Krupa K.Nair vs P.B. Binukumar
2021 Latest Caselaw 4270 Ker

Mat.A Nos.386 & 400/2012
                               1

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                               &

             THE HONOURABLE MR.JUSTICE C.S.DIAS

FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                   Mat.Appeal.No.386 OF 2012

AGAINST THE JUDGMENT IN OP 1551/2010 DATED 16-02-2012 OF
                 FAMILY COURT, KOTTAYAM


APPELLANT/PETITIONER:

              KRUPA K.NAIR
              AGED 27 YEARS
              D/O.KRISHNANKUTTY NAIR, 27 YEARS OF OLD,
              RESIDING AT KIZHAKKEPARAMBIL,
              P.O.VAKATHANAM, VAKATHANAM VILLAGE,
              CHANGANASSERY TALUK, KOTTAYAM.

              BY ADVS.
              SRI.M.GOPIKRISHNAN NAMBIAR
              SRI.P.BENNY THOMAS
              SRI.K.JOHN MATHAI

RESPONDENT/RESPONDENT:

              P.B. BINUKUMAR
              S/O.BALAN NAIR, 28 YEARS OLD, PUTHUPARAMBIL
              HOUSE, KOORALI KARA, ELANGULAM VILLAGE,
              KANHIRAPPALLY TALUK PRESENTLY RESIDING AT
              PUTHUPARAMBIL HOUSE, MADAPPALLY P.O.,
              MADAPPALLY VILLAGE, CHANGANASSERY TALUK,
              KOTTAYAM, PIN-686546.


     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 05.02.2021, ALONG WITH Mat.Appeal.400/2012, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.A Nos.386 & 400/2012
                               2


          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                               &

             THE HONOURABLE MR.JUSTICE C.S.DIAS

FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                   Mat.Appeal.No.400 OF 2012

 AGAINST THE JUDGMENT IN OP 32/2011 DATED 16-02-2012 OF
                 FAMILY COURT, KOTTAYAM


APPELLANT/PETITIONER:

              KRUPA K.NAIR
              AGED 27 YEARS
              D/O KRISHNANKUTTAY NAIR, RESIDING AT
              KIZHAKKEPARAMBIL, P.O, VAKATHANAM,
              VAKATHANAM VILLAGE, CHANGANASSERY TALUK,
              KOTTAYAM

              BY ADVS.
              SRI.M.GOPIKRISHNAN NAMBIAR
              SRI.P.BENNY THOMAS
              SRI.K.JOHN MATHAI

RESPONDENT/RESPONDENT:

              P.B.BINUKUMAR
              S/O BALAN NAIR, PUTHUPARAMBIL HOUSE, KOORALI
              KARA, ELANGULAM VILLAGE, KANHIRAPPALLY
              TALUK, PRESENTLY RESIDING AT PUTHUPARMABIL
              HOUSE, MADAPPALLY P.O, MADAPPALLY VILLAGE,
              CHANGANASSERY TALUK, KOTTAYAM 686546


     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 05.02.2021, ALONG WITH Mat.Appeal.386/2012, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.A Nos.386 & 400/2012
                              3



                           JUDGMENT

Dated this the 5th day of February 2021

C.S.Dias, J.

As these appeals arise out of a common

judgment passed by the Family Court, Kottayam in

O.P. Nos.1551/2010 and 32/2011 and the parties are

the same, they are being disposed of by this

common judgment.

2. Krupa K.Nair - the wife of P.B.Binu Kumar

had filed O.P. 1551/2010 under Section 13 (1)(ia) of

the Hindu Marriage Act, 1955, ( in short 'the Act')

seeking a decree of divorce for dissolution of her

marriage. P.B.Binu Kumar filed O.P.No.32/2011

under Section 9 of the Act, seeking a decree for

restitution of conjugal rights. The Family Court by

the impugned common judgment dismissed O.P.

No.1551/2010 filed by Krupa K.Nair and allowed O.P.

32/2011 filed by P.B.Binu Kumar.

Mat.A Nos.386 & 400/2012

3. Being aggrieved by the dismissal of O.P.

No.1551/2010 and the allowing of O.P. No.32/2011,

Krupa K.Nair is before this Court. For the sake of

convenience, Krupa K.Nair is being referred to as

'petitioner' and P.B.Binukumar is being referred to

as 'respondent' as per their status in O.P

No.1551/2010.

4. The concise case of the petitioner in OP

No.1551/2010 is as follows: The respondent is the

husband of the petitioner. Their marriage was

solemnised on 26.3.2005 at Sree Dharma Shasta

Temple, Melampara, as per the Hindu religious rites

and ceremonies. The petitioner was given 50

sovereigns of gold ornaments and Rs.2,00,000/- as

patrimony. On the date of marriage itself, the

respondent took custody of the petitioner's gold

ornaments except for 4½ sovereigns. The

respondent did not show any love or affection

towards the petitioner. He was not a responsible Mat.A Nos.386 & 400/2012

husband and treated her with cruelty. She was only

an instrument to satisfy his lust. He always

harassed, humiliated and tortured the petitioner

and found fault with her for anything and

everything. On the date of marriage itself, the

respondent beat her with a belt for mingling with

her co-sister. The respondent was an alcoholic and

used to spend all his money for his alcoholic traits.

He misused and misappropriated the petitioner's

gold ornaments and money for his vices. When the

respondent became penniless, he demanded the

petitioner to get more dowry from her parents.

When she refused to adhere to the demand, the

respondent manhandled her. Even during the period

the petitioner was pregnant, the respondent did not

show any love or affection towards her. On

9.7.2009, the petitioner gave birth to a female child.

The respondent left the petitioner at her parental

home alleging that there was no one to look after to Mat.A Nos.386 & 400/2012

the mother and child in their rented house.

Thereafter, the respondent has neglected the mother

and the child. The marriage between the couple is

irretrievably broken. The petitioner is apprehensive

of her life and limb, if she continues with the

marriage. Hence the original petition.

5. The respondent filed a written objection,

refuting the allegations in the original petition. It

was his case that the petitioner and the respondent

were in love from their school days. On 3.3.2005,

the petitioner ran away with the respondent and

they entered into a marriage agreement on the

following day at the Sub Registrar's Office,

Meenachil. Although the petitioner's parents filed

a complaint before the Circle Inspector of Police,

Erattupetta, alleging that the petitioner was

abducted by the respondent, the petitioner's parents

did not turn up to the Police Station. Subsequently,

on 26.3.2005, their marriage was solemnised. One Mat.A Nos.386 & 400/2012

and half years after the marriage, the couple shifted

to a rented premises. It was the respondent who

took care of all the needs and necessities of the

petitioner. Even after the delivery of the child, the

parents of the petitioner did not turn up to see the

mother and the child. The respondent was a loving

husband and a caring father. The couple were

leading a happy married life. However, the

petitioner's parents were dead against the marriage

right from the initial days and they always

attempted to separate the couple. The petitioner

was always having a suspicious eye on the

respondent. She did not relish him talking to any

other person. On 26.10.2010, while the respondent

was at his workplace, the petitioner returned with

the child to her natal home. The respondent filed a

complaint before the Thrikkovilthanam Police

Station. However, the petitioner was not prepared

to resume cohabitation. She was always trying to Mat.A Nos.386 & 400/2012

avoid the respondent at the instigation of her

parents. Though several attempts were made for a

reconciliation between the couple, the the

petitioner and her parents were adamant that the

marital relationship should not be restored. The

petitioner is liable to perform her marital

obligations. She has withdrawn from the marital

consortium of the respondent without any sufficient

cause. Hence, the respondent prayed that the

original petition be dismissed.

6. The respondent filed O.P. 32/2011 on the

very same lines as in the pleadings in the written

objection in O.P. No.1551/2010. The petitioner filed

a written objection in O.P.32/2011 in tune with her

case in O.P No.1551/2010.

7. The Family Court consolidated and jointly

tried the original petitions. The petitioner and a

witness were examined as PW1 and PW2 and Ext.A1

- marriage certificate was marked through the Mat.A Nos.386 & 400/2012

petitioner. The respondent and a witness were

examined as RW1 and RW2 and Exts.B1 to B5 were

marked through them.

8. The Family Court, after evaluating the

pleadings and materials on record, by the impugned

common judgment, dismissed O.P. No.1551/2010 and

allowed O.P. No.32/2011 by granting a decree in

favour of the respondent for restitution of conjugal

rights and directed the petitioner to resume

cohabitation with respondent within one month from

the date of judgment.

9. Heard Sri.M.Gopikrishnan Nambiar, the

learned counsel appearing for the appellant.

Although notice was issued to the respondent, the

same had returned with an endorsement that

'addressee not known'. Subsequently, the appellant

effected notice on the respondent by substituted

service - paper publication.

10. On 21.1.2021, this Court directed the Mat.A Nos.386 & 400/2012

Legal Services Authority to ascertain the reason for

the non-appearance of the respondent in the

appeals. The District Legal Services Authority,

Kottayam, conducted an enquiry through its para

legal volunteers and through the Station House

Officer of Thrikkovilthanam Police Station.

However, it was reported that the respondent could

not be found. In the said circumstances, we decided

to dispose of the appeals on its merits.

11. The learned counsel appearing for the

appellant vehementally argued that the Family

Court has gone wrong in allowing O.P. No.32/2011

and dismissing O.P. No.1551/2010. It was submitted

that the Family Court has given undue emphasis to

the love affair between the parties and incidents

prior to the solemnization of the marriage, which

has no relevance for deciding the original petition

and the cruelty that was meted out on the appellant.

Similarly, the Family Court has placed heavy Mat.A Nos.386 & 400/2012

reliance on Ext.B1 undated letter purportedly

written by the appellant wherein she had stated that

she loved the respondent. It was submitted that the

Family Court ought to have considered the specific

instances of cruelty that were meted out on the

appellant by the respondent. Hence, the learned

counsel prayed that the appeals be allowed and the

decree for restitution of conjugal rights be set aside

and a decree of divorce be granted in favour of the

appellant.

      12. The        question        that   emerges      for

consideration in these appeals is               whether the

common judgment passed by the Family Court                is

correct or not?

13. The marriage and paternity of the child are

not disputed. The appellant/petitioner had filed

O.P. 1551/2010 seeking a decree of divorce to

dissolve her marriage with the respondent on the

ground that the respondent had treated her with Mat.A Nos.386 & 400/2012

cruelty.

14. In Samar Ghosh v Jaya Ghosh [(2007) 4

SCC 511], a three-Judge Bench of the Honourable

Supreme Court has laid down exhaustive guidelines

on the acts that constitute '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 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.

Mat.A Nos.386 & 400/2012

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 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.

Mat.A Nos.386 & 400/2012

(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.

Mat.A Nos.386 & 400/2012

xxx xxx xxx

(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."

15. The specific instances of cruelty alleged by

by the appellant in the original petition are:

(i) The respondent misappropriated the

petitioner's gold ornaments and Rs.2,00,000/- which

was given as her share in her parental properties

immediately after the marriage;

(ii) The respondent did not show any love or

affection towards the petitioner, but treated her with

cruelty;

(iii) The respondent saw the petitioner only as

an instrument to satisfy his lust;

(iv) On the date of marriage itself, the

respondent beat the petitioner with his belt; Mat.A Nos.386 & 400/2012

(v) The respondent was an alcoholic;

(vi) The respondent did not care for the

petitioner even during her pregnancy and post-

delivery;

(vii) The respondent after the birth of the child,

left the mother and child in the petitioner's natal

home on 16.7.2009; and

(viii)The couple are living separately since

16.7.2009.

16. In order to substantiate the pleadings in

the original petition, the petitioner and a witness

were examined as PW1 and PW2. The respondent

and his brother were examined as RW1 and RW2.

17. We have re-appreciated the oral

testimonies of the above witnesses. Although PW1

and PW2 were cross-examined at length, we do not

find any clinching piece of evidence to discredit

their oral testimonies.

Mat.A Nos.386 & 400/2012

18. On an analysis of the findings in the

impugned judgment, we find that the Family court

has given undue emphasis to the love affair

between the parties, which led to their marriage,

which according to us, is totally irrelevant and

immaterial. The allegations of cruelty levelled

against the respondent are all after the marriage,

which is the pivotal aspect. It is also seen that the

Family Court has placed heavy reliance on the oral

testimonies of RW1 and RW2 especially Ext.B3

complaint lodged by the respondent regarding the

refusal of the petitioner to resume cohabitation

with him. The fact remains that, the couple is living

separately since 16.7.2009.

19. Another relevant aspect to be considered

is that although the Family Court had allowed

O.P.32/2011 passing a decree for restitution of

conjugal rights, there has been no resumption of

cohabitation even after the impugned decree. Mat.A Nos.386 & 400/2012

20. Sec.13(1A) of the Hindu Marriage Act,

1955 reads thus:

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

21. After the amendment of Section 13 (1A) by

Act 44 of 1964, the Parliament in its wisdom has

used the term either party to the marriage can

present a petition for dissolution of marriage by a

decree of divorce, if there is no resumption of

cohabitation between the parties even after the

expiry of one year after passing of a decree for

restitution of conjugal rights.

22. In the cases on hand, we find that although Mat.A Nos.386 & 400/2012

the decree for restitution of conjugal rights was

passed as early as on 16.2.2012, there has been no

cohabitation between the appellant and the

respondent. The respondent has admittedly not

attempted to execute the decree. It is discernible

from the pleadings and materials on record that the

couple have not lived together from the date of

passing of the decree. Hence, after 16.2.2013,

either party can move the Family Court for divorce

on the no-fault ground provided under Section 13

(1A) (ii) of the Act. Taking into consideration the

subsequent events that have occurred after the

passing of the decree and also the fact that the

petitioner has pleaded and proved that the

respondent has treated her with cruelty falling

within the para-meters in Samar Ghosh (supra)

and that there has been no resumption of

cohabitation after the passing of the impugned

decree and that the respondent has not contested Mat.A Nos.386 & 400/2012

these appeals, we are of the opinion that no useful

purpose would be served in directing the parties to

resume cohabitation after more than a decade of

estrangement.

23. On an overall re-appreciation of the

pleadings and materials on record, we are of the

considered opinion that the marriage between the

appellant and the respondent is shattered beyond

redemption and has become a deadwood. The

appellant has pleaded and proved specific instances

of cruelty that was meted out on her by the

respondent. In the above discussed legal and

factual background, our inevitable conclusion is

that the appellant is entitled for a decree of divorce.

In the result, the Mat.Appeals are allowed

as follows:

(i) The judgments and decrees in O.P Nos. 1551/2010 and 32/2011 are set aside. Mat.A Nos.386 & 400/2012

(ii) O.P. No.1551/2010 is allowed and the marriage between the appellant and the respondent solemnised on 26.3.2005 is dissolved by a decree of divorce.

(iii) O.P. No.32/2011 is dismissed.

(iv) In the facts and circumstances of the case, the parties shall bear their respective costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                          C.S.DIAS
ma/09/02/2021                             JUDGE

                            /True copy/