Kerala High Court

Anilkumar V.K vs Sunila P on 3 February, 2025

Author: Devan Ramachandran

Bench: Devan Ramachandran

                                                     2025:KER:8852
              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
                                  &
            THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
    MONDAY, THE 3RD DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946
                     MAT.APPEAL NO. 626 OF 2022
        AGAINST THE JUDGMENT IN OP NO.1524 OF 2018 OF FAMILY
                    COURT, KOTTAYAM AT ETTUMANOOR

APPELLANT/PETITIONER:

             ANILKUMAR V.K., AGED 55 YEARS
             S/O. LATE G KRISHNA MENON, VRINDAVAN HOUSE,
             POONJAR P.O., PERUNILAM KARA,
             POONJAR VILLAGE, MEENACHIL TALUK 686 581,
             KOTTAYAM DISTRICT.

             BY ADVS.
             CAROLIN SINDHU VAZ
             C.SIVADAS
             AKHIL SASIDHARAN
RESPONDENT/RESPONDENT:

             SUNILA P., AGED 49 YEARS
             D/O.K.S. PRABHAKARAN NAIR, VYSAKH HOUSE,
             MOTHER TERESA ROAD, ATHIRAMPUZHA P..O,
             ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK 686 562.



     THIS    MATRIMONIAL APPEAL   HAVING COME   UP FOR   HEARING ON
17.1.2025, THE COURT ON 03.02.2025 DELIVERED THE FOLLOWING:
 Mat.A No. 626 of 2017                    2




                                                                C.R

    DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.
          -------------------------------------------
              Mat.Appeal No. 626 of 2022
           -------------------------------------------
          Dated, this the 3rd February, 2025

                                 JUDGMENT

M.B.Snehalatha, J.

In this appeal, the appellant/husband calls in question

the judgment and decree of the Family Court, Ettumanoor which

dismissed his petition seeking divorce filed on the ground of

cruelty and desertion.

2. The parties shall be referred to as petitioner and

respondent as referred to in the Original Petition.

3. The averments in the petition in brief are as under.

The marriage of the petitioner with the respondent was

solemnised on 4.2.2005 as per the Hindu religious rites and

ceremonies. During the period of marriage, the petitioner was

employed at Qatar. As it was not possible for him to get a family

VISA, he was not in a position to take the respondent also to

Qatar. But the respondent/wife was unhappy about petitioner's

inability to take her to Qatar and used to quarrel with the

petitioner on that ground by alleging that she was misguided by

the petitioner and his family to believe that she would be taken to

his workplace in Qatar on family VISA. After the marriage, the

respondent was not ready to stay at the house of the petitioner

along with his parents. Whenever she visited the matrimonial

home, she used to pick up quarrels with the relatives of the

petitioner. When the petitioner came on leave, he used to stay

with the respondent at her house, but she used to neglect him

and used to pick up quarrels with him. She even refused to have

sexual relationship with him. For the past five years, the

respondent is residing separately and in spite of repeated

requests, she has not cared to come and reside with the petitioner

and thus there is physical and mental cruelty and therefore,

petitioner seeks divorce on the ground of desertion and cruelty.

4. The respondent filed objection refuting the

allegations made in the petition. After the marriage, the

respondent was residing in the Taravad house of the petitioner

along with his parents and she was taking care of his parents.

Petitioner was not prepared to take the respondent to his

workplace even on a visiting VISA. In the wedlock, no children

were born to them, and the petitioner was not even willing to

consult a doctor. The respondent was always willing to have

cohabitation with the petitioner and to continue the marital life.

According to the respondent, the allegations regarding cruelty and

desertion are baseless and without bonafides and hence she

sought for dismissal of the original petition.

5. The evidence consists of the oral testimonies of

PW1 and RW1 and documents marked as Ext.A1, A2 and Exts.B1

to B6 series.

6. After trial, the learned Family Court dismissed

the petition with a finding that the petitioner failed to establish

the grounds of cruelty and desertion as alleged by him.

7. The point for consideration in this appeal is

whether the impugned judgment and decree, dismissing the

petition for divorce needs any interference by this Court.

8. At first, let us see whether the petitioner has

made out a case of desertion so as to grant divorce on that

ground.

9. According to the petitioner, his wife has deserted

him and is residing separately at her parental house avoiding his

company.

10. Admittedly the marriage of the parties was

solemnised on 04.02.2005. The version of the petitioner/husband,

who was examined as PW1 is that after the marriage, the

respondent/wife used to make quarrel with him by ridiculing him,

by saying that he had studied only up to 10 th standard and also

picked up quarrels with him for not taking her to Qatar, where he

was employed. His further version is that, the respondent was not

ready to look after his aged parents and she was not willing to

stay with them. He has also stated in his evidence that the

respondent refused to have sex with him. His further version is

that the respondent is residing with her parents and thus deserted

him for the past more than five years without any valid reasons

and in spite of his repeated requests, she is not willing to come

and reside with him.

11. Per contra, the respondent who was examined

as RW1 has testified that it was the petitioner, who avoided her

and in spite of the advice of the doctor to reside together, he was

not prepared to do so. According to her, there was no desertion or

any acts of cruelty on her part and she was and is desirous to

continue the marital life with the petitioner.

12. Though the petitioner would contend that the

respondent/wife has deserted him and she has been residing

separately for the past five years, during the cross-examination

he has stated that till the time of filing the Original Petition, they

were residing together. His version is quoted below:

"Respondent-ഉ ആയ ഞ ൻ ഒനച ണ ഈ ക സ ക ടകനത ക മൻപ വക ത മസച വനത."

13. The Original Petition was filed in the year 2016.

During cross-examination, petitioner stated that during the period

from 2005 to 2015, whenever he comes on leave from abroad,

they used to stay together and they used to spent half of the

leave period at his house and the other half at the house of the

respondent. So, his case that the respondent/wife deserted him

stands belied by his own version that they were residing together

till the filing of the Original Petition. Thus, the petitioner has not

made out the ground of desertion as rightly held by the learned

Family Court and we find no reasons at all to interfere with the

said finding.

14. The next aspect for consideration is whether the

petitioner has made out the ground of cruelty as alleged by him.

In the petition, he has alleged that the respondent used to behave

in a cruel manner. Cruelty as a ground for divorce varies in

interpretation based on the facts and circumstances of each case.

Cruelty can be either physical, emotional, psychological or verbal.

Different people may experience and pursue cruelty in different

ways based on their personality and emotional resilience. Marital

expectations and norms differ across communities, religions and

socio-economic classes.

15. A behaviour that may be seen as trivial in one

marriage might be deeply hurtful in another. Therefore, cruelty is

to be assessed on a case-by-case basis. What constitutes cruelty

in a matrimonial relationship depends on the unique

circumstances, behaviour and experience of the parties involved.

Courts do not rely on a rigid definition of cruelty but has to

evaluate each case based on its facts. Courts have to analyse

whether the conduct makes out unreasonable for the one spouse

to live with the other.

16. In Samar Ghosh vs. Jaya Ghosh

(MANU/SC/1386/2007) the Hon'ble Supreme Court in para 73

observed as follows:

"73. Human mind is extremely complex and human behavior is equally complicated. Similarly, human ingenuity has no bound, therefore, to assimilate the entire human behavior 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. 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 strait-jacket 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."

17. In Suman Singh v. Sanjay Singh

((MANU/SC/0251/2017) the Hon'ble Apex Court held that general

allegations with no details pleaded such as when such incident

occurred (year, month, date etc.) what was its background, who

witnessed, what the respondent actually said etc. is hardly

sufficient for the petitioner to seek a decree for dissolution of

marriage on the ground of cruelty.

18. The party seeking divorce must establish valid

legal grounds as recognised under the law, so as to grant divorce.

Those grounds typically need to be supported by evidence and if

the party fails to establish the grounds, the divorce has to be

disallowed. This ensures that divorce proceedings are fair and not