IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 Mat.Appeal.No. 263 of 2010() ---------------------------- OP.DIV.491/2009 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- DR.SMITHA MATHEW, KUNNATH HOUSE, PATHANAMTHITTA P.O., T.B.ROAD, PATHANAMTHITTA. BY ADV. SRI.CHITAMBARESH.V., SENIOR ADVOCATE SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX RESPONDENT(S): PETITIONER --------------------------------------- DR.PRASOON KURUVILA, S/O. KURUVILA, KODAPPALLIL HOUSE, MALAM P.O., MANARCAUD VILLAGE, KOTTAYAM. ADV. SRI.MATHAI M PAIKADAY, SENIOR ADVOCATE SRI.FEBIN J.VELUKARAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2011, ALONG WITH MA NO.265 OF 2010 THE COURT ON 05/07/2011 PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.A..Nos. 263 & 265 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of July, 2011 JUDGMENT Joseph Francis, J. Mat.A. No.263 of 2010 is filed by the respondent/wife in O.P. 491 of 2009 on the file of the Family Court, Kottayam. The respondent in this appeal is the petitioner in that petition, which was filed by him under Section 10(1)(x) of the Divorce Act for divorce on the ground of cruelty. Mat. A.No. 265 of 2010 is filed by respondents 1 to 3 in O.P.No. 492 of 2009 on the file of the Family Court, Kottayam. The respondent in that appeal was the petitioner in that Original Petition, which was filed by him for the custody of the child. The first respondent in that Original Petition is his wife and respondents 2 and 3 are the parents of the first respondent. 2. The averments in O.P.No.491 of 2009 are briefly as follows: The petitioner is the husband and the respondent is the Mat.A..Nos. 263 & 265 of 2010 2 wife and their marriage was solemnised on 3.2.2003 as per the Christian rites. After the marriage they lived together in the house of the petitioner. A male child was born in this wedlock on 20.2.2004. The petitioner is a doctor by profession and was doing his MD in General Medicine at Kottayam at the time of marriage. The respondent is also a doctor preparing for the entrance examination for MD course. It was an arranged marriage. 3. During the initial days of the marriage itself the respondent behaved very much indifferently with the petitioner and his family. She did not like the lifestyle and eating habits of the petitioner and his parents. She was not ready to mingle with the family members of the petitioner and she always preferred to remain inside the bed-room. She was not even ready to have food together with the family members of the petitioner. The respondent was in the habit of humiliating and insulting the petitioner. She claimed better financial and social status than the petitioner. She stated that she married the petitioner only on the compulsion of her parents. Mat.A..Nos. 263 & 265 of 2010 3 4. About three months after the marriage the respondent became pregnant, but she abused the petitioner saying that he spoiled all her life and career and it was her misfortune to marry a man like the petitioner. Her mother also supported this view and created a lot of embarrassment in the matrimonial life. After the baptism of the child the petitioner requested the respondent to come back to the matrimonial home, but the respondent and her parents were not ready for the same. In June 2004, the petitioner and his father discussed about the issue, but during that period the respondent took an adamant stand that she will not return to the matrimonial home and she had no intention to bring up the child. 5. When the child was five months old the respondent began to stay in a hostel at Kottayam after leaving the child under the custody of her aged mother without informing the petitioner. She gave her career more importance than the family life. In September 2004, the petitioner was suffering from jaundice and he was very serious and bed ridden, but the respondent who was staying at YWCA hostel was not willing to look after him and she came only on two occasions. The Mat.A..Nos. 263 & 265 of 2010 4 illness of the petitioner was very serious, but the attitude of the respondent was highly irresponsible. The petitioner rejoined his MD course on 13.3.2005 after recovering from his illness. In the meantime the respondent also got admission for DMRD course at Medical College, Kozhikode. The petitioner and his parents requested the respondent to come to her matrimonial home during holidays and vacation, but the respondent was not willing. She has not even entrusted the child with the petitioner. The petitioner noticed that the respondent was getting a lot of phone calls during odd hours in the night. 6. In 2007 May the respondent completed her course. The petitioner brought her back from the hostel to the matrimonial home, but on the next day itself the respondent insisted to go to the her parental house at Pathanamthitta and she left the place with all her belonging brought from her hostel. The petitioner and his family members made several attempt to bring back her, but she was adamant. The respondent had no love and affection to the petitioner and the child. In January 2008 the petitioner brought her to his house, but she Mat.A..Nos. 263 & 265 of 2010 5 did not even talk with the petitioner's mother. When the petitioner questioned it, the respondent slapped him on his cheek and it caused much mental agony to the petitioner. She joined for DNB course in Thiruvananthapuram without the consent of the petitioner in February 2008. In July 2008 also when the petitioner made attempt to bring the respondent to his house, she was not willing. So the petitioner is constrained to live separately from the respondent. Hence the petitioner is entitled to get a decree of divorce on the ground of cruelty. 7. The respondent filed objection contending as follows. The allegation that the respondent behaved in differently with the petitioner is absolutely false. The cruelty alleged is also not true. The respondent never insulted or humiliated the petitioner or his family members. The respondent never made any complaint regarding the financial position and social status of the petitioner's family. The allegation that the respondent had no love and affection to the husband and child is absolutely false. The child was given proper care and attention by the respondent's mother. Actually there was no quarrel between the petitioner and the respondent. The respondent resided in YWCA hostel Mat.A..Nos. 263 & 265 of 2010 6 for the purpose of entrance coaching. Actually the respondent preferred to stay in the petitioner's house, but during that period the petitioner contracted hepatitis in 2004. So the petitioner refused to allow the respondent and child to stay with him at Kottayam. Because of that reason the child was entrusted with the parents of the respondent. It was on the petitioner's insistence that the respondent decided to stay in a hostel at Kottayam. The respondent used to visit the petitioner on every 3 days while he was suffering from illness. The petitioner's medical conditions was not at all serious. The marital relationship has not been broken irretrievably. The reason for misunderstanding is the behavioural aberrations of the petitioner and his psychological problem. If the petitioner is ready and willing to solve his behavioural and psychological problem it is possible to resume the marital life. The allegation of cruelty against the respondent is baseless. The divorce prayed for is not allowable. 8. The averments in O.P. No. 492 of 2009 are briefly as follows. The petitioner is the husband and the first respondent is the wife. The respondents 2 and 3 are the parents of the first respondent. Mat.A..Nos. 263 & 265 of 2010 7 The child is in the custody of respondents 2 and 3. The first respondent behaved very indifferently and she always wanted to avoid the love and affection of the petitioner to the child. She allowed her parents to look after the child against the interest of the petitioner and the child. The respondent was not at all willing to reside in the matrimonial home with the child. The respondents are refusing to return the custody of the child without any reason and it caused much mental pain to the petitioner. Because of the cruelty of the respondent he filed divorce case. 9. The first respondent is not at all interested for the welfare of the child. The third respondent is suffering from breast cancer and second respondent is a heart patient. They are being looked after by the servants. The first respondent is doing her DNB course at Medical College Hospital, Thiruvananthapuram. The petitioner is very much interested in the welfare of the child. At present he is working as a physician at Caritas Hospital, Kottayam. The petitioner is having financial capacity to look after the child. For the welfare of the child the custody is to be given to the petitioner. Mat.A..Nos. 263 & 265 of 2010 8 10. The respondents filed objection contending as follows. The allegation that the first respondent behaved cruelly towards the petitioner and she wilfully refused to come to the house of the petitioner is absolutely false. The respondents never abandoned the child. The first respondent entrusted the child with her parents for the reason that the petitioner suffered illness. The allegation that the respondents are not interested in the welfare of the child is absolutely false. After completing her study she joined the ESI Hospital, Kadambanad, Adoor and for that purpose she has to stay at Pathanamthitta in her parental house. The minor was admitted to Vimala Matha Nursery School, Pathanamthitta in June, 2006 and he remained there till February, 2008 and it was with the knowledge and consent of the petitioner. It is true that the third respondent is suffering from breast cancer and she was undergoing treatment from Amritha Hospital. The minor child was brought to Pathanamthitta only periodically and he was at Kottayam. The allegation that the respondents are not at all interested for the welfare of the child is absolutely false. The first respondent is interested in resuming marital Mat.A..Nos. 263 & 265 of 2010 9 relationship, but because of the adamant stand taken by the petitioner they are living separately. 11. In the Family Court both the above Original Petitions were tried jointly and evidence was recorded in O.P. 491 of 2009. Pws 1 to 3 were examined on the side of the petitioner and Exts.A1 to A9 were marked. On the side of the respondent Rws.1 and 2 were examined and Exts.B1 to B3 were marked. The learned Family Court, on considering the matter, allowed O.P.No.491 of 2009 and the marriage between the petitioner and the respondent was declared as dissolved w.e.f. 18.2.2010. O.P.No.492 of 2009 was disposed of directing that the child will be in the custody of the mother during the academic year till 30.4.2010 and during that period the father will be having visitation right twice in a month, the first and third Sundays during day time for a period of two hours and from 30.4.2010 onwards the custody of the child is to be given to the father and during that period the mother will be having visitation right twice in a month i.e. on the 1st and 3rd Sundays during day time for a period of two hours. Both parties shall not oppose the right of the other party to exercise the visitation right Mat.A..Nos. 263 & 265 of 2010 10 ordered as above. Against the judgment in O.P. 491 of 2009 the respondent/wife filed Mat.A.No. 263 of 2010 and against the judgment in O.P. 492 of 2009 respondents 1 to 3 filed Mat.A. No. 265 of 2010. 12. Heard learned senior counsel for the appellants and the learned senior counsel for the respondent. 13. In Mat.A.No. 263 of 2010 the learned counsel for the appellant mainly raised the following contentions. The Court below failed to take note of the actual problems between the parties and instead of addressing it with a view to save the marital relationship between the parties, proceeded to dissolve the marriage. In paragraph 18 of the impugned judgment, the Family Court wrongly found that 'the petitioner/husband' has succeeded to prove that the wife behaved cruelly and indifferently towards him and a complete reading of the said paragraph will show that the Court below has not assigned any reason whatsoever to arrive at the said conclusion. 14. The learned senior counsel for the appellant wife submitted that the finding in paragraph 18 of the judgment is to the effect that the wife wanted to stay away from the matrimonial home. She disliked Mat.A..Nos. 263 & 265 of 2010 11 parents-in-law and failed to look after the husband even while he was suffering from serious illness - jaundice' is entered into contrary to evidence on record. The circumstance under which the appellant stayed away from home i.e., in connection with the education, work etc, was not considered while arriving at the conclusion. The Court below also failed to take note of the fact that the particular course in Radiology specialized by the appellant is offered only in Medical Colleges at Thiruvananthapuram and Kozhikode. Appellant if at all stayed away from home, is under compulsions of education or work. That by itself cannot be treated as a reason to arrive at the finding that the 'respondent avoided to stay in matrimonial home'. Instead of finding that the wife stayed away from husband during his illness, the court below ought to have found that it is the husband who compelled the wife to stay away from him so as to avoid their child from being infected with jaundice. The evidence adduced in this connection is not taken note of by the court below. 15. The learned senior counsel for the appellant submitted that the finding in paragraph 18 of the judgment that the illness of the Mat.A..Nos. 263 & 265 of 2010 12 husband started in September 2004, but the wife opted to stay in the hostel at Kottayam from July 2004 onwards is contrary to evidence on record. Even the petitioner did not advance such a case. It has come out in evidence that the husband contracted hepatitis in September 2004 and the appellant stayed in hostel from October 2004 onwards as insisted by the husband for protecting the child from possible infection. Court below also failed take note of the fact that even during this period, the appellant used to regularly visit the husband and used to accompany him for his regular blood tests. 16. The learned senior counsel for the appellant submitted that the further finding in paragraph 18 of the impugned judgment that the appellant 'slapped the husband on his face twice' is entered into only based on the stray averment of the respondent. Even the uncle of the respondent (PW3) deposed that he is not having any direct information about this incident. The Court below ought not to have entered into this finding. Even the petitioner does not have a case that the appellant 'tortured' him, but surprisingly the court below found that the 'denial of torture of the wife is not with bonafides'. Mat.A..Nos. 263 & 265 of 2010 13 17. The learned senior counsel for the appellant wife submitted that the aspect relating to the taking of room in Hotel at Thiruvananthapuram on 4.4.2009 is not analysed by the Court below in its proper perspective. The findings in paragraph 18 that 'she continued her habit of avoiding the husband and in laws' is wrong and perverse. The court below failed to take note that on 5.4.2009 the respondent abandoned the child at Thiruvananthapuram and rushed back to Kottayam and within few weeks (on 21.5.2009) filed the Original Petition for divorce. Therefore the court below went wrong to find that the 'wife continued' her habit of avoiding the husband and in-laws. Therefore the dictum laid down in Chathu v. Jayasree (1990(1) KLT 604) is having no application to the facts and circumstances of this case. The court below failed to take note of the fact that the respondent actually avoided the company of the appellant and the child. 18. The learned senior counsel for the wife submitted that the conclusion in paragraph 18 of the judgment that 'from the evidence it can be seen that the wife behaved cruelly towards the petitioner both mentally and physically' is without any support from evidence on Mat.A..Nos. 263 & 265 of 2010 14 record and the court below ought not to have arrived at such a conclusion. 19. The learned senior counsel for the respondent husband submitted that the Family Court is fully justified in granting a decree of divorce on the ground of cruelty on the basis of evidence on record. 20. Section 10(1)(x) of the Divorce Act, 1869 provides that the marriage be dissolved on the ground that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent. The cruelty as a ground of matrimonial relief has been defined as conduct of such a character as to have caused danger to life, limb or health, bodily or mental, so as to give rise to a reasonable apprehension of such danger. The concept of cruelty varied from time to time, from place to place and from individual to individual in its application to social status of persons involved and economic condition and other matters. 21. The parties have relied on a large body of case law. We Mat.A..Nos. 263 & 265 of 2010 15 need only refer to a fiew of them. In Dr. N. G. Dastane v. Mrs. S. Dastane (1975 (2) SCC 326), the Court, inter alia, held that the Court has to deal not with the ideal husband and an ideal wife, but with the particular man and woman before it. The Court also, inter alia, held as follows: “32. One other matter which needs to be clarified is that though under Section 10(1)(b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence for judging of matrimonial relations. Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a court inquiring into a charge of cruelty to philosophise on the modalities of married life. Someone may want to keep late hours to finish the day's work and someone may want to get up early for a morning round of golf. The Court cannot apply to the habits or hobbies of these the test whether a reasonable man situated Mat.A..Nos. 263 & 265 of 2010 16 similarly will behave in a similar fashion. The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.” 22. It was further held that simple trivialities which can truly be described as the reasonable wear and tear of married life have to be ignored, and that in many marriages, each party can if he so wills, discover many a cause for complaint, but such grievances arise mostly from temperamental disharmony which is not cruelty. In Naveen Kohli v. Neelu Kohli (2006 (4) SCC 558) the Apex Mat.A..Nos. 263 & 265 of 2010 17 Court reviewed the case law. The Court, inter alia, noted that cruelty was not a ground for claiming divorce under the Hindu Marriage Act prior to the amendment in 1976. It noted that the words “as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to the petitioner to live with the other party” were omitted, and that it is not necessary to claim divorce that the cruel treatment is of such a nature as to cause apprehension of the nature earlier insisted upon. The Court referred to the decision of the Apex Court in A. Jayachandra v. Aneel Kaur (2005 (2) SCC 22) wherein the Court, inter alia, held as follows: “11. The expression `cruelty' has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and Mat.A..Nos. 263 & 265 of 2010 18 degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to love with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Shobha Rani v. Madhukar Reddi”. 12. To constitute cruelty, the conduct complained of should be `grave and weighty' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than `ordinary wear and tear of married life'. The conduct, taking into consideration the circumstances and Mat.A..Nos. 263 & 265 of 2010 19 background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant Mat.A..Nos. 263 & 265 of 2010 20 disturbance of mental peace