Kerala High Court
James K.George vs Dr.Thressiamma James on 31 March, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 25TH DAY OF SEPTEMBER 2017/3RD ASWINA, 1939
Mat.Appeal.No. 531 of 2010 ( )
-------------------------------
AGAINST THE ORDER/JUDGMENT IN OP 945/2005 of FAMILY COURT,ERNAKULAM
DATED 31-03-2010
APPELLANT/PETITIONER:
---------------------
JAMES K.GEORGE,
AGED 61 YEARS, S/O K.C.VARKEY,
CHARTERED ACCOUNTANT,
PARTNER,
JAMES K.GEORGE & CO.
CHARTERED ACCOUNTANTS,
MORNING STAR BUILDING,
KACHERIPADY, COCHIN 682018.
BY ADV. SRI.M.S.UNNIKRISHNAN
RESPONDENT/RESPONDENT:
---------------------
DR.THRESSIAMMA JAMES,
AGED 60 YEARS,
W/O JAMES K.GEORGE,
RESIDING AT "MISTICAL ROSE VILLA",
FR.GEORGE VAKAYIL ROAD,
MARADU, COCHIN 682304.
BY ADV. SRI.K.R.SUNIL
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
29/6/2017, THE COURT ON 25-09-2017 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.
===========================
Mat.Appeal No. 531 of 2010
==================
Dated this, the 25th day of September, 2017
J U D G M E N T
Shaffique, J.
This appeal is filed by the petitioner in the Original Petition challenging judgment dated 31/3/2010 by which the Family Court had dismissed a petition for divorce filed under Section 10 of the Indian Divorce Act.
2. The short facts arising in the matter are as under and the parties are referred to as shown in the Original Petition unless otherwise stated.
The petitioner and respondent are Christians and their marriage was solemnized on 13/2/1977 in accordance with the Christian religious rites and ceremonies. Two children were born to them in their wedlock. Petitioner is a physically challenged person with polio affected left leg. Petitioner alleges that during 1979, his cousin had invited the couple to participate in the house Mat.Appeal No.531/10 -:2:- warming function and the respondent refused to attend the said function since she was not specially invited. The petitioner's cousin having taken note of the aforesaid fact had personally invited the respondent. But the respondent informed him that she will not attend the function. It is alleged that the behaviour of the respondent was in such a manner as it caused severe hardship to the petitioner. It is further alleged that the respondent had implicated on the petitioner that he was having illicit relationship with his subordinate staff while he was working at Keltron and she used to discuss the same to his close friends, on account of which he was subjected to humiliation and ridicule. His further allegation was that after his resignation from Keltron, he started practicing as a Chartered Accountant at Ernakulam. There were matrimonial issues on account of the fact that respondent never consulted the petitioner for any of the important family matters. According to him, he suffered a lot on account of the attitude of the respondent. He was diagnosed with diabetes in the year 1983 and he was asked to follow a particular diet. According to him, respondent was not keen to provide him with the required diet and there was no regular follow up and the respondent did not Mat.Appeal No.531/10 -:3:- care to provide him with necessary comfort to take care of his problem. He further alleges that he suffered a minor injury in an accident and though he required the assistance of the respondent, she was not prepared to console him and he felt isolated. The respondent started abstaining from physical relation ship with the petitioner since 1999. He was elected as President of family unit under St.Mary's Forane Church, Tripunithura. After his election, the respondent discontinued to attend any of the functions arranged by the Church. It is further alleged that the respondent did not consult the petitioner in regard to the marriage of their daughter which was solemnized on 30/12/2000 and he was neglected which became unbearable for him. When he questioned the respondent, he was humiliated. He left the house on 19/12/2000 and shifted his residence to Matha Tourist Home, Ernakulam. A Computer Operator by name Susy joined his office. She was separated from her husband and was having a minor child. The petitioner and the aforesaid Susy started residing in building bearing No.49/8 of Corporation of Cochin. The respondent trespassed into the office cum residence of the petitioner in November, 2004. She abused him in indecent Mat.Appeal No.531/10 -:4:- language in the presence of his clients and staff. Since he could not suffer the harassment and humiliation, he filed OP No.1334/2004 seeking a permanent prohibitory injunction against the respondent. A crime also was also registered before the Ernakualm Town North Police Station as Crime No.204/2005. According to him, the marriage has irretrievably broken down on account of the cruelty inflicted by the respondent over a period of time and it has reached a stage where he was unable to live with his wife. The humiliation cannot be tolerated any further and hence he sought for divorce on the ground of cruelty.
3. Respondent in the counter statement denied the allegations. According to her, petitioner was subjecting her to cruelty as he was leading an irresponsible and immoral life on his own whims and fancies with all luxury. He has not taken care of the respondent or her children and has not been a dutiful husband or a dutiful father. It is stated that petitioner was leading an immoral life and it is for the purpose of comfortable living with his paramour Susy that he has shifted his residence. Respondent contended that petitioner is having illicit relationship with the said Susy and it is for that purpose that he had sought for divorce. Mat.Appeal No.531/10 -:5:- She had denied all the allegations of cruelty alleged against her.
4. Before the Family Court, petitioner was examined as PW1 and two witnesses were examined by the respondent as RW1 and RW2. RW1 is none other than the respondent and RW2 is Susy. Petitioner relied upon Exts.A1 to A4. The Family Court after considering the evidence found that there is no acceptable evidence to arrive at the conclusion that the respondent subjected the petitioner to mental cruelty. Accordingly, petition had been dismissed.
5. Learned counsel for the appellant contended that a case of mental cruelty had been clearly made out from a reading of the entire factual aspects involved in the matter and the court below erred in arriving at a conclusion that cruelty is not proved.
6. On the other hand learned counsel appearing for the respondent supported the view taken by the Family Court. Learned counsel for the respondent also placed reliance upon the judgment in Suman Singh v. Sanjay Singh [(2017) 4 SCC 85] wherein the Apex Court held that allegations against the respondent in regard to incident which had occurred several years back cannot be a reason that could constitute cruelty in order to Mat.Appeal No.531/10 -:6:- claim divorce. It was held that a decree for divorce cannot be granted on one isolated incident and mere exchange of verbal conversation in the presence of others should not be sufficient to prove act of cruelty.
7. Learned counsel for the appellant placed reliance upon the Apex Court judgment in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], wherein, after considering various aspects involving cruelty, the Apex Court held as under:-
"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of `mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot Mat.Appeal No.531/10 -:7:- amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-
to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
Mat.Appeal No.531/10 -:8:-
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such Mat.Appeal No.531/10 -:9:- like situations, it may lead to mental cruelty."
8. The question to be considered is whether any of the factual circumstances pointed by the petitioner amount to mental cruelty, warranting a decree for divorce.
9. As rightly pointed by the learned counsel for the respondent, most of the contentions raised are relating to a period prior to 19/12/2000, on which date, according to him, he was forced to leave the house. Thereafter even according to him, he was residing in his office. There is no dispute about the fact that until he left the house, whatever difference of opinion the couple had between themselves seems to have been condoned which cannot be a ground for divorce.
10. The question is what happened after he left the matrimonial home. Even according to the petitioner, in his office, he had a Computer Operator by name Susy, who was separated from her husband with a child and he started residing with her in a house. The respondent alleges illicit relationship between petitioner and Susy. When a married person resides with another lady together, even though there is no sexual relationship between them, no wife could accept the husband living with Mat.Appeal No.531/10 -:10:- another lady and if she alleges illicit relationship on account of the said fact, she cannot be found fault with. Susy was examined as RW2. She deposed that it is not legal to reside with the petitioner. However, according to her, such a decision was taken on account of the special circumstances which had occurred in their life. She however deposes that they are residing together as friends. The respondent had clearly averred that the petitioner was leading an immoral life and that he had illicit relationship with Susy. As already indicated, when a person is openly residing along with another lady, it is not an unfounded allegation. Under the circumstances, the allegation made by the wife cannot be ignored and treated as baseless.
11. On a perusal of the evidence on record and the manner in which the Family Court had considered the matter, we do not find any error in the judgment which warrants interference. Learned counsel for the petitioner would however submit that the marriage has been irretrievably broken. No materials had been placed before us to indicate any specific allegation regarding cruelty by which the petitioner was unable to live in his house. Other than his oral testimony, there is no other evidence as well. Mat.Appeal No.531/10 -:11:- Further, they have been living separately since 2000. After they are residing separately, petitioner cannot contend that a case of cruelty had been made out. He of course, tries to narrate an incident by which the respondent had come to his office and created a scene and a crime has been registered in that regard. We do not want to express any opinion on the effect of the criminal complaint. But as far as the incident is concerned, it is alleged to have occurred in 2004. The allegation was that she had trespassed into the residential building which was used as an office. She used abusive words in the presence of his clients and staff. No supporting evidence has been adduced in this matter other than his oral testimony.
In the said circumstances, we do not find any material to grant a divorce on the ground of cruelty. No grounds are made out for interference. Mat.Appeal is dismissed. Parties shall bear their own costs.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
ANU SIVARAMAN, JUDGE
Rp //True Copy//
P.S to Judge