Tiju Thomas v Nimmy K. Simon

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940** **Mat.Appeal.No. 156 of 2011** **AGAINST THE ORDER DATED 22.11.2010 IN OP 687/2008 of FAMILY COURT,THRISSUR** ## **APPELLANT/PETITIONER:** **TIJU THOMAS, AGED 29 YEARS, S/O.CHIRAKKUNNEL THOMAS, MOTHIRAKKANNY DESOM, PARIARAM VILLAGE, MUKUNDAPURAM TALUK.** **BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS** ## **RESPONDENT/RESPONDENT:** **NIMMY K.SIMON, AGED 26 YEARS, D/O.KOLOTH SIMON, PACHALAM DESOM, KOCHI TALUK,, 682 012, NOW RESIDING AT: NIMMY K.SIOMON, C/O.JAMES, ILLICKAL HOUSE, UDYOGAMANDAL, ELOOR FERRY, ERNAKULAM DISTRICT, PIN 683 501.** **BY ADVS. SRI.T.M.RAMAN KARTHA SMT.M.C.SANITHA SRI.I.SREEHARI SRI.JOJO GEORGE** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.8.2018, THE COURT ON 08.11.2018 DELIVERED THE FOLLOWING:** 2 Mat.A.No.156/2011 ## **JUDGMENT** ## **SHAFFIQUE, J** This appeal is filed by the petitioner in O.P.No. 687/2008 of the Family Court, Thrissur. The original petition was filed for divorce under Section 10 (1) (iii)(x) of the Divorce Act, 1869 (hereinafter referred to as “the Act” for short). 2. The averments in the petition in brief as under. The petitioner married the respondent on 21.10.2007 as per the religious custom prevailed among the community. Allegation raised by the petitioner was that even from the date of marriage she started behaving indifferently with the petitioner and his parents. She often quarrelled with petitioner's mother and when asked about the same she replied she would do whatever she wanted. She was not interested in having sexual relationship with petitioner. On a particular day, the couple were travelling in a motor bike and when it stopped at Chalakkudy traffic signal, she got down and left the place without saying anything to the petitioner. Though the petitioner called her she did not care. The matter was informed to her parents and later he came to know that she reached her house in the night. According to the petitioner her behaviour was abnormal. Her mother committed suicide during her childhood. Her father has no connection with her and he even did not attend the marriage. She created problems in the private college where she was 3 ## Mat.A.No.156/2011 working as a teacher. She even told the petitioner that she was not interested in marrying him and she agreed for the marriage only due to the compulsion of the relatives. Though mediation was done on 23.3.2008 in her house in the presence of relatives, she behaved like a mentally ill person and she insisted for divorce. It was contended that, the relatives conducted her marriage with the petitioner by suppressing the fact of her mental illness. She threatened that she would commit suicide and make the petitioner and his parents accused. The marriage was irretrievably broken and hence the petition for divorce. 3. In the counter statement she denied all the allegations levelled against her. According to her, the petitioner was compelled by his parents to file the case and it was at their instance he sought divorce. 4. Before the Family Court, PW1 and PW2 were examined on the side of petitioner and on respondent's side she herself was examined as RW1. 5. The Family Court was not satisfied with the evidence adduced in the matter and opined that there is no material to arrive at a conclusion that the petitioner suffered any cruelty at the hands of the respondent and that she was having any mental illness. 6. Section 10(1)(iii)(x) of the Act reads as under: - “ **10. Grounds for dissolution of marriage** :- (1) Any 4 Mat.A.No.156/2011 marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent- xxxxxx (iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or xxxxxx (x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.” 7. In order to sustain a claim for divorce on the ground of unsoundness of mind of the spouse, the petitioner has to prove that she has been incurably of unsound mind continuously for a period of not less than two years immediately preceding the filing of petition and in regard to cruelty the petitioner will have to prove that the petitioner was treated with cruelty as to cause reasonable apprehension that it is harmful or injurious to live with the respondent. 8. As far as the allegation of unsoundness of mind of the spouse is concerned, it should be incurable and that she would have been suffering from the disease during the previous two year period from the date of presenting the petition. Apparently, such a contention can be proved only by adducing medical evidence. In order to prove the said 5 Mat.A.No.156/2011 allegation, other than the petitioner, the witness examined was the father of the petitioner. Of course, PW1 and PW2 in their evidence have stated about the behaviour of the respondent. But there is no medical evidence to arrive at such a conclusion. 9. The petitioner/appellant had filed I.A.No. 982/2017 producing certain photostat copies of the messages allegedly received by the petitioner from the mobile number of the respondent to the petitioner's mobile number. It is stated that though the messages were sent after the filing of the appeal, from the message it could be discerned that she was demanding divorce. 10. We don't think that we should endeavor to consider these documents as additional evidence especially when the respondent in her counter affidavit had denied the veracity of the said messages. 11. She had also filed a petition as I.A.No. 2540/2018 to receive additional documents. Annexure R1 is the photocopy of the receipt to indicate that she had submitted a thesis to the Mahatma Gandhi University on 07.08.2017. 12. At any rate taking into account the fact that there is no evidence to prove mental disorder, the Family Court is justified in rejecting the said claim and we confirm the same. 13. The other question to be considered is whether the petitioner has suffered any cruelty at the hands of respondent. 6 Mat.A.No.156/2011 14. The parties lived together only for a period of three months. They have no children. According to the respondent they lived together for five months. Therefore, on admitted facts, after five months from the date of marriage, they are living separately and though several attempts for mediation were tried even before this Court, there is no chance for any reunion. The respondent do not want to live with the petitioner and the petitioner does not want to continue with the marital life. 15. What amounts to cruelty has been explained by the Apex Court in **A. Jayachandra v. Aneel Kaur,** [(2005) 2 SCC 22] paragraph 10 to 14 are extracted herein: **“10.** The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and 7 Mat.A.No.156/2011 certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. **11.** The expression “cruelty” has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or 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. (See _Shobha Rani_ v. _Madhukar Reddi_ .) **12.** To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary 8 Mat.A.No.156/2011 wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. **13.** The court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. 9 Mat.A.No.156/2011 Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent. **14.** The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. The courts do not have to deal with ideal husbands and ideal wives. It has to deal with a particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. [See _N.G. Dastane (Dr.)_ v. _S. Dastane_ .]” 16. What amounts to mental cruelty had been considered by Apex ## Court in **Samar Ghosh v. Jaya Ghosh** [(2007) 4 SCC 511]. Paragraph 101 of the said judgment reads as under: **"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: ( _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. 10 Mat.A.No.156/2011 ( _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 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 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 sterilisation 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 11 Mat.A.No.156/2011 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.” 17. In the petition it is pleaded that within a short period of their matrimonial life there was conflict between the couple. According to him she used to quarrel with him and his parents and was not interested to have sex. He also narrated the incident, when she walked away from the motor bike and later he understood that she reached her house. It was therefore understood that she was having some mental problem and when enquiry was made at her college, he understood that she was in the habit of creating problem in college also. He even contended that he lost peace of mind after the marriage. Without any reason she used to scold his mother and father and even used to physically assault them. She used to go out of house without even mentioning to any members of the family. In the mediation on 23.3.2008, she behaved as if she is having some mental problem. Even later, on 4.5.2008 when her parents brought her to petitioner's house she created a problem and even in the presence of neighbours, she abused petitioner and the family members. She even threatened that he and his family members will not be permitted to live peacefully and then she entered the room and sat there. With very difficulty the respondent's parents took her from the matrimonial house. Even parents and relatives were sympathetic 12 Mat.A.No.156/2011 towards the petitioner and the family. 18. In her counter statement she denied the allegations and according to her the parents of the petitioner was responsible for the opinion of the petitioner. PW1 and PW2 in their evidence had clearly stated the manner in which respondent was behaving in their house. Despite effective cross examination, nothing was brought out to discredit their version. 19. The respondent alone had given evidence. None of the mediators who participated in the mediation was examined to prove the exact cause of separation. The fact that they separated long ago, i.e., by 3/5 months after the marriage by itself proves that there was problem with the couple. 20. The marriage has been irretrievably broken and we don't find any chance for reunion. The question is whether the allegations raised by the petitioner is trivial or does it amount to a situation where he was not able to live with her. From the narration of events he had projected in the petition, it is rather clear that she was not behaving properly to himself and towards his parents and they were being insulted on a dayto-day basis. She was not interested in having sexual relationship with the petitioner. When these facts had been spoken to by PW1 and supported by PW2 father, there is no reason why their evidence is discarded. 13 Mat.A.No.156/2011 21. The Family Court proceeded on the basis that though cruelty is alleged as a ground for divorce, during evidence the petitioner was projecting the ground of mental illness. Though the unsoundness of mind as contemplated under Section 10(1)(iii) of the Act is not proved, still the Family Court ought to have considered whether the pleadings and evidence depicts cruelty, either physical or mental and on account of such cruelty it would be harmful or injurious to the petitioner to live with the respondent. The statute indicates that the cruelty should cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to live with respondent. What would be the reasonable apprehension is the question. In **Samar Ghosh** (supra), the Apex Court held that no uniform standard could be laid down for guidance. However, the Apex Court enumerated some instances of human behaviour which would be relevant in dealing with case of mental cruelty. It is held that metal cruelty is the state of mind, the feeling of anguish, disappointment and frustration in one's spouse caused by the conduct of the other for a long time. It is also held that a sustained reprehensible conduct, studied neglect, indifferent or total departure from the normal standard of conduct causing injury to mental health would also amounts to mental cruelty. Refusal to have intercourse is also stated to be a reason which may amount to mental cruelty. Finally, it is held that when there arise a long period of separation and the 14 Mat.A.No.156/2011 matrimonial bond is beyond repair, it could be concluded that such instances will also lead to mental cruelty. 22. Though the respondent while examined as RW1 had denied the allegations, she admits that her father had not come to her matrimonial home. She denied the fact that her mother committed suicide and that her father is living with another lady and that he has a child. She further admitted the fact that her mother's brothers had taken care of the marriage ceremonies but she does not want to examine any such person. However she reiterates that they were on cordial terms. She also denied the incident in which she had left him in the middle of the street while proceeding in a motor bike. According to her, she had not abused his parents, but they were misbehaving to her. But it is relevant to note that she had not examine any other person to prove her version. A perusal of the evidence of PW1 and PW2 would indicate that that the petitioner was suffering during their short matrimonial period and was unable to have a normal family life with the respondent. Even according to the respondent, the difference in opinion is on account of the misbehaviour of the petitioner's parents. 23. But when PW2 father of the petitioner was examined before court he had narrated the abuse they had to suffer at her hands. During cross examination he stated that from the evening of the marriage when his wife asked the respondent to have a bath and change her dress, she 15 Mat.A.No.156/2011 questioned her and started quarreling. She even told that if they do not want they could divorce her and that she did not like this marriage and on several days she had repeated that she needs divorce. After about 5- 6 days she started to abuse him and his wife, and after 10-15 days his wife was assaulted, she fell down and she suffered a injury. When the petitioner questioned it, he was abused. He denied the fact that he and his wife had demanded their son for divorce. But he reiterated the fact that she was having some problem as she was on loggerheads with the relatives. When he was asked regarding the statement in the affidavit that she was having mental illness, his answer was that she behaved as if she was having some mental problem. However, he did not ask her son to verify whether she was having any mental illness. He further states that it was to avoid reputation damage he did not ask his son to do so. He also had a case that she was taking some medicines. He however states that he does not know what medicines she was taking and when he asked her she replied there is no reason why they should know about it. On further cross examination he also stated that he has seen the respondent getting hold of the neck of the petitioner and it had happened on several occasions. When he questioned her, she questioned his right to ask her. He further stated that she had not behaved properly to his son and his wife, whereas they have behaved to her properly. 24. Taking into consideration the aforesaid evidence of PW2, 16 ## Mat.A.No.156/2011 father of the petitioner, we are of the view that this is a fit case in which divorce can be granted on the round of mental cruelty. The finding of Family Court that there is no evidence of mental cruelty is erroneous, taking into consideration the law laid down by the Apex Court in **Samar Ghosh** (supra.). In the result this appeal is allowed. The judgment of the Family Court is set aside. The original petition is allowed as under: The marriage between the petitioner and respondent shall stand dissolved by a decree for divorce. **Sd/-** **A.M.SHAFFIQUE** **JUDGE Sd/P.SOMARAJAN JUDGE** True copy kp P.A. To Judge. 17 Mat.A.No.156/2011 ## **APPENDIX** **APPELLANT'S ANNEXURE PRODUCED ALONG WITH I.A.NO.982/2017** **ANNEXURE A1 : TRUE PHOTOCOPIES OF 10 MESSAGES SENT FROM RESPONDENT WIFE MOBILE NOS.8943487491 AND 8289937649 TO THE APPELLANT MOBILE NO.9388141222 ON VARIOUS DATES IN THE YEAR 2016 AND 2017** **RESPONDENT'S ANNEXURE PRODUCED ALONG WITH I.A.NO.2540/2018** **ANNEXURE R1 : TRUE COPY OF THE RECEIPT DT.7.8.2017 ISSUED BY THE SECTION OFFICER, EB XIV SECTION OF THE MG UNIVERSITY ON ACCEPTING THE THESIS.**