M.Nanu vs Sreelatha
2021 Latest Caselaw 13346 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. 682 OF 2017
    AGAINST THE JUDGMENT IN OP 280/2015 OF FAMILY COURT,
                          THALASSERY, KANNUR
APPELLANT/S:

          XXXXX

          BY ADVS.
          SRI.S.SREEKUMAR (SR.)
          SRI.ARJUN RAGHAVAN
          SRI.ADITHYA RAJEEV
          SRI.T.R.HARIKUMAR



RESPONDENT/S:

          XXXXX

          BY ADVS.
          SMT.JEENA JOSEPH
          SRI.G.D.PANICKER



THIS   MATRIMONIAL      APPEAL   HAVING      BEEN   FINALLY   HEARD   ON
22/6/2021,     THIS     COURT    ON       28.06.2021   DELIVERED      THE
FOLLOWING:
  A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.

             =========================
              Mat. Appeal No.682/2017
             ~~~~~~~~~~~~~~~~~~~~~~~~~
       Dated this the 28th day of June,            2021


                     J U D G M E N T

A.Muhamed Mustaque, J.

This appeal was filed assailing the judgment in

O.P.No. 280/2015 filed by the appellant herein before

the Family Court, Thalassery. The above original

petition was filed by the appellant under Section 13(1)

(ia) of Hindu Marriage Act, 1955 for the dissolution of

marriage with the respondent. The Family Court

dismissed the original petition.

2. The appellant is the husband and respondent is

the wife. They married in accordance with the rites

and customs of the Hindu community on 27/4/2014. The

appellant at that time was 68 years and the respondent

was 49 years old. It was second marriage for the

appellant and first marriage for the respondent. The Mat. Appeal No.682/2017

appellant's first wife died in the year 2003. In that

wedlock he has a son who is an army officer. The

appellant retired from the Indian Army as a Major.

According to him, he married the respondent only to

have a support in the evening of life for his care.

The marriage ran into a rough weather from the initial

phase of the married life itself. As seen from the

pleadings and evidence, they lived together as husband

and wife only for a period of three months. On

18/3/2015, the appellant sent a registered notice

through his lawyer demanding respondent to agree for

divorce by mutual consent. The appellant raised three

major reasons for the strained relationship which are

referred hereunder:

I. Respondent forced the appellant to remove two

photographs of his deceased wife kept in the

apartment where they reside. According to

the appellant, the son had kept these

photographs in obeisance to his departed

mother. The removal of those photographs at

the instance of the respondent, according to

the appellant, has caused mental agony to him Mat. Appeal No.682/2017

as well as to his son.

II. The second reason set out in the notice

is about sexual conduct of the respondent.

            According          to    the     appellant,       the     sexual

            overdrive          and    hyper        sexuality        of     the

respondent ran amok leading to his physical

and mental strain.

III. The third main reason set out in the

notice was casting aspersion on the appellant

for having sexual relationship with their

part-time maid servant.

Though there are many allegations set out in the

notice, none of them were specific. Hence we are not

referring to those aspects herein.

3. The above notice was responded through a reply

notice by a lawyer. In the reply notice, the

respondent denied all the allegations except one

related to the sexual relationship with the part-time

maid. In the respondent's lawyer notice, it was

specifically stated that the appellant used to have

oral sex with 'Zeenath', their maid servant in her Mat. Appeal No.682/2017

presence, and on one occasion the appellant forcibly

had oral sex with the respondent and captured the same

in a nokia cell phone bearing No.9947222117. It is

also specifically stated that one Vijayalakshmi, a

family friend of the appellant had seen such

pornographic snap of the respondent. The respondent

also referred to certain instances of physical cruelty

alleged to have been meted out to her by the appellant.

Besides all these counter allegations, the respondent

also mentioned in the reply that the appellant badly

needs psychiatric/psychological treatment.

4. The evidence in this matter mainly consists of

oral evidence of the appellant and the respondent.

Apart from the lawyer notice of both sides, marriage

certificate and medical prescriptions of the hospital

treating the respondent were also produced. The family

court on perusal of the pleadings and oral evidence

came to a conclusion that the appellant failed to make

out a case of divorce on the ground of cruelty.

According to the family court, the ordinary wear and

tear in the marital life cannot be treated as cruelty. Mat. Appeal No.682/2017

5. We heard Senior Counsel Shri S.Sreekumar

assisted by Shri Adithya Rajeev for the appellant. We

also heard Smt.Jeena Joseph, learned counsel for the

respondent.

6. Both husband and wife levelled allegations

against each other in regard to their sexual behaviour.

We have to remind ourselves that parties lived together

only for three months. Any sort of understanding or

misunderstanding on sexual misconduct cannot be

snowballed into a ground for divorce. In any marriage,

the parties may have likes and dislikes including their

approach to sex. If the conduct as such is not grave

enough to make one unbearable, such spouse cannot seek

divorce alleging cruelty. Physical and mental

conditions of the spouses may be different towards sex.

It is only in a situation where the conduct of a spouse

makes it impossible to the other spouse to live

together that will become cruelty. Over the years, the

approach of the Court in analysing the cruelty has

undergone changes. Physical violence is not a pre-

requisite to constitute a ground for cruelty. Any sort

of mental cruelty including one results from sexual

behaviour may also amount to cruelty. Having adverted Mat. Appeal No.682/2017

to the pleadings, evidence and findings, we find that

the allegations in regard to sexual conduct and other

behaviour of the parties have not constituted the

ground of cruelty for any weighty consideration by us;

except the accusation of the illicit relationship of

the appellant with the part-time maid servant. Perhaps

that requires a deeper consideration in this appeal.

7. In the lawyer notice preceded the original

petition, the appellant stated about such accusation

levelled by the respondent about the sexual

relationship of the appellant with the part-time maid

servant. There was no denial of the fact of accusation

of illicit relationship of the appellant with the maid

servant. In the reply notice itself, the respondent

stated as follows:

"7. My client adds that subsequently when both of them shifted their residence to Oceanic, at Beach Road, Calicut, even in front of my client your client used to have oral sex with Zeenath the said maid servant. When questioned, your client has forcibly inserted his erected organ, which is highly infected too, in to the mouth of my client, against her will and taken the snap in his Nokia cell phone bearing No.9947222117, to be used for pornographic purpose and threatened my client that if she disclosed it to anybody, it will be used against her by spreading it in the internet. My client says that few months before your client's family friend Mrs. Vijayalakshmi, W/o.Rajendran, Kuttimakkool, Thalasserry has told my client that your client has shown the said pornographic snap to her, and several others, Mat. Appeal No.682/2017

needless to say that which is punishable in law. My client says that she is having telephonic records to prove the indecent, illegal and immoral activities of your client which are offences punishable under provisions of I.T.Act."

8. The appellant in the petition for divorce

stated that the above attribution had cast aspersion on

him. The respondent in the counter statement filed

before the family court and in the evidence, reiterated

the appellant's relationship with the part-time maid

servant, namely, Zeenath. The appellant in his

testimony had stated that this accusation has caused

mental agony. The learned Senior Counsel for the

appellant submitted that when serious aspersions have

been made denigrating the character of a person in the

absence of proof, that remains only imputations and

therefore, such imputation will constitute cruelty.

The learned counsel for the respondent submitted that

the illicit relationship being a fact and one remaining

steadfast in establishing the truth, that cannot be

used to penalise her. The learned counsel further

submitted that the respondent condoned such sexual

conduct of the appellant for the sake of her life. It

is further argued that merely for the reason she

endured such misconduct, that should not result in Mat. Appeal No.682/2017

throwing out her from wedlock for no fault of her.

9. In Samar Ghosh V. Jaya Ghosh [(2007) 4 SCC

511] at para.101, the apex court illustrated certain

instances of human behaviour which constitute mental

cruelty as guidance to be followed. Those guidelines

would clearly show that any kind of accusation casting

aspersions on the character of one's spouse may also

amount to mental cruelty. The accusation by the

respondent that the appellant is having sexual

relationship with the maid servant remain

unsubstantiated. If the accusations are not true, no

doubt, such allegations would constitute a mental

cruelty to the appellant. Alleging illicit

relationship of the spouse will have serious

repercussion in the married life. It is quite

improbable, a wife would tolerate such illicit relation

of her husband, especially alleged to have occurred in

her presence. It is also quite strange that the

respondent expressed her willingness to live with the

appellant despite she finds that the appellant is

having an extra marital relationship with the servant.

Perhaps the character evidence would have been relevant

in this case as against the appellant when the Mat. Appeal No.682/2017

respondent specifically alleges that pornographic snaps

involving her, as seen by one Vijayalakshmi, whose name

was referred in the reply notice. If there is

something on record to show the character of the

husband as stated in the reply notice and counter, we

would have been persuaded to believe that the

accusations of the respondent that the husband is

having illicit relationship with the maid servant have

semblance of the truth. It may be true, adultery is

difficult to be proved before a court of law. However,

when there exist evidence to prove probablize the

character of a person like the alleged pornographic

snap of the respondent circulated through phone, non

adducing of such evidence is fatal to the case of the

respondent.

10. The Courts never had a fixed line to divide

what acts constituted cruelty and what not. Many

unjustified act itself may not constitute cruelty. In a

society like ours, accusation of illicit relationship

would have a serious repercussion and would remain a

stigma on a person. The unsubstantiated allegations of

adultery would certainly amount to cruelty. In Savitri

Pandey v. Prem Chandra Pandey [(2002) 2 SCC 73] cruelty Mat. Appeal No.682/2017

is referred as something which would cause reasonable

apprehension in his or her mind as harmful or injurious

to live with other party. Therefore, accusation of

adultery of one spouse to other is certainly harmful

for one to continue in that relationship. If that be

so, we have no hesitation to hold that unsubstantiated

allegations of adultery would amount to cruelty.

Unfortunately, the family court failed to consider

these aspects in the impugned judgment. We therefore,

set aside the impugned judgment and allow this appeal.

A decree of divorce is granted dissolving the marriage

between the appellant and the respondent conducted on

27/4/2014. No order as to costs.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE Sd/-

DR.KAUSER EDAPPAGATH, JUDGE ms