C.S. Sudha, J.

1. These appeals under Section 19(1) of the Family Courts Act, 1984, have been filed against the common judgment dated 30/07/2019 in O.P. No. 1588/2014 and O.P. No. 1184/2017 on the file of the Family Court, Ernakulam. O.P. No. 1588/2014 was filed by the petitioner/wife claiming divorce on the ground of cruelty and desertion. The respondent/husband filed O.P. No. 1184/2017 seeking restitution of conjugal rights. O.P. No. 1588/2014 has been dismissed and O.P. No. 1184/2017 has been allowed. Mat Appeal No. 24/2020 has been filed against the judgment and decree in O.P. No. 1588/2014 and Mat Appeal No. 65/2020, against the judgment and decree in O.P. No. 1184/2017. The parties in these appeals will be referred to as described in O.P. No. 1588/2014.

2. O.P. No. 1588/2014 under Section 13(1) (ia) and (ib) was filed by the petitioner/wife claiming divorce on the ground of cruelty and desertion. The marriage of the petitioner to the respondent was solemnised on 23/08/2009 as per the rites and customs of the community to which they belong. After the marriage, the parties cohabited for a period of 17 days. Thereafter the respondent/husband left for his place of employment abroad. After the respondent left, the petitioner continued her residence in the matrimonial home till 29/11/2009. The gold ornaments and ` 1 lakh given at the time of her marriage were misappropriated by the respondent and his family. On 29/11/2009 the petitioner was sent out of the matrimonial home by her in-laws. On 30/11/2019 the petitioner through her mother filed a complaint before the Paravur police, after which the respondent has never contacted her or cared to maintain her. During her brief period of cohabitation with the respondent, he had harassed her both physically and mentally. The respondent used to subject the petitioner to sexual perversions and when she refused to obey his directions, the latter had physically assaulted her. The petitioner through her mother had also filed a criminal complaint against the respondent and his family, which case is pending, that is, C.C. No. 532/2010. In the said case, she has described in detail the sexual perversions of the respondent. The family members of the respondent in the absence of the respondent had also harassed her mentally and physically. Hence, divorce was sought on the ground of desertion and cruelty.

3. The respondent/husband entered appearance and filed counter wherein he denied all the allegations of harassment, both physical and mental. He never harassed the petitioner in any manner. In M.C. No. 306/2011 filed for maintenance, the petitioner never had a case that the respondent had sexually abused her. However, during the evidence she developed a new case of sexual harassment. There was also no such allegation in O.P. No. 1940/2011 filed by the petitioner for the return of gold ornaments. The allegation of sexual harassment is just an after-thought and a story created for making out a ground for divorce.

4. O.P. No. 1184/2017 was filed by the husband seeking restitution of conjugal rights. According to the respondent, it was without any reasonable cause the petitioner/wife was staying apart and hence claimed restitution of conjugal rights. The petitioner/wife in her counter denied the allegation that she was residing separately without any reasonable cause and reiterated her contentions in O.P. No. 1588/2014.

5. On completion of pleadings, the parties went to trial. A joint trial of the cases was conducted. O.P. No. 1588/2014 was treated as the main case in which evidence was recorded. PW1 was examined and Ext.A1 was marked on the side of the petitioner. RW1 to RW3 and Exts.B1 to B7 and Ext.B9 were marked on the side of the respondent/husband. It is stated in the impugned judgment that the document referred to as Ext.B8, that is, the deposition of the petitioner's mother, has not been admitted in evidence as she had not been examined in the case. The family court on a consideration of the oral and documentary evidence and after hearing both sides, dismissed O.P. No. 1588/2014 filed by the petitioner/wife seeking divorce and allowed O.P. No. 1184/2017, whereby the request of the respondent/husband for restitution of conjugal rights has been granted. Aggrieved, the petitioner/wife has come up in appeal.

6. The points that arise for consideration in the appeals are-(i) Whether the sexual perversions alleged to have been committed by the respondent/husband amounts to cruelty entitling the petitioner/wife to a decree of divorce (ii) Has the respondent/husband deserted the petitioner/wife (iii) Is there any infirmity in the findings of the trial court calling for an interference by this Court

7. Heard both sides.

8. The marriage between the parties was solemnised on 23/08/2009. After 17 days of cohabitation, the respondent/husband left for his employment abroad. The parties have been residing separately from 29/11/2009 onwards. O.P. No. 1588/2014, the petition for divorce was filed by the wife in the year 2014, that is, five years after the parties started residing separately. The respondent/husband moved the petition for restitution of conjugal rights only in the year 2017, that is, eight years after the parties started residing separately. According to the learned counsel for the petitioner/wife, the trial court committed a serious mistake in rejecting the plea of the wife for divorce. The evidence on record has not been properly appreciated. The petitioner had specifically pleaded that the respondent/husband used to subject her to sexual perversions. The petitioner refrained from giving a graphic description of the various acts or perversions in the petition to maintain propriety and decorum. However, in the cross examination of the petitioner, the details have been brought out, which are more than sufficient to grant her a decree of divorce on the ground of cruelty. Per contra it was submitted by the learned counsel for the respondent/husband that the only act of cruelty or perversion alleged to have been committed by the respondent/husband is that he had wounded/injured the petitioner's lips when he kissed her. This incident, according to the learned counsel by no stretch of imagination can be found to be an act of cruelty entitling the petitioner to a decree of divorce.

9. We went through the pleadings as well as the deposition of the parties. In the petition, the petitioner also had a case that even her in-laws had mentally and physically harassed her. We find no evidence to substantiate the same. Hence the trial court was right in finding that the petitioner failed on the said count. However, there is a very serious allegation of the petitioner referred to in paragraph 3 of the petition. According to her the respondent/husband subjected her to sexual perversions and when she refused to comply with his dictates, he had physically manhandled her. It is true that in the petition the torrid details of the sexual perversions have not been referred to. However, it is quite clearly pleaded that the respondent had subjected her to sexual perversions. The details of the perversions came out in evidence when the petitioner was examined as PW1. According to her, the respondent in the process of kissing her, injured her lips by biting her. On a few occasions he tried to compel her to drink his semen. He used to clutch/grasp her vulva with his toes. She also deposed that when the respondent said that he does not want her anymore, her in-laws sent her out of the matrimonial home on 29/11/2009, against which she preferred a complaint. Admittedly Ext.B2 is the said complaint. Ext.B2 dated 30/11/2009 produced by the respondent himself shows that the petitioner's mother preferred the complaint before the Sub Inspector, Paravur, wherein the sexual perversions of the former have also been described. In Ext.B2 it is stated that the respondent used to compel her to imitate scenes in porn movies. The petitioner in the petition also says that she has given the details of the sexual perversions of the respondent in C.C. No. 532/2010. Though the petitioner did not produce any records of the said case, the respondent/husband produced the certified copy of the deposition of the former in C.C. No. 532/2010 and the same has been marked as Ext.B6. In the said case, the petitioner was examined before the Judicial First-Class Magistrate, Aluva as PW2 in which deposition also she has described in detail the sexual perversions of the respondent/husband. According to her, the respondent used to pour semen into her mouth and make her drink the same; made her lie stark naked and clutch/grasp her vulva with his toes; take her from behind; clicked her nude photographs in his mobile phone and used to cause bite injuries all over her face. In C.C. No. 532/2010 registered alleging the commission of the offence under Section 498A IPC, the petitioner is seen to have been subjected to extensive cross examination. The examination sometimes is seen to have crossed all limits of decency and fair play. Questions are seen put regarding the sequence of events that took place on the first-night of their marriage; whether she had first sustained injury on her lip or the injury on her private parts ; the extent or the depth to which the respondent/husband is alleged to have penetrated her with his toes ; the dimension of the injuries she had sustained by the said act; the quantity of semen she was made to drink; the manner in which she was made to drink; the duration for which the respondent had grasped/clutched her vulva with his toes so on and so forth. To a further question as to the exact spot on which she had sustained injury when the respondent grasped her vulva with his toes, whether it was inside or outside her vagina, the petitioner replied that it was outside. Then the next question was how far it was away from her vagina, to which she replied that she had already answered that it was outside and that she had nothing more to submit. The learned Magistrate then recorded thus-"Witness not ready to answer the question put to her. Hence further cross examination is deferred from answering in the point whether these questions can be put her in the cross examination." The cross examination was adjourned recording so. Thereafter PW1 was sworn again, and further cross examined. The learned Magistrate is not seen to have given an order as to whether the aforesaid line of cross examination was permissible or warranted. When the petitioner was further cross-examined, the same line of questioning continued.

10. It is true that the lawyer on behalf of the accused in C.C. No. 532/2010, that is, the respondent/husband herein, did have the right to cross examine and discredit the testimony of PW1. But the questions which we have referred to were totally unnecessary. They are no doubt indecent and inappropriate and appear to have been put with an intention to insult or annoy. Sections 151 and 152 of the Evidence Act, 1872 require the court to forbid such questions being put to a witness. [See: Deb Narayan Halder v. Anushree Halder, AIR 2003 SC 3174 [LQ/SC/2003/828] ]. In State of U.P. v. Raghubir Singh, (1997) 3 SCC 775, [LQ/SC/1996/2198] the Apex Court after referring to Sections 140, 151 and 155 of the Evidence Act and an early decision of the Patna High Court in Mahammad Mian v. Emperor [52 Indian Cases 54], pointed out that if inquiries involving any scandalous matters are made with a purpose of shaking the credit of a witness, the court has complete dominion over them and may forbid such questions even though they may have some bearing on the question before the Court. But the Court may have no discretion to forbid such questions if they relate to the facts in issue or to matters necessary to be known to determine whether or not the facts in issue existed. In our opinion, the aforesaid questions put to the petitioner was totally unwarranted and so the petitioner cannot be blamed for refusing to further answer to the highly objectionable line of questioning.

11. It was also pointed out that the respondent/husband has been acquitted in C.C. No. 532/2010, in which case also the petitioner had raised a similar ground of sexual perversion. However, she was disbelieved, and the respondent acquitted. The judgement in the said case has not been produced in this case. Even if it was produced, it would not have helped the respondent in any way. A Constitution Bench of the Apex court in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 [LQ/SC/2005/353] has held that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. Answering the argument advanced that effort should be made to avoid conflict of findings between civil and criminal courts, it has been held that, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of probabilities while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. In Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545, [LQ/SC/2009/862] the Apex Court after noticing the provisions of Sections 40 to 43 of the Evidence Act, held that a judgment in a criminal case is not binding on a civil court and that it would be admissible for limited purposes only. Relying only on or on the basis thereof, a civil proceeding cannot be determined. In M.S. Sheriff v. State of Madras, AIR 1954 SC 397 [LQ/SC/1954/48] another Constitution Bench of the Apex court on the possibility of conflict in decisions, held that law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. In Vishnu Dutt Sharma v. Daya Sapra, (2009) 13 SCC 729, [LQ/SC/2009/1111] it has again been reiterated that a judgment of a criminal court in civil proceedings will have only limited application , namely, inter alia, for the purpose as to who was the accused and what was the result of the criminal proceedings. Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding. In Kishan Singh v. Gurpal Singh, (2010) 8 SCC 775 [LQ/SC/2010/831 ;] after noticing several earlier judgments concluded that finding of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein.

12. Further, the petitioner during examination was asked as to why she had not stated the aforesaid facts in her earlier cases which were filed for return of gold ornaments, maintenance etc. She answered that she was under the hope that the marital relationship could be revived and hence had not revealed such details. Moreover, the issue involved in the earlier cases, like in O.P. No. 1940/2011 was whether she was entitled to return of the gold ornaments and in the M.C. the issue was whether she was entitled to any maintenance. Therefore, it was unnecessary for her to describe in detail the sexual perversions that are stated to have been inflicted on her by the respondent. Moreover, Ext.B2 complaint is seen given on 30/11/2009, the very next day of the petitioner leaving her matrimonial home on 29/11/2009. This admittedly is the first complaint preferred by the mother of the petitioner on her behalf against the respondent. The sexual acts objectionable to the petitioner have been described in Ext.B2 also. Therefore, it cannot be said that this ground has been raised as an afterthought. These acts, according to the petitioner, were done by the respondent/husband against her will/without her consent. Perceptions of people differ on what act(s) constitute sexual perversion. What may be perversion to one, may not be perversion to another. When two consenting adults engage in coitus in the privacy of their bedroom, it is their choice as to how and in what manner they should act. But if one of the party objects to the conduct or acts of the other party on the ground that it is against normal course of human conduct or normal sexual activity, and still he/she is compelled to do the same, then it can only be termed as cruelty both physical and mental. If the conduct and character of a party causes misery and agony to the other spouse, the said conduct would certainly be an act of cruelty to the spouse justifying the grant of divorce. Subjecting the wife to sexual perversions against her will and consent is certainly an act of mental as well as physical cruelty. The respondent when examined as RW1, has not even adverted to the specific acts alleged by the petitioner in her deposition. Therefore, there is no denial of the same in his testimony. The family court has given quite a strange reasoning for rejecting the petitioner's case. According to the family court, it was improbable for the respondent to have committed the acts referred to by the petitioner as the couple had cohabited for only 17 days. The respondent/husband has no case that he had no access to the petitioner/wife or that he had no opportunity to be with his wife in the privacy of their bedroom after marriage. From the testimony of the petitioner, it is clear that the marriage had in fact been consummated. This is not seen disputed by the respondent. Therefore, in such circumstances to say that the acts were improbable is apparently incorrect.

13. The petitioner also has a case that the respondent/husband had deserted her. According to the family court, it is the petitioner who had left the matrimonial home of her own accord and filed cases one after the other against her husband. The respondent left on the 17th day of the marriage as he was employed abroad and hence it could not be said that he had deserted his wife. This line of reasoning of the family court also does not appear to be correct. According to the petitioner, after the respondent left for his employment, she was sent out of her matrimonial home by her in-laws on 29/11/2009. As noticed earlier, Ext.B2 complaint is seen given by the petitioner on the very next date, that is, on 30/11/2009. The fact that there were issues between the parties is clear from Ext.B2. The parties pursuant to Ext.B2 had been summoned to the police station and the issues discussed at the instance of the police, pursuant to which they seem to have buried the hatchet for some time. But problems seem to have arisen thereafter also following which the parties again fell out. The exact date on which the parties thereafter fell out is not clear from the evidence on record. According to the petitioner after she gave Ext B2 complaint on 30/11/2009, the respondent has never enquired about her or maintained her and thus had deserted her. The respondent never adduced any evidence to show that the separation was from some other date. The petitioner is seen to have moved M.C. No. 306/2011 seeking maintenance under Section 125 Cr.P.C., which is apparently two years after she left her matrimonial home. The respondent has no case nor has any evidence been brought in to show that he had maintained her during the period or that there were any attempts to bring back the petitioner to the matrimonial home. In the counter the respondent contended that despite the unfounded and false allegations raised against him, he was ready to forgive the petitioner for the acts of cruelty committed by her and that he was all along and even now ready and willing to revive the matrimonial relationship and take her back to the matrimonial home. Though he contended so, no attempt is seen made by the respondent or his family members in the said direction. He is seen to have filed the application for restitution of conjugal rights in the year 2017, that is, nearly eight years after the separation, and that too after the petitioner/wife moved for divorce. The respondent's mother examined as RW2 in her cross examination admitted that no attempts had been made by her son to bring back the petitioner to the matrimonial home.

14. Yet another reason for the family court to find in favour of the respondent/husband was on the ground that he was paying maintenance to the petitioner without fail. However, the family court failed to notice that this was only after the order dated 29/11/2013 was passed in M.C. No. 306/2011. Parties separated in the year 2009 itself. It was only after the petitioner/wife moved for maintenance and obtained an order; the respondent/husband started paying her. It appears that the respondent moved the application for restitution of conjugal rights as an after-thought and as a counterblast to the application for divorce moved by the petitioner/wife. Now even assuming that the evidence on record is not satisfactory to prove the case of desertion, the petitioner is certainly entitled to divorce on the ground of physical cruelty as she had been subjected to sexual perversions by the respondent/husband against her will. Hence in these circumstances we find that the family court went wrong in dismissing O.P. No. 1588/2014 and so the order needs to be interfered with.

15. In the result, Mat Appeal No. 24/2020 is allowed. The order in O.P. No. 1588/2014 is set aside and the petitioner/wife granted a decree of divorce by which the marriage between the petitioner and the respondent solemnised on 23/08/2009 will stand dissolved. Consequently, Mat. Appeal No. 65/2020 is allowed and the order in O.P. No. 1184/2017 is set aside.

16. In the light of the allegations raised, to protect the privacy of the parties, we direct the Registry not to show the name or address of the parties in the cause title. The appellant/petitioner/wife will be referred to as 'X' and the respondent/husband as 'Y'.

17. Interlocutory applications, if any pending, shall stand closed.