w w w . L a w y e r S e r v i c e s . i n

G. Binu Raj v/s R. Sandhya Lakshmi

Company & Directors' Information:- RAJ CORPORATION LIMITED [Active] CIN = U74900UP2008PLC035742

Company & Directors' Information:- RAJ COMPANY PRIVATE LIMITED [Active] CIN = U74999PB1949PTC000515

Company & Directors' Information:- G RAJ & COMPANY PVT LTD [Active] CIN = U67120WB1993PTC058140

Company & Directors' Information:- R M RAJ AND CO PRIVATE LIMITED [Strike Off] CIN = U99999DL1952PTC002146

Company & Directors' Information:- RAJ & RAJ PVT. LTD. [Active] CIN = U51109WB1991PTC052055

Company & Directors' Information:- LAKSHMI CORPORATION LIMITED [Dissolved] CIN = U99999MH1942PTC003739

    Mat. Appeal. No. 833 of 2015

    Decided On, 18 May 2020

    At, High Court of Kerala


    For the Appellant: Geo Paul, S. Ashok Kumar, Jerry Varghese, Lenin P. Sukumaran, C.R. Pramod, P. Radhika Rajasekharan, Sanu Mathew, Advocates. For the Respondent: R1, T.M. Raman Kartha, Advocate.

Judgment Text

Dias, J.

1. The appellant had filed O.P.No.78/2011 before the Family Court, Ernakulam, seeking a decree of divorce under Section 13 (i-a) of the Hindu Marriage Act, 1955, to dissolve his marriage with the respondent in this appeal.

2. The compendious facts giving rise to the present appeal are as follows: The appellant was married to the respondent on 24.10.2004. After the engagement ceremony, the respondent desired to withdraw from the alliance. The respondent was moody on the wedding day. Right from the initial days of marriage, the respondent was not cordial. She stayed aloof from the appellant and his parents. The respondent was not interested in having physical relationship. She gave lame excuses and avoided the appellant. Within six months after the marriage, the respondent got transferred to the Desom Branch of the Bank. The Branch was hardly 150 meters from the appellant's residence. The respondent used to leave home by 8.45 a.m. and return by 9.00 p.m. After returning from work, she used to sit idle till 11 p.m. As the couple was issueless, even after two years of marriage, they consulted a Gynecologist. The respondent refused treatment, apprehending financial loss, and potential failure of the treatment. In November 2009, the appellant appraised the respondent's parents about the strain in their relationship. The respondent accused the appellant of interfering in her work. The respondent's father advised her to stay at the appellant’s place like a paying guest. The respondent yelled at the appellant in the presence of her parents, which caused mental agony and anguish to the appellant. From March 2010, the respondent stopped taking food from the marital home. On 23.3.2010, the respondent’s brother and cousin brother went to the matrimonial home and took the respondent and her belongings and left. A few days before the incident, the respondent had removed all her gold ornaments from the bank locker at SBT, Aluva. The respondent ignored the appellant in public places. The respondent informed the appellant that she did not desire to continue with the marriage. The respondent's ruthless attitude has caused severe mental, physical, emotional, and traumatic problems to the appellant. The marriage is irretrievably broken with no chance of a rapprochement. The appellant had issued a lawyer notice to the respondent seeking to dissolve their marriage on mutual consent, but the respondent has not bothered to send a reply. The respondent has treated the appellant with matrimonial cruelty. Hence the appellant is entitled to a decree of divorce.

3. The respondent refuted the allegations in the original petition. She filed a written objection, inter alia, contending as follows: After the engagement ceremony, the appellant made sarcastic comments about the respondent’s physical appearance. He wanted her to meet a cosmetic expert of his choice, which disappointed her. The appellant is a selfish person. He insisted the respondent to take leave for trivial reasons; if not, he used to abuse her in vituperative language. The respondent maintained utmost love and affection for the appellant, but he wanted her to act like a Hollywood porn star during coitus, which was not palatable to her. The appellant was only interested in the respondent's monetary benefits, and his greediness was horrible. He was not fit enough to satisfy the biological needs of the respondent. Being a responsible Bank Officer, she was bound to complete her work within a time frame, which compelled her to work after office hours. The respondent’s life in the marital home was miserable. The appellant and his family members exerted pressure on the respondent to do the household chores. She was not given any consideration in the matrimonial home. She begged to the appellant to shift from his parental home to a rented house, but he was not ready. The appellant's mother used to question her in a suspicious way, causing embarrassment to her. The appellant's parents behaved like watchdogs. She had to do all the household work from 9 p.m. till midnight. The appellant used to abuse and assault the respondent for cavil issues. He had poured sambar and grape juice on her face. He injured her in the presence of his parents. She was driven out of the marital home. It was due to the uncivilised behaviour of the appellant that the respondent's father's health deteriorated, and he passed away. She prayed that the original petition be dismissed.

4. The appellant and two witnesses were examined as PWs 1 to 3, and Exts.A1 to A5 (a) were marked through them. The respondent and two witnesses were examined as RWs 1 to 3.

5. The Family Court, after evaluating the pleadings and evidence, dismissed the original petition. The Family Court held that the appellant had not produced the marriage certificate, to prove the marriage, as provided under Rule 4 of the Hindu Marriage (Kerala) Rules, 1963 (for brevity, referred to as “Rules”) and the appellant failed to prove that the respondent had treated him with cruelty.

6. Being aggrieved by the dismissal of the original petition, this Mat. Appeal is filed.

7. Heard Smt.P.Radhika Rajasekharan, the learned counsel for the appellant and Sri.T.M.Raman Kartha, the learned counsel for the respondent.

8. The learned counsel for the appellant argued that the Family Court had gone wrong in dismissing the original petition. According to her, the Family Court has not correctly appreciated the pleadings and evidence on record. The allegations pleaded by the respondent in the written objection are without any foundation or proof. The unsubstantiated allegations in the written objection by itself constitute cruelty, entitling the appellant for a decree of divorce. Additionally, the Family Court has arrived at a finding that there is no marriage, which was unwarranted. She prayed that the appeal be allowed.

9. The learned counsel for the respondent argued that the Family Court has rightly passed the impugned judgment. Irretrievable break down of marriage is not a ground to dissolve a marriage under the Hindu Marriage Act. The respondent is even now ready and willing to resume cohabitation with the appellant. Hence the appeal may be dismissed. 10. We have re-appreciated the pleadings and the oral testimonies of the witnesses and the documentary evidence.

11. The questions that emerge for consideration in this appeal are:

(i) Whether the production of the marriage certificate, as provided under Rule 4 of Hindu Marriage (Kerala) Rules, 1963, is mandatory to maintain an original petition filed under the Hindu Marriage Act, 1955.

(ii) Whether the appellant is entitled to a decree of divorce on the ground that the respondent has treated him with cruelty, as provided under Section 13 (1) (ia) of the Hindu Marriage Act, 1955.

12. We are surprised by the finding of the Family Court, that there is no valid marriage between the couple for want of production of the marriage certificate. The specific case of the appellant was that his marriage with the respondent was solemnized on 24.10.2004 at the Thevalakkara Major Devi Temple, as per Hindu religious rites. The respondent admitted the said assertion. Nevertheless, the Family Court held due to the nonproduction of the marriage certificate, which is mandatory under Rule 4 (i) of the Rules, the admission made by the respondent is insufficient to prove the marriage, and that the Court was not satisfied that the marriage was solemnised.

13. It is rudimentary, as provided under Section 58 of the Evidence Act, 1872, that admitted facts need not be proved.

14. True, Rule 4 (i) of the Rules prescribe that every petition filed under the Hindu Marriage Act, 1955, has to be accompanied by a certificate extract or marriage certificate. In its absence, an affidavit, to the effect that the petitioner has married the respondent, has to be filed.

15. This Court in Rajilal v. State of Kerala [ II (2010) DMC 877 (DB)] held as follows:

“13. There is no stipulation either in the Hindu Marriage Act or the Rules framed there under that the petitioners in a petition under Section 13B of the Hindu Marriage Act should compulsorily produce the Marriage Certificate. There is no such stipulation in the Kerala Registration of Marriages (Common) Rules, 2008 also. It is submitted that Rule 3 (sic) of the Hindu Marriage (Kerala) Rules, 1963 framed by this Court stipulates that every petition filed under Hindu Marriage Act shall be accompanied by a certified extract from the Hindu Marriage Register maintained under Section 8 of the Act and in the absence of the same, an affidavit to the effect that the petitioner was married to the respondent. The said Rule does not stipulate that the production of marriage certificate is compulsory. The petitioners have filed affidavit to the effect that they were married as per Hindu customary law and that the marriage is not registered. As such the Court below has no jurisdiction to insist for the marriage registration certificate as a pre-condition for entertaining the petition filed by the petitioners.”

16. In light of the principles in Rajilal (supra), we hold that Rule 4 (i) of the Rules is only directory and not mandatory. At any rate, after having entertained the original petition without a marriage certificate/affidavit, the Family Court ought not to have non-suited the appellant on the above ground, but granted him an opportunity to produce the certificate or file an affidavit, as provided under the Proviso to Section 58 of the Evidence Act, 1872. Therefore, we set aside the finding of the Family Court, that there is no valid marriage between the appellant and the respondent. Accordingly, we proceed to decide the appeal on the second question, whether the appellant is entitled to a decree of divorce.

17. Section 13 (1) (ia) of the Hindu Marriage Act, 1955, Act reads as under:

“13.Divorce—(1) Any marriage solemnized, 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 xxxxx xxxx; or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

18. In V.Bhagat v. D.Bhagat [(1994) 1 SCC 337], the Honourable Supreme Court, while examining the concept of mental cruelty, observed as follows:

“16. Mental cruelty in Section 13(1) (ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

19. In Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], a three-Judge Bench of the Honourable Supreme Court while considering Section 13(1)(ia) of the Act laid down certain guidelines. The ultimate conclusions are relevant, which reads as under:

“98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No Court in our considered view should even attempt to give a comprehensive definition of mental cruelty.

99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc., etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice-versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

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 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-today life would not be adequate for grant of divorce on the ground of mental cruelty.

(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 like situations, it may lead to mental cruelty.”

20. It is in evidence that immediately after the engagement, differences arose between the couple and that the respondent wanted to withdraw from the proposal. The differences continued till the date of their separation. This proves that, the marital relationship was not filled with sunshine or daffodils.

21. The core argument of the learned counsel for the appellant was that, the unfounded allegations and unsavory barbs pleaded by the respondent in the written objection and her oral testimony are without any foundation or proof, which tantamount to cruelty, entitling the appellant for a decree of divorce. She relied on the decisions of the Hon'ble Supreme Court in Naveen Kohli v. Neelu Kohli [(2006) 4 SCC 558] and Samar Ghosh (supra) and that of this Court in Latha Kunjamma.S v. K.Anil Kumar [2008 (2) KHC 580].

22. Ongoing through paragraph 5 of the written objection, it is alleged that the appellant wanted the respondent to act like a Hollywood porn star, which she was not amenable. But in the same breath, she has pleaded that the appellant was not able to satisfy her biological needs. The respondent (RW1) in her cross-examination admitted that she had a normal sexual relationship with the appellant. She has no case that she was tortured during the copulation. Similarly, the allegations that the appellant used to assault the respondent for trivial reasons; that he poured grape juice and sambar on her face; that her father died due to the cruelty that was inflicted on her, etc., are all grave allegations, which have not been proved by the respondent.

23. Further, the respondent also deposed that the appellant’s brother in law had misappropriated money while employed abroad and was incarcerated and that the respondent paid five lakh rupees to get him released. This allegation has not been pleaded by the respondent in her written objection. Thus, we find force in the argument of the learned counsel for the appellant that the respondent has in her pleadings and oral testimony, without any foundation or basis, made unwarranted insinuations against the appellant.

24. The Hon’ble Supreme Court in Vijaykumar Ramchandra Bhatev. Neela Vijaykumar Bhat AIR 2003 SC 2462], has opined that a conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement, cannot be so lightly ignored or brushed aside.

25. The respondent's plea that she desired to continue with the marriage with the appellant, according to us, is without any bona fides. If so, she would have filed an original petition seeking a decree for restitution of conjugal rights and avoided imputing vitriolic accusations against the appellant and his parents.

26. On analysing the evidence, it is found that the respondent used to leave for work in the morning and return home only by 8 p.m. She had a complaint that the appellant's mother used to make her do all the work at home. The appellant's mother, who gave evidence as PW2, had categorically testified that she used to do all the household chores and that the respondent used to keep away from her and her husband. The allegation in the written objection that the respondent used to wash the plates of all the family members, do all the household work, and then go to bed only by midnight cannot be believed for want of any proof. All the more reason is the admission in the written objection that the respondent begged the appellant to shift to a rented house, but he was not ready to leave his aged parents.

27. The Honourable Supreme Court in Narendra v. K.Meena [III (2016) DMC 429 (SC)] observed as follows:

“11. The Respondent wife wanted the Appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the Appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.”

(emphasis added)

28. This Court in Sidheeque v. Haseena [2018 KHC 4650] has held that the withdrawal of the wife from the society of the husband, on the demand of separate residence to avoid the members of the husband's family is an act of cruelty.

29. The admission made by the respondent that she wanted a separate residence substantiates that she had an acrimonious relationship with the appellant and his family members. The appellant and his mother – PWs 1 and 2, have categorically deposed in this regard.

30. It is also on record that the couple went for infertility treatment. Even though the Gynecologist advised the couple to undergo IVF treatment, the respondent stopped the treatment within a short period. It is an undisputed fact that on 23.3.2010, the respondent's brother and cousin brother took away the respondent and her belongings from the appellant’s house. The respondent continued to work in the same branch, hardly 150 meters from the appellant’s house. Despite going for work daily, she did not show the courtesy to visit the appellant or his parents. The animus of the respondent to snap the marital tie is apparent, which stands further substantiated by the respondent removing all her gold ornaments from the Bank locker at SBT, Aluva, without the consent or k

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nowledge of the appellant. Admittedly, there has been no cohabitation between the couple after 23.3.2010. Although RWs 2 and 3 were examined, they are not eye-witnesses to any incident. We find a ring of truth in the oral testimonies of PWs 1 and 2, which inspires confidence in us. 31. On an overall appreciation of the pleadings and evidence in an apposite manner, we find that the appellant and the respondent were at loggerheads right from the days of their engagement. Regardless of the subsistence of the marriage for six years, the couple was unable to patch up their differences. The marriage is shattered and has become a deadwood. The allegations and counter-allegations leveled against each other establish that there is no further chance of a rapprochement. The appellant has pleaded and proved specific instances of cruelty meted out on him by the respondent, which have been discussed in the preceding paragraphs. The above-narrated instances of cruelty squarely fall within illustrations Nos. (i) to (viii), (x) and (xiv) in Samar Ghosh v.Jaya Ghosh (supra); that the unwarranted insinuations made by the respondent in her written objection and oral testimony, without any foundation also constitutes cruelty as laid down in Vijaykumar Ramchandra Bhate v.NeelaVijaykumar Bhat (supra); and that the insistence by the respondent for a separate residence constitutes cruelty as laid down in Narendra v. K.Meena (supra). Therefore, on a cumulative appreciation of the instances of cruelty, we hold that the respondent has treated the appellant with cruelty as provided under Section 13 (ia) of the Hindu Marriage Act, entitling him for a decree of divorce. 32. Before we conclude, we reminisce a passage from N.G. Dastane v. S. Dastane [(1975) 3 SCR 967], where the Honourable Supreme Court has observed thus: “The Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial Court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures.” 33. In the above discussed legal and factual background, the inevitable conclusion is that the appellant is entitled to a decree of divorce, and we accordingly allow this Mat. Appeal and set aside the impugned judgment passed by the Family Court. Consequentially, we allow O.P. No.10/2015 and grant the appellant a decree of divorce, dissolving his marriage with the respondent.