Divorce petition in Unhappy Marriages.
Summary In this post we will discuss about an appeal before the Family Court, Ernakulam, to seek a decree of divorce to dissolve his marriage with the respondent, under section 13(1)(ia) of the Hindu Marriage Act, 1955.
Binu Raj G vs Sandhya Lakshmi R on 18 May 2020
Appellant
Binu Raj
Respondent
Sandhya Lakshmi R
The appellant, in the present case, had filed an appeal before the Family Court, Ernakulam, to seek a decree of divorce to dissolve his marriage with the respondent, under section 13(1)(ia) of the Hindu Marriage Act, 1955.
The facts to the case are as follows: The appealing married the respondent on 24.10.2004. After the engagement ceremony, the respondent wished to withdraw from the union. The respondent was moody and right from the initial days of the marriage the relationship between the parties was anything but cordial. The respondent was not interested in having a physical relationship and remained all of from the appellants and his parents. Within six months of the marriage, the respondent got transferred to the Desom Branch of the Bank which was hardly 150m from the appellant’s residence. Even after two years of marriage, the couple was childless thereafter which they consulted a gynaecologist. The respondent refused treatment citing financial loss and potential failure of the treatment. In November of 2009, the appellant informed the respondent’s parents about the strain in their relationship. The respondent was infuriated by this and accused the appellant of interfering in her work and yelled at the appellant in the presence of her parents causing mental ageing and anguish to the appellant. Following this, the respondent stopped taking food from the marital home and on 23.03.2010 the respondent’s brother and cousin went to the matrimonial home and took the respondent and her belongings and left. Thereafter the respondent started avoiding the appellant in public places and informed the appellant that she does not wish to continue with the marriage. The respondent’s attitude caused great pain and agony to the appellant. Perceiving that the marriage broke down irretrievably the appellant issued a lawyer notice to the respondent attempting to dissolve the marriage on mutual consent by the respondent failed to send a reply. Aggrieved by the ruthless treatment of the respondent the applicant approached the Court seeking a decree of divorce.
The respondent in her written statement refuted the claims of the appellant and stated that after the engagement the appellant made sarcastic comments about the respondent’s physical appearance. According to the respondent, the appellant was a selfish person and insisted that the respondent take leave from work for petty reasons. The respondent maintained utmost love and affection for the appellant by he was only interested in the respondent’s monetary benefits and his own personal readiness. The respondent also expressed that the appellant failed to satisfy her biological needs and the nature of her work compelled her work after office hours. The respondent further accused that the appellant and his family members exerted pressure on the respondent to do household chores and made her life miserable. The respondent begged the appellant to move to a rented house but he would refuse. The respondent also accused the appellant of abuse and assault and stated that he drove her out of the matrimonial home and under the above-mentioned circumstances prayed that the petition be dismissed.
After hearing both parties to the suit the Family Court dismissed the petition starting the at the appellant had failed to produce the marriage certificate to prove the marriage as provided under Rule 4 of the Hindu Marriage Act (Kerala) Rules, 1963( Rules) and furthermore the appellant also failed to prove that the respondent had treated him with cruelty.
Aggrieved by the dismissal of the original petition the appellant preferred an appeal before the Hon’ble High Court.
The learned counsel for the appellant contended that the Family Court has erred in dismissing the original petition, she contended that the Family Court did not appreciate the evidence on record and the allegations pleaded by the respondent are totally unfounded. The unsubstantiated allegation in the written statement by itself composes cruelty entitling the appellant to obtain a decree for divorce. Furthermore, the learned counsel contests that the finding of the Family Court that there is no marriage between the parties is completely unreasonable and therefore the appeal should be allowed.
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The counsel for the respondent argued that the Family Court was right in dismissing the original petition. The counsel stated that irretrievable breakdown of marriage is not a ground divorce under the Hindu Marriage Act. The counsel thus prayed that the appeal be dismissed as the respondent is ready to resume cohabitation with the appellant.
After hearing both the parties the Hon’ble Court framed the following legal issues for the instant case:
(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 treated him with cruelty, as provided under Section 13 (1) (ia) of the Hindu Marriage Act, 1955.
The High Court in its observation indicated a sense of surprise. The Court noted that the finding of the Family Court that in the absence of a marriage certificate there is no valid marriage between the parties is totally unwarranted. The assertion by the appellant that his marriage with the respondent was solemnised on 24.10.2014 as per Hindu religious rites and the admission of the respondent to the said assertion in itself is sufficient enough that the marriage was solemnised. The Court stated that according to section 58 of the Evidence Act, 1872 it is essential that admitted facts need not be proved.
The Court relied on Rajilal v. State of Kerala[1] to state the fact that in the absence of a marriage certificate the petitioners may file an affidavit to the effect that they were married as per the Hindu Customary Law and that the marriage is not registered and marriage certification is no precondition for entertaining the petition. Keeping in view the conclusions arrived at in the Rajilal case the Court in the instant case held that Rule 4(i) of the Rules is only directory and not compulsory in nature. The Court further held that the Family Court should have provided the appellant with a reasonable opportunity to produce the certificate or file an affidavit as provided under the Proviso to section 58 of the Evidence Act, 1872. Therefore the order of the Family Court is set aside to the extent that there is no valid marriage between the appellant and respondent.
The Court further placed reliance upon Samar Ghosh v. Jaya Ghosh[2] while considering section 13(1)(ia) of the Hindu Marriage Act wherein certain guidelines were laid down with regards to Mental cruelty which are as follows
“(i) On consideration of the complete matrimonial life of the parties, acute mental pain, agony and suffering would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On the comprehensive assessment of the entire matrimonial life of the parties, it becomes abundantly clear that the situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the 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 others 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 the 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 the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
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(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 a considerable period of time 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 a 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.”
In the instant case, it is clear from the evidence on record that differences between the parties arose immediately after the engagement and the respondent wanted to withdraw herself from the proposal and this difference continued till the day of their separation, this highlights the strain in the marital relationship.
The counsel for the appellant brought to the notice of the Court that the respondent alleged that the appellant wanted her to act like a Hollywood porn star during coitus, with which she was not comfortable and further stated that the appellant fault to satisfy her biological needs but in her cross-examination, she admitted that she had a normal sexual relationship with the appellant. Similarly, the allegation that the appellant used to assault the respondent for trivial reasons was also not proved by the respondent. Thus, in the light of the argument put forth by the counsel for the appellant, the Hon’ble Court held that the respondent made unwarranted insinuations against the appellant without any foundation or basis. The Court relied upon the decision of the Hon’ble Supreme Court in Vijaykumar Ramchandra Bhat v. Neela Vijaykumar Bhat where it was held that a deliberate statement levelled with potency cannot be dismissed. The Court also opined that the respondent’s plea that she desires to resume collaboration with the appellant is also mala fide. On careful examination of the evidence, it is evident that the appellant’s mother used to do all the household chores, the claim that the respondent she used to do all the household chores and go to be only after midnight cannot be believed for want of proof. The Court also held that the demand of the respondent to shift to a rented place leaving behind the appellant’s aged parents is an act of cruelty. The Court also pointed out that the fact the respondent stopped the IVF treatment within a short period even though the Gynaecologist had advised them otherwise and despite the fact that the respondent continued to work in the same branch, did not care to visit the appealing or his parents clearly enunciates that the respondent wished to snap the marital tie, this observation is further substantiated by the fact that the respondent withdrew all her gold ornaments from the bank locker without the knowledge or consent of the appellant.
On overall appreciation of the evidence, the Court came to the conclusion that the marriage between the appellant and respondent has become deadwood and there is no further chance of a rapprochement. In the end, the Court relied on N.G. Dastane v. S. Dastane[3] wherein the Hon’ble Supreme Court observed:
“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.”
In view of the factual background, the Court held that the appellant is entitled to a decree of divorce and accordingly the appeal is allowed and the judgement of the Family Court is thereby set aside. Consequently, the appeal is allowed and the appellant is granted a decree of divorce dissolving his marriage with the respondent.
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This post was written by Aniket Rai.
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[1] 2010) DMC 877 (DB
[2] 2007 4 SCC 511
[3] 1975 3 SCR 967
