HIGH COURT OF KERALA
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(1.) The appellant / husband filed O.P. No. 405/99 before the Family Court, Manjeri for dissolution of marriage with the 1st respondent. The grounds urged in the application were cruelty and adultery. The averments before the Court below were that he married the 1st respondent during May, 1979 as per Hindu religious rites. Even though the 1st respondent conceived more than once, no child was born to her because of some infirmity. Doctors opined that there was no possibility of her giving birth to a child. Anyhow, the marital life became strained, according to the petitioner husband, on account of the adulterous life of the 1st respondent with the 2nd respondent who is one of her relative. It is alleged that specific instances of sharing the same bed by respondents 1 and 2 were witnessed by the appellant. It is also alleged that the 1st respondent was so cruel towards the appellant. Even though the appellant had seen and objected the illicit relation she kept quiet and continued the same. During January, 1999 the 1st respondent left the matrimonial house and thereafter the appellant and the 1st respondent are living separately. After considering the evidence the Family Court found that there was no independent evidence to prove the relationship between respondents 1 and 2. The court below held that after a lapse of more than 20 years of marital life it cannot be imagined that the 1st respondent would have any illicit relationship with the 2nd respondent. It was also found that the instance of illicit sexual relations narrated by the appellant was not corroborated by any independent evidence. The cruelty alleged against the appellant was also not correct and it was not proved. Hence, the application was dismissed. The appellant contends that the finding of the Family Court with regard to the desertion of the 1st respondent is due to the adamant attitude of the appellant is not correct. It is further contended that the finding of the Family Court that the adulterous life of the 1st respondent is not proved by independent evidence is perverse.
(2.) It is a fact to be noted that even after the long marital life there was no issue in the wedlock. This by itself may not be a reason for his mental agony but coupled with the adulterous life of his wife, would cause harm or injury to him. It is relevant to note that even after witnessing the extra marital relationship between the 1st respondent and the 2nd respondent the appellant kept quiet for sometime as a husband, at least in the society. Cruelty can be either physical or mental. Assuming that was no physical cruelty by the wife, the act of living together or sharing the bed with another man itself is a cruelty. Especially, a man lived with and loved her for several years fully knowing that his wife was not capable of giving birth to a child. Throughout his marital life he had given his love and affection to his wife and considered her as his sole consolation. In this context, we see that though the term cruelty is not defined in the Act this Court attempted to give a definition in Suseela v. Gopalakrishna Prabhu Mohandas Prabhu ( 1975 KLT 72 ) that treatment which causes reasonable apprehension in the mind that such action will be harmful or injurious to live with the other party. The injury or harm may include cases other than that of injury to body, limb or health. Mental cruelty is recognised as a cruelty for seeking a decree for divorce. In the case in hand the appellant witnessed sharing of the same bed by the 1st respondent with 2nd respondent. This is a reason for causing shock and mental agony. There is evidence to show that the 1st respondent left matrimonial house for the last several years. The finding of the Family Court that the alleged adulterous life of the 1st respondent was not proved by independent evidence is a perverse finding. It is evident that the marital relationship between the appellant and the 1st respondent is broken irretrievably.
(3.) From the above discussion, we are of the view that the appellant is entitled for dissolution of the marriage. Hence we allow the appeal sitting aside the judgment of the Court below and the Original Petition is allowed declaring the marriage between the appellant and the 1st respondent as dissolved.;
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