Mat.A No.77 of 2024 1 2025:KER:16939 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN & THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946 MAT.APPEAL NO. 77 OF 2024 AGAINST THE JUDGMENT DATED 28.10.2023 IN OP(DIV)NO.195 OF 2021 OF FAMILY COURT, THODUPUZHA APPELLANT/PETITIONER: SINI BHASKARAN AGED 34 YEARS D/O.KANNAN BHASKARAN, PARAYIRIKKUMPURAYIDA, KUMBANAD.P.O., THRIVUVALLA, PATHANAMTHITTA, PIN - 689547 BY ADV M.R.JAYALATHA RESPONDENT/RESPONDENT: SIJU PAUL, AGED 42 YEARS S/O THOMAS PAULOSE, THYPPARAMBIL HOUSE, MULAPPURAM.P.O, MULAPPURAM, NEYYASSERI VILLAGE, IDUKKI, PIN - 685581 THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 24.02.2025, THE COURT ON 27.2.2025 DELIVERED THE FOLLOWING: Mat.A No.77 of 2024 2 2025:KER:16939 DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ. ------------------------------------------- Mat.Appeal No.77 of 2024 ------------------------------------------- Dated, this the 27th February 2025 JUDGMENT M.B.Snehalatha.J Challenge in this appeal is by the wife against the judgment and decree of the Family Court, Thodupuzha which declined the relief of divorce sought by her under Section 10(1)(x) of the Divorce Act and the claim for permanent alimony. 2. Appellant filed the Original Petition stating that her marriage with the respondent was solemnized on 5.11.2018; that the respondent married her by misrepresenting his age and salary. After the marriage, appellant had to resign her job as insisted by the respondent. In March 2019, respondent took her to Dubai, wherein he was employed. While residing there, though she became pregnant, due to the stress and strain in the marital life, she had to suffer miscarriage. Thereafter, she returned to Kerala. Respondent completely ignored her and did not provide any financial support to her. Respondent subjected the appellant to mental cruelty and due to the harassment and ill-treatment, appellant is residing in her Mat.A No.77 of 2024 3 2025:KER:16939 parental home since September 2019. Respondent has never contacted her thereafter. There is no chance of reunion and it is impossible for the appellant to continue marital life with the respondent. Therefore, she sought divorce on the ground of cruelty and also claimed permanent alimony of ₹10 lakhs from the respondent. 3. In the objection filed by the respondent he denied the allegations levelled against him and contended that there was no cruelty; that he has not suppressed his age and the details of his job at the time of marriage proposal, as alleged by the appellant. Respondent took the appellant to Dubai and they were residing in a rented apartment. Respondent provided all support and care to the appellant while she was residing there. The miscarriage was occurred due to the health issues of the appellant and not due to any mental strain allegedly caused by the respondent. Appellant stayed in UAE along with the respondent till October 2020. He never ignored or avoided the appellant as alleged. He used to send money to her bank account maintained at Federal Bank, Karimannoor Branch and the allegation that he did not provide any financial aid to the appellant, is incorrect. He sought for dismissal of the petition. 4. After trial, the learned Family Court dismissed the petition on the ground that the appellant failed to establish the mental cruelty Mat.A No.77 of 2024 4 2025:KER:16939 alleged by her. 5. The point for consideration in this appeal is whether the judgment and decree of the Family Court dismissing the petition for divorce and permanent alimony need any interference by this Court. 6. Despite notice by paper publication, respondent failed to enter appearance in this appeal and defend his case and therefore the court proceeded to hear the appeal exparte. 7. Heard the learned counsel for the appellant. 8. Parties are Christians and admittedly, the marriage was solemnized on 5.11.2018. Appellant seeks divorce on the ground of cruelty. One of the allegation raised by the appellant/wife is that at the time of the marriage proposal, respondent suppressed his actual age and also misrepresented his job and salary. But no evidence was let in by the appellant to show that the respondent misrepresented his age and job and thus played fraud on her as alleged. 9. The definite case of the appellant is that though after marriage respondent/husband took her to his workplace in Dubai, he failed to take care of her and totally neglected her; that he could not arrange a comfortable accommodation for her; that since the respondent was reluctant to pay the rent of the accommodation, the couple had to shift their accommodation frequently. According to the appellant, there was no bed, water and electricity in the room Mat.A No.77 of 2024 5 2025:KER:16939 wherein they resided. It is her case that due to the stress and strain undergone by her, she had to suffer miscarriage. Her version is that after the marriage, respondent behaved indifferently and strangely to her parents and relatives, which caused great mental agony to her. She has also testified that respondent did not spend any amount for her treatment at Kolenchery MOSC Medical College, consequent to her miscarriage. 10. Cruelty can be either physical, emotional, psychological or verbal. Different people may experience and pursue cruelty in different ways based on their personality and emotional resilience. A behavior that may be seen as trivial in one marriage might be deeply hurtful in another. The courts do not rely on a definition of cruelty but has to evaluate each case based on its facts. 11. In Litty Mary John v. Manoj K.Varghese (2024 KHC OnLine 693) the Division Bench of this Court (One of us was in the said Bench) held as follows: “11. A single, overarching definition of "cruelty" is impractical and ineffective, as it can manifest in various forms and shapes - it may be perceived differently in different situations. What constitutes cruelty often differs from person to person, situation to situation, as it is subjective and depends on the perception of the individual experiencing it. 12. The concept of cruelty indubitably is inherently subjective - it being inevitable - since what one person considers cruel, may not be perceived the same way by another. This subjectivity arises from individual differences in values, experiences, and sensitivity. For instance, an action that causes emotional distress to one person, might be perceived as trivial or inconsequential by someone else. These varying perceptions make it difficult to establish a universal Mat.A No.77 of 2024 6 2025:KER:16939 definition of "cruelty", as it relies heavily on the individual's personal interpretation and emotional response to the behaviour in question. 13. Though "Matrimonial cruelty" unfortunately has sometimes been perceived "part and parcel" of marriage, it has - more than often - evaded precise connotation. A spouse who has endured it for years - whether due to being silenced by the other spouse or their family, gas lighted, or unaware that it constitutes "cruelty" - may lack the courage to speak out about the horrific experiences she / he has faced within the four walls of their shared household. When they finally do muster the courage, the complaining spouse frequently finds themselves under intense scrutiny, facing questions about their background, the frequency of such incidents, and whether the other spouse is otherwise ideal in other aspects of the marriage and so on. This is applicable more pointedly in the case of a woman in a matrimonial relationship.” 12. A more flexible and comprehensive approach is needed when evaluating a case where there is a wife seeking divorce on the ground of cruelty. 13. In Roopa Soni v. Kamalnarayan Soni [AIR 2023 SC 4186], The Hon’ble Supreme Court observed as follows: “(7). Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism.” 14. The Apex Court also observed as follows: “…... element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce.” (emphasis supplied by us) 15. In the case at hand, the appellant is categoric in her Mat.A No.77 of 2024 7 2025:KER:16939 version that respondent treated her with cruelty. Unlike physical abuse, which is easier to prove, mental cruelty varies from case to case. When she says that respondent behaved in a manner so as to create an impression in her that she was totally neglected by the respondent, there is no reason for this Court to disbelieve the said version. It is her definite case that it was due to the stress and strain experienced by her in her family life with the respondent, she had to suffer miscarriage. It is in evidence that after miscarriage, she returned to Kerala and she is residing with her parents and thereafter respondent has not looked after her affairs. 16. In Anilkumar V.K. v. Sunila.P (2025 (2)KHC 33) this Court held as follows: “15. A behaviour that may be seen as trivial in one marriage might be deeply hurtful in another. Therefore, cruelty is to be assessed on a case - by - case basis. What constitutes cruelty in a matrimonial relationship depends on the unique circumstances, behaviour and experience of the parties involved. Courts do not rely on a rigid definition of cruelty but has to evaluate each case based on its facts. Courts have to analyse whether the conduct makes out unreasonable for the one spouse to live with the other.” 17. The conduct of the respondent in not defending the appeal points to the fact that he is not interested in saving the matrimony with the respondent. There is no love lost between the couples. Courts have leaned towards granting relief of divorce when the wife faces neglect, indifference and emotional distress even if Mat.A No.77 of 2024 8 2025:KER:16939 there is no outright violence. If neglect, humiliation or lack of affection makes cohabitation unbearable, courts can grant divorce. This flexible approach ensures that justice is served based on the realities of marriage rather than rigid definitions. Forcing incompatible partners to stay together would cause more harm to both parties. The marriage between the spouses is no longer viable and the relationship had essentially ended as the same has irretrievably broken and therefore there is no need to continue the agony of a mere status of husband and wife. Accordingly, this appeal is allowed; the impugned judgment and decree stand set aside and divorce is granted under Section 10(1)(x) of the Divorce Act. 18. Now let us see whether the appellant is entitled to get permanent alimony. 19. Appellant has sought ₹10 lakhs as permanent alimony from the respondent. 20. Appellant’s case is that she has no job or income of her own and the respondent has not provided any maintenance to her. According to her subsequent to the marriage, she had to resign her job as insisted by the respondent. 21. Respondent has no case that he has given any maintenance to the appellant from 2020 onwards and he is looking after any of her affairs. Mat.A No.77 of 2024 9 2025:KER:16939 22. Taking into account the facts and attending circumstances, we are of the view that a sum of ₹5 lakhs can be awarded as permanent alimony to the appellant. 23. In the result appeal allowed as follows: a) The judgment and decree in O.P.No195/2021 of Family Court, Thodupuzha stands set aside and divorce is granted under Section 10(1)(x) of the Divorce Act. The marriage between the appellant and the respondent solemnized on 5.11.2018 is hereby declared as dissolved, with effect from the date of this judgment. b) The respondent shall pay an amount of ₹5 lakhs as permanent alimony to the appellant. The amount shall carry interest at 6% per annum from this date till the date of realisation. Sd/- DEVAN RAMACHANDRAN JUDGE Sd/- M.B.SNEHALATHA JUDGE ab