IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940
Mat.Appeal.No. 23 of 2010
AGAINST THE JUDGMENT IN OP 203/2009 of FAMILY COURT, KOTTAYAM AT
ETTUMANOOR DATED 23-09-2009(COMMON JUDGMENT IN OP.1154/2008
203/2009)
APPELLANTS/RESPONDENTS:
1 SAJEEV P.R., AGED 36 YEARS,
S/O.RAMESAN, VISHNU NIVAS, EDAYAZHAMKARA, VECHOOR
VILLAGE, VAIKOM TALUK FROM SIVASAILAM HOUSE,
PALLIPRATHUSSERRY KARA, VAIKOM VILLAGE, KOTTAYAM.
2 SHALI AGED 42 YEARS,S/O.GOWRI
PUTHENVELI HOUSE, POTTIKKAVALA, CHERUVARANAM KARA,
CHERTHALA, ALAPPUZHA.
BY ADV. SRI.K.RAMANADHAN
RESPONDENT/PETITIONER:
SREELATHA C.K., 34 YEARS, D/O KUTTAPPAN,
SIVASAILAM HOUSE, PALLIPRATHUSSERRY KARA, VAIKOM
VILLAGE,KOTTAYAM
BY ADVS.
SRI.ABHILASH J
SRI.ALEXANDER GEORGE
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019,
ALONG WITH Mat.Appeal.25/2010, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
2
Mat.A.Nos.23 25/2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940
Mat.Appeal.No. 25 of 2010
AGAINST THE JUDGMENT IN OP 1154/2008 of FAMILY COURT, KOTTAYAM
AT ETTUMANOOR DATED 23-09-2009(COMMON JUDGMENT IN OP.1154/2008
203/2009)
APPELLANT/PETITIONER:
SAJEEV P.R., AGED 36 YEARS,S/O RAMESAN,
VISHNU NIVAS, EDAYAZHAMKARA, VECHOOR VILLAGE,,
VAIKOM TALUK FROM SIVASAILAM HOUSE,,
PALLIPRATHUSSERRY KARA, VAIKOM VILALGE, KOTTAYAM.
BY ADV. SRI.K.RAMANATHAN
RESPONDENT/RESPONDENT:
SREELATHA C.K., 34 YEARS, D/O KUTTAPPAN,
SIVASAILAM HOUSE, PALLIPRATHUSSERRY KARA, VAIKOM
VILLAGE, KOTTAYAM.
BY ADVS.
SRI.ALEXANDER GEORGE
SRI.J.ABHILASH
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019,
ALONG WITH Mat.Appeal.23/2010, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
Mat.A.Nos.23 25/2010
JUDGMENT
SHAFFIQUE, J
These two appeals arise from a common judgment dated
23.9.2009 in O.P.No.203/2009 1154/2008 of the Family Court,
Kottayam at Ettumanoor. O.P.No.1154/2008 has been filed by the
petitioner/husband seeking divorce on the ground of cruelty.
O.P.No.203/2009 has been filed by the wife for return of 15 sovereigns
of gold ornaments or its value of Rs.1,50,000/- and an amount of
Rs.50,000/-. Divorce is rejected and a decree is passed in favour of
the wife, for return of gold ornaments and money.
2. The short facts of the case are as under and the parties are
described as shown in O.P.No.1154/2008 unless otherwise stated.
The petitioner and the respondent got married on 28.4.1997 as per
Hindu religious rites and ceremonies. It is the case of the petitioner
that, immediately after the marriage they started living in a rented
house. But the behaviour of the respondent was very cruel towards
him. She made his matrimonial life miserable. He alleged that he was
conducting a beauty parlour at vaikom. He purchased certain items of
property in which the respondent’s name was also included as a joint
owner. He alleged that she made an attempt to kill him on
24.12.2002 with a knife. She also started filing cases against him.
4
Mat.A.Nos.23 25/2010
The specific allegation made by the appellant/petitioner was that the
respondent with the help of some gundas sent him out of his own
house and he is presently residing in a rented house. She filed false
complaint to the police as well as Women Cell and also filed petition
under the Domestic Violence Act. She also did not allow him to
continue his beauty parlour, whereas she is conducting a textiles in the
name ‘Amma Enterprises’.
3. The respondent filed objections inter alia stating that the
couple were having intimacy even prior to the marriage. However, she
was given Rs.50,000/- and 20 sovereigns of gold ornaments as her
share and the petitioner had taken away 15 sovereigns of gold
ornaments. She denied that she had quarrelled with him and that she
had attempted to kill him and he was thrown out of his house.
According to her, she was ready and willing to live with the petitioner.
4. The petitioner filed objection stating that he has not
received any gold nor has he appropriated any amount. Before the
Family Court common evidence was taken. The petitioner was
examined as PW1 and he relied upon Exts.A1 to A5. The respondent
was examined as RW1. The Family Court after having appreciated the
materials placed on record, dismissed the petition filed by the husband
for divorce, however granted a decree in O.P.NO.203/2009 in favour of
the respondent/wife.
5
Mat.A.Nos.23 25/2010
5. With reference to the ground taken in the divorce petition,
the petitioner had clearly stated that his wife/respondent used to
make false allegations against him of having illicit relationship with
other women and has also filed false complaint before the Magistrate’s
Court. Evidence in the case consists of Ext.A2 complaint filed by the
wife before the Sub Inspector of Police Women Cell, Kottayam against
the petitioner on 13.12.2007. Allegation was that the petitioner was
attempting to sell property and was intending to live with another
women. It is urged by the petitioner that on one occasion she tried to
kill him and thereafter with the help of ‘gundas’ he was thrown out of
his house. False allegations are made against him alleging illicit
relationship with other women. The petitioner in his evidence has
categorically stated the aforesaid facts.
6. The respondent in her evidence though had denied
allegations raised by the petitioner, admits the fact that the petitioner
is not living with the respondent. Petitioner’s allegation that he was
thrown out of the business and his residence is a fact which cannot be
denied at this point of time as he is residing separately from the
respondent. The marriage between the parties has also broken
irretrievably and there is no chance for a re-union. It is evident that
unsubstantiated evidence has been made by the wife against the
husband of him having illicit relationship and ultimately he is thrown
6
Mat.A.Nos.23 25/2010
out of his house. Under such circumstances, we are of the view that
this is a fit case in which divorce ought to have been granted by the
Family Court. The Family Court proceeded on the basis that allegations
in the complaint are not substantiated. But the facts speaks for itself.
This is a clear case of the husband being thrown out and remaining
away from his house on account of cruelty. That apart, when
allegations are made by the wife against her husband alleging illicit
relationship, which is unsubstantiated, that itself amounts to mental
cruelty. Hence we are of the view that a decree for divorce has to be
granted in favour of the petitioner.
7. As far as the claim made by the wife for return of gold
ornaments and money is concerned, though the respondent/husband
denied the aforesaid facts, the Family Court have appreciated the
evidence and found that there is every chance for using the gold and
money by the husband and therefore granted a decree for the same.
Taking into account the fact that the marriage has already been
broken and the Family Court had believed the version of the wife, it is
only appropriate to sustain the decree directing return of gold
ornaments and money.
In the result, Mat.A.No.25/2010 is allowed. The judgment in
O.P.No.1154/2008 is set aside and the original petition is allowed as
under:
7
Mat.A.Nos.23 25/2010
The marriage between the petitioner and respondent shall stand
dissolved by a decree for divorce.
Mat.A.No.23/2010 is dismissed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
A.M.BABU
kp True copy JUDGE
P.A. To Judge.
