Sunija Kumari E.C. v. Rajendhran K.S.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945** **MAT.APPEAL NO. 47 OF 2019** **AGAINST THE JUDGMENT AND THE DECREE DATED 15/09/2018 IN OP** **1449/2015 OF FAMILY COURT,ERNAKULAM** ## **APPELLANT/RESPONDENT:** **SUNIJA KUMARI E.C., AGED 43 YEARS D/O CHANDRASEKARAN NAIR, THEKKEDATH HOUSE, JAVAHAR NAGAR-105, NILESWARAM P.O., KOTTARAKKARA, KOLLAM DISTRICT. BY ADVS. P.SANTHOSH KUMAR (PANAMPALLI NAGAR) SRI.C.I.ABRAHAM SRI.K.P.CHANDRASEKHAR SMT.BINDU ABRAHAM SMT.DEEPTHI G. NAIR** ## **RESPONDENT/PETITIONER:** **RAJENDHRAN K.S., AGED 53 YEARS S/O SIVARAMAN PILLAI, LAKSHMI MADAM, NARAYANTHUKUZHI ROAD, CHOTTANIKKARA, ERNAKULAM DISTRICT-682312.** **BY ADVS. SRI.R.SANJITH SMT.K.JASMIN BABY SMT.C.S.SINDHU KRISHNAH** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 12/10/2023, THE COURT ON 01/11/2023 DELIVERED THE FOLLOWING:** Mat.Appeal No. 47 of 2019 2 **AMIT RAWAL & C.S.SUDHA, JJ. ----------------------------------------------------Mat.Appeal No. 47 of 2019 ---------------------------------------------------Dated this the 1[st] day of November, 2023** ## **J U D G M E N T** ## **C.S.Sudha, J.** This appeal under section 19(1) of the Family Courts Act, 1984 has been filed by the respondent/wife in O.P.No. 1449/2015 on the file of the Family Court, Ernakulam, against the order granting divorce in favour of the petitioner/husband on the ground of cruelty. The parties in this appeal will be referred to as described in the original proceedings. 2. The marriage of the petitioner and the respondent was solemnized on 23/03/1998 as per the rites and customs of the community to which they belong. In the wedlock, two children, named, Midhun Raj and Nidhin Raj, aged 16 and 12 years respectively, were born. From the time of the marriage, the respondent had adopted a non-cooperative attitude. She was not ready to do the household chores. She used to wake up late and never prepare food for the children, who were forced to eat food from the school canteen. The respondent was also quite quarrelsome, and she used to find fault with the petitioner and fight with him for no Mat.Appeal No. 47 of 2019 3 reason. The respondent failed to discharge her marital obligations. They used to sleep in separate rooms. She never showed any inclination to have coitus with the petitioner. However, on 31/03/2014, she approached the petitioner with intention to have coitus with him. After 8 days of the coitus, the respondent informed the petitioner that she was pregnant. On 08/04/2014, they went to the hospital and on checkup it was confirmed that the respondent was pregnant. On 02/06/2014 the respondent underwent tubectomy. In the last week of August 2014, the petitioner happened to see the respondent in a compromising position with one Alias Mathew, with whom she had been maintaining an illicit relationship. After the said incident, the respondent stayed away from the petitioner for about five (5) months. On 23/01/2015, she left the matrimonial home along with her brother. The respondent had confessed of her relationship with Alias Mathew to the petitioner's brother. The conduct of the respondent has made it impossible for the petitioner to live with her. The respondent deserted the petitioner with the intention of putting an end to the marital relationship. The petitioner on above allegations, sought a decree of divorce on the ground of cruelty on the part of the respondent. 3. The respondent/wife filed objection and denied the allegations of cruelty and adulterous relationship with Alias Mathew. Rather it was averred that the petitioner always suspected the fidelity of the Mat.Appeal No. 47 of 2019 4 respondent. Right from the beginning of the marriage, he suspected the respondent to be having illicit relationship with others and even went to the extent of alleging that she has an adulterous relation with her maternal uncle. The respondent's mother passed away while she was a young child and hence her father remarried. Therefore, she was brought up by maternal grandmother and her maternal uncle at the tharavad house of her mother. The petitioner, due to his suspicious character had even gone to the extent of attributing paternity of the elder child on the uncle of the respondent. The allegation that the respondent never used to do the household chores or cook food for the family was emphatically denied and said to be false. The petitioner installed a Close Circuit TV camera for the purpose of watching and recording the activities and movements of the respondent. The alleged illicit relationship of the respondent with Alias Mathew is false and incorrect. The said person has also not been arrayed as a party in the petition. There was no cause of action for the filing of the petition as the allegations referred to in the petition were said to be false. The respondent contended that the petitioner is not entitled to the relief prayed for. 4. After completion of the pleadings, the parties went to trial. PW1 to PW4 were examined and Ext.A1 to A6 series were marked on the side of the petitioner. RW1 was examined and Exts.B1 to B2 were marked on the side of the respondent. The family court on an appreciation of the Mat.Appeal No. 47 of 2019 5 oral and documentary evidence and after hearing both sides, allowed the petition granting a decree of divorce on the ground of cruelty. Aggrieved, the respondent/wife has come up in appeal. 5. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the family court calling for an interference by this Court. 6. Heard both sides. 7. The petition is seen filed before the Family Court under Section 13 of the Hindu Marriage Act, 1955(the Act). There is no reference to the Clause(s) of sub-section (1) to Section 13 under which the petition has been filed. It is true that merely because the provision(s) of law or Section has not been specified, is no ground to reject the petition. The family court has granted a decree of divorce to the husband on the ground of cruelty. Section 13 (1) (ia) of the Act says 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, after the solemnization of the marriage, treated the petitioner with cruelty. The legal concept of cruelty which is not defined by the statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such Mat.Appeal No. 47 of 2019 6 danger. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious, having regard to the circumstances of the case. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal, then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as contemplated in the Section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance. 7.1. In a case of cruelty, it must be proved that one partner in the marriage however mindless of the consequences behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. As to what constitute the required mental Mat.Appeal No. 47 of 2019 7 cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. In determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status. **(See Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778).** 8. Having thus reminded ourselves of the law on this point, let us consider whether the acts of cruelty alleged to have been committed by the respondent/wife herein entitles the petitioner/husband to a decree of divorce under Section 13 (ia) of the Act. The case of the petitioner is that he is entitled to a decree of divorce on the ground of cruelty. His case of cruelty is based on two grounds- (i) refusal/inability of the respondent/wife to do household chores and (ii) adulterous relationship of the respondent/wife before and after the marriage. This conduct of the wife has caused him great mental strain and hardship and hence he alleges that he is entitled to a decree of divorce on the ground of cruelty by the respondent/wife. The respondent/wife has denied all the aforesaid allegations. Mat.Appeal No. 47 of 2019 8 9. To establish the failure/refusal of the respondent to do household chores besides other allegations, the petitioner has examined himself as PW1, his brother as PW2 and the elder son of the couple as PW3. PW1 and PW2 in the chief examination deposed that right from the beginning of the marriage, the respondent was not co-operative and refused to do household chores impelling the petitioner to buy food for the family from hotels and canteens. PW3, the son of couple, also deposed so in his chief examination. However, in the cross examination, PW1 and PW3 admit that during the respondent's stay with them, she did do the household chores, which according to them was occasionally and it appears not to their satisfaction. Therefore, the case set up by the petitioner that the respondent never used to do any household chores does not appear to be correct. Furthermore, the refusal or inability of the wife to do household chores cannot be made a ground of cruelty based on which divorce can be granted. Here we refer to a few decisions of other High Courts in the matter. In **Mukesh Kumar v. Chanchal, 2006 SCC OnLine Del 1134** , the husband/petitioner, while seeking divorce on the ground of cruelty alleged that his wife did not assist him in the household work. The court dismissed the appeal on lack of evidence but observed that a factor that must be kept in mind while dealing with such allegations is, that the wife was working, and perhaps the expectation of the husband that she would Mat.Appeal No. 47 of 2019 9 tend to all the household chores as well as continue to work, with equal zest, is unreasonable. 9.1. In **Rajesh Kumar v. Usha, 2019 SCC OnLine P&H 6865,** of the High Court of Punjab and Haryana, the allegations of the appellant/husband was that the respondent/wife was being overly attached to her parents; does not know even basic cooking and behaving rudely to him. Rejecting the said allegations it was held that the said conduct of the wife cannot be said to constitute cruelty. At best, they can be said to be trivial issues, which may and do arise between spouses in any marriage. 9.2. In **Vishal Singh v. Priya, 2020 SCC Online Del 638:AIR 2021 Del 10** , one of the grounds asserted by the husband as cruelty was the conduct of the wife in keping herself to her room and showing disinclination to do any household work or cook food. The Delhi High Court dismissing these allegations held that a new bride is generally hesitant in her new surroundings in the matrimonial home. A duty is cast upon the husband’s family to make the new bride feel at home and accept her as a family member. Therefore, the mere conduct of the respondent/ wife of being interested in remaining in her room or not showing initiative in doing household work can by no stretch of imagination be described as cruel behaviour towards the husband or his family. Mat.Appeal No. 47 of 2019 10 9.3. The Bombay High Court in **Girish Gopinath Rallapali v. Kalavati Girish Rallapali, Family Court Appeal No.31 of 2003** , dealt with a case where question whether the inability of the wife in discharging her matrimonial duties of cooking food or doing household chores properly by itself could be taken as a ground to issue a decree of divorce. The Court held that the inability of the wife in discharging her matrimonial duties properly by itself cannot be a ground to straightway grant decree of divorce. It must be established that the wife was in a position to properly discharge her matrimonial duties and she was not doing so only to harass the husband. Mere inability of the spouse to discharge his/her matrimonial duties would not amount to cruelty to grant decree of divorce in terms of Section 13 (1) (ia) of the Act. 10. We are in respectful agreement with the aforesaid decisions and hold that mere refusal or inability of the wife to do household chores would not amount to cruelty entitling the husband to a decree of divorce under Section 13 (1) (ia) of the Act . 11. The second ground alleged is the adulterous behavior of the respondent/wife. Section 13(1)(i) says that 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 has, after the solemnization of Mat.Appeal No. 47 of 2019 11 the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Rule 11(a) of the Hindu Marriage (Kerala Rules), 1963, (the Rules) says that in every petition for divorce or judicial separation on the ground that the respondent is living in adultery or has, after the solemnization of the marriage, had sexual intercourse with any person, the petitioner shall make such person a co-respondent. Rule 11(d) says that the petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of the co-respondent in cases covered by sub-rule (a) on the following grounds – namely, (i) that the name of such person is unknown to the petitioner although he has made efforts for discovery; (ii) that such person is dead; (iii) that the respondent being the wife is leading the life of a prostitute and the petitioner knows of no person with whom she has committed adultery or has had sexual intercourse; and (iv) for any other reason that the Court may deem fit and sufficient to consider. 12. According to the petitioner, after the marriage the respondent/wife confessed to have been in a relationship with another person with whom she had physical relations also. The respondent sought for forgiveness and hence he forgave her. Even if this allegation of the petitioner is true, the same cannot be made a ground for divorce because going by Section 13(1)(i), it is adulterous relationship of a spouse after the Mat.Appeal No. 47 of 2019 12 solemnization of marriage that entitles the other spouse to seek a decree of divorce. Therefore, the alleged relationship of the respondent/wife with a person before the marriage cannot be taken to be a ground for divorce. 13. The petitioner has a further case that he had seen the respondent/wife in a compromising position with one Alias Mathew. In fact, his case is that on a night, inside a room in his house on the first floor, he had seen his wife in _flagrante delicto_ with one Alias Mathew. On seeing the petitioner, the paramour of the respondent is alleged to have escaped by jumping over the terrace and riding away in his scooter. This allegation clearly comes under Section 13(1)(i) of the Act. So, the adulterer ought to have been made a party as provided in Rule 11(a). The petitioner has not given any reasons for not making the alleged adulterer a party in the proceeding. He has no case that any of the grounds referred to in Rule 11 (d) is applicable here. In terms of Rule 11(a), as it is mandatory that the alleged adulterer be made a party to the proceedings and as he has not been made a party, the petition is not maintainable on the said ground. (See **Kunhiraman v. Santha, 1998 KHC 103** and **Soya v. A.K.Mohanan, 2005 KHC 1933** ) 14. The respondent/wife also disputes the territorial jurisdiction of the Family Court, Ernakulam. According to her, as per Section 19 of the Act, every petition under the Act shall be presented to the District Court Mat.Appeal No. 47 of 2019 13 within the local limits of whose ordinary original civil jurisdiction the parties to the marriage last resided together. As per the cause of action stated in the petition, the parties are alleged to have resided together at the petitioner's house at Narayanathukuzhi road, Chottanikkara, Ernakulam district. However, the petitioner, when examined as PW1 in the cross examination admitted that the couple last resided in Puthencruz village. The learned trial judge noticed the fact the said place comes within the jurisdiction of the Family Court, Muvattupuzha. The issue regarding jurisdiction was raised by the respondent/wife at the initial stage itself. The Family Court, as per order dated 10/01/2018 had answered the issue in favour of the petitioner. However, it was brought out in evidence that the Family Court, Ernakulam did not have jurisdiction and that it is the Family Court, Muvattupuzha which has jurisdiction over the matter. It is true that the order dated 10/01/2018 finding the issue of territorial jurisdiction in favour of the petitioner was not challenged by the respondent/wife. But Section 105 CPC does come to her rescue. Section 105(1) CPC says that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect, or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Therefore, an order which had not Mat.Appeal No. 47 of 2019 14 been appealed either because no appeal lay or even though an appeal lay, an appeal was not taken, could be challenged in an appeal from the final decree or order **. (See Satyadhyan v. Smt. Deorajin Debi, AIR 1960 SC 941** and **Sankara Menon v. Gourikutty Amma, 1978 KHC 381).** Therefore, the petition seems defective on account of lack of territorial jurisdiction of the trial court also. 15. Be that as it may, admittedly the parties have been residing separately from the year 2015. Eight (8) years have elapsed and during this period, no attempt whatsoever has been made by either side for any reconciliation or for any attempt for reunion. The marriage between the parties seems to have irretrievably broken down. The petitioner/husband has made it clear he is not interested in continuing with the marital relationship. This appears to be the stand of PW3, the son also. Therefore, there appears no point in asking the parties to continue with a relationship which appears to be dead for all purposes. Where there has been a long period of continuous separation, it can 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 situations, it may lead to mental cruelty to continue to live with the other party. Mat.Appeal No. 47 of 2019 15 ( **Naveen Kohli v. Neelu Kohli, 2006 KHC 621 : (2006) 4 SCC 558** and **Rakesh Raman v. Kavita, 2023 SCC OnLine SC 497)** . Therefore, we confirm the decree of divorce granted by the trial court for reasons referred above. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **AMIT RAWAL JUDGE** **Sd/C.S.SUDHA JUDGE** Jms