Kerala High Court
C.V.Manoj vs Vidhya on 10 December, 2009
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 331 of 2008()
1. C.V.MANOJ, S/O.C.S.VAIDHYANATHAN,
... Petitioner
Vs
1. VIDHYA, D/O.N.RAMAN, 23/44,
... Respondent
For Petitioner :SRI.O.RAMACHANDRAN NAMBIAR
For Respondent :SRI.N.N.SUGUNAPALAN (SR.)
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :10/12/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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Mat.Appeal Nos.331 and 351 of 2008
and Cross Objection No.76 of 2009
in Mat.Appeal No.331 of 2008
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Dated this the 10th day of December, 2009
JUDGMENT
BASANT, J.
Is proof of irretrievable break down of marriage irrelevant altogether in a claim for divorce on the ground of matrimonial cruelty?
ii) Can physical assault by husband against wife even when it is not gross be reckoned as natural wear and tear of marriage to avoid the consequence of a decree for divorce?
iii) Is a court justified in rigidly insisting on independent corroboration for proof of matrimonial cruelty? These questions arise for consideration in these appeals.
2. These appeals are preferred by the appellant/husband. The respondent herein is his wife. In these matrimonial appeals, a common order passed in two original petitions is assailed. Those petitions are filed by the rival contestants for divorce and for restitution of conjugal rights. Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 2 The petition for divorce was filed by the wife whereas the petition for restitution of conjugal right was filed by the appellant/husband. By the said common order, it was found that the husband is guilty of matrimonial cruelty. But the claim for divorce under Section 13 was not granted and the lesser relief of judicial separation under Section 13 A of the Hindu Marriage Act alone was granted. The prayer for restitution was rejected.
3. We shall initially refer to undisputed facts. Parties are referred to as husband and wife. The spouses were married on 01.06.1998. In that matrimony, they were blessed with a baby girl Shreya on 16.03.1999. Parties are Brahmins belonging to well to do and respectable families. There were differences and disputes between the parties. Even for `Seemantham' ceremony prior to delivery and the `Namakaranam' ceremony after child birth, it appears that there was discord between the parties. Be that as it may, they continued to reside together till 2000 at the matrimonial home in Coimbatore where the husband resides along with his parents. In 2000, the wife, who is a graduate, Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 3 returned to her parents at Palakkad and started separate residence there. She joined a Post graduate degree course and completed her studies. During such period of separate residence the child was with the wife.
4. In April, 2003, there was admittedly resumption of cohabitation. Accordingly, the husband and wife resided together in the matrimonial home. Discord, it appears, continued.
5. In July, 2004, the wife shifted her residence to a flat in Coimbatore itself. She resided there along with her child. There are indications to suggest that her parents also resided with her. She joined M.B.A course during that period. On 25.09.2005, the father of the wife expired at Coimbatore. The wife was pregnant at that time. On 05.10.05 that pregnancy got aborted. She was attended to by PW2, a doctor in a hospital at Palakkad. On 31.03.2006 after completing her M.B.A course, the wife shifted her residence from Coimbatore to her parental home in Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 4 Palakkad. She continues to reside along with her child away from her husband admittedly from 31.03.2006.
6. The husband has a contention that after the wife shifted her residence to a flat in Coimbatore on 20.05.05 she had sent an e-mail message expressing apology for the indiscretions committed by her. According to him, they had thereafter resumed cohabitation. The husband contends that it was while the spouses were residing together after such resumption of cohabitation at the matrimonial home that the wife became pregnant. At any rate, he accepts that the wife returned to the flat on 23.09.2005 (not 23.11.05 as mistakenly typed in the counter statement). It was thereafter on the next day, ie. 24.09.2005, that the wife's father was taken to hospital and he expired on 25.09.2005. According to the wife she had not so returned. While she was residing in the flat at Coimbatore with the child the husband used to visit her occasionally and it was in the course of such interactions that she conceived again. The Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 5 dispute between them in sequence of events is only on this short aspect.
7. The wife filed O.P No.963 of 2006 claiming divorce on the ground of matrimonial cruelty. Not to be left behind, the husband retaliated by filing O.P.No.51 of 2007 for restitution of conjugal rights. Both matters were taken up together for consideration. Joint trial was ordered.
8. In the petition, the wife complained that the husband was guilty of matrimonial cruelty. He did not have the financial affluence which he was claimed to enjoy at the time of marriage. When he had financial difficulties, he wanted wealth to be brought by the wife. He allegedly compelled her to sign blank papers and documents. When the wife resisted the said request, she was allegedly assaulted. She conveyed this attempt on the part of the husband to her father. This allegedly infuriated the husband. The husband assaulted her on that score. The husband allegedly wanted the wife to speak falsehood. When people came to the house to see him, he would ask her to say Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 6 that he was not available in the house. The wife was reluctant to speak untruth. She would ask him why she should speak such lies. This infuriated him. He assaulted her. On many occasions (dates are not specified) the husband allegedly assaulted the wife in the presence of their young child as also in the presence of her father. At the matrimonial home his parents have also witnessed such indiscretion of his. Her grievance against her in- laws was only that they did not intervene to deter him on such occasions. The wife has a further case that the husband was very suspicious. He did not like her to speak and interact with others. He would take objection to such conversations. He allegedly used to assault her on that score. In short, the wife contended that the continued residence with the husband as his spouse was impossible because of the matrimonial cruelty inflicted on her by the husband. She claimed divorce.
9. In response to her claim for divorce and also in support of his claim for a decree for restitution of conjugal rights, the husband contended that he was not guilty of any Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 7 matrimonial cruelty against his wife. He was not facing any financial problems. He has financial affluence. He did not ask her to sign any blank papers. He did not assault her for the reason that she refused to sign such blank papers. He was not suspicious. The wife was residing separately without any valid reason. The wife and her parents were interested only in money. They looked at the appellant only as a money making machine. The boot was on the other leg. The wife used to pick up quarrels. She used to abuse him. She made disparaging remarks against him and called him "Naye, patti" (dog). Though he had initially resisted the insistence of the wife that the spouses must take up separate residence, he was now willing even for the same. He wanted the matrimonial dispute to be settled amicably. There was no sufficient reason to order divorce. It was prayed that the wife may be directed to resume cohabitation with him. The prayer for divorce may be rejected. Decree for restitution of conjugal right may be granted, it was prayed.
Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 8
10. Parties went to trial on these contentions. The wife examined herself as PW1. She gave a narration of the events in tune with her averments in the petition for divorce. She examined PW2, the doctor who had attended on her when the second pregnancy came to termination. The evidence of PW2 shows that it was a spontaneous abortion. PW2 was examined to disprove the contention of the husband that the wife had intentionally and deliberately aborted the pregnancy without even referring to him. Exts.A1 and A2 were marked on the side of the wife. They are documents relating to her admission in the hospital, treatment etc. in connection with the alleged spontaneous abortion on 05.10.05. No other evidence was adduced.
11. On the side of the husband he examined himself as RW1. He proved Exts.B1 to B14. Exts.B1 to B13 are only documents to show that he had a sound financial position. Ext.B14 is the discharge summary which is in tandem with the evidence of PW2 as also Exts.A1 and A2.
Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 9
12. The learned Judge of the Family Court was thus essentially called upon to evaluate and assess the interested oral testimony of PW1 and RW1 to decide the controversy before the court. The learned Judge of the Family Court undertook that exercise. The learned Judge relied on the evidence of PW2, which offers support for the evidence of PW1 that it was not a deliberate intentional termination of pregnancy, but was only a spontaneous abortion. The court below after evaluating the evidence came to the conclusion that the oral evidence of PW1 can be preferred to the oral evidence of RW1. The court found that the evidence of PW1 does establish matrimonial cruelty. However, the court was not prepared to give up. The court found a ray of hope that the parties may still be able to patch up their differences and settle their disputes. The court strongly recommended that course. In these circumstances, after satisfying itself that matrimonial cruelty of the contumacious variety has been proved, the court below did not grant the prayer for divorce; but proceeded to grant the lesser relief of Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 10 judicial separation under Section 13 A of the Hindu Marriage Act. The petition for restitution of conjugal right was dismissed.
13. The husband has come up in appeal against the grant of the decree for judicial separation and also against the rejection of the prayer for restitution of conjugal rights. The wife belatedly has filed a cross objection. It is contended that the court below had erred grossly in not granting the decree for divorce as prayed for by the respondent/wife.
14. We have heard both counsel. On the arguments advanced, the following points arise for determination.
i) Did the court below err in coming to the conclusion that matrimonial cruelty of the contumacious variety has been established by the respondent/wife?
ii) Did the court below err in not granting a decree for divorce as prayed for by the respondent/wife?
Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 11 Point No.1
15. The crucial question is whether the court below erred in choosing to accept and act upon the oral evidence of PW1 in preference to that of RW1. Sitting as a first court of appeal, this Court has to consider whether the court below has committed any error in so accepting the testimony of PW1. This is the first task. It will then have to be decided whether the proved acts justify grant of relief against the appellant and if so what relief.
16. The dispute is about matrimonial cruelty. It would be idle for the Court to look for independent corroboration for such matrimonial cruelty. Between spouses from respectable family background matrimonial cruelty invariably takes place usually only within the four walls of the home and it would be absolutely unreasonable for any Court to expect disinterested independent ocular testimony on that aspect. A court commits indiscretion of the unpardonable variety if it throws its hands up and holds that a firm conclusion cannot be reached for the reason that independent ocular corroboration of matrimonial cruelty is not Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 12 available. Strain the Court must, to decide whether the evidence establishes matrimonial cruelty even when inputs/versions are available only from the interested contestants.
17. The learned counsel for the appellant/husband contends that though according to the wife there was attempt by mediators to settle the dispute between the parties, such mediators have not been examined. Surprisingly the very contention of the appellant is that no such mediation has at all taken place. So the grievance of the husband is about the non examination of the mediators who did not according to him exist. Less said about this grievance - of the mediators not being examined, the better in the circumstances of the case.
18. Broad probabilities will always have to be assessed and evaluated when the onerous task before the court is to choose between the interested testimony on either side. The husband and wife are young. They are in the pink of their health and youth. They are blessed with a child in the matrimony. It will only be reasonable to assume that unless there are valid Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 13 reasons, a husband and wife in such circumstances are unlikely to reside separately. This broad probability must inform any prudent mind and every court while attempting to resolve disputed questions of facts like the ones in this case.
19. The wife has a definite case that separate residence became necessary and inevitable because of the matrimonial cruelty heaped on her by her husband. The husband admits that there were bitter quarrels, disputes and differences between them. But he has no specific case to advance to explain such bitterness. In his evidence he takes the stand that the wife insisted on separate residence. He was not willing to oblige and there was matrimonial discord on this score. We have gone through the counter statement in detail. It is significant to note that the husband has not raised a specific plea that the demand of the wife for separate residence was the bone of contention which led to such matrimonial quarrels, differences of opinion and disputes. Though passing reference to such an insistence is made in the counter statement, no specific plea that this had Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 14 wrecked the matrimonial amity is not specifically raised. Emphasis in the counter statement is only on the greed and lust for money of the wife and her parents. It is interesting to note that she resided separately at the flat for some time. It is relevant that he now offers to reside separately and the wife is unwilling to accept that offer and live with him. In this fact scenario his claim that insistence on separate residence was the only reason for the admitted matrimonial discord does not carry conviction at all. In this broad background certainly the oral evidence of PW1 deserves to be preferred to that of RW1. The court below has done the same.
20. We must always remind ourselves that the trial court has the evident advantage of seeing the witnesses perform in the witness stand before it. Many vital inputs are gathered by an alert trial court when the witnesses are examined before it from their demeanor and from the manner and conviction with which answers are given. These inputs contribute to the crucial decision making as to which witnesses can be believed and Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 15 whether the evidence of one witness is to be preferred to that of another. It will be idle for an appellate court to ignore such evident advantage which the trial court has in the matter of evaluation of evidence. Very strong reasons must be available for an appellate Court to interfere with such discretions of the trial court. In the instant case the trial court which had the advantage of seeing the witnesses perform in the witness stand before it had chosen to accept and act upon the oral evidence of PW1 in preference to that of RW1. Unless compelling reasons are shown to exist, we shall not invoke our appellate jurisdiction to interfere with such discretion exercised by the trial court.
21. The learned counsel for the appellant first of all relies on the absence of independent corroborative evidence. The counsel contends that at least the mediators must have been examined to prove the alleged matrimonial cruelty. The evidence of PW1 clearly shows that except her minor daughter and her deceased father no one other than the parents of the husband could have perceived the matrimonial cruelty inflicted Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 16 on her. It is therefore impossible for the court to expect any independent ocular evidence on the question of matrimonial cruelty. The appellant/husband has not chosen to examine his parents, who were living under the same roof along with the spouses. The mediators have not been examined. According to the appellant, there was no mediation. According to the wife, there was a mediation. The mediators could have given only the version of the rival contestants and they definitely and admittedly have no clue directly about the alleged matrimonial cruelty. The rival contestants have advanced their versions before the court below and in these circumstances the examination of the mediators cannot have any direct bearing or relevance on the actual matrimonial cruelty if any inflicted. The very involvement of the mediators was disputed by the appellant also. Non examination of the mediators cannot in the given situation tilt the scales in favour of the appellant.
22. The learned counsel for the appellant has trained all his guns on one crucial aspect. The wife had become pregnant Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 17 again and such pregnancy got aborted on 05.10.05. The learned counsel for the appellant strenuously contends that if there were such bitterness between the parties as to justify a decree for divorce it was very unlikely that they would have had sexual intercourse and the wife would have got pregnant prior to 05.10.05. Counsel argues that the wife had suppressed this fact in her petition for divorce. She was constrained to admit this fact only in the course of cross examination, contends the counsel.
23. We find absolutely no merit in this contention that the wife did not volunteer this information in her petition for divorce. The parties do not dispute the fact that there was sexual relationship and the wife had got pregnant. While the wife would contend that while she along with her daughter was residing in the flat from July, 2004, the husband used to visit her and on such occasions there were interactions between the parties and she was compelled and obliged to have sexual relationship with her husband leading to her conception, Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 18 according to the husband the wife had expressed apologies in the e-mail sent on 20.05.05 and it is true that she had resumed cohabitation at his residence from 21.05.2005. She had continued to reside with him at his house till 23.09.2005 and it is in the course of such residence that she had conceived.
24. As to where and when she conceived is not very crucial as there is no dispute that she conceived in her physical relationship with him. Going by the evidence of the wife they had occasion to have physical interactions in the said flat in which she was residing. Going by the evidence of the husband, they had occasion to have sexual relationship while the wife was residing with him for a short period from 21.05.05 to 23.09.2005. Either way the omission to volunteer and disclose information about the pregnancy and abortion in the petition filed by the wife is reckoned by us as not crucial or vital at all. The non disclosure of information voluntarily in the petition about conception and the spontaneous abortion cannot be reckoned as contumacious suppression at all.
Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 19
25. The learned counsel for the husband contends that it is not disputed that an e-mail message was sent on 20.5.2005. According to the husband, the wife had expressed her apologies for all what happened earlier. The husband wants the Court to consider this as a circumstance to conclude that there was no matrimonial cruelty and all strain happened to be there only because of the conduct of the wife. The e-mail message has not been produced and there is no valid explanation for not producing the same. Be that as it may, the fact that the wife willing to patch up, had expressed her apologies cannot be held to be destructive of her case of matrimonial cruelty earlier. In fact that alleged piece of conduct, of her agreeing to reside with the husband - be it at her flat or at the matrimonial home, goes a long way to assure this Court that the wife had also made genuine attempts to patch up the differences of opinion and the attempt did not succeed for reasons beyond their control. In these circumstances, the alleged sexual intercourse in between and conception as a consequence or the fact that the contention Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 20 about the e-mail message has not been countered are not according to us destructive of the oral evidence tendered by PW1 about matrimonial cruelty.
26. It is contended that the acts of matrimonial cruelty have not been pleaded specifically and sufficiently with reference to dates and events. As noted earlier, it was not one piece of specific conduct that allegedly amounted to matrimonial cruelty. A series of acts - a course of objectionable conduct, is complained of. Law cannot distance itself from raw life and common sense. It would be idle to expect the wife to note the dates of such alleged continuous conduct in the calender and plead the same in meticulous detail. That he used to physically assault her and indulge in acts of mental cruelty is pleaded. No reasonable and prudent mind in the context can find fault with the wife and approach her testimony with reservations on the ground that specific dates of such cruelty are not pleaded. The need for specific pleadings is not a fetish but only a requirement to facilitate satisfactory and just resolution of factual disputes. Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 21 In the given situation it will be idle and puerile to insist on more specific pleadings about dates of the acts of cruelty. Similarly, the contention that the wife did not complain to the police or authorities about matrimonial cruelty cannot be accepted as the very contention betrays lack of nexus with real and raw life. No wife runs to the authorities with a complaint unless the particular event of cruelty is so gross.
27. We do hence concur with the court below that it is absolutely reasonable to prefer the evidence of PW1 to that of RW1 in the broad background of facts and circumstances in this case.
28. The question survives whether the evidence adduced is sufficient to prove matrimonial cruelty. This question arises for consideration before courts practically in every petition claiming divorce on the ground of cruelty. What can be said to amount to matrimonial cruelty? What pieces of conduct can be categorised as matrimonial cruelty? Is the piece of conduct complained of only part of the "ordinary and natural wear and Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 22 tear of every marriage"? When can it be held that the rubicon is crossed and the conduct amounts to matrimonial cruelty to justify the founding of a decree for divorce on such conduct?
29. These difficult questions deserve very anxious and serious consideration in every such petition for divorce on the ground of cruelty. We feel that we need not on our own reiterate the principles. To us, it appears that every court dealing with these questions would do well to read and re-read paragraphs 66 to 68 of the decision in Naveen Kohli v. Neelu Kohli reported in (AIR 2006 SC 1675). It will be good education for all courts
- Family Courts and other courts, dealing with such applications for divorce, if they familiarise themselves with these principles which will help them in discharging the onerous task before them in a better, more realistic and effective manner. We hence feel persuaded to quote and extract the said paragraphs 66 to 68 "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 Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 23 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, 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 of 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 Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 24 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 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 Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 25 ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court."
(emphasis supplied) The crucial question is whether in the peculiar facts and circumstances of a given case the complaining spouse can "reasonably be expected to live" with the offending spouse. That is the million dollar question to be answered in each case. Having so understood, the law relating to matrimonial cruelty and the approach which the court should adopt while considering evidence to decide whether the proved conduct amounts to matrimonial cruelty, we take note of the particular circumstances of the case. RW1 in his evidence gives us clinching indications of the psyche of the parties. He admits categorically "my wife was brought up in a very noble cultural background". It is such wife who says that she is unable to stand the mental and physical cruelty. Her evidence shows that he used to assault her physically. Her evidence shows that he used to compel her to sign blank papers. Her evidence further shows that he used to insist that she should speak Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 26 incorrectness/falsehood to people who come home and visit him. Her protestations against these were not taken kindly and resulted in assault against her. She has tendered evidence that her husband was suspicious and would not take kindly when she spoke to others. She used to be assaulted on this score also. In the given cultural background which is indisputably revealed in evidence, we find absolutely nothing wrong in the Court coming to the conclusion that these pieces of conduct do amount to matrimonial cruelty of the contumacious variety. We concur with the Family Court that the conduct of the appellant was such that she cannot reasonably be expected to live with him.
30. As to whether the conduct alleged amounts to such cruelty, the subsequent conduct would be crucially relevant. The court below had elaborately attempted to settle the dispute between the parties and to re-unite them. Parties were referred to the Mediator by this Court in an attempt to settle their disputes. After hearing the counsel initially we felt that an attempt must be made to settle the dispute between the parties Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 27 by our intervention if that would be helpful. We are convinced that the marriage exists only in its shell and not in its substance. We are satisfied that it is impossible to persuade the spouses to live together now. Of course the appellant offers such resumption of co-habitation, but the wife is unwilling to do the same. She has her own reasons for such inability on her part to persuade herself to resume co-habitation with the husband.
31. An interesting question is raised as to whether irretrievable break down of marriage is relevant in this context. In several decisions, the Hon'ble Supreme Court has emphasised the need for a shift in the matrimonial law from the search for guilt to an acceptance of the eventuality and fact of death of the marriage. Though the Apex Court has repeated it many times, even now the legislature has not thought it fit to amend the law to incorporate irretrievable break down of marriage as a ground for divorce. The learned counsel for the appellant submits that irretrievable break down of marriage is irrelevant. In these circumstances, the learned counsel for respondent places Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 28 reliance on the decisions of the Hon'ble Supreme Court in Naveen Kohli (supra) and Bhagat v. Bhagat in 1994(1) SCC
337. The Hon'ble Supreme Court has emphasised in those cases the need to have a realistic approach to the need for de jure acceptance of de facto death of marriage. But the fact remains that law even today does not recognise irretrievable break down of marriage as a ground in itself to justify or found a decree for divorce.
32. The learned counsel for the appellant relies on the decision in Vishnu Dutt Sharma v. Manju Sharma (2009(1) KLT 940 SC) to contend that irretrievable break down of marriage cannot be recognised as a ground for divorce.
33. It is not necessary to detain ourselves any longer with this controversy. It is undisputed that irretrievable break down of marriage is not a ground of divorce under law even now. No court can grant a decree for divorce solely on the ground of irretrievable break down of marriage. The Hon'ble Supreme Court in Vishnu Sharma has made it clear that courts cannot Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 29 legislate and however strongly they may feel that irretrievable break down of marriage must be introduced and accepted as a ground of divorce, they cannot grant decree for divorce on such ground unless the law is amended.
34. But that is far from saying that irretrievable break down of marriage is an irrelevant input in a claim for divorce on the ground of cruelty. Paragraphs 66 to 68 of Naveen Kohli extracted above really shows that the question is how the individual spouses to a particular marriage in question looks at the alleged conduct. If such alleged conduct persuades either of them to recognise the marriage as not retrievable, definitely that has a bearing on the question whether the conduct alleged amounts to cruelty or not. In a case like the instant one, where the acts alleged are the only reasons for separate residence of the spouses as found by the court below and as accepted by us, the fact that on account of these pieces of conduct,spouses have not been able to resume co-habitation is definitely a very important circumstance to decide whether such pieces of conduct amount Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 30 to matrimonial cruelty or not. The pieces of conduct which compel the parties to live separately for such a long period of time (as to indicate irretrievable break down of marriage) can safely be held in the facts of that particular case to amount to matrimonial cruelty.
35. We make it clear again that irretrievable break down of marriage is by itself not yet a ground in law to order divorce. But in a claim for divorce on the ground of cruelty, if it is proved that certain pieces of conduct have made it impossible for the parties to resume co-habitation and revive the marriage and the marriage is dead defacto, such piece of conduct can certainly be reckoned as amounting to contumacious matrimonial cruelty to justify the plea for divorce. It is in that view of the matter that we look at the evidence of irretrievable break down of marriage available in this case. The pieces of conduct alleged can certainly be held to amount to matrimonial cruelty in the facts and circumstances of this case.
36. Naveen Kohli supra and a host of other binding Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 31 precedents make it clear that the true litmus test for matrimonial cruelty is whether the piece of conduct complained of is such the complaining spouse "cannot be reasonably expected to live with the other spouse". This test admits and must accept a range of individual human variability. When it is shown that the petitioning spouse with no contumaciousness has not been able to "live with the other spouse" because of such conduct complained of and the marriage has broken down irretrievably on that reason, that is the best evidence possible that the conduct complained of has made it impossible for the spouses to live together. Proof of "inability to actually live together because of the conduct alleged" is thus intrinsically available in a case of irretrievable break down of marriage. We intend only to hold that irretrievable break down of marriage if proved, though not a ground for divorce in itself is not irrelevant, nay it is significantly relevant, in a claim for divorce on the ground of cruelty as we have indisputable evidence to show that the complaining spouse has not been able to live with the other Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 32 spouse for that reason.
37. Our experience in this jurisdiction prompts us to think aloud on the state of matrimonial law and procedure in our country. Right to life under Article 21 of the Constitution must definitely include the right to a healthy harmonious matrimonial life. Marriage as an institution becomes meaningless if it were to be endured and not enjoyed. The right to opt out of an emotionally dead marriage will have to, subject to the concerns of public order and morality, be essentially accepted - tomorrow, if not today, as an incident of the right to life. It will of course have to be secured that the economically fragile divorced spouse is adequately protected. Section 125 Cr.P.C., more than effectively discharges this basic obligation in its fundamentals. Progressive legislatures will certainly have to accept and recognise the economic right of the marital partners to honourably divide between them the wealth and assets acquired during coverture at the time of termination of relationship. If these concerns are properly addressed, a welfare socialist state Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 33 cannot and must not, we feel, hesitate to recognise the right of a spouse to honourably walk out of an emotionally dead marriage with an incompatible spouse. The enormity of the number of lives involved inextricably in litigation for securing divorce , the inevitable laws delays which contribute to the life of litigation and the loss of precious prime time in life of young spouses in such complex litigation do all worry us and instill in us a deep sense of dissatisfaction and frustration. Is marriage an institution for imprisonment for life against the volition and desire of individuals? If either party does not want to continue matrimony can and should the system and laws compel him/her to continue to endure such matrimony? Cannot individuals be safely entrusted with right to choose their own fate? Should not marriage laws and the system realistically recognise that compatibility is sine qua non for the success of the institution of marriage? Should marriages dead de facto continue to live de jure? If so for whose benefit? Are the children in a nuclear family going to benefit in any manner by the continuance of such Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 34 a dead matrimony between warring parents? Nature or God gives a person one opportunity to live in this stint of life and should she/he not be permitted to so arrange his life as to pursue happiness in a manner that is not opposed to public order and morality? Should not spouses of unhappy marriages be permitted to walk out of such marriages honourably and as friends on the mere ground of incompatibility of temperament, after the mandatory period of waiting, counselling and conciliation? Are people going to walk out of solemn marriages merely because law offers such opportunity to redeem themselves from dead marriages? The law maker and civil society must address themselves to these disturbing questions and come out with answers. We feel that it is the duty of the Kerala legislature to lead the country on this aspect by bold and innovative legislation? Has not our Kerala experience shown us convincingly that easier and less cumbersome divorce laws do not necessarily increase the incidence of divorce and that marriages last longer in our culture not because the laws of Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 35 divorce are draconian but because of the essential culture and attitude of the polity to marriage and family?
38. Yes, we have digressed. The feeling of shame and guilt worry us as the system of which we are part must share the blame for this unfortunate plight of the seeker of justice. The long queue of young couple, one of whom wants liberation from the marital tie and our inability to grant them the time that they need from us immediately cause anguish in us. Their plight disturbs us. That explains the digression. If these observations provoke thoughts in civil society, our digression would be justified.
39. There is yet another aspect we would like to clarify. Physical violence and assault has been proved in this case by the evidence of PW1. Can such pieces of physical conduct be held to be a mere incident of the "ordinary wear and tear of marriage"? This question looms large. We are unable to accept that physical cruelty or physical assault flowing from the dominant spouse against the weaker one can ever be held to be an incident of the Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 36 "natural and ordinary wear and tear of marriage". Let the message go loud and clear that courts will not reckon and tolerate physical assault by a dominant spouse against a weaker spouse as a mere incident of the natural and ordinary wear and tear of marriage. Such an anachronistic approach shall not persuade any court to ignore and close its eyes to such objectionable conduct and hold that they do not constitute contumacious matrimonial cruelty justifying a decree for divorce. In our republic, Article 21 of the Constitution must pervade all facets of human life. Home is not out of bounds for the noble sentiments and mandate under Article 21. Physical violence is anathema to law even at home. Courts shall not tolerate physical abuse and assault between the spouses also. If the victim condones and continues to condone that is a totally different matter. But in a case where the victim takes objection to such physical assault on her and claims divorce, the proof of such physical assault even if not gross shall and must certainly persuade every court to agree that matrimonial cruelty of the Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 37 contumacious variety is established. No husband can claim an anachronistic and chauvinistic privilege in this era to chastise his wife by beating her or physically belabouring her notwithstanding the fact that he may be the security provider or the food provider for the wife. Disapproval of this Court against physical assault on the domestic front must be expressed unambiguously and we hence state with no amount of ambiguity at all that uncondoned physical assaults if proved must definitely lead to acceptance of the plea of the victim spouse for dissolution of marriage on the ground of matrimonial cruelty. Whatever may have been the history and the events of the past, at this juncture in societal and civilizational development, physical assault in the domestic environment against the spouse must be frowned upon in unmistakable terms. The husband can raise his hand to assault his wife only with the full knowledge that if the wife does not condone the same he risks the very marriage. No husband in this country shall raise his hands against his wife to assault her whatever be the provocation Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 38 without risking his marriage if such wife does not condone and chooses to claim divorce on that ground. Even assuming that such conduct is not gross and may not amount to culpable physical cruelty punishable under the penal law that would be actionable cruelty under matrimonial law warranting termination of marriage - whatever be the personal law applicable to parties. No greater disservice to the cause of emancipation and empowerment of women can be done by law and the system than the condonation of such acts on the theory of they are only natural or ordinary wear and tear of married life. Rigid insistence on independent corroborative, ocular versions to prove such contumacious behaviour also results in such gross injustice. Eloquent communication of that message - that courts shall not mechanically and rigidly insist on ocular corroboration for matrimonial cruelty and that all acts of uncondoned physical cruelty will be accepted as sufficient ground for grant of a decree for divorce, we are certain will help the system and the law to eliminate violence on the domestic front. In the instant Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 39 case, we are satisfied from the evidence of PW1 which has been accepted by the court below and concurred by us that there has been physical assault on the wife. She is hence undoubtedly entitled to relief on that score also.
40. In these circumstances, we find no merit in the challenge raised by the learned counsel for the appellant against the impugned order. The first ground of challenge is turned down.
41. Point No.2: The wife contends that unfairly and unjustifiably, relief of divorce has been denied to her. Laudable though the sentiments of the court below may be, it having been held satisfactorily and convincingly that the husband is guilty of matrimonial cruelty of the contumacious variety there was absolutely no justification to deny the relief of divorce, contends the learned counsel for the respondent. The learned counsel further points out that the O.P. for divorce was filed as early as in 2006 and the impugned order was passed on 29.1.2008. A period of one year has already elapsed from the date of the Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 40 impugned order and it is absolutely unnecessary now to wait endlessly with the unreal hope that the parties shall be able to settle their disputes harmoniously. The learned counsel for the respondent points out that in spite of the decree for judicial separation, parties have not resumed co-habitation and if today the court below is moved for a decree for divorce on that ground, the same is liable to be granted. In these circumstances, the agony may not be protracted. The decree for divorce itself may be granted, it is prayed.
42. We find merit in the cross objection raised by the respondent/wife. Even assuming that the court below was justified at that point of time in not granting the decree for divorce as prayed for and in granting the lesser relief of judicial separation only in the hope that the parties would settle their disputes, we are certainly satisfied that it is an empty and unreal hope now and that the challenge by the wife in the cross objection deserves to be allowed.
Mat.Appeal Nos.331 and 351 of 2008 and Cross Objection No.76 of 2009 in Mat.Appeal No.331 of 2008 41
43. In the result:
(a) These appeals are dismissed. The impugned common order insofar as it concludes that the husband is guilty of matrimonial cruelty and rejects the prayer for restitution of conjugal rights is upheld.
(b) Cross objection of the respondent/wife is allowed. It is found that the turn of events now reveal that court below erred in not granting the decree for divorce as prayed for. At any rate, on the circumstances prevailing today, we are satisfied that the respondent's claim for divorce must be granted in full.
(c) The order in O.P.No.963/06 is modified. The decree for divorce on the ground of matrimonial cruelty under Section 13 of the Hindu Marriage Act is granted. The marriage between the spouses solemnised on 1.6.1998 is hereby dissolved.
(d) Parties are directed to suffer their respective costs.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn