Anu Mary Yohannan v Manu Philip

1 Mat.Appeal.No.256 OF 2018 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** **Mat.Appeal.No.256 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OPDIV 223/2016 DATED 31-01-2018 OF FAMILY COURT, THODUPUZHA** ## **APPELLANT/S:** **ANU MARY YOHANNAN AGED 29 YEARS, D/O.YOHANNAN D.T.,OLAKKENGIL HOUSE, MOTHER STREET, CHEROOR, THRISSUR.** **BY ADV. SRI.C.CHANDRASEKHARAN** **RESPONDENT/S:** **MANU PHILIP AGED 31 YEARS, S/O.K.P.PAILY, KADAVUNKAL HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. R1 BY ADV. SRI.P.I.GEORGEKUTTY R1 BY ADV. SRI..SHAJI JOSEPH CAVEATOR R1 BY ADV. SRI.T.KRISHNANUNNI SR. R1 BY ADV. SRI.SHAJI JOSEPH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23-022021, THE COURT ON 01-03-2021 DELIVERED THE FOLLOWING:** 2 Mat.Appeal.No.256 OF 2018 **A.MUHAMED MUSTAQUE & C.S.DIAS, JJ. ====================== Mat.Appeal No. 256 of 2018 ====================== Dated this the 1[st] day of March, 2021.** ## **JUDGMENT** ## **C.S.DIAS , J.** The respondent in OP(Div) 223/2016 on the file of the Family Court, Thodupuzha is the appellant. The petitioner in the above original petition is the respondent in the appeal. 2. The respondent had filed the above original petition under Secs 10 (1)(x), 18 and 19 of the Divorce Act, 1869, seeking to declare his marriage with the appellant null and void or in the alternative to dissolve his marriage with the appellant by a decree of divorce. 3. The germane facts in the original petition, relevant for the determination of the appeal, are: the respondent was married to the appellant on 11.5.2015 at St.Mary's Forane Church, Chunkam, Thodupuzha. The couple is issueless. The respondent and the appellant are Engineers by profession. The respondent is working in the United States 3 Mat.Appeal.No.256 OF 2018 of America. Right from the beginning of the marital life, the appellant behaved indifferently towards the respondent. The respondent found the appellant to be immature and she lacked manners in her words and deeds. During the customary visits to the respondent's sister's house, the appellant behaved in an inappropriate manner. The appellant repeated the same kind of behaviour even at the respondent's paternal aunt's house. On the way back from aunt's house, the appellant had an argument with respondent and she got down from the car at 7.00 p.m and sat on the side of the road attracting the attention of drivers and pedestrians causing humiliation to the respondent. The appellant was arrogant, short tempered and rough in her talks. The respondent left to USA two weeks after the marriage. Thereafter, the appellant resided in the matrimonial home along with the respondent's parents, who are sick and bedridden. However, the appellant did not take care of the respondent's parents and refused to do any household chores. The appellant has a habit of hiding in the corner of the bedroom when the respondent's parents tried 4 Mat.Appeal.No.256 OF 2018 to advice her. The appellant made a hue and cry over trivial issues. She also was in the habit of leaving the house without informing the parents of the respondent. On 14.6.2015 the appellant left the matrimonial home. She was found roaming in Thodupuzha town calling the attention of a Police Officer. It is after about two hours, she returned back to the matrimonial home. The respondent's parents turned very tensed and frantic on not finding the appellant. The respondent's father has a good reputation in the locality. The above act of the appellant caused disgrace to the family. On 8.7.2015 the appellant turned violent. She threatened and harassed the respondent's bedridden mother. She used to cause severe mental distress to the respondent's mother by switching off the lights in the house. Without any reason, the appellant proclaimed that she was pregnant. Thereafter, she said that in the pregnancy test, she turned negative. Due to the erratic behaviour of the appellant, the respondent and his parents felt that the appellant had some behavioural disorder. The appellant used to sent umpteen number of emails and messages to the respondent which 5 Mat.Appeal.No.256 OF 2018 irritated and frustrated him. He was unable to concentrate on his work. The appellant also levelled unsubstantiated allegations against the respondent's family members. She even alleged that the respondent's father was a mental patient. Nevertheless, in some of the emails and messages that were sent to the respondent, the appellant admitted that her father was under medication for mental disorder and that her elder brother was suffering from unsoundness of mind and was under treatment. The above fact was suppressed from the respondent at the time of fixing the marriage. This act of suppression was a fraud perpetrated on the respondent and his family members. In the said circumstances, the respondent is entitled for a decree to declare his marriage with the appellant null and void. Due to the atrocities and cruelty that was meted out on the respondent, he was also entitled for a decree of divorce on the ground of cruelty. Hence, the original petition. 4. The appellant filed a written objection, inter alia, refuting the allegations in the original petition. She admitted the marriage. It was her case that the couple lived 6 Mat.Appeal.No.256 OF 2018 together only for a period of 14 days. The respondent mentally and physically harassed the appellant. After the marriage, the respondent's father demanded the appellant to keep all her gold ornaments in the matrimonial home. The respondent and his father used to turn violent if the appellant received any telephone calls from her mother. The appellant has a friendly and kind nature towards the respondent and his family members. The respondent's sister enquired about the appellant's parental property and its value. She sarcastically said that the respondent would have got a wealthier person as his life partner and more dowry. On one occasion, the respondent's father asked whether the appellant was a mental patient and was under any medication. The respondent's father harassed the appellant in every possible way, which clearly devalued the dignity of the appellant as a women and human being. The respondent's sister also demanded the appellant not to go for work. The respondent's parents and sister continuously tortured the appellant by creating issues in the matrimonial home. The appellant was brutally harassed in the 7 Mat.Appeal.No.256 OF 2018 matrimonial home. The respondent's father behaved indecently towards the appellant. The appellant was shocked to receive a divorce notice after an incident that occurred in June 2016. The respondent is in a habit of watching X-rated movies on his mobile phone. Even though the appellant warned the respondent not to indulge in smoking and drinking, he did not adhere to her advice. The respondent seemed to be having obsessive compulsive disorder and he always doubted the appellant. The respondent spoiled the life of the appellant, who had a very bright future as a B.Tech graduate. The intention of the respondent is to spoil the image of the appellant's family in the society. The respondent absconded within 14 days after the marriage. The original petition is without any merits and is liable to be dismissed. 5. The respondent and a witness were examined as PWs 1 and 2 and Exts A1 to A6 were marked through them. The appellant was examined as RW1 and Exts B1 to B8 were marked through her. 6. The Family Court, after analysing the pleadings 8 Mat.Appeal.No.256 OF 2018 and materials on record, by the impugned judgment and decree allowed the original petition by declaring the marriage between the appellant and the respondent null and void. 7. Aggrieved by the said judgment and decree, the appellant/respondent is in appeal. 8. Heard Sri.C.Chandrasekharan, the learned counsel appearing for the appellant and Sri.Krishnanunni, the learned Senior Counsel appearing for the respondent. 9. On a reappreciation of the pleadings and materials on record, we find that the respondent has given more emphasis in his pleadings and evidence regarding the alleged instances of cruelty committed by the appellant. He also produced Exts A2 to A6 messages allegedly sent by the appellant to prove the ground of cruelty. A reading of the written objection and oral testimony of the appellant – RW1 and Exts B2 to B8 documents, would also establish that the appellant had attempted to prove that the respondent had meted out cruelty on her and he has taken advantage of his own wrong. Nevertheless, the Family Court went on a totally 9 Mat.Appeal.No.256 OF 2018 different tangent. The Family Court based on the alleged communication of the appellant to the respondent, that the appellant's father and brother are suffering from unsoundness of mind, held that the non-disclosure of the mental illness of the brother and father was a fraud perpetrated by the appellant on the respondent, which vitiated the marriage and, therefore, the respondent was entitled to a decree of nullity. 10. After considering the pleadings and materials on record, particularly the oral testimonies of PWs 1 and 2 and RW1, we are of the opinion that the respondent has not proved that the appellant's father and brother have mental illness, so as to vitiate the consent for the marriage. Other than for interested oral testimonies of PWs 1 and 2, there is no material to arrive at such a conclusion. In light of the decree of nullity granted, the alternative relief for divorce was not at all considered by the Family Court. 11. In **Samar Ghosh vs Jaya Ghosh [(2007) 4 SCC 511]** a three Judge Bench of the Hon'ble Supreme Court has laid down exhaustive guidelines on the acts that constitute 10 Mat.Appeal.No.256 OF 2018 cruelty. Illustration Nos (i) to (xiv) in paragraph 101 of the said judgment lays down the acts that constitute cruelty. 12. On a cumulative analysis of the entire pleadings and materials on record, we are of the opinion that the finding of the Family Court that the appellant had committed fraud on the respondent by not revealing the fact that her father and brother were persons of unsound mind is patently erroneous and unsustainable in law. Declaring a marriage null and void is a very serious matter because it wipes out a jural relationship. If such a decree has to be passed, there should be cogent materials, which according to us, is lacking in the case. 13.In the above peculiar circumstances, to meet the ends of justice, we are of the firm opinion that the Family Court is to be directed to reconsider OP 223/2016 after considering the entire pleadings and materials in its proper perspective. We are conscious of the mandate under Order XLI Rule 23 (a) of the Code of Civil Procedure that a decree shall not be reversed as a matter of routine, but for the reasons mentioned above, we are compelled to adopt such a 11 Mat.Appeal.No.256 OF 2018 course. 14. In the result, the appeal is allowed and the judgment and decree in OP 223/2016 are set aside by remitting back OP 223/2016 to the Family Court to reconsider the case afresh. Taking note of the fact that the original petition is of the year 2016, we direct the Family Court to consider and dispose of OP 223/2016, in accordance with law, as expeditiously as possible, after affording both the appellant and respondent an opportunity of adducing additional evidence and being heard. The parties are directed to appear before the Family Court, Thodupuzha on 22.3.2021 either in person or through their counsel. The parties shall bear their respective costs. **Sd/-** **A.MUHAMED MUSTAQUE** ## **JUDGE** ## **Sd/-** ## **C.S.DIAS** Sks/24.2.2021 **JUDGE**