R.O. Sunil Babu v. Shabnam

Mat.A Nos.535/2013&536/2013 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** **Mat.Appeal.No.535 OF 2013** **AGAINST THE JUDGMENT IN OP 58/2012 DATED 22-02-2013 OF FAMILY COURT, KANNUR** ## **APPELLANT/PETITIONER:** **R.O.SUNIL BABU, AGED 48 YEARS S/O.R.VIJAYAN, “ANAGHA”, CLUB ROAD, GIRI NAGAR, KOCHI PRESENTLY RESIDING AT C.32, MEA HOUSING COMPLEX, DWARAKA, SECTOR 2, NEW DELHI 110 075.** **BY ADV.SRI.P.SANTHALINGAM SR. ADV. SRI.S.SHARAN** ## **RESPONDENT/RESPONDENT:** **SHABNAM, AGED 41 YEARS D/O.LATE M.A.RAJENDRAN, ROOM NO.25, SWEET HOMES, NO.14, FENNS SWEET HOMES LANE, NEAR ALAPPATT NAGAR, KUNNUMPURAM, KAKKANAD, KOCHI 682 030.** **R1 BY ADV. SRI.T.M.RAMAN KARTHA** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.01.2020, ALONG WITH Mat.Appeal.536/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.A Nos.535/2013&536/2013 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** **Mat.Appeal.No.536 OF 2013** **AGAINST THE JUDGMENT IN OP 33/2011 DATED 22-02-2013 OF FAMILY COURT, KANNUR** ## **APPELLANT/RESPONDENT:** **R.O.SUNIL BABU, AGED 48, S/O.R.VIJAYAN, “ANAGHA”, CLUB ROAD, GIRI NAGAR, KOCHI PRESENTLY RESIDING AT C32, MEA HOUSING COMPLEX, DWARAKA, SECTOR 2, NEW DELHI 110 075.** **BY ADV. SRI.P.SANTHALINGAM SR. BY ADV.SRI.S.SHARAN** ## **RESPONDENT/PETITIONER:** **SHABNAM, AGED 40 YEARS, D/O.LATE M.A.RAJENDRAN, RESIDING AT CHATHOTH HOUSE, PALLIKKUNNU AMSOM, CHALAD DESOM, P.O CHALAD, KANNUR TALUK, KANNUR DISTRICT. 670 014.** **R1 BY ADV. SRI.T.M.RAMAN KARTHA** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.01.2020, ALONG WITH Mat.Appeal.535/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.A Nos.535/2013&536/2013 3 ## **JUDGMENT** ## **[ Mat.Appeal.535/2013, Mat.Appeal.536/2013 ] Dated this the 6th day of January 2020** ## **Shaffique, J** These two appeals arise from a common order dated 22.2.2013 in O.P Nos.33/2011 and 58/2012 of the Family Court, Kannur. O.P No.33/2011 has been filed by the wife seeking restitution of conjugal rights and O.P No.58/2012 has been filed by the husband seeking divorce on the ground of cruelty and desertion. 2. The couple got married on 28.11.1994. The husband was working in different Embassies in different countries as per the directions issued by the Foreign Affairs Ministry from time to time. On account of his employment his wife also accompanied him and she was also having diplomatic status. Being a diplomat he had to take his wife for all official functions as well. On account of their matrimonial issues they got separated in the year 2009 and thereafter the marriage became irretrievably broken and there is no chance of reunion. During the matrimonial relationship, a male child was born in the wedlock. 3. Divorce had been sought by the petitioner/husband on the allegation that the respondent being a strong willed person was imposing on him her interests on each and every aspect of his life. Mat.A Nos.535/2013&536/2013 4 She never respected his parents and did not obey them. On account of her stubborn nature he was forced to accede to her views and he was forced to take decisions against his will. Further it is alleged that he was not allowed to socialise. The respondent never permitted the child to mingle with his parents or relatives. She was neglecting the health of the child and she was poisoning his mind against the parents of the petitioner. The child was never permitted to socialise. She even interfered with the petitioner's choice of friends and the parties or events that he could or could not attend. In order to save the marriage he was suffering all these indignities. The respondent was also attempting to tarnish his image by picturising him as a drunkard. He further alleged that the petitioner was denying him conjugal relationship using the son as a shield in between them. She was not interested in having sex. Though the child was aged 13 years, he was made to sleep in the same bed, between them. This was done with the intention to deny him normal marital life. When the petitioner questioned her, she reacted violently and he was abused, as if he had committed a grave wrong. He further contended that while he was working in the Indian Embassy at Slovakia in 2008, she refused to attend the independence day function at the Indian Embassy though it was mandatory that the petitioner should take his wife also along with him for the official function. In the year 2009, they came back to Mat.A Nos.535/2013&536/2013 5 Delhi. By the time her attitude became unbearable as she quarrelled frequently. They decided to have a mutual consent divorce as it was thought that they could not continue the marital tie. But later she refused to sign the joint petition. The respondent decided to come to Ernakulam without seeking opinion of the petitioner. She was asked to reside in his parents house but later she started residing in a ladies hostel, which prevented the petitioner from having any access to her. According to him, his life got shattered on account of the attitude of the respondent, which amounts to mental cruelty. 4. The respondent denied the allegations. According to her she never subjected the petitioner to any cruelty. They were living as man and wife for more than 15 years without any problem whatsoever and she has been performing her responsibility as a wife. She denied all other allegations against her. According to her, she was properly taking care of the child. However, the petitioner requested for divorce in April, 2010 and she was asked to sign in the divorce petition. When she declined, the petitioner threatened her and therefore she was forced to take refuge at her in-laws house at Ernakulam. Since she was ill-treated there, she was constrained to take refuge in a hostel at Ernakulam. She also took up the responsibility of the child. 5. In O.P No.33/2011 the wife made the very same Mat.A Nos.535/2013&536/2013 6 allegations and had contended that her husband is living separated from her without any valid reason. Hence she sought for restitution of conjugal rights. The husband filed counter statement denying the allegations and maintaining the allegations raised by him in O.P.No.58/2012. 6. As evidence in the case, the parties were examined as PW1 and RW1. Exts.A1 to A3 and Exts.B1(a) to B3 were the documents relied on by either side. The Family Court after having considered the respective contentions formed an opinion that the allegation of cruelty raised by the husband has not been proved and that apart it was found that there was no specific reason for the husband to remain away from the matrimonial relationship. By dismissing the petition for divorce, the petition for restitution of conjugal rights was allowed. 7. The learned Senior Counsel appearing for the appellant has argued that this is a case in which the parties got separated in the year 2009 and though several attempts were made for a settlement, nothing fructified and the marital relationship has irretrievably broken down. There is no chance of reunion. All along, throughout the marital life he was inflicted with mental cruelty, which had been clearly narrated in the petition. However, the court below did not properly appreciate the mental cruelty suffered by him at the hands of his wife. This aspect of the matter Mat.A Nos.535/2013&536/2013 7 requires reconsideration and when cruelty is coupled with irretrievable break down of marriage, this is a fit case in which the relief of divorce can be granted by this Court. 8. On the other hand the learned counsel appearing for the wife would argue that the Family Court had considered all the materials placed on record and had arrived at a possible finding which does not require to be interfered while exercising the appellate jurisdiction, in so far as there is no perversity in the judgment of the Family Court. 9. A decision in the appeal against O.P No.58/2012 will virtually decide the fate of O.P No.33/2011. The main contention urged by the appellant is that all along he was suffering from the cruel attitude of the petitioner. She was imposing everything on him and she was forced to do certain things against his will. There was also lack of sexual relationship between the couple and she was not interested in having any sex for which she even used her son as a shield. Even at the age of 13, she did not give proper care to her son by not giving any freedom to socialise and the son was asked to sleep with them to prevent the petitioner from having any sexual relationship with his wife. 10. But when these facts are denied, apparently it has to be considered whether the evidence in the case is sufficient enough to grant divorce on the ground of cruelty or not. The Family Court Mat.A Nos.535/2013&536/2013 8 proceeded on the basis that whatever had been spoken to by PW1 are usual wear and tear in a family and the demeanor of PW1 and RW1 before court would not indicate that PW1's will could be manipulated by RW1 and she cannot prevail upon PW1. 11. This is a case in which the petitioner, who was working in Indian Embassies in a foreign territory had a lot of functions to be performed. It is well known that his wife is also given a diplomatic status. Such persons may have to socialise with many persons and it would be necessary for his wife also to accompany him during official functions. When such a person complains that he was not permitted to move freely and to carry on with his work and to socialise with people depending upon his status as a diplomat, such pleadings and evidence have to be considered, taking into consideration the avocation of that individual as well. When PW1 entered the box and had stated the manner in which she was over powering his will, definitely such matters could have influenced the decision making process with reference to his job as well. Such aspects of the matter had been completely ignored by the Family Court while considering the aforesaid case. We have to consider the allegation of mental cruelty based on the status, an individual holds among the society. The petitioner is a foreign dignitary, who was employed in Embassies in various parts of the world and he is a person who will have to attend important functions as a Mat.A Nos.535/2013&536/2013 9 representative of our nation. Apparently, he was suffering mental trauma on account of the fact that, he was unable to disclose before anyone that his marital life was disturbed and he had matrimonial issues. He never wanted the Foreign Affairs Ministry or the persons with whom he works to know that he had marital issues with his wife. It is also in evidence that after she had come to Cochin, she was residing in a ladies hostel. This fact is admitted by her in the evidence. During that time he was unable to contact her as her whereabouts were not known. Of course, the wife has a contention that she was suffering cruelty at the hands of her in-laws at Cochin. But apart from the oral testimony of RW1 there is no other material to arrive at a conclusion that she had suffered any cruelty at the hands of the in-laws of the petitioner/husband. 12. Further it is now evident that since 2009, they were not living together and the marriage has been irretrievably broken. The child has now become major and he is presently in US. The parties had been at loggerheads and there is no chance for reunion. In such circumstances we are of the view that this is a fit case in which the divorce can be granted. There is enough material to arrive at a conclusion that the parties could not live together as the petitioner was suffering mental cruelty all along his marital life and at this stage of proceedings it will only be appropriate to grant divorce on the ground of mental cruelty. Mat.A Nos.535/2013&536/2013 10 13. Mental cruelty has different dimension. The Apex Court in **Samar Ghosh v. Jaya Ghosh** (2007 (4) SCC 511)=[(2007 (2) KLT S.N.55 (Case No.76)] has laid down certain instances for guidance as no uniform standard could be laid down. It is held at paragraph 101 as under: “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. (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 Mat.A Nos.535/2013&536/2013 11 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. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (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.” 14. A reading of the aforesaid illustrations indicate that mental cruelty is a state of mind and a feeling of deep anguish, disappointment or frustration in one's spouse caused by the conduct of the other for a long time. In fact, a perusal of the evidence of Mat.A Nos.535/2013&536/2013 12 PW1 discloses such an anguish, disappointment and frustration on account of the conduct of his wife. Further, he has a case that he was not permitted to have sexual relationship with his wife and for that reason their 13 year old child was asked to sleep with them. Taking into account the nature of the evidence adduced by PW1, we are of the view that he had been suffering from severe mental trauma for quite a long time. That apart, there has been long period of continuous separation and the matrimonial bond is beyond repair. Under such circumstances, the very separation itself, without any feelings to each other means to mental cruelty. Consequently, the judgment in O.P.No.33/2011 directing restitution of conjugal rights requires to be set aside. In the result, these appeals are allowed. We set aside the judgment of the Family Court, Kannur. O.P.No.58/2011 is allowed and O.P No.33/2011 shall stand dismissed. Sd/- ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** **MARY JOSEPH** **JUDGE** **Ab** Mat.A Nos.535/2013&536/2013 13 The typographical error 'O.P No.58/2011' mentioned in the operative portion of the judgment dated 06.01.2020 in Mat.Appeal No.535/2013 & Mat.Appeal No.536/2013 is suo motu corrected as 'O.P No.58/2012' as per order dated 09.03.2020 in Mat.Appeal No.535/2013 and Mat.Appeal No.536/2013. Sd/- ## **Deputy Registrar**