Allowed

Joseph @ Noby Joseph Mathew v. Mariam @ Jyothi Poikayil Jose

Kerala HC20 Feb 2017Mat.Appeal/247/2016

Case brief

AI extract

What is this about?

The High Court allowed the appeal, setting aside the Family Court's dismissal of a divorce petition. The Court held that the respondent's attitude and behavior caused mental cruelty justifying divorce under the Divorce Act, 1869, even rejecting the petitioner's claims regarding nullity due to fraud and desertion.

What did the court decide?

The marriage between the parties is dissolved by a decree of divorce.

Joseph @ Noby Joseph Mathew Vs Mariam @ Jyothi… — Matrimonial and Divorce | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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MONDAY, THE 20TH DAY OF FEBRUARY 2017/1ST PHALGUNA, 1938

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Mat.Appeal.No. 247 of 2016 () ------------------------------

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AGAINST THE JUDGMENT IN OP 386/2014 of FAMILY COURT, KOTTAYAM DATED 15-12-2015

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APPELLANT/PETITIONER:

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JOSEPH @ NOBY JOSEPH MATHEW S/O.MATHEW, PALLATHU HOUSE, MALAKUNNAM P.O, CHANGANACHERRY

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BY ADV. SRI.JOHN VARGHESE

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RESPONDENT/RESPONDENT:

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MARIAM @ JYOTHI POIKAYIL JOSE D/O.JOSE, POIKAYIL HOUSE, THOTTACKADU, ERAVUCHIRA P.O, CHANGANACHERRY, KOTTAYAM DISTRICT 686 539

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 2002-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.M.SHAFFIQUE, J &

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K.RAMAKRISHNAN, J

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*** * * * * * * * * * * * * *** Mat.Appeal No.247 of 2016

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Dated this the 20^th day of February 2017

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J U D G M E N T

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Shaffique, J

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This appeal is filed by the petitioner in O.P.No.386/2014 of the Family Court, Kottayam challenging judgment dated 15/12/2015 by which the petitioner seeking divorce under Section 10(1)(ix)(x) read with Section 18 & 19 of the Divorce Act, 1869 has been dismissed.

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The short facts involved in the original petition reads as under:

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Parties are referred to as shown in the original petition. The petitioner married the respondent as per Christian rites and custom on 12/10/2006. A girl child was born in their wedlock. At the time of marriage, petitioner was working as a Chef in St.Lucia in West Indies on 13/12/2006. Respondent was also taken to St.Lucia. It was noticed that she was taking some medicines. The respondent did not disclose the purpose of the medicine and later the petitioner had come to know that the medicines were given

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by a Neuro Surgeon as she was having fits and there was an abnormal growth in her brain. It is revealed that she was under the treatment of Dr.Madhusoodhanan since 2004. It was also alleged that the respondent was under the sedation of medicines taken by her. Petitioner further contended that he could not enjoy sexual intercourse with her and he did not have a happy married life from the very beginning. After the respondent became pregnant, she was not able to attend her personal needs. Since there was no body to attend her when the petitioner had to go for work, she was sent back to Kerala. On 03/04/2008, petitioner also came back to Kerala. On 06/04/2008, respondent fell down and sustained a pelvic fracture. She was admitted in a hospital and on 15/04/2008, she delivered a girl child. After three months from the date of delivery, the respondent and child were taken back to St.Luia. However, the respondent was sitting idle at home and she was not even ready to take care of the child and attend the household works. Moreover, she often picked up quarrel with the petitioner without any reasons and became short tempered day by day.

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It is alleged that under the instigation of the

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respondent, mother of the petitioner asked him to resign his job and return home. Accordingly they had come back and as requested by the respondent, her treatment was continued under a Neurologist. It is further alleged that she used to abuse him in filthy language and she even asserted immorality against the petitioner. In the meantime, petitioner had gone to Kuwait leaving the respondent and child along with mother. On 08/08/2011, she suffered fits and her shoulder was dislocated. She was taken to a hospital and the petitioner had to come from Kuwait and took the respondent to Dr.Madhusoodhanan. On MRI scanning, it was found that she had a 5% growth in the tumour found in her brain. The main contention urged by the petitioner is that the fact that she had neurological disease since 2004 was suppressed by the respondent to get his consent for the marriage. It is also informed that due to intake of high dosage of medicines, she is not in a position to lead a normal family life. Further, it is contended that she was showing the symptom of suicide mania whereas she was putting all the blame on the shoulders of the petitioner. On 03/11/2013, she had returned to her parental house, abandoning the child and she has not come back to the

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petitioner. On these grounds, the petitioner sought for decree of nullity of marriage or in the alternative, decree of divorce .

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Respondent filed objection denying the allegations raised by the petitioner. According to her, she had no illness prior to her marriage and she suffered the illness only after marriage. It is stated that the petitioner was not willing to stick on in one company and he was never a good husband and it is to avoid the respondent that the allegations have been made.

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Three witnesses were examined on behalf of petitioner as Pws 1 to 3 and Exts.A1 to A4 were marked. Respondent did not enter the box nor any evidence was adduced.

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The Family Court, after considering the evidence, came to the conclusion that there is no material to prove that the consent of the petitioner was obtained by misrepresentation or fraud and therefore the ground of nullity of marriage was not sustainable. It is also found that there is no evidence to show that the respondent suffered from the disease prior to marriage and there was no material to indicate that she had behaved cruelly to the petitioner. On account of the said finding, the petition was dismissed.

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The main contention urged is that the Court below had not properly appreciated the factual circumstances involved in the matter. It is contended that the Court below ought to have declared the marriage null and void on the ground that the respondent and her family members had concealed the treatment for epilepsy prior to the marriage on 12/10/2006. It is contended that the Doctor, PW3 had clearly stated that the respondent had consulted her for the treatment of epilepsy prior to 02/12/2006. Even otherwise, it is contended that a case of cruelty and desertion was well made out and the evidence of PWs 1 to 3 are enough to prove the said facts.

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Heard the learned counsel for the petitioner. There is no appearance for the respondent though service had been completed.

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The short question to be considered in the case is whether there is any perversity in the appreciation of evidence made by the Court below warranting interference by this Court exercising the appellate jurisdiction. The first ground taken by the petitioner is based on the argument that the marriage is null and void as the consent of the petitioner was obtained without

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disclosing true and correct facts regarding the illness of the petitioner.

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Learned counsel for the petitioner also relied upon the judgment of the Apex Court in Vinita Saxena v. Pankaj Pandit [(2006) 3 SCC 778] to emphasise as to what amounts to cruelty reference is made to paragraphs 32, 34, 35 and 36 which read as under:

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“32. The word “cruelty” has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

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34. In (1993) 2 Hindu LR 637 (sic), the Court had gone to the further extent of observing as follows:

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“Sometime even a gesture, the angry look, a sugar-coated joke, an ironic overlook may be more cruel than actual beating.”

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35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.

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36. The legal concept of cruelty which is not defined by the statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relation must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complaints. accusations or taunts. It may be mental such as indifference and frigidity towards the wife, denial of a company

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to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant’s side, ought this appellant to be called on to endure the conduct? From the respondent’s side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.”

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He also placed reliance upon the judgment of this Court in Husband v. Wife [AIR 2011 (NOC) 133 (KER.)] wherein it is held that matrimonial cruelty justifying decree for divorce must be identical in all religions. Law cannot recognize different

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varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty, or secular cruelty to justify a decree for divorce.

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It is argued that the facts clearly disclose the grant of divorce on the ground of cruelty, which has been completely ignored by the Family Court. The learned counsel would further submit that the fact that the respondent was suffering from a mental disorder of a nature which was not curable was not brought to the notice of the petitioner at the relevant time which is also a ground which can be taken note of to declare the marriage as null and void.

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The Family Court , has in fact, considered the question as to whether the marriage can be declared to be null and void and whether the respondent was entitled for a decree of divorce. There is no dispute regarding the fact that respondent was having a disease which is evident from the medical evidence adduced in the case. The Family Court itself had come to the conclusion on the basis of Ext.A4 certificate that the respondent was suffering from neurological problems. However, the Family Court observed that there was nothing to indicate that the respondent was suffering from epilepsy prior to her marriage and the consent of

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the petitioner was obtained without disclosing such a fact. According to the appellant, the respondent was suffering from the disease even prior to the marriage. This is based on the statement of the Doctor that she was taking Oxetol tablets regularly since 2004. In order to declare a marriage as null and void, it has to be proved that respondent was lunatic or idiot at the time of marriage. Sec.19(4) reads as under:

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“ 19. Grounds of decree.- Such decree may be made on any of the following grounds:-

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(1) xxxx xxxx

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(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.

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Nothing in this section shall affect the jurisdiction of the District Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.”

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Of course, a question may further arise as to whether the consent of either parties were obtained by fraud. According to the petitioner, fraud has been played on him for not stating the

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actual state of affairs. The only evidence relied upon is the statement of the Doctor who says that she was taking a few tablets of Oxetol since 2004. But, that, by itself, is not an indication to show that fraud has been played on the petitioner. Under such circumstances, we do not find any error on the part of the Family Court to have declined the declaration in regard to nullity of marriage.

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Next contention urged by the petitioner is on the allegation of mental cruelty. The petitioner had, in fact, sought for a divorce under Section 10(1)(ix) and (x) of the Act. The first ground is based on desertion for atleast two years immediately preceding the presentation of the petition. In the petition, it is alleged that the respondent left for her parental home abandoning the child on 03/11/2013. From 15/01/2011, the respondent was sleeping separately under the same roof avoiding any physical contact with the petitioner. The original petition is filed on 24/04/2014 in order to prove desertion, there should be proof to show that she has deserted the petitioner for atleast two years preceding the presentation of the petition. In the light of the admission of the fact that the respondent had left for her

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parental home only on 03/11/2013, the two year period has not elapsed. The petitioner has a case that he was living separately from the respondent since 15/01/2011 though under the same roof and they had no co-habitation. That by itself will not give rise to a cause of action for desertion and therefore, according to us, the petitioner could not prove desertion and the Family Court was justified in rejecting the divorce on the said ground.

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The next ground is under Section 10(1)(x) that is “has stated the petitioner that such cruelty as to cause reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to the petitioner to live with the respondent.” The contention urged by the petitioner is that on account of the peculiar disease of the respondent, the couple was living separately since 15/01/2011. He had also alleged that even during the earlier stages of marriage, he did not have a joyful and successful sexual intercourse and they were not leading a happy married life. It is also alleged that she was suffering from a disease and she was unable to carry on any of the homely affairs and she started behaving indifferently to all of them. She had a disease which is incurable. Two aspects are pointed out. It is

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stated that failure to mention about the disease itself amounts to cruelty and the parties are of the opinion that they can't live together on account of the incurable nature of disease which has been accepted by the respondent herself. PW1 in his evidence has spoken in tune with the averments in the petition and he reiterated the same in cross-examination. According to him, the respondent was under medication prior to the marriage and also after the marriage. He also spoke about the nature of treatment that was given to the respondent. PW2 knows both the parties. According to him, he has information that the respondent had certain disease during her schooling itself and she was taking medicines all throughout. PW3 is a Professor of Neurology Department in Thiruvalla Pushpagiri Medical College. He gave evidence that he was the head of the Department in Neurology from 1983 to 2007. With reference to Ext.A3 document, he submits that the said prescription was given for epilepsy and migraine. He further deposes that he had referred the patient to Sree Chitra Medical Institute. From the above evidence, it is rather clear that she was having a disease for which she was undergoing treatment and medicines were taken continuously. It

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is in the above background, it has to be verified whether a case of cruelty has been made out. The Apex Court in Vinita Saxena (Supra) had occasion to consider the legal concept of cruelty. It was held that the mental cruelty would not depend upon the neumerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. It is further held that the Court needs to further consider whether the continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. It is further held that the list of cruelty therefore should be breach of duty to act reasonably whether in omission or commission causing injury to health. Taking cue from the aforesaid law as held by the Apex Court, we have to consider the matter involved in the case. It is rather evident that the petitioner has been put to serious mental cruelty on account of

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the attitude and behavioral pattern of the respondent. May be, it is due to the disease that she is suffering, but on an overall appreciation of the facts, it is borne out that the petitioner could not have a peaceful matrimonial atmosphere on account of the attitude shown by the respondent. It would be appropriate to view the said situation as causing mental cruelty to the petitioner. The evidence of PW1 will go to show that the respondent was not having interest to have sex with him and she is not discharging her matrimonial duties to her husband. Non co-operation with the spouse to have sex for long period will amount to mental cruelty which is a ground for granting divorce. Further, the respondent did not go to witness box to deny these aspects as well. So an adverse inference can be drawn against her for avoiding the witness box. If she had entered the witness box she may have to admit certain facts deposed by PW1 and that was the reason why she did not mount the witness box. Under such circumstances, we are of the view that, on an overall consideration of the factual aspects and on re-appreciation of the evidence, the Court below was not justified in refusing divorce on the ground of cruelty.

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In the result, this appeal is allowed. Judgment in O.P.No.386/2014 is set aside and the original petition is decreed as under:

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That the marriage between the petitioner and the respondent shall stand dissolved by a decree of divorce.

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(sd/-)

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(sd/-)

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(K.RAMAKRISHNAN, JUDGE)

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jsr

Joseph @ Noby Joseph Mathew v. Mariam @ Jyothi Poikayil Jose

Case brief

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Joseph @ Noby Joseph Mathew v. Mariam @ Jyothi Poikayil Jose

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