Antony Santhosh.K.X vs Sangeetha
2021 Latest Caselaw 2898 Ker

   Mat.Appeal.No.55/2019              1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                  &

                  THE HONOURABLE MR.JUSTICE C.S.DIAS

   WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                       Mat.Appeal.No.55 OF 2019

      AGAINST THE ORDER/JUDGMENT IN OP 886/2015 OF FAMILY
                        COURT,THRISSUR


APPELLANT/S:

                ANTONY SANTHOSH.K.X,
                AGED 44 YEARS,
                S/O.XAVIER K.J., KALATHIPARAMBIL HOUSE, GREEN LANE,
                NEAR SSKS NAGAR, VADUTHALA, KOCHI-682 023.

                BY ADV. SRI.SUBAL J.PAUL

RESPONDENT/S:

                SANGEETHA,
                AGED 32 YEARS,
                D/O.DAVIS, PULLOKARAN HOUSE, 2/26 ROSE ENCLAVE,
                REGENCY GARDEN, KUTTANELLUR, TRISSUR-680 001.

                R1 BY ADV.SRI.C.CHANDRASEKHARAN

    THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
    27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
    FOLLOWING:
 Mat.Appeal.No.55/2019                   2



                             JUDGMENT

Dated this the 27th day of January, 2021

C.S.Dias, J.

Aggrieved by the judgment and decree in

O.P.No.886 of 2015 of the Family Court, Thrissur, the

respondent in the original petition has preferred this

appeal. The petitioner in the above original petition is

the respondent in the appeal.

2. The respondent wife had filed the original

petition seeking a decree of divorce on the ground of

cruelty. The concise case of the respondent in the

original petition was that, the respondent is the wife

of the appellant husband. Their marriage was

solemnized on 31.05.2009. After three weeks of the

marriage, there was a change in the attitude of the

appellant. The appellant used to leave home early in

the morning and return only late at night. On holidays

he used to go for MBA contact classes. He never

cared or loved the respondent. The appellant treated

the respondent like a slave. One month after the

marriage, the appellant and his relatives demanded

₹3,00,000/- from the respondent and threatened her.

The appellant and his family members misbehaved

towards the respondent. The respondent suffered a

lot of mental agony due to their conduct. The

respondent was restrained from contacting her sister

over phone. After the marriage, the respondent

realized that the appellant was a believer in a new

congregation. The said fact was suppressed at the

time of marriage. In due course, she conceived. Even

after the birth of the child, the appellant went to meet

the child only after four days after its birth. Even

after 90 days after the birth of the child, the appellant

failed to take any initiative to conduct the baptisum.

As the appellant willfully refused to maintain the

respondent and the child, she was forced to file

O.P.293 of 2011. She also filed O.P.No.2475 of 2011,

seeking a decree for return of gold ornaments, money

and other articles. On 27.03.2011, under the influence

of alcohol, the appellant went to the residence of the

respondent and abused her in vituperative language.

The respondent was forced to inform the police. Only

thereafter, the appellant left the house. Later a

complaint was also lodged. Again on 08.12.2011, the

appellant abused the respondent and her father and

attempted to assault them. The Police registered a

crime against the appellant. The cases filed by the

respondent were decreed in her favour. Due to the

continuous harassment and ill-treatment made by the

appellant and his relatives, the respondent is not in a

position to continue with the marriage. In the said

circumstances, a decree of divorce, dissolving the

marriage between the parties, may be passed.

3. The appellant resisted the original petition

by filing a written objection, inter-alia, refuting the

allegations in the original petition. He contended that

he had attended to all the functions in the

respondent's family. The respondent resided at his

residence only for some time and, thereafter, she went

with her parents. The appellant met the expenses in

connection with the delivery of the child and also paid

substantial amount towards the maintenance of the

respondent and the child. It was the appellant who

took the initiative for conducting baptism of the child.

However, the respondent insisted for taking up a

separate residence in Thrissur. As the appellant was

living with his aged parents, he could not concede to

the demand of the respondent. The appellant had

filed an original petition seeking a decree for

restitution of conjugal rights, which the appellant did

not pursue. Hence, he prayed that the original

petition be dismissed.

4. The respondent was examined as PW1 and

Exts.A1 to A7 were marked through her. The

appellant and two other witnesses were examined as

RW1 to RW3 and Exts.B1 to B12 were marked through

them.

5. The Family Court, after considering the

pleadings and materials on record, by the impugned

judgment and decree allowed the original petition by

dissolving the marriage between the appellant and

respondent by decree of divorce.

6. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

respondent.

7. The learned counsel appearing for respective

parties submitted before this Court that pursuant to

the directions of this Court, the parties were referred

for mediation. In the mediation proceeding that was

conducted, the parties arrived at a settlement,

whereby they have decided to unconditionally

withdraw all the cases and resume cohabitation as

husband and wife. Therefore, the settlement may be

recorded and the appeal may be allowed by setting

aside the judgment decree of the Family Court.

8. A Division Bench of this Court in Rejeesh

P.R and another v. nil [2019(5)KHC 9] has

categorically held that once a marriage has been

dissolved by decree of divorce, the same cannot be set

aside on the mere asking of the parties. If the parties

want to resume cohabitation, they will have to

solemnize a marriage for a second time.

9. In light of the law laid down in Rajeesh P.R

(supra), we decided to consider the appeal on merits.

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

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

Supreme Court while considering Section 13(1)(ia) of

the Act has laid down exhaustive guidelines for

passing a decree for 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 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 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 Mat.A No.833 of 2015 14 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-today 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.

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."

11. In view of the exhaustive guidelines laid

down by the Hon'ble Supreme Court in Samar Ghosh

(supra), let us examine the case on hand. The

respondent had sought for a decree of divorce on the

ground that the appellant had meted out mental

cruelty on her.

12. The respondent had earlier filed

O.P.No.293/2011 and O.P.No.2475/2011 before the

same Court, seeking a decree for maintenance and

decree for return of gold ornaments, money and other

articles, respectively.

13. The incidents that have been alleged in the

present original petition i.e., O.P.No.886 of 2015

seeking a decree of divorce are incidents that

occurred at the time of institution of

O.P.Nos.293/2011. If the allegations in the present

original petition were true and genuine, then the

respondent would have in normal human conduct

filed the original petition for a decree of divorce along

with the above numbered cases. At that point of time,

the appellant only filed O.P.No.1147 of 2013, seeking

for the custody of the child and also an original

petition seeking a decree for restitution of conjugal

rights. Therefore, it can be seen that in 2011, when

the parties had parted ways, the respondent did not

have any intention to severe the marital knot and had

not alleged any of the so called instances of cruelty

alleged in the present original petition. It is four years

later, after the above cases were disposed of by Ext.A1

common judgment and after the appellant withdrew

the original petition filed for a decree for restitution of

conjugal rights, that the respondent sought a decree

of divorce on the ground of cruelty alleging about

incidents that occurred at the time when the

O.P.Nos.293 and 2475 of 2011 were filed. Even in the

present case, there are only three incidents alleged,

which allegedly occurred in the year 2010-2011.

14. On a re-appreciation of the pleadings and

materials on record, we do not find that the appellant

has treated the petitioner with mental cruelty falling

within the parameters in Samar Ghosh (supra). The

three instances that have been pleaded by the

respondent in the original petition can only be said to

be trivial irritations and acts that occur in normal

wear and tear of marital life. The said three instances

are not adequate and sufficient enough to dissolve a

marriage. More over, the parties have a child born in

the relationship, subsequent to the alleged incidents.

Hence, it is only to be assumed even after the said

incidents the couple lived happily, which leads us to

the irresistible conclusion that the respondent had

condoned the so called alleged acts of cruelty, which

disentitles the respondent for a decree of divorce.

15. In light of the aforesaid findings and the fact

that the parties have now reconciled their differences

and are living happily together with their child, and

taking note of the spirit and mandate under Order

XXXII-A of the Code of Civil Procedure and the aim

and objective of the Family Court Act, 1984, that

Courts should always lean in favour of harmonious

and genuine settlements, especially when the parties

iron out their differences and effect a rapprochement,

we are of the considered opinion that the impugned

judgment and decree passed by the Family Court is

erroneous and liable to be set aside.

In the result, the appeal is allowed and the

judgment and decree in O.P.No.886 of 2015 of Family

Court, Thrissur is set aside.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

C.S.DIAS JUDGE

DG

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A1 CERTIFIED COPY OF ORDER DATED 31.7.2018 IN O.P.NO.886/2015 ON THE FILE OF FAMILY COURT, THRISSUR.