Shibukumar v. Chithra Manjusha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY ,THE 17TH DAY OF AUGUST 2018 / 26TH SRAVANA, 1940 Mat.Appeal.No.248 of 2017** **(AGAINST THE JUDGMENT IN OP 78/2013 of FAMILY COURT, NEDUMANGAD DATED 06-11-2014)** **APPELLANT/PETITIONER:** **SHIBUKUMAR, S/O.LATE RAGHAVAN NAIR, AGED 37 YEARS, CHARUVILA VEEDU, EDAKKODE, KORANI P.O., ATTINGAL, THIRUVANANTHAPURAM.** **BY ADVS.SRI.M.R.RAJESH SMT.E.S.SANDHYA** ## **RESPONDENT/RESPONDENT:** **CHITHRA MANJUSHA, D/O.RADHA, AGED 30 YEARS, CHIRATHALA PUTHEN VEEDU, CHITTAZHA, VATTAPPARA PO, THIRUVANANTHAPURAM, NOW RESIDING AT ADITHYA BHAVAN, KAMUKINKUZHY ROAD,PULINJALUMMODU, KOVALAM P.O., VENGANOOR P.O., VENGANOOR VILLAGE, THIRUVANANTHAPURAM-695 527.** **BY ADVS.SRI.V.G.ARUN (K/795/2004) SMT.INDULEKHA JOSEPH SRI.NEERAJ NARAYAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10.08.2018, THE COURT ON 17.08.2018 DELIVERED THE FOLLOWING:** _**Mat.Appeal.No.248 of 2017**_ 2 ## **JUDGEMENT** ## _R. Narayana Pisharadi, J_ The husband is the appellant and the wife is the respondent in this appeal which arises out of the judgment passed by the Family Court, Nedumangad in O.P.No.78/2013. 2. The husband filed the original petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'), for granting a decree of divorce on the grounds of cruelty and desertion by the wife. He also prayed for granting a decree for return of gold ornaments weighing six sovereigns given to her by him. (Subsequently the claim for return of the gold ornaments was abandoned by him). He alleged commission of various acts of cruelty by the wife. He also pleaded that the wife deserted him from 1.10.2007 onwards without any reason. 3. The wife filed counter statement in the original petition refuting the allegations raised against her by the husband. 4. During the trial of the case, the husband was examined as PW1 and his sister was examined as PW2 and Exts.P1 to P4 documents were marked on his side. The wife was examined as CPW1. 5. The Family Court found that the husband failed to establish _**Mat.Appeal.No.248 of 2017**_ 3 commission of any act of cruelty by the wife. The Family Court also found that the husband failed to prove the ingredients of desertion. Accordingly, the Family Court dismissed the original petition filed by the husband. He has come up in appeal challenging the judgment passed by the Family Court. 6. The parties shall be hereinafter referred to as the petitioner and the respondent as they figure in O.P.No.78/2013 in the court below. 7. The marriage between the petitioner and the respondent was on 12.7.2007. A daughter was born to them. At the time of filing the original petition, the daughter was aged 4½ years. There is no dispute with regard to these facts. 8. The petitioner has alleged in the original petition that the wife was mentally deficient in all her activities and that she did not enjoy sex. He has alleged that she behaved in a cruel and irresponsible and totally indifferent manner and mentally tortured him by calling him names and using abusive words against him. He has alleged that on 28.9.2007, the respondent told him that he is a beggar born to an ugly street dog. When he advised her to consult a psychiatrist, she beat him and used foul and filthy language against him in front of his friends and relatives. The petitioner has also alleged that on 8.1.2010, the respondent called him as an ugly _**Mat.Appeal.No.248 of 2017**_ 4 donkey. She filed a false complaint against him before the Kerala Women's Commission but it was dismissed on 7.8.2010. 9. Section 13(1)(ia) of the Act provides that any marriage solemnised, whether before or after the commencement of the Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnisation of the marriage, treated the petitioner with cruelty. Therefore, the question arises whether the acts alleged to have been committed by the wife have been established by the petitioner and whether such acts amount to cruelty. 10. There is no reliable evidence to find that the wife had committed any acts of physical cruelty towards the husband. It is alleged in the original petition that the petitioner told his wife to consult a psychiatrist when she insulted him in front of his relatives and friends and then she beat him. Even in the affidavit filed by the petitioner in lieu of examination-in-chief, he has not mentioned such an incident. There is no satisfactory evidence to find that the respondent had tortured him physically. 11. The sister of the petitioner was examined as PW2. She has no direct knowledge regarding the disputes between the petitioner and the respondent. She has got only hearsay knowledge of such matters. Therefore, the evidence of PW2 in that regard does not require _**Mat.Appeal.No.248 of 2017**_ 5 consideration at all. 12. There is also no evidence to find that the respondent was suffering from any mental deficiency as alleged in the original petition. 13. PW1 has stated in the affidavit filed in lieu of examination-in-chief that on 28.9.2007, the respondent told him that he is a beggar born to an ugly street dog and she does not want him. His evidence in that regard remains unchallenged in the cross examination of him by the respondent. Further, when examined as CPW1, the respondent has not specifically denied in her evidence the aforesaid incident. Therefore, the allegation raised by the petitioner that the respondent called him a beggar born to an ugly street dog stands established. The Family Court has not appreciated the evidence given by the petitioner and the respondent in the proper perspective in finding that such an incident has not been proved. 14. The petitioner went abroad on 30.9.2007. He came back only in March, 2010 when his father died. PW1 has given evidence that when he called the respondent over phone from abroad, she used to insult and abuse him. However, there is no plea made in that regard in the original petition and the evidence given by PW1 to that effect does not require consideration for that reason. 15. It is alleged in the original petition that on 8.1.2010, _**Mat.Appeal.No.248 of 2017**_ 6 the respondent called the petitioner an ugly donkey. But, even in examination-in-chief, PW1 has not given evidence to that effect. Therefore, this allegation raised against the respondent by the petitioner is not substantiated. 16. A liberal approach has to be adopted in dealing with various clauses of sub-section (1) of Section 13 of the Act and full meaning should be given to the words used by the legislature in that provision. Cruelty consists of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty (See _**Sujata Uday Patil v. Uday Madhukar Patil: (2006) 13 SCC 272**_ ). What is cruelty in one case may not amount to cruelty in 7 _**Mat.Appeal.No.248 of 2017**_ another 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 (See _**Samar Ghosh v. Jaya Ghosh: (2007) 4 SCC 511**_ ). 17. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. Cruelty in matrimonial cases can be of infinite variety - it may be subtle or even brutal and may be by gestures and words (See _**Ravi Kumar v. Julmidevi: (2010) 4 SCC 476**_ ). When the evidence brought on record clearly establishes a sustained attitude of causing humiliation and calculated torture on the part of the wife to make the life of the husband miserable, it would amount to mental cruelty (See _**Vishwanath**_ ## _**Agrawal v. Sarla Vishwanath Agrawal: AIR 2012 SC 2586).**_ 18. _**In Samar Ghosh**_ (supra), the Apex Court has enumerated certain instances as illustrative of the acts of cruelty. The Apex Court held: _**Mat.Appeal.No.248 of 2017**_ 8 _“The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:_ _(i) On consideration of the complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make it possible for the parties to live with each other, could come within the broad parameters of mental cruelty;_ _(ii) On a comprehensive appraisal of the entire matrimonial life of the parties, if 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; but 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 the 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 the 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 cause 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_ _**Mat.Appeal.No.248 of 2017**_ 9 _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”._ 19. In the instant case, as found earlier, the allegation raised against the respondent that she told the petitioner that he is a beggar born to an ugly street dog, has been proved. It cannot be treated as a single incidence of an outburst made by the respondent. It is an aspersion cast not only on the petitioner but also on his _**Mat.Appeal.No.248 of 2017**_ 10 father by the respondent. It cannot be considered as a silly expression of hatred. It indicates the behaviour pattern of the respondent and the mental cruelty meted out by her to the petitioner. Mental cruelty can cause more harm and injury than physical harm. Physical violence is always not essential to constitute cruelty. Verbal abuses and insults by using filthy and abusive language leading to disturbance of the mental peace of the spouse amount to cruelty. 20. In this connection, it is also to be noted that the respondent had made Ext.P1 complaint against the petitioner, his parents and his sister before the Keala Women's Commission. The allegation raised in that complaint was that the mother and the sister of the petitioner treated her in a cruel manner. The relief prayed for by her in Ext.P1 complaint was that the petitioner may be directed to take out a rented house for their separate residence. There is no dispute with regard to the fact that Ext.P1 complaint was dismissed by the Kerala Women's Commission. The respondent has admitted this fact. However, in the counter statement filed by her, she would even go to the extent of saying that it was on account of the influence made by the petitioner that the Kerala Women's Commission dismissed her complaint. 21. When examined as CPW1, the respondent has stated on _**Mat.Appeal.No.248 of 2017**_ 11 cross examination that she had filed a complaint against the petitioner and his relatives in the Kovalam Police Station. She has also stated that she had made a complaint to the Deputy Superintendent of Police, Attingal against the petitioner and his sister. She has further stated on cross examination that she had given a complaint against the husband of the elder sister of the petitioner. She has no plea that the police registered any case on the basis of these complaints made against the petitioner and his relatives. She has also got no case that inspite of the inaction of the police she took any further action pursuing those complaints. In other words, it has been proved that the respondent was in the habit of making false complaints against her husband and his relatives. 22. The Family Court has found that mere filing of a complaint by the wife against the husband cannot be treated as an act of cruelty. The Family Court has relied upon the decisions of other High Courts to enter such a finding. But, it is to be noted that there is a catena of decisions of the Apex Court and also by this Court that filing false complaints against the spouse amounts to an act of cruelty. 23. In _**Srinivas Rao v. D. A. Deepa: AIR 2013 SC 2176**_ , the Apex Court has held that filing repeated false complaints amounts to causing mental cruelty to the other spouse. In _**Srinivas v. Sunita :**_ 12 _**Mat.Appeal.No.248 of 2017**_ _**(2014) 16 SCC 34**_ , it has been held that it is now beyond cavil that if a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce. In _**Naveen Kohli v.**_ _**Neelu Kohli : AIR 2006 SC 1675**_ , it has been held that making false complaints before the police and authorities causing innumerable mental stress and making false and defamatory allegations will amount to mental cruelty. In _**David v. Mercy: 2013 (3) KHC 739**_ , this Court has held that filing false petitions before Women's Commission, Lok Ayuktha and State Human Rights Commission against the husband amounts to instances of mental cruelty. 24. In the instant case, it has come out in the evidence of the respondent that she used to file complaints not only against the petitioner but also his relatives and that they were baseless complaints. Such act of the respondent filing frivolous and baseless complaints against the petitioner and his relatives also amounted to cruelty. 25. The conduct and behaviour of the respondent were of such a nature that it caused mental agony and stress to the petitioner making it impossible for him to live together with her. The cumulative effect of the acts of the respondent will go to show that her intention was to harass the husband making matrimonial life _**Mat.Appeal.No.248 of 2017**_ 13 impossible with her. We are satisfied that the petitioner had been treated with cruelty by the respondent and that he is entitled to get a decree for divorce on the ground of cruelty under Section 13(1)(ia) of the Act. 26. The petitioner has sought a decree of divorce also on the ground of desertion. Section 13 (1) (ib) of the Act provides that any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The explanation provided to this provision states that the expression "desertion" means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. 27. The specific averment in the original petition is that the respondent deserted the petitioner from 1.10.2007 onwards. The marriage between the petitioner and the respondent was on 12.7.2007. On 30.09.2007, the petitioner had gone abroad. He came back only in _**Mat.Appeal.No.248 of 2017**_ 14 the year 2010 when his father died. The petitioner has no case that he did not again go abroad. The original petition was filed on 16.09.2013. If the respondent was living in her house during the period when the petitioner was abroad, it cannot be found that she had deserted the petitioner. The original petition does not contain the particulars regarding the dates on which the petitioner went abroad and came back. 28. The essential ingredients of desertion are the factum of separation and the intention to bring cohabitation permanently to an end. It is well settled that in order to get a decree for divorce on the ground of desertion, the petitioner has to prove that the opposite party wilfully stayed away from him/her company and abstained from cohabitation without any reason with the intention to put an end to the marital relationship. The mere fact of staying away by one party from the company of the other without any intention to put an end to the marital relationship is not sufficient to infer that there was desertion. 29. In the present case, the petitioner has not proved that the respondent is guilty of desertion and he is not entitled to get a decree of divorce on that ground. 30. In this connection, it is also to be noted that during the pendency of the proceedings before the Family Court, a mediation took _**Mat.Appeal.No.248 of 2017**_ 15 place to settle the disputes between the parties and an agreement was reached between them. As per this agreement, on certain other conditions, the parties had agreed that they shall file a joint petition for divorce. However, thereafter the respondent backed out of the mutual agreement. Even at this stage, the respondent does not want divorce by mutual consent. Admittedly, there has not been any marital relationship between the petitioner and the respondent for the past five and a half years. 31. In this context, we deem it appropriate to extract the observations made by the Apex Court in the decision in _**Naveen Kholi**_ ## _**v. Neelu Kohli : AIR 2006 SC 1675**_ , which read as follows: _“83. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our minds that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again._ _84. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist._ _85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as_ _**Mat.Appeal.No.248 of 2017**_ 16 _long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality._ _xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 87. The High Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties”._ 32. In the instant case, we have already found that the petitioner is entitled to get a decree of divorce on the ground of cruelty. We also notice that the marriage between the petitioner and the respondent has irretrievably broken down and there is no meaning in trying to keep them tied together to a marriage and in prolonging the agony of the petitioner. 33. The discussion above leads to the conclusion that the petitioner is entitled to get a decree of divorce against the respondent on the ground of cruelty but he is not entitled to get a decree of divorce on the ground of desertion. Consequently, we allow the appeal in part and modify the judgment and decree passed by the Family Court. The petitioner/appellant is granted a decree of divorce by dissolving the marriage between him and the respondent. The parties shall suffer their respective costs throughout. _**Mat.Appeal.No.248 of 2017**_ 17 ## **Sd/-** **C.K.ABDUL REHIM** **Judge** **Sd/-** **R. NARAYANA PISHARADI** **Judge** ss