Allegations of unsubstantiated cruelty in a matrimonial context can justify divorce, overriding previous findings from related cases.

Devan Ramachandran , J.

The appellant sought a decree of divorce from the respondent – her husband, by filing OP No.568/2019 on the files of the learned Family Court, Kozhikode. She alleged that she was being subjected to gross cruelty by the respondent; and also disclosed to the learned Family Court that she had filed MC No.36/2019 against him, under the provisions of the Protection of Women from Domestic Violence Act (DV Act). She contended that her husband had been treating her with cruelty throughout their matrimony and that such was not merely physical, but also that caused unbearable psychological trauma. She alleged that the respondent was a man with a suspicious frame of mind and that he had made allegations against her, that she was involved with other men, thus inflicting severe scar on her, which no woman can endure.

2. The respondent, on the other hand, entered appearance and filed his counter statement, alleging that it is he who was facing cruelty from the appellant; and that he is suffering from depression on account of her illicit relationship with a person by name, Jayesh. He explained that he is unwell and without employment, depending on his friends and relatives for his existence; and further that he has been taking food from a hotel since he has denied it by the appellant. He explains that since he is physically unwell, there is no probability of him having caused any assault on the appellant; but it is the other way around, which is the truth.

3. The learned Family Court took the matter to trial, but the respondent did not appear and was set ex parte. The appellant was examined as PW1; but produced no documentary evidence on her side. The learned Family Court, however, marked Exts.B1 and B2 - being the certified copy of the order in aforementioned MC No.36/2019 and the deposition of the appellant herein - on the side of the respondent, even though he did not take the box to testify.

4. The learned Court, on an evaluation of the evidence, held that, since the appellant did not file any complaint against the respondent on the imputation of cruelty; and since she had admitted in the box as PW1, that she had once complained to the Police, but withdrew it, it can only lead to the conclusion that her assertions are incorrect. It then went on to say that the appellant's relationship with a person by name Aneesh is proved, because she conceded in her testimony that she is living in a house taken on rent by him. It thus dismissed the Original Petition, finding the allegations of the respondent to be true.

5. Smt.Veena Hari – appearing for the appellant, argued that the learned Family Court has, unfortunately, evaluated the evidence and pleadings of the parties in a rather clinical manner, being divorced of the realities of life. She explained that her client belongs to a vulnerable section of society and was not in a position to file complaints against her husband every time he assaulted her or caused her mental agony; and consequently, that its finding, that her case stands disbelieved for this is rather cruel and uncharitable. She added that, the very factum of Ext.B1 order of the Judicial First Class Magistrate, Kunnamangalam - which records that it is the specific case of the respondent that her client is living with multiple people - would establish his frame of mind and the manner in which he was treating her throughout. She predicated that the evidence on record, particularly the unimpeached testimony of her client as PW1, establishes indubitably the truth of her assertions; and resultantly that the learned Family Cou