Roy Mathew vs Rebeca Mani
2021 Latest Caselaw 3070 Ker

Mat.Appeal.No.617 OF 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

  THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                 Mat.Appeal.No.617 OF 2012

AGAINST THE JUDGMENT IN OP(DIV) 853/2009 DATED 24-08-2012 OF
                  FAMILY COURT, ALAPPUZHA


APPELLANT/PETITIONER:

            ROY MATHEW
            AGED 54 YEARS
            S/O.MATHEW, THOOMPUNKAL HOUSE, MATTOM SOUTH,
            THATTARAMBALAM P.O., MAVELIKARA.

            BY ADVS.
            SRI.R.PADMAKUMAR
            SRI.P.ARAVIND

RESPONDENT/RESPONDENT:

            REBECA MANI, AGED 50 YEARS,
            W/O.ROY MATHEW, KANIYAMKULAM HOUSE, KOTTAYAM-1,
            KOTTAYAM, NOW AT POOZHIKKATTU PUTHUPARAMBIL,
            CHENNITHALA P.O., MAVELIKARA 690105.

            R1 BY ADV. SRI.M.GOPAKUMAR

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal.No.617 OF 2012

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                        JUDGMENT

Dated this the 28th day of January 2021

C.S.Dias, J.

The appellant had filed O.P(Div).No.853/2009

against the respondent before the Family Court,

Alappuzha under Section 10 (1)(ix) & (x) of the Divorce

Act, 1869, seeking a decree of divorce to dissolve their

marriage.

2. The compendious facts giving rise to the

present appeal are as follows: The appellant had

married the respondent on 21.5.1990. The parties

are Christians by religion. The couple lived together at

the residence of the appellant and, thereafter, in abroad

where the appellant was working since 21.11.1990. A

son named Deepak Mathew Roy was born in their

wedlock on 15.9.1991. On 2.12.1991, the respondent

returned to India and secured a job as a Teacher in the

Parish School of the appellant. The appellant had paid

an amount of Rs.1,50,000/- as donation to secure the Mat.Appeal.No.617 OF 2012

employment. The respondent was leading a life of her

own choice. She used to leave the matrimonial home

without informing the parents of the appellant. On

19.12.1996, the respondent insisted to accompany the

appellant's brother's wife 'Rejimol' to Kottayam, which

was objected to by the appellant's mother. The

respondent pushed down the appellant's mother, abused

the appellant over phone and left the matrimonial home,

leaving the child behind. The appellant returned to

India and requested the respondent to return to the

marital home, but she refused. The respondent became

irregular for work and on 5.8.1997 resigned her

employment. Despite the earnest efforts made by the

appellant, to resume cohabitation with the respondent,

she refused to live with him. The respondent visited

Hyderabad, Bangalore etc., without informing the

appellant. She propagated unsavory barbs against the

appellant and his relatives. She attempted to commit

suicide in 2005. During the mediation talk, as advised Mat.Appeal.No.617 OF 2012

by the Parish Priest, the couple decided to consult a

Psychologist. However, the respondent unilaterally

withdrew from the decision and refused to meet the

Expert. The respondent has with an animus deserted

the appellant and her son since 19.12.1996. Hence, the

original petition for dissolution of marriage on the

grounds that the respondent has treated the appellant

with cruelty and deserted him.

3. The respondent filed a written objection

refuting the allegations in the original petition. She

admitted the marriage as well as the maternity of the

child. She contended that the appellant compelled her

to resign her job for the purpose of looking after to his

father, who was bed ridden and who eventually passed

away in 1994. She had worked in the school only in a

leave vacancy. She had not assaulted her mother-in-law

as alleged in the original petition. The appellant refused

the respondent to visit her parents in Bombay and in

Gulf. Neither the appellant nor his relatives cared to Mat.Appeal.No.617 OF 2012

maintain the respondent and the child. In 1997, the

appellant and his relatives visited the house of the

respondent and forcefully took away the child. The

attempt of the appellant in filing the original petition is

only to obtain a divorce and to get remarried. In 2005,

during the mediation talk, the couple decided to built a

new house and live independently. However, at the

instigation of the appellant's brother, false complaints

were filed against the respondent to evict her from the

house. In 2009, the respondent filed M.C No. 92/2009

before the Judicial First Class Magistrate Court -I,

Mavelikara and a residence order was passed in her

favour. It was the appellant who deserted the

respondent since 19.2.1996. Hence the original

petition may be dismissed.

4. The appellant and two witnesses were examined

as PW1 to PW3, and Exts.A1 to A4 were marked through

them. The respondent was examined as RW1 and Exts.

B1 and B2 were marked through her.

Mat.Appeal.No.617 OF 2012

5. The Family Court, after evaluating the pleadings

and materials on record, dismissed the original petition

on the ground that the appellant had not proved that the

respondent has treated him with cruelty or deserted

the appellant.

6. Being aggrieved by the dismissal of the original

petition, this Mat. Appeal is filed.

7. Heard Sri.R.Padmakumar, the learned counsel

for the appellant/petitioner and Sri.M.Gopakumar, the

learned counsel for the respondent/respondent.

8. The sole question 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 on the grounds

provided under sub-clause (ix) and (x) of sub-section (1)

of Section 10 of the Divorce Act, 1869, alleging that the

respondent had treated the appellant with cruelty and

had also deserted him for two years preceding the

presentation of the original petition. Mat.Appeal.No.617 OF 2012

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

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

Supreme Court, while considering an analogous

provision under 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 Mat.Appeal.No.617 OF 2012

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 Mat.Appeal.No.617 OF 2012

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.

(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 Mat.Appeal.No.617 OF 2012

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 Mat.Appeal.No.617 OF 2012

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 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 that the

petitioner has, inter alia, suffered acute mental pain,

agony and suffering and it would be impossible for him

to continue to live with the respondent. Mat.Appeal.No.617 OF 2012

12. On a re-appreciation of the pleadings and

materials on record, especially the oral testimonies of

PW1 to PW3, it is on record that the respondent ignored

the request of the appellant's mother and left the

matrimonial home on 19.12.1996, leaving the child with

the appellant's mother. She did not return to the

matrimonial home despite the fervent plea of the

appellant. In 2005, she returned and attempted to

commit suicide. The appellant was compelled to file a

complaint before the Sub Inspector of Police,

Mavelikara against the so-called attempt of the

respondent. In the mediation talk held in the presence

of Rev. Fr.M.I.Thomas and others, it was decided that

the the parties should consult a Psychologist. However,

the respondent backed out and the counselling did not

materialise. It is proved that the couple have separated

since 19.12.1996, which is 13 years as on the date of

filing the original petition. PWs1 to 3 have deposed

that the respondent pushed down her mother-in-law in Mat.Appeal.No.617 OF 2012

the matrimonial home. Thereafter, the strain in the

relationship worsened. The fact remains that there has

been no cohabitation between the couple since

19.12.1996.

13. The sheet-anchor of the respondent was that

due to the domestic violence that was perpetrated on

her, she had filed M.C No.92/2009 before the Judicial

First Class Magistrate Court-I, Mavelikara and Ext.A2

ad-interim order was passed in her favour. However, it

is brought to the notice of this Court that on 17.5.2010,

the petitioner had withdrawn the case. In light of the

dismissal of M.C No.92/2009, no reliance can be placed

on the so-called ad-interim residence order passed by

the court.

14. The oral testimony of PW1 corroborated with

the oral testimonies of PW2-the neighbour of the

appellant and PW3 - the maidservant substantiates that

there were frequent quarrels between the couple in

the matrimonial home. PW2 is an eye-witness to the Mat.Appeal.No.617 OF 2012

incident of the respondent pushing down the mother of

the appellant, which is a grave act of cruelty . PW3 has

also witnessed the various incidents that occurred in the

matrimonial home. All the incidents pleaded and

proved by the appellant establish that the appellant was

under acute mental pain, agony and suffering due to

the matrimonial cruelty meted out on him by the

respondent. The appellant has necessarily pleaded and

proved that the respondent has treated him with cruelty

falling within the illustration Nos.(i), (ii), (iv) to (ix) and

(xiv) in paragraph 101 in Samar Ghosh v. Jaya Ghosh

(supra).

15. In addition to the ground of cruelty, the

appellant had also sought for a decree of divorce on the

ground of desertion i.e, the respondent had animus

deserted him since 19.12.1996. The original petition

was filed on 19.9.2009 i.e., after a period of thirteen

years after separation. The respondent does not have a Mat.Appeal.No.617 OF 2012

case that the couple lived together after 19.12.1996.

Although the respondent had filed M.C No. 92/2009 and

Ext.A2 ad-interim order was passed in her favour, she

herself had withdrawn M.C 92/2009.

16. On an overall analysis of the pleadings and

materials on record and the undisputed fact that the

couple have not resided since 19.12.1996, we have no

hesitation in our mind that the respondent with an

animus to desert the appellant had left the matrimonial

home since 19.12.1996. Now it is nearly 25 years since

the couple have separated. Hence the marriage is

irretrievably broken down beyond redemption and has

become a dead wood. Hence, we are of the view that

the appellant is also entitled to a decree of divorce on

the ground of desertion.

17. On an overall re-appreciation of the pleadings

and evidence in an apposite manner, we are of the

considered opinion that the appellant has proved that

the respondent has treated him with cruelty and has Mat.Appeal.No.617 OF 2012

with an animus deserted the appellant. In the said

circumstances, we hold that the appellant is entitled for

a decree of divorce.

In the result, the Mat.Appeal is allowed is follows:

(i) The judgment and decree in O.P.(Div)

853/2009 is set aside.

(ii) The marriage between the appellant/ petitioner and the respondent//respondent solemnised on 21.5.1990 is dissolved by a decree of divorce.

(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/2.2.2021 /True copy/