Kerala High Court
Diana Francis vs Soji Cherian on 21 January, 2022
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque, Sophy Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 21ST DAY OF JANUARY 2022 / 1ST MAGHA, 1943
MAT.APPEAL NO. 799 OF 2018
AGAINST THE ORDER IN O.P.NO.147/2016 OF FAMILY COURT,
MALAPPURAM
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APPELLANT/S:
DIANA FRANCIS, AGED 33 YEARS,
D/O.K.H. FRANCIS, KADANTHOD VEEDU,
PUZHAKKATTIRI P.O., ANGADIPPURAM,
PIN-679321.
BY ADV BIMALA BABY
RESPONDENT/S:
SOJI CHERIAN, AGED 38 YEARS,
S/O.CHERIYAN MULLOOR,
MULLOOR (H), EDIVANNA PO,
NILAMBUR TALUK, MALAPPURAM DISTRICT,
PIN-679329.
BY ADV SONU AUGUSTINE
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
16.12.2021, THE COURT ON 21.01.2022 DELIVERED THE
FOLLOWING:
A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.
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Mat. Appeal No.799/2018
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J U D G M E N T
Dated this the 21st day of January, 2022 A.Muhamed Mustaque, J.
The most significant characteristic of a Christian marriage is the vow of the spouses in the name of Christ to unite themselves in the path of spiritual reality to lead a good temporal life. But this case speaks about the neglect of the wife, the appellant herein, in temporal affairs by the husband, who is more interested in engrossing in spiritual and religious life. The wife is before us on the dismissal of her petition for divorce. The Family Court found that the appellant failed to make out a case on the ground of cruelty for the grant of divorce.
2. The appellant and the respondent got married on 27/10/2012 at Edivanna St.Thomas Church as per Christian religious ceremonies and rites. The short lived marital relationship never had the foundation to Mat. Appeal No.799/2018 -:2:- accomplish the divine plan. The appellant was working as a nurse in Saudi Arabia at the time of marriage. The respondent was working in Qatar at that time. According to the appellant, the respondent promised her employment in Qatar which made her resign her job in Saudi Arabia. Later it was found out that the respondent had no employment in Qatar. The appellant further narrates that the respondent showed more interest in religious and spiritual matters than taking care of her and her well-being. It is further alleged by the appellant that the respondent never showed interest in having physical relationship and he considered sex as a sin. It was further alleged that pregnancy was terminated as the child in the womb suffered defects. It is also alleged by the appellant that the respondent was suspicious about her and resented her having interactions with her close relatives. It is alleged by her that the respondent portrayed the appellant as a promiscuous women having illicit relationships with many. It is also alleged that the respondent raised constant demand for money Mat. Appeal No.799/2018 -:3:- from her parents. The case of the respondent was different. He denied all the allegations set out against him. According to him, the appellant resigned from the job in Saudi Arabia as the salary was very low and also for joining B.Sc Nursing course in India. It is contended by him that the appellant had only General Nursing course as qualification. The respondent further contended that he expended money for obtaining admission for B.Sc course for the appellant. He also denied the allegation of monetary demands alleged in the petition as against him.
3. Before the Family Court, the appellant was examined as PW1, the respondent was examined as RW1. The evidence in this case consists of oral evidence of both the parties. The Family Court, after referring to the pleadings and evidence came to a conclusion that the appellant failed to prove her case of cruelty as against the respondent. The Family Court further noted that the respondent was not ready for divorce and was prepared to continue the marital relationship. Mat. Appeal No.799/2018 -:4:-
4. The following facts emerge from the oral testimony of the parties:
The respondent-husband went to Qatar and returned from there without employment. He was more interested in spiritual and religious matters. The appellant resigned from her job in Saudi Arabia and returned to her native place. There arose differences of opinion between the parties immediately after three months of marriage.
5. On an analysis of the evidence, we are of the view that the appellant made out a case for divorce. According to the appellant, the marriage was conducted on the promise made by the respondent that she will be taken to Qatar where the respondent was employed in an Oil Company. It has come out that the respondent had no employment in Qatar. The respondent never denied the fact of visiting Qatar. According to him, he had visited Qatar in search of a job. It is to be noted that the appellant resigned her job in Saudi Arabia. She came to her native place on the belief that she will be taken to Qatar. The starting point of marital Mat. Appeal No.799/2018 -:5:- discord is after the arrival of the appellant to India, resigning from the job in Saudi Arabia. The Family Court has taken this aspect very lightly. The appellant who had employment, would have been devastated on knowing that her husband had no job as projected and also for the reason that she was forced to leave her job on the belief of taking her, by the respondent, to Qatar. The mental trauma one would undergo in such a situation certainly would attract the element of the ground constituting mental cruelty. Fraudulent promise is likely to be root cause for marital discord, and unless it is repaired, it will worsen the foundation of the relationship.
6. The Family Court rejected the appellant's allegation that the respondent was not interested in sex, on the reasoning that the appellant became pregnant and later it was aborted, as the child in the womb suffered certain defects. It is to be noted that the appellant had never stated that, she had no sex with the respondent. According to her, the respondent never showed any interest in sex and the occasional Mat. Appeal No.799/2018 -:6:- sex was on insistence from the side of the appellant. The appellant had also stated that the respondent believed that sex was a sin and he also made many stories connecting the appellant with others. It is also stated by the appellant that the respondent was more interested in religious and spiritual affairs than taking care of her. We do not find any reason to disbelieve the oral testimony of the appellant. Nothing has been brought out to discredit the oral testimony. The Family Court erred in finding that there was no evidence to prove that the respondent was not interested in sex. The Court cannot expect any other evidence in this regard other than the oral testimonies of the parties. The appellant has no reason to state before the court that the respondent was not interested in sex and they indulged in physical intimacy only rarely. The denial of physical intimacy is cruelty. The Apex Court in Vidhya Viswanathan v. Kartik Balakrishnan [AIR 2015 SC 285] was of the view that "undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, Mat. Appeal No.799/2018 -:7:- without sufficient reason, itself amounts mental cruelty to such spouse". The Apex Court also relied upon the dictum laid down by the Bench of Three Judges of the Apex Court in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] enumerating some of the illustrations of mental cruelty at paragraph 101 of the said case, especially, clause (xii) of the illustrations, which reads thus: "Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty."
7. One, indulging in spiritual matters cannot be treated as wrong. But spirituality, forsaking the marital obligations cannot be viewed lightly. In every marital relationship, the spouses would have expectations in regard to temporal affairs. If spirituality of a spouse overrides the temporal affairs and the other spouse cannot agree for the same, the marriage would run into trouble. The aspect of cruelty is relatable to the conduct of one spouse to the other. If one of the spouse is not able to lead a normal life Mat. Appeal No.799/2018 -:8:- owing to the conduct and behaviour of other spouse, the element of cruelty would surface. No spouse can be compelled to live with another spouse, who is more interested in spiritual affairs than in temporal affairs. If both the parties are not unanimous to the choice made by one of the spouses to lead a spiritually overridden life, the best way is to 'part'. It is to be noted that in spite of the parties living separately for the last more than eight years, the respondent- husband is stubborn on agreeing for mutual divorce for the simple reason that for him, the sacrament of relationship cannot be separated. If a marriage fails, and one spouse wants to retain the marriage for the sake of divinity, it is nothing but cruelty in the secular perspective. When there is no chance of reunion and the marriage has been irretrievably broken down, if the respondent does not want divorce by mutual consent, such stance itself would amount to cruelty. (See para.83 of Naveen Kohli v. Neelu Kohli [(2006) 4 SCC 558]. It is to be noted that it is the secular law that governs the divorce. No purpose would be served Mat. Appeal No.799/2018 -:9:- retaining the marriage for sake of eternity. We order divorce. The appeal is allowed. We dissolve the marriage solemnized on 27/10/2012 between the parties. No order as to costs.
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A.MUHAMED MUSTAQUE, JUDGE d/-
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SOPHY THOMAS, JUDGE ms