Somaraj.C vs E.X.Juliet
2021 Latest Caselaw 3072 Ker

Mat.Appeal.Nos.109/2014 & 507/2015

                                     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.109 OF 2014

  AGAINST THE JUDGMENT IN OP 785/2007 DATED 30-11-2013 OF
              FAMILY COURT,THIRUVANANTHAPURAM


APPELLANT/COUNTER PETITIONER:

              SOMARAJ.C.
              AGED 52 YEARS
              S/O LATE J.CHARLES,PULLUVILA
              VEEDU,ARAMADA.P.O,THRIKKANNAPURAM,THIRUVANANTH
              APURAM NOW RESIDING AT
              SOJUS,T.C.18/1184(5),ARAMADA.P.O,
              THRIKKANNAPURAM,THIRUVANANTHAPURAM.

              BY ADVS.
              SRI.D.KISHORE
              SMT.MINI GOPINATH

RESPONDENT/S:

              E.X.JULIET
              D/O.E.T.XAVIER,EDATHURUTHI
              HOUSE,THEVARA,KOCHI,NOW RESIDING AT
              T.C.7/1688,'SIVAM'PANGODE,
              THIRUVANANTHAPURAM-695001.

              R1 BY ADV. SMT. MEERA RADHAKRISHNAN
              R1 BY ADV. SMT.K.KUSUMAM
              R1 BY ADV. SMT.RENY ANTO

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
28.01.2021, ALONG WITH Mat.Appeal.507/2015, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.Nos.109/2014 & 507/2015

                                     2




           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.507 OF 2015

  AGAINST THE UDGMENT IN OP 1237/2008 DATED 30-11-2013 OF
              FAMILY COURT,THIRUVANANTHAPURAM


APPELLANT/PETITIONER:

              SOMARAJ.C.
              AGED 52 YEARS, S/O.LATE J.CHARLES, PULLUVILA
              VEEDU, ARMADA.P.O., THRIKKANNAPURAM,
              THIRUVANANTHAPURAM NOW RESIDING AT
              SOJUS,T.C.NO.18/1184(5), ARAMADA.P.O.,
              THRIKKANNAPURAM, THIRUVANANTHAPURAM.

              BY ADVS.
              SRI.D.KISHORE
              SMT.MINI GOPINATH

RESPONDENT/COUNTER PETITIONER:

              E.X.JULIET
              D/O.E.T.XAVIER, EDATHURUTHI HOUSE, THEVARA,
              KOCHI, NOW RESIDING AT T.C.7/1688, 'SIVAM',
              PANGODE, THIRUVANANTHAPURAM-695 001.

              R1 BY ADV. SMT.K.KUSUMAM

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
28.01.2021, ALONG WITH Mat.Appeal.109/2014, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.Nos.109/2014 & 507/2015

                                     3

                   COMMON JUDGMENT

       Dated this the 28th day of January 2021

C.S.Dias, J.

As these appeals arise out of a common judgment

passed by the Family Court, Thiruvananthapuram in

O.P. No.785/2007 and O.P. No.1237/2008 and the

parties are the same, they are being disposed of by

this common judgment.

2. Juliet - the wife of Somaraj had filed O.P.

785/2007 seeking a decree of divorce as provided

under clauses (ix) and (x) of Sub-Section (1) of Section

10 of the Divorce Act, 1869 (in short 'Act'). Somaraj

filed O.P. No.1237/2008 against Juliet seeking a decree

for restitution of conjugal rights as provided under

Sec.32 of the Act. The Family Court by a common

judgment dismissed O.P. No.1237/2008 filed by

Somaraj and allowed O.P. No.785/2007 filed by Juliet,

whereby, the marriage between the spouses stands

dissolved by a decree of divorce.

3. Being aggrieved by the allowing of O.P. Mat.Appeal.Nos.109/2014 & 507/2015

No.785/2007 and the dismissal of O.P. No.1237/2008,

Somaraj is before this Court in the above appeals. For

the sake of convenience, Juliet is being referred to as

petitioner and Somaraj is being referred to as

respondent as per their status in O.P No.785/2007.

4. The concise case of the petitioner in OP

No.785/2007 is as follows: The petitioner was married

to the respondent on 14.1.1991. The parties are

Christians. Both of them are Engineering Assistants

in All India Radio. Two months after the marriage,

the respondent started to treat the petitioner with

cruelty. He abused her in public places, even for the

reason that she looked at the face of a Pedestrian. He

assaulted the petitioner at the bus station. The Police

patrol had to intervene and chasten the respondent.

The respondent maintained an inferiority complex as

he belonged to the CSI community. The respondent

used to address the petitioner, who belonged to the

Latin Catholic Community, as a fisher woman Mat.Appeal.Nos.109/2014 & 507/2015

("Mukkothi"). He also humiliated the petitioner by

addressing her as the "daughter of a prostitute".

Physical assault became a routine affair. The

respondent neglected to maintain the petitioner and

meet to the household expenses. In 1997, the

respondent physically assaulted the petitioner and

abused her in vituperative language. Even though the

couple decided to construct a house by availing

housing loan and the respondent undertook to repay

the monthly installments, he retracted from his

promise, compelling the petitioner to repay the loan.

The couple was blessed with a child on 3.3.2004.

The petitioner joined for B.Tech evening course. She

used to return only by 9.30 p.m. The respondent

started spreading canards against the petitioner,

imputing that she had leading an immoral life and

questioned her chastity. He assaulted her and she

sustained injuries on her face, and thereafter he

locked her in a room. On 30.9.2006, the respondent Mat.Appeal.Nos.109/2014 & 507/2015

physically assaulted the petitioner. On 8.7.2007, the

respondent banged the petitioner's head against the

wall. A case was registered against the respondent

for an offence punishable under Section 324 of the

Indian Penal Code. The petitioner is apprehensive of

her life and limp due to the continuous and unabated

cruelty meted out on her. The respondent had

constructively deserted the petitioner from 20.2.2004.

The marriage is irretrievably broken and hence the

same may be dissolved.

5. The respondent filed a written objection

refuting the allegations in the original petition. It

was his case that the petitioner maintained a distance

as they belonged to different community

denominations. The petitioner treated the respondent

badly and abused him. It was the respondent who

paid the EMIs for the housing loan. He also played

an active role in getting admission for the petitioner

to join the B.Tech course. The petitioner became a Mat.Appeal.Nos.109/2014 & 507/2015

spendthrift after joining the B.Tech Course. She

splashed money for clothing, money and ornaments

etc. The petitioner treated the respondent's father as

an unwanted element. The petitioner has not made

out any ground for dissolution of their marriage.

Hence the original petition may be dismissed.

6. The respondent filed O.P. 1237/2008 on the

very same lines as in the written objection in O.P.

No.785/2007. The petitioner filed a written objection

also in tune with her case in O.P No. 785/2007.

7. The Family Court consolidated and jointly

tried the original petitions. The petitioner and a

witness were examined as PW1 and PW2 and Exts.A1

to A15 were marked through them. The respondent

was examined as CPW1 and Exts.B1 to B4(a) were

marked through him.

8. The Family Court, after evaluating the

pleadings and materials on record, by the impugned

common judgment, allowed O.P. No.785/2007 and Mat.Appeal.Nos.109/2014 & 507/2015

dismissed O.P. No.1237/2008.

9. Heard Sri.D.Kishore, the learned counsel

appearing for the appellant/respondent and Sri.Basant

Balaji, the learned counsel appearing for the

respondent/petitioner.

10. The learned counsel appearing for the

appellant vehementally argued that the Family Court

has gone wrong in allowing O.P. No.785/2007 and

dismissing O.P. No.1237/2008. According to him, the

allegations pleaded and testified by the petitioner are

all trivial and puerile, which does not warrant the

extreme step of dissolution of the sacred bond of

marriage. At the worst, the incidents alleged are

normal wear and tear in a married life. As the couple

have two daughters, it would always be better for the

couple to resume cohabitation, at least for the welfare

and interest of the children. The findings of the Family

Court are all based on conjunctures without

evaluating the pleadings and evidence in its proper Mat.Appeal.Nos.109/2014 & 507/2015

perspective. Hence he prayed that the appeals be

allowed and a decree of restitution of conjugal rights

be passed in favour of the appellant/respondent.

11. The learned counsel appearing for the

respondent, on the contrary, argued that there is

absolutely no error committed by the Family Court in

granting a decree of divorce in favour of the

respondent/petitioner. The specific instances of

cruelty pleaded and proved by the respondent justifies

the common judgment passed by the Family Court. The

couple are living separately since 2004. Hence the

marriage has become a deadwood and there is no

point, at this distance of time, in interfering with the

common judgment passed by the Family Court. The

children have attained majority and they may be left

to their choices. He drew our attention to the

undisputed fact that all the monetary dispute between

the couple were settled on the basis of a compromise

arrived at between the parties. This Court recorded Mat.Appeal.Nos.109/2014 & 507/2015

the compromise and disposed of Mat.Appeal 320/2015.

This aspect also shows that nothing survives in the

martial relationship between the couple. He hence

prayed that the appeals be dismissed.

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 children

are not disputed. The petitioner had filed O.P.

785/2007 seeking a decree of divorce to dissolve her

marriage with the respondent on the grounds that the

respondent treated her with cruelty and had with an

animus deserted her.

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 Mat.Appeal.Nos.109/2014 & 507/2015

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 Mat.Appeal.Nos.109/2014 & 507/2015

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.

(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.Nos.109/2014 & 507/2015

(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.

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 averred by

the petitioner are that the respondent used to

humiliate her in public places, used to call her ' a Mat.Appeal.Nos.109/2014 & 507/2015

fisher woman', used to call her 'a daughter of a

prostitute', used to economically abuse her by not

repaying the housing loan, used to suspect her

chastity, physically assaulted her on 30.9.2006 and

8.7.2007 and with an animus deserted her since

20.2.2004.

16. The Family Court after appreciating the

pleadings and materials on record, particularly Ext.A3

outpatient ticket issued by the General Hospital,

Thiruvananthapuram, which substantiates that the

petitioner was admitted with contusion on the left side

of her face. Likewise, Ext.A9 substantiates that the

petitioner was constrained to file MC No.10/2010,

invoking the provisions of the Protection of Woman

from Domestic Violence Act, and Ext.A11 prohibitory

order was passed against the respondent restraining

him from committing any act of domestic violence.

Similarly, Ext.A12 complaint filed by the petitioner

before the Circle Inspector of Police, Poojappura, also Mat.Appeal.Nos.109/2014 & 507/2015

establishes that the respondent attempted to violate

the interim orders passed by the Family Court.

17. Going by the above materials and the oral

testimonies of PWs 1 and 2, it stands proved beyond

any shadow of doubt that there were serious

differences between the couple right from inception of

their marriage till the twilight of their separation. The

respondent has not produced any material to discredit

the materials on record or controvert the oral

testimonies of PWs 1 and 2.

18. On a comprehensive appraisal of the

matrimonial life between the couple at least from 2006

to 2010 i.e., prior to the institution of the original

petitions and the subsequent events, we are satisfied

that the appellant has meted out cruelty on the

petitioner. The petitioner was even compelled to

invoke the provisions of the Protection of Woman from

Domestic Violence Act, and seek prohibitory and

restraint orders. The act of the respondent has Mat.Appeal.Nos.109/2014 & 507/2015

certainly caused a feeling of deep anguish in the mind

of the petitioner and she being apprehensive for her

life and limb. The specific instances of cruelty

pleaded and proved by the petitioner cannot be

construed as mere trivial irritations, quarrels or

normal wear and tear of married life. The instances

have spanned right after the marriage in the year 1991

till 2010, i.e., for a period nearly two decades. The

petitioner has not taken a hasty decision to snap the

marital knot. The overwhelming evidence on record

clearly establishes and substantiates that the

respondent has treated the petitioner with

matrimonial cruelty falling within the parameters in

Samar Ghosh ( supra).

19. Now with regard to the ground of desertion.

It is on record that the couple parted ways on

20.2.2004. The petitioner's case is that due to the

extreme cruelty that was meted out on her by the

respondent, she was constrained to live separately Mat.Appeal.Nos.109/2014 & 507/2015

from the respondent. We have already found that the

respondent has treated the petitioner with cruelty.

Therefore, we have no hesitation to hold that the

respondent is guilty for constructive desertion as laid

down by the Hon'ble Supreme Court in Ravikumar v

Julmidevi [2010) 4 SCC 476]. The oral testimonies of

PW1 and PW2 with the materials on record

substantiate that the couple are living separately since

20.2.2004. The petitioner has proved that the

respondent has deserted the petitioner for two years

prior to the institution of O.P. No.785/2007.

20. On an overall re-appreciation of the pleadings

and materials on record in an apposite manner, we are

of the considered opinion that the marriage between

the petitioner and the respondent is shattered beyond

redemption and has become a deadwood. The

petitioner has pleaded and proved specific instances of

cruelty and that the respondent has deserted the

petitioner for more than two years.

Mat.Appeal.Nos.109/2014 & 507/2015

In the above discussed legal and factual

background, our inevitable conclusion is that there is

absolutely no error in the common judgment passed by

the Family Court in O.P. No.785/2007 dissolving the

marriage between the petitioner and the respondent

by a decree of divorce, and by dismissing O.P.

No.1237/2008. The appeals fail and are consequently

dismissed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                          C.S.DIAS

ma/29.01.2021                             JUDGE

                           /True copy/