Vijayamma v. Baiju

**Mat.Appeal.No.23 OF 2016** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942** **Mat.Appeal.No.23 OF 2016** **AGAINST THE JUDGMENT IN OP 965/2013 DATED 25-08-2015 OF FAMILY COURT, ALAPPUZHA** ## **APPELLANT/PETITIONER:** **VIJAYAMMA AGED 42 YEARS D/O GOWRI, THOTTUNKAL CHIRAYIL, KURUPPANKULANGARA P.O., CHERTHALA, ALAPPUZHA.** **BY ADV. SRI.J.OM PRAKASH** ## **RESPONDENT/RESPONDENT:** **BAIJU AGED 48 YEARS S/O VISWADAS, VALIYAMADATHIL, NEDUMBRAKADU, C.M.C.5, CHERTHALA P.O.- 688 524.** **R1 BY ADV. SMT.G.MAHESWARY R1 BY ADV. SMT.T.P.SINDHUMOL** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No.23 OF 2016** **2** ## **JUDGMENT** **Dated this the 4th day of February 2021** C.S.Dias,J. The appellant had filed O.P No.965/2013 against the respondent before the Family Court, Alappuzha under Section 13 (1) (ia)of the Hindu Marriage Act, 1955, seeking a decree of divorce to dissolve her marriage with the respondent and for return of patrimony and her gold ornaments misappropriated by the respondent. 2. The concise facts are as follows: The appellant and the respondent are Hindus by religion. They were married on 13.4.2005. They are issueless. The appellant was given 25 sovereigns of gold ornaments and an amount of Rs.50,000/-, as her share in her parental properties. The appellant is a Tailor and the respondent claimed to be a Photographer by profession. A week after the marriage, the Police started frequenting the **Mat.Appeal.No.23 OF 2016** **3** matrimonial home, in search of the respondent. On the advise of the respondent within 10-20 days after the marriage, the couple shifted to the petitioner's natal home. Although the respondent had claimed to be a Photographer, he did not go for any work. The appellant learnt that the respondent was implicated in criminal cases. The respondent misappropriated the appellant's gold ornaments and patrimony for his alcoholic traits. The respondent started meting the appellant with cruelty demanding her to get more dowry from her family. The appellant suffered all the ignominious acts of the respondent for about six years. On 10.1.2012, the respondent drew the appellant away from the matrimonial home demanding her to get money from her father. On 30.7.2012, when the appellant's relatives attempted for a rapprochement, the respondent demanded for a divorce. The respondent started spreading canards against the appellant and ## **Mat.Appeal.No.23 OF 2016** **4** mentally tortured her. On 27.1.2013, when the appellant returned to the matrimonial home, after attending her nephew's betrothal ceremony, she found the respondent in an intoxicated state. He had burnt the appellant's clothes. He brutally assaulted the appellant, who was rushed to the Government Hospital, Cherthala, where she was admitted as an inpatient. A crime was registered against the respondent. The Police after investigation filed a final report before the Judicial First Class Magistrate Court -I, Cherthala in C.C 505/2012. The appellant is apprehensive of her life and limb due to the cruelty of the respondent. Hence, the original petition seeking a decree of divorce and for return of her gold ornaments and patrimony. 3. The original petition was resisted by the respondent, who filed a written objection, inter alia, refuting the allegations in the original petition. The respondent averred that he had given a five **Mat.Appeal.No.23 OF 2016** **5** sovereign gold chain to the appellant as a gift. According to him, the appellant left the matrimonial home on her volition and for reasons only known to her. It was the appellant who refused to live with the respondent as a dutiful wife. The criminal case was lodged against the respondent only to harass and vex him. There is no valid ground to grant a decree of divorce, as the appellant was living separately from the respondent without justifiable or sufficient cause. Hence, the original petition be dismissed. 4. The appellant and three witnesses were examined as PW1 to PW4, and Exts.A1 to A3 were marked in evidence through them. The respondent was examined as CPW1. Ext.X1 – marriage register - was marked as a Court Exhibit. 5. The Family Court, after appreciating the pleadings and materials on record, dismissed the appellant's prayer for dissolution of marriage, but ## **Mat.Appeal.No.23 OF 2016** ## **6** granted her a decree directing the respondent to return 25 sovereigns of gold ornaments and Rs.50,000/-. 6. Aggrieved by the dismissal of the prayer for divorce, the appellant is before this Court in appeal. 7 **.** Heard Sri.J.Omprakash, the learned counsel appearing for the appellant/petitioner and Smt.T.P. Sindhumol, the learned counsel appearing for the respondent/respondent. 8. The point that emerges for consideration in this appeal is whether the appellant is entitled to a decree of divorce or not? 9. The original petition was filed by the appellant seeking a decree of divorce as provided under Section 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground that the respondent had treated the appellant cruelty. 10 **.** In **Samar Ghosh** v. **Jaya Ghosh** [(2007) 4 SCC 511], a three-Judge Bench of the Honourable **Mat.Appeal.No.23 OF 2016** **7** Supreme Court, while considering Section 13 (1) (ia) of the Hindu Marriage Act, has laid down the guidelines for grant of divorce on the ground of cruelty. The ultimate conclusions are relevant, which reads as under: “98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No Court in our considered view should even attempt to give a comprehensive definition of mental cruelty. 99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. Apart from this, the concept of mental **Mat.Appeal.No.23 OF 2016** **8** cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc., etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice-versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration. 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive — - (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 **Mat.Appeal.No.23 OF 2016** **9** 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 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. **Mat.Appeal.No.23 OF 2016** **10** - (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. **Mat.Appeal.No.23 OF 2016** **11** - (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.” 11. In light of the categoric declaration of law in **Samar Ghosh** (supra), it is to be proved by the appellant that she has suffered acute mental pain, agony and suffering and it would be impossible for her to continue to live with the respondent. 12. The appellant and her neighbour were examined as PW1 and PW2 to prove the matrimonial ## **Mat.Appeal.No.23 OF 2016** **12** cruelty that was meted out on her by the respondent. The Family Court rejected the claim of the appellant for divorce, principally on a hypertechnical ground that the appellant had alleged in the original petition that the respondent had assaulted her on 27.1.2003. However, in Ext.A3 – wound certificate – and in Ext.A2 – F.I.R and F.I.S – the date shown was 28.1.2013. In light of the socalled discrepancy in the date, the Family Court discredited the incident that occurred on the intervening nights of 27[th] and 28[th] of January, 2013. 13. It is trite, that in matrimonial proceedings, the matter has to be decided on the basis of preponderance of probability, unlike a criminal proceedings, where the prosecution case has to be proved beyond reasonable doubt. 14. The respondent does not have a case that no incident occurred on the intervening night of 27/28.1.2013. Ext.A2- F.I.R and Ext.A3 -wound **Mat.Appeal.No.23 OF 2016** **13** certificate substantiate that the appellant suffered an injury on rear portion of her chest and that she was hospitalised. The Police after investigation found that the respondent had burnt the clothes of the appellant and had caused hurt to her. Hence, the final report has to be taken on its face value that the respondent had caused hurt to the appellant in the matrimonial home on the intervening night of 27/28.1.2013. The so-called discrepancy in the date in the original petition and Exts.A2 and A3 may only be because the incident occurred on the intervening night of the 27[th] and 28[th] of January, 2013. 15. On a re-appreciation of the oral testimonies of PW1 and PW2 and the materials on record, we hold that the Family Court has gone wrong in impeaching the oral testimonies of PW1 and PW2, which actually corroborated with the pleadings and materials on record. The incident that occurred on 27/28.1.2013, is a grave act of cruelty committed by ## **Mat.Appeal.No.23 OF 2016** ## **14** the respondent, which stands proved by the appellant, which ought not to have been brushed aside. 16. In addition to the above specific instance of cruelty, the Family Court has accepted the oral testimony of the Pws 1 to 4 and Ext.A1/X1 and found that the respondent had misappropriated the gold ornaments and money of PW1. The Family Court accordingly decreed the original petition, in part, by directing the respondent to return 25 sovereigns of gold ornaments and Rs.50,000/- to the the appellant. 17. However, unfortunately, the Family Court failed to perceive the fact that an act of misappropriation of one's wife's property is also an act of cruelty. The finding of the Family Court regarding misappropriation committed by the respondent and the direction to return the appellant's gold ornaments and patrimony, again is a **Mat.Appeal.No.23 OF 2016** ## **15** matter which ought not to have been ignored by the Family Court while considering the appellant's prayer for divorce. 18. Further more, the other specific instances of cruelty that have been averred in the original petition, commencing right from the inception of the marriage till the separation of the spouses, stands corroborated and proved by the oral testimonies of PW1 and PW2. Thus, we are convinced that the respondent has treated the appellant with cruelty as provided under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 and the specific instances committed by the respondent fall within the illustration Nos.(i), (ii), (iv) to (viii) and (xiv) in paragraph 101 in **Samar Ghosh v. Jaya Ghosh (** supra). 19. On a comprehensive re-appraisal of the pleadings and materials on record and the fact that the spouses are living separately since 27.1.2013, ## **Mat.Appeal.No.23 OF 2016** ## **16** which is now more than 7 years, we are of the definite opinion that the respondent has treated the appellant with cruelty and their marriage is irretrievably broken down beyond redemption and has become a dead wood. We do not have the faintest of hopes for a rapprochement between the couple. In light of our findings regarding the cruelty that was meted out by the respondent on the appellant and also finding that the the marriage is irretrievably broken down, we are of the view of the the appellant is entitled for a decree of divorce on the ground of cruelty. In the result, the Mat.Appeal is allowed as follows: (i) The judgment and decree in O.P. 965/2013 dismissing the petitioner's prayer for dissolution of marriage is set aside. (ii) The marriage between the appellant/petitioner and the respondent//respondent solemnised on **Mat.Appeal.No.23 OF 2016** **17** 13.4.2005 is dissolved by a decree of divorce. (iii) Needless to mention that the decree passed by the Family Court directing the respondent to return the appellant's gold ornaments and money is kept intact. (iii) In the facts and circumstances of the case, the parties shall bear their respective costs. ## Sd/- **A.MUHAMED MUSTAQUE JUDGE** Sd/- **C.S.DIAS, JUDGE** ma/5.2.2021 /True copy/