IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Mat.Appeal.No. 96 OF 2004 --------------------------- OP(HM) 23/2002 OF SUB COURT, THODUPUZHA PETITIONER(S)/ APPELLANT/PETITIONER: ------------------------------------ SREENIVASAN, SON OF MADHAVAN, AGED 36 YEARS, RESIDING AT PUTHEN PURAYIL HOUSE, KALIYOOR (PO), VENMATTOM, IDUKKI. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): RESPONDENT: -------------------------- SHYLAJA, D/O. KUMARAN, AGED 34 YEARS, VELLAMTHADATHIL HOUSE, PARAPPUZHA (P.O), IDUKKI DISTRICT. ADV. SRI.T.J.MICHAEL SRI.P.NOOR ZAMEER THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON 10.2.2009, DELIVERED THE FOLLOWING: P.R. RAMAN & C.T. RAVIKUMAR, JJ. = = = = = = = = = = = = = = = = = = = = MAT.APPEAL. NO. 96 OF 2004 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE DAY OF .... 2009. J U D G M E N T Raman, J. Appellant is the petitioner in O.P. (H.M) 23/2002 on the file of the Sub Court, Thodupuzha. He filed the above original petition seeking dissolution of marriage against his wife, who is the respondent herein on the ground of cruelty and desertion. Petition was originally filed before the District Court, which was made over to the Sub Court. 2. The material allegations made in the application filed under Section 13 of the Hindu Marriage Act are as follows: The parties belong to Hindu Ezhava community, that their marriage was solemnized as per the customs prevalent in the community on 17.5.1998 at the house of the respondent, that they lived together in the petitioner's house at Vannappuram, that at the time of marriage, the respondent was given 231/2 sovereigns of gold and Rs.50,000/- towards her share, that in the wedlock a son was born, that the petitioner is a military personnel working at Manipur, that after the marriage, they lived together only for a few days at his house at Vannapuram, that all along the respondent was living with her parents at MAT.A. 96/2004 :2: Purapuzha, that since she refused to come and reside with him he used to visit her at her parental house, that though the petitioner took her to his place of employment at Manipur she stayed there only for a short while and insisted to come back to her parental house, ultimately she along with the child was brought to her residence and thereafter continued to reside there, that even during the first day of marriage the respondent was behaving in an indifferent manner, that she never cared to do the household affairs and practically ignored the petitioner forcing him to take food from outside, that she was in the habit of picking up quarrels with him on silly matters and used to manhandle him, that she used to tell that she dislike to live with him as wife and if he insists for that she would commit suicide, that while staying at Manipur, she attempted to commit suicide by hanging on the ceiling fan in the bed room, that even in the parental house she made another attempt to commit suicide, that she refused to co-habit with him even while he was residing in her house, that the mediation talk held at the SDP Union Office, Thodupuzha also failed since the respondent failed to come and stay with him, that petitioner is living with his aged parents in his house, that the refusal of the respondent has caused him mental pain and agony, that she is not amenable for a peaceful life with him, that her treatment towards the petitioner was cruel both physically and mentally, and MAT.A. 96/2004 :3: that the marital tie has irretrievably broken and hence he filed the petition seeking dissolution of marriage. 3. The respondent, in her objection contented inter alia that the petition is not maintainable either in law or on facts, that the averments made in the petition are false, that she neither refused to stay in the matrimonial house nor insisted the petitioner to stay at her parental house, that she never refused to do the household affairs, that the petitioner is a drunkard and he quarrelled with her demanding more money from her father, that in October, 2000 she was taken to Manipur at this quarters where also he continued his inhuman behaviour, that on 28.3.2001 the petitioner left her at her paternal house and thereafter he has not cared her, the child is suffering from cerebral palsy who needs continuous treatment, that after appropriating her gold ornaments he used to ill treat her and in spite of repeated requests he never cared to take back her, that on 24.8.2002 she issued a lawyer notice for taking her and the child with him, but instead of doing so, he filed this original petition, that though the from the date of marriage itself she suffered harassment and torture both mentally and physically for the well-bing of the child she was ready to reside with the petitioner but he neglected them, that both she and her child are now living with her aged parents, that the allegations that she attempted to MAT.A. 96/2004 :4: commit suicide and she refused to co-habit with the petitioner are not true, but the fact remains that the petitioner is a drunkard and if he is prepared to change his cruel behaviour she is still ready and willing to live with him as a responsible wife. Accordingly she prayed for dismissal of the original petition. 4. The evidence in the case consists of the oral testimony of PWs 1 to 5 on the side of the petitioner and RW.1 on the respondent's side. Exts. A1 and B1 were also marked in evidence. 5. The court below considered the totality of the evidence - both oral and documentary, and came to the following findings:- That admittedly, the marriage between the petitioner and the respondent was solemnised on 17.5.1998, that a male child was born in that wedlock who was at the time of rendering the judgment 41/2 years old and that the child is suffering from cerebral palsy and requires constant care and attention (ii) From the evidence adduced on both sides, it is very clear that the relationship was never cordial and desertion and cruelty are alleged against each other. While the petitioner alleges that the respondent left the matrimonial house four days after the marriage, ie. on 21.5.1998 and deserted him, the respondent alleged that the petitioner ill- treated her and the child cruelly in his place of employment and their life with him was miserable and on 28.3.2001 he took the respondent back to her parental home. Thus both sides alleged cruelty as against the other. MAT.A. 96/2004 :5: (iii) The burden of proof is on the petitioner to prove beyond doubt that the respondent wife deserted him or caused mental or physical cruelty. 6. The court below went on to analyze as to whether the petitioner did satisfy the elements of separation and animus deserendi, intention of bringing cohabitation to an end permanently. The cause of action for desertion is allegedly shown arisen on 21.5.1998 - the 4th day of the marriage. But it was found on the basis of the averments that even thereafter they lived as husband and wife in Manipur and whenever, the petitioner came on leave from the place of employment, he used to live with the respondent at her paternal home and a child was born. It is also admitted by the petitioner that his wife and the child were taken to his place of employment at Manipur where they had lived with him for five months and after their stay in Manipur, petitioner took the child and the respondent to her paternal house and left them there and never enquired about them nor maintained them. The court below also noticed that the petitioner has, in his evidence as PW.1, deposed that a complaint was made by the respondent to his superiors alleging ill-treatment and after making enquiry the superior officer has directed her either to join him at Manipur or to live with his parents or to effect divorce and to this she gave a reply MAT.A. 96/2004 :6: stating that she is prepared to live with the petitioner. In these circumstances, court below found that the petitioner has failed to prove the allegation of desertion. 7. The next question considered was whether the allegation of cruelty is proved. Since both sides alleged cruelty against each other, the crucial question is as to who meted out cruelty and to whom. However, in this regard, the court below considered the issue as to whether the treatment made by one against the other party caused such an apprehension in the mind of the latter that cohabitation will be so harmful or injurious or that it would be impossible for him/her to live together without mental agony. The mental and physical cruelty alleged by the petitioner against the wife is that she never cared to look after his family affairs, that she picked up quarrel with him and even man-handled him, that on two occasions she attempted to commit suicide, that she was not prepared to live with him stating that he is not a suitable match for her, that she did not prepare food for him, that while she was residing in her house, an attempt was made to bring her back but she refused and even threw away the 'thalimala'. To substantiate the above allegations, he gave evidence as PW.1. The proof affidavit filed is supporting the allegations. In the cross-examination he admitted that a complaint was made by the respondent to the SNDP Sakha MAT.A. 96/2004 :7: against him but no settlement could be reached as the respondent refused to cohabit with him. Several suggestions made in the cross examination, probably, are to bring home that not only the petitioner but also his brother had sad family life as his wife also left his house. In the cross examination it was suggested that he is a drunkard and that he picked up quarrel in the quarters at Manipur in his working place and the suggestions are also in support of the allegations in the objection filed. 8. PW.2 is the sister of the petitioner. She only said that after the marriage between the petitioner and the respondent, they lived together only for a few days , and thereafter the respondent left the matrimonial home on her own accord refusing to heed to the request made by the family members, that thereafter the petitioner came to her house and both the petitioner and PW.2 went to the residence of the father of the respondent where she was staying but she was not prepared to accept the petitioner as her husband stating that he does not have educational qualification and status and he is not a match for her and she refused to return and stayed in the tarwad house. In the cross examination she admitted that her house is a little away from the petitioner's house. She deposed that her statement that both of them lived together for four days is based on knowledge gathered. She had also admitted that after she went to the parental house of the respondent, as MAT.A. 96/2004 :8: stated in the chief examination, the respondent had, in fact, gone along with the petitioner to Manipur - the place of employment of the petitioner and lived with him and they were picking up quarrels even at Manipur is only a hearsay. Though a suggestion was made that her brother (the petitioner) is attempting to remarry somebody, she denied the same. PW.3 is the Secretary of the S.N.D.P. Sakha who was examined to prove the attempt of settlement through the SNDP Sakha. He deposed that the attempt made by the Sakha failed because the respondent was not prepared for the settlement. In the cross examination, he has stated that a complaint was made by the respondent alleging that the petitioner is a drunkard and is physically assaulting her and causing mental agony. He admitted that such a complaint was received and on that basis a settlement talk was held. He has stated that it is wrong to say that he is an interested witness because he was elected by securing the votes of the petitioner and his family members. 9. PW.4 is the wife of the petitioner's brother. She has deposed that she is residing near to the family house of the petitioner, that her husband is also working in military along with the petitioner, that she is aware of the problems of the petitioner and his wife, that the respondent had told her that she is not prepared to accept the petitioner as her husband, that the respondent threw away the "thalimala" and that though she did not seen MAT.A. 96/2004 :9: such incident the respondent told her about the same. But when did the respondent say so, what was the occasion for her to say so etc. are not stated by the witness. Though she had also deposed that the respondent left the house of the petitioner from the 4th day of the marriage and generally supports the allegation made by the petitioner, her evidence is only a hearsay evidence as she had no direct knowledge as to how the petitioner and the respondent lived at Manipur. In the cross examination she admits that the petitioner joined military at the instance of her husband. Though she said that the petitioner has stayed with them in the quarters she did not give any details regarding the date or any specific instance of cruelty. PW.5 is a neighbour residing near the petitioner's house. In the proof affidavit filed by him, he averred that the respondent has left the house of the petitioner without the permission of the petitioner, that he had seen that incident and when enquired about the same to the petitioner, he has stated that the respondent told him that she is not prepared to accept the petitioner as her husband, that on the third day of the marriage the petitioner went to his house and told him that his wife has closed the door of the room and in spite of the request she is not opening the same and so he requested him to come to his house and on that basis he went to his house and knocked the door of the room but she did not open the door and that since he understood MAT.A. 96/2004 :10: that the respondent has some quarrel with the petitioner he returned from there. This is all what he says in the proof affidavit. In the cross examination he said that it was on the second day of the marriage that the respondent left the house of the petitioner, which is nobody's case . He admitted of having not talked to her at that time. Then he said that it was on the 4th day that the respondent left the house of the petitioner. Thus he has no consistent version as to whether the respondent had left the house. 10. The respondent, in her proof affidavit, supported her case and denied the allegation made in the petition. According to her, almost every day her husband used to come fully drunk and used to ill-treat her and behave cruelly, that he used to ask for more money from her house, that though they stayed at Manipur there also he continued to behave in a cruel manner, that on 28.3.2001 she was taken to her house and thereafter he did not come to take her back. She has also stated that a child was born in the wedlock and he is suffering from cerebral palsy, that she is prepared to live with the petitioner, provided he is prepared to take care of her and the child, that at Manipur there was an attempt to burn her hair by the petitioner and also caused burn injury to the child. In cross examination she has stated that she has no complaint about the parents of the petitioner and that she had given a complaint to the SNDP Union against her husband and they MAT.A. 96/2004 :11: have taken evidence of both of them in that complaint . To a specific question as to whether she still wears the Thali she showed the same to the court at the time of cross examination. She has stated that she has stayed in the matrimonial house for about 21 days before her husband returned after leave and during that period there were small quarrels between them. She denied the suggestion that she refused to prepare food or to look after the family welfare of the petitioner or his parents. She further stated that she had stayed at Manipur with her husband along with the child and even there also, her husband used to pick up quarrel with her. She reiterated in the cross examination that at Manipur he had attempted to burn her on the gas stove and when she approached the quarter master Sri. R.P. Singh with a petition he came there, scolded her husband and asked them to vacate the quarters. 11. Ext. B1 is a letter sent by the respondent to her sister after the incident of the attempt to burn her on the gas stove, at Manipur. She has described as to whatever happened, her miserable conditions of life and the cruelty meted out to her at Manipur. It is an ordinary Inland letter sent in the usual course before the litigation started. 12. Petitioner has alleged cruelty and desertion against the respondent as a ground for divorce. The evidence tendered in the case MAT.A. 96/2004 :12: would only go to show that though on the 4th day after the marriage the respondent left the matrimonial home on her own accord and she did not return despite the attempt made by the petitioner, she had in fact stayed with the petitioner at his quarters at Manipur - his place of employment, for over three months thereafter and even while she was residing in her own house, petitioner had physical contact with her and a child was also born. Therefore, if at all she had left the matrimonial house on the fourth day of the marriage, that cannot be taken as a desertion meted out to the petitioner since subsequent long cohabitation and giving birth to a child clearly disproves the allegation of desertion. Though the date of conception or the date of birth of the child is not disclosed, the fact that a child is born to them later as a result of their cohabitation itself disproves the testimony of desertion on 21.5.1998. Further, the respondent had made a complaint to the Commanding Officer of the petitioner and after making enquiry, he had directed her to join him at Manipur or to live with her parents to which she gave a positive reply agreeing to live with him. It is true that the matrimonial tie has irretrievably broken between the parties. But both sides alleges cruelty against each other and if as a matter of fact, petitioner was treating the respondent with cruelty both physically and mentally, then the fault of the petitioner cannot be a ground for granting him a divorce. MAT.A. 96/2004 :13: Petitioner however placed reliance on the decision of the Apex Court in Samar Ghosh v. Jaya Ghosh (2007 (4) SCC 511) to contend that the cruelty could be physical or mental and in the given case according to him, the facts constituting cruelty is proved. In the Apex Court decision, the following principles were stated. "On a proper analysis and scrutiny of the judgments of the Supreme Court and other courts, it is clear that there cannot be any comprehensive definition of the concept of "mental cruelty" within which all kinds of cases of mental cruelty can be covered. No court should even attempt to give a comprehensive definition of mental cruelty. The 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 another case. The concept of cruelty differs from person to person depending upon the upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and the 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 straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the MAT.A. 96/2004 :14: case would be to evaluate it on its peculiar facts and circumstances while taking the aforementioned factors into consideration. No uniform standard can ever be laid down for guidance, yet it is deemed appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of the complete matrimonial life of the parties, acute mental pain agony and suffering as would not make it possible for the parties to live with each other, could come within the broad parameters of mental cruelty. (ii) On a comprehensive appraisal of the entire matrimonial life of the parties, if it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party; (iii) Mere coldness or lack of affection cannot amount to cruelty; but frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable; (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time, may lead to mental cruelty; (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse; (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting the physical and mental health of the other spouse. The treatment complained of and the resultant danger or MAT.A. 96/2004 :15: apprehension must be very grave, substantial and weighty; (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness, causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty; (viii) The conduct must be much more than jealousy, selfishness, possessiveness which cause unhappiness and dissatisfaction and emotional upset, but may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount not mental cruelty; (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion