Sreeja B. v. Aneeshkumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** **MAT.APPEAL NO. 321 OF 2017** **AGAINST THE JUDGMENT DATED 11.01.2017 IN O.P.NO.751 OF 2013 OF THE FAMILY COURT, OTTAPPALAM** ## **APPELLANT/PETITIONER:** ## **SREEJA B.,** **AGED 25 YEARS, D/O.CHEMBRAVALAPPIL BABU KATHIRAVAN, RESIDING AT SREEJA NIVAS, MUTHALIYAR THERUVU, SHORANUR VILLAGE, OTTAPALAM TALUK,PALAKKAD DISTRICT, PIN - 679 121.** **BY SRI K.RAMANI, SR.ADVOCATE ADV SHRI.S.SATHISH KUMAR** ## **RESPONDENT/RESPONDENT:** **1 ANEESHKUMAR AGED 35 YEARS, S/O.SWAMINATHAN, CHEMBREVALAPPIL, MUTHALIYAR THERUVU, SHORANUR VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679 121.** **2 V.SUBRAMANIAM(THIRD PARTY) S/O.VIJAYA PURI, AGED 55 YEARS, RESIDING AT 395-D, GIRI AMMAN KOIL STREET, PEELAMEDU, COIMBATORE, PIN-641 004.** **BY ADVS. SRI.P.JAYARAM K.RAVI (PARIYARATH)** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 28.09.2022, THE COURT ON 21.10.2022 DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.321 of 2017 ## **JUDGMENT** ## Ajithkumar, J. The petitioner in O.P.No.751 of 2013 on the file of the Family Court, Ottappalam is the appellant. She filed the O.P. seeking a decree of dissolution of marriage on the grounds under Section 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955. The Family Court dismissed the O.P. as per the judgment dated 11.01.2017. Hence, she filed this appeal under Section 19 of the Family Courts Act, 1984. 2. On 03.04.2017, the appeal was admitted and notice was directed to be served on the respondent. 3. Heard the learned Senior Counsel Sri.K.Ramani appeared on instructions for the appellant and the learned counsel Sri.P.Jayaram appeared for the respondent. 4. The twin grounds of adultery and cruelty are set forth as the grounds for dissolution of marriage based on the following allegations. 4.1 The respondent has extramarital relationships with several other women. 3 Mat.Appeal No.321 of 2017 4.2 The appellant was subjected to both mental and physical cruelty. The respondent, his parents and sister-in-law used to harass and torture the appellant asking her to get money from her parents. The respondent demanded to get money from her father for the purpose of purchasing an autorickshaw and a motorcycle. He also demanded Rs.32 lakhs for the purpose of reconstruction of the house in the name of his father. He is a drunkard and has extravaganza in life. He used to demand the appellant money for the said purposes. On several occasions, she was manhandled by the respondent. On 20.06.2012, she was brutally manhandled by the respondent by strangulating, beating at various parts of her body and kicking at her abdomen. Her dress was torn and thus put her to shame. The parents and sister-in-law of the respondent also joined in attacking her. Her parents are residing nearby. When they reached the house of the respondent knowing the attack on her, they were also assaulted by the respondent and his parents. The appellant had to be under treatment in the Government Hospital, 4 Mat.Appeal No.321 of 2017 Shornur and then in the Medical College Hospital, Thrissur. The respondent and his relatives used to harass the appellant with the intention of getting money from her parents. It was never comfortable for her to live with the respondent. 50 sovereigns of gold ornaments given to the appellant at the time of marriage were misappropriated by the respondent. On 20.07.2012, the respondent took away seven sovereigns of gold and Rs.20,000/from the almirah in the house of the appellant. Thus the appellant was subjected to cruelty; both physical and mental. 5. The respondent resisted the petition by refuting the allegations levelled against him. He contended that the allegation of extramarital relationships against him is totally incorrect. He never demanded the appellant to get money from her parents. Ever after the marriage, he had been residing in the house of the appellant. It is totally incorrect that the gold ornaments were entrusted with him and his parents. Neither he nor his parents or sister-in-law demanded money from the appellant. It is true that on 20.06.2012 there occurred an untoward incident at his residence. The appellant 5 Mat.Appeal No.321 of 2017 insisted to assign the land and building belonging to the father of the respondent in her name. Demanding so, the parents of the appellant reached the house of the respondent and quarrelled. The respondent as well as his parents were attacked by the parents of the appellant. They had to undergo treatment. The respondent, his parents or sister-in-law did not assault the appellant or her parents. Thus the respondent maintains that the petition deserves only to be dismissed. 6. PWs.1 and 2 were examined and Exts.A1 to A5 marked on the side of the appellant. RW1 was examined and Ext. B1(a) and B2(a) marked on the side of the respondent. 7. The learned Senior Counsel Sri.K.Ramani at the very outset submitted that the marriage solemnized on 05.05.2011 between the appellant and the respondent did not long last as discord erupted within six months and ever thereafter they have been residing separate. In the wake of such a total breakdown of the marriage and in the absence of any possibility of reunion, the marriage is liable to be dissolved, holding it to be irretrievably broken down. The learned Senior Counsel has stated that this 6 Mat.Appeal No.321 of 2017 Court, Madras High Court, and the Apex Court in some cases have dissolved marriage on the ground of irretrievable breaking down and brought to our attention a few of such decisions. We therefore are obligated to look into, what is the law on that aspect. ## 8. The Apex Court in **Vishnu Dutt Sharma v. Manju** **Sharma [(2009) 6 SCC 379]** considered whether divorce can be ordered on the ground of irretrievable breaking down of the marriage and has held as under:- “10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. 11. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend 7 Mat.Appeal No.321 of 2017 the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant.” 9. The Apex Court granted a decree of divorce in **Sukhendu Das v. Rita Mukherjee [(2017) 9 SCC 632],** but only under Article 142 of the Constitution of India holding that irretrievable breaking down is not available as a ground for divorce. It was held, “This Court in a series of judgments has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted.” ## 10. Again in **Rajendran N. v. S.Valli [ILR 2022 (2) Ker. 1 (SC)]** the Apex Court reiterated the view by holding as follows,- “29. Article 142 of the Constitution undoubtedly clothes this Court with a reservoir of power to pass orders as would reach complete justice to the parties. What comes to mind is the concept of irretrievable breakdown of marriage. Undoubtedly, though there 8 Mat.Appeal No.321 of 2017 have been reports of the Law Commission in this regard recommending changes in the law, as of today the statute does not provide for irretrievable breakdown of marriage as a ground.” 11. Therefore, there is no doubt about the law on the point. Irretrievable breaking down of marriage is not a ground available under the Hindu Marriage Act to claim dissolution of marriage. This Court or the Family Court is not empowered to grant a decree of dissolution of marriage on holding that the marriage is irretrievably broken down. 12. The learned Senior Counsel would submit that the Family Court appreciated the evidence in a totally wrong perspective and that led to the dismissal of the O. P. The evidence was appreciated not as in the case of a civil case. Strict proof was insisted on as in a criminal case. The trivial inconsistencies in the evidence of PW1 were highlighted to disbelieve her. It is contended that such an approach of the Family Court resulted in miscarriage of justice. 13. The learned counsel appearing for the respondent, on the other hand, would submit that a mere reading of the 9 Mat.Appeal No.321 of 2017 oral testimonies of PWs.1 and 2 in juxtaposition of the allegations in the petition, it is quite evident that a false case has been put forth by the appellant. The appellant does not want to live with the respondent since his father's building was not assigned in her favour. The learned counsel urged that the inconsistencies evidenced by Exts.B1(a) and B2(a) alone are enough to disbelieve PW1. He accordingly contended that the findings of the Family Court stand to reasons and are not liable to be interfered with. 14. The learned counsel appearing for the respondent also would contend that the incident occurred on 20.06.2012 was amicably settled between the parties and they resumed cohabitation. When the alleged cruelty was thus condoned, the appellant has no right to claim divorce on the ground of such an act of cruelty. 15. Section 13(1)(i) of the Hindu Marriage Act reads,- “(1) Any marriage solemnized, whether before or after the commencement of this 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- 10 Mat.Appeal No.321 of 2017 (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;” 16. The allegation of the appellant in this regard is that the respondent used to say that she had other women to live with and that he used to go out of the bedroom late at night, leaving the appellant alone. During examination in court, PW1 stated that on the basis of the statements of the respondent, she inferred that he has extramarital relationships with other women. In order for dissolving a marriage under Section 13(1)(i), it has to be proved that the other spouse has had voluntary sexual intercourse with any other person. A mere allegation that the other spouse has extramarital relationships with several persons is too vague an allegation to attract the mischief of Section 13(1)(i) of the Hindu Marriage Act. 17. There must be specific pleadings and proof that the other spouse has had sexual intercourse with any particular individual. On the basis of a vague allegation, without pointing out the person with whom the other spouse had sexual intercourse, and without placing any evidence on 11 Mat.Appeal No.321 of 2017 record, it is not available for a spouse to claim dissolution of marriage under Section 13(1)(i) of the Act. No instance of the respondent having had sexual relationship with any other person is alleged or proved. On the basis of the statements alleged to have been made by the respondent alone, the appellant seeks a decree of divorce on the ground of adultery. The pleading and proof are hardly enough to establish a ground for divorce. Hence, we are of the view that the Family Court rightly had rejected the plea for dissolution of marriage under Section 13(1)(i) of the Act. 18. In order to grant a decree of dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, it has to be proved that the petitioner has been treated with - cruelty. Section 13(1)(ia) of the Hindu Marriage Act reads, “(1) Any marriage solemnized, whether before or after the commencement of this 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 partyxx xx xx (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or” 12 Mat.Appeal No.321 of 2017 19. The cruelty can be either physical or mental or both. Only if the allegation of cruelty is established, the court has jurisdiction to invoke the said provision to order dissolution of the marriage. The question then is what shall be the standard of proof. 20. The learned Senior 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, she had to face adverse findings. The learned Senior Counsel placed reliance on the three-Judge Bench decision of the Apex Court in **Dr.N.G.Dastane v. Mrs.S. Dastane [AIR 1975 SC 1534]** in this respect. 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 13 Mat.Appeal No.321 of 2017 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.” 21. 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 14 Mat.Appeal No.321 of 2017 ## 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 fact-situation 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 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.” 22. 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. 15 Mat.Appeal No.321 of 2017 23. The appellant through the oral testimony of PWs.1 and 2 and Exts.A2 to A4 attempted to establish that the respondent had meted out cruelty both mental and physical sufficient to constitute the ground for a decree of divorce. The allegation in the petition is that the appellant was harassed continuously for compelling her to extract money from her parents. The respondent wanted to purchase motor vehicles and reconstruct the house in the name of his father, and also for his personal necessities, including consumption of alcohol. Further, it is alleged that the respondent had misappropriated 50 sovereigns of gold given to the appellant at the time of marriage. 24. When deposed before the court, PW1 did not strictly adhere to the said allegations. Exts.A2 to A4 are the documents relating to the criminal case initiated against the respondent and his relatives regarding the incident occurred on 20.06.2012. PW1 explained the acts of violence perpetrated upon her by the respondent and his relatives. The inconsistencies pointed out are that the place at which each 16 Mat.Appeal No.321 of 2017 acts of harassment and assault took place are not tallying between the oral testimony of PW1 in court and her statement in M.C.No.29 of 2013 before the Judicial Magistrate of the First Class, Ottappalam. Exts.B1(a) and B2(a) are the contradictions brought about. It may be noted that the respondent does not dispute occurrence of such an incident on 20.06.2012 at his house. Of course, he has a case that the parents of the appellants came there and attacked not only him, but also his parents. It is his allegation that the attack was by demanding to assign property of the respondent's father in favour of the appellant. RW1, the respondent during examination in court admitted occurrence of the incident. It is a fact that the appellant had undergone treatment for five days in a hospital following such an incident, as evidenced by Ext.A4. Exts.A2 and A3 would prove that regarding that incident and also the other incidents of harassment of the appellant, police after investigation arrived at the conclusion that there is reason to initiate prosecution. In such circumstances a few inconsistencies or contradictions surfaced 17 Mat.Appeal No.321 of 2017 in the evidence of PW1 while narrating the incident do not have the effect of discrediting her altogether. After a detailed analysis and appreciation of the evidence on record we are of the view that occurrence of the incident on 20.06.2012 and sustenance of the injury by the appellant in that incident are sufficiently proved. 25. The marriage between the appellant and the respondent solemnized on 05.05.2011. Admittedly, they were residing together in the house of the appellant. It is seen that the residences of the appellant and the respondent are at a distance of about 10-20 metres. Therefore, they would have been moving between the two houses every now and then, and no much importance can be attached to the fact, whether in the house of the appellant or the respondent they were at the time of each incident. On a meticulous consideration of oral testimonies of PWs.1 and 2 and also RW1 in the light of Ext.A2 to A4, the case of the appellant is very much probable. She was put to harassment and subjected to cruelty; not only physical, but also mental. Now the question is whether that 18 Mat.Appeal No.321 of 2017 kind of cruelty is enough to invoke the provisions of Section 13(1)(ia) of the Hindu Marriage Act. ## 26. In **Sobha Rani v. Madhukur Reddi [(1988) 1** **SCC 105]** , the Apex Court explained as to what kind of harassment and treatment of wife can be termed as cruelty constituting a ground for divorce. It was held,- “The evidence as to harassment to the wife to meet any unlawful demand for money is necessary to constitute cruelty in criminal law. It is the requirement of the offence of 'cruelty' defined under Section 498-A of the Indian Penal Code. Section 13(1)(ia) of the Hindu Marriage Act provides that the party has after solemnization of the marriage treated the petitioner with cruelty. What do these words mean? What should be the nature of cruelty? Should it be only intentional, wilful or deliberate? Is it necessary to prove the intention in matrimonial offence? We think not. We have earlier said that cruelty may be of any kind and any variety. It may be different in different cases. It is in relation to the conduct of parties to a marriage. That conduct which is complained of as cruelty by one spouse may not be so for the other spouse. There may be instances of cruelty by the unintentional but inexcusable conduct of any party. The cruel treatment may also result by the cultural conflict of the spouse. In 19 Mat.Appeal No.321 of 2017 such cases, even if the act of cruelty is established, the intention to commit suicide cannot be established. The aggrieved party may not get relief. We do not think that that was the intention with which the Parliament enacted Section 13(1)(ia) of the Hindu Marriage Act. The context and the set up in which the word 'cruelty' has been used in the section, seems to us, that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment.” (underlines supplied) ## 27. In **Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC** **511]** , a three-Judge Bench of the Apex Court explained as to when can a divorce be granted on the ground of cruelty, a term which has not been defined in Section 13(1)(ia) or any other provision in the Hindu Marriage Act. It was held,- “78. xx xx On proper analysis and scrutiny of the 20 Mat.Appeal No.321 of 2017 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. 79. 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. 80. 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 strait jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way 21 Mat.Appeal No.321 of 2017 to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration. 81. 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 22 Mat.Appeal No.321 of 2017 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 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 23 Mat.Appeal No.321 of 2017 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. (underlines supplied) 24 Mat.Appeal No.321 of 2017 28. The issue of matrimonial cruelty was philosophically and constitutionally approached and interpreted by a Division Bench of this Court in **Manoj C.V. v. Vidhya [2010 (2) KLT 305]** as follows,- “There is yet another aspect we would like to clarify. Physical violence and assault has been proved in this case by the evidence of PW1. Can such pieces of physical conduct be held to be a mere incident of the 'ordinary wear and tear of marriage'? This question looms large. We are unable to accept that physical cruelty or physical assault flowing from the dominant spouse against the weaker one can ever be held to be an incident of the 'natural and ordinary wear and tear of marriage'. Let the message go loud and clear that Courts will not reckon and tolerate physical assault by a dominant spouse against a weaker spouse as a mere incident of the natural and ordinary wear and tear of marriage. Such an anachronistic approach shall not persuade any Court to ignore and close its eyes to such objectionable conduct and hold that they do not constitute contumacious matrimonial cruelty justifying a decree for divorce. In our republic, Article 21 of the Constitution must pervade all facets of human life. Home is not out of bounds for the noble sentiments and mandate under Article 21. Physical violence is anathema to law even at home. Courts shall not 25 Mat.Appeal No.321 of 2017 tolerate physical abuse and assault between the spouses also. If the victim condones and continues to condone that is a totally different matter. But in a case where the victim takes objection to such physical assault on her and claims divorce, the proof of such physical assault even if not gross shall and must certainly persuade every Court to agree that matrimonial cruelty of the contumacious variety is established. No husband can claim an anachronistic and chauvinistic privilege in this era to chastise his wife by beating her or physically belabouring her notwithstanding the fact that he may be the security provider or the food provider for the wife. Disapproval of this Court against physical assault on the domestic front must be expressed unambiguously and we hence state with no amount of ambiguity at all that uncondoned physical assaults if proved must definitely lead to acceptance of the plea of the victim spouse for dissolution of marriage on the ground of matrimonial cruelty. Whatever may have been the history and the events of the past, at this juncture in societal and civilisational development, physical assault in the domestic environment against the spouse must be frowned upon in unmistakable terms. The husband can raise his hand to assault his wife only with the full knowledge that if the wife does not condone the same he risks the very marriage. No husband in this country 26 Mat.Appeal No.321 of 2017 shall raise his hands against his wife to assault her whatever be the provocation without risking his marriage if such wife does not condone and chooses to claim divorce on that ground. Even assuming that such conduct is not gross and may not amount to culpable physical cruelty punishable under the penal law that would be actionable cruelty under - matrimonial law warranting termination of marriage whatever be the personal law applicable to parties. No greater disservice to the cause of emancipation and empowerment of women can be done by law and the system than the condonation of such acts on the theory of they are only natural or ordinary wear and tear of married life. Rigid insistence on independent corroborative, ocular versions to prove such contumacious behaviour also results in such gross injustice. Eloquent communication of that message - that Courts shall not mechanically and rigidly insist on ocular corroboration for matrimonial cruelty and that all acts of uncondoned physical cruelty will be accepted as sufficient ground for grant of a decree for divorce, we are certain will help the system and the law to eliminate violence on the domestic front.” 29. In **Joydeep Majumdar v. Bharti Jaiswal Majumdar [(2021) 3 SCC 742]** , a three-Judge Bench of the Apex Court discussed as to what shall be the approach when 27 Mat.Appeal No.321 of 2017 cruelty is considered as a ground for divorce in the following words,- “For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In **Samar Ghosh Vs. Jaya Ghosh, [(2007) 4 SCC 511]** , this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts. 30. Applying the law laid down in the aforesaid decisions, we are of the view that the cruelty meted out on the appellant by the respondent was of that kind, she could not carry forward with the marital relationship with the respondent. 28 Mat.Appeal No.321 of 2017 31. The learned counsel appearing for the respondent would contend that the parties entered into a compromise with respect to the incident that took place on 20.06.2012 at the intervention of the police and the acts on the part of the respondent were condoned thereby, and therefore the appellant is estopped and precluded from claiming divorce on that ground. The learned Senior Counsel for the appellant would rely on **Joydeep Majumdar v. Bharti Jaiswal Majumdar [(2021) 3 SCC 742] and Santhosh Kumar S. v. Jayasree Damodaran [2020 (2) KHC 33]** in order to fortify his contention that the condonation of misdeeds shall be of real in nature and the arrangement made between the parties in order to make an attempt to carry forward with the cohabitation by the parties cannot be termed as a condonation disabling one of the parties to claim divorce. 32. In **Joydeep Majumdar** (supra) the Apex Court after discussing as to what amounts to cruelty, considered when can such an act of cruelty be said to be condoned. In that case there were two compromises. Parents of the spouses were also parties 29 Mat.Appeal No.321 of 2017 to the first one. The second one was between the spouses. After such compromises the husband applied for dissolution of marriage on the ground of mental cruelty. It was held,- “Further, I am unable to accept the contention of learned Senior counsel appearing for the appellant that the respondent has condoned all acts of cruelty by entering into the compromises. The first compromise is between the parents of the parties to this petition. The second one is between the parties themselves. What requires to be noticed is the fact that the compromise only seems to be a cloak for temporary respite and not to accept each other's faults and condone them in the true spirit of forgiveness so that they could look forward for a better future and happy congenial married life. It cannot be said that the appellant who has been constantly threatening the respondent by involving him and his entire family in police cases and also not joining his company does not constitute acts of cruelty.” (underlines supplied) 33. In **Santhosh Kumar** (supra) this Court took the view that condonation of cruelty is a benevolent and generous act of an offended spouse forgiving the misdeeds of the offending spouse and restoring the latter to the original 30 Mat.Appeal No.321 of 2017 company. In every condonation there is an implied condition that the excused spouse will not repeat or commit matrimonial wrongs in future. No wrong is permanently wiped out by condonation; but is only hibernated. An act of cruelty once condoned could certainly revive and give rise to a cause of action for dissolution of marriage, when the offending spouse exploits and takes unfair advantage of the generosity or the benevolence shown by the wronged spouse and takes to matrimonial misdeeds over again. The Court banked on the principle of law laid down in the decision of the Apex Court in **Dr. N.G. Dastane v. Mrs. S. Dasane [1975 (2) SCC 326],** where it was held that condonation of a matrimonial offence is not to be likened to a full Presidential pardon under Art.72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival. 34. Therefore, the law on the point is that a compromise of a criminal case between the spouses in their attempt to carry forward their marital relationship cannot be a condonation thereby absolving the offending party from every 31 Mat.Appeal No.321 of 2017 consequence that may flow from such misdeeds. The circumstances arising from the evidence in this case would show that the appellant forgave the respondent and his relatives in order to make a congenial atmosphere for their continued marital life. It is seen that although they started living together, on 20.07.2012 there arose skirmishes in their marital relationship resulting in their separation, which never thereafter could be resumed. In such a situation it cannot be said that the appellant is disentitled from raising the incident on 20.06.2012 as a reason for claiming divorce. We are of the view that the contention of the respondent is unsustainable and the finding of the Family Court in this respect is liable to be reversed. 35. In view of what are stated above, we are of the view that the findings of the Family Court resulting in rejection of the plea for divorce on the ground of cruelty is liable to be reversed. The appellant is entitled to get a decree of dissolution of marriage on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act. The 32 Mat.Appeal No.321 of 2017 appeal is allowed and on setting aside the impugned judgment dated 11.01.2017, O.P.No.75 of 2013 of the Family Court, Ottappalam is allowed. The marriage between the appellant and the respondent solemnized on 05.05.2011 is dissolved with effect from today. ## **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr