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CHEQUE BOUNS CASE

Both cases one for divorce and another for child custody. divorce on the grounds of cruelty not proved and as such the lower court order granting divorce is dismissed. regarding child custody admittedly the parents of the wife are ill fated due to health reasons and she is busy with her studies, granting child custody to the husband and his parents is well reasoned. Their lordships of Kerala in a fine manner discussed the terminology what is cruelty . some acts may cause laugh to the others and same acts may hurt some others , what are the parameters to judge whether it is cruelty or not ?

Seemaatti Junction, Kottayam

Seemaatti Junction, Kottayam (Photo credit: Wikipedia)

IN THE HIGH COURT OF KERALAAT ERNAKULAM

Mat.Appeal.No. 263 of 2010()
1. DR.SMITHA MATHEW,
Petitioner

Vs

1. DR.PRASOON KURUVILA, S/O. KURUVILA,
Respondent

For Petitioner :SRI.CHITAMBARESH.V. (SR.)

For Respondent :SRI.MATHAI M PAIKADAY(SR.)

The Hon’ble MR. Justice K.M.JOSEPH
The Hon’ble MR. Justice M.L.JOSEPH FRANCIS

Dated :05/07/2011

O R D E R
K.M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
– – – – – – – – – – – – – – – – – – – – – – – – – –
Mat.A..Nos. 263 & 265 of 2010
– – – – – – – – – – – – – – – – – – – – – – – – – –
Dated this the 5th day of July, 2011

JUDGMENT

Joseph Francis, J.

Mat.A. No.263 of 2010 is filed by the respondent/wife in

O.P. 491 of 2009 on the file of the Family Court, Kottayam. The

respondent in this appeal is the petitioner in that petition, which

was filed by him under Section 10(1)(x) of the Divorce Act for

divorce on the ground of cruelty. Mat. A.No. 265 of 2010 is filed

by respondents 1 to 3 in O.P.No. 492 of 2009 on the file of the

Family Court, Kottayam. The respondent in that appeal was the

petitioner in that Original Petition, which was filed by him for the

custody of the child. The first respondent in that Original

Petition is his wife and respondents 2 and 3 are the parents of the

first respondent.

2. The averments in O.P.No.491 of 2009 are briefly as

follows: The petitioner is the husband and the respondent is the

Mat.A..Nos. 263 & 265 of 2010

2

wife and their marriage was solemnised on 3.2.2003 as per the

Christian rites. After the marriage they lived together in the house of

the petitioner. A male child was born in this wedlock on 20.2.2004.

The petitioner is a doctor by profession and was doing his MD in

General Medicine at Kottayam at the time of marriage. The respondent

is also a doctor preparing for the entrance examination for MD course.

It was an arranged marriage.

3. During the initial days of the marriage itself the respondent

behaved very much indifferently with the petitioner and his family.

She did not like the lifestyle and eating habits of the petitioner and his

parents. She was not ready to mingle with the family members of the

petitioner and she always preferred to remain inside the bed-room.

She was not even ready to have food together with the family members

of the petitioner. The respondent was in the habit of humiliating and

insulting the petitioner. She claimed better financial and social status

than the petitioner. She stated that she married the petitioner only on

the compulsion of her parents.

Mat.A..Nos. 263 & 265 of 2010

3

4. About three months after the marriage the respondent became

pregnant, but she abused the petitioner saying that he spoiled all her

life and career and it was her misfortune to marry a man like the

petitioner. Her mother also supported this view and created a lot of

embarrassment in the matrimonial life. After the baptism of the child

the petitioner requested the respondent to come back to the

matrimonial home, but the respondent and her parents were not ready

for the same. In June 2004, the petitioner and his father discussed

about the issue, but during that period the respondent took an adamant

stand that she will not return to the matrimonial home and she had no

intention to bring up the child.

5. When the child was five months old the respondent began to

stay in a hostel at Kottayam after leaving the child under the custody of

her aged mother without informing the petitioner. She gave her career

more importance than the family life. In September 2004, the

petitioner was suffering from jaundice and he was very serious and bed

ridden, but the respondent who was staying at YWCA hostel was not

willing to look after him and she came only on two occasions. The

Mat.A..Nos. 263 & 265 of 2010

4

illness of the petitioner was very serious, but the attitude of the

respondent was highly irresponsible. The petitioner rejoined his MD

course on 13.3.2005 after recovering from his illness. In the meantime

the respondent also got admission for DMRD course at Medical

College, Kozhikode. The petitioner and his parents requested the

respondent to come to her matrimonial home during holidays and

vacation, but the respondent was not willing. She has not even

entrusted the child with the petitioner. The petitioner noticed that the

respondent was getting a lot of phone calls during odd hours in the

night.

6. In 2007 May the respondent completed her course. The

petitioner brought her back from the hostel to the matrimonial home,

but on the next day itself the respondent insisted to go to the her

parental house at Pathanamthitta and she left the place with all her

belonging brought from her hostel. The petitioner and his family

members made several attempt to bring back her, but she was adamant.

The respondent had no love and affection to the petitioner and the

child. In January 2008 the petitioner brought her to his house, but she

Mat.A..Nos. 263 & 265 of 2010

5

did not even talk with the petitioner’s mother. When the petitioner

questioned it, the respondent slapped him on his cheek and it caused

much mental agony to the petitioner. She joined for DNB course in

Thiruvananthapuram without the consent of the petitioner in February

2008. In July 2008 also when the petitioner made attempt to bring the

respondent to his house, she was not willing. So the petitioner is

constrained to live separately from the respondent. Hence the

petitioner is entitled to get a decree of divorce on the ground of cruelty.

7. The respondent filed objection contending as follows. The

allegation that the respondent behaved in differently with the petitioner

is absolutely false. The cruelty alleged is also not true. The respondent

never insulted or humiliated the petitioner or his family members. The

respondent never made any complaint regarding the financial position

and social status of the petitioner’s family. The allegation that the

respondent had no love and affection to the husband and child is

absolutely false. The child was given proper care and attention by the

respondent’s mother. Actually there was no quarrel between the

petitioner and the respondent. The respondent resided in YWCA hostel

Mat.A..Nos. 263 & 265 of 2010

6

for the purpose of entrance coaching. Actually the respondent

preferred to stay in the petitioner’s house, but during that period the

petitioner contracted hepatitis in 2004. So the petitioner refused to

allow the respondent and child to stay with him at Kottayam. Because

of that reason the child was entrusted with the parents of the

respondent. It was on the petitioner’s insistence that the respondent

decided to stay in a hostel at Kottayam. The respondent used to visit

the petitioner on every 3 days while he was suffering from illness. The

petitioner’s medical conditions was not at all serious. The marital

relationship has not been broken irretrievably. The reason for

misunderstanding is the behavioural aberrations of the petitioner and

his psychological problem. If the petitioner is ready and willing to

solve his behavioural and psychological problem it is possible to

resume the marital life. The allegation of cruelty against the respondent

is baseless. The divorce prayed for is not allowable.

8. The averments in O.P. No. 492 of 2009 are briefly as

follows. The petitioner is the husband and the first respondent is the

wife. The respondents 2 and 3 are the parents of the first respondent.

Mat.A..Nos. 263 & 265 of 2010

7

The child is in the custody of respondents 2 and 3. The first

respondent behaved very indifferently and she always wanted to avoid

the love and affection of the petitioner to the child. She allowed her

parents to look after the child against the interest of the petitioner and

the child. The respondent was not at all willing to reside in the

matrimonial home with the child. The respondents are refusing to

return the custody of the child without any reason and it caused much

mental pain to the petitioner. Because of the cruelty of the respondent

he filed divorce case.

9. The first respondent is not at all interested for the welfare of

the child. The third respondent is suffering from breast cancer and

second respondent is a heart patient. They are being looked after by

the servants. The first respondent is doing her DNB course at Medical

College Hospital, Thiruvananthapuram. The petitioner is very much

interested in the welfare of the child. At present he is working as a

physician at Caritas Hospital, Kottayam. The petitioner is having

financial capacity to look after the child. For the welfare of the child

the custody is to be given to the petitioner.

Mat.A..Nos. 263 & 265 of 2010

8

10. The respondents filed objection contending as follows. The

allegation that the first respondent behaved cruelly towards the

petitioner and she wilfully refused to come to the house of the

petitioner is absolutely false. The respondents never abandoned the

child. The first respondent entrusted the child with her parents for the

reason that the petitioner suffered illness. The allegation that the

respondents are not interested in the welfare of the child is absolutely

false. After completing her study she joined the ESI Hospital,

Kadambanad, Adoor and for that purpose she has to stay at

Pathanamthitta in her parental house. The minor was admitted to

Vimala Matha Nursery School, Pathanamthitta in June, 2006 and he

remained there till February, 2008 and it was with the knowledge and

consent of the petitioner. It is true that the third respondent is

suffering from breast cancer and she was undergoing treatment from

Amritha Hospital. The minor child was brought to Pathanamthitta

only periodically and he was at Kottayam. The allegation that the

respondents are not at all interested for the welfare of the child is

absolutely false. The first respondent is interested in resuming marital

Mat.A..Nos. 263 & 265 of 2010

9

relationship, but because of the adamant stand taken by the petitioner

they are living separately.

11. In the Family Court both the above Original Petitions were

tried jointly and evidence was recorded in O.P. 491 of 2009. Pws 1 to

3 were examined on the side of the petitioner and Exts.A1 to A9 were

marked. On the side of the respondent Rws.1 and 2 were examined and

Exts.B1 to B3 were marked. The learned Family Court, on considering

the matter, allowed O.P.No.491 of 2009 and the marriage between the

petitioner and the respondent was declared as dissolved w.e.f.

18.2.2010. O.P.No.492 of 2009 was disposed of directing that the

child will be in the custody of the mother during the academic year till

30.4.2010 and during that period the father will be having visitation

right twice in a month, the first and third Sundays during day time for a

period of two hours and from 30.4.2010 onwards the custody of the

child is to be given to the father and during that period the mother will

be having visitation right twice in a month i.e. on the 1st and 3rd

Sundays during day time for a period of two hours. Both parties shall

not oppose the right of the other party to exercise the visitation right

Mat.A..Nos. 263 & 265 of 2010

10

ordered as above. Against the judgment in O.P. 491 of 2009 the

respondent/wife filed Mat.A.No. 263 of 2010 and against the judgment

in O.P. 492 of 2009 respondents 1 to 3 filed Mat.A. No. 265 of 2010.

12. Heard learned senior counsel for the appellants and the

learned senior counsel for the respondent.

13. In Mat.A.No. 263 of 2010 the learned counsel for the

appellant mainly raised the following contentions. The Court below

failed to take note of the actual problems between the parties and

instead of addressing it with a view to save the marital relationship

between the parties, proceeded to dissolve the marriage. In paragraph

18 of the impugned judgment, the Family Court wrongly found that ‘the

petitioner/husband’ has succeeded to prove that the wife behaved

cruelly and indifferently towards him and a complete reading of the

said paragraph will show that the Court below has not assigned any

reason whatsoever to arrive at the said conclusion.

14. The learned senior counsel for the appellant wife submitted

that the finding in paragraph 18 of the judgment is to the effect that the

wife wanted to stay away from the matrimonial home. She disliked

Mat.A..Nos. 263 & 265 of 2010

11

parents-in-law and failed to look after the husband even while he was

suffering from serious illness – jaundice’ is entered into contrary to

evidence on record. The circumstance under which the appellant

stayed away from home i.e., in connection with the education, work

etc, was not considered while arriving at the conclusion. The Court

below also failed to take note of the fact that the particular course in

Radiology specialized by the appellant is offered only in Medical

Colleges at Thiruvananthapuram and Kozhikode. Appellant if at all

stayed away from home, is under compulsions of education or work.

That by itself cannot be treated as a reason to arrive at the finding that

the ‘respondent avoided to stay in matrimonial home’. Instead of

finding that the wife stayed away from husband during his illness, the

court below ought to have found that it is the husband who compelled

the wife to stay away from him so as to avoid their child from being

infected with jaundice. The evidence adduced in this connection is not

taken note of by the court below.

15. The learned senior counsel for the appellant submitted that

the finding in paragraph 18 of the judgment that the illness of the

Mat.A..Nos. 263 & 265 of 2010

12

husband started in September 2004, but the wife opted to stay in the

hostel at Kottayam from July 2004 onwards is contrary to evidence on

record. Even the petitioner did not advance such a case. It has come

out in evidence that the husband contracted hepatitis in September

2004 and the appellant stayed in hostel from October 2004 onwards as

insisted by the husband for protecting the child from possible infection.

Court below also failed take note of the fact that even during this

period, the appellant used to regularly visit the husband and used to

accompany him for his regular blood tests.

16. The learned senior counsel for the appellant submitted that

the further finding in paragraph 18 of the impugned judgment that the

appellant ‘slapped the husband on his face twice’ is entered into only

based on the stray averment of the respondent. Even the uncle of the

respondent (PW3) deposed that he is not having any direct information

about this incident. The Court below ought not to have entered into

this finding. Even the petitioner does not have a case that the

appellant ‘tortured’ him, but surprisingly the court below found that the

‘denial of torture of the wife is not with bonafides’.

Mat.A..Nos. 263 & 265 of 2010

13

17. The learned senior counsel for the appellant wife submitted

that the aspect relating to the taking of room in Hotel at

Thiruvananthapuram on 4.4.2009 is not analysed by the Court below in

its proper perspective. The findings in paragraph 18 that ‘she continued

her habit of avoiding the husband and in laws’ is wrong and perverse.

The court below failed to take note that on 5.4.2009 the respondent

abandoned the child at Thiruvananthapuram and rushed back to

Kottayam and within few weeks (on 21.5.2009) filed the Original

Petition for divorce. Therefore the court below went wrong to find

that the ‘wife continued’ her habit of avoiding the husband and in-laws.

Therefore the dictum laid down in Chathu v. Jayasree (1990(1) KLT

604) is having no application to the facts and circumstances of this

case. The court below failed to take note of the fact that the respondent

actually avoided the company of the appellant and the child.

18. The learned senior counsel for the wife submitted that the

conclusion in paragraph 18 of the judgment that ‘from the evidence it

can be seen that the wife behaved cruelly towards the petitioner both

mentally and physically’ is without any support from evidence on

Mat.A..Nos. 263 & 265 of 2010

14

record and the court below ought not to have arrived at such a

conclusion.

19. The learned senior counsel for the respondent husband

submitted that the Family Court is fully justified in granting a decree of

divorce on the ground of cruelty on the basis of evidence on record.

20. Section 10(1)(x) of the Divorce Act, 1869 provides that the

marriage be dissolved on the ground that the respondent has treated the

petitioner with such cruelty as to cause a reasonable apprehension in

the mind of the petitioner that it would be harmful or injurious for the

petitioner to live with the respondent. The cruelty as a ground of

matrimonial relief has been defined as conduct of such a character as to

have caused danger to life, limb or health, bodily or mental, so as to

give rise to a reasonable apprehension of such danger. The concept of

cruelty varied from time to time, from place to place and from

individual to individual in its application to social status of persons

involved and economic condition and other matters.

21. The parties have relied on a large body of case law. We

Mat.A..Nos. 263 & 265 of 2010

15

need only refer to a fiew of them. In Dr. N. G. Dastane v. Mrs. S.

Dastane (1975 (2) SCC 326), the Court, inter alia, held that the

Court has to deal not with the ideal husband and an ideal wife, but

with the particular man and woman before it. The Court also, inter

alia, held as follows:

“32. One other matter which needs to be

clarified is that though under Section 10(1)(b), the

apprehension of the petitioner that it will be harmful

or injurious to live with the other party has to be

reasonable, it is wrong, except in the context of such

apprehension, to import the concept of a reasonable

man as known to the law of negligence for judging of

matrimonial relations. Spouses are undoubtedly

supposed and expected to conduct their joint venture

as best as they might but it is no function of a court

inquiring into a charge of cruelty to philosophise on

the modalities of married life. Someone may want to

keep late hours to finish the day’s work and someone

may want to get up early for a morning round of golf.

The Court cannot apply to the habits or hobbies of

these the test whether a reasonable man situated

Mat.A..Nos. 263 & 265 of 2010

16

similarly will behave in a similar fashion. The

question whether the misconduct complained of

constitutes cruelty and the like for divorce purposes is

determined primarily by its effect upon the particular

person complaining of the acts. The question is not

whether the conduct would be cruel to a reasonable

person or a person of average or normal sensibilities,

but whether it would have that effect upon the

aggrieved spouse. That which may be cruel to one

person may be laughed off by another, and what may

not be cruel to an individual under one set of

circumstances may be extreme cruelty under another

set of circumstances.”

22. It was further held that simple trivialities which can truly

be described as the reasonable wear and tear of married life have to

be ignored, and that in many marriages, each party can if he so

wills, discover many a cause for complaint, but such grievances

arise mostly from temperamental disharmony which is not cruelty.

In Naveen Kohli v. Neelu Kohli (2006 (4) SCC 558) the Apex

Mat.A..Nos. 263 & 265 of 2010

17

Court reviewed the case law. The Court, inter alia, noted that

cruelty was not a ground for claiming divorce under the Hindu

Marriage Act prior to the amendment in 1976. It noted that the

words “as to cause a reasonable apprehension in the mind of the

petitioner that it will be harmful or injurious to the petitioner to

live with the other party” were omitted, and that it is not necessary

to claim divorce that the cruel treatment is of such a nature as to

cause apprehension of the nature earlier insisted upon. The Court

referred to the decision of the Apex Court in A. Jayachandra v.

Aneel Kaur (2005 (2) SCC 22) wherein the Court, inter alia, held

as follows:

“11. The expression `cruelty’ has been used in

relation to human conduct or human behaviour. It is

the conduct in relation to or in respect of matrimonial

duties and obligations. Cruelty is a course or conduct

of one, which is adversely affecting the other. The

cruelty may be mental or physical, intentional or

unintentional. If it is physical, the court will have no

problem in determining it. It is a question of fact and

Mat.A..Nos. 263 & 265 of 2010

18

degree. If it is mental, the problem presents

difficulties. First, the enquiry must begin as to the

nature of cruel treatment, second the impact of such

treatment in the mind of the spouse, whether it caused

reasonable apprehension that it would be harmful or

injurious to love with the other. Ultimately, it is a

matter of inference to be drawn by taking into account

the nature of the conduct and its effect on the

complaining spouse. However, there may be a case

where the conduct complained of itself is bad enough

and per se unlawful or illegal. Then the impact or

injurious effect on the other spouse need not be

enquired into or considered. In such cases, the cruelty

will be established if the conduct itself is proved or

admitted (See Shobha Rani v. Madhukar Reddi”.

12. 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

Mat.A..Nos. 263 & 265 of 2010

19

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, as noted above, 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 an 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

Mat.A..Nos. 263 & 265 of 2010

20

disturbance of mental peace of the other party.

13. The court dealing with the petition for

divorce on the ground of cruelty has to bear in mind

that the problems before it are those of human beings

and the psychological changes in a spouse’s conduct

have to be borne in mind before disposing of the

petition for divorce. However, insignificant or trifling,

such conduct may cause pain in the mind of another.

But before the conduct can be called cruelty, it must

touch a certain pitch of severity. It is for the court to

weigh the gravity. It has to be seen whether the

conduct was such that no reasonable person would

tolerate it. It has to be considered whether the

complainant should be called upon to endure as a part

of normal human life. Every matrimonial conduct,

which may cause annoyance to the other, may not

amount to cruelty. Mere trivial irritations, quarrels

between spouses, which happen in day-to-day married

life, may also not amount to cruelty. Cruelty in

matrimonial life may be of unfounded variety, which

can be subtle or brutal. It may be words, gestures or

by mere silence, violent or non-violent.”

Mat.A..Nos. 263 & 265 of 2010

21

23. In Samar Ghosh v. Jaya Ghosh (2007 (4) SCC 511), the

Apex Court laid down the following illustrative cases of human

behaviour in dealing with the cases of mental cruelty:

“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,

Mat.A..Nos. 263 & 265 of 2010

22

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 miserabale 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

Mat.A..Nos. 263 & 265 of 2010

23

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 longe, 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

Mat.A..Nos. 263 & 265 of 2010

24

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.”

24. The Court also held that the concept of cruelty differs

from person to person depending upon the “upbringing, level of

sensitivity, educational, family, cultural background, financial

position, social status, customs, traditions, religious beliefs, human

Mat.A..Nos. 263 & 265 of 2010

25

values and the value system”. The Court also took the view that

the concept of mental cruelty cannot remain static and there can be

no uniform standard. The Court also took the view that it should

seriously make an endeavour to reconcile the parties; yet, if it is

found that the break down is irreparable, then divorce should not

be withheld. In Neelam Kumar v. Dayarani (AIR 2011 SC 193),

the Court, inter alia, held as follows:

“9. The High Court then took up the other

allegation that the respondent did not come to attend

and take care of the appellant when he was

undergoing medical treatment in a hospital for the

injuries caused in an accident. The High Court found

that this allegation was not part of the appellant’s

pleadings and the matter was introduced in course of

evidence. The court observed that not being stated in

the pleadings, the allegation could not be taken into

consideration. Even otherwise, apart from the oral

statement made before the trial court, there was no

material to support the allegation. The appellant did

not examine any doctor or produce the medical

Mat.A..Nos. 263 & 265 of 2010

26

records in connection with his treatment. In any

event, one single instance, in isolation, was hardly

sufficient for the dissolution of marriage on the

ground that the respondent treated the appellant with

cruelty.

13. We are not impressed by this submission at

all. There is nothing to indicate that the respondent

has contributed in any way to the alleged breakdown

of the marriage. If a party to a marriage, by his own

conduct brings the relationship to a point of

irretrievable breakdown, he/she cannot be allowed to

seek divorce on the ground of breakdown of the

marriage. That would simply mean giving someone

the benefits of his/her own misdeeds. Moreover, in a

later decision of this Court in Vishnu Dutt Sharma v.

Manju Sharma (2009) 6 SCC 379: (AIR 2009 SC

2254: 2009 AIR SCW 2984), it has been held that

irretrievable breakdown of marriage is not a ground

for divorce as it is not contemplated under section 13

and granting divorce on this ground along would

amount to adding a clause therein by a judicial verdict

which would amount to legislation by Court. In the

Mat.A..Nos. 263 & 265 of 2010

27

concluding paragraph of this judgment, the Court

observed (para12):

“If we grant divorce on the ground of
irretrievable breakdown, then we shall by
judicial verdict be adding a clause to Section 13
of the Act to the effect that irretrievable
breakdown of the marriage is also a ground for
divorce. In our opinion, this can only be done by
the legislature and not by the Court. It is for the
Parliament to enact or amend the law and not
for the Courts.” ”

25. The learned counsel for the respondent/husband pointed

out seven instances of cruelty. The first instance is the repeated

slapping of the respondent/husband by his wife, which is

confirmed by PW3. In the proof affidavit filed by PW1 the

husband has sworn to the fact that on one Saturday in the year

2008 he took back his wife to his house at Kottayam and at that

time she insisted to go back to her house and he refused and

then suddenly she slapped on his face and on the next day also the

wife slapped on his face when he refused to take her back to her

house. When the respondent/wife was examined as RW1 she

Mat.A..Nos. 263 & 265 of 2010

28

denied the happening of such an incident. PW2, who is the father

of PW1, does not speak about any incident regarding the slapping

of PW1 by RW1. PW3 is the uncle of PW1. PW3 deposed that

he had no direct knowledge with regard to the slapping of PW1

by RW1. Therefore the allegation of PW1 that RW1 slapped him

twice is not properly proved. Even if it is taken that the wife

slapped the husband on his face, there were two incidents as such

that cannot be treated as much cruelty coming under the purview

Sec.10(i)(x) of Divorce Act.

26. The second incident pointed out by the learned counsel

for the respondent/husband is the suicide attempt by the wife by

threatening to jump out of the moving car, which by the timely act

of the husband was averted. PW1 deposed that on 1.6.2008 the

wife informed him that she was coming to see the child and then

he went to the Railway Station in a car along with the child to pick

her and when he tried to take her to his house she threatened that if

she was taken to his house she would jump out of the car and then

Mat.A..Nos. 263 & 265 of 2010

29

he went to a hotel at Kottayam by name ‘Homestead’ and Ext.A3 is

the hotel bill showing that he stayed in the hotel along with his

wife. When RW1 was cross examined, no question was asked

about the incident in which she alleged to have threatened to jump

out of the car. Therefore that allegation is not proved.

27. The third incident narrated by the learned counsel for the

respondent/husband is that the repeated accusation of the

husband by the wife as mental patient and further calling their

son as a mentally retarded child. In cross examination RW1

deposed that she would say that PW1 is having mental illness due

to her experience in life. When RW1 was cross examined, PW1

has no case that she called her child as mental patient. In the proof

affidavit filed by RW1, it is stated that the petitioner is prone to

irrational fears being infected by diseases and he constantly

washes his hands fearing germs or bacteria. He refused to eat food

from hotels or restaurants fearing that the same may be

contaminated. On one occasion when the petitioner and the

Mat.A..Nos. 263 & 265 of 2010

30

respondent had to stay in a hotel the petitioner refused to sleep on

the bed fearing that the bed sheet may be contaminated. The

respondent had to go outside to buy a set of new bed sheets for the

petitioner and even then the petitioner refused to sleep stating that

there were hidden cameras installed in the hotel room. The next

day the petitioner insisted that the new bed sheet should be burned

and destroyed. These facts sworn to by RW1 in the chief

affidavit are not challenged by the petitioner in cross examination.

Therefore even if RW1 stated that PW1 is having some mental

disorder it cannot be said as baseless allegations and may not

amount to cruelty.

28. The next ground alleged by the learned counsel for the

respondent is that there is continued refusal of the wife to perform

her conjugal obligations. PW1 deposed that even after a lapse of

six years from the date of the marriage, the husband and the wife

resided only for a period of six months and that the wife failed to

perform the obligations as a wife. In the proof affidavit filed by

Mat.A..Nos. 263 & 265 of 2010

31

RW1 it is stated that if the petitioner is ready and willing to redress

his behavioural problems and personality disorder it may well be

possible for the parties to resume their married life. Therefore even

if RW1 failed to perform her conjugal obligations that cannot be

treated as cruelty.

29. The learned counsel for the respondent pointed out that

the wife was secretly using another mobile phone at odd hours

even after repeated requests by the husband to disclose the

number. In the proof affidavit filed by PW1 it is stated that RW1

wife gave the other mobile phone number at the time of

counselling by the direction of the Counsellor and that Ext.A7 is

that sim card. The petitioner has not adduced any evidence to

show that the wife made any undesirable phone calls by using that

mobile number.

30. The learned counsel for the respondent submits that the

appellant/wife accepted job without informing and without the

concurrence of the husband. When RW1 was cross examined, the

Mat.A..Nos. 263 & 265 of 2010

32

petitioner has not put any question regarding acceptance of the job

by her without informing and without concurrence of the husband.

It has come out in evidence that RW1 accepted an employment in

the E.S.I. hospital, Kadambanad when the relationship between the

petitioner and the respondent was not cordial. Even the respondent

was aware that the appellant was preparing for the entrance

examination for Post Graduate course at the time of marriage.

Attempting to secure a job or getting a job, as such cannot amount

to cruelty.

31. Another point raised by the learned counsel for the

respondent is that the appellant neglected the husband while

undergoing treatment for hepatitis. In the proof affidavit RW1 has

stated that in October, 2004 herself along with Dr. Nice shifted to

Y.W.C.A., hostel at Kottayam to attend Entrance Examination

coaching and unfortunately the petitioner contracted hepatitis in

September, 2004 and the petitioner refused to allow her and their

child to stay with him at Kottayam as the petitioner feared that the

Mat.A..Nos. 263 & 265 of 2010

33

minor child and herself would be affected with hepatitis and when

she received information that petitioner was affected by hepatitis

she visited the petitioner, but the petitioner discouraged her from

visiting him as he feared that she and the child would be affected

by hepatitis. It has also come out in evidence that several doctors

died in the Medical College Hospital, Kottayam during that

period. In the above circumstances there is ample justification for

the wife in not visiting the husband regularly during that period.

If the grounds narrated by the learned counsel for the respondent

are accepted as true, most of the allegations can be treated as mere

trivial and normal wear and tear of married life which happens in

day today life, which would not be adequate to grant divorce on

the ground of cruelty.

32. The learned counsel for the respondent submits that the

wife has admitted desertion by her when she was cross examined

as RW1. But the petitioner/husband has not claimed any divorce

under Section 10(1)(1x) of the Divorce Act on the ground of

Mat.A..Nos. 263 & 265 of 2010

34

desertion.

33. The learned counsel for the respondent/husband

submitted that while passing the order in I.A.No. 1286 of 2010 in

Mat. A.No. 263 of 2010 dt. 8.6.2010 there was an undertaking by

the wife to part as friends if she is convinced that the husband

wants to separate from her and that decision is not influenced by

any illness or complications developed consequent to his

ailments. The learned senior counsel for the wife would contend

that the wife only was pointing out the fact that there were some

psychological impediment for the husband to lead a normal married

life and it was in this regard that she pointed out certain habits of

the husband. They include changing of bed (and rather out of the

ordinary hygienic habits of the husband). It is contended that it

was not a deliberately false allegation made against the husband

without any foundation and the only attempt was to point out a

problem in having a normal married life. In answer to the

contention of the husband that the conduct of the wife in agreeing

Mat.A..Nos. 263 & 265 of 2010

35

before this Court that if after the consultation with the Psychiatrist,

the Psychiatrist were to find that the husband did not have any

problem, she would be agreeable for parting of the ways and,

therefore, the wife is estopped in the light of the report of the

Psychiatrist, as per which it could be seen that the husband was not

harbouring under any illness consequent upon which he was

disabled from taking a decision, it is contended that the

understanding of the conduct and the order passed by the court is

incorrect. It is contended that the order does not bear out any

conduct on the part of the wife by which she would stand estopped.

He would further contend that a decree of divorce cannot be

premised upon any conduct of a party, as contended and it can be

validly based only on pleading and proof of cruelty under Section

10(x) of the Indian Divorce Act.

34. Learned counsel for the petitioner sought to draw

assistance from the decision of a Division Bench of the Calcutta

High Court in Dwijendra Narain Roy v. Joges Chandra De and

Mat.A..Nos. 263 & 265 of 2010

36

others (AIR 1924 Calcutta 600). Therein, the Bench, inter alia,

held as follows:

“It is an elementary rule that a party litigant

cannot be permitted to assume inconsistent positions

in court, to play fast and loose, to blow hot and cold,

to approbate and reprobate, to the detriment of his

opponent.”

35. It is necessary to notice the facts. Therein, the

appellant/defendant had pleaded that though in the four leases he

had affixed the signature, the documents were not genuine in as

much as the clauses had been interpolated after execution and

without his consent. The litigation was fought on the said basis.

The appellant sought to contend at a late stage that the

interpolation had been made before execution. It was this plea

which is met by the court in the manner referred to in the

paragraph. We do not see how the appellant can derive any

support from the said proposition and how the court can be invited

Mat.A..Nos. 263 & 265 of 2010

37

to pronounce dissolution of marriage without the petitioner proving

the requisite ground available under law.

36. Learned senior counsel for the appellant also relied on

the decision in B.(M.A.L.) v. B.(N.E.) (1968) 1 W.L.R. 1109).

Therein, the court was dealing with the following short facts:

37. There was a settlement under which special maintenance

was payable to the wife and three children including the third

child. The husband was adjudicated bankrupt. To get discharge

from bankruptcy, the consent of the wife being necessary to

withdraw her claim, the husband undertook not to oppose her

application for leave to apply for maintenance. He obtained

discharge and a maintenance order was made by consent. The

husband then sought to deny the paternity of the third child. It

was found by serological evidence that he was not the father. The

husband sought to set aside the maintenance order on the ground

that it was obtained by fraud. It was therein that the court took the

view that the husband cannot, after having obtained waiver of

Mat.A..Nos. 263 & 265 of 2010

38

valuable rights of the wife, resile from that arrangement which led

to the maintenance order. We find ourselves totally unable to

permit the appellant to draw any support from the principle laid

down in the said decision and to hold that merely because the

appellant, going by the order of this Court, has taken the stand that

she may not be opposed to parting of ways, if there was no

psychological problem as such, decree of divorce is to be granted.

We should bear in mind the nature of the statute, the rights of the

parties, the public policy which underlies the statute and hold that a

decree of divorce cannot be pronounced on the basis of the conduct

alleged against the wife.

38. We are equally unimpressed by the attempt made to draw

support from the decision in Mumbai International Airport Private

Limited v. Golden Chariot Airport And Another (2010 (10) SCC

422). That was a case where the Court was reiterating the principle

of estoppel, and that a litigant cannot change and suit its stand to

his convenience. In Smith v. Smith and Others (2001 (1) WLR

Mat.A..Nos. 263 & 265 of 2010

39

1937) the Court referred to the principle of estoppel by convention

as laid down in Republic of India v. India Steamship Co. Ltd.

(1998 AC 878) as follows:

“It is settled that an estoppel by convention

may arise where parties to a transaction act on an

assumed state of facts or law, the assumption being

either shared by them both or made by one and

acquiesced in by the other. The effect of an estoppel

by convention is to preclude a party from denying the

assumed facts or law, if it would be unjust to allow

him to go back on the assumption: K. Lokumal &

Sons (London) Ltd. v. Lotte Shipping Co. Pte. Ltd.

(1985) 2 Lloyd’s Rep 28; Norwegian American

Cruises A/S v. Paul Mundy Ltd. (1988)2 Lloyd’s Rep

343; Treitel, The Law of Contract, 9th ed (1995), pp

112-113. It is not enough that each of the two

parties acts on an assumption not communicated to

the other. But it was rightly accepted by counsel for

both parties that a concluded agreement is not a

requirement for an estoppel by convention.”

39. We would think that the principle of estoppel by

Mat.A..Nos. 263 & 265 of 2010

40

convention cannot be invoked by the respondent. The context of

the statute and the conduct attributed to the appellant render the

said principle inapplicable.

40. Considering all the above aspects of the matter, we are

of the view that the Family Court is not justified in passing a

decree of divorce in O.P. No. 491 of 2009 on the ground of

cruelty and that the judgment has to be set aside in allowing

Mat.Appeal No. 263 of 2010.

41. In Mat. A. No. 265 of 2010 the learned counsel for the

appellants submits that while dealing with the custody of the child,

the Family Court had not considered about the welfare of the child.

The learned counsel for the appellants submits that presently the

child is with the first appellant/mother. The Family Court has not

given any reasons to disturb the present status quo and handing

over the custody of the minor child to the respondent/father. The

Mat.A..Nos. 263 & 265 of 2010

41

learned counsel for the appellants submitted that the observation of

the Family Court that the mother expressed her willingness to give

custody of the child to the father by e-mail message is incorrect and

the said conclusion is drawn out of contract and that it is wrong to

observe that the first appellant mother permitted the child to be

handed over permanently to the respondent/husband and in fact she

was expressing occurrence to the respondent to take custody of the

child as a stop gap arrangement till she completes her studies.

42. Admittedly the 1st appellant mother is working in a far

away place in Anchal leaving the male child having an age of 7

years with her mother in a rented accommodation in

Thiruvananthapuram. The father of the first appellant is now

working at Pathanamthitta as an approved Valuer of the State

Bank of India and State Bank of Travancore and therefore he is

staying permanently at Pathanamthitta and his presence is not there

in the rented accommodation at Thiruvnanthapuram. In O.P. No.

Mat.A..Nos. 263 & 265 of 2010

42

492 of 2009 it is alleged by the petitioner/husband that he is

working as a Physician at Carithas Hospital, Kottayam and his

parents are healthy and they can look after the child well and the

child can continue his studies at Marian Senior Secondary School,

Kottayam, which is situated near to the petitioner’s house.

Considering all these aspects of the matter, we are of the view that

the judgment passed by the learned Family Court Judge regarding

the custody of the child is reasonable and we find no reason to

interfere with the judgment.

43. Accordingly Mat. Appeal No. 265 of 2010 is dismissed

and the judgment in O.P. (G & W) No. 492 of 2009 on the file of

Family Court, Kottayam is confirmed with a modification that the

custody of child is to be given to the father from 1.8.2011 instead

of 30.4.2010. Mat.Appeal No. 263 of 2010 is allowed and the

judgment in O.P. No. 491 of 2009 on the file of Family Court,

Kottayam allowing divorce is set aside and that O.P. is dismissed

Mat.A..Nos. 263 & 265 of 2010

43

without costs. Both sides are directed to suffer their respective

costs in both the above appeals.

Sd/-

(K.M. JOSEPH)
Judge

Sd/-

(M.L. JOSEPH FRANCIS)
Judge
tm

(True copy)
P.S. to Judge.

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