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
MA 99 & 152 OF 2009 31
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
MA 99 & 152 OF 2009 33
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,
MA 99 & 152 OF 2009 34
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
MA 99 & 152 OF 2009 36
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
MA 99 & 152 OF 2009 37
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
MA 99 & 152 OF 2009 38
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.
MA 99 & 152 OF 2009 39
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
MA 99 & 152 OF 2009 43
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.
MA 99 & 152 OF 2009 47
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
