Sathyan @ Raju v. Jaya and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 MAT.APPEAL NO. 399 OF 2013** **AGAINST THE JUDGMENT DATED 22.09.2012 IN O.P.(HM) NO.29 OF 2009 ON THE FILES OF THE FAMILY COURT, THODUPUZHA APPELLANT/PETITIONER:** ## **SATHYAN @ RAJU** **AGED 43 YEARS, S/O.KRISHNAN, THAIPARAMBIL (H), UPPUTHARA.P.O., UPPUTHARA VILLAGE.** **BY ADVS.** **SRI.H.HAMZA ROWTHER SRI.H.SUNIL SRI.V.S.NEENESHKUMAR SRI.V.K.PEERMOHAMED KHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 JAYA,** - **AGED 37 YEARS, D/O.LAKSHMIKUTTY, MUTTATHU (H), ARATTUKAYAM KARA, PAMBAVALLY, ERUMELY VILLAGE, KANJIRAPPALLY TALUK.** - **2 AMANULLAKHAN,** **AGED 35 YEARS, BSNL LINE MAN, UPPUTHARA KARA, UPPUTHARA VILLAGE.** - **3 LAL** **AGED 27 YEARS, S/O.DAS, CHALIKKARAYIL (H), UPPUTHARA KARA, UPPUTHARA VILLAGE.** **BY ADVS.** **V.K.DINESH KUMAR SRI.P.M.JOHNY** 2 Mat.Appeal No.399 of 2013 **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 24.01.2023, THE COURT ON 01.03.2023 DELIVERED THE FOLLOWING:** 3 Mat.Appeal No.399 of 2013 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner in O.P.(HM) No.29 of 2009 on the files of the Family Court, Thodupuzha is the appellant. He filed the said original petition seeking a decree of dissolution of marriage on the ground of cruelty, under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The Family Court dismissed the original petition as per the judgment dated 22.09.2012. The appellant assails the said judgment in this appeal filed under Section 19(1) of the Family Courts Act, 1984. 2. This appeal was admitted on 01.02.2021. On the same day, this Court had directed the parties to appear before the District Mediation Centre, Thodupuzha for mediation on 16.02.2021. The mediation failed. 3. Heard the learned counsel appearing for petitioner and also the 1st respondent. Respondents 2 and 3 did not turn up to make their submissions. 4. Marriage of the appellant and the 1st respondent was solemnised on 05.05.1996. They have two children. 4 Mat.Appeal No.399 of 2013 The appellant alleges that after the birth of the second child, the 1st respondent refused to have sexual relationship with the appellant. She developed illicit intimacy with the 2nd respondent and when the appellant detected them together inside his house, the 1st respondent threatened to commit suicide. She had written a suicide note also. Later, she developed illicit intimacy with the 3rd respondent, with whom she had attended the marriage of the brother of her friend, Beena. The 1st respondent also had illicit intimacy with a driver of a private bus, in which she used to travel. Following such developments she left the matrimonial home on 01.12.2008 and ever since she has been living separate. The appellant alleging that the said acts of the 1st respondent amounted to cruelty sought to dissolve their marriage. 5. The 1st respondent filed a counter denying all such allegations. Her case is that all are the doubts of the appellant and it was in fact, he who meted out cruelty. As a result of intolerable acts on the part of the appellant, she had to leave 5 Mat.Appeal No.399 of 2013 the matrimonial home. She accordingly sought to dismiss the petition. 6. The 2nd respondent filed a counter controverting the allegations levelled against him. No written statement was filed by the 3rd respondent. 7. At the trial, PWs.1 to 4 were examined and Exts.A1 to A8 were marked on the side of the appellant. The 1 st respondent was examined as RW1 and Exts.B1 to B3 were marked on her side. 8. The Family Court after appreciating the evidence in detail held that evidence was insufficient to prove that the 1 st respondent was living in adultery. Of course, the Family Court found that the evidence was insufficient to prove cruelty on the part of the 1st respondent. The Family Court, however, did not consider the evidence in the perspective, whether the alleged illicit relationships of the 1st respondent and her other erratic acts amounted to cruelty. The plea for dissolution of marriage was accordingly rejected. 6 Mat.Appeal No.399 of 2013 9. The learned counsel appearing for the appellant would submit that the evidence on record overwhelmingly has proved the indulgence of the 1st respondent in several illicit relationships, which amounted to mental cruelty to the appellant. It is submitted that in the context of Section 13(1) (ia) of the Hindu Marriage Act, such acts of the 1st respondent certainly make out a ground for ordering divorce. 10. The learned counsel appearing for the 1st respondent, on the other hand, would submit that having raised allegations of infidelity and adulterous way of life, the burden of the appellant was so heavy. But he did not bring on record any reliable evidence. The learned counsel for the 1st respondent accordingly would submit that the findings of the Family Court do not suffer from any infirmity. 11. Ext.A2 is a copy of the letter written by the 1st respondent threatening to commit suicide. PW1 deposed that since he happened to see inside his residence the 1st respondent along with the 2nd respondent, the 1st respondent entered the room and locked in. After a long pacification only 7 Mat.Appeal No.399 of 2013 she came out and then Ext.A2 was found inside that room. It is true that there is no independent evidence regarding that incident. But PW4, a neighbour, deposed that she often noticed that the 2nd respondent, who is an employee of BSNL and residing in a nearby house used to come to the appellant's house when he was not available there. When a neighbour states so, whether or not the 1st respondent had any illicit relationship with the 2nd respondent, there is every reason for the appellant being hurt and to create disharmony in the marital relationship. There is nothing on record to find that PW4 had stated so in court with any oblique motive. 12. Regarding the 1st respondent attending the marriage of the brother of her friend Beena, the appellant brought on record the oral evidence of PW2 and Ext.A6 photographs apart from his own oral testimony. PW2 has no prejudice against the 1st respondent. Rather she has no such allegation also. PW2 is the husband of Smt.Beena, a friend of the 1st respondent. When PW2 deposed in court that the 1st respondent attended the marriage of his brother-in-law along 8 Mat.Appeal No.399 of 2013 with a stranger, who is said to be the 3rd respondent and Ext.A6 lends support to the oral evidence let in by the appellant, it can only be held that the said allegations is true. The appellant, as a husband and father of two children, certainly will get ashamed of hearing such an incident. 13. PW3 is the Taluk Secretary of Kerala Viswakarma Sabha, Kattapana. He produced Ext.A4 minutes. The complaint of the appellant regarding the illicit relationships of the 1st respondent with other men was deliberated upon by the Sabha Committee. Of course, no decision on the said compliant was taken, but it is evident from the oral testimony of PW3 and Ext.A4 that the allegations of infidelity against the 1st respondent had been a matter for discussion among others. Also, the allegation that she maintained amoral relationship with other men was proved. The 1st respondent even admitted that she was hugged several times by a neighbour, but she never complained of it. Those facts would establish that the 1st respondent was not a faithful wife and her acts brought about intolerable humility and resulted 9 Mat.Appeal No.399 of 2013 indignity to the appellant as a husband. 14. The learned Counsel appearing for the appellant would contend that the Family Court cast unnecessary burden of proof on the appellant. The evidence was interpreted as in the case of a criminal prosecution and only because of such an approach, the petition ended in dismissal. In **Dr.N.G.Dastane v. Mrs.S.Dastane [AIR 1975 SC 1534]** , a three-Judge Bench of the Apex Court considered as to what standard of proof has to be insisted while appreciating the evidence in support of a plea for dissolution of marriage or for a judicial separation. It was held,- “25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.” 10 Mat.Appeal No.399 of 2013 The Apex Court proceeded to hold that under Section 10 of the Hindu Marriage Act, which enumerated the grounds on which a petition for judicial separation may be presented or the provisions of Section 23 which governs the jurisdiction of the court to pass a decree for a relief under any of the provisions of the Act does not require that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is ‘satisfied’ on matters mentioned in any of the clauses (a) to (e) of that section. The proceedings under the Act are essentially of civil nature and therefore the word 'satisfied' used in Section 23 must be understood as “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt”. The Apex Court also explained when can it be said that the fact is proved by preponderance of probabilities as follows:- “The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a factsituation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the 11 Mat.Appeal No.399 of 2013 particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second.” 15. In the light of the law laid down by the Apex Court, what is required is to consider whether on a comparative analysis of the evidence let in by the respective parties the allegation of cruelty has been established. Occurring of a few inconsistencies in the evidence by itself need not necessarily result in discarding of the whole evidence altogether, unless the same makes the evidence totally improbable and unreliable. When the evidence let in by both sides is considered in the light of the said principle of law, we are of the view that the case of the appellant is more probable. 16. Now the question is whether the proved facts establish a ground for granting a decree of divorce on the ground of cruelty. Cruelty is not defined in the Hindu Marriage Act. It is difficult to define precisely as to what exactly cruelty means under Section 13(1)(ia) of the Hindu Marriage Act. 12 Mat.Appeal No.399 of 2013 Cruelty may extend to behaviour that may cause pain and injury to the mind which renders continuance of matrimonial relationship impossible. The question as to whether an act complained of was cruel or not is to be determined from whole of the facts and matrimonial relations between the spouses regard being had to their culture, temperament, status in life and such other aspects. Cruelty may be physical, mental or legal. In matrimonial laws it may be of infinite variety. It may be by words, gestures or by mere silence, violence or nonviolence. To constitute cruelty, the conduct complained of, should be such that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be more serious than ordinary wear and tear of the married life. The cumulative conduct, taking into consideration the circumstances and background of the parties has to be examined to reach the conclusion whether or not the conduct complained of amounts to cruelty. Thus, cruelty postulates a treatment of the petitioner by the respondent making impossible for the petitioner to live with the respondent. 13 Mat.Appeal No.399 of 2013 17. A Division Bench of this Court held in **Vipin Babu P. v. Jisha S. and another [2020 KHC 3407 : AIR 2020** **NOC 491]** that when the wife does not want to live with the husband and even informed him that she is not interested to live with him, that itself amounts to mental cruelty. 18. The aforesaid the incidents involving the 1st respondent established that by open and tactics act, she intimated the appellant that she did not want to cohabit with him. Further, her leaving the matrimonial home when she was questioned about such incidents amounted to mental cruelty to the appellant. The law laid down by this Court in the above referred decision applies to the facts of this case. Therefore, we hold that the facts proved in this case constituted sufficient ground to grant a decree of dissolution of marriage. on the ground of cruelty. The judgment of the Family Court dated 22.09.2012 is therefore liable to be set aside and a decree dissolving the marriage between the appellant and the 1st respondent is liable to be granted. 14 Mat.Appeal No.399 of 2013 19. In the result, the appeal is allowed. The judgment of the Family Court, Thodupuzha dated 22.09.2012 in set aside. O.P.(HM) No.29 of 2009 is allowed under Section 13(1) (ia) of the Hindu Marriage Act. The marriage between the appellant and the 1st respondent solemnized on 05.05.1996 is dissolved with effect from today. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr