Angela v. Terry Thomas (Mat.Appeal Nos.1301/2015, 5/2016, 233/2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** ## **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944** ## **MAT.APPEAL NO. 1301 OF 2015** ## **AGAINST THE ORDER/JUDGMENT IN OP 1812/2012 OF FAMILY COURT,THRISSUR** ## **APPELLANT/RESPONDENT:** ANGELA, D/O.VARGHESE, BRAHMAKULAM HOUSE, GANDHI NAGAR MAIN STREET, CHERUR.P.O., THRISSUR. BY ADVS. SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA ## **RESPONDENT/APPELLANT:** TERRY THOMAS, S/O.P.K.THOMAS, ALUR VILLAGE, PULIKKOTTIL HOUSE, TALAPPILLY TALUK, THRISSUR DISTRICT. PIN-680 683. BY ADVS. SMT.R.ANJANA SMT.R.PRIYA SRI.M.B.SANDEEP SRI.B.SURJITH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.07.2022, ALONG WITH Mat.Appeal.5/2016, 233/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** ..2.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944** **MAT.APPEAL NO. 5 OF 2016** **AGAINST THE ORDER/JUDGMENT IN OP 770/2013 OF FAMILY COURT,THRISSUR** ## **APPELLANTS:** 1 TERRY THOMAS, AGED 35 YEARS, S/O P.K. THOMAS, ALUR VILLAGE, PULIKKOTTIL HOUSE, TALAPPILLY TALUK, THRISSUR. 2 P.K.THOMAS, AGED 62 YEARS, S/O KURIYATH, PULIKOTTIL HOSUE, ALUR VILLAGE, TALAPPILLY TALUK, THRISSUR. ADDL. 3 PUSHPA THOMAS, AGED 62 YEARS, W/O LATE THOMAS, PULIKOTTIL HOSUE, ALUR VILLAGE, TALAPPILLY TALUK, THRISSUR ADDL. 4 TRUDYTHOMAS, AGED 36 YEARS, W/O MARTIN KUNDUKULAM MATHEW, PULIKOTTIL HOSUE, ALUR VILLAGE, TALAPPILLY TALUK, THRISSUR *ADDL. APPELLANTS ARE IMPLEADED AS PER ORDER DATED 13.07.2022 IN I.A. NO.1 OF 2022. BY ADVS. SRI.M.B.SANDEEP SMT.R.ANJANA SMT.R.PRIYA SRI.B.SURJITH SRI.VISAKH ANTONY ## **RESPONDENT:** ANGELA, AGED 30 YEARS, D/O VARGHESE, BRAHMAKULAM HOUSE, GANDHI NAGAR MAIN STREET, CHERUR P.O., THRISSUR PIN 676 304. BY ADVS. SMT.P.R.REENA SRI.RENJITH THAMPAN SR. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.07.2022, ALONG WITH Mat.Appeal.1301/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [34 x 9] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944** **MAT.APPEAL NO. 233 OF 2016** **AGAINST THE ORDER/JUDGMENT IN OP 1812/2012 OF FAMILY COURT,THRISSUR** ## **APPELLANT/RESPONDENT:** ANGELA, D/O.VARGHESE, BRAHMAKULAM HOUSE, GANDHI NAGAR MAIN STREET, CHERUR P.O., THRISSUR. (MINOR TARVY, AGED 8 YERS, REPRESENTED BY MOTHER, ANGELA,D/O.VARGHESE, BRAHMAKULAM HOUSE, GANDHI NAGAR MAIN STREET, CHERUR P.O., THRISSUR) BY ADVS. SRI.RENJITH THAMPAN (SR.) SRI.M.V.ANANDAN SMT.P.R.REENA ## **RESPONDENT:** TERRY THOMAS, S/O.P.K.THOMAS, ALUR VILLAGE, PULIKKOTTIL HOUSE, TALAPPILLY TALUK, THRISSUR DISTRICT-680 683. BY ADVS. SMT.R.PRIYA SRI.M.B.SANDEEP SRI.B.SURJITH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.07.2022, ALONG WITH Mat.Appeal.1301/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [34 x 9] intentionally omitted <==** ## **J U D G M E N T** **[Mat.Appeal Nos.1301/2015, 5/2016, 233/2016]** ## **A. Muhamed Mustaque, J** The parties are same in these appeals. We shall refer the parties with reference to their marital status. The husband approached the Family Court for divorce under the Indian Divorce Act alleging cruelty on the part of the wife. The petition for divorce filed by the husband as O.P No.1812 of 2012 on the file of the Family Court, Thrissur, was allowed by granting a decree of divorce. Challenging the above, the wife preferred Mat. Appeal No.1301 of 2015 before this Court. I.A No.5 of 2015 filed in O.P No.1812 of 2012 by the husband, for custody of the male child born in the wedlock was allowed in part granting him visitation rights during vacations. This is also separately challenged in Mat. Appeal No.233 of 2016 by the wife. 2. The wife also had approached the Family Court, ## **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [34 x 9] intentionally omitted <==** Thrissur with two different petitions. In O.P No.770 of 2013, she claimed recovery of gold ornaments, money and past maintenance. After the filing of the Commission Report in the matter, who was deputed to take inventory of the gold ornaments kept in the joint locker, husband raised a counter claim to claim 19 sovereigns of gold ornaments reported in the Commission Report and also certain gold ornaments kept by the wife. The Family Court allowed the claim of the wife to the extent of recovery of 50 sovereigns of gold ornaments as referred to in the Commission Report and the remaining gold ornaments kept in the joint locker were declared as the gold ornaments belonging to the husband. The Family Court also allowed the claim of Rs.12 Lakh by the wife from the husband. Aggrieved by the relief granted for recovery of money as well as declaration granted to the extent of 50 sovereigns of gold ornaments, the husband filed Mat. Appeal No.5 of 2016 before this Court. 3. Heard the learned counsel for the husband and the learned counsel for the wife. 4. We shall first advert to the appeal filed by the ## **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [34 x 9] intentionally omitted <==** wife challenging divorce granted in favour of the husband. The parties married in accordance with the christian ceremonies and rites on 12.05.2007. In their wedlock, a male child was born and he was four years old at the time of filing the petition. Now he is 14 years old. It seen from the pleadings and evidence that the parties initially had a happy married life. However, due to involvements and interference of the parents on both sides, their relationship deteriorated. Constant discord and disputes appear to have been the reason for the husband leaving the wife and son, at their native place, Thrissur after residing together at Dubai. It appears that the parties were living separately since 2012. While analyzing the pleadings and evidence, we have reminded ourselves that all efforts for reunion have been failed and there is no scope for reconciliation between the parties. The Family Court took note of the E-mail communications, police complaint etc which the wife sent to the employer of the husband and formed an opinion that wife has caused mental cruelty to the husband. We perused the E-mail communications and the complaints and found that the wife ## **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [34 x 9] intentionally omitted <==** has raised certain allegations, which would affect the reputation and even the employment of the husband in the Gulf country. We also noted the letter written by the parents of the wife apologizing for the misdeeds. This letter was in the year 2011. We would have considered the conduct of the wife and her parents as part of normal wear and tear of the matrimonial life. However, after sending the letter apologizing, in the year 2011, the wife again sent a letter on 16.12.2013, which was marked as Ext.B1, to the employer of the husband, Consulate of India and police, raising allegations against the husband. This complaint cannot be taken in isolation. When a serious complaint is raised against the husband before the employer and other authorities, the author of such complaint ought to have perceived the consequences that likely to be followed. As these allegations were of no substance, the statutory authority of the employer, overlooking the complaint, did not take any action against the husband. 5. In Ext.B1 complaint, the wife requested the employer to transfer the husband to India, preferably to ## **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [34 x 9] intentionally omitted <==** Chennai, and not to any other country. She alleges that she was suffering at the hands of the husband from 2000 onwards. If the wife was suffering at the hands of the husband, naturally, she would not prefer to continue the marital relationship. But she still insists for continuation of the matrimonial life. 6. If the wife is of the opinion that there are no serious aberration in the conduct or attitude of the husband, she would not have raised such complaints against him before the employer, Consulate of India and other statutory authorities. We can assume the mental cruelty that would have caused to the husband from the letters produced in Ext.B1 series itself. 7. As noted above, the parties are living separately for the last more than 10 years. Hope for reunion has come to an end. All attempts for settlement have been failed. Taking note of the best interests of the parties, we find no reason to interfere with the divorce granted in this matter. Accordingly, we dismiss the Mat. Appeal filed by the wife challenging divorce. 8. In regard to the appeal filed by the wife ## **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [34 x 9] intentionally omitted <==** challenging custody of the minor child to the father during the first month of summer vacation and half of the X'mas and other holidays, we find no reason to interfere with the same inasmuch as the father is also entitled to have the custody of the child. Absolutely, there is nothing on record to hold that he is incompetent or incapable to have the custody of the child,. It is to be noted that the child should enjoy the parental care of both. It is in the interest of the child that such an arrangement has been made by the Family Court. We also note that this Court passed an order on 3.04.2018 in the Mat. Appeal filed by the wife, whereby the father was allowed to take the child abroad during the period of custody given to him. We are sure that if the child is allowed to have the company of both, his welfare will be assured. The child also should recognize his father during his growing age. He requires the support and assistance from his own father to shape his own future. In such circumstances, we see no reason to interfere with the order passed by the Family Court. 9. Now we shall advert to the appeal filed by the ## **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [40 x 9] intentionally omitted <==** husband as against allowing the claim of the wife for recovery of Rs.12 Lakhs and gold ornaments. We find that no separate appeal has been preferred by the husband as against the decree in counter claim. However, there are prayers in the memorandum of appeal challenging counter claim. In view of the above fact, we allow the husband to challenge the decree to the extent it disallowed the counter claim. The husband shall pay the court fee within two weeks. 10. There are essentially three claims in this matter. The claim of the wife in tune of Rs.12 Lakh. According to the wife, a sum of Rs.7 Lakh has been paid by her father on 4.05.2007 and a sum of Rs.5 Lakh has been paid on 8.05.2007. The marriage was solemnized on 12.05.2007. The Family Court allowed the entire money claim of the wife. Besides the above, the wife also claimed recovery of 60 sovereigns of gold ornaments. According to her, 48 sovereigns of gold ornaments adorned at the time of marriage are with the husband. She also claims that 12 sovereigns of gold ornaments belonging to the child are also with the husband. It has come out in ## **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [40 x 9] intentionally omitted <==** evidence that based on the Commission Report, 69.15 sovereigns of gold ornaments are found kept in the joint locker. The Family Court allowed the claim of the wife to the extent of 38 sovereigns of gold ornaments and 12 sovereigns gold ornaments of the child. The Family Court found that remaining gold ornaments kept in the joint locker i.e., 19.15 sovereigns of gold ornaments belong to the husband. The husband's counter claim is essentially related to the gold ornaments lying in the joint locker and other gold ornaments alleged to be in the possession of the wife. 11. The claim of the wife that she paid Rs.12 Lakh in two intervals, has been allowed by the Family Court. The father of the wife is a retired Conservator of Forest and he was examined as PW2. He produced the bank account details. The bank account details would show that on 7.05.2007, he withdrew Rs.7 Lakh. There are also indications of withdrawal of different denominations of money on different occasions. However, there is nothing on record to show that he has withdrawn any money or had any money as cash in hand, as on 4.05.2007, the date on ## **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [40 x 9] intentionally omitted <==** which the wife alleged to have paid Rs.7 Lakhs. As seen from the bank passbook, on 7.05.2007, a sum of Rs.7 lakhs has been withdrawn. According to the wife, on 8.05.2007, Rs.5 Lakhs has been paid. This would indicate that on 8.05.2007, at least Rs.5 Lakhs would have been paid by the wife. We also note that the parties belong to the christian community and as part of marriage ceremonies, the parental share of the wife is given to the bride groom before the marriage. This practice has been recognized and acknowledged in _**Bexy Michael v. A.J. Micheal [2010 (4) KHC 376].**_ We cannot brush aside such payment of Rs.5 Lakh on 8.05.2007. But we cannot accept the payment of Rs.7 Lakh on 4.05.2007 without any supporting document substantiating the claim that the amount was paid on 4.05.2007. In all probabilities we can only accept the evidence of the wife that Rs.5 Lakh was paid on 8.05.2007. In the absence of any other evidence to show that the wife or her parents were in possession of Rs.7 Lakh as on 4.05.2007, we may not be justified in granting the relief sought for by the wife. No doubt, when a huge amount is alleged to have been paid, the burden to prove the same is **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [40 x 9] intentionally omitted <==** on the person who raised such claim. 12. We, therefore, find that the impugned judgment to the extent allowing the wife to recover Rs.7 Lakh has to be set aside. Accordingly, we set aside that part. 13. In regard to the claim of the gold ornaments, according to the wife, she adorned 48 sovereigns of gold ornaments at the time of marriage. The Family Court allowed the claim to the extent of 38 sovereigns of gold ornaments. This was taking note of the counter statement of the husband as well. In the counter statement, he had stated that certain gold ornaments were kept with the wife for her daily use. The Family Court assumed that at least 10 sovereigns of gold ornaments have been kept for the wife. The husband was able to prove with documentary evidence that he is the owner of only 13.36 sovereigns of gold ornaments, as evident from Exts.B8 to B13. According to him, he purchased the gold ornaments from Dubai. In normal circumstances, the gold ornaments found in the possession of the husband, have to be presumed to be that of the wife, unless there is evidence on record to prove the contrary. The burden is on the husband to prove that ## **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [40 x 9] intentionally omitted <==** those gold ornaments belonged to him. Except gold coins and biscuits (2 Gold Coins each weighing 7.974 gm and 8 gm and 1 Biscuit weighing 11.445 gm ) all other gold ornaments are in the nature of bangles, necklace, chain etc. In normal circumstances, no husband would buy those ornaments for any purpose other than for giving as gift to wife or his near relatives. Now the husband's explanation is that, those gold ornaments were purchased as an investment, which cannot be believed in such circumstances. The parties alone know the truth, but the Court does not. The Court sometimes, in matters like this have to do some guess work. This was exactly done by the Family Court by assuming that 10 sovereigns of gold ornaments would have been kept for use by the wife. The finding made in the impugned judgment in regard to the gold ornaments is plausible and reasonable in such circumstances. We, therefore, do not want to interfere with the decree granted in favour of wife in regard to the gold ornaments. Thus, the appeal is allowed in part, confining the decree of recovery of Rs.12 Lakh to Rs.5 Lakh, modifying the impugned judgment. **Mat.Appeal Nos.1301/2015, 5/2016, 233/2016** **==> picture [40 x 9] intentionally omitted <==** 14. The challenge against the counter claim by the husband also is liable to be dismissed. 15. We also note that there is a claim for past maintenance by the wife. That was allowed for a period of four months. We find no reason to interfere with that finding also. The appeals filed by the wife are dismissed and the appeal filed by the husband is allowed in part. No order as to costs. ## **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** **Sd/SOPHY THOMAS JUDGE** PR