Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a divorce case, Anil K. Narendran and C. S. Sudha, JJ., held that constant and repeated taunts by the husband towards his wife that she is not a wife of his expectations; the comparisons with other women, etc. would certainly be mental cruelty which a wife cannot be expected to put up with.

The petitioner-wife had moved a petition under Section 10(x) of the Divorce Act, 1869 (‘the Act’), before the Family Court seeking dissolution of her marriage to the respondent on the ground of cruelty. Later on, the petition was amended to bring in an additional ground for dissolution of marriage; i.e., non-consummation of marriage under Section 10(vii) of the Act.

The Family Court allowed the petition and the marriage between the petitioner and the respondent was declared dissolved by a decree of dissolution of marriage on the ground of non-consummation of marriage. However, the Family Court rejected the allegation of cruelty.

Aggrieved by the decree of dissolution of marriage granted under Section 10(vii), the respondent-husband had assailed the same in the instant case.

Consummation of Marriage

Noticeably, on the direction of the Court below a virginity test of the petitioner was conducted. The petitioner had relied on her virginity certificate to establish that the marriage has not been consummated and that she continues to be a virgin.

To conclude whether the pleadings in the instant case are sufficient to attract the ground under Section 10(vii) of the Act, the Court considered the following allegations raised by the petitioner:

  • After a few weeks of marriage, the respondent confided to the petitioner that she was not cute enough to suit the girl of his expectations and that she had married her only out of the pressure exerted by his mother.

  • Even when they met on weekends at his residence, he did not evince any interest in the petitioner. Instead, he preferred to work on his laptop.

  • Though the petitioner had stayed with the respondent for about 40 days, there was never any sexual relations between the parties, as the latter refused to have it and as such the marriage between the parties has not been consummated.

  • The respondent was not interested in sexual relationship with the petitioner. After the first two weeks of the marriage, they stayed together only on the night of Saturdays. Never there was any sexual relationship between them during those days.

Considering the aforementioned, the Court observed that in spite of the fact that both the spouses are normal and healthy, the marriage had not been consummated, for which no cogent reasons had been given by the respondent, except a bald assertion that he had consummated the marriage, which case stands disproved by the testimony of the doctor who examined the petitioner and the virginity certificate.

Hence, the Court concluded that the aforesaid pleadings do make out a case of studied neglect and indifference on the part of the respondent towards the petitioner.

Wilful Refusal to Consummate

The respondent alleged that the court below had erroneously framed the issue as to whether the marriage has not been consummated; which according to the respondent was incorrectly framed because the right issue should be whether the marriage has not been consummated due to wilful refusal by the respondent.

The respondent alleged that as the petitioner had complained of pain during coitus, they had consulted a gynaecologist at the Medical Trust Hospital. The doctor on examination opined that the petitioner has a thick hymen membrane, which could be rectified by minor surgery or by repeated coitus. However, the petitioner never underwent the surgery, as the problem was solved by repeated coitus.

On the contrary, the petitioner claimed that the pain she had to endure during coitus was quite normal and that the gynecologist, consulted at the instance of the respondent had advised them that regular/repeated coitus would solve the problem and that the pain would subside. However, the respondent never took any interest in the same. While the mother of the petitioner submitted that her daughter had told her that the respondent had not been engaging in coitus with her and that it was to find out the reason for the same, the couple had consulted the doctor.

Hence, the Court opined that the fact that there had been no consummation of the marriage was established by the testimony of the doctor who conducted the virginity test and the virginity certificate. However, the petitioner was not able to prove that it was due to wilful abstinence or refusal by the respondent to consummate the marriage within the meaning of Section 10(vii).

Mental Cruelty

The petitioner had a case of physical as well as mental cruelty by the respondent. She contended that the repeated bullying and humiliating behaviour of the respondent had caused quite a stress, strain, and tension to her and had a deep impact on her mind and health, as a result of which she was not even able to concentrate on her work, which seriously impacted her profession too.

The petitioner referred to the following instances of physical cruelty as well as mental cruelty in her petition as well as in her testimony:

  • The respondent, a man of short temper, and when he loses his temper, he turns violent and physically assaults anyone and everybody including his mother and sister apart from the petitioner and is also in the habit of hurling things like ashtray, flower vase, etc. and breaking them.

  • He had abused her in the most obscene, foulest, and filthiest language, and on one occasion he even attempted to strangle/choke her and it was the respondent’s mother who had got her extricated/released from the respondent’s grip.

  • Once, the respondent even dragged her out of the house, and at night she was not let into their room and was made to sleep in her sister-in-law’s room instead.

  • Respondent even suspected her fidelity and used to get wild and furious whenever the petitioner would receive messages from her male friends.

  • That the respondent was always in the habit of belittling and humiliating the petitioner by comparing her with other women.

The Court noted that the Family Court had disbelieved the petitioner’s allegation of cruelty on two occasions: initially she was disbelieved because there was only the sole testimony of the petitioner to substantiate the allegations; and later on, when she produced further evidence by examining her mother, the court below opined that the same was the outcome of a plan hatched by the mother and the daughter. Criticising the approach adopted by the court below, the Court remarked,

“Then who is the witness to be brought in, to substantiate the petitioner’s case? …the court below has found fault with the petitioner for not examining the mother of the respondent, who in its opinion is the best witness to substantiate the case of the petitioner. Nevertheless, the petitioner cannot be expected to prove her case by examining the opposite party’s own mother. That would be expecting the impossible from her.”

Analysis and Findings

Considering the above mentioned, the Court opined that though there was only the testimony of the petitioner and her mother to substantiate the case alleged, it is a time-honoured principle that evidence must be weighed and not counted.

Further, both the parties were MCA graduates. Hence the Court held that the petitioner could not be expected to put up with such attitude and behaviour of the respondent. The Court expressed,

“The marriage between the parties was solemnized on 17-01-2009. The petition for dissolution of marriage is seen filed on 02-11-2009. Going by the materials on record, the couple seems to have been together for hardly a month or so. Almost 14 years have elapsed since the filing of the present petition. The couple still continues to be separated and are hotly contesting the matter.”

Hence, the Court held that the conduct of the respondent/husband could, by no stretch of imagination, be said to be the outcome of the normal “wear and tear” of family life, especially when the parties cohabited for quite a short period of time.

Conclusion

Consequently, applying the philosophy that “human life has a short span and situations causing misery, cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom”, the Court concluded that the petitioner had succeeded in establishing the ground under Section 10(x) of the Act and so the finding of the court below to the contrary deserved to be interfered with.

The appeal was dismissed. The decree granted by the court below for dissolution of marriage between the petitioner and the respondent was modified as one under Section 10(x) of the Act.

[X v. X, Mat. 2022 SCC OnLine Ker 3928, decided on 04-08-2022]


Advocates who appeared in this case :

Thushara James and M.S.Amal Dharsan, Advocates, for the Petitioner;

K.P.Sreeja and M.B.Sandeep, Advocates, for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

Supreme Court
Case BriefsSupreme Court

Supreme Court: In a significant case, the Division Bench of Indira Banerjee and J.K. Maheshwari, JJ., upheld pre-arrest bail of actor-producer Vijay Babu who was alleged to have committed rape of an actress.

The Court, however, modified the bail condition that the accused can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022, and directed that the accused may be interrogated as and when necessary, even after 03-07-2022.

Vijay Babu was alleged to have committed rape on the victim, a struggling actress, with the promise of a role in a movie and also of marriage. He has allegedly even caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Pertinently, by the impugned order, Single Judge of the Kerala High Court had granted pre-arrest bail to the accused by holding that there is no restriction in law that pre-arrest bail cannot be granted to a person sitting abroad; which was doubted by a co-equal Bench of the High Court. Consequently, the question as to whether pre-arrest bail can be granted to a person sitting abroad was referred to a larger Bench. Though the Supreme Court did not refer to the aforementioned question, it has upheld the grant of pre-arrest bail to the accused.

After considering the pleadings and other materials on record, the Court declined to interfere with the impugned order. The Court stated,

“We are also not inclined to interfere with the conditions imposed in the impugned order for grant of pre-arrest bail, except sub-paragraph (2) of paragraph 27 of the impugned order which reads as under:

(2) The petitioner can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required. The petitioner shall be deemed to be under custody during the aforesaid period for facilitating the requirements of investigation.”

Hence, the Court modified the bail condition by deleting the words “for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive)” and held that the accused may be interrogated as and when necessary, even after 03-07-2022.

The accused was directed to comply with all other conditions imposed by the High Court as also the conditions for grant of pre-arrest bail enumerated in Section 438(2) of the CrPC. Bail conditions affirmed by the Court are as follows:

  1. The accused shall not leave the State of Kerala without prior permission of the jurisdictional Court;
  2. shall appear before the Investigating Officer as and when called;
  3. shall not contact or interact with the victim or any of the witnesses;
  4. shall not indulge in any form of attack on the victim or her family through social media or any other mode;
  5. shall not harass, defame, denigrate or ridicule the petitioner or members of her family in any manner whatsoever or publish or post any comments, writing, picture, etc. in relation to the incident on social media or otherwise;
  6. shall not commit any other offence while on bail
  7. shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police officer;
  8. if the impounded passport of the accused is returned or if he is issued with a fresh passport, he shall immediately surrender the same to the Investigating Officer.

[x v. Vijay Babu, 2022 SCC OnLine SC 805, decided on 06-07-2022]


Advocates who appeared in this case :

Mr. Arjun Singh Bhati, AOR, Mr. C. K. Sasi, AOR, Advocate, for the Petitioner;

Mr. Siddharth Luthra, Sr. Adv., Mr. S. Udaya Kumar Sagar, Adv., Ms. Sweena Nair, Adv., Mr. Lakshay Saini, Adv., Ms. Anasuya Choudhury, Adv. and Mr. Angaj Gautam, Advocates, for the Respondent(s).


Also Read

Kerala High Court grants anticipatory bail to cine artist & producer Vijay Babu in a rape case

Kerala High Court| Can pre-arrest bail be granted to accused sitting abroad? Co-equal bench doubts order in Vijay Babu’s case; Larger Bench to decide


*Kamini Sharma, Editorial Assistant has put this report together

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a high-profile rape case that ignited controversy in the cine industry, Bechu Kurian Thomas, J., granted anticipatory bail to the cine artist and producer Vijay Babu. The Court held that there is no restriction in law that anticipatory bail cannot be granted to a person sitting abroad.

Abstaining to examine the application meticulously on facts, the Court said that the presumptions available under section 114(a) as well as under section 53(a) of the Evidence Act, 1872 in the cases of rape cannot be given undue preference at the stage of anticipatory bail and those presumptions will arise only when substantive evidence is adduced in a court of law i.e. at the stage of the trial.

Factual Matrix

Apprehending arrest in a rape case, the cine artist cum producer Vijay Babu had approached the Court with an application for anticipatory bail.

The applicant was alleged to have committed rape on the victim with the promise of marriage, he even alleged to have caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Noticeably, the victim is a struggling actress who was promised to have a role in the applicant’s film. The prosecution alleged that the applicant had abused the trust reposed on him by the victim and exploited her by raping her on many occasions. Moreover, even during her menstrual periods, the applicant forced himself upon her, ignoring her repeated objections. Further, even after registration of the crime, the applicant was said to have come live on Facebook, where he revealed the identity of the victim, making her a laughing stock, and even threatened to prosecute her.

The prosecution contested the application for anticipatory bail alleging that the applicant had deleted the text messages from his mobile phones for the period till 31-03-2022, and the selective deletion of WhatsApp messages was crucial, considering the victim’s statement that on 16-03-2022 she was brutally raped after being forced to consume red wine.

On the contrary, the applicant argued that the accusation was only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine. It was also pleaded that the applicant and victim had a consensual relationship, and the victim was aware that he is a married man, therefore the offences alleged were not made out at all.

Maintainability of Anticipatory Bail Application when the Applicant is Residing Abroad

The prosecution had assailed the bail application on the ground that the same had been filed when the applicant was in Dubai and the practice of filing applications for bail while sitting outside the country should not be entertained.

Considering that with the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country, the Court opined that apprehension of arrest can arise even while the applicant is residing outside the country. Relying on Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, and Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, wherein it was held that courts cannot read into section 438 CrPC. a restriction, which the legislature had not thought it fit to impose, the Court stated,

“When a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, Court cannot read into the provision such a restriction which the legislature did not incorporate.”

The Court relied on Souda Beevi v. S.I. of Police, 2011 SCC OnLine Ker 4242 and Shafi S.M. v. State of Kerala, 2020 SCC OnLine Ker 2928, to hold that there is no such an absolute restriction that application for anticipatory bail should not be entertained when filed from abroad, however, the Court must be convinced that the applicant is within the jurisdiction of the Court at least before the final hearing so that the conditions if any imposed, could be effectively enforced.

“Section 438 CrPC does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail.”

Therefore, the Court concluded that an application for anticipatory bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions.

Factual Analysis

The Court opined that the nuance of ‘consent’ under the Penal Code, 1860 or of ‘rape’ is not to be deliberated upon at the anticipatory bail stage, and the Court should only consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution as against the power of investigation of the police against a person accused of a serious crime.

Therefore, the Court must not get swayed by stereotypical notions of rape myths; i.e., chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc. Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape.

In the backdrop of above, the Court called for the case diary and made the following observations:

  • The survivor was aware that the applicant was a married man. Therefore, the applicant being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor.

  • During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement.

  • The applicant and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty and the available messages (from 31-03-2022 to 17-04-2022) conveyed an intense relationship between them; further those communications did not refer to any instances of sexual assault.

  • While the applicant deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them, for the entire period in question.

  • Applicant had already been questioned for 38 hours and he had handed over his mobile phones to the investigating officer.

  • When the other actress had been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the applicant on 17-04-2022.

  • The applicant’s passport has already been impounded; hence he cannot flee from the country.

Conclusion

Resultantly, the Court held that the applicant ought to be given the benefit of anticipatory bail, subject to the following conditions:

  • The applicant can be interrogated for the next seven days i.e.; from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required to facilitate the requirements of the investigation.

  • If the Investigating Officer intends to arrest the applicant, then he shall be released on bail on executing a bond for Rs.5,00,000 with two solvent sureties for the like sum.

  • Applicant shall not contact or interact with the victim or any of the witnesses. The applicant shall not indulge in any form of attack through social media or other modes against the victim or her family.

  • Applicant shall not leave the State of Kerala without prior permission of the jurisdictional court and shall co-operate with the investigation. Further, he shall surrender his passport as and when he is issued with a fresh one or if the impounding is cancelled.

[Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158, decided on 22-06-2022]


Advocates who appeared in this case :

S. Rajeev, V. Vinay, M.S. Aneer and Sarath K.P., Advocates, for the Applicant;

M.R. Rajesh, Advocate, for the Victim;

Grashious Kuriakose, Addl. Director General of Prosecution, for the State.


*Kamini Sharma, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising A. Muhamed Mustaque and Sophy Thomas, JJ., held that cruelty has to be assessed from the perspective of a spouse, i.e., how he/she would perceive the conduct of the other spouse.

Reversing the impugned judgment of the Family Court, the Court held,

“Mere attempt by the mediators cannot save the laches which otherwise looms large to strain such relationship. She had felt neglect and a sense of insecurity which prompted her to seek divorce.”

Factual Matrix

The marriage between the appellant-wife and the respondent-husband was solemnised on 17-03-2010. It was the case of the appellant that they have lived as husband and wife only for 24 after which the respondent left for his employment in Abu Dhabi. The appellant contended that after reaching Abu Dhabi, the respondent never cared to contact her nor inquired about her well-being.

Further, the appellant alleged that the respondent always suspected her chastity and fidelity; and had even asked her to keep her mobile phone on loudspeaker mode to enable him to listen to the incoming calls. On the contrary, the respondent denied all the allegations and contended that though they had lived as husband and wife only for 24 days, it was the appellant who left the matrimonial home of her own volition and failed to return to the matrimonial home in spite of intervention of many well-wishers.

Findings of the Family Court

The Family Court found that the appellant failed to make out a case for divorce on the ground of cruelty and desertion. The Family Court relied on an excerpt of the diary of the appellant, wherein she had written:

“I always like his presence. His absence pains me. I pray that Sun will not rise today, with the Sunset I remain alone without his presence, without his smile and soft look.”

Thus, the Family Court held that the diary entries did not reflect any bitter experience by the appellant from her husband and that those are the words of the wife who is craving for the presence of her loved husband. Consequently, the Family Court refused to believe the case of cruelty.

The Family Court also noted that the appellant left the matrimonial home for employment and therefore, it could not be construed as desertion. Hence, the case of divorce was dismissed also on the ground of desertion.

Analysis and Findings

Whether the husband going abroad for employment amounts to desertion?

Concurring with the finding of the Family Court dismissing the petition on the ground of desertion, the High Court noted that the respondent left for Abu Dhabi for his job. He had no intention to abandon the marriage. He had also not refused to cohabit with the appellant. The Court expressed,

“There must be an element on the part of the party alleging to be deserted either to abandon the marriage or to forsake the cohabitation permanently. In the absence of those elements, any sort of separation cannot be construed as a ground constituting desertion.”

Cruelty as a Ground for Divorce

Referring to the diary entries, the High Court opined that it portrayed reflection of the mind of a person who felt isolated for want of the presence of her husband. The Court observed,

“Being a lady, she appears to be one who was looking forward to the care and love of her beloved husband. There was no contact from the side of the respondent.”

The Court noted that the diary itself would show that the appellant was longing to live with her husband which never happened and no attempt was made by the respondent to be in her company. Opining that one would not refuse to return to the matrimonial home for no reason, the Court held that there must be some reason that persuaded the appellant to remain at the parental house.

With regard to the ground canvassed by the appellant as cruelty, the Court noted that it was not a singular incident of misconduct that mattered for consideration, but the approach should be to consider the whole conduct of the spouse to analyse if cruelty is meted out or not.

The appellant had a case that she was promised that she would be taken to gulf country and, on that pretext, gold ornaments belonging to her were collected by the respondent. It was only when her hope to live together came to an end, that she decided to have a separation.

Resultantly, the Court held that cruelty has to be assessed from a perspective in which a spouse would perceive the relationship with the other spouse. The Court remarked,

If he cannot nurse the feelings of the spouse and live up to her expectation, that would result in mental frustration.

Conclusion

In the backdrop of above, the Court concluded that since the parties had been living separately for more than a decade, the marriage had become deadwood for all practical purposes. Consequently, the appeal was allowed and the impugned judgment was set aside. The marriage between the petitioner and the respondent was declared dissolved.

[Subhi N. v. Sreeraj E., 2021 SCC OnLine Ker 12117, decided on 25-11-2021]


Advocates who appeared in this case :

Cibi Thomas, Advocate, for the Appellant;

Bindumol Joseph and Advocate B.S. Syamanthak, Advocates, for the Respondent;


*Kamini Sharma, Editorial Assistant has reported this brief.