and re-numbered as O.P. (HMA) No.897/2011. The petitioner sought a decree for restitution of conjugal rights on the very same lines as the averments pleaded in his written objection in O.P. (HMA) No.319/2011. It was his case that the petitioner was living separately from him without any sufficient cause. Therefore, she was liable to resume cohabitation with the respondent. 8. The petitioner filed a written objection to O.P.(HMA) No.897/2011 consistent and in tune with her pleadings in O.P(HMA) No. 319/2011. 9. The Family Court consolidated and jointly tried the original petitions. The petitioner and three witness were examined as PW1 to PW4 and Exts.A1 to A6 were marked through them. The respondent was examined as RW1. 10. The Family Court, after evaluating the pleadings and materials on record, by the impugned common judgment allowed O.P. (HMA) No.319/2011 **Mat.Appeal.Nos.1113 & 1116/2014** **10** and dismissed O.P.(HMA) No.897/2011. 11. Heard Sri.M.R.Rajesh, the learned counsel appearing for the appellant/respondent and Sri.C.R.Raghunathan, the learned counsel appearing for the respondent/petitioner. 12. The point that emerges for consideration in these appeals is whether the common judgment passed by the Family Court is correct or not. 13. The marriage between the couple is not disputed. It is also on record that it was the second marriage for the petitioner and the respondent. The petitioner has sought a decree of divorce on the ground that the respondent has treated her with 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: **Mat.Appeal.Nos.1113 & 1116/2014** **11** _“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. 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 —_ **Mat.Appeal.Nos.1113 & 1116/2014** **12** - _(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._ - _(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_ **Mat.Appeal.Nos.1113 & 1116/2014** **13** _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-today 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._ _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.”_ **Mat.Appeal.Nos.1113 & 1116/2014** **14** 15. The specific instances of cruelty averred by the petitioner in the original petition, inter alia, are that on the very first night itself the respondent showed a music album, wherein he acted with another woman; that he proclaimed that he was a womanizer; that the respondent intentionally quarreled with the petitioner and slept in a separate bed room; that the respondent willfully refused to have physical relationship with the petitioner; that the petitioner requested the the respondent to consult a Doctor, but he refused the same; that he willfully refused to have an offspring for the reason that already he had a daughter in the first marriage; that the respondent used to call the petitioner as an insane woman; that the respondent used to ill-treat and harass the petitioner which compelled her to leave the matrimonial home on 26.6.2010. 16. We have re-appreciated the pleadings, oral ## **Mat.Appeal.Nos.1113 & 1116/2014** **15** testimonies of PWs 1 to 4 and RW1 and Exts.A1 to A6. It is trite that in cases of such nature, the case has to be decided on preponderance of probability. 17. On reading the oral testimony of PW1, we find that it stands corroborated with the oral testimony of PW2, the brother-in-law of the petitioner. The said witnesses have testified in line with the pleadings. Although they were cross-examined, they have not been discredited. On an evaluation of the pleadings as well as the oral testimony of RW1, it is seen that the respondent has not denied or has tacitly admitted the fact of having an aversion in having physical relationship with the petitioner. 18. The Family Court, after appreciating the law laid down by this Court in **Sanjan v. Azra** [2013 (2) KHC 481], has held that the respondent has willful refusal to have physical relationship with the petitioner, which tantamounts to cruelty. The other instances of cruelty averred in the original petition ## **Mat.Appeal.Nos.1113 & 1116/2014** **16** have only been fully denied by the respondent. Moreover, it is born in mind the couple are matured people, who have already got a bitter experience of earlier failed marriages. Although the petitioner had revealed at the time of marriage that she had a psychological problem, it is seen that the respondent had later on used it as a tool to humiliate her, which again is an act of cruelty. Further more, the refusal of the respondent to have an offspring is a heinous act. It is on record that the petitioner had invoked the provisions of the Protection of Woman from Domestic Violence Act against the respondent. 19. The overwhelming evidence on record clearly establishes that the respondent has treated the petitioner with cruelty falling within clauses (i) (ii), (iv), (v) to (viii) and (xiv) of paragraph 101 of **Samar Ghosh** (supra). 20. On an overall re-appreciation of the pleadings and materials on record in an apposite ## **Mat.Appeal.Nos.1113 & 1116/2014** **17** manner, we are of the considered opinion that the marriage between the petitioner and the respondent is shattered beyond redemption and has become a deadwood. The petitioner has pleaded and proved specific instances of cruelty entitling her for a decree of divorce. We do not find any useful purpose in attempting to re-knit a marriage that is irretrievably broken for more than a decade now. 21. In the above discussed legal and factual background, our inevitable conclusion is that there is absolutely no error in the common judgment passed by the Family Court in O.P.(HMA)No.319/2011, dissolving the marriage between the petitioner and the respondent by a decree of divorce, and by dismissing O.P. (HMA)No.897/2011. We hasten to observe that we have not dealt with any of the aspect involved in MC No.202/2010, which is now pending before this Court as Crl.RP No.974/2019, which may be independently considered and decided **Mat.Appeal.Nos.1113 & 1116/2014** **18** untrammeled by any observations or findings in this common judgment. Resultantly, the Mat.Appeals fail and are hence dismissed. **Sd/-** **A.MUHAMED MUSTAQUE** ## **JUDGE** **Sd/-** ma/04.02.2021 **C.S.DIAS JUDGE**