SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

K.Shyamala vs K.Shyamala on 25 September, 2019

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

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation