While granting a decree of divorce to a couple, the High Court recently ruled that a wife making secret phone calls to a man ignoring her husband's warning against the same amounts to matrimonial cruelty.

The Court in it's judgment also observed that mere compromise would not amount to condonation of cruelty unless and until the matrimonial life was restored.

"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."

The Court was adjudicating upon a husband's appeal challenging the verdict of a Family Court. The husband had moved the Family Court seeking dissolution of marriage on the ground of adultery and cruelty, but it was dismissed.

The husband's contention was that right from the inception of marriage, the wife has perpetrated various iniquitous acts making his life a living hell. It was also alleged that she has been maintaining an illicit relationship with the second respondent prior to her marriage and even thereafter.

The husband further submitted that a perusal of the printout of CD produced from the BSNL would show that there were frequent calls between the wife and the second respondent, suggesting an unholy relationship between them.

The wife disputed these claims and argued that she used to call the second respondent only occasionally that too for official purposes.

The Court noted that merely for the reason that the wife used to make regular calls to the second respondent, it could not jump to a conclusion that their relationship was an illicit one and that there was an adulterous act between them.

It was further asserted that there must be a high degree of probability to substantiate the allegation of adultery. The evidence adduced by the husband was found to be insufficient to prove adultery even by a preponderance of probabilities.

However, it was observed that there were instances where the wife made calls during odd hours as well. For instance, on 28/2/2013, she had made 10 calls out of which 5 were missed calls between 10.40 p.m to 10.55 p.m.

The Court noted that although the said evidence is not sufficient to infer adultery on the part of the wife, the relevant question was whether making such calls would constitute mental cruelty.

The Court further recalled that right from the inception of marriage, the marital relationship was not cordial. In fact, they separated three times and reunited and underwent mediation and conciliation several times. The parties had finally decided to resume cohabitation. In that circumstances, the wife should have been more vigilant in her behaviour, the Judge noted.

"According to the husband, she continued making calls with the second respondent in spite of his warning. It shows that 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 judgment states.

The Single Bench also found it pertinent to note that during evidence, the wife had deposed that she used to call the second respondent only on certain days.

However, documentary evidence proved otherwise. Therefore, the element of cruelty as alleged by the husband was satisfied in this case.

Furthermore, both the husband and the wife accused each other for committing breach of the compromise.

"At any rate, it is not in dispute that there was breach of the compromise. The question is not who has committed the breach. The question is whether the compromise has been adhered to by both parties and whether there was normal resumption of conjugal relationship. Mere compromise would not amount to condonation of cruelty unless and until the matrimonial life was restored."

There was absolutely no material on record to indicate resumption of conjugal life in its true spirit between the husband and the wife after the compromise..

Under such circumstances, the Court found it to be fit case to grant a divorce to the couple.