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2010 DIGILAW 841 (KER)

Elizabeth Alias Jolly George v. T. G. Andrews

2010-10-29

M.L.JOSEPH FRANCIS, R.BASANT

body2010
JUDGMENT : R. BASANT, J. 1. Is there reasonable cause to justify the withdrawal of the wife from the matrimonial society of the husband? Is he entitled to a decree for restitution of conjugal rights? These are the simple questions to be decided in this appeal. But this appeal reveals the burdensome nature of adjudication of matrimonial causes. For the adjudicators also it is demanding, draining disappointing and frustrating too. The court feels that the endeavour to distinguish truth from perceptions of the parties in matrimonial causes is indeed challenging and difficult and more importantly perhaps, unnecessary and purposeless too. The question still remains: Has not our society attained sufficient maturity to leave the matrimonial options safely in the hands of the individuals concerned? Should the system tax itself with the responsibility of attempting to make value judgments of right and wrong in matrimonial causes which are purely interpersonal? Should spouses be compelled to spend long years in the corridors of matrimonial courts to liberate themselves from the `holy' knot which is giving them nothing but trauma and frustration? Is it not time yet to have a healthy piece of modern matrimonial legislation that permits unwilling spouses to walk out with dignity as friends from a matrimony that he or she considers unworkable? Will not stipulations of mandatory counselling and mandatory period of waiting and of legal mechanism to protect the financial interests of the economically fragile partner and children born in such matrimony better serve the interests of the society and justice? These disturbing thoughts come to our mind again when we commence dictation at the end of a long exercise where we find ourselves unable to persuade the couple to unite harmoniously or to part with dignity as friends. 2. To the fundamental and undisputed facts first of all. The young couple, contestants in this appeal, are both qualified teachers. There is, of course, a dispute as to whether the wife is presently employed or not. Their marriage took place on 25/5/98. After marriage initially they had attempted to reside together in the parental home of the husband; but they had given it up and they had resided at two places - Ballussery and Ulliyeri, in houses taken on rent. The wife became pregnant. There was acrimony in the marriage on account of various reasons. Their marriage took place on 25/5/98. After marriage initially they had attempted to reside together in the parental home of the husband; but they had given it up and they had resided at two places - Ballussery and Ulliyeri, in houses taken on rent. The wife became pregnant. There was acrimony in the marriage on account of various reasons. The wife was not taken to her house for delivery during the seventh month. The spouses continued to reside in the rented house. The mother of the wife had gone to that house and had resided with the couple for about one month. Separate residence started from 30/9/99 when the wife was taken to her house for delivery. From 30/9/99 the spouses are residing separately. A female child was born on 19/10/99. 3. According to the husband, the wife has unreasonably and without sufficient cause withdrawn from his society. She is not willing to resume cohabitation after child birth. He is willing to take her and resume cohabitation. It is, in these circumstances, that the husband came to the Family Court with this petition for restitution of conjugal rights under Section 32 of the Divorce Act. 4. The wife resisted the claim of the husband. According to her, she had sufficient and justifiable cause to insist on separate residence and not resume cohabitation with the husband. She contended that the husband was guilty of mental and physical cruelty. She is entitled for a decree for divorce on that ground. Subsequent to the filing of this petition for restitution of conjugal rights, the wife had filed an application for divorce. The same stands stayed now. The wife had, during the pendency of the proceedings before the Family Court, initiated proceedings before the authorities to prosecute the husband complaining about matrimonial cruelty and the infliction of injury including a fracture. That criminal proceeding is also stayed by the order of this Court consequent to an attempt made by the court to harmoniously persuade the parties to settle their disputes. 5. According to the wife, the husband was guilty of mental and physical cruelty after the marriage. That criminal proceeding is also stayed by the order of this Court consequent to an attempt made by the court to harmoniously persuade the parties to settle their disputes. 5. According to the wife, the husband was guilty of mental and physical cruelty after the marriage. While they were residing at his parental house and later at the houses taken on rent by them and subsequently when she started residing in her parental home after she returned for delivery and even during the pendency of the proceedings before the Family Court, the husband was guilty of physical and mental cruelty. He was interested in money only. Her parents had given her ornaments and cash. An item of property was agreed to be given. The husband was more interested in the property and he used to make vexatious demands for execution of a document by the father of the wife in his favour. The wife was fed up and she did not, in these circumstances, want to return to the husband. Contumacious cruelty was deterring her from resuming cohabitation. She prayed that the petition may be dismissed. 6. Parties went to trial on these contentions. On the side of the husband he examined himself as P.W.1. A neighbour residing near one of the houses taken on rent by the couple for their residence was examined by the husband as P.W.2. He was examined to show that all was fair and rosy and there was no strain in the relationship between the husband and the wife. The husband examined his brother as P.W.3. His evidence has no direct bearing on the question of matrimonial cruelty. 7. The wife examined herself as R.W.1. She spoke about the physical and mental cruelty heaped on her by P.W.1 after marriage. She had a further contention that when the case stood posted on 11/12/03 before the Family Court her husband had assaulted her and had inflicted grievous injury on her including a fracture. This had obliged her to go to the Medical College where R.W.2 Doctor examined her and issued Ext.B4 wound certificate. 8. She examined another witness as RW3. He is a neighbour who is residing near one of the houses taken on rent by the spouses for their residence. According to him the wife was subjected to cruelty by her husband PW1. He claimed to have witnessed one such act of physical cruelty. 9. 8. She examined another witness as RW3. He is a neighbour who is residing near one of the houses taken on rent by the spouses for their residence. According to him the wife was subjected to cruelty by her husband PW1. He claimed to have witnessed one such act of physical cruelty. 9. Exts.A1 to A8(c) were marked by the husband. The documents of relevance are Ext.A3, a telegram sent by the husband to the wife demanding resumption of cohabitation, Ext.A4, a lawyer notice issued by PW1 to his wife demanding her return to him and Ext.A5, a document to show that the husband had taken up a separate residential premises on rent to enable the spouses to resume cohabitation. 10. On the side of the wife, Exts.B1 to 8 were marked. Exts.B1 and B2 are letters issued by the husband to the relatives of the wife, in which he had in detail described the strained relationship between the spouses and their families. Ext.B3 is the reply notice sent to Ext.A4 by the wife. Ext.B8 is the photocopy of the FIR registered by the Balusserry Police on the complaint of the respondent, inter alia under Section 498A of I.P.C. 11. As there was a dispute between the parties about the alleged incident which took place in the premises of the Court on 11.12.2003, the court below appears to have been examined the counsel for the husband as CW1 - a Court witness. 12. The court below on an anxious evaluation of all the relevant inputs came to the conclusion that the wife has not succeeded in proving reasonable cause to withdraw from the conjugal society of the husband and to justify her separate residence. The leaned Judge relying on the evidence of CW1 appears to have further sailed to the conclusion that the story about the incident that allegedly took place on 11.12.2003 is not true and correct and the same cannot be reckoned as a circumstance against the husband justifying the refusal of the wife to cohabit with the husband. Accordingly the court below proceeded to pass the impugned order. The court below appears to have felt that the over sensitive wife was unnecessarily refusing to cohabit with the husband. 13. We have heard the learned counsel for the appellant/wife and respondent/husband. Accordingly the court below proceeded to pass the impugned order. The court below appears to have felt that the over sensitive wife was unnecessarily refusing to cohabit with the husband. 13. We have heard the learned counsel for the appellant/wife and respondent/husband. As stated earlier an attempt made by the Court to persuade the parties to honourably settle the disputes either by resumption of cohabitation or by parting ways with dignity as friends. That attempt did not succeed. The matter has now got to be disposed of on merits. 14. The learned counsel for the appellant submits that the court below erred grossly and perversely in coming to the conclusion that reasonable cause to justify separate residence has not been established by the wife. That finding of fact is grossly erroneous, unreasonable, irrational and perverse. The same deserves to be interfered with by invoking the appellate jurisdiction under Section 19 of the Family Court Act, contends the learned counsel for the appellant. 15. The learned counsel for the respondent on the contrary submits that the court below had made every possible attempt to ascertain the truth and the conclusion of the court below that the husband was not guilty of physical or mental cruelty and that the wife has no justifiable reason to reside separately is eminently reasonable and acceptable. The same does not warrant appellate interference, it is urged. 16. We have the oral evidence of PW1 and RW1 on this crucial question. We have been taken through the entire oral and documentary evidence and also the pleadings in this case. Less said about the oral evidence, tendered by PW2 neighbour and RW3 neighbour, the better. Similarly, the evidence of PW3 does not throw any specific light on the disputed question of matrimonial cruelty. Thus, in this case primarily we have to choose between the oral evidence of PW1 and RW1. PW3 speaks in support of PW1 and RW3 in support of RW1. We find that the oral evidence of PW3 and RW3 cannot offer much assistance to the court. We do not find the same to be worthy of acceptance for what they stated, nor do we think that it will be safe to place reliance on their testimony to help the court to choose between the testimony of PW1 and RW1. 17. We do not find the same to be worthy of acceptance for what they stated, nor do we think that it will be safe to place reliance on their testimony to help the court to choose between the testimony of PW1 and RW1. 17. Coming to the evidence of PW1 and RW1 we must remind ourselves of the nature of the concept of matrimonial cruelty. In Naveen Kohli v. Neelu Kohli, (2006 KHC 621 : 2006 (4) SCC 558 : 2006 (2) KLT SN 41 : AIR 2006 SC 1675 : JT 2006 (3) SC 491 : 2006 (128) DLT 360 : 2006 (3) MPLJ 1 : 2006 (4) Mah LJ 242.), the Supreme Court had considered in detail as to what can constitute matrimonial cruelty. No rigid straight jacket formula can be pressed into service to decide whether the spouses are guilty of matrimonial cruelty. A total and holistic evaluation of all circumstances is necessary to decide whether the events alleged in the instant case can constitute matrimonial cruelty. Both spouses are educated teachers and the evidence indicates that both enjoy respectability and acceptance in the community around them. Following the ratio in Naveen Kohli (supra) the crucial question is whether the alleged contumacious conduct on the part of the allegedly contumacious spouse is such that it will not be reasonable to expect the other spouse to live with him. In the instant case, we have evidence that even before child birth within a period of about 16 months from the date of marriage, the spouses had started separate residence. On the touch stone non probabilities it is always reasonable to assume that a young couple, in the pink of their health and youth with only one new born child in the wedlock are unlikely to reside away from each other, unless there are circumstances which compel one or both to resort to the unwholesome and unsavory course of residing separately. So far as the instant case is concerned the wife complains of matrimonial cruelty. The husband on the other hand contends that the wife is over involved in her love and allegiance to her parents and that stands in the way of her resuming cohabitation with him. So far as the instant case is concerned the wife complains of matrimonial cruelty. The husband on the other hand contends that the wife is over involved in her love and allegiance to her parents and that stands in the way of her resuming cohabitation with him. On broad probabilities we feel that it may not be unreasonable or irrational to assume that there must have been sufficient reason for the spouses to live separately in the given context. As to whether that amounts to matrimonial cruelty or not, we shall try resolve in the discussions hereafter. 18. The relationship between the spouses was evidently not happy and wholesome. They started residence together at the parental home of the husband. They were forced to move away and start residence successively in 2 rented buildings. It was the first pregnancy of the wife. The wife was not taken to her residence for delivery. It is not difficult to read between the lines and understand that the husband had insisted that the wife must be taken to her house for delivery from his parental home, whereas the wife was unwilling to go to the house of the husband and stay there to enable her parents to take her away from there. The wife was in advanced stage of pregnancy. The child was born on 19.10.1999. Till 30.9.1999 she was not taken to her residence. Her mother in these circumstances had gone to the house of the spouses and had resided with them for a period of about one month. Indications galore to suggest that ultimately when she went back to her residence on 30.9.1999 for delivery, it was not done in a happy and harmonious manner. What we are trying to look at is, that spouses were having strained relationship right through - even from the period they were residing together that is till 30.9.1999. 19. Exts. B1 and B2 may be outpourings of a frustrated husband as contended by the learned counsel for the husband. But the fact remains that Ext.B1 and B2 contain many statements in poor and uncultured taste. Husband himself had later realised his folly in sending Exts.B1 and B2 and he had apologised to the wife for sending B1 and B2. But that conduct notwithstanding, B1 and B2 reveal that the husband had referred to his in-laws in outrageously disrespectful and derogatory terms. Husband himself had later realised his folly in sending Exts.B1 and B2 and he had apologised to the wife for sending B1 and B2. But that conduct notwithstanding, B1 and B2 reveal that the husband had referred to his in-laws in outrageously disrespectful and derogatory terms. He had insisted and demanded that his father in law must convey property adjacent to the father in law's residential building to him by a document. He had made nasty comments about the attitude of his father in law and nature of the property that was offered to be assigned him. Suffice to say Exts.B1 and B2 further reveal that the relationship between the spouses was not cordial or harmonious, even when they resided together till 30.9.1999. The course adopted by the husband of sending the telegram to his wife to resume cohabitation and the nature of the averments in Ext.A4 lawyer notice which was responded to by Ext.B3 reply notice do also confirm that the relationship was not cordial or healthy between the spouses. 20. Be that as it may, we still find it very difficult to choose between the oral evidence of PW1 on the one hand and RW1 on the other though as stated earlier, we do think that the husband's attitude was far from satisfactory. We do further note that the husband had made demands insisting on assignment of property by a document to his name. He had made caustic and derogatory statements against her father complaining about that the nature of the property that was agreed to be given to the husband at the time of marriage. Suffice it to say that we find unmistakable indications to show that the relationship was strained and the husband had in no mean measure contributed to such strain in the said relationship. Except the allegation of the husband that the wife was over involved in the affection to her parents, no specific contumacious conduct is even remotely indicated against the wife. 21. Perhaps what can help the court to choose between the rival versions is the alleged incident which had taken place on 11.12.2003. That was certainly an incident long after the commencement of the proceedings. That incident was not held out as a reason justifying separate residence in the counter statement filed by the wife. 21. Perhaps what can help the court to choose between the rival versions is the alleged incident which had taken place on 11.12.2003. That was certainly an incident long after the commencement of the proceedings. That incident was not held out as a reason justifying separate residence in the counter statement filed by the wife. But all the circumstances which have been brought out in evidence can certainly be looked into by the court to decide whether separate residence of the wife is justified or not. 22. Admittedly this case was posted to 11.12.2003 before the Family Court. Admittedly the wife was directed to produce the child before the court on that date. Admittedly the child was not produced by the wife before the court on that date, on the excuse of ill health of the child. Evidently the husband had reason to be unhappy with the conduct of the wife. The wife and her father had come to Court on that date. The case was once called admittedly and was passed over. It was later adjourned. The adjournment was obviously at some point of time after 12.30 p.m. It is the very case of the wife as revealed from her evidence and Ext.B8, F.I.R (the complaint has been placed before us for our perusal) that the husband had left the court after the case was adjourned. Later, after some time she and her father were returning from the Court. At that point of time she allegedly found the husband standing at the staircase. He assaulted her and pushed her down. She fell down. She suffered injuries. Her father and some other persons rushed her to the medical College Hospital, where RW2 - the Doctor examined her and issued Ext.B4 - wound certificate. She was examined by the doctor at 1.25 p.m. It was reported that she was brought to the hospital by her father and another named person. She alleged that she had suffered injuries when she was assaulted by her husband at the staircase of the Family Court building at about 12.55 p.m. She had tenderness lateral end of left clavicle. She had contusion on the right thigh and traumatic myelgia (l) thigh. X-ray was taken and Ext.B4 shows that there was a fracture on the lateral end of clavicle. The certificate further shows that she was treated as an out patient. 23. She had contusion on the right thigh and traumatic myelgia (l) thigh. X-ray was taken and Ext.B4 shows that there was a fracture on the lateral end of clavicle. The certificate further shows that she was treated as an out patient. 23. If this allegation raised by the wife about the assault on her by her husband is true, we have no hesitation to agree that will go miles in the appreciation of the stand of the wife that she is unwilling to resume cohabitation because of matrimonial cruelty. That would help us considerably to choose between the oral evidence of the PW1 and RW1 about the prior instances of cruelty. The wife tendered evidence in support of the incident on 11.10.2003. She examined the doctor RW2 in support of her case. She proved Ext.B4 and she relied on Ext.B8 FIR. 24. Now let us look at the stand taken by the husband. According to him no such incident at all took place, at the Family Court on 11.12.2003. According to him the case was called and passed over. It was later adjourned at some time around 12.45 p.m. He along with his lawyer (CW1) returned to the main court building at Calicut, which is about 3 to 4 minutes walk from the Family Court. He met the senior counsel. He later went away to his house. In short, his plea appears to be one of alibi - that he was not available at the Family Court at 12.55.p.m. and he was elsewhere when his wife could possibly have suffered the injuries. At that alleged time of the incident he was not present at all, it was contended by him. 25. The court below, we find, did not accept the evidence of PW1 on this aspect. The court did not accept evidence of RW2 on this aspect. The court did not attach any significance to Ext.B4 and B8. The learned counsel for the appellant argues that the court below was perverse in not accepting these pieces of evidence. 26. We have to look at the broad probabilities. At 1.25 p.m. PW1 had reached the Medical College Hospital. RW2 a medical professional had examined her and issued Ext.B4. She had alleged to the doctor that she was assaulted by her husband at the Family court premises at 12.55 p.m. The fracture was confirmed by the doctor by perusal of X-Ray. We have to look at the broad probabilities. At 1.25 p.m. PW1 had reached the Medical College Hospital. RW2 a medical professional had examined her and issued Ext.B4. She had alleged to the doctor that she was assaulted by her husband at the Family court premises at 12.55 p.m. The fracture was confirmed by the doctor by perusal of X-Ray. She had some other injuries also. 27. The court below appears to have doubted this version of PW1 raising many questions. Why were no independent witnesses examined? Why was the father of the wife not examined? Why was she taken to the Medical College Hospital far away from the Family Court premises even though medical aid may have been other wise available nearer? RW2 has not identified RW1. We note that marks of identification are noted by RW2 in Ext.B4 and there was no attempt to contend before the court below that those marks of identification shown in Ext.B4 did not tally with RW1. The complaint was not lodged immediately. The court below queries why the complaint was not lodged immediately. It was lodged long later before Balussery police. Why did the wife wait till 2.1.2004 to file complaint before police? Why did she file it before the Baluserry police? So many such question are seen raised by the Family Court and all of them together appear to have led the Family Court to the conclusion that no such incident may have taken place. 28. It rebels against reason, logic and common sense to assume that the lady would not have suffered injuries including the fracture at the premises of the Family Court. It would be perverse to assume that the lady came to court with the fracture with the intention to make a false allegation against the husband. If false implication was her intention it rebels against commonsense that she did not immediately lodge a complaint before the police. 29. The court below also took note of the innocuous inaccuracy in the statement of the victim that she was admitted in the hospital and the statement of the doctor that she was not admitted. Ext.B4 shows that she was not admitted. RW2 states that she was kept in the casualty for some time before she was sent away. 29. The court below also took note of the innocuous inaccuracy in the statement of the victim that she was admitted in the hospital and the statement of the doctor that she was not admitted. Ext.B4 shows that she was not admitted. RW2 states that she was kept in the casualty for some time before she was sent away. Even the evidence of RW1 shows that though she claims that she was admitted, she was referring to only her stay in the casualty. X-ray was taken. How did RW1 get time to go to the doctor with the X-Ray at 1.25 p.m., contends the counsel. It is evident that after clinical examination, RW2 had referred her to get her X-ray taken from the Medical College. It would be puerile to assume that she went to RW2 after taking X-Ray of the left clavicle. The fact that she did not run to the court or the police after suffering the injuries to make complaints, according to us, really shows that her intention and mission was not to make any false allegations capitalising on a fracture, suffered in some other manner at some other prior point of time, as alleged by the husband. 30. The Court below surprisingly examined CW1. It was certainly an act of embarrassment to a counsel to be compelled to tender evidence which has crucial bearing on the case of her client. CW1 stated before the court that she had attended the Court on behalf of PW1 and the case was finally adjourned at some time close to 12.45 p.m. Thereafter she had discussions with her husband, the senior counsel along with PW1 for some time. Later he went away from them. 31. The court below accepted the version of CW1 that she returned from court at about 12.45 p.m. The court appears to have laid complete faith on the chronometric sense of CW1. An advocate returning from court need not note the time very specifically. It was a totally irrelevant fact at the time of perception. In fact, the learned counsel for the appellant points out that in the course of cross examination, CW1 stated that she remembered the time as she had heard the "banku" call from the local mosque. The adjournment was at about the time when the 'banku' call was given. It was a totally irrelevant fact at the time of perception. In fact, the learned counsel for the appellant points out that in the course of cross examination, CW1 stated that she remembered the time as she had heard the "banku" call from the local mosque. The adjournment was at about the time when the 'banku' call was given. Relying on the calendars, it is pointed out that the banku on that day could only have been prior to 12.30 p.m. The court below felt that at 12.45 the case must have been adjourned and CW1 must have returned from the Family Court to the main Court with PW1. Later CW1 and her senior spent some time with PW1, so that there was no occasion at all for PW1 to be in the Family Court premises at 12.55, the time mentioned in Ext.B4 wound certificate as the time of the occurrence. 32. People do not speak by the clock, especially when there was no reason to particularly remember the time. Even going by the version of CW1, she came to know of such an allegation being raised against PW1 by RW1 long later after she came to know of the registration of a case against her client consequent to the complaint of RW1. To us, it appears that it would be absolutely unreasonable to fix the time by anchoring a finding on the assertion of CW1 that the case was adjourned at 12.45 p.m. The court below could not and should not have ignored the probabilities emerging from Ext.B4 and the oral evidence of RW2. The finding should have been anchored on that rather than on the tentative evidence of CW1 about the probable time when the case was adjourned and the probable point of time after which RW1 was with her and her husband in the main court. In fact, we do note that even the very case of RW1 is that her husband had gone away from the court and was found present again when she along with her father was coming down the stairs. The convincing probability that emerges is that PW1 must have returned from the main Court to the Family Court after his interactions with CW1 and the Senior counsel. The incident must have taken place after PW1 returned to the Family Court. 33. The convincing probability that emerges is that PW1 must have returned from the main Court to the Family Court after his interactions with CW1 and the Senior counsel. The incident must have taken place after PW1 returned to the Family Court. 33. Having very anxiously reevaluated and reconsidered the totality of circumstances and the inputs available about the incident that took place on 11.12.2003, it appears to us to be a traversity of truth and justice to conclude that no incident at all could have taken place as alleged by RW1. In coming to that conclusion, all acceptable norms of appreciation of evidence were thrown to the winds. It is crucial to note that when RW2 was in the witness box, there was not a semblance of suggestion to RW2 that he had anything to do with RW1 prior to the occurrence. Reliance must have been placed hence on the oral evidence of disinterested RW2. Ext.B4 which has the fragrance of nascent truth should have been given due importance. That no complaint was made to the police, is not of crucial relevance when we note that it was a medical legal case and the obligation was on RW2 to inform the police. If the victim/wife in such a case of matrimonial cruelty did not rush to the police immediately after the occurrence, that cannot militate against the oral evidence of RW2 and the contents of Ext.B4. It can perhaps militate against the fanciful theory that the wife would have suffered a fracture in some other manner earlier and was out to make use of the same to raise false allegations against her husband. 34. The above discussions lead us to the very firm conclusion that the court below had erred grossly in coming to the conclusion that the husband was not there at the Family Court when the wife could have suffered the injuries. We are informed that a prosecution is pending in respect of the same incident. We do not want to fetter the discretion of the criminal court. At any rate, it has got to be noted that the burden of proof on the prosecution in a criminal trial is much heavier and we do not intend to express any opinion which would hamper the defences which the husband wants to set up in the criminal case against him. At any rate, it has got to be noted that the burden of proof on the prosecution in a criminal trial is much heavier and we do not intend to express any opinion which would hamper the defences which the husband wants to set up in the criminal case against him. But the conclusion appears to us to be inescapable that the court below was grossly in error in choosing to discard the evidence of RWs 1 and 2 and Exts.B1, B4 and B8 and to prefer to accept the version of PW1 and CW1. 35. We may hasten to observe that we do not intend to brand CW1 as an untrustworthy witness. She is a lawyer and except that she appears for PW1, there is no interest attributed to her to speak untruth. We will accept her testimony as gospel truth. Her evidence cannot help us to rule out the incident that happened in the Family Court between PW1 and RW1. Her evidence tendered is crucially silent on that aspect. The court drew the inference, anchoring a finding on the time factor spoken to by PW1 when she left the Family Court and concluded that the oral evidence of RW1 cannot be believed. We only take note that CW1's evidence about the precise time when she left the Family Court after adjournment of the case cannot be reckoned as crucial, vital or conclusive. Her evidence can perfectly coexist with the evidence of RW1 about the incident. If she had left the Court at sometime immediately after 12.30 p.m. there was obviously sufficient time for PW1, to return to Court and be present in Court at 12.55 p.m. when the alleged incident took place. 36. We therefore reverse the finding of the court below in regard to the incident that had taken place on 11.12.03. We accept the oral evidence of RW1 that she was assaulted at the Family Court by PW1 and that she had suffered injuries including fracture of the clavicle. That input helps us considerably to choose between the evidence of PW1 and RW1. It appears to us to be absolutely safe to place reliance on the evidence of RW1 in regard to the alleged acts of matrimonial cruelty. The proved incident on 11.12.2003 itself is sufficient to turn down the claim for a decree for restitution of conjugal rights by the husband. It appears to us to be absolutely safe to place reliance on the evidence of RW1 in regard to the alleged acts of matrimonial cruelty. The proved incident on 11.12.2003 itself is sufficient to turn down the claim for a decree for restitution of conjugal rights by the husband. The challenge raised by the appellant/wife in this appeal must, in these circumstances, succeed. 37. We reverse the finding of the court below that the wife did not have reasonable justification and cause for not resuming cohabitation with her husband. We are satisfied that the wife is not liable to suffer a decree for restitution of conjugal rights. The husband is not entitled for a decree for restitution of conjugal rights. 38. In the result: (a) This appeal is allowed; (b) The impugned order is set aside; (c) O.P. No.703 of 2001 filed by the husband is dismissed. (d) The order of stay against continuation of divorce proceedings between the parties before the Family Court, Calicut and C.C. No. 337 of 2005 before the Judicial First Class Magistrate Court, Perambra are vacated. (e) In the circumstances of the case, we direct both parties to suffer their respective cost.