Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 14TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 MAT.APPEAL NO. 64 OF 2014 AGAINST THE JUDGMENT OP 33/2012 OF FAMILY COURT, KASARAGOD
APPELLANT/RESPONDENT: NOURUDDIN, AGED 34 YEARS, S/O.NAFEESA, POLLAYIL HOUSE, VELLAP, TRIKARIPUR VILLAGE, HOSDURG TALUK, PIN-671310. BY ADV SRI.C.K.SREEJITH RESPONDENT/PETITIONER: SAFIYA, AGED 25 YEARS, D/O.M.RABIYA, RESIDING AT ‘RASEENA MANZIL’, VALIYAPOIL, CHERUVATHUR VILLAGE, P O VALIYAPOIL, HOSDURG TALUK, PIN-671313. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Sophy Thomas, J.
The husband, who is aggrieved by the decree of divorce granted by the Family Court, Kasaragode, in the original petition filed by his wife, is the appellant herein.
2. The respondent/wife filed OP No.33 of 2012 before Family Court, Kasaragode, for a decree of divorce under Section 2 (VIII)
(a) of the Dissolution of Muslim Marriage Act, 1939 read with Section 7(1) (a) a of the Family Courts Act.
3. The facts in brief are as follows. The marriage between the
appellant and respondent was solemnised on 01.05.2005 as per Muslim rites and custom. Two children were born in their lawful wedlock. The appellant treated his wife with matrimonial cruelties both mental and physical, and he misused and misappropriated her
patrimony. He was an irresponsible man with a paranoic personality. He made malicious and scandalous allegations against the respondent/wife and he even questioned her chastity. He purposefully suppressed the fact that he had married twice before marrying the respondent. He threatened the respondent with a fourth marriage, if she was not ready to heed his demand for money. She went into depression because of the continuous torture
from the part of the appellant. In the year 2008, she went back to her paternal home along with her children. On 15.02.2011, he reached her home and locked her in the bedroom and manhandled her mercilessly. She was dragged through the floor and pushed against the showcase and its broken glass pieces pierced into her body and she was treated at KAH Memorial Hospital, Cheruvathoor. A police case was registered against the appellant in connection with that incident. Since it was not possible for her to continue her matrimonial life, with the appellant she filed OP No.33 of 2012, for a decree of divorce on the ground of matrimonial cruelties.
4. The appellant/husband vehemently opposed that petition
contending that he never subjected the respondent/wife to any kind of cruelty either physical or mental. According to him, the wife had some illicit relationship with one Mr.Suhail, and the reason for her mental pain was the strained relationship with Sri.Suhail. He would contend that, the respondent/wife was treating him with cruelty, and for the mental trauma, he had to undergo psychiatric treatment at Pariyaram Medical College Hospital since 2009. He
admitted that he had married twice before marrying the respondent. But that fact was informed to the respondent and her family members before he married her. His earlier marriages were dissolved by pronouncing Talaq and at the time of marrying the respondent, the earlier marriages were not subsisting.
5. After formulating necessary issues by the Family Court, the parties went on trial. PW1 and RW1 were examined and Exts. B1 to B3 were marked.
6. On analysing the facts and evidence and on appreciating
the arguments put forward from either side, the learned Family Court found that the respondent/wife was subjected to matrimonial cruelties both physical and mental by the appellant/husband and so she was eligible to get a decree of divorce under Section 2 (VIII) (a) of the Dissolution of Muslim Marriage Act, 1939, and accordingly their marriage solemnised on 01.05.2005 was dissolved. Aggrieved by the decree of divorce granted by the Family Court, the husband preferred this appeal.
7. Now, we are called upon to answer, is there any illegality, irregularity or impropriety in the impugned judgment, warranting interference by this Court.
8. Heard learned counsel appearing for the appellant/husband and learned counsel appearing for the respondent/wife.
9. PW1-the wife narrated the incidents of matrimonial cruelties both mental and physical she had to suffer at the hands of
the appellant. She deposed before court that the appellant was making malicious and scandalous allegations against her and he was even doubting her chastity. There is a plea in the written statement filed by the appellant that the respondent was having an illicit relationship with one Mr.Suhail, and it substantiates the case of the respondent that, he was doubting her chastity. The appellant had no materials to place, to convince the court that she had such an illicit relationship. If she was having an illicit relationship, and she was treating him with cruelty, why he wanted to maintain his marital relationship with her remains a mystery. He himself
admitted that he had married twice before marrying the respondent, and he had dissolved both those marriages by pronouncing Talaq. If the respondent was leading a wayward life definitely he could have adopted the very same procedure to dissolve his marriage with the respondent. But still he is insisting to keep his marriage with the respondent intact, for which he opposed the divorce petition filed by her.
10. Regarding the physical cruelties, the respondent has got a
definite case that, on 15.02.2011, the appellant reached her house, where she was staying with her children since 2008, and locked her in her bedroom, and brutally manhandled her causing physical injuries to her. She was taken to hospital and was
treated. Police registered a case against the appellant for assaulting the respondent. The appellant admitted before court that a criminal case was registered against him by Chandera Police, in connection with that incident. Admitted facts need not be proved. In spite of non production of documents by the respondent to prove the injuries suffered by her at the hands of the appellant, and registration of crime against him, the clear admission from the part of the appellant that a criminal case was registered against him in connection with the incident occurred on 15.02.2011, is more than sufficient to prove the physical cruelties meted out to her by the appellant. We find no reason to disbelieve the testimony of PW1 that she was illtreated both physically and mentally by the appellant.
11. The respondent wife has got another case that the
appellant suppressed his earlier marriages when he married her. Admittedly it was the first marriage of the respondent. Whereas the appellant himself admitted that he had married twice before marrying the respondent, but according to him, he had intimated that fact to the respondent as well as to her family, prior to the
marriage. But the respondent asserted that the appellant
suppressed the factum of earlier marriages from her, and he was threatening her, with another marriage, if she was not ready to satisfy his demand for money. She would say that after marriage, on his demand, her family had given Rs.1,50,000/- to him for going to Dubai. But soon after, he returned as he was not ready to
do any job. Moreover, he was not looking after his wife and children. When the ill treatment and neglect reached its zenith, she left her matrimonial home along with her children in the year 2008. Even after that, in the year 2011, he reached her home, and manhandled her brutally. Only thereafter, she approached the Family Court for a decree of divorce.
12. There is nothing to show that the appellant had informed
the respondent or her family regarding his previous marriages. There is nothing to disbelieve the testimony of PW1 that, the appellant never disclosed about his earlier marriages before marrying her.
13. Suppression of earlier marriages from the wife will
definitely come within the parameters of matrimonial cruelty. True that Muslim Law allows polygamy giving a man the right to marry up to four contemporaneously, provided he treats his wives fairly and does not differentiate between them. They deserve same
standard of treatment and accommodation. But in reality, polygamy is often a misunderstood concept in Islam. The case on hand is a classical example of the same. The appellant married twice and according to him, he pronounced Talak and dissolved those marriages. Subsequently, suppressing the earlier marriages, he married the respondent. It has come out in evidence that after one year of marrying the respondent, he again married another lady named Bushra. He was not providing shelter and maintenance to the respondent and children. So she had to approach the Magistrate court with a petition under Domestic Violence Act. He is making all sorts of allegations against the respondent, including
unchastity. But even then, he is opposing the divorce decree obtained by the wife. The parties are living separate for the last 15 years. The appellant had contracted a fourth marriage also as born out from records. But even then he is not ready to spare the respondent. Reunion is too remote after separation of long 15 years.
14. In Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511],
the Apex Court, while considering the impact and impropriety of refusing to sever the marriage tie despite the irretrievable break down, held that, where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such situations, the refusal may lead to mental cruelty.
15. In Naveen Kohli v. Neelu Kohli [(2006) 4 SCC 558], in paragraphs 75 and 76, the Apex Court held as follows:
“75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist”.
16. As a muslim wife, the respondent, even without
approaching a court of law for a decree of divorce, could have invoked ‘Khula’ to dissolve her marriage with the appellant in accordance with her personal law. Even then she approached the Family Court and on valid grounds, she obtained a decree of divorce. But it seems, the appellant wants to prevent her from enjoying the fruits of that decree though he is fully aware of the
fact that their marriage has become a deadwood. That itself amounts to cruelty from his part. Moreover, he is marrying one after another, as his personal law permits for the same.
17. Based on the facts and evidence, the Family Court is well
justified in granting a decree of divorce in favour of the respondent/wife. We find no reason to interfere with the decree of divorce granted by the Family Court, and hence the appeal stands dismissed. No order as to costs. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- SOPHY THOMAS, JUDGE DSV