Read Time: 08 minutes

The Kerala High Court in a recent order has held that wife making discreet calls at odd hours against express 'warning' if the husband amounts to matrimonial cruelty. 

The bench of Justice A. Muhamed Mustaque and Justice Kauser Edappagath was hearing a matrimonial dispute filed by the husband appealing against three verdicts passed against him by two different Family Courts in three separate proceedings.
The issues, contentions raised and subsequent verdict on the same can be summarized as follows:

• The Original Petition has been filed by the husband for dissolution of marriage on the ground of adultery and cruelty. The husband has alleged that the wife has been maintaining illicit relationship with her superior at work. The lower court had opined that not enough material was posed to prove adultery, which the High Court agreed with. 

The High Court, observed that in case of adultery, proof by preponderence of probability is sufficient. However, there must be a high degree of probability. In the present case, the Court noted that only hearsay evidence of 'pleasure trips’ and relationship before marriage has been adduced by the husband. Further, the husband had submitted the wife used to make discreet phone calls to which the Court noted, 

"...merely for the reason that the wife used to make calls regularly to the second respondent, we cannot jump into a conclusion that their relationship was an illicit one and that there was adulterous act between them. As stated already, there must be a high degree of probability to substantiate the allegation of adultery."

• The husband had raised allegations of matrimonial cruelty against the wife. The husband specifically deposed that right from the inception of marriage, there has been unusual conduct and abusive humiliating treatment on the part of the wife. The High Court noted that there is no doubt that there was cruelty. 

However, on previous two occasions the husband had withdrawn charges against the wife essentially 'condoning' the cruelty. Based on which the lower court observed that the husband has started cohabiting with the wife after condoning her behaviour and there was no case for the husband that during the said period, he was subjected to any sort of cruelty by the wife.

The High Court opined that, mere compromise would not amount to condonation of cruelty unless and until the matrimonial life was restored. There is absolutely no material on record to indicate resumption of conjugal life in its true spirit between the husband and the wife after the compromise, the Court noted. The husband submitted the wife continued making calls at odd hours in spite of his warning. Further the wife had made false accusations against the husband, his mother and his sister for demand of dowry. Thus the Court rejected the decision of the lower court and opined,

"For the reason stated above, we hold that making continuous telephonic interactions by the wife with the second respondent ignoring the warning given by the husband and false initiation of criminal prosecution by the wife against the husband and his parents after the reunion constitute mental cruelty and they are sufficient to revive the past acts of proved cruelty."

• The husband had also preferred an appeal for visitation rights to his daughter. The husband had alleged that he being the father is the natural guardian of the child and that mother was not taking proper care of the child and hence he has to be appointed as the guardian. However, the High Court observed that, 

"There is nothing on record to suggest that the child is in any way neglected or not taken care of by the mother. The evidence on record also would show that child has been given proper care and education by the mother"

The Court thus allowed the appeal in part and dissolved the marriage.