FACTUAL MATRIX:
The petitioner and respondent got married on 23rd August 2009 and they wedded according to their cultural rite. The physical relationship was rather brief and followed 17 days of live together; the respondent was working abroad and quit. However, during this short period they had a poor relation and that is why at some point there were more severe accusations which formed the basis of legal claims of the petitioner.
The petitioner remained in the matrimonial home after the respondent left until November 29, 2009, according to of the fact. She says that the respondent and his family absorbed gold ornaments and one lakh of rupees which were given at the married time. She also alleges acts of mental and physical abuse that made her to be chased out of her matrimonial home on November 29, 2009.
The legal battle finally commenced when on the same day of the incident, the petitioner’s mother fled the country and from the matrimonial home on November 30, 2009, and filed a complaint with the Paravur police against the respondent and his family. They also never communicated with the petitioner since the filing of the complaint and never provided for the maintenance of the child. Finally, the petitioner concluded that there is no other way out expect to take Member/Respondent and his family to court, where the Member/Respondent has instituted a criminal case against the family. This case also has the respondent’s alleged sexual misconduct and physical assaults on the appellant when they were living together.
The petitioner has complained at the respondent of having been subjected to severe physical and mental cruelty while married to him. In her defence, she says that the respondent sexually assaulted her in the following manners; he would bite her lips and force her to take his semen in her mouth, and also hold her with his toes. She also deposed that he used to force her into mimicking scenes in x-rated films. The respondent started hitting the woman when she declined to submit to his authority. Further, she argues that the situation of the applicant worsened when his family threatened her further while he was away. These two are the main roles of experiences she builds upon to seek a divorce; desertion and cruelty as the grounds of her lawsuit.
The petitioner is claiming he had deserted her and had been cruel to her, hence wants a divorce. The first official grievance was made on the 30/11/2009. This filing is relevant as it shows the kind of response she provided after leaving the marital home. Her account described a string of violent behavior by the respondent that included sexual coercion, physical assaults and complete disregard of her safety when he moved out of the country.
ADDRESSED ISSUE:
The appeal arises from a judgement passed on July 30, 2019 by the Family Court, Ernakulam. The petitioner filed the case where he demanded divorce under Section 13(1) (a) and (b) of the Hindu Marriage Act, 1955 basing his grounds on cruelty and dissertation. While, the respondent on the other hand filed an application for the restoration of conjugal rights under Section 9 of the Hindu Marriage Act,1955.
Thus, while being here in this petition, the petitioner leveled the allegation of cruelty against the respondent, after the marriage was solemnized. Under Section 498A of the Indian Penal Code, 1860 cruelty is all such conduct of the person that causes mental or physical harm to the health of any other person, including the petitioner.
Just seventeen days after marriage, the respondent abandoned the petitioner to go and reside in a foreign country. The petitioner has been neglected, endangered and ejected out of the matrimonial home by the husband’s side, especially the wife’s side relatives as seen in the follow up. Indeed in this situation the husband did not take any precautions to protect his wife, which created the basis for the dissolution of the marriage.
The authorities of the Family Court refused the application on divorce and agreed with the application on the restoration of marriage. The latter has been challenged by the petitioner and hence the reason for this case.
Given the nature of the allegations made, and to protect the identity of this individual, the court directed that the parties’ names and addresses should not appear in the name of the case. From this point onwards, the appellant will be referred as X, while the respondent will be referred as Y; These measures are intended to prevent identification of the individuals involved in this complex legal affair and to protect their human dignity.
ANALYSIS:
Three primary issues need to be determined before the High Court of Kerala
1.Whether the sexual acts amount to cruelty:
The first contentious area that can be discussed is whether the acts of sexual perversion that the respondent has allegedly committed to can be referred to as cruelty and therefore lead to the granting of a decree of divorce to the petitioner.
The acts of sexual perversion that have been complained of by the petitioner were humiliating and degrading to her. Such allegations are that he used to make her consume his semen, act like scenes from the sexual movies, biting her lips and clamping her vagina using his toes. While the petitioner did not elaborate on these acts in the petition because ‘usfos want to observe dignity’ while presenting their cases, alluded to such acts during cross examination, thus presenting a case of emotional and physical abuse. The petitioner has annexed the above acts as evidence that the matrimonial relationship deserved to be dissolved on grounds of cruelty.
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