Daisy Danial v. Honey Thomas

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE** ## **&** ## **THE HONOURABLE MRS.JUSTICE SOPHY THOMAS** **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** **MAT.APPEAL NO. 1137 OF 2017 AGAINST THE ORDER/JUDGMENT IN O.P.(DIV)NO.250/2015 OF FAMILY COURT, PATHANAMTHITTA** ## **APPELLANT/S:** **DAISY DANIAL, AGED 24 YEARS, W/O. HONEY THOMAS, KATHADATHU VADAKKETHIL HOUSE, PERINGANADU, VADAKKUM MURI, PERINGANADU VILLAGE, ADOOR TALUK, REPRESENTED BY THE POWER OF ATTORNEY HOLDER AND FATHER NAMELY SRI.DANIAL K.M, AGED 56 YEARS, S/O. GEEVARGHESE MATHAI, RESIDING AT KATHADATHU VADAKKETHIL HOUSE, PERINGANADU, VADAKKUM MURI, PERINGANADU VILLAGE, ADOOR TALUK.** **BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN** ## **RESPONDENT/S:** **HONEY THOMAS, AGED 32 YEARS, S/O. ABRAHAM THOMAS, PANANILKKUM KUZHIYIL HOUSE, KALANJOOR PANCHAYAT, PIN-689 648, KAIPATTOR (VIA), ANGADICKAL VADAKKU P.O., KOCHELIMUKKU, NEDUMONKAVU MURI, KOODAL VILLAGE, KONNI TALUK.** **BY ADV SRI.S.MOHANDAS** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2022, ALONG WITH Mat.Appeal.NO.1268/2017, THE COURT ON 25.07.2022 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.1137 & 1268/2017 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** **MAT.APPEAL NO. 1268 OF 2017** **AGAINST THE ORDER/JUDGMENT IN O.P.NO.795/2014 OF FAMILY COURT,** ## **PATHANAMTHITTA** ## **APPELLANT/S:** - 1 **HONEY THOMAS, AGED 35 YEARS, S/O.ABRAHAM THOMAS, PANANILKKUM KUZHIYIL HOUSE, KALANJOOR PANCHAYATH, PIN-689 648, KAIPATTOOR VIA, ANGADICKAL VADAKU P.O., KOCHELIMUKKU, NEDUMONKAVE MURI, KOODAL VILLAGE, KONNI TALUK.** - 2 **ANNAMMA THOMAS, AGED 58 YEARS, PANANILKKUM KUZHIYIL HOUSE, KALANJOOR PANCHAYATH, PIN-689 648, KAIPATTOOR VIA, ANGADICKAL VADAKU P.O., KOCHELIMUKKU, NEDUMONKAVE MURI, KOODAL VILLAGE, KONNI TALUK.** 3 **ABRAHAM THOMAS, AGED 63 YEARS,PANANILKKUM KUZHIYIL HOUSE, KALANJOOR PANCHAYATH, PIN-689 648, KAIPATTOOR VIA, ANGADICKAL VADAKU P.O., KOCHELIMUKKU, NEDUMONKAVE MURI, KOODAL VILLAGE, KONNI TALUK.** **BY ADVS. SRI.S.MOHANDAS SRI.V.B.PREMACHANDRAN** ## **RESPONDENT/S:** **DAISY DANILE, AGED 27 YEARS, W/O.HONEY THOMAS, KATHADATHU VADAKKETHIL HOUSE, PERINGANADU VILLAGE, PERINGANADU VADAKKU MURI, ADOOR TALUK.** **BY ADVS. SRI.FIROZ K.ROBIN SRI.J.JULIAN XAVIER** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2022, ALONG WITH Mat.Appeal.1137/2017, THE COURT ON 25.7.2022 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.1137 & 1268/2017 3 A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ. -----------------------------------------Mat.Appeal Nos.1137 & 1268 of 2017 ------------------------------------------Dated this the 25[th] day of July, 2022 ## **JUDGMENT** ## **A.Muhamed Mustaque, J.** These appeals are between the same parties. The parties are referred here with reference to their marital status. The wife approached the Family Court, Pathanamthitta, in two separate proceedings against the husband. She filed O.P.No.795/2014 for recovery of Rs.10,00,000/- and the value of 35 sovereigns of gold ornaments from the husband. She also filed O.P.(Div) No.250/2015 seeking dissolution of marriage on the ground of cruelty. Her claim for recovery was partly allowed to the extent of recovery of Rs.10,00,000/- along with interest and also the value of 10 sovereigns of gold ornaments. However, she was denied divorce. Challenging the denial of divorce, the wife filed Mat.Appeal No.1137/2017. Aggrieved by the decree in O.P.No.795/2014, the husband preferred Mat.Appeal No.1268/2017. Mat.Appeal Nos.1137 & 1268/2017 4 2. We heard the learned counsel appearing for both sides. 3. We shall now first advert to the divorce claim made by the wife. The marriage was solemnised on 24.02.2014. The parties are Christians and the marriage was solemnised in accordance with the Christian religions rites. They lived as husband and wife only for 112 days i.e., from 24.2.2014 to 15.6.2014. Absolutely no attempt was made thereafter, for reunion or cohabitation by both spouses. According to the wife, she was cheated by her husband. The wife was employed as a nurse in Delhi. After the marriage, both went back to Delhi. However, she found out that the husband had no employment in Delhi as disclosed to her, prior to the marriage. She also states that her husband failed to take care of her when she suffered from an illness. She came back to her native place on 15.6.2014 after resigning her job. She was forced to resign her job due to her illness. According to the wife, neither his parents nor her husband made any arrangements to take care of her. She was also forced to undergo MTP based on medical advice that the medicine she consumed would harm the child Mat.Appeal Nos.1137 & 1268/2017 5 she conceived. According to the wife, the attitude and behaviour of her husband and family constituted cruelty to seek divorce. On the other hand, the husband would contend that the indifferent attitude of her wife and her parents is a cause for the rift between them. The whole idea of the parents of the wife is to send her to America after separation from the marriage, and after finding a new alliance. He denied all the allegations levelled against him on the ground of cruelty. 4. After hearing learned counsel for both sides, we find no scope for any reunion. The parties are mentally and physically separated for long. However, both parties are not able to arrive at a complete settlement due to the claim made by the wife for recovery of money, gold etc. The short-lived marital relationship never blossomed to intimacy to lay down the foundation for a long-lasting marriage. This is a case where the parties could have simply invoked Section 10A of the Divorce Act to separate their marriage as the marriage has become dead for all practical purposes. We often see monetary claims of one of the spouses stand in the way of the parties in moving joint motions for divorce. Mat.Appeal Nos.1137 & 1268/2017 6 5. In a recent judgment, **Beena M.S. v. Shino G Babu** **[2022(2) KHC 11]** this Court held in paragraph-6 as follows: “ _The law on divorce recognises both fault and consent as a cause for separation. When both the parties are unable to lead a meaningful matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation. The purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights. The companionship of spouses creates oneness of the mind to walk together. It is through mutual respect and courtship, the companionship is built and fortified. The modern jurisprudence of irretrievable break down to allow divorce is premised on the fact that the spouses can never remain together on account of their differences. If the court is able to form an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the court can very well treat that conduct itself as cruelty. If one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse. No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair. The portrayal of such conduct through manifest behaviour of the spouse in a manner understood_ Mat.Appeal Nos.1137 & 1268/2017 7 _by a prudent as 'cruelty' is the language of the lawyer for a cause before the court. This case is also not different. The behavioural disorder pointed out against the appellant in the petition for divorce was essentially reflection of incompatibility that existed between the parties. The husband wants to get out of the struggled relationship, on the projected cause of cruelty with reference to the incidents of misbehaviour. Incompatibility is a factor that can be reckoned while considering the ground for cruelty, if one of the spouses withholds the consent of mutual separation, though incompatibility is not recognised as ground for divorce.”_ 6. This is a case where the husband is withholding consent to spite the wife due to her monetary claim. We, in such circumstances, have no hesitation to hold that such a withholding of consent itself would cause mental cruelty to the wife, though narrations of cruelty in the pleadings and evidence to impress the court have been failed before the Family Court. 7. In such circumstances, we are of the view that divorce can be granted to dissolve the marriage. Accordingly, the appeal filed by the wife is allowed. Mat.Appeal Nos.1137 & 1268/2017 8 8. The appeal filed by the husband is against sustaining certain monetary claims raised by the wife. The wife claims that the husband was given Rs.10,00,000/- as patrimony and the entire amount has been misappropriated by him. She also claims that 35 sovereigns of gold ornaments given to her at the time of marriage also have been misappropriated by him. 9. The evidence, in this case, consists of the oral evidence of PW1 to PW5 and Exts.A1 to A15 documents from the side of the wife, and RW1 and RW2 and Exts.B1 to B15 documents from the side of the husband. The wife was examined as PW1. Her father was examined as PW2. The bank manager was examined as PW3 and PW4 is the brother of the wife's father. 10. It is evident from the records that around Rs.7,06,991/- was withdrawn by the father of the wife on different dates prior to their marriage. According to the wife, Rs.5,00,000/- was given on 22.2.2014 the day on which the engagement ceremony was celebrated and another Rs.5,00,000/- was paid on 24.02.2014, ie; the date of marriage. Except for oral evidence of the parties, no other Mat.Appeal Nos.1137 & 1268/2017 9 evidence was adduced to prove handing over of the money. The parties are Christians. In **Bexy Michael v. A.J.Michael [ILR 2010 (4) Ker. 382]** , this Court noticed the practice in the State of Kerala amongst Christian communities, of handing over the money by bride to the groom. This payment actually is the parental share of the daughter. 11. Taking note of the practice above, we are sure that money might have been given to the husband in connection with the marriage. We cannot disbelieve giving of Rs.5,00,000/- at the time of engagement. However, it has come out in the evidence that the father of the wife was having only Rs.7,69,991/- in his account. Assuming he has some other cash, he had also to spend money for purchasing gold ornaments, for reception etc. Therefore, in all probability we find that what was given was only Rs.5,00,000/-. If another Rs.5,00,000/- was given in cash on the date of marriage, certainly, some third parties could have witnessed it. No one was examined to prove the same. Taking note of the fact that the amount available with the father of the wife at the time of marriage, we are of the view that only Rs.5,00,000/- was given to the husband. Mat.Appeal Nos.1137 & 1268/2017 10 12. The claim for recovery of gold ornaments has to be viewed suspiciously. According to the wife, all gold ornaments have been taken away by her husband and his parents. The Family Court allowed the claim of 10 sovereigns of gold ornaments only. It is to be noted that both parties went to Delhi immediately after the marriage. The trouble started in Delhi itself. The parties never had a happy married life. The Family Court found that the wife was adorned with only 10 sovereigns of gold ornaments at the time of marriage. This was relying on Ext.B1 photograph. The Family Court accepted the version of the wife that she had entrusted 6 sovereigns of gold ornaments, and balance also was given to the parents of the husband at the hospital. The Family Court went on to assume that the remaining 4 sovereigns of gold ornaments were also with the husband's parents and they misappropriated the same. The wife's case was that parents of her husband never cared for her. She also stated that the relationship between the husband deteriorated immediately on return from Delhi. In such circumstances, it is quiet improbable that the wife would entrust gold ornaments with the husband or his parents. The Mat.Appeal Nos.1137 & 1268/2017 11 evidence adduced by the wife was not sufficient to allow her claim. We, therefore, in such circumstances, partly, allow the appeal filed by the husband. Accordingly, these appeals are disposed of as follows: Mat.Appeal No.1137/2017 is allowed by dissolving the marriage between the appellant and the respondent by a decree of divorce. Mat.Appeal No.1268/2017 is partly allowed by confining the recovery to Rs.5,00,000/- only with interest at 6% from the date of the petition till realisation. **==> picture [301 x 12] intentionally omitted <==** A.MUHAMED MUSTAQUE, JUDGE Sd/SOPHY THOMAS, JUDGE ## **ln** Mat.Appeal Nos.1137 & 1268/2017 12 ## **APPENDIX OF MAT.APPEAL NO.1268/2017** ## **APPELLANTS' ANNEXURE:** **ANNEXURE-1 : A TRUE COPY OF JUDGMENT DATED 18.08.2017 IN O.P.NO.795/2014 OF THE FAMILY COURT, PATHANAMTHITTA.**