Kerala High Court
Sanilkuamr vs Praseeja P Nair on 18 July, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
MAT.A NO. 328 OF 2025 1 2025:KER:53768
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
MAT.APPEAL NO. 328 OF 2025
AGAINST THE JUDGMENT DATED 18.11.2024 IN OPHMA NO.334
OF 2019 OF FAMILY COURT, THIRUVALLA
APPELLANT/RESPONDENT:
SANILKUAMR, AGED 40 YEARS
S/O.KRISHNAKURUP, KRISHNALAYAM,
KUNNAM.P.O, THAZHAKARA VILLAGE,
MAVELIKARA TLAUK,
ALAPUZHA DISTRICT., PIN - 690108
BY ADVS.
SRI.N.ASHOK KUMAR
SHRI.ARJUN S.KURUPP
SMT.ARSHA S KURUP
RESPONDENT/PETITIONER:
PRASEEJA P NAIR
AGED 33 YEARS
D/O.PG.SASIDHAZRA NAIR, PRASANTH BHAVAN,
PADINJARE KARA MURI, NEDUMPRAM VILLAGE,
THIRUVALLA TALUK, PIN - 689110
BY ADVS.
SHRI.AMEER SALIM
SMT.NESILI NAZEER
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
15.07.2025, THE COURT ON 18.7.2025 DELIVERED THE FOLLOWING:
MAT.A NO. 328 OF 2025 2 2025:KER:53768
DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.
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Mat.Appeal No.328 of 2025
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Dated this the 18th July, 2025
JUDGMENT
M.B.Snehalatha, J In this appeal, the appellant calls into question the judgment and decree of the Family Court, Thiruvalla in O.P(HMA) No.334/2019 by which it granted a decree of divorce sought by the wife under Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955.
2. Parties shall be referred to by their rank in the Original Petition.
3. The petitioner/wife filed the Original petition seeking divorce contending as follows:
The marriage between the petitioner and the respondent was solemnized on 19.1.2014 as per Hindu rites and ceremonies. At the time of marriage, petitioner was given 53 sovereigns of gold ornaments and ₹1 lakh as cash by her parents. On the wedding day, while she was entering into the matrimonial home, the traditional lamp lit on the said ceremonial occasion went off. On the wedding day, respondent felt some uneasiness and he was hospitalized. Respondent and his parents viewed the above said MAT.A NO. 328 OF 2025 3 2025:KER:53768 two incidents as a bad omen and found fault with the petitioner for the same. At the time of marriage, petitioner was pursuing her M.Com course at Thiruvalla and after the marriage, she continued her studies at Imperial College, Mavelikkara. Even after the marriage, her educational expenses were met by her father. Respondent misappropriated the gold ornaments of the petitioner. Petitioner has initiated separate proceedings for return of her gold ornaments. Though at the time of marriage alliance, respondent had told the petitioner and her family that he has got family visa and petitioner can accompany him to his workplace, after the marriage, respondent did not take any steps to take the petitioner to his workplace abroad as promised and therefore, petitioner's father arranged a visiting visa for her and thus she joined the respondent abroad. In February, 2017 she came back from abroad. Though she was pregnant during that time, it was an ectopic pregnancy and therefore as per medical advice, her pregnancy had to be aborted. While she was hospitalized, the respondent neither visited her nor looked after her affairs and well being. He did not spend any amount towards the hospital expenses. Respondent totally neglected and disregarded her which caused great mental agony to her. Respondent and his MAT.A NO. 328 OF 2025 4 2025:KER:53768 mother blamed the petitioner by alleging that she aborted the pregnancy deliberately. Respondent, his mother and his sister mentally harassed her. Respondent forced the petitioner to commit unnatural sex against her wishes and on her resistance, he assaulted her and subjected her to cruelty. On 27.2.2018, the respondent left the petitioner at her parental home and thereafter, she is residing there. Hence, the petitioner sought divorce on the ground of cruelty and desertion.
4. Respondent resisted the petition for divorce and denied the allegations of cruelty and desertion. He also denied the allegation regarding entrustment of gold ornaments and its misappropriation. Respondent took the petitioner to his workplace abroad and he had spent an amount of ₹45,100/- for arranging a visa for her. Though the doctor had advised the petitioner to follow up continuous medical treatment for infertility, she ignored the same and did not co-operate. Though the respondent requested the petitioner to return to the matrimonial home, she refused to do so and her father refused to send her back and abused the respondent in public. Respondent never forced the petitioner for unnatural sex as alleged, rather it was the petitioner who forced the respondent for the same. He MAT.A NO. 328 OF 2025 5 2025:KER:53768 sought for dismissal of the petition.
5. The evidence consists of the oral testimonies of PW1 and RW1 and documents marked as Exts.A1 and A2 and Exts.B1 and B2.
6. After trial, the Family Court granted a decree of divorce which is impugned by the husband on the ground that the Family Court granted divorce without analysing the evidence in its correct perspective and also contending that petitioner failed to establish that she was deserted and subjected to cruelty.
7. Per contra, the learned counsel for the petitioner supported the findings of the Family Court and submitted that there are no reasons to unsettle the findings of the Family Court.
8. The point for consideration in this appeal is whether the impugned judgment and decree of the Family Court granting a decree of divorce needs any interference by this Court.
9. The petitioner while examined as PW1 has reiterated the contentions put forward by her in the petition and narrated the various instances of mental harassment which she had to face in the matrimonial home. Her version is that on the wedding day, while she was entering into the matrimonial home, the traditional lamp lit in the said ceremonial occasion, suddenly went off. The MAT.A NO. 328 OF 2025 6 2025:KER:53768 respondent and in-laws took the said incident as a bad omen and blamed her. She has further testified that on the wedding day, since the respondent/husband felt some uneasiness, he was hospitalized for which also respondent and his mother blamed her. According to the petitioner, her husband and mother-in-law found fault with everything she did and thus mentally harassed her. Further, version of PW1 is that when she had to abort her ectopic pregnancy as per medical advice, the respondent and his mother abused her and blamed her by saying that she deliberately caused abortion. Another act of cruelty, which the petitioner has narrated is that the respondent used to force her for unnatural sex and whenever she objected to the same, he assaulted and subjected her to cruelty.
10. The respondent-husband has not entered into the witness box to deny the acts of cruelty spoken to by the petitioner-wife. Though the mother of the respondent, who was examined as RW1 in her examination in lieu of chief denied the case of the petitioner, during cross examination she has categorically admitted that she has no direct knowledge about the averments made by her in her affidavit in lieu of examination in chief. The version given by the petitioner that the respondent MAT.A NO. 328 OF 2025 7 2025:KER:53768 forced her to have unnatural sex with him and whenever she objected to the same, he assaulted and subjected her to cruelty, remains uncontroverted. Though in the counter statement respondent has taken a contention that it was the petitioner-wife who forced him to commit unnatural sex, it is to be borne in mind that he has not chosen to enter into the witness box to speak his case on oath and offer himself for cross examination. Likewise, the version of PW1, that while she was hospitalised, respondent totally neglected her and he has not taken care of her affairs and well being also remains uncontroverted. The version given by the petitioner that the behavior and conduct of the respondent/husband caused mental agony to her remains unchallenged. Therefore, the case of the petitioner that she was subjected to mental harassment stands established, as rightly found by the learned Family Court. When a wife alleges mental cruelty and testifies it on oath and if the husband refrains from the witness box, the failure to give evidence by the husband can weigh heavily against him and in such circumstances, the testimony of the wife alone is sufficient to grant a decree of divorce. This approach not only upholds the principles of justice but also ensures that the law remains sensitive to the realities of MAT.A NO. 328 OF 2025 8 2025:KER:53768 matrimonial life. If the wife gives specific, consistent and credible evidence about the mental cruelty faced by her and her husband fails to rebut or contradict those allegations by appearing as a witness or producing evidence, the court is entitled to accept the testimony of the wife.
11. The word 'cruelty' has not been defined and it has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other.
12. It is well settled that a behaviour that may be seen as trivial in one marriage might be deeply hurtful in another. Therefore, cruelty is to be assessed on a case-by-case basis. What constitutes cruelty in a matrimonial relationship depends on the unique circumstances, behaviour and experience of the parties involved. Courts do not rely on a rigid definition of cruelty but has to evaluate each case based on its facts. Courts have to analyse whether the conduct makes out unreasonable for the one spouse to live with the other. [Anilkumar V.K. v. Sunila.P (2025 (2)KHC 33)].
13. In Nirmal Singh Panesar (Dr.) v. Paramjit Kaur MAT.A NO. 328 OF 2025 9 2025:KER:53768 Panesar @ Ajinder Kaur Panesar (2023 KHC 6905), the Apex Court held that:-
"The word cruelty has to be construed and interpreted considering the type of life parties are accustomed to; or their economic and social conditions and their culture and human values to which they attach importance."
14. In V. Bhagat Vs. D. Bhagat [(1994) 1 SCC 337], the Apex Court has dealt with the question what kind of mental cruelty is required to be established under Section 13(1)(ia) of Hindu Marriage Act and held as follows:
"16. Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party.
It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations regard must also be had to the context in which they were made."
15. In Praveen Mehta vs. Inderjit Mehta (AIR 2002 SC 2582) observed as follows:
MAT.A NO. 328 OF 2025 10 2025:KER:53768 "21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
16. In Roopa Soni v. Kamalnarayan Soni [AIR 2023 SC 4186] , the Hon'ble Supreme Court observed as follows:
"(7). Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preser-
vation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a liber- tarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism. "
17. The Apex Court also observed as follows:
"...... element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce." (emphasis supplied by us) MAT.A NO. 328 OF 2025 11 2025:KER:53768
18. The evidence on record establishes that the parties are incompatible partners and there is no love lost between them. It is a well-settled principle that what constitutes cruelty in a matrimonial relationship depends on the specific circumstances, behavior and experience of the parties involved and the courts cannot rely on a rigid definition, but has to evaluate each case based on its facts.
19. It is in evidence that marital life of the couple is dead both emotionally and practically and there is no chance of it being retrieved and it is better to bring the marriage to an end, as rightly held by the Family Court. Hence, the petitioner/wife is entitled to get divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
20. Though the petitioner has also sought divorce on the ground of desertion, she failed to establish that she was deserted for a continuous period of not less than 2 years as enjoined under Section 13(1)(ib) of the Hindu Marriage Act, 1955. In order to grant divorce on the ground of desertion, petitioner has to establish that she was deserted for a continuous period of not less than two years. According to the petitioner, she was residing in the matrimonial home till 27.2.2018 and it was on 27.2.2018, MAT.A NO. 328 OF 2025 12 2025:KER:53768 respondent left her at her parental home. The Original Petition was filed on 9.8.2019. Petitioner failed to establish that respondent deserted her for a continuous period of not less than two years. She is not entitled to get divorce on the ground of desertion, though she is entitled to get divorce under Section 13(1)(ia) of Hindu Marriage Act, 1955.
In the result, appeal stands dismissed.
Parties shall suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN JUDGE Sd/-
M.B.SNEHALATHA JUDGE ab