Family Courts Must Evaluate Oral Evidence In Background Of Normal Human Behaviour Without Generalising Or Stereotyping: Kerala High Court
The Kerala High Court in a recent judgment held that family courts must avert to evaluation of testimonies in the background of normal human behaviour without generalisation or stereotyping when there is hardly any evidence other than oral evidence.
It further held that Family Courts should also weigh the oral evidence and resort to preponderance of probabilities.
The Division Bench of Justice Devan Ramachandran and Justice M.B. Snehalatha was considering an appeal preferred by a wife against the dismissal of her plea for divorce from the respondent husband.
Before the Family Court, only the documentary evidence produced was the Marriage Certificate and the appellant herself along with her mother deposed as PWs 1 and 2. From the side of the respondent, he himself deposed as RW1.
The parties got married and after staying together in the matrimonial home for a short while, they went to two different countries for work. During leave, the appellant used to go from Saudi Arabia to Sharjah to see her husband. While the appellant was in Sharjah, he made her resign her job during her pregnancy and she returned home.
Subsequently, a child was born to them and after staying together for a while, she went to Oman along with husband for a new job. Due to continuous abuse during this time, she returned to Kerala and finally fled from the matrimonial home. Thereafter, before returning to Oman, she filed the divorce petition.
The appellant alleged that she was subjected to physical and mental cruelty during the whole time of her marriage. Appellant's testimony remained intact even while under cross examination, and supported by that of PW2. The respondent submitted that the appellant was acting under the influence of PW2.
The High Court noted that the Family Court deconstructed the testimony of the appellant into three specific instances that occurred during different periods of time and found that there was no direct evidence to prove any of them.
The first instance was the cruelty before she fled the matrimonial home. The Family Court had found that in the absence of any indication regarding rescue operation or harassment, the same cannot be believed.
The Family Court also refers to an incident where the respondent visited the appellant's house to take care of their sick child and found that there was no cruelty as alleged. However, the High Court felt that the Family Court ought to have consideration the circumstances as a whole without concentrating on one aspect.
Referring to the second instance of cruelty that occurred in Sharjah, the Family Court found that since the country has strict laws, the appellant could have filed a complaint, bring the respondent to justice. Moreover, if the respondent was someone who behaved cruelly to her, he would not have taken visa in Oman. Such a conclusion, the High Court felt, was a narrow way of thinking and equivalent to blaming the victim, who was a woman living in a foreign country.
The final instance of cruelty taken by the Family Court was the one in Oman. The Family Court took one line of the appellant's testimony and came to the conclusion that she did not help the respondent to obtain an employment visa for her husband, and therefore, the imputation that he did not take care of the family was unbelievable.
The High Court held that the Family Court ought to have weighed the testimonies and based a conclusion based on preponderance of probabities. It observed:
“In a case where there is hardly any evidence except the testimony of the parties, the same ought have to been analysed and evaluated in the background of normal human behaviour, without any generationalisation or stereotyping… It is indubitable, in the afore scenario, that all which a Court can and has to do is to weigh the worth of the testimonies of the parties given against each other; and conclude, adverting to preponderance of probabilities.”
Regarding the Family Court's finding that the appellant was acting under the influence of her mother, the said conclusion was improbable since the appellant is an independent and employed women living in a foreign country.
The High Court set aside the judgment of the Family Court and found that the appellant was treated cruelly by the respondent. It, thus, granted divorce to them under Section 13(1)(i-a) of the Hindu Marriage Act.
Case No: Mat.Appeal No. 138 of 2023
Case Title: Dhanya Vijayan v. Rajeshkumar K.R.
Citation: 2025 LiveLaw (Ker) 649
Counsel for the appellant: Rajesh Sivaramankutty, K.V. Antony, Vijina K., Arul Muralidharan
Counsel for the respondent: P. Yadhu Kumar, P. Babu Kumar, Swetha K.S.