Wife making discreet phone calls to another man disregarding husband’s objection is matrimonial cruelty: Kerala High Court

Wife making discreet phone calls to another man during odd hours of the night, disregarding the warning of the husband amounts to matrimonial cruelty, the Kerala High Court observed while allowing a plea for dissolution of marriage..The judgment which was rendered in August 2021 said that physical violence is not absolutely essential to constitute cruelty.“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,” a Bench of Justices A Muhamed Mustaque and Kauser Edappagath ruled.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 said..It is settled that physical violence is not absolutely essential to constitute cruelty.Kerala High Court .The Court was hearing three separate appeals filed by the husband against the three judgments of Family Court at Thodupuzha.One of the judgments had rejected the plea by the husband seeking dissolution of marriage on the ground of adultery and cruelty.Another judgment on plea of wife for return of gold ornaments and money was allowed in part by the Family Court.A third plea instituted by the husband for appointing him as the guardian of the minor child was dismissed.Appeal against all three judgments by the husband came to be heard by the High Court together..The marriage between the husband and wife was solemnized in May 2006 at Sreekrishnaswami Temple, Thodupuzha as per the Hindu religious rites. After the marriage, they resided at the house of the husband at Ernakulam. A child was born out of the wedlock in November 2007. The pleadings and evidence on record disclosed that the marital relationship between them was not cordial and happy right from the inception. Marital discord developed between them soon after the marriage which was intensified by passage of time.The husband submitted before the High Court that wife was an adulterer and 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 wife also launched false cases against him, his mother and sister, it was alleged..In order to prove allegations of adultery, the husband relied on details of the calls made between the wife and the second respondent. He also claimed that the wife and second respondent had gone on pleasure trips and that on enquiry with different persons, he came to know that they had been in a relationship before marriage and it continued after the wedding too.The Court said that the evidence produced by husband was not sufficient to prove adultery..However, the Court noted that there was evidence that the wife used to make frequent phone calls to second respondent.“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 noted.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, the Court added.While this might not be sufficient to infer adultery on the part of the wife, it would amount to matrimonial cruelty, the Court ruled..The Court also noted that there was evidence that the wife had neglected his parents and used to pick up quarrel with them unnecessarily. Further, a crime was registered against the husband and his parents on the allegation that they physically assaulted the wife which ultimately ended in acquittal“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,” the Court said.On these among other grounds, the Court allowed the plea of the husband for dissolution of marriage..However, the appeals against return of money and for guardianship of the child, were dismissed by the Court.The Bench however, noted that the Family Court had afforded visitation right to the husband only once a month.That order was passed when the child was 7 years old, the Court noted.“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 Court said.It, therefore, granted liberty to the husband to move the Family Court to modify or vary the visitation right granted including seeking contact rights.“If such an application is filed, the Family Court shall consider and dispose of the same on merits in accordance with law,” the Court directed..[Read Judgment]