Kerala High Court recently held that the wife making discreet phone calls to another man and that too during the odd hours of the night despite repeated warnings by the husband amounts to mental cruelty. The bench allowed the husband’s plea for the dissolution of marriage.
“Physical violence is not absolutely essential to constitute cruelty,” noted High Court bench comprising Justice A Muhamed Mustaque and Kauser Edappagath.
The bench added, “Making discreet phone calls frequently by the wife with another man disregarding the warning of the husband, that too at odd hours, amounts to matrimonial cruelty.”
To constitute cruelty, the conduct and behaviour of one spouse towards the other need only be of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him/her to continue the marital tie, the Court noted.
“The husband deposed that on one occasion, he overheard the intimate conversation between the wife and the second respondent and on questioning, she told him that the second respondent was having more right over her body and mind than him. According to the husband, she continued making calls with the second respondent in spite of his warning. It shows that even after the husband questioned the wife about her telephone conversation with the second respondent, and even after she realised that the husband did not like her making such telephone calls, she continued to make telephone conversation with the second respondent on almost all days, and several times on a single day. It is also pertinent to note that during evidence, the wife deposed that she used to call the second respondent only on certain days. However, documentary evidence proved otherwise. Making discreet phone calls frequently by the wife with another man disregarding the warning of the husband, that too at odd hours, amounts to matrimonial cruelty,” Justice Kauser Edappagth noted.
Kerala High Court was hearing three petitions filed by husband challenging three Thodupuzha Family Court judgments.
In a judgment, the Family Court has rejected the husband’s plea seeking dissolution of marriage on the grounds of adultery and cruelty.
In another judgment, the family court had allowed the wife’s plea to return gold ornaments and money.
In the third judgment, the husband had sought directions to appoint him as the guardian of the minor child which was dismissed by the Family Court.
They got married in May 2006 at Sreekrishnaswami Temple, Thodupuzha under Hindu laws. The couple had a child out of that wedlock in November 2007.
While accusing wife of adultery, the husband also submitted that she 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.
The petitioner also alleged that the wife had filed false cases against him, his mother, and his sister.
He cited the calls to prove the adultery allegations made against wife. The husband also submitted that the wife and second respondent had gone on several pleasure trips. He also alleged that he found out that they had been in a relationship before marriage and continued it after the wedding too.
The Court noted that the evidence produced by the husband was not sufficient to prove an offence of adultery.
However, the bench noted that the wife used to make discreet calls to the second respondent during odd hours of the night.
“It has come out in evidence that the wife used to make frequent telephone calls with the second respondent during the period from October 3, 2012 to April 27, 2013. Ext. X1 CD produced from BSNL would substantiate the same. There were instances where the wife made calls during odd hours as well. For instance, on February 28, 2013, she had made 10 calls out of which 5 were missed calls, that too between 10.40 pm to 10.55 pm,” the Court observed.
The bench went on to add, “From the kind of attitude, conduct and treatment discussed above, it can readily be inferred that the husband has every reason to apprehend that it is not safe for him to continue the marital relationship with the wife.”
Kerala High court allowed the petition for dissolution of marriage but dismissed his appeals against return of money and for guardianship of the child.
Talking about the visitation rights, the bench stated, “That order was passed when the child was 7 years old. Now, the child has attained 13 years. The Apex Court in Yashita Sahu v. State of Rajasthan has held that even if the custody is given to one parent, the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents.”
The bench had given the husband liberty to move Family Court to seek directions to modify or vary the visitation right granted.
“If such an application is filed, the Family Court shall consider and dispose of the same on merits in accordance with law,” the bench said.
