Alphonsa @ Alice v Baby; Mat.Appeal Nos. 449 & 450 of 2014, High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 11TH DAY OF OCTOBER, 2019 / 19TH ASWINA, 1941** **Mat.Appeal.No.449 OF 2014** **[AGAINST THE ORDER IN OP(DIV) 5/2013 DATED 22-02-2014 OF FAMILY COURT, KATTAPPANA]** ## **APPELLANT/RESPONDENT:** **ALPHONSA @ ALICE AGED 40 YEARS W/O.MATHEW, PARIKKILATHU HOUSE, KALLIMALI KARA, MAMMATTIKANAM P O, RAJAKKADU VILLAGE, IDUKKI DIST.** **BY ADVS. SRI.K.R.AVINASH (KUNNATH) SMT.MIJI JOHN SRI.ABDUL RAOOF PALLIPPATH** ## **RESPONDENT/PETITIONER:** **BABY** **S/O.THOMAS, PARIKKILATHU HOUSE, KALLIMALI KARA, MAMMATTIKANAM P O, RAJAKKAD VILLAGE, IDUKKI DIST-685566** **BY ADV. SRI.JIMMY GEORGE** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** **02.09.2019, ALONG WITH Mat.Appeal.450/2014, THE COURT ON** **11.10.2019 DELIVERED THE FOLLOWING:** MAT.A.NOS.449 & 450 OF 2014 :-2-: **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 11TH DAY OF OCTOBER, 2019 / 19TH ASWINA, 1941** **Mat.Appeal.No.450 OF 2014** **[AGAINST THE ORDER IN OP(RM) 192/2013 DATED 22-02-2014 OF FAMILY COURT, KATTAPPANA]** ## **APPELLANT/PETITIONER:** **ALPHONSA, AGED 40 YEARS, W/O. MATHEW, PARIKKILATHU HOUSE, KALLIMALI KARA, MAMMATTIKANAM P.O, RAJAKKADU VILLAGE, IDUKKI DISTRICT.** **BY ADVS. SRI.K.R.AVINASH (KUNNATH) SMT.MIJI JOHN SRI.ABDUL RAOOF PALLIPATH** ## **RESPONDENT/RESPONDENT:** **MATHEW, AGED 50 YEARS, S/O. THOMAS, PARIKKILATHU HOUSE, KALLIMALI KARA, MAMMATTIKANAM P.O., RAJAKKADU VILLAGE, IDUKKI DISTRICT.** **BY ADV. SRI.JIMMY GEORGE** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** **02.09.2019, ALONG WITH Mat.Appeal.449/2014, THE COURT ON** **11.10.2019 DELIVERED THE FOLLOWING:** MAT.A.NOS.449 & 450 OF 2014 :-3-: ## **JUDGMENT** ## **(Dated this the 11th day of October 2019)** ## **N.ANIL KUMAR,J:** The above Mat.Appeals have been filed by the appellant-wife, challenging the common order in O.P(R.M).No.192/2013 and O.P(DIV).No.05/2013 of the Family Court, Kattappana dated 22.2.2014. 2. The appellant-wife in Mat.A.No.449/2014 is the respondent in OP(DIV) No.5/2013 on the file of the Family Court, Kattappana. The respondent-husband is the petitioner therein. The Original Petition has been filed under Section 10(1)(x) of the Indian Divorce Act, 1869 (for short 'the Act') for dissolution of marriage on the ground of cruelty. 3. OP(RM) No.192/2013 is filed by the wife on the file of the Family Court, Kattappana, seeking recovery of money from the respondent-husband. 4. By common order dated 22.2.2014, the Family Court, Kattappana allowed OP(RM)No.192/2013 in part allowing the petitioner to recover a sum of Rs.2,60,000/- with 6% interest per annum from the date of petition till date of decree and thereafter, at the rate of 12% per annum till realisation from the respondent and all his assets. O.P(DIV).No.5/2013 was allowed granting a decree in favour of MAT.A.NOS.449 & 450 OF 2014 :-4-: the petitioner dissolving his marriage with the respondent under Section 10(1)(x) of the Act on the ground of cruelty. 5. During trial, both the cases were allowed to be jointly tried vide order dated 7.9.2012 in IA 413/2012. Treating OP(RM) No. 192/2013 as the lead case, the entire evidence was recorded in the said case. 6. Parties are hereinafter referred to as 'the petitioner' and 'the respondent' according to their status in the court below in O.P(RM).No.192/2013 unless otherwise stated. 7. The case of the petitioner in brief are as under:- The marriage of the petitioner with the respondent was solemnised on 20.1.2005 at Christuraj Forane Church, Rajakkadu in accordance with the Christian religious rites and ceremonies. At the time of marriage, the petitioner was adorned with 8 sovereigns of gold ornaments. On the date of betrothal, Rs.5,00,000/- was given to the petitioner by the parents by Cheque No.019271 dated 26.12.2004 of the SBT, Devikulam Branch. On receipt of the amount, an agreement was also executed by her in favour of her parents acknowledging the receipt of Rs.5,00,000/-. In the agreement, the respondent was also a party. Out of the wedlock, a female child by name Mariamol was born to the couple on 12.7.2006. MAT.A.NOS.449 & 450 OF 2014 :-5-: After a few months of marriage, the respondent started to pick up quarrels with the petitioner without any reason whatsoever. On 7.2.2011, the petitioner sustained fracture on her right hand finger at the hands of the respondent. Resultantly, she was admitted in the St.John's Hospital, Kattappana where he underwent treatment as an inpatient. The petitioner lodged a complaint against the respondent before the Rajakkadu Police. At the instance of the Police, the petitioner was taken for counseling. On 12.2.2011, the respondent along with the parents of the petitioner and relatives took the petitioner to the Counseling Centre of Sr.Soona at Pezhakkappally. However,the petitioner and her parents returned from there without co-operating for the counselling. It is further alleged that the respondent had encashed the cheque and utilised the amount for constructing his residential building and also for purchasing a jeep in his name. The respondent has deserted the petitioner. 8. In the objection filed, the respondent admitted the receipt of Rs.5,00,000/- on the date of betrothal from the petitioner. According to him, Out of Rs.5,00,000/-, 30 sovereigns of gold ornaments worth Rs.2,40,000/- were purchased for the petitioner and another sum of Rs.20,000/- MAT.A.NOS.449 & 450 OF 2014 :-6-: was spent for the marriage ceremony. The respondent denied the receipt of 8 sovereigns of gold ornaments adorned by the petitioner at the time of marriage. He contended that the petitioner was suffering from mental ailments and after the delivery of the child, she showed the symptoms of serious mental ailments. He stated that she did not take care of the child and started to pick up quarrels with the respondent even for silly matters. According to him, the vehicle was purchased by him by availing loan from the bank and the building was constructed by him in 2002, out of his own funds long before the marriage. 9. The respondent filed O.P(DIV).5/2013 for dissolution of his marriage with the petitioner on the ground of cruelty. According to the respondent, after the birth of the child, the petitioner's mental condition underwent serious changes and she started to doubt the respondent's moral behaviour and picked up frequent quarrels with him for silly reasons. She also used to display her wrath by assaulting the child without any proper reason. On seeing the change in the behaviour and conduct of the petitioner, the respondent along with the child slept in another room. At present, the respondent along with the child have taken shelter in the MAT.A.NOS.449 & 450 OF 2014 :-7-: house of his sister and they have been residing therein. 10. Per contra, the petitioner contended that her right thumb sustained a fracture at the hands of the respondent on 6.2.2011 and on several occasions, the respondent attempted to get the petitioner admitted in the Mental Hospital alleging mental illness. According to her, the respondent picked up quarrels with the petitioner and his conduct would show symptoms of an unbalanced mental state. She alleged that the attempt of the respondent is to depict her as a mental patient so as to take away the ward from her custody. On 22.3.2011, the respondent had taken away the child without the knowledge and consent of the petitioner and now they are residing along with his sister. Since the respondent has taken away the child, the petitioner filed O.P. (G&W) No.248/2011 before the court below. 11. The evidence in this case consists of the oral testimony of PW1 and Exts.A1 to A10 as on the petitioner's side. RWs.1 and 2 were examined and marked Exts.B1 to B6(a) on the respondent's side. Exts.X1 and X2 were also marked in the case. 12. Certain facts are admitted. The petitioner and the respondent are Christians. Their marriage was solemnised MAT.A.NOS.449 & 450 OF 2014 :-8-: on 20.1.2005 at Christuraj Forane Church, Rajakkad in accordance with Christian rites. Out of the wedlock, a female child viz., Mariamol was born to the couple on 12.7.2006. The parties resided together till 7.2.2011. Thereafter, they have been residing separately. 13. In paragraph 2 of the objections filed, the respondent admitted the receipt of Rs.5,00,000/- on the date of betrothal from the petitioner. However, he stated that out of the amount, 30 sovereigns of gold ornaments were purchased from Joy Alukkas, Angamaly for the petitioner and another sum of Rs.20,000/- was spent in connection with the marriage. Hence, the dispute is as to whether the respondent had expended Rs.2,60,000/- as contended. During crossexamination, PW1 admitted that 25 sovereigns of gold ornaments were purchased by the respondent for her in connection with the marriage. She also admitted that she had adorned 33 sovereigns of gold ornaments including 8 sovereigns of gold ornaments she had with her prior to the marriage. No explanation was offered by the petitioner as to whether she purchased 25 sovereigns of gold ornaments in connection with her marriage. The petitioner had also not produced any document to show that she had 8 sovereigns of MAT.A.NOS.449 & 450 OF 2014 :-9-: gold ornaments with her prior to the marriage. In Ext.A1 document executed between the parties in which the respondent was also a party, 8 sovereigns of gold ornaments were not included. No specific reason is offered as to why 8 sovereigns of gold ornaments are also not included in Ext.A1 document despite the fact that Rs.5 lakh alleged to have entrusted to the respondent, is specifically stated. On going through the conduct of PW1, during cross-examination and also the recital contained in Ext.A1 document, we are of the view that the respondent purchased gold ornaments worth Rs.2,40,000/- adorned by the petitioner at the time of marriage. In the absence of reliable evidence, the case of the petitioner that she had 8 sovereigns of gold ornaments with her prior to the marriage and that she had adorned altogether 33 sovereigns of gold ornaments at the time of the marriage, is not true to facts. 14. The respondent has pleaded that he had purchased gold ornaments worth Rs.2,40,000/- from Joy Alukkas, Ankamaly. However, the petitioner has no consistent case regarding the purchase of 25 sovereigns of gold ornaments and the 8 sovereigns of gold ornaments she had already possessed prior to the marriage. Pleading and MAT.A.NOS.449 & 450 OF 2014 :-10-: evidence absolutely lack in this respect. In the proof affidavit filed by the petitioner, she had contended that a gold chain and bangle weighing 6 sovereigns of gold were taken away by the respondent on 30.3.2011. Accordingly, she filed a complaint on 3.4.2012 against the respondent before the Police. It is clear from the complaint that the complaint was filed after one year from the date of occurrence. Going by the pleadings contained in the original petition, the petitioner has sought for recovery of an amount of Rs.5,00,000/- from the respondent on the strength of Ext.A1 agreement. The petitioner has not sought for return of gold ornaments alleged to have been entrusted to the respondent or the market value thereof. No plausible explanation was offered as to why the petitioner has not sought for return of the gold ornaments, instead the petitioner has sought for recovery of money as if the parties are governed under Ext.A1 agreement. Having taken into consideration of the evidence on record, we are of the view that the court below has taken a probable view in this case and granted a decree for Rs.2,60,000/-, including Rs.20,000/alleged to have spent by the respondent in connection with the marriage ceremony. The court below has taken into consideration 30 sovereigns of gold ornaments purchased by MAT.A.NOS.449 & 450 OF 2014 :-11-: the respondent for the petitioner in connection with the marriage and granted a decree for the balance amount of Rs.2,60,000/-. Interest at the rate of 6% per annum from the date of petition till the date of decree and thereafter at 12% per annum till date of realisation was also granted. Considering the facts and circumstances, we think it is just and proper to modify the interest at the rate of 6% per annum from the date of petition till date of realisation. 15. Coming to the dissolution of marriage on the ground of cruelty, RW1 adduced evidence to show that subsequent to the delivery, visible changes were occurred on the conduct and character of the petitioner. According to RW1, she did not even care to look after the affairs of the child and started to show symptoms of mental illness. He deposed that she used to pick up quarrel with him for silly reasons. He also stated that on 7.2.2011, while he was sleeping with his child, his wife attacked him with a chopper. According to him, immediately thereafter, she was taken to Sr.Soona, a clinical Psychologist and also for counseling. It is stated that due to continuous threat to his life, he and his child have been residing with his sister at present. On the other hand, the petitioner would state that the attempt of the respondent was MAT.A.NOS.449 & 450 OF 2014 :-12-: to brand her as a mental patient among the public and to take sole custody of the child after sending her to her parental home. 16. Ext.X2 Outpatient Record kept and maintained in the Malankara Orthodox Syrian Church, Medical College Hospital, Kolenchery in respect of the petitioner would show that she had consulted the Psychiatry Wing of the hospital on 8.8.2011. Ext.X2 would show that Dr.Santha Abraham, Associate Professor (Clinical Psychology),Department of Psychiatry examined PW1 in the presence of PW1's sister. Ext.X2 would disclose that the petitioner and respondent were at loggerheads since their marriage. In the case history, it is also recorded that since nearly one year, she was alone in her house during the day time. At one instance, she was asked to open the door by a stranger and since then, she has been under constant fear and used to keep a sickle under the cot for her own protection. It is further recorded that she had taken the above sickle to keep under the cot for protection and at the time, her husband caught hold of the sickle apprehending that she had taken it for attacking him and during the struggle, her fingers got injured. After the incident, her daughter was taken away by her husband and they have been staying with his MAT.A.NOS.449 & 450 OF 2014 :-13-: sister. In the case sheet, it is clearly noted that PW1 was having paranoid delusions. 17. In the objection filed, the petitioner has denied the incident happened on 7.2.2011. However, the respondent has stated in paragraph 9 of the affidavit filed by the respondent that the petitioner attempted to attack the respondent with a chopper taken from the kitchen while he was sleeping with the child and thereupon, he was constrained to lock her up in the room and intimated the matter to the local Police. When PW1 was cross-examined before court, she denied the occurrence. However, she admitted that she was locked up in a room by her husband unnecessarily. She further admitted that she was taken for counseling before Sr.Soona on that day. RW2 a close neighbour of PW1 and RW1 testified that he heard a loud cry on 7.2.2011 from the house of PW1 and RW1 and when he reached the house, he saw PW1 being locked up in a room in her house and the Sub Inspector of Police was also present there. The sequence of events would reveal that the alleged occurrence on 7.2.2011 is true to facts. Further, Ext.X2 history of examination, treatment and progress record of PW1 would also lend support to the fact that the petitioner assaulted the respondent with a sickle. More so, the MAT.A.NOS.449 & 450 OF 2014 :-14-: diagnosis of Doctor, who attended PW1, categorically in Ext.X2, is that PW1 was having paranoid delusions. Further examination by the Doctor on 10.8.2011 as per Ext.X2 would indicate that PW1 was having maniac psychotic symptoms. 18. Going by the deposition of RW1, it is clear that subsequent to the delivery, the character and conduct of PW1 underwent changes and she had started to exhibit symptoms of mental disorder by attempting to attack her husband and child with a weapon. The fact that the parties have been residing separately since 7.2.2011 is undisputed. Further, the oral testimony of PW1, RW1 along with Exts.A4 to A10 and Ext.B6 series of complaints lodged by the petitioner against the respondent before various authorities would conclusively prove that the petitioner has been continuously harassing the respondent without any reason whatsoever. The facts and circumstances of the case would show that the petitioner has been treating the respondent with cruelty ever since the delivery of the child. Her conduct would show that she is not willing for a treatment. Since the parties have been residing separately for last more than 8 years, it is evident that the marriage between the parties have been irretrievably broken down. RW1 adduced evidence before the court below that he was not able to live with the petitioner. On the other hand, PW1 MAT.A.NOS.449 & 450 OF 2014 ## :-15-: adduced evidence to show that the respondent was cruel towards her. Both parties are adamant. They are not willing to live together. 19. It is true that the marriage status as far as possible should be maintained to the extent possible. However, when the marriage is dead already, no purpose would be served by trying to persuade the husband and wife to a relationship, which in fact has ceased to exist. Keeping in view of the above legal principle, the Supreme Court in **Samar Ghosh** v. **Jaya Ghosh** [(2007)4 SCC 511 (SC)] held as follows:- “95. Once the parties have separated and separation has continued for a sufficient length of time, and one of them had presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequence of preservation in law of the unworkable marriage which has long ceased to be effective and are bound to be source of greater misery for the parties.” 20. Considering the facts and circumstances involved in the case, we are of the view that the marriage between the petitioner and the respondent has been irretrievably broken down. Under the circumstances, no purpose could be achieved by keeping the matrimonial relationship alive. We do not find any possibility for the couple to reunite. We are of the view that the court below granted a decree of divorce in the interest of the petitioner and the MAT.A.NOS.449 & 450 OF 2014 :-16-: respondent however also leaving liberty to the parties to take an appropriate decision in accordance with their wish. In the result, Mat.A.No.449 of 2014, challenging the decree passed in favour of the respondent-husband dissolving his marriage with the petitioner under Section 10(1)(x) of the Act on the ground of cruelty, requires no interference and is accordingly dismissed. Mat.A.No.450 of 2014, challenging the decree passed in favour of the petitioner-wife, is partly allowed as indicated hereinbelow:- 1. Interest is reduced to 6% from the date of decree till the date of realisation. 2. Regarding all other aspects, the decree of the court below stands confirmed. Sd/- ## **A.M.SHAFFIQUE, JUDGE** MBS/ sd/- **N.ANIL KUMAR, JUDGE**