It is really good to note that the Kerala High Court has in a remarkable, refreshing, robust, rational and recent judgment titled xxxxxxxx v. xxxxxxxxxx in Mat. Appeal No. 513 of 2021 and cited in 2022 LiveLaw (Ker) 433 pronounced as recently as on August 4, 2022 has minced just no words to unequivocally observe that constant and repeated taunts of the husband that his wife did not meet his expectations and comparisons with other women would amount to mental cruelty as contemplated under Section 10(x) of the Divorce Act, 1869 for the purpose of dissolution of marriage. It must be mentioned that the marriage between the petitioner and the respondent was solemnized in January 2019 and the petition for dissolution of marriage was filed within 10 months from the marriage. A Division Bench of Justice Anil K Narendran and Justice CS Sudha observed that for the conduct of a spouse to fall within the ground of cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner’s spouse cannot be reasonably expected to live with the other spouse. The Court also said that it must be something more than “ordinary wear and tear of married life”. The Court opined that 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.
At the very outset, this suave, simple and straightforward judgment authored by Justice CS Sudha for a Division Bench of Kerala High Court comprising of Justice Anil K Narendran and himself sets the ball rolling by first and foremost putting forth in para 1 that, “This Mat. Appeal is against the judgment and decree dated 25/09/2021 in O.P.No.1060 of 2011 of the Family Court, Ettumanoor. The appellant is the respondent and the respondent herein, the petitioner in the proceedings before the Family Court, Ettumanoor. The parties and the documents will be referred to as described in the proceedings before the court below.”
To put things in perspective, the Division Bench then envisages in para 2 that, “The petitioner/wife moved O.P.(Div.)No.334 of 2009 under Section 10(x) of the Divorce Act, 1869 (the Act), before the Family Court, Thodupuzha, seeking dissolution of her marriage to the respondent solemnized on 17/01/2009, on the ground of cruelty. The respondent/ husband challenged the jurisdiction of the court. The point was found against him. Hence the respondent challenged the same before this Court in Mat. Appeal No.303 of 2011. As per judgment dated 05/06/2011, this Court directed the Family Court, Thodupuzha, to return the original petition for presentation before the appropriate Family Court. Pursuant to the same, the original petition was presented before the Family Court, Ettumanoor, and it was re-numbered as O.P.No.1060 of 2011. Thereafter, the petition was amended to bring in an additional ground for dissolution of marriage, that is, non-consummation of marriage under Section 10(vii) of the Act.”
While continuing in the same vein, the Division Bench then notes in para 3 that, “On completion of pleadings, the parties went to trial. PW1 was examined on behalf of the petitioner/wife and Exts.A1 to A3 were marked. The respondent/husband examined himself as RW1 and Exts.B1 to B6 were marked on his side. After considering the oral and documentary evidence and after hearing the parties, the court below by judgment dated 07/12/2013 dismissed the petition. The petitioner/wife preferred an appeal before this Court as Mat.Appeal No.238 of 2014. This Court by judgment dated 29/12/2019 allowed the appeal and the judgment dated 07/12/2013 of the Family Court, Ettumanoor, was set aside. The matter was remanded and the petitioner/wife was given an opportunity to adduce further evidence to substantiate her case on both the grounds. The respondent was also given the liberty to adduce further evidence, if so desired by him.”
As it turned out, the Division Bench then discloses in para 4 that, “After remand, PWs.2 and 3 were examined and Ext.A4 marked on the side of the petitioner/wife. No additional oral or documentary evidence was adduced by the respondent/husband. As per judgment dated 25/08/2021, the Family Court, Ettumanoor, allowed the petition and the marriage between the petitioner and the respondent solemnized on 17/01/2009 has been dissolved by a decree of dissolution of marriage, by accepting the ground under Section 10(vii), that is, non-consummation of marriage. However, the court below rejected the allegation of cruelty raised by the petitioner under Section 10(x) of the Act. Aggrieved by the decree of dissolution of marriage granted under Section 10(vii), the respondent/ husband has come up in appeal.”
While citing the relevant case law, the Bench notes in para 34 that, “In Gananth Pattnaik v. State of Orissa [(2002) 2 SCC 619], it has been held that the concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. “Cruelty” for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.”
While citing yet another relevant case law, the Division Bench then mentions in para 35 that, “In Parveen Mehta v. Inderjit Mehta [(2002) 5 SCC 706], it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty, it would not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”
While citing yet another relevant case law, the Bench then states in para 36 that, “In Chetan Dass v. Kamla Devi [(2001) 4 SCC 250], it has been observed that matrimonial matters have to be basically decided on its facts. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general.”
Most significantly, what constitutes the cornerstone of this notable judgment is then encapsulated in para 37 wherein the Division Bench then points out explicitly, elegantly and eloquently in para 37 that, “Again in A. Jaychandra v. Aneel Kumar [(2005) 2 SCC 22] it has been held that, the question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of a spouse, the same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view the evidence in matrimonial disputes has to be considered. 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, 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 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.”
Equally significant is what is then laid bare in para 38 wherein it is enunciated most forthrightly that, “In the case on hand, the pleadings, the testimony of the petitioner and her mother coupled with Ext.A2, do make out a case of cruelty as explained in the aforesaid decisions. It is true that there is only the testimony of PW1 and her mother to substantiate the case alleged. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as provided by Section 134 of the Evidence Act. [See: Laxmibai v. Bhagwanthbuva AIR 2013 SC 1204]. On an overall analysis of the pleadings, the testimony of PW1 and PW2 coupled with Ext.A2, probabilises and substantiates the case of the petitioner. Both the petitioner and respondent are MCA Graduates. In the petition it is stated that the petitioner had completed her MCA from TKM College of Engineering, Kollam and that she has been working as a Software Engineer in a Company in Thiruvananthapuram. According to her, the respondent is also an MCA from Marian College, Kuttikanam, and that he has been working in a company in Bangalore. The petitioner cannot be expected to put up with such attitude and behaviour of the respondent whose outlook/perspective is quite evident from Ext.A2. The marriage between the parties was solemnized on 17/01/2009. The petition for dissolution of marriage is seen filed on 02/11/2009. Going by the materials on record, the couple seems to have been together for hardly a month or so. Almost 14 years have elapsed since the filing of the present petition. The couple still continue to be separated and are hotly contesting the matter. The parties were quite young, i.e., the petitioner was 26 years old and the respondent 29 years, when their marriage was solemnized and later when the original petition was moved. No intimacy or emotional bond seems to have developed between the parties pursuant to the marriage. The conduct of the respondent/husband can, by no stretch of imagination, be said to be the outcome of the normal “wear and tear” of family life. The parties cohabited for quite a short period of time and so there could hardly be any “wear and tear” of marriage. The marriage does not seem to have been consummated too, though the evidence does not satisfy the ground under Section 10(vii) of the Act. The constant and repeated taunts of the respondent/husband that the petitioner is not a wife of his expectations; the comparisons with other women etc. would certainly be mental cruelty which a wife cannot be expected to put up with.”
Finally, the Bench then concludes by holding in para 42 that, “Point no.(v): In the result, the appeal is dismissed. The decree granted by the court below for dissolution of marriage whereby the marriage between the petitioner and the respondent solemnized on 17/01/2009 stands dissolved, shall stand modified as one under Section 10(x) of the Act. In the light of the order dated 15/03/2021 in W.P.(C)No.6687 of 2017, Registry is directed to mask the name and address of the parties in the cause title of this judgment. Interlocutory applications, if any pending, shall stand closed.”
In a nutshell, we thus see that the appeal by the husband is dismissed. The Court very rightly pointed out in para 40 that, “As held in Naveen Kohli (Supra), undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, the matrimonial bond between the parties seems to be beyond repair. The marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond. Point answered accordingly.” We thus see that the Kerala High Court very rightly held that the husband’s repeated taunts and comparison with other women would qualify as mental cruelty and so accordingly divorce was thus granted. No denying it!