The Kerala High Court stated that a wife making secret phone calls to another man at odd hours of the night, notwithstanding the husband's caution, amounts to matrimonial cruelty.
Physical violence is not required to be cruel, according to the verdict, which was handed down in August 2021.
“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.
The conduct and behaviour of one spouse toward the other need only be of such a kind that it generates reasonable anxiety in the latter's mind that it is not safe for him or her to retain the marital tie, according to the Court.
“It is settled that physical violence is not absolutely essential to constitute cruelty.” Kerala High Court
The husband had filed three distinct appeals against the three judgements of the Family Court in Thodupuzha, and the Court was considering them all.
One of the verdicts had dismissed the husband's request for dissolution of marriage based on infidelity and cruelty.
The Family Court partially granted another ruling on the wife's request for the restoration of gold jewellery and money.
The husband's third petition for appointing him as the minor child's guardian was dismissed.
The husband's appeals against all three rulings were considered by the High Court at the same time.
In May 2006, the husband and wife were married according to Hindu religious procedures at Sreekrishnaswami Temple in Thodupuzha. They moved in with the husband's family in Ernakulam after the wedding. In November 2007, a child was born out of wedlock.
The pleadings and evidence on record revealed that their marriage was not joyful and amicable from the start. Soon after their marriage, they had marital strife, which grew worse with time.
The husband claimed in front of the High Court that his wife was an adulterer who committed various iniquitous acts, such as constantly using filthy language, abdicating all shared household duties, threatening suicide, refusing to have sex, picking up quarrels, demanding to take her back to her parental home, ridiculing him in front of others, abusing his mother, and so on.
It was also claimed that his wife filed bogus charges against him, his mother, and his sister.
The husband relied on specifics of the calls made between the wife and the second respondent to support claims of infidelity. He further stated that the wife and the second respondent had gone on pleasure excursions and that, after speaking with various people, he discovered that they had been in a relationship prior to marriage and that it had continued after the wedding.
The Court ruled that the husband's evidence was insufficient to prove adultery.
The Court did remark, however, that there was evidence that the wife used to telephone the second respondent frequently.
“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 phone discussion with the second respondent, and she realised that the husband didn't like her making such calls, she continued to call the second respondent virtually every day, sometimes multiple times in a single day, according to the Court.
While this may not be sufficient to infer adultery on the wife's behalf, the Court determined that it amounted to matrimonial cruelty.
The wife was also accused of neglecting his parents and picking fights with them unnecessarily, according to the court. A crime was also filed against the husband and his parents because they physically abused the woman, but they were acquitted.
“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.
The Court granted the husband's request for dissolution of marriage on these and other grounds.
The Court, on the other hand, dismissed the appeals against the money and for guardianship of the child.
The Bench, on the other hand, pointed out that the Family Court had granted the husband only once-a-month visitation rights.
The order was made when the youngster was seven years old, according to the Court.
“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.
As a result, the spouse was granted the ability to petition the Family Court to amend or vary the visiting privileges granted, including the right to seek 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.