The testimony of PW4 Doctor is to the effect that, the
appellant was suffering from impulse control disorder which means,
not able to control anger, and exhibiting anger in an excessive
manner, which may adversely affect marital life. The persons
suffering from impulse control disorder may be assaultive in nature
and may throw things or may exhibit homicidal or suicidal tendency
as stated by the doctor. The doctor further stated that there is no
complete cure for this illness, but it could be controlled under
proper medication. Even according to the appellant, after
12.11.2007, she had not continued the treatment. The allegations
of arrogance, and abusive and assaultive nature of the appellant,
spoken to by her husband and children, get corroboration from
Ext.A1 medical report, and the testimony of PW4 Doctor. {Para 18}
19. One may suffer mental stress or strain due to very many
reasons. But, not taking treatment for the same in order to bring
out a peaceful and harmonious family atmosphere, also may have to be counted as cruelty to the persons at the receiving end. The appellant has no case that, she had any difficulty to continue the treatment, but according to her, she had no psychiatric problem and so she discontinued the treatment. The doctor gave testimony to the effect that, the impulse control disorder, will definitely affect a normal family life. If proper treatment is given, it can be brought under control.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat. Appeal No.1119 of 2015
MARY MARGRET Vs JOS P THOMAS
PRESENT
MR. JUSTICE A.MUHAMED MUSTAQUE
&
MRS. JUSTICE SOPHY THOMAS
Dated this the 21st day of January, 2022
Sophy Thomas, J.
“I take you to be my wife/husband, to have
and to hold, from this day forward, for better,
for worse, for richer, for poorer, in sickness
and in health, to love and to cherish, till
death us do part, according to God's Holy law,
in the presence of God, I make this vow.”
In a Christian marriage which is a holy sacrament, the couple
enters into a matrimonial covenant by taking this beautiful and
meaningful wedding vow, on the fervent hope that it is a
partnership of love and life for the whole of their life till death
separates them. But, sometimes their beautiful dreams, hopes and
aspirations stumble in bitter realities of life, and incompatibilities
compel them to part their ways, even when the wedding vow taken
by them in the name of God, stares at them.
2. Here is a case where the appellant and respondent, a
Christian couple, got married as per the Christian rites and
ceremonies taking the wedding vow on 23.10.1988. Both of them
are well educated and they hail from respectable and educated
families. In their wedlock, two girl children were born. The husband,
who is an Engineer cum Yoga Trainer filed O.P.No.1339 of 2009,
before the Family Court, Ernakulam to dissolve their marriage under
Section 10 of the Divorce Act, alleging cruelties, both mental and
physical, and desertion, from the part of the wife, who is a Post
Graduate.
3. The husband was alleging that, from the very inception of
marriage, the wife was showing behavioural disorders. She was
intolerable even on minor domestic problems and she was abusive
and assaultive in nature. She did not give proper attention to the
children. She often threatened the husband that she would slice his
throat and even strangulated him during sleep. Whenever he did
not accede to her demand for unnatural sex, she threatened to slice
away his penis. She often threatened him with suicide, and once
she jumped out of a running car. She went out of the house during
night hours without informing the husband, and there was occasion
to bring her from street during midnight. Though she was taken to
various psychologists and psychiatrists, she was not co-operating
with the treatment. In July 2005, she returned to her paternal
house and thereafter, she never came back to live with her husband
and children. The two girl children were taken care of by the
husband and his mother. She was not bothered about the girl
children, who were school going children, when she left her
matrimonial home. When the husband was admitted in hospital due
to heart attack, she did not care, even to visit him in hospital. She
was extending her cruelties to the age old mother-in-law also. As it
was impossible for the husband to continue his marital relationship
with her, due to her cruel nature and attitude and also because of
desertion, he filed the above O.P for dissolution of his marriage.
4. The wife was contending that the grounds alleged by the
husband for divorce were absolutely false, and in fact, she was illtreated
by the husband and his mother. She was married while she
was doing her post graduation, and she was not even provided food
or clothing by the husband. Whenever the torture became
unbearable, she went back to her paternal house. But the husband
and his mother were attempting to depict her as a mental patient.
She was ready to attend counselling and to undergo treatment to
save her family life. The husband was not ready to do anything to
make his wife happy, and in fact, he was treating her as a slave.
The bitter experiences in life, put her under great mental stress and
strain. The husband also was advised for treatment, but he was not
willing. She was never abusive and she never assaulted him. The
threat of homicide and suicide are only false allegations. She was
willing to lead a normal family life with the husband, but to prevent
her from entering his house, his mother filed an injunction suit.
According to her, there is no ground to dissolve their marriage, and
still she is intending to live with her husband and children.
5. The Family Court formulated necessary issues and the
parties were permitted to adduce evidence. PWs 1 to 4 were
examined and Exts.A1 to A3 were marked from the side of the
petitioner-husband. RW1 was examined and Exts.B1 and B2 were
marked from the side of the respondent-wife. On analysing the
facts and evidence, the Family Court found that the petitionerhusband
could establish the grounds of cruelty and desertion
against the respondent-wife, and so, the O.P was decreed vide
judgment dated 20.08.2015, dissolving their marriage.
6. Challenging the said judgment and decree, the wife has
come up in this appeal alleging that, by the impugned judgment,
the husband was given an incentive for his own cruelty and
desertion. According to her, the husband manipulated and
fabricated false evidence of impulse control disorder for the wife,
and influenced and tutored the children to give testimony against
their mother. The Family Court ought to have found that she had
never intended to terminate her matrimonial life with the husband.
In fact, she was prevented from entering her matrimonial home, by
an injunction suit filed by the mother-in-law.
7. Now let us have a re-appraisal of the entire facts and
evidence, in the light of the grounds urged by the appellant to assail
the impugned judgment and decree.
8. The wife and husband shall be referred as the appellant
and respondent respectively, hereinafter.
9. The respondent was granted a decree of divorce on the
ground of cruelty and desertion. Let us discuss these grounds one
by one.
10. In matrimonial life, cruelty can be defined in many ways.
It has many perspectives which depend upon the socio- economic
status and circumstances of parties to the marriage. It varies from
person to person. It also varies with time, place, economic status
and other circumstances. Cruelty can be physical and mental.
Physical cruelty provides more of a direct evidence, that it can be
perceptible when compared to mental cruelty. Mental cruelty can
be drawn from the facts and circumstances of the case, whereas
physical cruelty can be drawn from the conduct of one spouse
towards other spouse which endangers the other spouse's physical
health. It is true that, 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. The married life should be reviewed as a whole, and a few
isolated instances over a period of years will not amount to cruelty.
11. The Apex Court in Samar Ghosh vs. Jaya Ghosh
((2007) 4 SCC 511) elaborately discussed the nature and scope of
mental cruelty as a ground of divorce. It was held therein, in
paragraph 101, as follows:
“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 to day
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 sterilization 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.
12. In the case in hand, the respondent is alleging physical as
well as mental cruelty from the part of wife. He was alleging that
the appellant used to get irritated over minor domestic issues, and
on one such occasion, since he could not heed to her request for
purchasing a nighty from a shop, she bit off a portion of his
shoulder muscle, and the bite mark is still there on his shoulder.
His mother had to call the Police to manage that situation. The
appellant also is admitting the bite mark on the shoulder muscle of
the husband, but, according to her, the elder child bit on his
shoulder leaving the bite mark. PW2, the elder child of the
respondent, gave testimony denying the allegation made by her
mother.
13. The respondent deposed before the Family Court that, the
appellant had threatened to slice his throat during sleep, and she
even threatened to slice his penis whenever he refused her demand
for unnatural sex. She was treating the children also in a cruel
manner, and she abused and assaulted them for silly things. She
strangulated him many a times during sleep. She often threatened
him with suicide and once she tried to jump out of a moving car.
14. The allegations of abusive and assaultive nature of the
appellant is fully supported by her own daughters, PWs 2 and 3.
Both of them gave testimony to the effect that the appellant-mother
always abused and insulted them and she was always fighting with
their father. She went back to her paternal house leaving them at
the mercy of their father and grandmother, while they were school
going children. They informed the appellant when they became
biologically mature, but she did not care to come, even to see
them. They have heard their mother threatening to kill their father
or to kill herself. Both the children were categoric in their
statement that, violence was always initiated by the mother, and
she verbally and physically abused their father. She used to throw
everything at her reach, and they were victims of the violent
behaviour of their mother.
15. The respondent has got a case that, the appellant was
having some behavioural problems and she was taken to various
psychologists and psychiatrists for treatment. RW1, the wife,
admitted before court that she had taken treatment from
psychiatrists. But, according to her, she had no mental problem but
only mental stress and strain, due to the matrimonial cruelties she
was subjected to, by her husband and mother-in-law.
16. The appellant admitted that she had gone to PW4
Dr.Rajiv, a Psychiatrist attached to PVS hospital for treatment. She
is admitting that she was taken to Renewal Centre, Kaloor where
she had consulted Dr.Sr.Pious who was also a Psychiatrist. She is
admitting that the treatment by Dr.Rajiv could not be completed,
because the respondent did not co-operate. Thereafter, no
treatment was taken by her, and according to her, she did not go for
further treatment as she had no psychiatric problems. She would
say that, due to family problems, she was having some tension, and
the medicines she had taken, were only for reducing her tension.
17. PW4 is Dr.Rajiv, a Psychiatrist who was working in PVS
hospital. Ext.A1 treatment records of the appellant for the period
19.06.2007 to 12.11.2007 was proved through him. In Ext.A1, it is
clearly mentioned that, earlier she had been under the treatment of
Dr.Venugopal. She was brought to the doctor with the history of
“always fights over trivial matter, loss of temper and throw things”.
There was history of family discord and separation from family for
past two years. The doctor prescribed medicines for her and there
was regular review till 12.11.2007, as seen from Ext.A1. That
document further shows that she was accompanied by her motherin-
law on 12.09.2007.
18. The testimony of PW4 Doctor is to the effect that, the
appellant was suffering from impulse control disorder which means,
not able to control anger, and exhibiting anger in an excessive
manner, which may adversely affect marital life. The persons
suffering from impulse control disorder may be assaultive in nature
and may throw things or may exhibit homicidal or suicidal tendency
as stated by the doctor. The doctor further stated that there is no
complete cure for this illness, but it could be controlled under
proper medication. Even according to the appellant, after
12.11.2007, she had not continued the treatment. The allegations
of arrogance, and abusive and assaultive nature of the appellant,
spoken to by her husband and children, get corroboration from
Ext.A1 medical report, and the testimony of PW4 Doctor.
19. One may suffer mental stress or strain due to very many
reasons. But, not taking treatment for the same in order to bring
out a peaceful and harmonious family atmosphere, also may have
to be counted as cruelty to the persons at the receiving end. The
appellant has no case that, she had any difficulty to continue the
treatment, but according to her, she had no psychiatric problem and
so she discontinued the treatment. The doctor gave testimony to
the effect that, the impulse control disorder, will definitely affect a
normal family life. If proper treatment is given, it can be brought
under control.
20. During re-examination of PW4 Doctor, learned counsel for
the appellant suggested that, persons suffering from
hyperthyroidism may also exhibit symptoms of similar nature, and
the doctor answered it in the affirmative. But, the appellant did not
have a case in her objection that she was suffering from
hyperthyroidism, and no scrap of paper has been produced by her,
to substantiate that allegation. According to her, mental stress and
strain was caused due to family problems and she had taken
treatment to reduce tension. But, her own testimony, coupled with
the testimony of PW1 and Ext.A1 document, will show that she was
having some behavioural disorders which created troubles in her
family life and she was not continuing her treatment, so as to lead a
normal family life with her husband and children.
21. The appellant herself admitted before court that the
husband was taking her to college while she was doing postgraduation, and she was taken for foreign trips and she was also
gifted with gold ornaments, and even then she was alleging that
she was treated like a slave. Learned counsel for the respondent
would contend that, making bald allegations against the husband,
also will amount to cruelty.
22. PWs 2 and 3, the daughters of the appellant, are of the
view that, if the appellant is permitted to continue her matrimonial
life with the respondent, they will lose their father. PW3, the
younger daughter, was definite in her statement that, it is better to
be the children of divorced parents, rather than children of parents
who murdered the father. The mother went back to her paternal
house in the year 2005, while they were school going children, and
she did not come back, even when their father was hospitalised due
to heart attack.
23. In Sobha Rani vs. Madhukar Reddi ((1988) 1 SCC
105), the Apex Court examined the concept of cruelty and held that
the word 'cruelty' has not been defined in the Hindu Marriage Act.
It has been used in Section 13(1)(i)(a) of the Act in the context of
human conduct or behaviour in relation to or in respect of
matrimonial duties or obligations. It is a course of conduct of one
which is adversely affecting the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical, it is a question
of fact and degree. If it is mental, the enquiry must begin as to the
nature of the cruel treatment and then as to the impact of such
treatment on the mind of the spouse. Whether it caused
reasonable apprehension that it would be harmful or injurious to
live with the other, ultimately, is a matter of inference to be drawn
by taking into account the nature of the conduct and its effect on
the complaining spouse.
24. In Narayan Ganesh Dastane vs. Sucheta Narayan
Dastane ((1975) 2 SCC 326), the Apex Court observed that, the
enquiry therefore has to be whether the conduct charged as cruelty
is of such a character as to cause in the mind of the petitioner a
reasonable apprehension that it will be harmful or injurious for him
to live with the respondent.
25. In V.Bhagat vs. D.Bhagat (Mrs) ((1994) 1 SCC 337), it
is observed that “Mental cruelty in S. 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”.
26. In Samar Ghosh's case (supra), the Apex Court observed
that “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 strait jacket
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”. There cannot be any comprehensive definition of
the concept of 'mental cruelty' within which all kinds of cases of
mental cruelty can be covered. The cruelty, whether it be mental or
physical, is a question of fact depending on the evidence in each
case. No uniform standard can be laid down to determine whether
an act would amount to cruelty or not. An act which is tolerable to
one may be intolerable to another.
27. This Court, in A:husband vs. B: Wife (2010 (4) KLT 434)
held that the 'nature of cruelty which would entitle a spouse in
matrimony for divorce must certainly be identical in all religions.
Law cannot recognise different varieties of cruelty as Hindu cruelty,
Muslim cruelty, Christian cruelty or secular cruelty to justify a
decree for divorce. The mere fact that Hindu Marriage Act and the
Special Marriage Act refer to cruelty without any rider or
explanation or the fact that the Divorce Act and the Dissolution of
Muslim Marriage Act give indication of the nature of matrimonial
cruelty that ought to be established, cannot justify the conclusion
that the nature of matrimonial cruelty which would entitle the
spouses for divorce is different under different personal laws. It
would be absolutely safe to draw inspiration from Art.44 of the
Constitution also to jump to the conclusion that nature of cruelty
justifying a decree for divorce cannot be different under different
personal laws. To our mind, it appears that matrimonial cruelty
must have a uniform definition or conceptualisation to justify the
founding of a decree for divorce. Under S.10(1)(x), the cruelty must
be such as to cause reasonable apprehension in the mind of the
petitioner, spouse that it would be harmful or injurious for the
petitioner to live with the respondent. The expression harmful or
injurious cannot be limited to physical harm or injury. Anything that
would hinder the ability of the spouse to blossom into his/ her
fullness and to enjoy life in matrimony must be held to fall within
the sweep of S.10(1)(x) of the Divorce Act. Cruelty which is not
defined in S.13(1)(1a) of the Hindu Marriage Act and S.27(1) of the
Special Marriage Act and cruelty which is explained in S.2(viii) of
the Dissolution of Muslim Marriage Act and S.10(1)(x) of the
Divorce Act must all take inspiration from such understanding of
matrimonial cruelty. We discard the theory that the concept of
matrimonial cruelty to entitle a spouse for divorce can be dissimilar
and different for persons belonging to different religious faiths
merely because different words are used in the relevant personal
law statutes'.
28. In the case in hand, the husband is seeking divorce on
the ground of matrimonial cruelty envisaged under Section 10(1)
(x) of the Divorce Act, 1869. From the available facts and
evidence, he has amply proved that the appellant has treated him
with such cruelty as to cause reasonable apprehension in his mind
that it would be harmful or injurious to him to live with the
appellant. His children also are so anxious to save the life of their
father and according to them, if the appellant and respondent are
again put together, they will lose their father. The facts and
evidence on board are sufficient to show that the nature and
behaviour of the appellant towards the respondent was sufficient
enough to cause reasonable apprehension in his mind that
continuance of matrimonial life with the appellant was harmful and
injurious to his life.
29. Regarding the desertion alleged by the husband, the
appellant herself admitted before court that, in July 2005, she went
back to her paternal house. She has no case that before her
mother-in-law filed injunction suit against her, she preferred any
complaints or petitions before any authority seeking restitution of
conjugal rights or even for getting custody of her minor girl
children. She has no case that, when she left her matrimonial
home, she was prevented from taking her children with her. So,
obviously, she left her matrimonial home even without caring her
little girl children. PWs 2 and 3, the children would say that, even
when she was informed about their biological maturity, she did not
care to see them. In the year 2005, the respondent was
hospitalised due to heart attack and then also, the appellant did not
turn up. Though the appellant contended that, during the period
2005-2009 occasionally she reached her matrimonial home and
stayed with her husband and children, no evidence is forthcoming
to support that fact.
30. PWs 1 to 3 contended that in the year 2009, when the
appellant and her parents tried to make a forcible entry in the
house of her mother-in-law, the mother-in-law filed a civil suit and
obtained injunction. It is true that the injunction was later vacated
and subsequently the mother-in-law not pressed that suit. Only
after the civil suit, the appellant filed Ext.A2 complaint under the
Domestic Violence Act for getting residence order in the shared
household. In Ext.A1 medical report also, the doctor has noted that
when he examined the patient on 19.06.2007, the appellant was
living separated from her family, for the past two years. So, that
also corroborates the testimony of PWs 1 to 3 that she deserted her
husband and children in the year 2005. There is nothing to show
that after 2005, the appellant and respondent lived together as
husband and wife, except the fact that she lodged Ext.A2 complaint
in the year 2009 for a residence order. If she was forcibly sent
away from her matrimonial home, and if she wanted to stay with
her husband and children, she need not have waited for four years
to file a complaint. Admittedly, she did not file any petition for
restitution of conjugal rights or even to get custody of her children.
If her case that she was ill-treated by her husband and mother-inlaw,
and so she often went back to her paternal home is true,
definitely, she should have examined her parents or family
members, who had first hand information about their family life.
But no witnesses were examined by the appellant to substantiate
her contentions. All these facts lead to the irresistible conclusion
that the appellant went back to her paternal house on her own, in
the year 2005 and thereafter she never turned up to live with her
husband and children.
31. As observed by the Apex Court in Samar Ghosh's case
(supra), 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.
32. On an overall consideration of the factual aspects and
evidence would prove that the appellant was treating her husband
with cruelty both physical and mental, and in the year 2005, she
deserted him.
33. There is no merit in preserving intact a marriage, when
the marital tie becomes injurious to the parties. When there is no
rose, and only thorns left, and there is no scope for the plant to
sprout again, there is no meaning in watering the same, knowing
that it is dead for ever.
34. For the last more than 16 years, the parties are living
separate and their marriage is to be treated as a deadwood where
we could not see any signs of life. Even during the appellate stage,
we tried for a reconciliation. But we could not succeed.
35. We are of the firm view that the appellant could not
succeed in assailing the impugned judgment and decree on the
grounds alleged by her. Whereas the respondent could prove that
the appellant treated him with cruelty causing reasonable
apprehension of harm and injury in his mind, and she deserted him in the year 2005.
In the result, this appeal fails and hence dismissed, confirming
the impugned judgment and decree. The parties shall suffer their
respective costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
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