IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Mat.Appeal.No. 99 of 2009(C) --------------------------- OP.69/2005 of FAMILY COURT,ERNAKULAM .................... APPELLANT --------------- SANDEEP MOHAN VARGHESE, AGED 35, S/O.MARIYAMMA VARG, SERENE, K.P.VALLON ROAD, KOCHI - 20. PRESENT ADDRESS MANAGER, RELIANCE INDUSTRIES LTD., TULSANI CHAMBER BASEMENT 221, NARIMAN POINT, MUMBAI - 400 021. BY ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.M.B.SANDEEP SRI.K.V.REJANISH RESPONDENT --------------- ANJANA JOSE, D/O.T.T.JOSE, ANN VILLA, RAINBOW GARDEN, THYKAVU, UNICHIRA ROAD, CHANGAMPUZHA NAGAR P.O, KOCHI - 33. ADV. SRI.V.V.ASOKAN FOR R1 SRI.K.S.SAJEEV KUMAR FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2010, ALONG WITH MA NO. 152 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Mat.Appeal.No. 99 of 2009(C) --------------------------- OP.69/2005 of FAMILY COURT,ERNAKULAM .................... APPELLANT --------------- A - HUSBAND BY ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.M.B.SANDEEP SRI.K.V.REJANISH RESPONDENT --------------- B - WIFE ADV. SRI.V.V.ASOKAN FOR R1 SRI.K.S.SAJEEV KUMAR FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2010, ALONG WITH MA NO. 152 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ ........................................... MAT.APPEAL. Nos.99 & 152 OF 2009 ............................................ DATED THIS THE 15th DAY OF SEPTEMBER, 2010 JUDGMENT BASANT, J Does the concept of matrimonial cruelty vary in accordance with the religious persuasions of individuals? Is a spouse bound to suffer greater amount of matrimonial cruelty because the spouses belong to a religion which considered marriage as indissoluble? Can the secular constitutional republic recognise and accept the existence of different varieties of matrimonial cruelty - Hindu cruelty, Christian cruelty, Muslim cruelty and secular cruelty? Should not matrimonial cruelty entitling a spouse for divorce yield to a uniform conceptualisation notwithstanding the different semantics employed in different pieces of matrimonial legislations applicable to different religions? Should not the courts take inspiration from Art.44 of the Constitution and attempt to understand the concept of matrimonial cruelty in a uniform manner to ensure that the right to life under Art.21 is made effective and meaningful under the matrimonial roof and to liberate spouses from a marital life in MA 99 & 152 OF 2009 2 perpetual fear of contumacious cruelty? These questions arise before us in these appeals. 2. These appeals are directed against a common judgment under which three original petitions were disposed of by the Family Court, Ernakulam. 3. The parties are spouses. Their marriage took place in accordance with the Christian religious rites on 20.1.2001. The marriage is admitted. After marriage, the spouses set up residence at Mumbai. They resided together till 14.5.2004. On that day, the respondent/wife returned from the matrimonial home and took up residence along with her sister at Bangalore. She issued Ext.A1 notice demanding divorce and return of properties on 14.12.2004. The same was served on the appellant. There was no response to Ext.A1. Thereafter, the appellant filed a petition for restitution of conjugal rights before the Family Court, Bandra on 30.12.2004. Later, the same was transferred to Family Court, Ernakulam as per order of the Supreme Court and the same was renumbered as O.P.399 of 2006. The wife filed O.P.69 of 2005 before Family Court, Ernakulam claiming divorce on the ground of cruelty and non MA 99 & 152 OF 2009 3 consummation of marriage. Wife had further filed O.P.68 of 2005 claiming return of gold ornaments, money etc. The husband/appellant herein in O.P.68 of 2005 had staked a counter claim for return of ornaments, money etc allegedly due to him. All the three original petitions along with the counter claim were taken up for trial together by the court below. 4. The wife examined herself as PW1, her mother as PW2 and her brother in law as PW3. Exts.A1 to A9 were marked on her side. The husband examined himself as RW1 and two friends of his as Rws 2 and 3. Exts.B1 to B10 were marked. 5. The learned Judge of the Family Court, by the impugned common order, came to the conclusion that the wife was entitled for a decree for divorce on the ground of cruelty under Section 10(1)(x) of the Divorce Act. The claim of the wife for divorce under Section 10(1)(vii) on the ground of refusal to consummate the marriage was rejected by the Family Court. O.P.69 of 2005 was thus allowed. Husband's prayer for restitution of conjugal rights in O.P.399 of 2006 was turned down by Family Court. The claim for return of money in O.P.68 of 2005 was allowed in part. The counter claim of the husband was rejected. MA 99 & 152 OF 2009 4 6. Both parties appear to have accepted the decree/order in O.P.68 of 2005 and the counter claim. No appeal is seen preferred against the said part of the impugned order by either spouse. The appellant/husband has preferred these appeals to assail the decree for divorce on the ground of cruelty under Section 10(1)(x) and the rejection of his claim for a decree for restitution of conjugal rights under Section 32 of the Divorce Act. 7. We have heard the learned counsel for the appellant and the respondent. The learned counsel for the appellant assails the impugned order on the following grounds. i) The court below has significantly omitted to record a specific finding on the disputed question of cruelty. ii) The court below should, at any rate, have held that the ground of cruelty under Section 10(1)(x) has not been validly established by the evidence adduced by the wife. iii) The court below ought to have granted a decree for restitution of conjugal rights in favour of the appellant/husband. MA 99 & 152 OF 2009 5 Ground No.1 8. The learned counsel for the appellant contends that the court below had significantly omitted to pointedly consider the question whether the claim for divorce on the ground of cruelty under Section 10(1)(x) has been established by the evidence tendered by the wife. The learned counsel particularly points out the following observations/findings in paragraphs 23 and 24 to contend that the issue had not received the pointed consideration which it deserves. We extract Paragraphs 23 and 24. “23. On going through the evidence tendered by PW1 and RW1, it is evident that the parties were not so cordial at the time when they were residing together at Mumbai. There was no consensus of mind between the petitioner and the respondent. It has come out in evidence that there were frequent quarrels between them. The petitioner has alleged that it was the respondent who subjected her to cruelty. The respondent has stated that the petitioner was more interested in her career than retaining a family relationship. He has also stated that at times, the petitioner acted hysterically as if she has some mental imbalance. The evidence tendered by PW2, MA 99 & 152 OF 2009 6 PW3, RW2 and RW3 will not be of any help to substantiate the contention of cruelty alleged by the petitioner. The answers given by PW1 and RW1 with respect to their private life reveal that there was no healthy interaction between the spouses in their private life. The reason why she was compelled to return to her sister's house at Bangalore has been explained by PW1. According to RW1, the petitioner left his flat at the time when he was on business trip. Even though the respondent has contended that the petitioner behaved like an abnormal person, no medical records were produced to substantiate the same. On evaluation of the evidence tendered by PW1 and RW1 it is revealed that their marital life was not happy and that there was no healthy interaction between them. It shows that there was no cordial or affectionate relationship between the petitioner and the respondent. 24. Under Section 10(1)(x), in order to obtain a decree of divorce the petitioner has to substantiate that the respondent subjected her to cruelty so as to cause reasonable apprehension in her mind that it will be harmful or injurious for her to reside along with him. The answers given by PW1 and RW1 during cross examination reveal that it will be harmful for the petitioner to continue the marital relationship with the respondent. The marital relationship between the petitioner and the respondent has been broken and it has reached upto a stage that it is not possible to have a peaceful and happy life between them. In such circumstances, the conclusion that can be arrived at is that the petitioner is entitled to get a decree of MA 99 & 152 OF 2009 7 divorce against the respondent on the ground of cruelty”. (emphasis supplied) 9. We are unable to agree that the above findings do not constitute a sufficient finding required under Section 10(1)(x) of the Divorce Act. The findings recorded above clearly show that the court below had come to a positive conclusion that the perception of the respondent/wife that it will be harmful for her to live with the appellant/husband and continue marital relationship with the appellant has been accepted by the court below. The court below has further held that a decree for divorce against the appellant herein on the ground of cruelty deserves to be granted. Thus, we are unable to accept the contention laboriously advanced by the counsel for the appellant that there is no sufficient or specific finding rendered by the court below to justify a decree for divorce on the ground of cruelty under Section 10(1)(x) of the Divorce Act. The challenge on this ground - on the ground of want of a specific and definite finding on the plea of cruelty, must, in these circumstances, fail. MA 99 & 152 OF 2009 8 Ground No.2: 10. The learned counsel for the appellant alternatively contends that, at any rate, the said finding that the wife is entitled to a decree for divorce on the ground of cruelty under Section 10(1)(x) is not justified. There is no material in support of that conclusion, argues the learned counsel. The learned counsel for the respondent/wife on the contrary, contends that even assuming that specific finding on the alleged acts of physical and mental cruelty have not been rendered by the court below, respondent/wife is entitled before this appellate court to contend that sufficient materials are available in evidence to support the impugned decree by which relief of dissolution on the ground of cruelty has been granted. We are satisfied and it is trite that the relief granted can be attempted to be supported on other grounds by a litigant defending the decree in appeal. 11. That takes us to the all important question as to whether sufficient evidence has been adduced to justify the finding in favour of the wife that appellant/husband is guilty of matrimonial cruelty. The claim for divorce under Section 10(1) MA 99 & 152 OF 2009 9 (vii) has been rejected and it is unnecessary for us to go into the evidence tendered on that aspect. However, as rightly pointed out by the learned counsel for the wife/respondent herein, some of the evidence tendered on that ground will have relevance to the claim of sexual misconduct amounting to cruelty also. To that extent, the evidence tendered in support of the claim for divorce under Section 10(1)(vii) will have to be reckoned as relevant. 12. We shall make a brief reference to the evidence tendered - oral and documentary. As stated earlier, PW1/wife had tendered evidence about the physical, mental and sexual cruelty allegedly heaped on her by her husband, RW1. We have also the evidence of PW2, her mother and the evidence of PW3, her brother in law to afford broad support for the evidence of PW1. Exts.A1 to A9 have been relied on. Ext.A1 is the notice issued by the wife to the husband dated 14.12.2004 after she withdrew from the society of the husband with effect from 14.5.04. That notice Ext.A1 was received and acknowledged under Ext.A2 but the same was not responded to. The counsel for the wife places great emphasis on the conduct of the husband MA 99 & 152 OF 2009 10 not replying to Ext.A1 notice in which all allegations presently raised in this proceedings for divorce have been substantially raised. The counsel argues that it is crucial that the said allegations have not been denied or even responded to. Exts.A3 to A5 relate to proceedings initiated before the Supreme Court for transfer of the petition for restitution of conjugal rights from the Family Court at Bandra to Family Court at Ernakalam. We find no crucial relevance in Exts.A3 to A5. Ext.A6 is the marriage photo album and the parties having accepted the order in O.P.68 of 2005 without challenge, we do not find any relevance for the said exhibit in the surviving disputes between the parties in these appeals. Ext.A7 is copy of an E-mail message sent in the name of the wife to various persons including the friends of PW3, her brother in law. In Ext.A7, disparaging remarks are made about the relationship between PW1 and PW3 and it is the case of PW1 and PW3 that it was the husband/RW1 who resorted to such a misadventure to bring to disrepute his wife PW1 and her brother in law, PW3. This is alleged to be an act of gross mental cruelty. Exts.A8 and A9 relate to the complaint made on the basis of Ext.A7 and result of investigation. MA 99 & 152 OF 2009 11 13. RW1 is the husband, who tendered evidence denying the alleged cruelty. RWs 2 and 3 are close friends of RW1 and they are examined to show that all was fair and rosy in the relationship between PW1 and RW1 when they resided together in Mumbai. 14. A word about appreciation of evidence in this case. Certain broad aspects must be considered before the challenge against appreciation of evidence is considered. Matrimonial cruelty between educated spouses belonging to a higher strata of society cannot evidently be expected to be proved by occular corroboration from independent sources. By its very nature it would be difficult to secure such independent corroborative evidence. The fact that PW1's evidence is not corroborated by independent sources is thus insignificant. The evidence of RW2 and RW3 is again not of any vital significance. Go by the evidence of PW1 or RW1, they had traumatic experiences when they cohabited in Bombay. RWs 2 and 3 appear to be fairly close friends of RW1. Even then their evidence suggests that they did not know or perceive any difficulty in the relationship between spouses. That must explain and convey the irrelevance of their MA 99 & 152 OF 2009 12 evidence. The learned counsel for the appellant then argues that PW1 has not been believed by the court below on her assertions regarding alleged non consummation of marriage and alleged greed and avarice of RW1. She should not have been believed on the other assertions also, contends counsel. This argument cannot also be accepted. That the claim for divorce on the ground of non consummation has not been accepted cannot obviously lead to omnibus rejection of her evidence. Her grievance was that there was no normal sexual relationship and she was compelled to indulge in oral sex - which she reckoned as unnatural. Similarly her evidence about improprieties of RW1 regarding financial matters is not proved to be false. The course adopted by RW1 of not returning deposit receipts which were converted to joint names inspite of A2 demand cannot be said to be irrelevant. Falsus in uno, falsus in omnibus is not a maxim accepted in the law relating to appreciation of oral evidence in India. 15. The fact that Ext.A2 notice in which allegations were raised by the wife immediately after separate residence commenced was not responded to or denied is certainly relevant while appreciating the MA 99 & 152 OF 2009 13 assertions made on oath. Satisfactory and convincing reasons are not offered to explain the meek silence after receipt of Ext.A2. That circumstance is certainly a relevant input while undertaking the exercise of appreciation of evidence in this case. 16. We shall now look at the nature of the cruelty sought to be established on the basis of which the decree for divorce was claimed and granted. First of all, it is alleged that the husband was guilty of physical cruelty against wife. We must remind ourselves that the physical cruelty complained of is cruelty behind the closed doors of the matrimonial home. We say so because it would be puerile and artificial to expect independent oral evidence to corroborate such matrimonial cruelty. Wife complains of matrimonial cruelty. According to her, she used to be assaulted with his belt by her husband. She did not plead or tender evidence about such physical cruelty with reference to date and time. But, she asserted that she was subjected to such physical cruelty. She had of course not complained to any Doctor though she stated that she had suffered injuries and was attended to by a Doctor. She did not reveal to the Doctor that she had suffered any such injury at the hands of her husband as MA 99 & 152 OF 2009 14 they were residing together in matrimony at the relevant time. Absence of evidence of the medical expert or admitted absence of a complaint to the medical expert or the police, according to us, would be too meagre, myopic and puerile reasons to discard the evidence about matrimonial physical cruelty. 17. In this context, it will be relevant to note that the husband himself had stated in his counter statement, whatever be the reasons, that the wife used to make life miserable for him and she used to run out of the house to make unnecessary hue and cry. The evidence of the wife about the physical cruelty has to be read and understood in the light of what the husband himself speaks and asserts about the events and nature of relationship between them. According to the wife, to silence her when she was assaulted, cloth used to be stuck into her mouth. We must also note that the spouses are highly qualified educationally - both Engineering Graduates. They both do come from a highly respectable family background admittedly. The fact that the wife did not promptly complain to her mother and relatives or to the Law Enforcement Authorities is according to us too unsatisfactory a reason to throw over board lock, stock MA 99 & 152 OF 2009 15 and barrel her evidence about physical cruelty. She has a specific version that she had complained to the mother of the husband about such improper behaviour of the husband. She asserted so in evidence. The mother of the husband was not examined by the husband as a witness to disprove that assertion. The evidence of Pws 1 and 2 indicate that PW1 had made grievance to her mother about her misfortunes in matrimony. 18. Photographs taken when the spouses were living together at Mumbai (Ext.B10 series) are relied on by the appellant in an attempt to knock the bottom out of the theory that there was any such cruelty. The wife admitted that notwithstanding the unpleasantness in the matrimony, she used to put up a brave face in front of others and did not reveal to all and sundry the misfortunes of her matrimonial life. Ext.B10 series really show that the spouses, on the occasions when the photographs were taken (specific time and period cannot be ascertained), were not indulging in any act of cruelty against each other. But according to us, that would be far from stating that there was no cruelty whatsoever between them during the relevant period. Much is attempted to be made out of the MA 99 & 152 OF 2009 16 statement of the wife that she used to act in front of others and when photographs were taken with an intention not to reveal her matrimonial disappointment and sufferings. We find absolutely nothing unnatural in such statement of a wife. 19. The million dollar question to be decided is whether the version of the wife about physical cruelty can be accepted or not. The statement of the husband that she used to behave in a indifferent manner, cry and run out of the house in desperation is of course a broad circumstance supporting the oral evidence tendered by the wife about the cruelty meted out to her inside the matrimonial home. Of course, the husband has a case that it was disappointment and frustration in official career/inability to secure an employment in a Multi National Company that prompted the wife to indulge in such conduct. It is also relevant to note that there was no other reason for the wife to stay away from the husband except alleged matrimonial cruelty inflicted on her. He was young. He was well employed. He was leading a fairly luxurious life. Still she chose not to continue to reside with him. A court is expected to adopt the standards of a prudent person while appreciating evidence about matrimonial cruelty MA 99 & 152 OF 2009 17 also. So reckoned, we are of the view that evidence, of physical cruelty emanating from the husband towards the wife, spoken to by PW1 - supported broadly by circumstances, can safely be accepted. 20. There is a contention that husband was greedy and used to demand money. Pws 1 and 2 have tendered evidence on this aspect. Husband denies this allegation. According to him, he had not touched the amounts which the wife brought to the matrimonial home. Reliance is placed on Exts.B2 and B3 series to deter the contention that husband was greedy and had taken the money brought by the wife. We have evidence from Ext.B3 series to show that separate fixed deposit in the name of the wife had been converted to the joint names of the husband and wife. That is the admitted version. Except the statements of PW1 and PW2, there is nothing tangible to establish the alleged greed of the husband or his alleged dissatisfaction about the money brought by the wife to the matrimonial home after marriage. Of course, we see that after some of the deposits in the name of the wife matured, husband had got them renewed in the joint names. Of course, he has a contention raised without MA 99 & 152 OF 2009 18 specific details that he had also added some money to the deposits when they were so renewed in the joint names of both of them. Some indication about the attitude of the husband in financial matters is available from his conduct of not returning the FD receipts B2 and B3 series to PW1 directly in response to Ext.A1 series or after appearance in court. The fact that he did stake a counter claim in O.P.68 of 2005 against his wife detracts against his attempt now to paint himself white on that aspect. Even after commencement of litigation, he did not return the deposits belonging to her directly, he chose only to produce the same before Court as an exhibit. At any rate, we feel that though PW1 and PW2 had spoken about such a grievance about the greed of the husband for money and his complaint about inadequacy of wealth brought by the wife to the matrimonial home, there is no sufficient material to anchor a finding on that dimension of matrimonial cruelty. We do not, in these circumstances, propose to found any finding against the husband on the basis of such alleged greed pleaded and attempted to be established by the wife. MA 99 & 152 OF 2009 19 21. The wife complains of cruelty in