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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.MUHAMED MUSTAQUE, KAUSER EDAPPAGATH, JJ.
XXX – Appellant
Versus
XXXX – Respondent
Mat.Appeal Nos.370, 540, 585 of 2015
Decided on : 06-08-2021
Civil Procedure Code, 1908 - Rule 1 of Order XXIII - Sub-Rule (4) - Hindu Marriage Act – Section 13(1)(ia) – Indian Penal Code, 1908 - 498A 34 - Dowry - Wife Instituted for return of gold ornaments and money - Whether defended or not, relief prayed for can be decreed, only if petitioner has not in any manner condoned cruelty - Examine whether husband has established cruelty pleaded - Normally matrimonial cruelty takes place within four walls of matrimonial home and, independent witness may not be available - Normally matrimonial cruelty takes place – Whether compromise has been adhered to by both parties and whether there was normal resumption of conjugal relationship - Whether making such calls would constitute mental cruelty as argued by learned counsel for husband.
Finding of the Court:
Relief prayed for can be granted only if Court is satisfied that petitioner has not, in any manner, condoned cruelty. Ordinarily, as a general rule, condonation of matrimonial offence deprives condoning spouse of right of seeking relief on offending conduct - Husband did not have a case in present petition that wife had caused physical or mental torture after the resumption of cohabitation, divorce on ground of cruelty cannot be granted - Accordingly, original petition was dismissed - Definite case of husband is that right from inception of marriage, wife has perpetrated various iniquitous acts, ranging from several mental agony by constantly using filthy language, abdicating all shared household duties, threatening to commit suicide, refusing to have sex, picking up quarrels constantly demanding to take her back to her parental home, ridiculing him in front of others, abusing his mother etc.
Result: Allowed Mat.Appeal
Certainly. Based on the provided legal document, the key legal principles and rulings are as follows:
Visitation Rights and Environment: When the court grants visitation rights to a parent, it must ensure that the environment in which the parent meets the child is conducive to the child's well-being and development. The rights should facilitate meaningful contact in a manner that promotes the child's best interests (!) .
Modification of Visitation Rights: The parent who is granted visitation rights is free to approach the Family Court to seek modifications or variations of those rights, including contact rights. Such applications should be considered and decided on their merits in accordance with law (!) .
Grounds for Dissolution of Marriage: A marriage can be dissolved on the grounds of cruelty if the petitioner demonstrates that cruelty was not condoned and that the acts of cruelty are of such a nature that they justify the dissolution. Repeated acts of cruelty, especially when not rectified or condoned, can justify a decree of divorce (!) (!) .
Condonation of Cruelty: Condonation, or forgiveness, of matrimonial cruelty by the aggrieved spouse can bar the grant of relief unless there is evidence of subsequent acts of cruelty that revive the original offense. The resumption of cohabitation after settlement or reconciliation may amount to condonation, but subsequent acts can revive the offense (!) (!) (!) .
Evidence of Cruelty and Adultery: In matrimonial disputes, proof of cruelty can be based on direct or circumstantial evidence, and even a spouse's sole testimony can be sufficient if found credible. Allegations of adultery require proof of an illicit relationship, which is often circumstantial and must be established by a preponderance of probabilities rather than beyond reasonable doubt (!) (!) .
Proof of Adultery: Evidence such as frequent calls, suspicious behavior, and circumstantial evidence can be considered, but they must lead to a high degree of probability to establish adultery. Mere suspicion or hearsay evidence is insufficient to prove such an allegation (!) (!) .
False Criminal Prosecution and Mental Cruelty: Initiation of false criminal proceedings or false complaints against a spouse or their family members constitutes mental cruelty. Such acts can be grounds for divorce if proven, especially if they cause ongoing harassment or emotional distress (!) (!) .
Resumption of Cohabitation and Condonation: Even if parties have settled disputes and resumed cohabitation, subsequent acts of cruelty or misconduct can revive the original grounds for divorce. The absence of a genuine, continued, and smooth conjugal life after settlement can impact the assessment of condonation (!) (!) .
Guardianship and Custody: The welfare of the child is paramount. When the child has been in the custody of one parent and there is no evidence of neglect or harm, the court is inclined to favor the custodial parent. Visitation rights are to be granted in a manner that maintains the child's social and emotional development (!) (!) .
Modification of Visitation and Contact Rights: The court recognizes that visitation rights are subject to modification, and the parent with visitation rights can seek to alter the arrangement to better suit the child's interests and environment, with the court considering such applications on their merits (!) .
Effect of Breach of Settlement Agreements: Breach of settlement agreements or compromises related to matrimonial disputes may not amount to condonation unless there is clear evidence of resumption of a normal and cordial marital relationship. Breaches can revive grounds for divorce if they cause ongoing disharmony (!) .
These principles collectively guide the court's approach to resolving matrimonial disputes, emphasizing the importance of the child's welfare, the integrity of the marriage, and the need for fair consideration of evidence related to cruelty, adultery, and conduct affecting family harmony.
JUDGMENT :
Kauser Edappagath, J.
The husband who is the appellant in all the above appeals challenges three verdicts passed against him by two different Family Courts in three separate proceedings.
2. For the sake of brevity, we refer the parties to as “husband” and “wife”. OP No.389/2013, on the file of the Family Court, Muvattupuzha, was instituted by the husband for dissolution of marriage on the ground of adultery and cruelty. It was dismissed as per the judgment dated 7/2/2015. Mat.Appeal No.370/2015 has been filed challenging the said judgment. OP No.29/2013, on the file of the Family Court, Thodupuzha, was instituted by the wife for return of gold ornaments and money. It was allowed in part as per the order dated 30/4/2015. Mat.Appeal No.585/2015 has been filed challenging the said order. OP (G&W) No.17/2014, on the file of the Family Court, Thodupuzha, was instituted by the husband for appointing him as the guardian of the minor child. It was dismissed as per the order dated 30/4/2015. Mat.Appeal No.540/2015 has been filed challenging the said order. Since all the appeals are interconnected, we dispose of them together by this common judgment.
3. The marriage between the husband and wife was solemnized on 23/5/2006 at Sreekrishnaswami Temple, Thodupuzha as per the Hindu religious rites. After the marriage, they resided at the house of the husband at Ernakulam. A child was born in the wedlock on 8/11/2007. The pleadings and evidence on record disclose that the marital relationship between them was not cordial and happy right from the inception. Marital discord developed between them soon after the marriage which was intensified by passage of time. Both accuse each other for the same. The husband filed petitions for divorce on two occasions (OP Nos.270/2008 and 349/2010) and the wife filed a petition for return of gold ornaments and money (OP No.31/2011). Those petitions were withdrawn by them as settled at the intervention of the family members and well wishers. They started to live together again from the month of March, 2012. Still, dispute arose between them. There was even allegation of assault by the husband against the wife demanding dowry resulting in the registration of crime against the husband and his family members u/s 498A and 34 of I.P.C. Thereafter in 2013, the husband instituted OP No.389/2013 for dissolution of marriage on the ground of cruelty and adultery and the wife instituted OP No.29/2013 for return of gold ornaments and money. In 2014, the husband preferred OP (G&W) No. 17/2014 for appointing him as the guardian of the minor daughter. As stated already, OP No.389/2013 as well as OP(G&W) No.17/2014 filed by the husband were dismissed and OP No.29/2013 filed by the wife was allowed in part vide the impugned orders and judgment.
4. We have heard Sri.T.M.Raman Kartha, the learned counsel appearing for the husband and Sri.M.B.Sandeep, the learned counsel appearing for the wife.
5. We will deal with each original petitions separately one by one. OP No.389/2013
6. This Original Petition has been filed by the husband for dissolution of marriage on the ground of adultery and cruelty. The first respondent is the wife. The second respondent, who remained ex parte, is the alleged adulterer. The definite case of the husband is that right from the inception of marriage, the wife has perpetrated various iniquitous acts, ranging from several mental agony by constantly using filthy language, abdicating all shared household duties, threatening to commit suicide, refusing to have sex, picking up quarrels constantly demanding to take her back to her parental home, ridiculing him in front of others, abusing his mother etc. making his life a living hell. According to the husband, in spite of various acts of cruelty committed by the wife, he opted to withdraw two petitions for divorce filed by him on earlier occasions with the bonafide belief that they could lead a happy and peaceful life. But, still the wife repeated the matr
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