IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941
Mat.Appeal.No.270 OF 2014
AGAINST THE ORDER/JUDGMENT IN OP 18/2012 DATED 10-04-2013 OF
FAMILY COURT, IRINJALAKUDA
APPELLANT/PETITIONER:
RANGAN,
AGED 33 YEARS,
S/O.KOZHIPARAMBIL RAVI,VALIYA
PANIKKANTHURUTH,METHALA VILLAGE,KODUNGALLUR TALUK
BY ADV. SRI.V.M.KRISHNAKUMAR
RESPONDENT/RESPONDENT:
MINI,
AGED 28 YEARS,
D/O.PADANNAYIL HARSHAN,MADAPLATHURUTH
DESOM,MOOTHAKUNNAM VILLAGE,PARAVUR TALUK,ERNAKULAM
DISTRICT-683 513.
R1 BY ADV. SRI.P.L.DEVADAS
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
14.01.2020, ALONG WITH Mat.Appeal.573/2014, Mat.Appeal.574/2014,
THE COURT ON 16.03.2020, DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941
Mat.Appeal.No.573 OF 2014
AGAINST THE ORDER/JUDGMENT IN OP 18/2012 DATED 10-04-2013 OF
FAMILY COURT, IRINJALAKUDA
APPELLANT/RESPONDENT:
MINI
AGED 29 YEARS
D/O HARSHAN, PADANNAYIL HOUSE, MADAPLATHURUTHU
DESOM, MOOTHAKUNNAM VILLAGE, PARAVUR TALUK,
ERNAKULAM DISTRICT
BY ADV. SRI.P.L.DEVADAS
RESPONDENT/PETITIONER:
RANGAN
AGED ABOUT 36 YEARS
S/O RAVI, KOZHIPPARAMBIL HOUSE, VALIYAPANIKKAN
THURUTHU DESOM (V.P.THURUTH), METHALA VILLAGE,
KODUNGALLUR TALUK, PIN- 680 669.
R1 BY ADV. SRI.V.M.KRISHNAKUMAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
14.01.2020, ALONG WITH Mat.Appeal.270/2014, Mat.Appeal.574/2014,
THE COURT ON 16.03.2020, DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941
Mat.Appeal.No.574 OF 2014
AGAINST THE ORDER/JUDGMENT IN OP 10/2012 DATED 10-04-2013 OF
FAMILY COURT, IRINJALAKUDA
APPELLANT/PETITIONER:
MINI
AGED 29 YEARS
D/O HARSHAN, PADANNAYIL HOUSE, MADAPLATHURUTHU
DESOM, MOOTHAKUNNAM VILLAGE, PARAVUR TALUK,
ERNAKULAM DISTRICT.
BY ADV. SRI.P.L.DEVADAS
RESPONDENTS/RESPONDENTS:
RANGAN
AGED 34 YEARS
S/O RAVI, KOZHIPPARAMBIL HOUSE, VALIYAPANIKKAN
THURUTH DESOM (V.P THURUTH), METHALA VILLAGE,
KODUNGALLUR TALUK, PIN – 680 669.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
14.01.2020, ALONG WITH Mat.Appeal.270/2014, Mat.Appeal.573/2014,
THE COURT ON 16.03.2020, DELIVERED THE FOLLOWING:
Mat.Appeal No.270, 573 574 /2014 4
C.R.
JUDGMENT
[ Mat.Appeal.270/2014, Mat.Appeal.573/2014
and Mat.Appeal.574/2014 ]
Dated this the 16th day of March, 2020
Mary Joseph, J
Mat Appeal Nos.573/2014 and 270/2014 are preferred
against the order passed by Family Court, Irinjalakuda on
10.04.2013 in O.P No.18/2012 and Mat Appeal No.574/2014,
against the order passed by Family Court, Irinjalakuda on the
same date in O.P No.10/2012.
2. Against an order granting a decree for dissolution of
marriage in favour of the husband on the ground of cruelty and
permanent alimony of Rs.4,00,000/- to the wife, the respective
aggrieved parties have preferred Mat. Appeal Nos.573/2014 and
270/2014.
3. O.P No.10/2012 was filed by the wife seeking for
return of gold ornaments, cash and past maintenance from her
husband and it was dismissed by the Family Court. Being
aggrieved thereby, the wife has filed Mat Appeal No.574/2014
challenging the said order.
Mat.Appeal No.270, 573 574 /2014 5
4. Challenge was made against orders in O.P No.18/2012
and 10/2012 by the parties alleging that orders are vitiated for
erroneous appreciation of evidence and therefore, illegal.
According to Sri.Dinesh Mathew J. Murikan, the learned counsel
for the appellant/wife in Mat. Appeal No.574/2014, the court below
dismissed O.P No.10/2012 mainly for the reason that entrustment
of 6¾ sovereigns of gold and cash worth Rs.50,000/- were not
properly pleaded and proved by her. The learned counsel has also
contended that Ext.P1 marked in evidence clearly establish
entrustment of Rs.50,000/- by her parents as her share from the
family. According to him, PW2, the father of PW1 had also spoken
categorically that 15 sovereigns of gold ornaments had been given
to the latter at the time of her marriage. It is urged that in the
schedule appended to the petition, the gold ornaments sought to be
recovered is particularly described and the wife has also tendered
oral evidence to establish that 6¾ sovereigns of gold was
misappropriated by her husband and in laws. According to him,
though ample evidence was available supportive of the claim of
the wife, the Family Court failed to appreciate the evidence
adduced by her in its proper perspective and thereby the decree
for recovery of money and gold ornaments was declined to be
passed in her favour.
Mat.Appeal No.270, 573 574 /2014 6
5. Challenge against the order granting Rs.4,00,000/- as
permanent alimony to the wife was raised by the husband mainly
for the reason that it actually was not applied for by her.
According to Sri. V.M. Krishnakumar, Section 25 of the Hindu
Adoptions and Maintenance Act, 1956 specifically provides for
filing of an application for obtaining that relief and the relief
having been granted without any application for the purpose
being filed by the wife, the order is per se illegal. It is also
pointed out that the fixation of a lumpsum as alimony without
considering the income of the husband, is arbitrary and not
judicious.
6. According to Sri. Dinesh Mathew J. Murikan, the
learned counsel, the Family Court in O.P. No.18/2012 has gone
wrong in arriving at a finding of cruelty against the wife solely
based on the oral evidence tendered by the husband as PW1
therein, that she was reluctant to do any household work and to
mingle with his relatives, that she used to sit idle thinking over
some matters and that she attempted to cause miscarriage of
child by consuming herbal medicines and to commit suicide.
According to him, the alleged acts are not liable to be treated as
cruelty, as those, even if taken as true would only tantamount to
usual wear and tear in life. According to him, PW2 examined by
Mat.Appeal No.270, 573 574 /2014 7
the husband being a neighbour, his version ought not to have
been relied on by the court.
7. O.P Nos.10/2012 and 18/2012 were considered by the
Family Court and orders have been passed separately on
10.04.2013 itself. Evidence in O.P No.18/2012 consists of oral
evidence of the husband as PW1, his witness as PW2 and the
wife as RW1. Documentary evidence adduced consist of Exts.A1
and A2 and Ext.B1 respectively. Evidence of the petitioner in
O.P. No.10/2012 consists of oral evidence of PW1 and PW2 and
that of the respondents consists of oral evidence of RW1 and
RW2. Documentary evidence consist of Exts.A1 to A4.
8. Dispute is not raised against the caste to which the
parties belong and solemnisation of the marriage on 15.12.2003
at Durga Devi Temple in Thevuruth as per Hindu religious rites
and custom. Admittedly they lived together for a short period.
9. With the passage of time, relationship got strained
and the husband was constrained to seek for a decree of divorce
on the ground of cruelty and desertion. He tendered oral
evidence before the Family Court as PW1. He categorically
stated about the reluctance of the wife to reside with him in the
matrimonial home by discharging the marital obligations.
According to him, on 15.09.2004 she was taken to her parental
Mat.Appeal No.270, 573 574 /2014 8
home for delivery and thereafter did not return to the
matrimonial home despite the efforts taken by him severally.
Ultimately, Ext.A2 lawyer notice was sent demanding for a
divorce by mutual consent.
10. The wife as RW1 has stoutly denied the aforesaid
version of PW1 and stated that even after leaving the
matrimonial home, herself and child returned thereto following
settlement of issues in a mediation process, but did not stay
together for long, due to her apprehension that their life would
be endangered. Though the husband had taken a specific stand
in Ext.A3 lawyer notice that the wife had left his company
permanently on 15.09.2004, she failed even to sent a reply
notice denying the factum. She did not examine her parents,
relatives or the so called mediators to establish the factum that
she returned to the matrimonial home and stayed there for some
time following settlement of issues in mediation. Wife’s evidence
is confined to her own interested version without it being
supported by independent evidence. In the absence of evidence
from the wife that she had returned to the matrimonial home
after leaving there on 15.09.2004, there is every reason to take a
view that she had wilfully deserted her husband permanently
from 15.09.2004. The Family Court was correct in taking a view
Mat.Appeal No.270, 573 574 /2014 9
in that regard. The finding being in the correct perspective,
interference is uncalled for.
11. The husband had stated during examination that
while staying in the matrimonial home the wife was reluctant to
do any household work, that she used to keep aloof gloomy
without mingling with the inmates of the house, that she had
resorted to measures to abort the child in her womb by
consuming herbal medicines and that on 14.06.2004 she
attempted to commit suicide by hanging in a sari on the roof of
the bed room. A neighbour of PW1 was examined as PW2 and he
had categorically stated about transportation of the wife to the
hospital following her attempt to commit suicide. PW2 survived
the efforts of the wife in the lengthy cross examination to
discredit him.
12. As RW1, the wife had not spoken that husband or her
in-laws had ill treated her mentally or physically. True that an
allegation was raised in the counter statement that there were
demands of dowry from the husband but, RW1 failed to depose
those to form part of evidence from her side. RW1 also failed to
project any constraints she had faced at the matrimonial home
from the husband or his relatives which compelled her to leave
their company permanently. She did not speak about any ill
Mat.Appeal No.270, 573 574 /2014 10
treatment meted out by her at the hands of her husband and in-
laws. Therefore, it can be taken for granted that by neglecting
to perform the duties of a wife and by denying the husband
access to the child, she has treated her husband with mental
cruelty. The attempt of the wife to commit suicide is nothing but
a manifestation of her intention to mentally torture the husband
who was proved by her own testimony to be one, caring and
loving. Marriage presupposes living together in harmony. It
contemplates mutuality in thoughts and deeds. It involves
performance of mutual obligations by the parties to the bondage.
The circumstances which constrained the husband to sent
Ext.A3 notice on 24.03.2007 itself show that the husband was
patient enough to wait till that time for the wife to join him and
to resume the conjugal relationship. The wife remained in
adamance and therefore, the husband was constrained to file the
original petition seeking for a decree of dissolution of marriage.
Any cogent reason justifying a separated life having not been
spoken by RW1 during evidence, by keeping herself away from
the company of her husband depriving him the co-habitation to
which he is entitled to during subsistence of the matrimony, is
nothing short of mental cruelty. By keeping away with the child,
the wife has also denied the husband’s access to the child and
Mat.Appeal No.270, 573 574 /2014 11
enjoyment of his company which action also cannot be equated
to anything short of mental cruelty. In the backdrop of the
evidence of the nature, the Family Court cannot be taken to have
erred in holding that wife has treated the husband with mental
cruelty sufficient to grant a decree for divorce in favour of the
husband.
13. It is an admitted factum that the wife left the
matrimonial home for delivery on 15.09.2004 and failed to
return thereafter. Her version that she had been brought to the
matrimonial home pursuant to a mediation process was not
established. Therefore, the claim of the husband that the wife
deserted him permanently, particularly from 15.09.2004, is only
to be believed. The proven facts indicate that the parties were
at loggerheads and were living separated without efforts ever
been made by the wife to join the husband. The dictum of the
Apex Court in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511]
directs us in the context to take a view that the marriage among
the parties had been broken irretrievably. A marital knot kept
broken for a prolonged period of 15 years is difficult to be tied
up and even if does so, will not last long. Therefore, by denying
a decree for dissolution of marriage, the relationship of the
parties to the marriage will never be improved, rather it would
Mat.Appeal No.270, 573 574 /2014 12
work out sheer prejudices in the lives of both. The Family Court
had passed the impugned order after consciously delving on all
related aspects. Therefore, a justifiable reason is not made out
to interfere with the impugned judgment.
14. The husband though satisfied with the grant of the
decree for divorce, is aggrieved by the direction of the Family
Court to pay permanent alimony to the wife to the tune of
Rs.4,00,000/-. The argument of the learned counsel was that
permanent alimony is something to be granted on application
being filed by the wife seeking for that. The learned counsel
condemned the Family Court for granting the relief suo motu
without any application being filed by the wife in that regard.
15. Whether the relief is something to be granted only on
preferring an application is the crucial question involved in the
context on hand and we find it apposite to extract Section 25 of
the Hindu Adoptions and Maintenance Act, 1956 for reference:
“25. Permanent alimony and maintenance :
1) Any Court exercising jurisdiction under this Act may,
at the time of passing any decree or at any time subsequent
thereto, on application made to it for the purpose by either
the wife or the husband, as the case may be, order that the
respondent shall pay to the applicant for her or his
maintenance and support such gross sum or such monthly or
periodical sum for a term not exceeding the life of the
applicant as, having regard to the respondent’s own income
and other property, if any, the income and other property of
the applicant [the conduct of the parties and other
circumstances of the case], it may seem to the Court to be
Mat.Appeal No.270, 573 574 /2014 13just, and any such payment may be secured, if necessary, by
a charge on the immovable property of the respondent.
2) If the Court is satisfied that there is a change in the
circumstances of either party at any time after it has made
an order under sub-section (1), it may at the instance of
either party, vary, modify or rescind any such order in such
manner as the Court may deem just.
3) If the Court is satisfied that the party in whose favour
an order has been made under this section has re-married
or, if such party is the wife, that she has not remained
chaste, or if such party is the husband, that he has had
sexual intercourse with any woman outside wedlock, [it may
at the instance of other party vary, modify or rescind any
such order in such manner as the Court may deem just] .”
16. As contended by the learned counsel for the husband,
the wife had not preferred any application to obtain permanent
alimony before the Family Court which seized of the Original
Petition seeking for a decree of dissolution of marriage. It is
relevant to notice from the provision extracted above that the
words “any court exercising jurisdiction under this Act, may, at
the time of passing any decree or at any time subsequent
thereto, on application made to it for the purpose by either the
wife or the husband as the case may be, order that ………”
indicate that the court while disposing of an application for
dissolution of marriage is empowered to exercise discretion in
the matter of grant of a periodical sum as permanent alimony. It
is indicated therefrom that the court is empowered to act suo
motu. As per the provision, if the court fails to grant it in
exercise of authority suo motu, it is left open to either of the
parties to apply for that, even at a later point of time and the
Mat.Appeal No.270, 573 574 /2014 14
court can grant a decree in that regard, either as a gross sum or
sum payable monthly or periodically during the life time of the
party applying for that and not beyond that. In the process, the
court is empowered to conduct an independent enquiry. The
parties must adduce evidence about their income and other
properties, their conduct and other circumstances of the case,
that may seem to it, just. The court shall look into the materials
placed in evidence by the parties and make a reasonable
assessment of the sum payable as permanent alimony. The court
can also direct security to be furnished by the party liable to pay,
to ensure payment of the sum arrived at as permanent alimony,
by creating a charge on his/her immovable property. If the court
decides to grant permanent alimony to a party entitled for that
suo motu it need not conduct a separate enquiry, rather, can
confine the determination of the quantum payable as permanent
alimony, to the materials already on record in the original
petition seeking divorce, seized of by the court.
17. In the case on hand, the Family Court has considered
the matter suo motu while passing the decree for dissolution of
marriage and directed the husband to pay Rs.4,00,000/- as
permanent alimony to the wife. A view in consonance was also
taken by the Karnataka High Court in Amit Vinay Welangi v.
Mat.Appeal No.270, 573 574 /2014 15
Nupur Amit Welangi (AIR 2018 Kar. 156) and Andra Pradesh
High Court in T.Mohan Reddy v. Poty Krishnaveni (AIR
2010 AP 170) that for grant of permanent alimony in the decree,
specific application need not be filed. In the case on hand, the
Family Court has suo motu ordered to grant a lumpsum of
Rs.4,00,000/- as permanent alimony based on the materials
available to it and in exercise of its discretion. The Family Court
had also taken care of the factum discerned from evidence that the
child begotten to the parties in the marriage, is a deformed child.
The sum arrived at as payable and ordered to be paid is
undoubtedly a reasonable sum. If the court is inclined to pass an
order directing the husband to pay permanent alimony in the
decree passed in the main case for dissolution of marriage pending
on its file itself, it is discretionary for the court to arrive at the sum
payable based on materials already on record. It is the court’s
discretion and in exercise of it, among other aspects it has also
taken into account the deformity of the child. The sum arrived at
as payable is a lumpsum of Rs.4,00,000/-, which is a reasonable
sum. The amount directed to be paid being only Rs.4,00,000/- and
that was arrived at by taking into account of all constraints the
wife in a dissolved marriage has to face in the process of taking
care of a deformed child, we have no hesitation to hold that the
sum is reasonable.
Mat.Appeal No.270, 573 574 /2014 16
18. The wife’s claim for return of money and gold
ornaments was declined by the Family Court by order passed on
10.04.2013 in O.P. No.10 of 2012. The wife had raised a claim in
the petition that 15 sovereigns of gold ornaments and a sum of
Rs.50,000/- were given to her by her parents at the time of
marriage and those were entrusted to the husband and in-laws.
According to her, out of those, three bangles of three sovereigns,
chain of 1¾ sovereigns and the ornaments given to the child
were taken by them and appropriated for their purpose. The
husband and in-laws strictly denied those. The wife attempted to
discharge her burden in the case by producing the photocopy of
a paper, allegedly the extract of the marriage register
maintained in S.N.D.P office. It was marked as Ext.A1 subject to
proof based on the opposition raised by the husband that it is
only a photocopy. To prove the document, the then Secretary of
S.N.D.P branch was summoned and examined as PW2. He had
deposed on the basis of Ext.A1 that the wife was given 15
sovereigns of gold and Rs.50,000/- at the time of marriage.
Admittedly, Ext.A1 was not signed or attested by PW2. During
examination PW2 has also pleaded ignorance of direct
knowledge of contents of Ext.A1. Though Ext.A1 was marked
subject to proof the original marriage Register was not
Mat.Appeal No.270, 573 574 /2014 17
summoned to have a comparison of contents of both. Therefore
the examination of PW2 and marking of Ext.A1 turned a futile
exercise. During cross examination the case of wife in O.P.
No.10/2012 was that cash worth Rs.50,000/- was entrusted with
the uncle of her husband during the marriage ceremony in the
presence of public. But neither her uncle nor any members of
the public who had attended the marriage ceremony were
examined by her. Even the wife has no case that the amount
given to the uncle of her husband was handed over to the
husband then and there or at any later point of time. Therefore
the wife has thoroughly failed to establish her precise case that
Rs.50,000/- was entrusted to the husband during the marriage
ceremony.
19. As per the pleadings of the wife in the Original
Petition, except the gold ornaments described in schedule ‘A’
appended to the petition, the rest of the ornaments were taken
back at the time when she left the house of her husband on
24.01.2006. When confronted with the design of the ornaments,
she pleaded ignorance. Admittedly, the wife was taken to her
parental home on 15.09.2004 for delivery. The husband has a
case that the wife did not return to the matrimonial home
thereafter. Though a claim of return to the matrimonial home
Mat.Appeal No.270, 573 574 /2014 18
after delivery was taken by the wife, in the absence of any
corroborative version lending support to it, that was discarded.
Therefore in the circumstances exist, the view probable was that
the wife never returned to her matrimonial home after leaving
there for delivery. As per the custom prevalent in the
community also, when the wife is taken to her parental home for
first delivery, the entire ornaments will be adorned. Therefore, it
is probable in the case on hand for the wife to take all the gold
ornaments with her unless she has a specific case that her gold
ornaments were appropriated by the husband and in-laws prior
to that occasion itself or that those were again entrusted to
them. Evidence in that regard is not forthcoming. Therefore,
the wife has thoroughly failed to establish entrustment and
appropriation of gold ornaments, by cogent and reliable
evidence. She has also failed to establish that 15 sovereigns of
gold ornaments have been given to her by her parents at the
time of her marriage. In the above context that the Family Court
has declined the wife’s claim for return of Rs.50,000/- and the
gold ornaments.
20. We do not find any reason to hold that the Family
Court has erred in taking such a view and declining thereby to
grant the decree sought for return of gold ornaments and
Mat.Appeal No.270, 573 574 /2014 19
recovery of money. We are convinced that O.P. No.10/2012 was
dismissed by the Family Court, Irinjalakuda on its correct
appreciation of evidence by order dated 10.04.2013 and
interference is uncalled for.
In the result, the Matrimonial Appeals are dismissed.
Sd/-
A.M.SHAFFIQUE
Judge
Sd/-
MARY JOSEPH
Judge
ab/jj/ttb
