IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941
Mat.Appeal.No.325 OF 2011
AGAINST THE JUDGMENT IN OP 152/2008 DATED 08-02-2011 OF
FAMILY COURT, KANNUR
APPELLANT/1ST RESPONDENT:
K.SHYAMALA
D/O.KANNOTH KUNHIRAMAN NAIR, AGED 40 YEARS,
KANNOTH HOUSE, VELAM, MAYYIL AMSOM,, VELAM
DESOM, P.O.MAYYIL, KANNUR DISTRICT.
BY ADV. SRI.P.U.SHAILAJAN
RESPONDENTS/PETITIONER 2ND RESPONDENT:
1 PURAKKANATH BALAKRISHNAN
S/O.LATE KUNHAPPAN, AGED 46 YEARS, PURAKKANATH
HOUSE, KOTTILA, EZHOME AMSOM,, KOTTILA DESOM,
P.O.KOTTILA,KANNUR DISTRICT-670334.
2 VARGHESE SAJI
S/O.PAUL, AGED 32 YEARS, EDACHERIYAN HOUSE,
NEAR CST PALLI, THRIKARIPUR, NOW WORKING AT, DVR
P.C. G.1738, CONSTABLE, AR CAMP,, KASARAGODE.671
121.
R1 BY ADV. SRI.V.N.RAMESAN NAMBISAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
22-08-2019, ALONG WITH RPFC.75/2013, CO.92/2013,
Mat.Appeal.153/2013, RPFC.286/2019, THE COURT ON 25-09-2019
DELIVERED THE FOLLOWING:
Mat.Appeal No.325/11 conn.cases
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941
RPFC.No.75 OF 2013
AGAINST THE JUDGMENT IN MC 163/2011 DATED 05-12-2012 OF
FAMILY COURT, KANNUR
REVISION PETITIONER/RESPONDENT:
PURAKKANATH BALAKRISHNAN
AGED 49 YEARS
S/O. KUNHAPPAN, PURAJKKANATH HOUSE, KOTTILA,
EZHOME AMSOM, KOTTILA DESOM, KOTTILA P.O.,
KANNUR DISTRICT.
BY ADV. SRI.V.N.RAMESAN NAMBISAN
RESPONDENT/PETITIONER:
K.SHYAMALA
AGED 41 YEARS
D/O. KUNHIRAMAN NAIR, KUTTANCHERY KANNOTH
HOUSE, KAYARALAM AMSOM, VELOM DESOM,
P.O.MAYYIL, TALIPARAMBA TALUK,
KANNUR DISTRICT-670 602.
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY
HEARD ON 22-08-2019, ALONG WITH Mat.Appeal.325/2011,
CO.92/2013, Mat.Appeal.153/2013, RPFC.286/2019, THE COURT
ON 25-09-2019 PASSED THE FOLLOWING:
Mat.Appeal No.325/11 conn.cases
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941
CO.No.92 OF 2013 IN Mat.Appeal. 153/2013
AGAINST THE JUDGMENT IN OP NO.291/11 DATED 5/12/2012 OF
FAMILY COURT, KANNUR
CROSS OBJECTOR/RESPONDENT/PETITIONER:
K. SHYAMALA
AGED 41 YEARS
D/O KUNHIRAMAN NAIR, RESIDING AT KUTTANCHERY
KANNOTH HOUSE, KAYARALAM AMSOM, VELAM DESOM,
P.O.MAYYIL, TALIPARAMBA TALUK, KANNUR DISTRICT.
BY ADV. SRI.P.U.SHAILAJAN
RESPONDENT/APPELLANT/RESPONDENT:
PURAKKANATH BALAKRISHNAN
S/O KUNHAPPAN, PURAKKANATH HOUSE, KOTTILA,
EZHOME AMSOM, KOTTILA DESOM, P.O.KOTTILA,
KANNUR TALUK, KANNUR DISTRICT-670 339
R1 BY ADV. SRI.V.N.RAMESAN NAMBISAN
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 22-08-2019, ALONG WITH Mat.Appeal.325/2011,
RPFC.75/2013, Mat.Appeal.153/2013, RPFC.286/2019, THE COURT
ON 25-09-2019 DELIVERED THE FOLLOWING:
Mat.Appeal No.325/11 conn.cases
-:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941
Mat.Appeal.No.153 OF 2013
AGAINST THE JUDGMENT IN OP 291/2011 DATED 05-12-2012 OF
FAMILY COURT, KANNUR
APPELLANT/RESPONDENT:
PURAKKANATH BALAKRISHNAN
S/O. KUNHAPPAN,AGED 49 YEARS, PURAKKANATH
HOUSE, KOTTILA, EZHOME AMSOM KOTTILA DESOM,
KOTTILA.P.O., KANNUR TALUK, KANNUR DISTRICT.
BY ADV. SRI.V.N.RAMESAN NAMBISAN
RESPONDENT/PETITIONER:
K.SHYAMALA
D/O. KUNHIRAMAN NAIR, AGED 41 YEARS,KUTTANCHERY
KANNOTH HOUSE, KAYARALAM AMSOM, VELAM DESOM,
P.O., MAYYIL, TALIPARAMBA TALUK, KANNUR
DISTRICT- PIN-670602.
R1 BY ADV. SRI.P.U.SHAILAJAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
22-08-2019, ALONG WITH Mat.Appeal.325/2011, RPFC.75/2013,
CO.92/2013, RPFC.286/2019, THE COURT ON 25-09-2019
DELIVERED THE FOLLOWING:
Mat.Appeal No.325/11 conn.cases
-:5:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941
RPFC.No.286 OF 2019
AGAINST THE JUDGMENT IN MC 163/2011 DATED 05-12-2012 OF
FAMILY COURT, KANNUR
REVISION PETITIONER/PETITIONER:
K.SHYAMALA
AGED 41 YEARS
D/O. KUNHIRAMAN NAIR, RESIDING AT KUTTANCHERY
KANNOTH HOUSE KAYARALAM AMSOM, VELAM DESOM,
P.O. MAYYIL, TALIPARAMBA TALUK, KANNUR
DISTRICT.
BY ADV. SRI.P.U.SHAILAJAN
RESPONDENT/RESPONDENT:
PURAKKANATH BALAKRISHNAN
S/O. KUNHAPPAN, PURAKKANATH HOUSE, KOTTILA,
EZHOME AMSOM, KOTTILA DESOM, P.O. KOTTILA,
KANNUR TALUK, KANNUR DISTRICT-670334.
R1 BY ADV. SRI.V.N.RAMESAN NAMBISAN
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY
HEARD ON 22-08-2019, ALONG WITH Mat.Appeal.325/2011,
RPFC.75/2013, CO.92/2013, Mat.Appeal.153/2013, THE COURT ON
25-09-2019 PASSED THE FOLLOWING:
Mat.Appeal No.325/11 conn.cases
-:6:-
JUDGMENT
[ Mat.Appeal.325/2011, RPFC.75/2013, CO.92/2013,
Mat.Appeal.153/2013, RPFC.286/2019 ]
Shaffique, J.
All these cases concern matrimonial dispute between the
couple and hence heard and decided together. The short facts of
the case relating to the aforesaid cases are as under:-
2. Mat.Appeal No.325/2011 arises from OP No.152/2008
of the Family Court, Kannur. The first respondent/wife has
preferred the appeal challenging the order passed by the Family
Court dissolving the marriage between the petitioner/husband
and the 1st respondent/wife. The marriage between them has
been solemnized as per Hindu religious rites and custom on
11/4/1990. Two children were born in the wedlock.
Petitioner/husband is a coolie worker. He used to go for work in
the early morning and return to their house only by night.
According to the petitioner, 1st respondent was leading a life of
her own way even from the initial days of marriage. His
complaint was that, without his consent, she used to go away
Mat.Appeal No.325/11 conn.cases
-:7:-
from the matrimonial home and comes back only after a
considerable period. Even when the elder son was nine years, she
had gone to her house without his consent and stayed there for
1½ months. That apart, he got information from the neighbours
that a police constable used to visit the 1st respondent in their
house when the petitioner was not available. Initially he did not
respond to the same. On 20/1/2008, he had gone to attend a
marriage fixation ceremony. When he returned at about 2.30 p.m,
he heard a male voice from his bed room. The front door was
found locked from inside. He peeped through the window of the
bedroom and he saw that the 1 st respondent was having sexual
intercourse with the 2nd respondent. He made a hue and cry and
neighbours came there and the door of the house was opened.
Respondents 1 and 2 came out. The neighbours identified the 2 nd
respondent as the police constable who used to visit their house
occasionally. Police came to the spot and the respondents were
taken to the police station. Disciplinary action was taken against
the police constable. The said news item was published in local
dailies as well. Thereafter, it was understood that the 2 nd
respondent is residing near Pariyaram Medical College where the
Mat.Appeal No.325/11 conn.cases
-:8:-
1st respondent was working as a sweeper. They maintained illicit
relationship for the last many years and was living in adultery.
Petitioner issued a lawyer’s notice on 24/1/2008 for filing a joint
petition for divorce which was countered by a reply notice raising
untenable contentions. Hence, he sought for a decree for
dissolution of marriage on the ground of adultery.
3. The 1st respondent in her counter statement denied
the allegations that she was caught red handed on 20/1/2008 and
that they were taken to the Payangadi Police station. According to
her, it was a cooked up story. She complained that even from the
very inception of marriage, she was subjected to cruelty and she
was brutally manhandled. The petitioner is an alcoholic and he
used to assault her on all days. She was suffering physical and
mental torture. She further stated that on 20/1/2008 when she
was brutally manhandled, her brothers had come and taken her
to the hospital. The 2nd respondent also filed a counter statement
denying the allegations. According to him, he is falsely implicated
in the case.
4. As evidence in the case, on the side of the petitioner,
AW1 to AW3 were examined and the 1st respondent was
Mat.Appeal No.325/11 conn.cases
-:9:-
examined as RW1. 2nd respondent did not enter the box. Exts.A1
to A11 and Exts.B1 and B2 were the documents relied upon by
either side. AW1 is the petitioner who had given evidence in
accordance with the averments pleaded by him. AW2 is a
neighbour who also supported the version of AW1. AW3 is the son
of the petitioner and the 1st respondent. He also deposed that the
respondents were taken by the police in a police vehicle from
their house on 20/1/2008. 1st respondent was examined as RW1
who denied the allegations. According to her, she does not know
the 2nd respondent at all. She also denied the fact that both of
them were taken into custody by the police from their house on
20/1/2008. The oral testimony of AW1 to AW3 supported by
Ext.A2 which is an order dated 25/3/2008 of the Superintendent
of Police, Kasaragode would indicate that disciplinary proceedings
were initiated against the 2nd respondent in connection with the
incident that occurred in the house of the petitioner on
20/1/2008. He was also imposed a punishment of withholding of
increment for three years with cumulative effect for the alleged
misconduct. Apparently this is a case in which 1 st and 2nd
respondents were found together in suspicious circumstances
Mat.Appeal No.325/11 conn.cases
-:10:-
inside the bedroom in the house of the petitioner. AW1 had seen
them indulging in sexual intercourse and the fact that they were
inside the house were supported by AW2 and AW3. Therefore,
sufficient evidence is available to prove the aforesaid fact.
Though it was contended by the respondents that a false case
had been put up, sufficient evidence is available in the case to
arrive at a conclusion that the 1 st respondent was indulging in
adultery. The news item also appeared in local dailies and
publications as evident from Exts.A6 to A9. Family Court was
therefore justified in granting a decree. There is no reason to
interfere with the said judgment.
5. Mat.Appeal No.153/2013 arises from judgment in OP
No. 291/2011. The said case had been filed by the wife as
petitioner seeking past maintenance. Cross Objection No.92/2013
had been filed by the wife dissatisfied with the quantum of
maintenance granted in her favour. She also filed MC
No.163/2011 for future maintenance as well. RP(FC) No.286/2019
has been filed by the wife challenging the order in MC
No.163/2011. RP(FC) NO.75/2013 has been filed by the husband
challenging the order in MC No.163/2011.
Mat.Appeal No.325/11 conn.cases
-:11:-
6. The facts need not be reiterated in this case.
According to the petitioner/wife, she has no source of income
whereas the respondent is a construction worker and earning not
less than `12,000/- per month. He has landed property and
therefore she claims maintenance at the rate of `3,000/- per
month from 6/52008 to 5/5/2011. In the MC also, she also
claimed the same rate. Respondent/husband denied the
allegation. According to him, she was indulging in extramarital
relationship and was having sexual intercourse with her
paramour. The Family Court had already granted dissolution of
marriage on the ground of adultery and cruelty. He is only a
coolie worker and his income is less than `1,200/-, whereas
petitioner is employed and is getting a salary of `2,000/- per
month. He also submitted that she is living in adultery and
therefore she is not entitled for an order of maintenance.
7. In the case, petitioner was examined as PW1 and he
placed reliance on Exts.A1 to A4 documents. Respondent was
examined as RW1 and their son was examined as RW2. Exts.B1
to B9 are the documents relied upon by the respondents. The
Family Court directed past maintenance to be paid @`300/- per
Mat.Appeal No.325/11 conn.cases
-:12:-
month from 6/5/2008 to 5/5/2011. The future maintenance was
granted at the same rate as per order in MC No.163/2011. While
arriving at the above conclusion, the Family Court held that in so
far as there is no evidence to prove that she was living in
adultery and was having continuous sexual relationship with the
2nd respondent in OP No. 152/2008 or any one else, she is entitled
for maintenance. It was also found that with reference to the
income of the husband, it was observed that being a coolie
worker, it might be probable that he is earning at least `500/- a
day and after meeting the necessary expenditure of himself and
the children, payment of `200 will be appropriate. It was
observed that the elder son is a polytechnic student and the
second son is a plus two student. That apart, there is evidence to
prove that RW2 is undergoing treatment as evident from Ext.B6.
The respondent also had a case that petitioner was working and
was earning sufficient income. He had produced Ext.B7 to
indicate that she is enrolled as a construction worker under the
Welfare Board. It is taking into consideration all these facts, the
Family Court directed past maintenance @ `200/- per month. In
the cross objection she claims past maintenance @`3,000/- per
Mat.Appeal No.325/11 conn.cases
-:13:-
month.
8. The learned counsel for the husband argued that in so
far as there is evidence to prove that the divorce had been
granted on the ground of adultery, there is a presumption that
she was living in adultery and therefore there is no obligation to
pay any maintenance.
9. The husband has also filed IA No.1/2019 in RP(FC)
No.75/13 producing his treatment records stating that he was
unable to do any manual work.
10. As far as past maintenance is concerned, which is the
subject matter in Mat.Appeal No.153/2013, the husband has the
obligation to maintain his wife during her lifetime in terms of S.18
of the Hindu Adoptions and SectionMaintenance Act, 1956. However, sub
section (3) of S.18 specifically states that a Hindu wife shall not
be entitled to separate residence and maintenance from her
husband if she is unchaste. The provision applies until an order of
divorce is passed, which in this case was on 8/2/2011, the date of
the judgment in OP No.152/2008. When there is evidence in the
case to prove that she was indulging in adultery and we have
confirmed the said view of the Family Court in Mat.Appeal
Mat.Appeal No.325/11 conn.cases
-:14:-
No.325/2011, her claim for past maintenance can only be
negatived.
11. As far as future maintenance is concerned, reference
has been made to S.125 of the Code of Criminal Procedure, 1973.
There is no dispute about the fact that wife includes a divorced
wife who has not remarried and there is an obligation on any
person having sufficient means to pay his wife maintenance in
the form of a monthly allowance if he neglects or refuses to
maintain her. However, sub section (4) carves out an exception
to the general rule, which reads as under:-
“125(4) No Wife shall be entitled to receive an allowance
from her husband under this section if she is living in
adultery, or if, without any sufficient reason, she refuses to
live with her husband, or if they are living separately by
mutual consent.”
Sub section (4) indicates that the husband has no obligation to
pay maintenance if the wife is living in adultery. Living in adultery
according to the learned counsel for the wife means that she
should continue to live in adultery despite the fact that the
couple had been divorced on the ground of adultery. A single
instance pointed out by the husband and proved before Court
does not mean that she continues to live in adultery.
Mat.Appeal No.325/11 conn.cases
-:15:-
12. What exactly is the meaning of living in adultery has to
be considered in order to decide the aforesaid issue. SectionUnder the
Hindu Marriage Act, divorce can be granted u/s 13(1)(i) if after
solemnization of the marriage, one spouse has voluntary sexual
intercourse with any person other than his/her spouse. In order to
obtain a divorce u/s 13(1)(i), even a single instance of voluntary
sexual intercourse with another person is enough, whereas u/s
125(4), to deny the maintenance, the words used are “living in
adultery”.
13. Learned counsel for the wife had placed reliance upon
the following judgments
(i) Somasekharan Nair. v. Thankamma (1987 (2) KLT
892):- This judgment is that of a learned Single Judge of this
Court in which this Court had occasion to consider the words
“living in adultery” prior to the amendment to S.13(1)(i) by Act 68
of 1976. Reference was made to paragraph 4 of the judgment
which reads as under:-
“4. Prior to the amendment the expression “is living in
adultery” was subject to several decisions. It was held that a
single or isolated act of adultery was not sufficient to have
divorce under Section 13 of the Act, though it is a ground for
judicial separation. However, after the amendment in 1976,
Mat.Appeal No.325/11 conn.cases-:16:-
the appellant need only prove that the respondent had
voluntary sexual intercourse with any person other than the
spouse. It need not be proved that the respondent has been
living in adultery”.
(ii) SectionLaxman Naik v. Nalita alias Lalita Naik (2002 KHC
2604):- This is a judgment of the learned Single Judge of Orissa
High Court wherein it was held that though an instance of single
adultery is enough for the purpose of judicial separation, when
considering an application u/s 125 SectionCr.P.C, one or more instances
of lapses in the character of the wife is not sufficient to absolve
the husband from his liability to pay maintenance to her.
(iii) SectionValsarajan v. Saraswathy (2003 (2) KLT 548). This
was a case in which the learned Single Judge held that an
application for maintenance by a divorced wife cannot be denied
in terms of S.125(4) even if she is living in adultery. Reference
was made to a judgment of the Apex Court in SectionVanamala v.
Ranganatha Bhatta (1995 (2) KLT 397). That was a case in
which maintenance filed by the divorced wife was resisted on the
ground that divorce was by mutual consent and therefore
divorced wife was not entitled to get maintenance. The Apex
Court held that on a plain reading of Section 125(4), the
expression wife in the sub-section does not have the extended
Mat.Appeal No.325/11 conn.cases
-:17:-
meaning of including a woman who has been divorced. Yet
another judgment relied upon is Rohtash Singh. v.
Smt.Ramendri and others [(2000) 3 SCC 180] wherein the
Apex Court held that even if a decree for divorce is passed on the
ground of desertion by the wife after divorce, she is entitled for
maintenance invoking Section 125 of the Cr.P.C.
14. In the case on hand, as rightly pointed out by the
learned counsel for the wife, there is no pleadings to indicate that
she is living in adultery. Therefore, the contention urged with
reference to the judgment in Valsarajan (supra) and the
judgments of the Apex Court relied upon in the said case may not
apply to the fact situation. Therefore, after the divorce, wife will
be entitled for maintenance.
15. The only other question is, whether the amount
awarded as maintenance would be proper or not ? Family Court
directed payment of `300/- per month as future maintenance.
There is no evidence to prove the income of the husband. He is a
coolie worker, who is presently around 55 years of age. There is
some evidence to indicate that the wife is a member of
Construction Workers’ Welfare Board. Exts.B7 and B8 evidences
Mat.Appeal No.325/11 conn.cases
-:18:-
the said fact. She is also an able bodied person. That apart, the
husband has been taking care of the children who were studying.
Under such circumstances, we are satisfied that the Family Court
was justified in awarding future maintenance at the rate of `300/-
per month with effect from the date of M.C.No.163/2011.
In the result:-
(i) Mat.Appeal No.325/2011 is dismissed.
(ii) Mat.Appeal No.153/2013 is allowed. The claim for past
maintenance is rejected.
(iii) Cross objection No.92/2013 in Mat.Appeal No.153/2013
is dismissed.
(iv) RP(FC) Nos. 75/2013 and 286/19 are dismissed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
N.ANIL KUMAR
Rp True Copy JUDGE
PS to Judge
