Sabitha Unnikrishnan vs Vineet Das
2021 Latest Caselaw 13322 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                               &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
    MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943
                 MAT.APPEAL NO. 594 OF 2018
   AGAINST THE ORDER/JUDGMENT IN OPHMA 758/2014 OF FAMILY
               COURT, MAVELIKKARA, ALAPPUZHA
APPELLANT/PETITIONER:

         SABITHA UNNIKRISHNAN
         AGED 33 YEARS
         W/O.VINEET DAS, SABITHA, MANNARASALA P.O.,
         HARIPAD, KARHTIKAPPALLY TALUK.

         BY ADVS.
         SRI.NAGARAJ NARAYANAN
         SRI.BENOJ C AUGUSTIN
         SRI.U.M.HASSAN
         SRI.SAIJO HASSAN
         SRI.VISHNU BHUVANENDRAN



RESPONDENT/RESPONDENT:

         VINEET DAS
         AGED 36 YEARS
          S/O.LATE MOHANDAS, KRISHNA BHAVAN, NEAR CATHOLIC
         CHURCH, CHENGANOOR, THIRUVALLA TALUK,
         PATHANAMTHITTA-682191, PRESENT ADDRESS - VINEET
         DAS, S/O.LATE MOHANDAS, CATERING AND SUPPLIES
         COMPANY, LLC, P.O.BOX 311, POSTAL CODE-100, OMAN,
         MUSCAT.

         BY ADVS.
         SRI.JACOB P.ALEX
 Mat.Appeal No.594/2018

                            -:2:-

           SRI.JOSEPH P.ALEX
           SHRI.MANU SANKAR P.


     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
16.06.2021,   THE   COURT   ON  28.06.2021   DELIVERED   THE
FOLLOWING:
 Mat.Appeal No.594/2018

                              -:3:-




                         J U D G M E N T

           Dated this the 28th day of        June, 2021


Dr.Kauser Edappagath, J.

This matrimonial appeal filed by wife is directed against the

judgment of the Family Court, Mavelikkara (for short, 'the court

below') dismissing the original petition filed by her against her

husband for divorce on the ground of cruelty and desertion.

2. The marriage between the appellant and the

respondent was solemnized on 28/6/2009 as per the Hindu

religious rites and ceremonies. In the wedlock, a child was born

on 20/5/2011.

3. The appellant as well as the respondent were working

at Sultanate of Oman at the time of marriage. After a few days

of marriage, i.e, on 15/7/2009, the appellant and the respondent

went back to Sultanate of Oman to resume their job. According

to the appellant, while they were living together in Sultanate of

Oman, the respondent made false allegations of unchastity

against her and the said allegations were spread among his Mat.Appeal No.594/2018

relatives as well as the co-workers of her father. The appellant

alleged that the respondent spread about the said false

allegations of unchastity to his maternal uncle, Sri.Hari and his

aunt, Smt.Usha Pillai, residing at U.S.A who in turn sent Ext. A2

email message to her alleging infidelity on her part. According to

the appellant, the said false imputation of adulterous conduct

made by the respondent lowered her reputation in the estimate

of others including co-workers and, thus, she cannot be expected

to live with the respondent. It is further alleged that while they

were living together at Sultanate of Oman, the respondent used

to pick up quarrels with her on the issue of unchastity and on

1/3/2012, he brutally assaulted her as well. It is also alleged that,

from 1/3/2012 onwards, she has been living separately from the

respondent who has deserted her with permanent intention to

break the marital relationship between them. It was in these

circumstances, the appellant preferred the Original Petition for

dissolution of marriage on the ground of cruelty and desertion.

4. The respondent entered appearance in the court below

and filed objection statement. He specifically denied the instance

of cruelty allegedly exercised by him on the appellant and Mat.Appeal No.594/2018

pleaded in the original petition. The respondent also denied the

allegation in the original petition that he has made false

allegation of unchastity against the appellant. According to him, it

was the appellant who often quarelled with him and failed to

discharge her marital obligation. It is also contended that the

appellant has always been highly passionate for luxurious life and

he was forced to succumb to her needs. Ext. A2 email was

denied. He asserted that he is ready to reside with the appellant

and discharge his marital obligations even now. The respondent

sought for the dismissal of the petition.

5. The respondent has also filed a petition under the

Guardian and Wards Act for the permanent custody of the child

before the court below. Both original petitions were tried

together by the court below. On the side of the appellant, PW1

and PW2 were examined and Exts. A1 to A3 were marked. On the

side of the respondent, RW1 and RW2 were examined and Exts.

B1 to B5 series were marked. After trial, the court below found

that the appellant has failed to prove cruelty as well as desertion

and accordingly the original petition was dismissed as per the

impugned judgment. Challenging the said judgment, the Mat.Appeal No.594/2018

appellant preferred this appeal.

6. We have heard Sri.Nagaraj Narayanan, the learned

counsel for the appellant and Sri.Jacob P.Alex, the learned counsel

for the respondent.

7. The learned counsel for the appellant submitted that

the appellant is not pressing the prayer for dissolution of

marriage on the ground of desertion. Thus, what survives for

consideration is only the ground of cruelty.

8. The learned counsel for the appellant assails the

impugned judgment on the ground that the court below was

unreasonable and unrealistic in the appreciation of oral as well as

documentary evidence. The learned counsel submitted that the

evidence on record, both oral and documentary, would clearly

prove that the respondent has exercised cruelty, both physically

and mentally, on the appellant. The learned counsel for the

respondent on the contrary submitted that the evidence on

record is insufficient to prove cruelty alleged so as to grant a

decree for dissolution of marriage and, thus, the court below was

absolutely justified in dismissing the original petition.

9. As stated already, at the time of marriage, both the Mat.Appeal No.594/2018

appellant and the respondent were employed at Sultanate of

Oman. The father of the appellant was employed in the same

company where the respondent was employed. After a few days

of marriage, the appellant and the respondent went to Sultanate

of Oman and they resided together. According to the appellant,

during this period, matrimonial dispute developed between them

which were further intensified by passage of time. It is specifically

alleged by the appellant that, on 1/3/2012, there was an incident

of physical assault and from the said date onwards they have

been living separately. This is specifically disputed by the

respondent. However, the respondent also admits that since

23/3/2014, they have been living separately.

10. Cruelty as a matrimonial offence is the conduct in

relation to or in respect of matrimonial duties and obligations. It

is settled that physical violence is not absolutely essential to

constitute cruelty; a cruelty complained of may be mental or

physical. Mental cruelty is a state of mind and feeling with one of

the spouses due to the behaviour or behavioural pattern by the

other and inference can be drawn from the attending facts and

circumstances taken cumulatively. The Supreme Court in Mat.Appeal No.594/2018

Dr.N.G.Dastane v. Mrs.S.Dastane (AIR 1995 SC 1534) has

held that the standard of proof in matrimonial cases would be

same as in civil cases, i.e., the Court has to decide the cases

based on preponderance of probabilities. Therefore, the Court has

to see what are the probabilities in a case and legal cruelty has to

be found out, not merely as a matter of fact, but as the effect on

the mind of the complainant spouse because of the acts or

omissions of the other.

11. The main allegation of mental cruelty on the part of

the respondent canvassed by the appellant is the false allegation

of unchastity made by him against her. It is settled that the

unsubstantiated accusation and character assassination by one

spouse against the other would constitute mental cruelty. The

Supreme Court in Vijaykumar Ramchandra Bhate v. Neela

Vijaykumar Bhate (AIR 2003 SC 2462) has held that

unsubstantiated disgusting accusations made by one spouse

against the other in the written statement constitutes mental

cruelty for sustaining the claim for divorce. In K. Srinivas Rao v.

D. A. Deepa (AIR 2013 SC 2176), it was held that making

unfounded indecent defamatory allegations against the spouse or Mat.Appeal No.594/2018

his or her relatives in the pleadings amount to causing mental

cruelty to the other spouse. Again, the Supreme Court in Raj

Talreja v. Kavita Talreja (2017 KHC 6335) has held that the

reckless, defamatory and false accusations made by the wife

against her husband, his family members and colleagues would

definitely have the effect of lowering his reputation in the eyes of

his peers and, thus amounts to cruelty. In Gangadharan v. T. T.

Thankam (AIR 1988 Kerala 244), this Court held that false,

scandalous, malicious, baseless and unproved allegation made by

one spouse, whether by letters or written statement or by any

other mode, amounts to cruelty.

12. The appellant relies on her own evidence as PW1 and

the oral testimony of her mother, who was examined as PW2 and

Ext. A2, the copy of the email, to prove the case set up by her.

The court below on appreciation of evidence found that the oral

testimonies of PW1 and PW2 are not reliable and that Ext. A2

cannot be relied on without examining its author. It was further

found that the there is nothing on record to show that the

imputations in Ext. A2 regarding the infidelity of the appellant

was furnished by the respondent to his aunt, who sent Ext.A2 to Mat.Appeal No.594/2018

him. Relying on the entries in Ext. B4 passport of the respondent,

it was found that the respondent was in India on 1/3/2012, the

date of the alleged physical cruelty, and hence, the said incident

also cannot be said to be proved.

13. The pleadings, oral evidence of PW1 and PW2 as well

as the contents in Ext. A2 have to be appreciated and evaluated

together to find out whether the case set up by the appellant that

the respondent has made false accusation of unchastity against

her is true or not. There is specific pleading in the petition that

while the parties were living together at Sultanate of Oman, the

respondent made false allegation of unchastity against the

appellant, the allegation was also spread among the relatives of

the respondent as well as among the co-workers of the father of

the appellant and that the respondent spread about the alleged

unchastity to his uncle and aunt residing at USA and on 4/3/2012,

the respondent's aunt Smt.Usha Pillai sent an email message to

the appellant alleging that she was caught hold of by police with

a boy friend and both of them were taken to police station. The

appellant asserted that there was no such incident as alleged in

the email and there is absolutely no truth in the allegation of Mat.Appeal No.594/2018

unchastity levelled against her. The appellant also gave oral

evidence in tune with the pleadings.

14. To corroborate her oral testimony, the appellant has

produced the most crucial document Ext. A2, the copy of the

email. The learned counsel for the respondent submitted that Ext.

A2 could not have been even admitted in view of the provisions

of Sections 65 and 65B of the Evidence Act. The learned counsel

further submitted that Ext. A2 is only an unauthenticated copy

and its author has not been examined and hence no reliance can

be placed on the same. The counsel also submitted that even if it

is admitted that Ext. A2 is an email message sent by Smt. Usha

Pillai, the aunt of the respondent, then also, the respondent

cannot be held liable for its contents inasmuch as nowhere is it

stated in Ext. A2 that the information about the illicit affair of the

appellant was furnished by the respondent. We are unable to

agree with the learned counsel for the respondent.

15. The technicalities of the Evidence Act cannot be

imported to a proceedings before the Family Court because

Section 14 of the Family Courts Act authorizes a Family Court to

receive as evidence any report, statement, document, Mat.Appeal No.594/2018

information or matter that may, in its opinion assist it to deal

effectually with a dispute irrespective of whether it is relevant or

admissible under the Indian Evidence Act, 1972. It is discernible

from Section 14 that the technicalities of Indian Evidence Act

regarding the admissibility or relevancy of evidence are not

strictly applicable to the proceedings under the Family Court and

in the matrimonial dispute before the Family Court, a discretion

has been given to the court to rely on the documents produced if

the court is satisfied that it is required to assist the court to

effectively deal with the dispute.

16. Now, we will come to the contents of Ext. A2. Ext. A2

mail was sent by the aunt of the respondent Smt. Usha Pillai to

the appellant on 04/03/2012. In fact, it was in response to a mail

sent by the appellant to her on 29/01/2012. The said mail also

forms part of Ext. A2. A reading of the mail dated 29/01/2012

would show that the appellant informed about her strained

relationship with the respondent to Smt.Usha Pillai and sought

her version in the matter. A reading of the mail dated 04/03/2012

which runs into two pages would show that Smt.Usha Pillai and

her husband Sri.Hari knew about the marital problems between Mat.Appeal No.594/2018

the appellant and the respondent and they had intervened in it.

It is specifically stated in the mail that Smt.Usha Pillai had spoken

to the respondent about the marital problems between him and

the appellant and she heard what the respondent has to say in

the matter. It is also further stated in the said mail that the

respondent had knowledge about the boy friend of the appellant

even before the marriage. There is a specific aspersion in Ext. A2

that the appellant was caught hold of by police along with a boy

friend and both of them were taken to police station. It is further

stated in Ext. A2 that the respondent had told Smt. Usha Pillai

and her husband that the appellant was trying to get the baby's

surgery done without his consent. Smt. Usha Pillai has even

doubted the paternity of the child. The respondent was cross-

examined in length as to the contents of Ext. A2. He deposed

that he came to know of Ext. A2 and its contents including the

allegation regarding unchastity when he received the notice in

the original petition. Still, he did not ask about it to Smt.Usha

Pillai. At the same time, he stated that he enquired about Ext. A2

with his uncle, the husband of Smt. Usha Pillai, who admitted that

Smt. Usha Pillai had sent Ext. A2 to the appellant. He also stated Mat.Appeal No.594/2018

that he picked up quarrel with his uncle on that count. That apart,

in the original petition for custody filed by the respondent before

the court below, he has stated that the appellant had an affair

with another person. All these circumstances indicate that it was

the respondent who told Smt. Usha Pillai that the appellant was

caught hold of by the police along with a boy friend and both of

them were taken to the police station. Fore all theses reasons,

we are of the view that the contents in Ext. A2 can safely be

relied upon.

17. PW2, the mother of PW1, has also given evidence that

the respondent used to pick up quarrel with the appellant alleging

that she was having extra-marital relationship with another

person. She deposed that the respondent has spread the said

allegation among his relatives. Even though PW2 has been cross-

examined in length, nothing tangible has been brought out to

discredit her testimony. We also find no reason to disbelieve the

evidence tendered by PW1 that the allegation of unchastity was

spread by the respondent among the co-workers of her father.

Admittedly, father of the appellant and the respondent were

working in the same company in the Sultanate of Oman. The Mat.Appeal No.594/2018

respondent has miserably failed to substantiate the imputation

made by him that the appellant has relationship with another

person and she is an unchaste woman. Levelling disgusting

accusation of unchastity and attributing aspersions of

perfidiousness to the wife would undoubtedly amount to worst

form of mental cruelty. No wife can tolerate such accusation. On

going through the relevant portions of imputations in Ext. A2, we

find that they are of such quality, magnitude and consequence as

to cause reasonable apprehension in the mind of the appellant

that it is not safe for her to continue the marital tie. Inasmuch as

the mental cruelty on this ground has been established, it is

immaterial whether the allegation of physical assault on 1/3/2012

has been substantiated or not in order to grant a decree for

dissolution of marriage on the ground of cruelty.

18. On an overall appreciation of the pleadings and

evidence, we find that the appellant has made out a case for

granting a decree for dissolution of marriage on the ground of

cruelty u/s 13(1)(ib) of the Hindu Marriage Act, 1955. The court

below went wrong in dismissing the original petition for

dissolution of marriage. The impugned judgment, thus, rejecting Mat.Appeal No.594/2018

the prayer for dissolution of marriage on the ground of cruelty is

liable to be set aside. We do so.

In the result, the appeal is allowed. The impugned judgment

is set aside. OP No.758/2014 on the file of Family Court,

Mavelikkara is allowed. The marriage between the appellant and

the respondent solemnized on 28/6/2009 stands dissolved. No

order as to costs.

Sd/-

A.MUHAMED MUSTAQUE JUDGE Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp Mat.Appeal No.594/2018

APPENDIX APPELLANTS' EXHIBITS:

ANNEXURE 1               TRUE COPY OF THE DEATH      CERTIFICATE
                         DATED 18.6.2019 OF THE      APPELLANT'S
                         FATHER

ANNEXURE 2               TRUE COPY OF THE COMPLAINT SUBMITTED BY
                         THE   RESPONDENT   BEFORE   THE   DY.SP
                         KAYAMKULAM.

ANNEXURE 3               COMPLAINT DATED 15.5.2019 GIVEN BY THE
                         RESPONDENT TO THE DYSP, KAYAMKULAM
                         OBTAINED BY THE PETITIONER UNDER RTI ON
                         13.8.2020.

ANNEXURE 4               TRUE COPY OF THE ORIGINAL      PETITION
                         FILED BY THE RESPONDENT AS     O.P(G&W)
                         NO.1147/2014.

                               True Copy

                              PS to Judge
Rp