Rajesh Chandrasekhar vs Prathibha Rijesh

Kauser Edappagath, J

The husband is the appellant. The wife is the respondent. The original petition for dissolution of marriage on the ground of cruelty filed by the

husband as OP No.484/2012 at the Family Court, Irinjalakuda was dismissed as per the judgment dated 24/2/2018. The said judgment is under

challenge in this appeal.

The marriage between the appellant and the respondent was solemnised on 19/4/2008 as per religious rites and ceremonies. In the wedlock, a child

was born on 8/5/2011. At the time of marriage, the appellant was working as Assistant Manger in ICICI Securities at Ahmadabad. After the

marriage, the respondent went to Ahmadabad and joined the appellant. They were residing at an apartment at Ahmadabad. According to the

appellant, during the initial days, the respondent was exhibiting love and affection towards him and by passage of time, she started to argue, pick up

quarrel and fight for silly incidents. It was alleged that the respondent was bad tempered, constantly using filthy language and arguing with him without

any reason. She showed complete disinterest in all household functions and refused to attend her duties as a wife. He alleged that there were regular

instances of outrage and resentment causing serious mental agony and pain to him. According to him, she was dancing in tune with the directions of

her mother. He added that there were instances of inflicting assault and physical injury by the respondent on him. He specifically alleged that on

13/4/2009, in the evening, while he and respondent were returning in their car to the flat after shopping, she started fighting ferociously, slapped and

scribbled on his face with nails and when he stopped the car, she opened the door and ran away. After the said incident, on the next day, she left the

flat and went to her parents' place. She was staying with her parents till August, 2009 and on 2/9/2009, after the intervention of the relatives, she came

back to his flat and they again started to reside together. Thereafter, the appellant was transferred to Bombay and the respondent accompanied him.

In the month of September 2010, the respondent became pregnant and on the seventh month of her pregnancy she went to her parental home. It was

alleged that thereafter even though the appellant made several attempts to call over phone to enquire about her well- being and health conditions, the

respondent did not positively respond instead, again she started to pick up quarrel with him. It was further alleged that her parents even did not allow

him to talk with her over phone. According to the appellant, the respondent and her parents abused and humiliated him and also threatened him by

saying that he would not be allowed to see the face of the child. Even though the baby was delivered, he was not informed in time or he was not even

informed details regarding the delivery of the child. It was further alleged that when the appellant went to see the newborn child, the respondent and

her family members fully disregarded him and engaged in scolding and abusing. The appellant was not allowed to take the child even. According to

him, he was under tremendous pain and pressure since he was unable to see the child. The child was fully alienated from him. The appellant has also

highlighted another incident in which the police was called to the apartment at Bombay and created a scene and he was ridiculed in front of the police

and local public who gathered there. The appellant specifically stated that the respondent has never been a loving, faithful and caring wife, on the

contrary, she made his life miserable. It was in these circumstances, the appellant preferred the original petition for dissolution of marriage on the

ground of cruelty.

The respondent entered appearance before the court below and filed detailed counter statement. She specifically denied various instances of cruelty

allegedly exercised by her on the appellant and pleaded in the original petition. According to her, she was very loving and cordial with the appellant and

it was the appellant who often quarreled with her and failed to discharge the marital obligation. She sought for the dismissal of the petition.

The parties went on trial. The appellant himself gave evidence as PW1 and four witnesses were examined as PWs 2 to

Exts. A1 to A8 were marked on his side. The respondent herself gave evidence as RW1. Exts. B1 to B8 were marked on her side. After trial, the

court below dismissed the petition holding that the evidence on record is insufficient to prove the cruelty as per the impugned judgment. Challenging

the said judgment, this appeal has been preferred.

Heard Smt. Sumathi Dandapani, the learned Senior Counsel for the appellant and Sri. K.B. Gangesh, the learned Counsel for the respondent.

Normally, the matrimonial cruelty â€" be physical or mental â€" takes place within the four walls of the matrimonial home and, therefore,

independent witness may not be available. However, in this case, the appellant, apart from his own oral testimony, has examined four witnesses, PWs

2 to 5. The definite case of the appellant is that over the course of marriage with him, the respondent has exercised cruelty, both physical and mental,

ranging from several mental agony by constantly using filthy language, abdicating all shared household duties, physically assaulting him, willfully

alienating his child from him etc. making his life miserable. The various acts of cruelty, both physical and mental, as well as harassment, meted out by

him at the hands of the respondent at Ahmadabad, Bombay as well as at native place have been spoken to in detail by the appellant. Even though he

has been cross-examined in length, nothing tangible has been brought out in the cross-examination to discredit his testimony. It has come out in his

evidence that the respondent has caused innumerable mental stress and pain by constantly showering abusive words and filthy language towards him

while they were living at Ahmadabad, Mumbai and during their short stays at the native place. Regular instances of outrage and resentment on the

part of the respondent has been spoken to in detail by the appellant. It has come out in evidence that the mother of the respondent also used to pick up

quarrel with him and abuse him. The evidence would further show that after the delivery of the child, the appellant was denied even access to the

child by the respondent and her mother. The appellant has even spoken few instances where he was physically assaulted by the respondent. There is

nothing to disbelieve the said version. It has further come out in evidence that several mediation were taken place and they were reunited several

times. Still, the respondent continued to exercise cruelty on the appellant. There was also an instance where on the basis of a complaint filed by the

respondent, the police came to the apartment, local people also gathered there and the appellant was ridiculed and humiliated in front of them. The said

complaint was not pursued further. The appellant specifically deposed that after short while of the marriage, there has been a sustained cause of

abusive and humiliating treatment and reprehensible conduct on the part of the respondent.

The evidence given by PW1 gets corroboration from the oral testimony of PWs2 to 5 and Exts. A2, A4 and A7. PW2 is the uncle of the appellant.

He has been examined to prove Ext.A2. Ext.A2 is a statement signed and given by the father of the respondent. PW2 is a witness to Ext.A2. It is

dated 2/9/2009. A reading of Ext.A2 would show that there was some serious issue between the appellant and the respondent at the instance of the

respondent and the respondent has assured that she would not repeat the same. PW3 is the mother of the appellant. She gave evidence in tune with

the evidence given by the appellant. She has also reiterated various acts of cruelty, both physical and mental, exercised by the respondent on the

appellant. PW4 and PW5 are independent witnesses. They knew the appellant and the respondent. PW4 deposed that on so many occasions, the

appellant had told him about the cruelty exercised by the respondent. True, mostly his evidence is in the form of hearsay. But, his evidence would

show that on one occasion when he asked the respondent about the issues between her and the appellant, she responded in a rude manner. PW5

deposed that while the appellant and the respondent were residing at Mumbai, he had gone to their flat in 2009 December and he had witnessed the

respondent behaving with the appellant in a rude and indifferent manner in front of him. He further deposed that he had also witnessed an occasion

where a police reached their flat at Mumbai on the basis of a false complaint made by the respondent. There is nothing to disbelieve the evidence of

PWs 2 to 4 as well. Ext. A4 is an undertaking given by the respondent dated 16/4/2009. In the said document the respondent has stated that if her

parents misbehave with the appellant, she is agreeable for divorce. Ext. A7 is a copy of the complaint dated 1/8/2011 given by the appellant to the

Inspector in Charge, Kharghar Police Station, Mumbai alleging harassment on the part of the respondent.

It is settled that to constitute cruelty, the conduct complained of need not necessarily be so grave and severe so as to make cohabitation virtually

unendurable or of such character so as to cause danger to life, limb or health. It is sufficient if the conduct and behaviour of one spouse towards the

other is of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the marital tie.

Mental cruelty may also consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of

the other party. The intentional alienation of the child by one parent from the other parent also amount to mental cruelty. From the kind of attitude,

conduct and treatment discussed in the preceding paragraphs, it can readily be inferred that the appellant has every reason to apprehend that it is not

safe for him to continue the matrimonial relationship with the respondent.

On an over all appreciation of the pleadings and evidence, we find that the appellant and the respondent were at loggerheads soon after their

marriage. The marriage is virtually shattered. The couple has been unable to patch up their differences so far. The allegations and counter allegations

levelled against each other establish that there is no further chance of rapprochement. The appellant has pleaded and proved specific instances of

cruelty meted out by him at the hands of the respondent which have been discussed in the preceding paragraphs. Admittedly, they are residing

separately since 30/7/2011. The Supreme Court of India in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] has held that insistence by one spouse to

preserve the dead marriage could be treated as an act of cruelty. For all these reasons, we hold that the appellant has made out a case for granting a

dissolution of marriage on the ground of cruelly u/s 13(1)(ia) of the Act. The court below went wrong in dismissing the original petition for dissolution

of marriage.

Accordingly, we allow the appeal, set aside the impugned judgment and allow OP No.484/2012 of the Family Court, Irinjalakuda. The marriage

between the appellant and the respondent solemnized on 19/4/2008 stands dissolved. No order as to costs.