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Rangan vs Mini on 16 March, 2020

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 13

just, 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

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