Kerala High Court
Sona vs Sivakumar on 13 June, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
MAT.A NO. 820 OF 2022 1 2025:KER:42067
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 13TH DAY OF JUNE 2025 / 23RD JYAISHTA, 1947
MAT.APPEAL NO. 820 OF 2022
AGAINST THE JUDGMENT IN OPDIV NO.529 OF 2018 OF FAMILY
COURT, MALAPPURAM
APPELLANT/PETITIONER:
SONA, AGED 31 YEARS
D/O KUNNAKKAVIL PADMAVATHY, KUNNAKKAVIL HOUSE,
NEAR PERINTHALMANNA GOVERNMENT HOSPITAL,
PERINTHALMANNA TALUK, MALAPPURAM DIST, PIN - 679321
BY ADVS.
SHRI.JINU JOSEPH
SHRI.N.RAGHUNATH
RESPONDENT/RESPONDENT:
SIVAKUMAR, AGED 44 YEARS
S/O CHAMI, PUNNATHUPADY HOUSE, NEAR KOOTTANADU
VAVVANNUR, ELAVATHILKKAL AMBALAM, PATTAMBI TALUK,
KOOTTANADU P.O, PALAKKAD DISTRICT, PIN - 679533
BY ADV SRI.M.R.JAYAPRASAD
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
29.5.2025, THE COURT ON 13.06.2025 DELIVERED THE FOLLOWING:
MAT.A NO. 820 OF 2022 2 2025:KER:42067
DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.
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Mat.Appeal No.820 of 2022
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Dated this the 13th June, 2025
JUDGMENT
M.B.Snehalatha, J
The appellant/wife has filed this appeal challenging the
judgment and decree of the Family Court, Malappuram declining the
relief of divorce sought by her under Section 13(1)(ia) and 13(1)(ib)
of the Hindu Marriage Act, 1955.
2. Appellant's case is that her marriage with the respondent
was solemnized on 07.02.2010 in accordance with Hindu customary
rites; that a male child was born to them in the said wedlock. At the
time of marriage, she was given 15 sovereigns of gold ornaments
and cash of ₹10,000/- by her parents. After the marriage, the
respondent, who was working abroad, went abroad. Respondent did
not meet the expenses for her delivery and failed to provide
maintenance. When the respondent came on leave, he neglected
her, insulted her, treated her with cruelty and thus mentally
harassed her. Due to the neglect and ill-treatment, appellant had to
MAT.A NO. 820 OF 2022 3 2025:KER:42067
return to her parental home on 31.07.2014. Thereafter, respondent
has not contacted her and has not provided any maintenance to her
and the child. Respondent has deserted the appellant since
31.07.2014. Though the appellant tried to contact the respondent
several times over phone, he refused to join the company of the
appellant and neglected her. Respondent is not discharging his
duties as a husband and has totally neglected the appellant and her
child and therefore she sought dissolution of marriage on the ground
of desertion and cruelty.
3. Respondent filed counter denying the allegations of
cruelty and desertion. The appellant was not interested in
continuing the marriage on the ground that, respondent is not well
educated and she is interested in marrying a Government employee.
Respondent was sending amounts to the appellant for her
maintenance. He also sent amounts for the purchase of property
and by utilising the money sent by the respondent from abroad, a
property having an extent of 40 cents was purchased in the name of
the appellant. During the period from 2012 to 2017, respondent
had sent around ₹7 lakhs to the appellant. Though the respondent
came from abroad and asked the appellant to accompany him to his
workplace, she refused to join the company of the respondent. The
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allegations of desertion and cruelty made by the appellant are false
and therefore the appellant is not entitled to the relief of divorce.
4. The evidence consists of the oral testimonies of PW1,
RW1 to RW3 and documents marked as Exts.A1 and A2, Ext.B1 to
B15 series and Exts.X1 to X5.
5. As mentioned in the opening paragraph, after trial, the
Family Court declined the relief of divorce sought by the appellant.
Aggrieved by the same, appellant/wife has preferred this appeal
contending that Family Court went wrong in appreciating the
evidence in its correct perspective. It was contended that the
Family Court ought to have granted the relief of divorce since the
relationship between the spouses has been irretrievably broken.
6. Per contra, the learned counsel for the respondent
supported the findings of the learned Family Court and contended
that the appellant failed to establish desertion and cruelty and
therefore the impugned judgment and decree needs no interference.
7. The point for consideration is whether the impugned
judgment and decree of the Family Court, declining the relief of
divorce warrants any interference by this Court.
8. Heard both sides.
9. Parties are Hindus. Admittedly the marriage between the
MAT.A NO. 820 OF 2022 5 2025:KER:42067
appellant and respondent was solemnized on 07.02.2010 and a boy
child was born to them in the said wedlock.
10. According to the appellant, who was examined as PW1, at
the time of marriage, respondent was employed abroad and after
two months of the marriage, he returned to his workplace. Her
version is that respondent who was employed abroad did not send
any money to meet the expenses for her delivery and for
maintenance. Her case is that respondent treated her with cruelty
and he neglected her and harassed her by insulting her in front of
others and due to the neglect and ill-treatment, she had to return
to her parental home on 31.07.2014 and thereafter, respondent did
not contact her. According to her, though she attempted to contact
the respondent, he refused to join her company. Her case is that
respondent has totally neglected her causing mental distress and
emotional trauma.
11. Respondent who was examined as RW3, on the other
hand, would deny the case of the appellant and has testified that he
has not deserted the appellant and has not subjected her to cruelty
as alleged. His case is that while working abroad he had sent
amounts to her for her maintenance and had also sent amounts in
her account to purchase property. His further version is that by
MAT.A NO. 820 OF 2022 6 2025:KER:42067
utilizing the money sent by him, a property having an extent of 40
cents was purchased in her name for constructing a residential
building for them. According to him, it was the appellant, who
refused to join his company and left the matrimonial home. To
substantiate his contention that while working abroad he had sent
amounts to the appellant he has produced Exts.B12 to B15 series
documents and caused production of Exts.X1, X2, X2(a) and X5
documents.
12. The learned counsel for the respondent contended that
Exts.B10 to B15 series and Exts.X1,X2, X2(a) and Ext.X5 documents
would show that respondent had sent huge amounts to the appellant
and therefore the case of the appellant that respondent neglected
her and not sent amounts to her for the maintenance of the
appellant and the child proved to be false and incorrect.
13. It is true that, Exts.B12 to B15 series and Exts.X1, X2,
X2(a) and X5 documents would show that respondent had sent
amounts to the appellant.
14. Marriage is not just a legal bond but a human relationship
requiring active emotional engagement. The fact that respondent
had sent certain amounts in her name does not automatically lead
to the inference that the case spoken to by the appellant that she
MAT.A NO. 820 OF 2022 7 2025:KER:42067
was neglected by the respondent and he insulted her in front of
others and thus there was mental cruelty is untrue. Marriage is a
multifaceted bond that extends far beyond financial support. It
involves companionship, cohabitation, emotional care and mutual
respect.
15. The Hon'ble Supreme Court has consistently held that
mental cruelty, which causes deep anguish, frustration and
disappointment in one's spouse, is a valid ground for divorce.
Emotional support, affection and compassion are the very essence of
matrimonial life and when one's spouse neglects the other and such
neglect is willful, it amounts to mental cruelty and it depresses the
emotional support, affection and compassion.
16. In Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511) the
Hon'ble Supreme Court held that lack of emotional support and
indifference towards the spouse for a long period amounts to mental
cruelty. The willful neglect of the spouse is as severe as physical
abuse.
17. A spouse cannot be expected to live in a marriage where
they are emotionally ignored, demeaned or treated with
indifference. Neglecting the spouse though passive in appearance is
a cruel violation of marital duty to care, love and respect.
MAT.A NO. 820 OF 2022 8 2025:KER:42067
18. In Anilkumar V.K. v. Sunila.P (2025 (2)KHC 33) this
Court held as follows:
"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."
19. In Nirmal Singh Panesar (Dr.) v. Paramjit Kaur Panesar
@ Ajinder Kaur Panesar (2023 KHC 6905), the Hon'ble Supreme
Court held as follows:
"The word cruelty has to be construed and interpreted
considering the type of life parties are accustomed to; or
their economic and social conditions and their culture
and human values to which they attach importance."
20. In Shobha Rani vs. Madhukar Reddi [(1988) 1 SCC 105]
the Hon'ble Apex Court observed as follows:
"5. It will be necessary to bear in mind that there
has been marked change in the life around us. In
matrimonial duties and responsibilities in particular, we
find a sea change. They are of varying degrees from
house to house or person to person. Therefore, when a
spouse makes complaint about the treatment of cruelty
by the partner in life or relations, the Court should not
search for standard in life. A set of facts stigmatised as
cruelty in one case may not be so in another case. The
cruelty alleged may largely depend upon the type of life
the parties are accustomed to or their economic and
social conditions. It may also depend upon their culture
and human values to which they attach importance.
We, the Judges and lawyers, therefore, should not
import our own notions of life. We may not go in
MAT.A NO. 820 OF 2022 9 2025:KER:42067
parallel with them. There may be a generation gap
between us and the parties. It would be better if we
keep aside our customs and manners. It would be also
better if we less depend upon precedents. Because as
Lord Denning said in Sheldon v. Sheldon (1966) 2 All
ER 257 "the categories of cruelty are not closed." Each
case may be different. We deal with the conduct of
human beings who are not generally similar. Among the
human beings there is no limit to the kind of conduct
which may constitute cruelty. New type of cruelty may
crop up in any case depending upon the human
behaviour, capacity or incapability to tolerate the
conduct complained of. Such is the wonderful/realm of
cruelty."
21. In Gananath Pattnaik vs. State of Orissa [(2002) 2 SCC
619], the Hon'ble Apex Court observed thus:
"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."
22. In Roopa Soni v. Kamalnarayan Soni [AIR 2023 SC
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4186], the Hon'ble Supreme Court observed as follows:
"5. The word 'cruelty' Under Section 13(1)(ia) of the Act of
1955 has got no fixed meaning, and therefore, gives a very
wide discretion to the Court to apply it liberally and
contextually. What is cruelty in one case may not be the
same for another. As stated, it has to be applied from person
to person while taking note of the attending circumstances.
6. xxxxxx
xxxxxx
7. We would like to emphasize that an element of subjectivity
has to be applied albeit, what constitutes cruelty is objective.
Therefore, what is cruelty for a woman in a given case may
not be cruelty for a man, and a relatively more elastic and
broad approach is required when we examine a case in which
a wife seeks divorce. Section 13(1) of the Act of 1955 sets
contours and rigours for grant of divorce at the instance of
both the parties. Historically, the law of divorce was
predominantly built on a conservative canvas based on the
fault theory. Preservation of marital sanctity from a societal
perspective was considered a prevailing factor. With the
adoption of a libertarian attitude, the grounds for separation
or dissolution of marriage have been construed with
latitudinarianism." (emphasis supplied)
23. Forcing individuals to remain in a marriage that has lost
all meaning serves neither justice nor the well being of the spouses.
Marriage is a relationship that thrives on compatibility,
communication and mutual respect. When these foundational
elements deteriorate beyond repair, the institution of marriage
ceases to fulfill its purpose and in such cases, the law recognises the
need to allow the dissolution of marriage through divorce. The
evidence on record would establish that the parties are incompatible
partners and that the marriage between them is no longer viable
and petitioner is entitled to get divorce under Section 13(1)(ia) of
MAT.A NO. 820 OF 2022 11 2025:KER:42067
the Hindu Marriage Act, 1955. Though the petitioner has sought
divorce also on the ground of desertion, she failed to establish the
ingredients of desertion. Hence, the divorce sought under Section
13(1)(ib) of the Hindu Marriage Act, 1955 stands disallowed. But the
petitioner is entitled to get a decree of divorce under Section 13(1)
(ia) of the Hindu Marriage Act, 1955.
24. Accordingly, this appeal is allowed in part as follows:
The impugned judgment and decree declining dissolution of
marriage under Section 13(1)(ia) stand set aside. The marriage
between the appellant and the respondent solemnized on
07.02.2010 is hereby declared as dissolved under Section 13(1)(ia)
of the Hindu Marriage Act, 1955 with effect from the date of this
judgment.
Parties shall suffer their respective cost.
Sd/-
DEVAN RAMACHANDRAN, JUDGE
Sd/-
M.B.SNEHALATHA, JUDGE
Mms/ab
