IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 Mat.Appeal.No. 331 of 2008(F) ---------------------------- OP.963/2006 of FAMILY COURT, PALAKKAD .................... APPELLANT : RESPONDENT: -------------------------- C.V.MANOJ, S/O.C.S.VAIDHYANATHAN, NO.4A, RAMASWAMY LAYOUT, VENKATAPURAM POST, COIMBATORE 641 025, TAMILNADU STATE. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR RESPONDENT : PETITIONER: -------------------------- VIDHYA, D/O.N.RAMAN, 23/44, EL DARODA, PALLIPURAM POST, PALAKKAD TALUK, PALAKKAD DISTRICT, KERALA STATE. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 SRI.S.SUJIN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2009, ALONG WITH MA NO. 351 OF 2008 AND CROSS OBJECTION NO.76 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 ------------------------------------- Dated this the 10th day of December, 2009 JUDGMENT BASANT, J. Is proof of irretrievable break down of marriage irrelevant altogether in a claim for divorce on the ground of matrimonial cruelty? ii) Can physical assault by husband against wife even when it is not gross be reckoned as natural wear and tear of marriage to avoid the consequence of a decree for divorce? iii) Is a court justified in rigidly insisting on independent corroboration for proof of matrimonial cruelty? These questions arise for consideration in these appeals. 2. These appeals are preferred by the appellant/husband. The respondent herein is his wife. In these matrimonial appeals, a common order passed in two original petitions is assailed. Those petitions are filed by the rival contestants for divorce and for restitution of conjugal rights. Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 2 The petition for divorce was filed by the wife whereas the petition for restitution of conjugal right was filed by the appellant/husband. By the said common order, it was found that the husband is guilty of matrimonial cruelty. But the claim for divorce under Section 13 was not granted and the lesser relief of judicial separation under Section 13 A of the Hindu Marriage Act alone was granted. The prayer for restitution was rejected. 3. We shall initially refer to undisputed facts. Parties are referred to as husband and wife. The spouses were married on 01.06.1998. In that matrimony, they were blessed with a baby girl Shreya on 16.03.1999. Parties are Brahmins belonging to well to do and respectable families. There were differences and disputes between the parties. Even for `Seemantham' ceremony prior to delivery and the `Namakaranam' ceremony after child birth, it appears that there was discord between the parties. Be that as it may, they continued to reside together till 2000 at the matrimonial home in Coimbatore where the husband resides along with his parents. In 2000, the wife, who is a graduate, Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 3 returned to her parents at Palakkad and started separate residence there. She joined a Post graduate degree course and completed her studies. During such period of separate residence the child was with the wife. 4. In April, 2003, there was admittedly resumption of cohabitation. Accordingly, the husband and wife resided together in the matrimonial home. Discord, it appears, continued. 5. In July, 2004, the wife shifted her residence to a flat in Coimbatore itself. She resided there along with her child. There are indications to suggest that her parents also resided with her. She joined M.B.A course during that period. On 25.09.2005, the father of the wife expired at Coimbatore. The wife was pregnant at that time. On 05.10.05 that pregnancy got aborted. She was attended to by PW2, a doctor in a hospital at Palakkad. On 31.03.2006 after completing her M.B.A course, the wife shifted her residence from Coimbatore to her parental home in Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 4 Palakkad. She continues to reside along with her child away from her husband admittedly from 31.03.2006. 6. The husband has a contention that after the wife shifted her residence to a flat in Coimbatore on 20.05.05 she had sent an e-mail message expressing apology for the indiscretions committed by her. According to him, they had thereafter resumed cohabitation. The husband contends that it was while the spouses were residing together after such resumption of cohabitation at the matrimonial home that the wife became pregnant. At any rate, he accepts that the wife returned to the flat on 23.09.2005 (not 23.11.05 as mistakenly typed in the counter statement). It was thereafter on the next day, ie. 24.09.2005, that the wife's father was taken to hospital and he expired on 25.09.2005. According to the wife she had not so returned. While she was residing in the flat at Coimbatore with the child the husband used to visit her occasionally and it was in the course of such interactions that she conceived again. The Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 5 dispute between them in sequence of events is only on this short aspect. 7. The wife filed O.P No.963 of 2006 claiming divorce on the ground of matrimonial cruelty. Not to be left behind, the husband retaliated by filing O.P.No.51 of 2007 for restitution of conjugal rights. Both matters were taken up together for consideration. Joint trial was ordered. 8. In the petition, the wife complained that the husband was guilty of matrimonial cruelty. He did not have the financial affluence which he was claimed to enjoy at the time of marriage. When he had financial difficulties, he wanted wealth to be brought by the wife. He allegedly compelled her to sign blank papers and documents. When the wife resisted the said request, she was allegedly assaulted. She conveyed this attempt on the part of the husband to her father. This allegedly infuriated the husband. The husband assaulted her on that score. The husband allegedly wanted the wife to speak falsehood. When people came to the house to see him, he would ask her to say Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 6 that he was not available in the house. The wife was reluctant to speak untruth. She would ask him why she should speak such lies. This infuriated him. He assaulted her. On many occasions (dates are not specified) the husband allegedly assaulted the wife in the presence of their young child as also in the presence of her father. At the matrimonial home his parents have also witnessed such indiscretion of his. Her grievance against her in- laws was only that they did not intervene to deter him on such occasions. The wife has a further case that the husband was very suspicious. He did not like her to speak and interact with others. He would take objection to such conversations. He allegedly used to assault her on that score. In short, the wife contended that the continued residence with the husband as his spouse was impossible because of the matrimonial cruelty inflicted on her by the husband. She claimed divorce. 9. In response to her claim for divorce and also in support of his claim for a decree for restitution of conjugal rights, the husband contended that he was not guilty of any Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 7 matrimonial cruelty against his wife. He was not facing any financial problems. He has financial affluence. He did not ask her to sign any blank papers. He did not assault her for the reason that she refused to sign such blank papers. He was not suspicious. The wife was residing separately without any valid reason. The wife and her parents were interested only in money. They looked at the appellant only as a money making machine. The boot was on the other leg. The wife used to pick up quarrels. She used to abuse him. She made disparaging remarks against him and called him “Naye, patti” (dog). Though he had initially resisted the insistence of the wife that the spouses must take up separate residence, he was now willing even for the same. He wanted the matrimonial dispute to be settled amicably. There was no sufficient reason to order divorce. It was prayed that the wife may be directed to resume cohabitation with him. The prayer for divorce may be rejected. Decree for restitution of conjugal right may be granted, it was prayed. Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 8 10. Parties went to trial on these contentions. The wife examined herself as PW1. She gave a narration of the events in tune with her averments in the petition for divorce. She examined PW2, the doctor who had attended on her when the second pregnancy came to termination. The evidence of PW2 shows that it was a spontaneous abortion. PW2 was examined to disprove the contention of the husband that the wife had intentionally and deliberately aborted the pregnancy without even referring to him. Exts.A1 and A2 were marked on the side of the wife. They are documents relating to her admission in the hospital, treatment etc. in connection with the alleged spontaneous abortion on 05.10.05. No other evidence was adduced. 11. On the side of the husband he examined himself as RW1. He proved Exts.B1 to B14. Exts.B1 to B13 are only documents to show that he had a sound financial position. Ext.B14 is the discharge summary which is in tandem with the evidence of PW2 as also Exts.A1 and A2. Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 9 12. The learned Judge of the Family Court was thus essentially called upon to evaluate and assess the interested oral testimony of PW1 and RW1 to decide the controversy before the court. The learned Judge of the Family Court undertook that exercise. The learned Judge relied on the evidence of PW2, which offers support for the evidence of PW1 that it was not a deliberate intentional termination of pregnancy, but was only a spontaneous abortion. The court below after evaluating the evidence came to the conclusion that the oral evidence of PW1 can be preferred to the oral evidence of RW1. The court found that the evidence of PW1 does establish matrimonial cruelty. However, the court was not prepared to give up. The court found a ray of hope that the parties may still be able to patch up their differences and settle their disputes. The court strongly recommended that course. In these circumstances, after satisfying itself that matrimonial cruelty of the contumacious variety has been proved, the court below did not grant the prayer for divorce; but proceeded to grant the lesser relief of Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 10 judicial separation under Section 13 A of the Hindu Marriage Act. The petition for restitution of conjugal right was dismissed. 13. The husband has come up in appeal against the grant of the decree for judicial separation and also against the rejection of the prayer for restitution of conjugal rights. The wife belatedly has filed a cross objection. It is contended that the court below had erred grossly in not granting the decree for divorce as prayed for by the respondent/wife. 14. We have heard both counsel. On the arguments advanced, the following points arise for determination. i) Did the court below err in coming to the conclusion that matrimonial cruelty of the contumacious variety has been established by the respondent/wife? ii) Did the court below err in not granting a decree for divorce as prayed for by the respondent/wife? Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 11 Point No.1 15. The crucial question is whether the court below erred in choosing to accept and act upon the oral evidence of PW1 in preference to that of RW1. Sitting as a first court of appeal, this Court has to consider whether the court below has committed any error in so accepting the testimony of PW1. This is the first task. It will then have to be decided whether the proved acts justify grant of relief against the appellant and if so what relief. 16. The dispute is about matrimonial cruelty. It would be idle for the Court to look for independent corroboration for such matrimonial cruelty. Between spouses from respectable family background matrimonial cruelty invariably takes place usually only within the four walls of the home and it would be absolutely unreasonable for any Court to expect disinterested independent ocular testimony on that aspect. A court commits indiscretion of the unpardonable variety if it throws its hands up and holds that a firm conclusion cannot be reached for the reason that independent ocular corroboration of matrimonial cruelty is not Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 12 available. Strain the Court must, to decide whether the evidence establishes matrimonial cruelty even when inputs/versions are available only from the interested contestants. 17. The learned counsel for the appellant/husband contends that though according to the wife there was attempt by mediators to settle the dispute between the parties, such mediators have not been examined. Surprisingly the very contention of the appellant is that no such mediation has at all taken place. So the grievance of the husband is about the non examination of the mediators who did not according to him exist. Less said about this grievance - of the mediators not being examined, the better in the circumstances of the case. 18. Broad probabilities will always have to be assessed and evaluated when the onerous task before the court is to choose between the interested testimony on either side. The husband and wife are young. They are in the pink of their health and youth. They are blessed with a child in the matrimony. It will only be reasonable to assume that unless there are valid Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 13 reasons, a husband and wife in such circumstances are unlikely to reside separately. This broad probability must inform any prudent mind and every court while attempting to resolve disputed questions of facts like the ones in this case. 19. The wife has a definite case that separate residence became necessary and inevitable because of the matrimonial cruelty heaped on her by her husband. The husband admits that there were bitter quarrels, disputes and differences between them. But he has no specific case to advance to explain such bitterness. In his evidence he takes the stand that the wife insisted on separate residence. He was not willing to oblige and there was matrimonial discord on this score. We have gone through the counter statement in detail. It is significant to note that the husband has not raised a specific plea that the demand of the wife for separate residence was the bone of contention which led to such matrimonial quarrels, differences of opinion and disputes. Though passing reference to such an insistence is made in the counter statement, no specific plea that this had Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 14 wrecked the matrimonial amity is not specifically raised. Emphasis in the counter statement is only on the greed and lust for money of the wife and her parents. It is interesting to note that she resided separately at the flat for some time. It is relevant that he now offers to reside separately and the wife is unwilling to accept that offer and live with him. In this fact scenario his claim that insistence on separate residence was the only reason for the admitted matrimonial discord does not carry conviction at all. In this broad background certainly the oral evidence of PW1 deserves to be preferred to that of RW1. The court below has done the same. 20. We must always remind ourselves that the trial court has the evident advantage of seeing the witnesses perform in the witness stand before it. Many vital inputs are gathered by an alert trial court when the witnesses are examined before it from their demeanor and from the manner and conviction with which answers are given. These inputs contribute to the crucial decision making as to which witnesses can be believed and Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 15 whether the evidence of one witness is to be preferred to that of another. It will be idle for an appellate court to ignore such evident advantage which the trial court has in the matter of evaluation of evidence. Very strong reasons must be available for an appellate Court to interfere with such discretions of the trial court. In the instant case the trial court which had the advantage of seeing the witnesses perform in the witness stand before it had chosen to accept and act upon the oral evidence of PW1 in preference to that of RW1. Unless compelling reasons are shown to exist, we shall not invoke our appellate jurisdiction to interfere with such discretion exercised by the trial court. 21. The learned counsel for the appellant first of all relies on the absence of independent corroborative evidence. The counsel contends that at least the mediators must have been examined to prove the alleged matrimonial cruelty. The evidence of PW1 clearly shows that except her minor daughter and her deceased father no one other than the parents of the husband could have perceived the matrimonial cruelty inflicted Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 16 on her. It is therefore impossible for the court to expect any independent ocular evidence on the question of matrimonial cruelty. The appellant/husband has not chosen to examine his parents, who were living under the same roof along with the spouses. The mediators have not been examined. According to the appellant, there was no mediation. According to the wife, there was a mediation. The mediators could have given only the version of the rival contestants and they definitely and admittedly have no clue directly about the alleged matrimonial cruelty. The rival contestants have advanced their versions before the court below and in these circumstances the examination of the mediators cannot have any direct bearing or relevance on the actual matrimonial cruelty if any inflicted. The very involvement of the mediators was disputed by the appellant also. Non examination of the mediators cannot in the given situation tilt the scales in favour of the appellant. 22. The learned counsel for the appellant has trained all his guns on one crucial aspect. The wife had become pregnant Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 17 again and such pregnancy got aborted on 05.10.05. The learned counsel for the appellant strenuously contends that if there were such bitterness between the parties as to justify a decree for divorce it was very unlikely that they would have had sexual intercourse and the wife would have got pregnant prior to 05.10.05. Counsel argues that the wife had suppressed this fact in her petition for divorce. She was constrained to admit this fact only in the course of cross examination, contends the counsel. 23. We find absolutely no merit in this contention that the wife did not volunteer this information in her petition for divorce. The parties do not dispute the fact that there was sexual relationship and the wife had got pregnant. While the wife would contend that while she along with her daughter was residing in the flat from July, 2004, the husband used to visit her and on such occasions there were interactions between the parties and she was compelled and obliged to have sexual relationship with her husband leading to her conception, Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 18 according to the husband the wife had expressed apologies in the e-mail sent on 20.05.05 and it is true that she had resumed cohabitation at his residence from 21.05.2005. She had continued to reside with him at his house till 23.09.2005 and it is in the course of such residence that she had conceived. 24. As to where and when she conceived is not very crucial as there is no dispute that she conceived in her physical relationship with him. Going by the evidence of the wife they had occasion to have physical interactions in the said flat in which she was residing. Going by the evidence of the husband, they had occasion to have sexual relationship while the wife was residing with him for a short period from 21.05.05 to 23.09.2005. Either way the omission to volunteer and disclose information about the pregnancy and abortion in the petition filed by the wife is reckoned by us as not crucial or vital at all. The non disclosure of information voluntarily in the petition about conception and the spontaneous abortion cannot be reckoned as contumacious suppression at all. Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 19 25. The learned counsel for the husband contends that it is not disputed that an e-mail message was sent on 20.5.2005. According to the husband, the wife had expressed her apologies for all what happened earlier. The husband wants the Court to consider this as a circumstance to conclude that there was no matrimonial cruelty and all strain happened to be there only because of the conduct of the wife. The e-mail message has not been produced and there is no valid explanation for not producing the same. Be that as it may, the fact that the wife willing to patch up, had expressed her apologies cannot be held to be destructive of her case of matrimonial cruelty earlier. In fact that alleged piece of conduct, of her agreeing to reside with the husband - be it at her flat or at the matrimonial home, goes a long way to assure this Court that the wife had also made genuine attempts to patch up the differences of opinion and the attempt did not succeed for reasons beyond their control. In these circumstances, the alleged sexual intercourse in between and conception as a consequence or the fact that the contention Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 20 about the e-mail message has not been countered are not according to us destructive of the oral evidence tendered by PW1 about matrimonial cruelty. 26. It is contended that the acts of matrimonial cruelty have not been pleaded specifically and sufficiently with reference to dates and events. As noted earlier, it was not one piece of specific conduct that allegedly amounted to matrimonial cruelty. A series of acts - a course of objectionable conduct, is complained of. Law cannot distance itself from raw life and common sense. It would be idle to expect the wife to note the dates of such alleged continuous conduct in the calender and plead the same in meticulous detail. That he used to physically assault her and indulge in acts of mental cruelty is pleaded. No reasonable and prudent mind in the context can find fault with the wife and approach her testimony with reservations on the ground that specific dates of such cruelty are not pleaded. The need