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Simi vs C.P. Latheesh on 21 November, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA,
1940

Mat.Appeal.No. 455 of 2009

AGAINST THE ORDER IN OP 207/2007 of FAMILY COURT, KASARAGOD
DATED 05-01-2009

APPELLANT/PETITIONER:

SIMI, D/O RAJAN, AGED 30 YEARS,
MEETHALEVALAPPIL HOUSE, SHIJIL NIVAS,,
P.O.MADAPPALLY COLLEGE, VADAKARA TALUK.

BY ADVS.
SMT.K.DEEPA (PAYYANUR)
SRI.V.R.NASAR

RESPONDENT/RESPONDENT:
C.P. LATHEESH, S/O SIVADASAN, AGED 34 YEARS
CHEENAMPALLI PARAMBIL,SREE SAILAM,, KOYILANDY
TALUK, P.O. KOYILANDY.

BY ADVS.
SRI.ARJUN SREEDHAR
SRI.ARUN KRISHNA DHAN
SRI.JOSEPH GEORGE(MULLAKKARIYIL)
SRI.P.S.SREEDHARAN PILLAI
SRI.T.K.SANDEEP
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
9.8.2018, ALONG WITH Mat.Appeal.623/2012,
Mat.Appeal.158/2011, THE COURT ON 21.11.2018 DELIVERED THE
FOLLOWING:
Mat.Appeal Nos.455/09,158/11
623/12
-:2:-

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 /30TH KARTHIKA, 1940

Mat.Appeal.No. 623 of 2012

AGAINST THE JUDGMENT IN OP 779/2011 of FAMILY COURT,
THALASSERY DATED 22-08-2012

APPELLANT/RESPONDENT:
C.P.LATHEESH, AGED 36 YEARS,
S/O. SIVADASAN, SREESAILAM, PANTHALAYANI AMSOM
KOILANDI DESOM, KOILANDI BAZAR.P.O., KOZHIKODE
DIST. REPRESENTED BY POWER OF ATTORNY HOLDER
SIVADASAN, S/O. KARUNAKARAN, AGED 57 YEARS,
CHEENAMPALLI PARAMBIL HOUSE, SREESAILAM,
KOYILANDY, KOZHIKODE DISTRICT.

BY ADVS.
SRI.P.S.SREEDHARAN PILLAI
SRI.ARJUN SREEDHAR
RESPONDENT/PETITIONER:
SIMI
AGED 32 YEARS
D/O. LATE RAJAN, MEETHALEVALAPPIL VEEDU,
MADAPPALLY AMSOM, OORANLUNKAL DESOM, MADAPPALLY
COLLEGE.P.O., VADAKARA KOZHIKODE DIST-673102.

BY ADVS.
SMT.K.DEEPA (PAYYANUR)
SRI.V.R.NASAR

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
9.8.2018, ALONG WITH Mat.Appeal.158/2011,
Mat.Appeal.455/2009, THE COURT ON 21/11/2018 DELIVERED THE
FOLLOWING:
Mat.Appeal Nos.455/09,158/11
623/12
-:3:-

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018/30TH KARTHIKA, 1940

Mat.Appeal.No. 158 of 2011

AGAINST THE ORDER IN OP 1015/2009 of FAMILY COURT,KOZHIKODE
DATED 20-10-2010

APPELLANT/PETITIONER:

C.P.LATHEESH, AGED 35 YEARS,
S/O.SIVADASAN, SREESAILAM, CHEENAMPALLY
PARAMBIL,, KOILANDI TALUK, P.O.KOILANDI,
KOZHIKODE DISTRICT.

BY ADVS.
SRI.P.S.SREEDHARAN PILLAI
SRI.ARJUN SREEDHAR

RESPONDENT/PETITIONER:
SIMI, 29 YEARS, D/O RAJAN,
SHIJIL NIVAS, MADAPPALLY COLLEGE (P.O.),
VADAKARA TALUK, KOZHIKODE DISTRICT.

BY ADVS.
SMT.K.DEEPA (PAYYANUR)
SMT.K.DEEPA (PAYYANUR)
SRI.V.R.NASAR

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
9.8.2018, ALONG WITH Mat.Appeal.623/2012,
Mat.Appeal.455/2009, THE COURT ON 21.11.2018 DELIVERED THE
FOLLOWING:
Mat.Appeal Nos.455/09,158/11
623/12
-:4:-

JUDGMENT

Shaffique, J.

Since the above appeals relate to matrimonial issues that

have arisen between the very same parties, all the appeals are

heard and decided together.

2. OP No.207/2007 against which MA No.455/2009 has

been filed, has been preferred by the petitioner/wife. In the OP,

she claimed return of gold ornaments and money.

3. The marriage between the couple was solemnized on

13/11/2000 and a child has been born in the wedlock. According

to her, at the time of marriage, she was given 60 sovereigns of

gold ornaments. The respondent was employed abroad. Before

going abroad after marriage, he demanded `1 lakh from her for

arranging plane ticket and for other expenditure. She did not

accede to the said demand and therefore, it is alleged that she

was tortured physically and he took 30 sovereigns of her gold

ornaments and pledged the same. He went abroad on

14/12/2000. She was taken to his workplace in September, 2001.

She came back on 4/5/2002. In the 7 th month of her pregnancy, it

was noticed that the child had some deformity. She delivered the
Mat.Appeal Nos.455/09,158/11
623/12
-:5:-

child on 21/7/2002. It had deformity to the brain. Again she went

back to the workplace of the respondent on 12/10/2003. She

alleges that she was being ill-treated and respondent’s parents

were insisting that her husband should marry another girl. She

was also threatened that she will be killed. Her visa was cancelled

and she was sent back. She further alleges that 17½ sovereigns

of gold ornaments belonging to her were again taken and

pledged. Respondent also demanded another amount of `1 lakh

for purchasing some property. Accordingly, she persuaded her

parents to pay him `75,000/-. Thereafter, respondent returned to

Gulf. Other matrimonial issues have also arisen on account of

various factors and ultimately she had to leave the matrimonial

home in November, 2006. In the OP, she claimed return of her

gold ornaments weighing 47½ sovereigns and `75,000/-.

4. The respondent filed objection denying the allegations.

According to the respondent, petitioner did not have 60

sovereigns of gold ornaments. She had only a few ornaments. He

also denied having pledged 30 sovereigns of gold ornaments on

the first occasion and 17½ sovereigns of gold ornaments on the

second occasion. He also denied having received `75,000/-. The
Mat.Appeal Nos.455/09,158/11
623/12
-:6:-

above case was considered along with MC No.99/2007 filed by

the petitioner and the minor child for maintenance. Petitioner was

examined as PW1 and a witness was examined as PW2. She

relied upon Exts.A1 to A30. Respondent was examined as RW1

and he relied upon Ext.B1 to B2(b).

5. Mat.Appeal No.158/11 has been filed by husband

challenging the order in OP No.1015/2009 of the Family Court,

Kozhikode by which his claim for divorce u/s 13(1)(ia) and (ib) of

the Hindu Marriage Act had been dismissed. In the petition, he

alleged that he was mentally ill-treated and he was insulted and

humiliated in front of his friends. According to him, she also

alleged that the child suffered deformities on account of his

problem. She stated that she was not interested in the marriage

and had avoided him. She left the matrimonial home and she had

ended the marital relationship which clearly amounts to

desertion. That apart, she had filed false complaint against him

and his family members and had expressed her intention that she

is not interested to live with him. He further alleged that during

2006, she became pregnant as she led an immoral life and she

was leading a wayward life and from 2006, they were living
Mat.Appeal Nos.455/09,158/11
623/12
-:7:-

separately. It is also alleged that respondent had aborted her

pregnancy in a hospital at Shornur without his consent or

knowledge.

6. Respondent in her objection denied the allegations. In

addition to the averments made in OP No. 207/2007, she denied

about the alleged cruelty pleaded by the petitioner/husband. She

contended that the petitioner has illicit relationship with a girl

named Shobhi. When she realised the same, she was sent back

to the native place. After returning from abroad, she stayed in the

house of petitioner/husband. However he never talked to her

thereafter. He only talked to his mother. It is her case that

petitioner was avoiding her, but she tolerated his misdeeds

taking into consideration her future and that of the child. He

however did not show any inclination or affection towards them.

She denied the allegation of infidelity and having done an

abortion in a hospital at Shornur without his knowledge. In this

case, petitioner/husband was examined as PW1 and he placed

reliance on Exts.A1 to A9. Respondent was examined as RW1 and

she relied upon Exts.B1 to B5.

7. Mat.Appeal No. 623/12 has been filed by the
Mat.Appeal Nos.455/09,158/11
623/12
-:8:-

appellant/husband challenging judgment dated 22/8/2012 in OP

No.779/2011. The OP was filed by respondent/wife seeking

restitution of conjugal rights. The Family Court after considering

the evidence of PW1, RW1 and Exts.A1 to A24, allowed the

petition. The factual background in the case is that according to

the petitioner, her father is no more and the child is suffering

from autism. Respondent has not been providing maintenance to

the petitioner or the child for the last more than three years and

the child needs the love and affection of the petitioner and the

respondent. She wants to lead a good marital life and she is

ready to live with the respondent and hence she sought for

restitution of conjugal rights. Respondent having denied the

allegation raised by her contended that he had given sufficient

treatment to the child in various hospitals in India and abroad.

The child used to have epilepsy but he alleged that when he was

abroad, petitioner/wife did not take care of the child properly.

She had also filed CC No.344/2007 against him and his parents.

His parents were arrested by the police which had caused great

mental strain to him. Therefore, according to him, it is not

possible to live with the petitioner.

Mat.Appeal Nos.455/09,158/11
623/12
-:9:-

8. We heard the learned counsel appearing on either

side. Let us first examine whether this is a fit case in which

divorce could be granted as the issues raised in Mat.Appeal

Nos.158/2011 and 623/2012 are substantially the same.

9. The Family Court having considering the evidence on

record observed that the allegation of ill-treatment by the

respondent/wife was not proved in the case. On a consideration

of the entire pleadings in OP No.1015/2009 and in OP

No.779/2011, it is rather clear that allegations and counter

allegations have been made by them. In his petition, petitioner

having alleged about the cruelty meted out against him and his

parents, further alleged that she was living a wayward life and

that she got pregnant through some other person and therefore

he cannot continue to live with her. He even alleged that she was

living with other persons. Apparently these allegations could not

be proved by him. The facts involved in the case would further

indicate that the respondent/wife had filed criminal complaint

against the petitioner and his family members and his parents

were arrested by the police. On the other hand, respondent/wife

also alleged that the petitioner was having illicit relationship with
Mat.Appeal Nos.455/09,158/11
623/12
-:10:-

a lady by name Shobhi and that he was living with her and they

have a child. This allegation is also not proved. Therefore, this is

a peculiar case in which either spouses have made allegations

and counter allegations which are deep rooted and cannot be

washed away. In other words, the marriage had been irretrievably

broken. The very fact of a criminal case being filed and the

parents of the petitioner/husband being arrested in the said case

goes a long way by which the relationship of the parties got

irretrievably strained. At one stage, both the parties had on

categoric terms indicated that either of them were unable to live

together. When such a marriage is in existence, which does not

do any good to either of them, we are of the view that this is a fit

case in which divorce ought to be granted. As held by the Apex

Court in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], this is

an instance in which the matrimonial life of the parties cannot be

brought together as both of them are in acute mental pain, agony

and suffering. In the petition seeking restitution of conjugal

rights, respondent/wife had expressed herself to live with the

petitioner only on account of the fact that they have a child to be

taken care of, who suffers from autism. According to the
Mat.Appeal Nos.455/09,158/11
623/12
-:11:-

petitioner, he was making all arrangements for giving proper

treatment to the child as well. That apart, the spouses had been

living separately since 2006 and there is no chance for a reunion.

The marriage has been irretrievably broken. Though attempts for

mediation took place, parties could not arrive at a settlement.

Other than the mutual allegations of infidelity on either side,

filing of a case u/s 498A of I.P.C. against the parents of the

petitioner/husband had further caused cleavage in their marital

life. Under such circumstances, there is no reason why the

aforesaid marriage should continue. When the pleadings by itself

give a vivid picture of the strong dissent in the matrimonial life

between the couple, and it reflects that chance of reunion has

become virtually impossible, and both suffers from mental agony

and anguish, we are of the view that this is a fit case in which

divorce has to be granted to the couple. Once we have decided

to grant divorce, consequently, the petition for restitution of

conjugal rights decreed in OP No.779/2011 has to be set aside.

10. The next issue we are concerned with is about the

claim for return of gold ornaments and money. The Family Court

rejected the claim on a finding that there is no evidence to prove
Mat.Appeal Nos.455/09,158/11
623/12
-:12:-

that she had 60 sovereigns of gold ornaments and that `75,000/-

was paid at the time of marriage. In order to prove the claim,

petitioner/wife was examined as PW1. She gave evidence in

accordance with the claim. PW2 has not stated anything about

the aforesaid facts. Ext.A1 series are the photographs which have

been produced to prove that she was having sufficient gold

ornaments at the time of marriage. But as rightly pointed out by

the Court below, it may not be possible to find out the actual

weight of the gold ornaments. In the petition, she alleged that he

had taken 30 sovereigns immediately after marriage and it was

pledged and 17½ sovereigns were taken subsequently. In the

objection statement, he had denied those allegations. The only

evidence is that of the petitioner and the respondent. There is no

supporting evidence to prove that she had 60 sovereigns of gold

ornaments and out of which 47½ sovereigns of gold ornaments

were appropriated by the respondent. Her contention is that the

gold ornaments were taken to pledge the same. But, there is no

evidence to prove the said fact.

11. In fact, in the written objection, the respondent had

not specifically denied that she had 60 sovereigns of gold
Mat.Appeal Nos.455/09,158/11
623/12
-:13:-

ornaments. His contention was that he had not appropriated any

of her property and after the marriage, he had gone abroad and

she was taken abroad during September, 2001. Therefore, as far

as the contention of the petitioner is concerned, it is rather

admitted that she had 60 sovereigns of gold ornaments. Now her

contention is that her gold ornaments were appropriated by the

respondent and it was pledged. This fact is denied by the

respondent. According to him, he does not require her gold

ornaments either for going abroad or to purchase any property.

He was having sufficient funds with him. When the specific

allegation is that the gold ornaments were pledged by the

respondent, and the said fact has been denied by the respondent,

some material ought to have been produced to prove the said

fact. In the absence of any such material, Family Court was

justified in rejecting the said claim. Same is the situation as far

as allegation of payment of `75,000/- is concerned. Absolutely

no material or oral evidence is available to prove the said fact

other than the statement of the petitioner which by itself cannot

be taken as sufficient proof regarding the said payment. In the

said circumstances, we do not find any material whatsoever to
Mat.Appeal Nos.455/09,158/11
623/12
-:14:-

grant a decree in OP No.207/2007. Since no grounds are made

out for interference, Mat.Appeal No.455/2009 deserves to be

dismissed.

Accordingly, these appeals are disposed of as under:-

(i) Mat.Appeal No.158/11 is allowed. Judgment in OP

No.1015/2009 is set aside. The OP is allowed and the marriage

between the petitioner and the respondent shall stand dissolved

by a decree of divorce.

(ii) Mat.Appeal No.623/2012 is allowed. The judgment in

OP No.779/11 is set aside and the OP is dismissed.

(iii) Mat.Appeal No.455/2009 is dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

P.SOMARAJAN

Rp //True copy// JUDGE

PS to Judge

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