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Chellappan Dasan vs Chellappan Dasan on 25 February, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MRS. JUSTICE SHIRCY V.

MONDAY, THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940

Mat.Appeal.No. 619 of 2009

AGAINST THE JUDGMENT IN OP 648/2004 of FAMILY COURT,TRIVANDRUM
DATED 14-11-2008

APPELLANT/RESPONDENT:

CHELLAPPAN DASAN, T.C.43/1043,
KADAPPURAM, PUTHUVAL PUTHEN VEEDU, VALLAKADAVU P.O.
THIRUVANANTHAPURAM.

BY ADV. SRI.BIJU BALAKRISHNAN

RESPONDENTS/PETITIONERS:

1 DAISY T., PALATTUVILA PUTHEN VEEDU
KARIMAMKULAM, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM.

2 KAVITHA D. D/O.DAISY T.
PALATTUVILA PUTHEN VEEDU, KARIMAMKULAM, VATTIYOORKAVU
P.O., THIRUVANANTHAPURAM.

BY ADV. SRI.M.SREEKUMAR

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15.02.2019,
ALONG WITH Mat.Appeal.627/2009, THE COURT ON 25.2.2019 DELIVERED
THE FOLLOWING:
2
Mat.A.Nos.619 627/2009

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MRS. JUSTICE SHIRCY V.

MONDAY, THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940

Mat.Appeal.No. 627 of 2009

AGAINST THE JUDGMENT IN OP 1690/2002 of FAMILY
COURT,THIRUVANANTHAPURAM DATED 14-11-2008

APPELLANT/PETITIONER:

CHELLAPPAN DASAN, T.C.43/1043,
KADAPPURAM, PUTHUVAL PUTHEN VEEDU, VALLAKADAVU
P.O., THIRUVANANTHAPURAM.

BY ADV. SRI.BIJU BALAKRISHNAN

RESPONDENTS/RESPONDENTS:

1 DAISY T.PALATTUVILA PUTHEN VEEDU,
KARIMAMKULAM, VATTIYOORKAVU P.O.,
THIRUVANANTHAPURAM.

2 KAVITHA.D. D/O.DAISY.T.
PALATTUVILA PUTHEN VEEDU, KARIMAMKULAM,
VATTIYOORKAVU P.O., THIRUVANANTHAPURAM.

BY ADV. SRI.M.SREEKUMAR

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15.2.2019,
THE COURT ON 25.2.2019 DELIVERED THE FOLLOWING:
3
Mat.A.Nos.619 627/2009

JUDGMENT

SHAFFIQUE, J

These appeals are filed against a common order in

O.P.No.1690/2002 and 648/2004. O.P.No.1690/2002 has been filed by

the appellant/husband seeking divorce and O.P.No.648/2004 was filed

by the wife and minor daughter for recovery of gold ornaments and

marriage expenses.

2. The short facts of the case are as under and the parties are

described as shown in O.P.No.1690/2002 unless otherwise stated:

The petitioner married the 1st respondent on 1.12.1982 as per Hindu

religious rites and ceremonies and as per the custom prevailing in the

community. They lived together till 30.6.1983. On the said date the 1 st

respondent delivered a female child. According to the petitioner, the

child was normal and fully grown and was weighing 3 kg. The birth of

the child was even before expiry of 7 months after the marriage. The

2nd respondent is the daughter born to the 1 st respondent. The

contention urged by the petitioner was that 1 st respondent was playing

fraud on the petitioner by not disclosing the fact that she was pregnant

at the time of marriage. That apart, she left the company of the

petitioner after delivery and was living separately on her own. If he

had known about the fact that the 1st respondent was pregnant, he

would not have consented for the marriage and therefore he contented

that there was fraud and suppression of material facts by the 1 st
4
Mat.A.Nos.619 627/2009

respondent before the solemnization of the marriage. He further

alleged that despite the fact she had committed fraud, she continued

the illicit relationship with her paramour and was leading an adulterous

life. According to him the marriage was a nullity as it was not with free

consent and there was suppression of material facts which affected the

marital relationship. He sought for a decree for divorce and also

sought for declaration that he is not the father of the 2 nd respondent.

3. The 1st respondent denied the allegations. According to her

the petitioner and 1st respondent were in love even before marriage

and they were living as husband and wife. Even after the birth of the

child, they lived together for about 2 years. Subsequently, the

petitioner started illicit relationship with a lady belonging to C.S.I

community and he deserted the 1st respondent. The petitioner

thereafter married the said lady and had two children. She also denied

the fact that she was having any illicit relationship with any other

person and the divorce petition had been filed by the petitioner in

order to avoid her.

4. In O.P.No.648/2004, the wife claimed that at the time of

marriage she was given 7 ½ sovereigns of gold and the said gold were

appropriated by the petitioner/husband. That apart she sought for

recovery of an amount of Rs.1,50,000/- to meet the marriage expense

of the 2nd petitioner. The husband in his objection denied the claim. It

is stated that he had not appropriated any of her gold ornaments. He
5
Mat.A.Nos.619 627/2009

contended that she was having only 3 ½ sovereigns of gold

ornaments till the time she deserted him.

5. Before the Family Court common evidence was taken. The

petitioner was examined as PW1 and the 1 st respondent was examined

as RW1. Exts.A1 to A3 were the documents marked.

6. The learned counsel for the appellant submits that the

marriage has been irretrievably broken. Both parties are living

separately since 30.6.1983 and there is no chance for a reunion. As

far as the paternity of the minor child is concerned, it is an undisputed

fact that the petitioner and 1st respondent were living together as

husband and wife and a child was born in the wedlock. In the absence

of any scientific evidence to disprove the paternity of the child, the

appellant will have to take the responsibility. For that reason, we are

not inclined to grant divorce on the ground that the 1 st respondent was

having illicit relationship with some other person.

7. However, it is relevant to note that she got separated from

the petitioner since 30.6.1983. Of course, she has a case that they

were living together for about three years. Even then, no specific

reason has been stated by the 1st respondent to remain away from the

matrimonial home of the petitioner. Therefore, though the marriage

cannot be declared as void, still the fact remains that without any valid

reason the wife was keeping away from the company of the petitioner,

which would amount to desertion. Though the 1 st respondent
6
Mat.A.Nos.619 627/2009

contended that the petitioner was having relationship with another

lady, other than her oral testimony there is no evidence for the same.

Hence we are of the view that this is a fit case in which divorce can be

granted.

8. As far as the claim for return of money and gold ornaments

are concerned, the Family Court had directed payment of Rs.50,000/-.

We don’t think that said amount is exorbitant in any manner, taking

into account the fact that he is an employee of Food Corporation of

India and the amount awarded is reasonable.

In the result, these appeals are disposed of as under:

i. Mat.A.No.627 of 2009 is allowed.

ii. The judgment in O.P.No.1690/2002 is set aside and the

original petition is allowed as under:

The marriage between the petitioner and the 1 st respondent shall

stand dissolved by a decree for divorce.

iii. Mat.A.No.619/2009 is dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

SHIRCY V.

kp True copy JUDGE
P.A. To Judge.

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