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).
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.
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.