cruelty ground for divorce.

cruelty ground for divorce.

“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 THE HIGH COURT OF KERALA AT ERNAKULAM

Mat.Appeal.No. 99 of 2009()

1. SAMDEEP MOHAN VARGHESE, AGED 35,

... Petitioner

2. ANJANA JOSE, D/O.T.T.JOSE,

Vs

1. ANJANA

... Respondent

For Petitioner :SRI.GEO PAUL

For Respondent :SRI.V.V.ASOKAN

The Hon'ble MR. Justice R.BASANT

The Hon'ble MR. Justice M.L.JOSEPH FRANCIS

Dated :15/09/2010

O R D E R

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 the bed room. According to her, the husband was not interested in normal sex. She went to the extent of complaining that marriage had not been consummated. She stated specifically that she was forced to indulge in unnatural sex. She explained the same (her concept of unnatural sex) as insistence of the husband on oral sex to which she was reluctant and unwilling. It is her case that her reluctance invited further acts of cruelty on the part of the husband. In Ext.A1, as also in the petition for divorce, these allegations are raised specifically. As stated earlier, Ext.A1 did not evoke any response at all. In the counter statement filed to the petition for divorce, this aspect was not specifically traversed and denied by the respondent. However at the stage of evidence, we find the husband taking the stand that almost invariably, on every occasion, sexual interaction was attempted with oral sexual activity. At the stage of evidence, he hastened to add that it was so not at his instance but only because the wife insisted on the same. This plea surprisingly is not seen raised in the counter statement filed in the divorce petition. The evidence of the husband even suggests that he did not reckon
 MA 99 & 152 OF 2009 20

such sexual activity to be unnatural at all. It is in this context that we have to appreciate the evidence tendered by PW1 that unwillingly she was invariably compelled to indulge in oral sexual activity at the instance of the appellant. It would certainly have been embarrassing for the wife to disclose such details until the last straw on the camel's back prompted her to take the decision to separate. Absence of allegations to this effect earlier (ie. before separation) cannot in any way detract against the acceptability of such allegations raised by the wife after 14.5.2004, the date on which she decided to separate and went away from the matrimonial home to join her sister and brother in law at Bangalore. Here again, standards of a reasonably prudent person have to be adopted by the court. The version of the wife raised in Ext.A1 and the petition for divorce, the absence of specific denial of those assertions, the evidence of the wife as PW1 and the stand taken by husband in the course of trial compellingly persuade us to accept the grievance of the wife that she was compelled to indulge in unnatural sexual activity at the instance of the husband to which she was unwilling and that her unwillingness invited the wrath of the
 MA 99 & 152 OF 2009 21

husband. Matrimonial cruelty in its sexual dimension is established.

22. The learned counsel for the wife contends that even if we go by the case of the appellant, he was guilty of matrimonial cruelty to his wife in that he did not recognise, accept and respect the personality and preferences of the wife. It is the very case of the husband that the wife had aspirations of an active and energetic career. In fact we see the appellant accusing the wife of entertaining aggressive career aspirations. She was herself an Engineer. Her husband was also an Engineer. Her husband had secured admission to Government Engineering College, by getting into the merit list whereas the wife was compelled to pursue her education elsewhere by securing a seat by payment of money, obviously. The husband was well employed. Wife could not secure such good employment. This admittedly caused frustration in the wife. She also wanted to secure a good job for herself, consistent with her qualification - evidently consistent with the position of her husband. It is the very case of the appellant that the wife was over involved with her alleged fascinations and infatuations for a career as an
 MA 99 & 152 OF 2009 22

Engineer in a Multi National Company. She tried to secure employment in one of the MNCs. It is the case of the husband that he also attempted to encourage her to secure such an employment. It is his case that she became frustrated and disappointed and started behaving like a possessed woman when she met with disappointment in her attempt to secure good employment. It is his very case that he had taken steps to ensure that she gets a good employment. He had taken steps to help her to secure employment with an MNC, viz Siemens. She had secured employment also there. At that stage, husband took the stand that she should not join Siemens. Wife was very disappointed and she stated that if she were not permitted to do the same, she would go back to Bangalore. Still admittedly the husband did not permit her to take up that employment. Her desire in life did not fructify because of the attitude taken by the husband. She was admittedly refused permission to join Siemens. It is the case of the husband that it is that which prompted her to leave him in the lurch and return to Bangalore. The learned counsel for the wife points out that this admitted conduct of the husband not permitting his wife to achieve her
 MA 99 & 152 OF 2009 23

life's desire (even going by his own averments) of securing employment with an MNC is certainly an act of matrimonial cruelty which is actionable. He, fully aware of the aspirations and ambitions of his wife admittedly pretended to help her to realise her life's ambition but denied her opportunity to take up that employment after she secured that job after laborious preparation and endeavour. We need only mention now that on the showing of the husband himself his conduct of refusing permission to his wife to join employment with Siemens which was secured by her with great difficulty with his blessings initially amounts to a matrimonial impropriety. As to whether that would amount to cruelty or not we shall delve deeper at a later stage.

23. The wife made a further grievance. According to her, Ext.A7 E-mail was sent in the name of the wife to various persons including PW3 by none other than RW1, her husband. The contents of Ext.A7 is relied on. We have been taken through the contents of Ext.A7. The learned counsel for the appellant also unambiguously accepts that if Ext.A7 were sent by a husband in the name of his wife, that would certainly amount to
 MA 99 & 152 OF 2009 24

matrimonial cruelty justifying the grant of a decree for divorce on the ground of cruelty. As observed earlier, the spouses started separate residence on 14.5.2004. Wife returned to her sister and brother in law at Bangalore. She secured an employment there with their help. She was so residing at Bangalore and it was at this juncture that Ext.A7 communication was received through E-mail by PW3 from the address of PW1. It is unnecessary for us to refer to the details in Ext.A7. It does not require the wisdom of Solomon to conclude that it was not sent by PW1. She had unambiguously denied the same. But the answer to this question as to who must have sent Ext.A7, remains in the realm of probabilities and inferences. The contents of Ext.A7 as stated earlier must clearly show that it was not PW1 who sent it. We accept her evidence on that point without any shred of doubt. It is also crucial to note that in Ext.A7, there is no reference whatsoever to the husband RW1. One cannot lose sight of the fact that the tenor of Ext.A7 is one of the outpouring of the disappointments and grievances of PW1. It's contents shows that PW3 had attempted to abuse her sexually and she had to resist the same. The other evidence
 MA 99 & 152 OF 2009 25

available indicates that RW1 had a grievance that PW1 was too friendly with her brother in law PW3 though he had refrained from making any insinuation or allegations of illegitimate intimacy. But a reading of the evidence of RW1 shows that he had grievance about the relationship between PW1 and PW3. PW3 was influencing the decisions of PW1, RW1 had complained. It is in this context that one has to see the contents of Ext.A7. Most significantly in Ext.A7, there is not a whisper about the circumstances under which PW1 left RW1 and came back from Mumbai to Bangalore. A finding beyond reasonable doubt as in a criminal case that RW1 was responsible for Ext.A7 may not be possible but the totality of circumstances convincingly show that the conclusion and grievance of PW1 that it was RW1 who created Ext.A7 is very reasonable and acceptable. The manner in which RW1 faced cross examination about Ext.A7 is also interesting. He blows hot and cold as to when he came to know of the contents of Ext.A7. In one breath he would say that he came to know of it earlier vaguely and in the other, he asserts that he came to know of it only after commencement of the proceedings. We have no doubt that
 MA 99 & 152 OF 2009 26

employment of better and more scientific means might have made it possible to ascertain the origin of Ext.A7 with greater certainty. The fact remains that all available indications point to the involvement or contumacious responsibility of RW1 in the origin of Ext.A7 E-mail communication, which is per se derogatory and defamatory against PW1. No husband interested in the continuance of the marital tie should/could have made such insinuations. We are satisfied that any prudent person will be absolutely justified in sailing to the safe conclusion that RW1 was responsible for the origin of Ext.A7. The totality of circumstances, including the crucial complete omission to refer to RW1 in Ext.A7 compellingly points to correctness and convincing probability of that conclusion. The fanciful theory that PW1 must herself have been responsible for such a communication in an attempt to create evidence does not deserve acceptance at all.

24. Having discussed the facts as above, the short question is whether these findings of fact can justify a decree for divorce under Section 10(1)(x) of the Divorce Act. The learned counsel for the appellant submits that in order to answer the
 MA 99 & 152 OF 2009 27

description of cruelty under Section 10(1)(x), a much higher degree of cruelty has to be established. According to him, natural wear and tear of matrimony will have to be excluded.

25. The learned counsel for the appellant raises a contention that cruelty under the matrimonial law cannot be reckoned as identical for all religious denominations. The counsel advances a curious argument that so far as a christian couple are concerned, much higher decree of cruelty has to be established to justify a decree of divorce under Section 10(1)(x). The counsel points out that cruelty by itself as a ground for divorce was not recognised under the Divorce Act till Act 51 of 2001 which came into effect from 3.10.2001. The counsel hence argues that such cruelty as would justify a decree for dissolution of a christian marriage has not been established.

26. We shall straight away refer to Section 10(1)(x) of the Divorce Act which reads as follows:-

"10. Grounds for dissolution of marriage -(1) Any marriage solemnized, whether before or

after the commencement of the Indian

Divorce (Amendment)Act, 2001, may, on a

petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of

the marriage, the respondent-

 MA 99 & 152 OF 2009 28

(i)xxx

x)has treated the petitioner with such

cruelty as to cause a reasonable apprehension in the mind of the petitioner

that it would be harmful or injurious for the petitioner to live with the respondent". (rest of the Section except (x)omitted as not essential for our purpose).

27. The learned counsel for the appellant points out to us the provisions for dissolution of marriage on the ground of cruelty under other pieces of matrimonial law applicable to different communities. The counsel first of all points out the provisions in Section 13(1)(ia) of the Hindu Marriage Act which reads as follows:-

"Divorce- (1) Any marriage solemnised, whether before or after the commencement

of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i)xxxxx

(ia) has, after the solemnisation of the

marriage, treated the petitioner with cruelty".

28. The counsel then points out that provisions of the Special Marriage Act dealing with divorce on the ground of
 MA 99 & 152 OF 2009 29

cruelty. Section 27(1)(d) of Special Marriage Act deals with cruelty. We extract the same below:-

" Divorce - (1) Subject to the provisions of this Act and to the rules made

thereunder, a petition for divorce may be

presented to the district court either by

the husband or the wife on the ground

that the respondent -

(a)xxxxx

(b)xxxxx

(c)xxxxx

(d) has since the solemnization of the

marriage treated the petitioner with

cruelty; ".

(irrelevant portions omitted)

29. The learned counsel then points out Section 2(viii) of the Dissolution of Muslim Marriage Act which we extract below:- "Ground for decree for dissolution of marriage - A woman married under Muslim

law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-

(i)xxxxxxxx

ii)xxxxxxx

iii)xxxxxxx

iv)xxxxxxx

v)xxxxxx

vi)xxxxxxx

vii)xxxxx

viii) that the husband treats her with cruelty, that is to say,-

 MA 99 & 152 OF 2009 30

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-

treatment, or

b)associates with women of evil repute or

leads an infamous life, or

c)attempts to force her to lead an immoral

life, or

d)disposes of her property or prevents her

exercising her legal rights over it, or

e)obstructs her in the observance of her

religious profession or practice, or

f) if he has more wives than one, does not

treat her equitably in accordance with the

injunctions of the Quran".

30. The sum and substance of the argument of the learned counsel boils down to this. The spouses belonging to different communities are entitled to indulge in different standards of cruelty against spouses without the risk of a decree for divorce. Some of them are entitled to indulge in more cruelty than those belonging to other religions. The concept of indissolubility of marriage in the Christian religion is such that matrimonial cruelty which would have entitled a woman belonging to other religions for divorce may not entitle a Christian wife to claim divorce on that ground. She must establish gross variety of
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matrimonial cruelty.

31. We are afraid this contention cannot be accepted. The nature of cruelty which would entitle a spouse in matrimony for divorce must certainly be identical in all religions - at least at the present juncture in Indian society. Law cannot recognise different varieties of cruelty as hindu cruelty, muslim cruelty, christian cruelty or secular cruelty to justify a decree for divorce. As early as in Itwari v. Asghari [AIR 1960 ALL. 684], the Allahabad High Court had observed that such different varieties of matrimonial cruelty cannot be recognized. We have no hesitation to agree that the mere fact that Hindu Marriage Act and the Special Marriage Act refer to cruelty without any rider or explanation or the fact that the Divorce Act and the Dissolution of Muslim Marriage Act give indication of the nature of matrimonial cruelty that ought to be established, cannot justify the conclusion that the nature of matrimonial cruelty which would entitle the spouses for divorce is different under different personal laws. It would be absolutely safe to draw inspiration from Article 44 of the Constitution also to jump to the conclusion that nature of cruelty justifying a decree for divorce
 MA 99 & 152 OF 2009 32

cannot be different under different personal laws. To our mind, it appears that matrimonial cruelty must have a uniform definition or conceptualisation to justify the founding of a decree for divorce. Under Section 10(1)(x), the cruelty must be such as to cause reasonable apprehension in the mind of the petitioner, spouse that it would be harmful or injurious for the petitioner to live with the respondent. The expression harmful or injurious cannot be limited to physical harm or injury. Anything that would hinder the ability of the spouse to blossom into his/her fullness and to enjoy life in matrimony must be held to fall within the sweep of Section 10(1)(x) of the Divorce Act. Cruelty which is not defined in Section 13(1)(1a) of the Hindu Marriage Act and Section 27(1) of the Special Marriage Act and cruelty which is explained in Section 2(viii) of the Dissolution of Muslim Marriage Act and Section 10(1)(x) of the Divorce Act must all take inspiration from such understanding of matrimonial cruelty.

32. We may straight away refer to the decision in Naveen Kohli V. Neelu Kohli ( AIR 2006 SC 1675) where the three judge bench of the Supreme Court was called upon to consider
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the sweep of matrimonial cruelty. Of course they were dealing with undefined matrimonial cruelty under Section 13(1)(1a) of the Hindu Marriage Act. In paragraph 64 of the said decision, their lordships referred to an earlier three bench decision of the Supreme Court in Jayachandran V. Aneel Kumar [2005(2) SCC 22] which understood and accepted matrimonial cruelty as a ground for dissolution of marriage as such "wilful and unjustifiable conduct of such character as to cause danger to life, limb, health and body or mentally or as to give rise to a reasonable apprehension of such danger". Paragraphs 66 to 68 of the said judgment Naveen Kohli (supra) appear to be crucial and vital to us and we extract the same below:- "66. To constitute cruelty, the conduct complained of should be "grave and

weighty" so as to come to the conclusion that the petitioner-spouse cannot be

reasonably expected to live with the

other spouse. It must be something more

serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and

background has to be examined to reach

the conclusion whether the conduct

complained of amounts to cruelty in the

matrimonial law. Conduct has to be

considered, as noted above, in the

background of several factors such as

social status of parties, their education,

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physical and mental conditions, customs

and traditions. It is difficult to lay down a precise definition or to give exhaustive

description of the circumstances, which

would constitute cruelty. It must be of

the type as to satisfy the conscience of

the Court that the relationship between

the parties had deteriorated to such

extent due to the conduct of the other

spouse that it would be impossible for

them to live together without mental

agony, torture or distress, to entitle the

complaining-spouse to secure divorce.

Physical violence is not absolutely essential to constitute cruelty and a

consistent course of conduct inflicting

immeasurable mental agony and torture

may well constitute cruelty within the

meaning of Section 10 of the Act. Mental

cruelty may consist of verbal abuses and

insults by using filthy and abusive

language leading to constant disturbance

of mental peace of the other party.

67. The Court dealing with the petition

for divorce on the ground of cruelty has

to bear in mind that the problems before

it are those of human beings and the

phychological changes in a spouse's

conduct have to be borne in mind before

disposing of the petition for divorce.

However, insignificant or trifling, such

conduct may cause pain in the mind of

another. But before the conduct can be

called cruelty, it must touch a certain

pitch of severity. It is for the Court to

weigh the gravity. It has to be seen

whether the conduct was such that no

reasonable person would tolerate it. It

has to be considered whether the

complainant should be called upon to

 MA 99 & 152 OF 2009 35

endure as a part of normal human life.

Every matrimonial conduct, which may

cause annoyance to the other, may not

amount to cruelty. Mere trivial irritations, quarrels between spouses,

which happen in day-to-day married life,

may also not amount to cruelty. Cruelty

in matrimonial life may be of unfounded

variety, which can be subtle or brutal. It

may be words, gestures or by mere

silence, violent or non-violent.

68. The foundation of a sound marriage

is tolerance, adjustment and respecting

one another. Tolerance to each other's

fault to a certain bearable extent has to

be inherent in every marriage. Petty

quibbles, trifling differences should not

be exaggerated and magnified to destroy

what is said to have been made in

heaven. All quarrels must be weighed

from that point of view in determining

what constitutes cruelty in each

particular case and as noted above,

always keeping in view the physical and

mental conditions of the parties, their

character and social status. A too

technical and hypersensitive approach

would be counter-productive to the

institution of marriage. The Courts do not

have to deal with ideal husbands and

ideal wives. It has to deal with particular man and woman before it. The ideal

couple or a mere ideal one will probably

have no occasion to go to Matrimonial

Court".

33. All courts called upon to consider the plea for a decree for divorce on the ground of matrimonial cruelty under
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any of the enactments referred above must reckon the above observations as beacon lights to ascertain the contours of matrimonial cruelty. To live without the threat or risk of matrimonial cruelty must be reckoned as a Constitutional fundamental right guaranteed under Article 21 of the Constitution. That inalienable human right must ideally be available to all human beings existing on the planet today. More so in a secular socialist Constitutional republic like ours which guarantees right to life. The right to live without matrimonial cruelty in the domestic environment in a secular republic cannot obviously depend on the religious moorings of a citizen. After all religion, more often than not, is not a matter of choice of the citizen. It is a fait accompli with no real option or choice for the individual. It is an accident of birth. If nature or the Intelligent Designer had ordained that you must be born not in this house but in the neighbour's, you would have belonged to another religion. How many citizens in this country have known, studied and understood his own religion? How many have cared to know, study and understand the neighbour's religion ? How many have exercised an informed choice about religion ? The
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point is only that liability to suffer matrimonial cruelty in a secular republic cannot at all depend on the religious denomination of the citizen. Notwithstanding the absence of a uniform legislation relating to marriage and matrimonial cruelty despite the mandate/hope of Article 44, judges are bound to interpret the concept of matrimonial cruelty in different personal laws in such a manner as to usher in identical standards of matrimonial cruelty for all citizens. It must shock the judicial conscience that a citizen belonging to any religious denomination can/ought to be compelled to endure greater or graver matrimonial cruelty merely on the basis of his religious faith. That would be negation of the right to equality and right to life guaranteed by the Constitution. We discard the theory that the concept of matrimonial cruelty to entitle a spouse for divorce can be dissimilar and different for persons belonging to different religious faiths merely because different words are used in the relevant personal law statutes. The concept of matrimonial cruelty recognised and accepted in Naveen Kohil must inform the Courts while ascertaining contumaciousness in matrimony whatever the religious faith of the parties. Wherever
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the law offers elbow room to the Courts, they must resort to the exercise of interpretation to navigate the Indian polity to the promised shores under Article 44 of the Constitution.

34. We have already gone through the evidence in the light of the pleadings. We have come to the conclusion that the acts of physical cruelty, the acts of sexual cruelty, the acts of mental cruelty (as reflected in the despatch of Ext.A7 e-mail communication and denial of opportunity to the respondent to work in an MNC) have all been established. The short question is whether these acts on the part of the appellant would constitute matrimonial cruelty of the contumacious variety justifying a decree for divorce under Section 10(1)(x) of the Divorce Act.

35. We have no hesitation to agree that the acts complained of and established clearly constitute acts which cause a reasonable apprehension in the mind of the wife that it would be harmful and injurious for her to live with the respondent. The petitioning spouse/wife cannot be reasonably expected to live with the appellant in the light of the acts of cruelty proved.

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36. We do also note that the spouses have not been able to resume cohabitation after they started separate residence on 14.05.2004. A period of more than 6 years has elapsed. All efforts made before the trial court and the appellate court to persuade the parties to live together have failed. We do not find it difficult to conclude that the marriage has irretrievably broken down. Our efforts to persuade the parties to honourably settle their disputes either by reuniting or by parting as friends have not succeeded. The irretrievable break down of marriage, it is well established now, cannot be a ground in itself for dissolution of marriage under the Divorce Act unless the parties agree to apply for divorce by mutual consent. The wife expressed her willingness to do so, but the appellant/husband was unwilling to accept separation. It is not as though there has been no irretrievable break down of marriage. An anxious perusal of the counter statement filed by the husband reveals the predicament which he allegedly faced while the matrimony was subsisting. Going by the version of the appellant/husband or by the version of the respondent/wife, it was a tumultuous and traumatic marital life. A reading of the counter statement filed by the
 MA 99 & 152 OF 2009 40

husband in the divorce petition reveals clearly that even according to the husband, it was not a happy and harmonious married life. It was trauma and suffering that this matrimony brought to both of them going by the versions of both. We fail to understand why the husband does not agree for a harmonious and healthy separation. Mental cruelty is not proved even if the evidence is accepted, it is urged. We have already held that it has been established satisfactorily that the husband must have been responsible for publications of Ext.A7. That finding of fact must necessarily justify the finding on mental cruelty.

37. The learned counsel for the appellant/husband contends that in not granting permission to his wife to take up employment in an MNC (Seimens), the respondent is not guilty of any matrimonial cruelty. He did not permit her to take up employment in that company only in her own interest. She would have been obliged to travel long distance every day, if she were to take such employment. That would have upset their plans of raising a family. It was the compassionate husband concerned in the welfare of his wife who in her interest wanted her not to take up such an employment. There is no question of
 MA 99 & 152 OF 2009 41

matrimonial mental cruelty on this aspect, contends the counsel.

38. We look at the facts. The wife badly wanted to take up employment with an MNC. That was her life's ambition. She became cranky and unreasonable when she could not achieve this life's ambition of hers. According to the husband, she wanted raising a family also to be postponed till she gets a respectable employment consistent with the employment of her husband who was equally qualified. The husband helped her to apply for such an employment. He helped her to acquire the requisite competence. After all this and after putting in great efforts, she secured employment. It was then that the husband adamantly refused her permission to join such employment.

39. No husband living in the present times can claim an anachronistic prerogative to finally rule on the career ambitions of his wife. In matrimony, there must be partnership, affection, caring and sharing. No privilege of the ruler over the ruled can be claimed by the husband over the wife. More so, in a situation like the instant one where the husband really perceived and encouraged the career ambitions of his wife. We are unable to agree that the invocation of the assumed anachronistic
 MA 99 & 152 OF 2009 42

prerogative of the husband to rule on the career ambitions of his wife to deny her of the opportunity to achieve and accomplish her life's ambitions in respect of her employment, does not amount to matrimonial mental cruelty.

40. Be that as it may, the point that we have to consider now is the submission urged that there has been irretrievable break down of marriage. As held in Naveen Kohli's case (supra), the crucial question is whether the petitioning spouse can be reasonably expected to live with the other spouse. If in her perception such continued living would be harmful and injurious to her and such perception of hers is justified by the matters available on record, she is certainly entitled for a decree for divorce under Section 10(1)(x) of the Divorce Act. It is evident that because of the acts alleged, which appear to us to be grave and weighty, the spouses have not been able to live together after their separation on 14.05.2004. This separation for the past 6 years and the inability of the parties to resume cohabitation must certainly be attributed to the events that preceded 14.05.2004. Those acts have made it impossible for the parties to live together as spouses. Those acts we have
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already found do amount to cruelty. The fact of irretrievable break down of marriage, though not a ground in itself to order divorce, convinces us that, incidents prior to 14.05.2004 have made it impossible for the petitioning spouse/wife to live with the appellant/husband. To that extent the test in Naveen Kohli's case (supra) is answered clearly in favour of matrimonial cruelty.

41. The above discussions lead us to the conclusion that the finding of the court below that the respondent/wife is entitled for a decree for divorce on the ground of matrimonial cruelty under Section 10(1)(x) of the Divorce Act is absolutely justified and the same does not warrant any interference. The challenge on this ground must hence fail.

Ground No.3

42. The court below had found that the husband is not entitled to a decree for restitution of conjugal rights. Any ground which is sufficient to justify a decree for divorce is certainly sufficient to deny the relief of restitution of conjugal rights. We have already found on ground No.2 that the wife is entitled for a decree for divorce under Section 10(1)(x) of the
 MA 99 & 152 OF 2009 44

Divorce Act. Consequently it has to be held that the rejection of the claim for restitution of conjugal rights is also absolutely justified. The challenge raised on ground No.3 fails.

43. The learned counsel for the wife has filed I.A.No.2292 of 2010. Notwithstanding the inaccuracies and errors in the affidavit filed in support of I.A.No.2292 of 2010, it is submitted that the short prayer therein is that Ext.B2 series (2 deposit receipts) and Ext.B3 series (3 deposit receipts) may be ordered to be released to the petitioner/respondent. The learned counsel for the respondent/wife points out that the operative portion of the decree in O.P.68 of 2005 specifically directs return of the amounts under Exts.B2 and B3 series. We extract the operative portion of the order in O.P.68 of 2005 below: "In the result, O.P.68/2005 is decreed in part; that the respondent is directed to pay the petitioner the amount covered by Ext.B2 series FD receipts and the amount as per the three FD receipts of the South Indian bank mentioned in the petition together with the interest accrued thereon from the date of deposit till payment."

44. The learned counsel for the respondent/wife submits that inasmuch as Exts.B2 and B3 series have been filed as documents in the joint trial, the respondent/wife was not able to
 MA 99 & 152 OF 2009 45

request that they be released to her earlier. In the light of the specific directions, it is prayed that Exts.B2 and B3 series may be ordered to be released to the respondent/wife with specific directions to the bank concerned to renew the deposit if necessary and release the proceeds to the respondent.

45. This application is opposed by the learned counsel for the appellant. The learned counsel for the appellant submits that though he has no objection against the release of Ext.B2 series, he has objections against the release of Ext.B3 series. The learned counsel for the appellant submits that actually Ext.B3 series are not F.D receipts which belong exclusively to the wife. According to him, 3 deposit receipts in the name of the respondent/wife issued by the South Indian Bank were there at the time of marriage. When those deposits matured, the appellant allegedly invested some of his amounts also and got the 3 deposit receipts which are now marked as Ext.B3 series. Hence the counsel argues that not the entire amount covered by Ext.B3 series, but only a portion thereof is liable to be released to the respondent.

46. This contention does not appeal to us at all. We have
 MA 99 & 152 OF 2009 46

extracted the operative portion above. It is very evident that the direction covers the entire amounts covered by Ext.B3 series. In these circumstances, in the absence of an appeal by the appellant against the decision in O.P.No.68 of 2005, he is not entitled to contend that the entire amount covered by these 3 F.D receipts cannot be released to the respondent/wife.

47. The learned counsel for the appellant raises a further plea founded on technicality that the respondent/wife also having not preferred any appeal against the order in O.P.68 of 2005, no such directions relating to execution of the order in the O.P.68 of 2005 is liable to be passed in this judgment. That technical contention though impressive at the first blush, cannot stand closer scrutiny because what the respondent now requests is the release of Exts.B2 and B3 series which remain on the file because they are marked in the joint trial of 3 petitions, appeals from 2 of which are being dealt with by us in this judgment. In fact, the direction sought for is only regarding release of a document marked in the matter relating to the appeal that we are dealing with. We are hence satisfied that I.A.No.2292 of 2010 can be allowed.

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48. In the result:

a) These appeals are dismissed;

b) The impugned common order is upheld;

c) I.A.No.2292 of 2010 is allowed. Exts.B2 and B3 series, which are marked in the impugned judgment shall forthwith be released by the Registry to the respondent/wife, the petitioner in this I.A. The Registry shall forthwith hand over the same to the respondent/wife (after substituting certified copies in their place for further reference if necessary. There shall be a direction to the Banks concerned - Federal Bank and South Indian Bank to renew the deposits on the instructions of the respondent in accordance with the rules of the bank and on maturity to release the entire amounts covered by those deposit receipts to the respondent/wife, ie. the petitioner in I.A.No.2292 of 2010.

R.BASANT

JUDGE

M.L.JOSEPH FRANCIS

JUDGE