Does the present divorce law on enumerated grounds stand the test of constitutionality? Even if marital rape isn’t penalized, it is a valid ground to claim divorce : Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY THE 30TH DAY OF JULY 2021 8TH SRAVANA 1943 MAT.APPEAL NO. 151 OF 2015 AGAINST THE JUDGMENT IN OP 1955 2009 OF FAMILY COURT ERNAKULAM ERNAKULAM BY made a request to the court officer to adjourn the matter as he is unable to attend the case online. Taking note of his request we adjourn this matter to 28.06.2021. Let him appear in person and argue or make some other alternate arrangements. The matter will be taken Mat. Appeal Nos. 151 2015 and 179 2015 up on 28 6 2021 and disposed of on that date :6: Thereafter when it was taken up on 28 6 2021 Adv.P.B.Sajith represented on behalf of the appellant and sought an adjournment. Accordingly the case was again listed on 15.7.2021. On that day none represented on behalf of the appellant. We had the advantage of hearing only the learned Senior Counsel Smt.Sumathi Dandapani appearing for the respondent. We have perused the entire records before rendering this 4. Finding of the family court: The family court found that the appellant was treating the respondent as a money minting machine. The family court found that the respondent tolerated harassment for the sake of marriage and the respondent had chosen to file a petition for divorce when harassment and cruelty reached a level beyond toleration. The family court particularly noted the complaints made by the father of the appellant before the police narrating harassment meted out to him as well as to the respondent. The family court did not disbelieve the oral testimony of the respondent in regard to sexual perversity. The Mat. Appeal Nos. 151 2015 and 179 2015 :7: family court found the oral testimony of the respondent trustworthy and unshaken during the cross examination The family court also found that unsubstantiated imputation of the illicit relationship of the respondent with the caretaker and driver would also amount to cruelty. 5. Analyses of evidence and our finding on facts: The respondent s father admittedly is an affluent businessman. Admittedly the business ran by the appellant went into trouble. The respondent abandoned her monetary claim for the obvious reason that the appellant is not in a position to meet any of such claims. The respondent has a case that on several occasions more than Rs.77 lakhs were given to the appellant by the respondent s father. It appears that the failure in the business was not merely a business failure in a normal course of business but attributable to the wayward life led by the appellant. The appellant s own father approached the police with complaints against the appellant and his brother. These complaints were filed for police protection. It is appropriate to reproduce some of the relevant portions of the complaints. In Ext.A2 complaint dated 9 2 2009 Mat. Appeal Nos. 151 2015 and 179 2015 :8: it is stated thus Son XXXXX( ) has married from Ernakulam and his family life is in complete disarray now. He has been ill treating his wife and members of her family and as a result of police complaint preferred by them before the police he has been severly warned by the police. Till then son XXXXX( ) was residing in his wife s house. Thereafter he is residing along with a friend of his the permanent address is not known to me It is submitted that my son XXXXX( ) comes to my residence very often and he is compelling me to give him more monetary assistance which I am not able to do now because I have drained all my bank savings to repay the debt incurred by my sons Because of my inability to provide him with any monetary assistance he is threatening me with danger to my life if I were not oblige him by disposing of the house and the land surrounding the house and pay substantial portion of the balance after repaying the balance bank debt. He is also threatening me for extracting my signature in documents for sale of the house name of the appellant is deliberately masked by us In Ext.A3 complaint dated 30 4 2009 it is stated My only daughter who is residing with her husband in Trichur together with her married son & married daughter are helping me by arranging money to pay the loan availed by my sons Mat. Appeal Nos. 151 2015 and 179 2015 :9: from the Federal Bank. Since they are helping me financially to pay off the loan my son XXXXXis threatening my daughter and her two children over the phone daily with danger to their lives My sons have come to know that I may get back the title deeds from the Bank very soon and continue to live in the house which they demand to be sold for they know which I will never agree I hope you will remember and similar complaint submitted by me to you in person two months back. Now there is a marriage function in my family at Tagore Centenary Hall Calicut on 20th May 2009. All my family members are expected to attend the marriage. My daughter and her childrens are very much desirous of attending the marriage. They are expected to come and stay with me. Coming to know about their programme my son XXXXX is threatening her everyday over phone filling here that if she were to go over to Calicut and stay with me for the marriage she will do so with risk to her life. I must say is making our life miserable.(sic)”In the above complaint the appellant s father narrates shouldering the loan liability created by the appellant and the brother on him. In Ext.A4 dated 12 3 2009 the relevant paragraph reads as follows Mat. Appeal Nos. 151 2015 and 179 2015 :10: My sons have come to know that I may get back the title deeds from the Bank and continue to live in my house which they demand to sell which I refuse to do. In a recent family get together my sons told them that they will get the documents from me forcefully even by violent methods. 9. In the backdrop of the demand for money made by the appellant from his own father we need not disbelieve the case of the respondent that Rs.77 lakhs were paid on different occasions heeding to the demand made by the appellant to the respondent s father. The respondent s case is that the entire gold ornaments were taken away by the appellant and sold to discharge his liability. The financial status of the respondent would clearly show that substantial gold ornaments were given at the time of marriage. The Court while evaluating the conduct of a spouse in matrimonial proceedings assumes its role as that of prudent man s analysing of the human behaviour. The cruelty reflects the character of a person. The Court therefore is required to adopt social semiotic approach to analyse the conduct in given situation Having analysed the conduct of the appellant it is quite probable that the appellant had utilized gold Mat. Appeal Nos. 151 2015 and 179 2015 :11: ornaments for his own needs. The physical cruelty and mental cruelty meted out to the respondent have been narrated succinctly in the oral testimony given by the respondent. The respondent has deposed that even during her pregnancy the appellant abused her. She also deposed that the appellant committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The respondent deposed that the appellant even did not spare her for sex even on the day the appellant s mother expired. She also stated that the appellant forced her to have sex in front of their daughter. The unshaken cross examination about the sexual conduct of the appellant need not be disbelieved by this Court. There was no serious challenge against the narration of sexual conduct of the appellant referred to in the chief examination. The further allegation regarding cruelty that the respondent was forced to go along with the appellant to the Bar against her will need not be disbelieved. The respondent also stated that she was forced to give a cheque to the creditors of the appellant. It seems that the respondent was convicted Mat. Appeal Nos. 151 2015 and 179 2015 :12: for the offences under Section 138 of NIA. We may not be justified in adverting those aspects in this case as it may adversely affect the prosecution of the above case. There is no dispute to the fact of raising imputation of adultery made by the appellant. In the written statement itself the appellant has stated that the respondent is having an illicit relationship with the caretaker of the apartment where she was residing The appellant raised a complaint before the Cyber Cell Calicut. It is stated in the proof affidavit that the investigation revealed that the telephonic conversation with the caretaker. However it is to be noted that no evidence was adduced by the appellant to place the investigation report before the family court. The allegations of adultery remained unsubstantiated. 10. Whether finding on facts would constitute a ground for cruelty or not: Matrimonial relationship is all about contentment. When there is harmony at home that leads to contentment in marriage. The harmony is evolved through mutual respect and trust. Debt of the appellant sparked the dispute between the appellant and the respondent. It is not a case where the respondent or her father do not want the appellant to get out of Mat. Appeal Nos. 151 2015 and 179 2015 :13: the trouble. The respondent and father appear to have helped the appellant in the best possible manner However it turns to be a strategy for the appellant to get more money from the respondent and her father in the pretext of his debt. The appellant wants to make use of fiduciary relationship to its hilt for financial gain and bargain. The acts on the side of the appellant instilled a fear in the respondent that the continuation of the marital life is only for the purpose of meeting the financial obligations created by the husband elsewhere. What constituted mental cruelty is succinctly explained in the judgment of the Apex Court in Samar Ghosh V. Jaya Ghosh4 SCC 511 After placing reliance on Halsbury s Laws of England and American jurisprudence the Apex Court laid down parameters to evaluate constituent elements for mental cruelty on the facts and circumstances of each case It is appropriate to refer to certain paragraphs of the said judgment which reads thus “No uniform standard can ever be laid down for guidance yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty . The Mat. Appeal Nos. 151 2015 and 179 2015 :14: instances indicated in the succeeding paragraphs are only illustrative and not exhaustive i) On consideration of complete matrimonial life of the parties acute mental pain agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of ii) On comprehensive appraisal of the entire matrimonial life of the parties 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 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 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 physical and mental Mat. Appeal Nos. 151 2015 and 179 2015 :15: health of the other spouse. The treatment complained of and the resultant danger or 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 11. It is to be noted that the demand for money has to be taken into account in the background of the fact that the appellant never cared to provide love and care to the respondent or his children. In the matrimonial life of the appellant and the respondent the respondent never felt any security or affection or care from the side of the appellant. This coupled with the fact of constant harassment demanding money has caused mental pain agony and sufferings to her. We have no hesitation in holding that the act and conduct on the side of the appellant constituted mental cruelty. 12. Sex in married life is the reflection of the intimacy of the spouse. The evidence of PW1 clearly establishes that she was subjected to all sorts of sexual perversions against her will. It is obvious that the appellant disregarded the wishes and feelings Mat. Appeal Nos. 151 2015 and 179 2015 :16: of the respondent. We also need not disbelieve the respondent s version that the appellant often forced her to have unnatural sex. The oral evidence of the respondent is natural. We find no reason to discredit her testimony. 13. A husband s licentious disposition disregarding the autonomy of the wife is a marital rape albeit such conduct cannot be penalised it falls in the frame of physical and mental cruelty. Marital rape is alien to our penal jurisprudence. Marital rape is defined in Black s Law Dictionary 8th Edition as “a husband s sexual intercourse with his wife by force or without her consent”. Marital rape occurs when husband is under notion that body of his wife owe to him. In Anglo American tradition derived from feudal Norman custom allows a woman subordinate to the male through the legal status of marriage and the individual existence is suspended under marital unity. This is known as coverture which was disassembled in the United States through legislations.(1) In patriarchal system husband also has similar approach to woman. In modern social jurisprudence spouses in marriage are treated 1[https: www.britannica.com topic coverture viewed on 29 July 2021 Mat. Appeal Nos. 151 2015 and 179 2015 :17: as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife s body as something owing to husband and committing sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompass bodily integrity any disrespect or violation of bodily integrity is a violation of individual autonomy. Autonomy essentially refers to a state of feeling or condition one believes to possess having control over it. In matrimony spouse possesses such privacy as invaluable right inherent in him or her as individual. Therefore marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion physically or otherwise into such space would diminish privacy. This essentially would constitute cruelty. Merely for the reason that the law does not recognise marital rape under penal law it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. We therefore are of the view that marital rape is a good ground to claim divorce Mat. Appeal Nos. 151 2015 and 179 2015 :18: 14. In this case the insatiable urge for wealth and sex of the husband had forced the respondent to take a decision for divorce. The appellant s licentious and profligate conduct cannot be considered as part of normal conjugal life. Therefore we have no difficulty in holding that insatiable urge for wealth and sex of a spouse would also amount to cruelty. 15. The appellant also failed to substantiate imputation of adultery to the respondent Unsubstantiated allegations of adultery would also constitute mental cruelty. Therefore we are of the view that the findings of facts as above clearly establish a ground for cruelty warranting divorce. 16. Epilogue: Men choose and men fail. Choosing a partner is autonomy the choice to separate is not autonomy. Where do we balance the individuals best interest and the larger interest of the society Divorce law prevalent today alludes to a discussion and deliberation of delicate balancing exercise as above Autonomy is now considered as a part of privacy and ennobled as a fundamental right. Individuals have the freedom to share their relationships through the Mat. Appeal Nos. 151 2015 and 179 2015 :19: voluntary choice of a partner. But the same individuals do not have the freedom to separate or break the relationship of their will. Legislation on divorce curtails their freedom through defined grounds. In such ground canvassed we often find ingenuity of the lawyers that matters in deciding the fate of a relationship than the real factors. The pleadings canvassed on the grounds for divorce in such proceedings are more destructive of the relationship dismissing any chance of reunion. A spouse in a marriage has a choice a choice not to suffer which is fundamental to the autonomy guaranteed under natural law and the Constitution. Law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court. This is what really happens on the dismissal of the divorce petition. This case like many other cases before us depicts a sordid tale of a woman losing a precious part of her life in a battle of fate That fate was not chosen by her that is imposed on her vis a vis legal heteronomy. Legislature s power through legal paternalism for the public good cannot be questioned or doubted. Autonomy and paternalism suggest a fine balance that must be with an objective to Mat. Appeal Nos. 151 2015 and 179 2015 :20: protect the interest of the individual whose choice is restricted. Enumerated grounds of divorce such as cruelty adultery desertion etc. to grant divorce are having a trace of heteronomy. Law on divorce was enacted reflecting deeper values of the culture of the society at that time. In those times the social philosophy behind marriage does not recognize the dissolubility of the marriage except in extreme circumstances. Legal heteronomy and individual autonomy is a delicate balancing exercise in a legal relationship. In a changed scenario of marriage in the society shifting from the social philosophy to individual philosophy we are afraid whether the present divorce law on enumerated grounds would stand to the test of constitutionality. Fine balancing of individual choice and individual’s best interest is missing in such law. We desist from making further comments on the same as the issue has to be examined in appropriate cases. However we have suggestions for change which we put forth here 17. “Do people have free will" is perhaps the most difficult question to be answered in the context of marriage in society. Human by nature is fallible and Mat. Appeal Nos. 151 2015 and 179 2015 :21: susceptible to weakness of his or her own decisions These decisions though they appear to be calculative are often expressed in emotionally challenging situations. Individuals best interests are interests related to many factors. Though men may feel that they are free to choose what they want their choice is conditioned by the circumstances surrounding them. The very existence of humans on this earth is conditioned and determined by the behaviour of others. Marriage and family are not free from such patterns of behaviour in society. The history of mainstream sociological behaviour in relation to marriage and family do not absolve and allow the individuals to retreat on their will even though marriage is considered as a legally recognized social contract between two individuals. The individuals have to be safeguarded against misguided factors while taking the decision on his or her own will. The role of legislation thus is only to provide or lay down measures to determine the path for appropriate decisions by the individuals. Paternalistic intervention through legislation must be limited to help and aid parties in taking a decision for their own good. Therefore the framework of divorce law must be Mat. Appeal Nos. 151 2015 and 179 2015 :22: with an objective to help individuals to take a decision on their own affairs. This framework must promote a platform at different levels to enable individuals to exercise free choice. 18. The State believes a sustained family constitutes happiness in the larger society and the ultimate happiness of the State. Therefore the paternalistic intervention of the State on public good is justifiable. State necessarily can regulate divorce The forum provided under law to decide upon the fate of a relationship must be conceded with a power to enable parties to decide on the best possible choice governing their own affairs by themselves and not by wresting the power on a fictional ground to decide on their fate The court should not wield any power to decide on the choice of the individual. The court should articulate its power in a scientific temper to help individuals to make decisions on their own affairs. Modern day mediation medical help like psychological and psychiatric involvement by families and friends etc. would progressively help the parties to take a decision of their own choice Mat. Appeal Nos. 151 2015 and 179 2015 :23: 19. Dissolubility of marriage may bring myriad losses to a spouse on such separation. While law allowing an individual to act on his or her choice the law cannot ignore loss of such spouse who suffered in the matrimony or in separation. Husband or wife is likely to be exposed to vulnerability on exercise of such option for separation by one of the spouse Vulnerability alludes to a situation of a spouse who will be disadvantaged consequent upon such separation and causation demands empowerment of such spouse Sometimes the spouse who seeks the divorce might be responsible for disruption of the relationship. The law has to safeguard the spouse as against any loss suffered in relationship or on such separation Therefore our law also should equip to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to 20. There cannot be any difficulty in having a common code of law to all communities at least for marriage and divorce on the above line. Individuals are free to perform their marriage in accordance with personal law but they cannot be absolved from compulsory Mat. Appeal Nos. 151 2015 and 179 2015 :24: solemnization of the marriage under secular law Marriage and divorce must be under the secular law that is the need of the hour. Time has come to revamp the marriage law in our country In the light of the above the appeals are dismissed. No order as to costs A.MUHAMED MUSTAQUE JUDGE DR.KAUSER EDAPPAGATH JUDGE

Summary: Marriage – the sanctity of the ceremony is beautifully preserved and protected by our country, however it should not turn into one’s prison of torture. This was held in the landmark judgment passed by a two-bench judge comprising HON’BLE Justice A Muhamed Mustaque and Justice Kauser Edappagath, in the matter of Mr X   V. Mrs Y (APPEAL NO. 179 OF 2015) dealt with an issue where the petitioner filed seeking a divorce from her husband on grounds of harassment and cruelty  and sought the dismissal of her husband’s petition for the restitution of conjugal rights. In February 1995, The couple were married in an arranged marriage and currently have two children. The woman submitted in her petition that her husband was a doctor but he never practiced his occupation. He had instead involved himself in the real estate business and construction. However, he wasn’t having any success with it. The woman told the court that at the time of marriage, she had to give 501 gold sovereigns as dowry along with a car and a flat, yet still he kept harassing her and kept demanding for more money from her. The woman told the court that her father, who was a businessman, gave her husband Rs 77 lakh at different occasions, and the gold given to her husband by her family was also pocketed by him. The Kerala High Court noted the submissions of harassment faced by the woman in her divorce petition. She submitted that she faced physical harassment at the hands of her husband. The woman claimed that she faced cruelty in the form of “perversion and physical harassment.” The woman also stated that her husband had abused her even during her pregnancy. She also mentioned that she had to endure several instances of excruciating physical, mental and sextual torture by her husband. The High Court noted the family court’s findings in 2014, that the husband was treating the woman as a “money-minting machine” and that she “tolerated harassment for the sake of marriage,” and chose to file a petition for divorce “when harassment and cruelty reached a level beyond toleration.” The family court had found that the man’s “unsubstantiated imputation” of the woman having an extra-marital affair amounts to cruelty.