IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 12TH DAY OF DECEMBER 2011/21ST AGRAHAYANA 1933 Mat.Appeal.No. 665 of 2009 (D ) --------------------------------------------- OPHMA.203/2008 of FAMILY COURT, THIRUVALLA APPELLANT/RESPONDENT: ---------------------------------------- SANTHOSH.K.V, AGED 36 YEARS, S/O.LATE VASU, KARIMPANACKAL HOUSE, VALIAKAVU. P.O, ANGADI VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.SETHUNATH RESPONDENT: --------------------- JYOTHI LAKSHMI, AGED 30 YEARS, D/O.MADHAVAN, KOLLETHU HOUSE,KARIMPANACKAL, THEKKEPURAM, RANNI TALUK, PATHANAMTHITTA DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. ---------------------------------------- Mat. Appeal No.665 of 2009 ---------------------------------------- Dated this the 12th day of December, 2011 JUDGMENT Ravikumar, J. This Matrimonial Appeal is directed against the judgment in O.P.(HMA)No.203 of 2008 of the Family Court, Thiruvalla filed by the appellant-husband seeking dissolution of his marriage with the respondent-wife solemnized on 9.9.2004 in accordance with the nuptial prevalent among the Hindu-Ezhava community. It was digamy as regards the appellant whose first wife left for heavenly abode leaving with him a baby daughter. The case of the appellant is that the respondent-wife who was his neighbour promised to look after the said daughter and it was believing her words that he contracted marriage with her. Their jovial life suddenly filled with jarring soon after the shifting of their residence to Ranny along with the appellant's daughter. According to the appellant, thereafter the respondent became petulant, pesky and used to pick up quarrels even on petty issues. What was really disheartening and gave him excruciating pain was her attitude and action towards his daughter. According to the appellant, the respondent-wife deliberately illtreated the daughter with a view to Mat.Appeal No.665/2009 2 create on him extreme anguish and mental worry. The appellant's attempts to bring about reconciliation with the help of kindred only kindled her animosity towards the child. In fact, the respondent turned more cruel to the child. On 28.12.2005, the appellant found marks of burn made with a lighted agarbathi, on his daughter. The respondent- wife persistently demanded him to put his daughter in a juvenile home. Since he was unwilling to yield to her demands she left the home with her belongings and joined her parental home at Mavelikkara. Later, on 11.11.2006, an agreement was executed by them and as per the same, the monetary liabilities were settled. On account of the attitude on the part of the respondent towards his daughter and also on account of the deliberate illtreatment on her made as a calculated move to disturb the mental peace of the appellant to create anguish and mental worry on him, the appellant reasonably apprehended that continuing marital relationship with the respondent and living with her under the same roof would endanger his life. It is in the said circumstances that the appellant approached the Family Court seeking dissolution of marriage under section 13(1) of the Hindu Marriages Act. 2. The respondent appeared before the Family Court pursuant to the receipt of notice and filed a counter affidavit. However, Mat.Appeal No.665/2009 3 she had not mounted the box to give oral evidence. In the counter affidavit while admitting the marriage the respondent denied the allegations of cruelty alleged against her. The allegation that she had voluntarily left the house was also denied. According to the respondent-wife, upon finding that they could not live together any more the appellant herein expressed his desire to part with the respondent and in pursuance of the same, he started living separately with his daughter. 3. As already noticed hereinbefore, though the respondent- wife filed counter affidavit she did not give evidence. The appellant gave evidence as PW1 and Exts.A1 to A3 were marked on his side. The Family Court found that no specific instance of cruelty, either physical or mental, against the appellant-husband was pleaded and proved. It is found that the allegations in the petition are mainly on the teasing of the daughter and assault towards her by the step-mother, the respondent-wife. It is further held in paragraph 6 of the judgment as hereunder:- “The allegations in para 5 and 7 are to the effect that the respondent/wife was cruel towards his daughter born out of the first wedlock. Only one instance on 28.12.2005 is specifically stated, where the allegation is that when the petitioner returned after his work he Mat.Appeal No.665/2009 4 found the daughter crying, and when enquired he found that the girl was hit by a burning agarbathi and thus caused injury.” The Family Court further held that oral evidence of the appellant was not strictly in conformity with his pleadings. Holding that the appellant had failed to bring out a ground for divorce the petition was dismissed. 4. Notice was issued in this appeal to the respondent-wife. However, she has not chosen to enter appearance and defend the case. 5. A careful consideration of the pleadings and evidence adduced by the appellant herein would reveal that on the death of his first wife, he contracted the marriage with the respondent, who was his neighbour, believing her words that she would look after his daughter born in the first wedlock. Merely because he had conducted digamy it could not be said or taken that he had denounced his fatherhood. The evidence would reveal that he had married the respondent believing her words as aforesaid. The consistent case of the appellant was that the respondent-wife had deliberately illtreated his daughter in the first wedlock with a view to create on him extreme anguish and mental worry. The mere fact that his oral evidence was not strictly in Mat.Appeal No.665/2009 5 conformity with his pleadings should not have been a reason to throw out his case in toto. Cruelty need not be physical in order to be a ground for divorce. In matrimonial relations deliberate illtreatment by one spouse on child/children with a view to create anguish or mental worry on the other spouse, depending upon the degree of illtreatment and circumstances, would amount to constructive cruelty. In that view of the matter, the view of the Family Court that since the allegations are essentially pertaining to the torture against the daughter born in the first wedlock and that no specific incident of cruelty is pleaded by the husband, either physical or mental, the appellant-husband had failed to make out a ground for divorce cannot be sustained. The concept of proof beyond the shadow of doubt is applicable only in criminal trial and such standard of proof is inapplicable to matrimonial disputes. A close scrutiny of the evidence adduced by the appellant herein would reveal that the situation was such that he could not reasonably be asked to put up with the conduct of the offending spouse and continued to live with her. A father cannot remain as a mute spectator to cruel behaviour of his second wife towards his daughter. As noticed earlier, apart from the specific pleading to the effect that his daughter born in the first wedlock had been treated cruelly by the respondent-wife with a view to create extreme anguish and mental Mat.Appeal No.665/2009 6 worry on him the appellant had mounted the box and gave evidence as PW1. Evidently, the respondent-wife had not chosen to mount the box and to give evidence. So also, she has not entered appearance before this Court to resist the contentions of the appellant despite the receipt of notice. In the circumstances, we find no reason to discredit the oral testimony of the appellant and his case that he had married the respondent believing her words that she would look after his daughter born in the first wedlock and soon after the marriage she started illtreating the said daughter and also that had created unbearable anguish and mental worry on him. In the absence of any contra evidence or circumstances, there was no reason for not upholding the case of the appellant that it would be harmful and injurious for him to live with her. Deliberate illtreatment of children by step-mother especially when they are children born through deceased wife, may constitute constructive cruelty towards the husband if such actions were resorted to and calculated to create anguish and mental worry on him. The allegations made and established are essentially pertained to the inhuman attitude and action of the respondent-wife towards the appellant's daughter born in his first wedlock. It cannot be said that cruelty attributed to the respondent did not find support from the evidence adduced. Though the evidence adduced was not strictly in Mat.Appeal No.665/2009 7 conformity with the pleadings the irresistible conclusion one can draw from it is that the appellant and the respondent started living separately since 29.12.2005 solely on account of the cruelty shown by the respondent against the daughter of the appellant born in his first wedlock. The respondent had not adduced any evidence against or to rebut the same. Even in this proceedings the respondent has not chosen to participate. The uncontroverted evidence would reveal the aforesaid matters as the real reasons for their separated living. No other reason was suggested even in the written statement filed by the respondent-wife. The question is whether the view taken by the Family Court that those are not instances of cruelty towards the appellant herein and therefore, not a ground for divorce can be sustained. Cruelty towards one's own daughter, be it by the second wife, would be unbearable and would be sufficient to create extreme anguish and mental worry, to a man having the quintessential quality of fatherhood. Merely because only rare instances have been brought out cannot be a reason to take such conduct of a spouse so lightly. In this case, the evidence on record would undoubtedly suggest that the respondent- wife had resorted to such methods and her deliberate illtreatment on the appellant's daughter born in his first wedlock must have undoubtedly created considerable anguish and mental worry on him. Mat.Appeal No.665/2009 8 The appellant cannot be asked to tolerate such mental cruelty and continue to live with the respondent. It is a conduct of such type that the appellant cannot be expected to live with the respondent. It is sufficient to give rise to a reasonable apprehension in the mind of the appellant that it would be harmful for him to live with the respondent. In view of the foregoing reasons, we are inclined to vacate the finding of the Family Court that the appellant/petitioner had failed to establish the ground of cruelty. According to us, the cruelty attributed to respondent really found support from the evidence adduced. In the circumstances, we vacate the above finding of the Family Court. This appeal is allowed. A decree of dissolution of marriage of the appellant with the respondent solemnized on 9.9.2004 is granted, to be effective from 12.12.2011. There is no order as to costs. Sd/- THOTTATHIL B. RADHAKRISHNAN Judge Sd/- C.T.RAVIKUMAR Judge TKS