Shibu Abraham v. Aswini Varkey

**Mat.Appeal.No.536 OF 2019** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942** **Mat.Appeal.No.536 OF 2019** **AGAINST THE JUDGMENT IN OP(DIV) 767/2013 DATED 30-04-2019 OF FAMILY COURT, THIRUVALLA** ## **APPELLANT/RESPONDENT:** **SHIBU ABRAHAM AGED 43 YEARS S/O. ABRAHAM K.MATHEW, KADAVIL HOUSE, PERINGOL MURI, KAVUMBHAGOM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT** **BY ADVS. SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS** ## **RESPONDENT/PETITIONER:** **ASWINI VARKEY@ELIZABETH VARKEY D/O. M.V.VARKEY, CHERIYIL HOUSE, NEAR ANCHALKUTTY, KAVUMBHAGOM P.O., KAVUMBHAGOM MURI, KAVUMBHAGOM VILAGE, HIRUVALLA TALUK-689 103** **R1 BY ADV. SRI.JOSEPH RONY JOSE** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No.536 OF 2019** **2** ## **JUDGMENT** ## **Dated this the 29th day of January 2021** ## **C.S.Dias,J.** Aggrieved by the judgment and decree in O.P. (Div) No.767/2013 of the Family Court, Thiruvalla, the respondent in the original petition has preferred this appeal. The petitioner in the original petition is the respondent in the appeal. The parties are, for the sake of convenience, referred to as per their status in the original petition. 2. The original petition was filed, seeking a decree of divorce, on the ground of cruelty. The case of the petitioner in the original petition, in brief, is that she is the wife of the respondent. The parties are Christians by religion and are governed by the provisions of the Indian Divorce Act. The marriage between the couple was solemnised on 20.11.2000 at Vazhicherry Orothodox Church, Alappuzha as per the religious rites and ceremonies of the community. The **Mat.Appeal.No.536 OF 2019** ## **3** petitioner entered into the marriage with great expectations, but the result was contrary to her expectations. Even on the first day of the marriage, the petitioner had faced strange behaviour from the respondent. He was having a quarrelsome nature even for trivial matters. In the year 2002, the respondent got transferred to the Public Health Centre, Alappuzha. He used to leave home early in the morning and return only late at night. He was addicted to drugs and drinks. He used to manhandle the petitioner on almost all days. On 3.4.2005, the respondent reached the matrimonial home at about 9 p.m. As the petitioner was administering medicine for her daughter, she could not open the door immediately. The respondent brutally manhandled her, forcefully took her out of the room and locked the door. Hearing the hue and cry, the neighbours gathered and opened the door. On 9.5.2013, the respondent reached home at about 8.30 p.m in an ## **Mat.Appeal.No.536 OF 2019** **4** inebriated state and brutally manhandled the petitioner. She was driven out of the house. On the same night, she along with her daughter went to her parental home. The petitioner and the child are under the care and protection of her parents. She is now working in a shop at Thiruvalla. The respondent goes to the shop everyday and abuses the petitioner. In the above circumstances, the petitioner is unable to continue with the marital relationship. Hence, the original petition to dissolve the marriage by a decree of divorce. 3. The respondent resisted the original petition by filing a written objection, inter alia, refuting the allegations in the original petition. He admitted the marriage as well as the paternity of the child. However, he vehementally denied the allegations that he meted out cruelty on the petitioner. According to him, the petitioner was short-tempered and totally negative in her approach towards him and the child. ## **Mat.Appeal.No.536 OF 2019** **5** The vitriolic language used by the petitioner was totally substandard. He also denied the incidents that occurred on 3.4.2005 and 9.5.2013. The respondent prayed that the original petition be dismissed. 4. The petitioner had also filed O.P. 768/2013, seeking a decree for return of money and gold ornaments and M.C 46/2015 seeking an order of maintenance for herself and the child. 5. The Family Court consolidated and jointly tried O.P.(Div)No.767/2013 along with O.P. No.768/2013 and M.C 46/2015. 6. The petitioner and a witness were examined as PW1 and PW2 and Exts. A1 to A6 were marked through them. Two witnesses were examined on the part of the respondent as RW1 and RW2 and Exts. B1 to B33 were marked through them.Exts.X1 to X6 were marked as court exhibits. 7. The Family Court, after considering the pleadings and materials on record, by the impugned ## **Mat.Appeal.No.536 OF 2019** **6** judgment and decree allowed O.P.(Div) 767/2013 by dissolving the marriage by a decree of divorce. The Family Court also allowed O.P. No.768/2013 by permitting the petitioner to realise an amount of Rs.50,000/- from the respondent and his parents and also an amount of Rs.5,80,000/- towards the value of 29 sovereigns of gold ornaments. The Family Court also directed the respondent to pay the petitioner an amount of Rs.10,000/- as maintenance for the child. 8. Aggrieved by the judgment and decree passed in O.P. No.768/2013, the appellant also filed Mat.A 539/2019 before this Court. 9. When the appeal came up for consideration, the learned counsel appearing for the respective parties submitted that all disputes between the parties have been settled out of court and they have resumed cohabitation. The parties filed compromise petition in Mat.A 539/2019 pursuant to the direction of this Court and appeal has been dismissed. Therefore, they ## **Mat.Appeal.No.536 OF 2019** ## **7** prayed that, in light of the rapprochement effected between the parties, the appeal may be allowed by setting aside the judgment in O.P. (Div) 767/2013, so that the marriage can be restored. 10. A Division Bench of this Court in **Rejeesh P.R and another v. nil [2019(5)KHC 9]** has categorically laid down the law that once a marriage has been dissolved by decree of divorce, the same cannot be set aside on the mere asking of the parties. If the parties want to resume cohabitation, they will have to solemnize a marriage for a second time. 11. In light of the law laid down in **Rajeesh P.R** (supra), we have decided to consider the appeal on merits. 12. In **Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511],** a three-Judge Bench of the Honourable Supreme Court while considering Section 13(1)(ia) of the Act has laid down exhaustive guidelines for **Mat.Appeal.No.536 OF 2019** **8** passing a decree for divorce on the ground of cruelty. The ultimate conclusions are relevant, which reads as under: “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.No.536 OF 2019** **9** (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 Mat.A No.833 of 2015 14 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 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 **Mat.Appeal.No.536 OF 2019** **10** 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. xxx xxx xxx (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.” 13. In view of the exhaustive guidelines laid down by the Hon'ble Supreme Court in **Samar Ghosh (supra),** let us examine the case on hand. 14. The petitioner had sought for a decree of divorce on the ground that the appellant had meted out mental cruelty on her. 15. On a re-appreciation of the pleadings and materials on record, it is seen that the petitioner/respondent had alleged only three incidents that occurred in 2002, 2005 and 2013, to establish the ground of cruelty to dissolve the marriage. The Family Court allowed the original petition, principally **Mat.Appeal.No.536 OF 2019** ## **11** for the reason that the respondent/appellant had not mounted the box and let in any oral evidence to prove his defence, which proved fatal. It was only in the above situation that the Family Court went on to hold that the petitioner proved that the respondent had treated her with cruelty. Accordingly, the decree of divorce was passed. 16. On a re-appreciation of the oral testimony of the petitioner and her witness(PW1 and PW2), it is seen that the three incidents alleged by the witnesses are stray and trivial incidents that occurred in the span between 2002-2013. The alleged incidents can only be construed as normal wear and tear of married life. The said three instances of cruelty alleged by the petitioner are not adequate and sufficient enough to dissolve a marriage. Even after the first two incidents in 2002-2005, the parties lived happily together, which leads us to the irresistible conclusion that the respondent had condoned the so-called alleged acts ## **Mat.Appeal.No.536 OF 2019** ## **12** of cruelty that was allegedly meted out on her by the respondent/, which dis-entitles the petitioner/respondent for a decree of divorce. 16. In light of the above-said findings and the fact that the parties are now reconciled their differences and are living happily together with their child, and taking note of the spirit and mandate under Order XXXII-A of the Code of Civil Procedure and the aim and objective of the Family Courts Act, 1984 that Court should always lean in favour of harmonious and genuine settlements, especially when the parties iron out their differences and effect a rapprochement , we are of the definite view that the impugned judgment and decree passed by the Family Court in O.P. (Div) 767/2013 is erroneous and liable to the set aside. **Mat.Appeal.No.536 OF 2019** **13** In the result, the Mat.Appeal is allowed and the judgment and decree passed in O.P (Div) No. 767/2013 of the Family Court, Thiruvalla is set aside. The parties are directed to suffer their respective costs. **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** **Sd/-** ma/01.02.2021 /True copy/ **C.S.DIAS JUDGE**