Dayoshyas @ Noble v. Rosmin (Mat.Appeal Nos. 94/2013 & 97/2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942** **Mat.Appeal.No.94 OF 2013** # **AGAINST THE ORDER/JUDGMENT IN OP 354/2010 OF FAMILY COURT, THODUPUZHA** ## **APPELLANT/RESPONDENT:** **DAYOSHYAS @ NOBLE, AGED 39 YEARS MUTHANATTU HOUSE,CHERUPURAM KARA,RAJAKKADU VILLAGE,PIN-685 566.** **BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN** ## **RESPONDENT/PETITIONER:** **ROSMIN, AGED 32 YEARS W/O.DEYOSHYAS,PALAMATTOM HOUSE,ERUMALAKKAPPU KARA,KONNATHADI VILLAGE,UDUMBANCHOLA TALUK,PARATHODU.P.O,PIN-685 571.** **R1 BY ADV. SRI.S.ASHOK KUMAR. R1 BY ADV. SRI.GEO PAUL R1 BY ADV. SMT.P.M.HRIDYA R1 BY ADV. SRI.C.R.PRAMOD R1 BY ADV. SRI.SANU MATHEW R1 BY ADV. SRI.R.VINU RAJ** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2020, ALONG WITH Mat.Appeal.97/2013, THE COURT ON 29-06-2020 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 29TH DAY OF JUNE 2020 / 20TH POUSHA, 1941** ## **Mat.Appeal.No.97 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPDIV 184/2009 DATED 29-09-2012 OF FAMILY COURT, THODUPUZHA** ## **APPELLANT/PETITIONER:** **DAYOSHYAS @ NOBLE AGED 39 YEARS MUTHANATTU HOUSE, CHERUPURAM KARA, RAJAKKADU VILLAGE, PIN-685 566.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENT/RESPONDENT:** **ROSMIN** **AGED 32 YEARS W/O.DEYOSHYAS, PALAMATTOM HOUSE, ERUMALAKKAPPU KARA, KONNATHADI VILLAGE, UDUMBANCHOLA TALUK. PIN685 571.REPRESENTED BY NEXT FRIEND AND GUARDIAN SUSAMMA, W/O PAUL JOSE,PALAMATTATHIL,PARATHODU P.O,ERUNALAKAPPU,UDUMBAN CHOLA TALUK** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2020, ALONG WITH Mat.Appeal.94/2013, THE COURT ON 29-06-2020 DELIVERED THE FOLLOWING:** Mat Appl. No. 94 and 97 of 2013 -:3:- ## **A.M. SHAFFIQUE & MARY JOSEPH, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - Mat Appl. Nos. 94 and 97 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of June, 2020 ## **JUDGMENT** ## _**Mary Joseph, J.**_ Mat Appeal Nos.97/2013 and 94/2013 have been filed by the respondent/husband against the common order passed by Family Court, Thodupuzha on 29.09.2012 dismissing O.P (Div) No.184/2009 filed by him and allowing O.P No.354/2010 filed by the petitioner/wife in part. In O.P (Div) No.184/2009, decree for dissolution of marriage on grounds of cruelty and insanity and in O.P No.354/2010, decree for recovery of Rs.1,00,000/- and 35 sovereigns of gold ornaments were sought. 2. Both Original Petitions were tried together. Evidence was adduced by both parties to the respective petitions in common, treating O.P. No.354/2010 as the leading case. Evidence adduced by the petitioner consist of her own testimony as PW1 and that of witnesses as PW2 to PW4. Evidence adduced Mat Appl. No. 94 and 97 of 2013 -:4:- by the respondent consist of his own testimony as RW1 and that of his witnesses as RW2 to RW6. Exts.A1, B1 and B2 respectively were also marked by respective parties. Ext.X1 was marked as court exhibit. 3. The parties to the Original Petitions belong to 'Christian Yahova Sakshi' and their marriage was registered on 10.04.2000, following a pledge taken by the parties. The marriage was also solemnized in accordance with their religious rites. Thereafter they lived together as husband and wife at the residence of the petitioner at Rajakkad and were blessed with a girl and a boy child. 4. The pleadings raised by petitioner in the Original Petition had been specifically sworn to in the proof affidavit filed in lieu of examination in chief. It is pertinent to note from the pleadings that the parties were not in conflict about solemnization of marriage and birth of children. 5. Sri.Prijith P.P., the learned counsel for the appellant has condemned the Family Court for not appreciating the evidence in it's proper perspective. According to him, evidence Mat Appl. No. 94 and 97 of 2013 -:5:- was adduced by the husband in O.P.(Div)No.184/2009 elaborately about the cruel treatment suffered by him from his wife on account of her insanity. 6. Per contra, Sri.Geo Paul, the learned counsel for the respondent has contended that the Family Court was correct in its appreciation of evidence on record and the relief sought was declined for failure of the husband to adduce sufficient evidence to establish cruelty and insanity. A scrutiny of the evidence on record is called for in the backdrop of the contentions raised as above and an effort in that line is made. 7. The allegations of the husband was that some kind of behavioral disorder and mental psychosis was noticed in his wife within a short time after the marriage itself and when the inlaws were informed, they divulged him about the kind of mental disease suffered by her, prior to the marriage itself and that the marriage was arranged based on a medical advice that, it would be a solution to come out of the defective behaviour. After giving birth to the second child, the wife had become more rude in her behaviour and started ill treating and manhandling the husband Mat Appl. No. 94 and 97 of 2013 -:6:- and even the minor children. She used to stand in the kitchen for hours, thinking about something and on being interdicted, she reacted violently. She even attacked the petitioner and the minor children with chopper, stick and stone. An incident had occurred in the month of June 2007 in which the wife had kept the gas stove open for hours to set fire to the house and on petitioner's timely intervention, that was prevented. Attempts to commit suicide were also made during the five years' stay together in matrimony. Without informing the husband, she used to leave the house during day time and night as well for wandering in the street for hours. When she was brought back, she used to manhandle and abuse her husband. When the situation worsened, she was taken to Dr.Sudarsan, a psychiatrist at Thodupuzha for treatment. During the course of treatment, she became more violent and even went to the extent of assaulting the Doctor. Thereupon as advised by the Doctor, she was admitted at District Co-operative Hospital, Thodupuzha. While the treatment was progressing there, her brother caused her discharge forcibly from the Hospital and kept her under his Mat Appl. No. 94 and 97 of 2013 -:7:- custody. According to the husband, though himself and children were subjected to physical and mental cruelty by the wife for years, they silently suffered those on their firm belief that she would be relieved of the mental disease shortly. As RW1, the husband has also deposed strictly in consonance with the pleadings raised by him in the Original Petition. 8. The husband had examined Dr.Sudarasan, a Psychiatrist under whom the wife was treated, as RW4. According to him, at the time of admission at the hospital, the wife was violent and some Psychiatric problems were noticed by him in her behaviour. Since a detailed evaluation was found expedient, she was admitted at Co-operative Hospital, Thodupuzha. A temporary history was taken from her husband and relatives and the relatives and the mother of the lady were also asked to give a complete history. During her stay at the hospital, she had reduced sleep, irritable restlessness at times and short-temperament. Therefore, she was treated with antipsychotic and supportive measures. During cross examination, RW4 has stated that psychosis is nothing but loss of contact with Mat Appl. No. 94 and 97 of 2013 -:8:- reality. According to RW4, hallucination was not found in her, but in certain spheres of thought process, she was vague and disoriented and during stages of violence, she even lost insight. RW4 has also stated that at the time of her admission none of her relatives accompanied her and the history was given by one Mr.Noble Mathew and Mr.M.P.Joy who are respectively, a family friend and uncle of RW1. According to him, the complete history of the patient was not made available to him and therefore, he could not diagnose her problem finally. In the meantime, she absconded from the hospital. According to him, chronic Psychosis in general like schizophrenia need life long treatment. A scrutiny of the evidence of RW4 in its entirety would reveal to us that, he did not finally diagnose the kind of mental disease, which the wife was suffering from. Therefore, examination of RW4 was not helpful to RW1 in the matter of establishing that his wife was suffering from insanity. 9. RW2, the uncle of RW1 was available at the relevant time when the wife was taken to RW4 for treatment. He gave a narration of some incidents witnessed by him during his visits at Mat Appl. No. 94 and 97 of 2013 -:9:- the residence of RW1. He had spoken that while talking to the lady, he had noticed abnormality in her behaviour. During cross examination, RW2 has stated that the lady was never treated for mental disorder, prior to the treatment availed from Dr.Sudarsan. 10. RW3, the sister of RW1 had also spoken about the treatment availed by wife of RW1 from District Co-operative Hospital, Thodupuzha. According to her, she was suffering from some mental disorder for the last several years. However, she has stated that she did not accompany her to the hospital. 11. Though RW2 and RW3 were examined by RW1 with a view to establish that his wife suffers from insanity and was treated for that, the examination did not yield any support. 12. RW5, a priest of RW1's community has spoken that at the time when he visited the house of RW1, some kind of disorders were noticed by him in the behaviour of the lady. He had accompanied RW1, when the lady was taken to the hospital and had witnessed herself attacking the Doctor. 13. Ext.B2 is a certificate issued by RW4. Ext.X1 is a treatment chart of the lady issued from District Co-operative Mat Appl. No. 94 and 97 of 2013 -:10:- Hospital, Thodupuzha. In order to obtain a decree for dissolution of marriage on the ground of insanity, cogent and reliable evidence must be adduced to establish that the spouse was suffering from insanity before or at the time of marriage. Illness developed after marriage will not suffice. The party applying for a decree for dissolution of marriage on the ground of insanity must establish that the opposite side has mental disorder of such a damaging form that in view of her severe hallucinations and delusions, she will be a danger to herself and those around her. There is absolutely no evidence forthcoming from RW1 to establish that the lady was suffering from insanity prior to the marriage or at the relevant time when he married her. Medical evidence to establish that the lady had been treated for insanity prior to marriage or during her stay together for 8 years after marriage is also not forthcoming. In the case on hand, neither the evidence tendered by RW1, nor that of RW2 to RW5 and Ext.B2 and Ext.X1 would convince us to take a view that the wife suffers from insanity of such a grave nature to grant a decree for dissolution of marriage on that ground. In that context, the Mat Appl. No. 94 and 97 of 2013 -:11:- common order to the extent of declining the decree on the ground of insanity does not call for interference. 14. RW1 had categorically deposed about the instances of ill-treatment suffered by himself and children at the hands of the lady during their stay together. According to him, she had attempted to commit suicide several times. RW2, a witness of RW1 had spoken to have accompanied the child while being transported to the hospital after sustaining burn injuries on keeping a hot spatula by the lady on his thigh. He has also apprised the court of an incident occurred that in June 2007 when the gas cylinder was kept open by the lady as a venture to set fire to the house. According to him, it is following that incident, the gas cylinder and the stove were removed from the house for three months. According to him, it is following his advice that she was taken for treatment to Dr.Sudarsan at Thodupuzha. While being under observation of the Doctor also, she became violent and caused physical hurt to the Doctor and another man at the hospital. RW6, is none other than the elder child born in the wedlock. Though he was aged only 9 years, Mat Appl. No. 94 and 97 of 2013 -:12:- during examination, he deposed categorically about the cruel treatment suffered by him at the hands of his mother. He had also spoken categorically about the suicidal attempt of his mother by hanging with a shawl. He was examined after conducting a voir dire test and since he also survived the lengthy cross examination, the reason for the Family Court's hesitance to rely on his evidence is not known. RW5, the priest had also stated to have noticed the abnormal behaviour of the lady during his visits of their house. RW2 and RW3, respectively the uncle and sister of RW1 have also spoken about the behavioral disorder of the lady. These aspects would lend support to the version of RW1 that he had suffered mental cruelty at the hands of his wife. Attempts of the spouse to commit suicide undoubtedly would cause grave mental strain to the husband. The Family Court did not advert to the evidence of RW6 for the reason that he is aged only 9 years and was in the custody of the petitioner while tendering evidence. Family Court found RW6 non-creditworthy for the reason that he was in the custody of his farther and therefore, his version must be a tutored one. We find from a Mat Appl. No. 94 and 97 of 2013 -:13:- scrutiny of his evidence that his credence survived the test of cross examination. In view of the above, we see that the Family Court has gone wrong thoroughly in not relying on his testimony. A narration of the above aspects would give a picture of mental cruelty extended by the lady to her husband and minor children. RW4 had also tendered evidence to the effect that the lady has irritable moods. Though the incident was attempted to be clarified by the lady by saying that she reacted so, in view of the forceful hospitalization, we are not inclined to accept the same. 15. An important aspect to be noticed was that, though original petition was filed in the year 2009 and a decree for dissolution of marriage has been declined to the husband by order dated 29.09.2012, neither of the parties took any endeavour to join in matrimony and to lead the rest of their life in peace and happiness. Evidence also indicate that the parties had been living separated after the wife was forcibly discharged from District Co-operative Hospital, Thodupuzha by her brother. In the above circumstances, we are constrained to take a view that the marriage among the parties has been irretrievably Mat Appl. No. 94 and 97 of 2013 -:14:- broken and any endeavour to unite, after a separated life for eight years will not bring fruitful results. The Apex Court in **Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511]** while dealing with a case where the parties had been admittedly living separated for more than 16½ years has held that the entire substratum of marriage had disappeared and that the matrimonial bond, ruptured beyond repair. Accordingly, a decree for divorce granted by the Family Court and later on reversed by the High Court was ordered to be restored. The circumstances in the case on hand being almost identical, we have no hesitation to hold that the Family Court has acted unjustifiably while declining to grant a decree for dissolution of marriage on the ground of cruelty which indisputably takes within it's sphere and meaning, mental cruelty. 16. It was specifically pleaded by the wife in O.P. No.354/2010 that Rs.1,00,000/- was given by her parents to her husband prior to the marriage itself. According to her, 40 sovereigns of gold ornaments were also given at the time of marriage. According to her, the money given was utilised by her Mat Appl. No. 94 and 97 of 2013 -:15:- husband for construction of a house. Except a thali chain of 4 sovereigns and ear studs of 1 sovereign, the remaining 35 sovereigns of gold ornaments belonging to her were sold and the sale proceeds were also utilised by him for construction of the house. 17. As PW1, she had deposed strictly in tune with the pleadings in the original petition. Though cross examined extensively, she could not be discredited on any of the aspects spoken by her. According to her, the money and gold were handed over at her residence. According to her, the gold ornaments were purchased from K.P. Varkey's jewellery at Adimali and bills for purchase of those were available with her and she had undertaken to produce those. However, those were not produced by her. But, her version that 40 sovereigns of gold ornaments and Rs.1,00,000/- were given at the time of marriage is corroborated by the versions of PW2 and PW3. PW2 is none other than a close relative of RW1. All of them had categorically deposed that gold ornaments and money were given to the husband at PW1's residence. The cross examination of those Mat Appl. No. 94 and 97 of 2013 -:16:- witnesses did not bring forth any doubtful circumstances liable to discredit them. 18. The witnesses when controverted on the source of income of PW1's parents to purchase the gold ornaments and to give Rs.1,00,000/-, they have stated that the money was given by her maternal brothers and sisters. It is true that none of them were examined to establish the version. But, the witnesses examined maintained their credence despite the lengthy cross examination to which they were subjected to. 19. The stand taken by the husband was of total denial. According to him, since the wife belongs to Yahova Sakshi, the custom prevalent is not to give gold ornaments as parental share. At the very same time, RW1 and RW2 had taken a stand that the gold ornaments worn by the lady being deficient, she was made to wear imitation gold ornaments at the marriage reception ceremony. Though it was attempted by the husband to establish that photographs were not taken during marriage ceremony, the evidence tendered against by PW3 that it was taken was not controverted. The learned counsel has urged that Mat Appl. No. 94 and 97 of 2013 -:17:- photograph taken at time of marriage was produced and it was also marked in evidence. But, it was not shown as a marked document in the Appendix. 20. The records of the case were called for and in the search, a photograph was found available, but not marked. It was noticed on a scrutiny of the evidence of RW1 that, during cross examination, though image in the photograph was identified as that of him when confronted, he has withdrawn from the identification on the very next moment. The stand of RW1 that the custom prevalent in Yahova Sakshi Community does not permit their members to give money and gold ornaments during marriage and therefore, the wife being a member of such community had not been given gold ornaments and that due to deficiency of gold ornaments, she was made to wear imitation ones during reception ceremony contradicts and for the reason itself, we decline to give credence to those. The witnesses of RW1 also deposed to lend support to the version of RW1, but when credence on RW1 is lost, that of his witnesses is also to be taken as defeated. Mat Appl. No. 94 and 97 of 2013 -:18:- 21. The photograph was omitted to be marked in evidence. Since that was found with the records of the case and RW1 was confronted with that during cross examination, we are inclined to mark it in evidence and place reliance on it. The photograph is testimonial of the claim of the lady that she had worn gold ornaments at the time of her marriage. Interference is called for in the above scenario. According to PW1, she had 40 sovereigns of gold ornaments and except 5 sovereigns of gold ornaments, 35 sovereigns were sold and the sale proceeds were utilised by her husband for house construction. But, during cross examination, PW1 had described the kind of gold ornaments possessed by her, which is extracted hereunder : "ഒരു പവനന്റെ വവീതതം 12 വളനയെടുത. 8 മമമോതതിരതം ഉണമോയെതി. 1/2 പവൻ വവീതതം ഉണമോയെതി. 5 പവനന്റെ show മമോലനയെടുത. ഏത fashion ആനണെന്നറതിയെതില. നകമോലുസസ് 4 പവമനമോളതം ഉണമോയെതി. 2 വലതിയെ വള 2 പവമനമോളതം ഉള്ളതതം എടുത. necklace 3 പവമന്റെതസ് എടുത. ഒരു പവനന്റെ കമ്മൽ എടുത.” 22. From the above version we are convinced that PW1 had only 31 sovereigns of gold ornaments at the time of marriage. Admittedly five sovereigns was in her custody. Therefore, the Mat Appl. No. 94 and 97 of 2013 -:19:- gold ornaments appropriated by the husband from her can be taken as 26 sovereigns. Therefore, the finding of the Family Court that the lady is entitled to recover 40 sovereigns of gold ornaments from the respondent is devoid of basis and therefore, is erroneous. 23. As far as realisation of Rs.1,00,000/- is concerned, the stand of PW1 was that, the money was given to her as her parental share at Adimaly town, a week prior to the marriage. But, the witnesses examined by her have a claim that Rs.1,00,000/- was given at PW1's residence. The inconsistency make us to disbelieve the claim of the lady for recovery of Rs.1,00,000/- and to discard it. In the result, Mat.Appeal No.97 of 2013 is allowed in part and Mat.Appeal No. 94 of 2013 is allowed in part. The common order under challenge dismissing O.P.(Div) No.184/2009 stands set aside. O.P. (Div)No. 184/2009 is allowed in part and the appellant/husband is granted with a decree for dissolution of marriage on the ground of cruelty. The common order to the extent of permitting the wife to recover Rs.8,20,400/- being the Mat Appl. No. 94 and 97 of 2013 -:20:- value of 35 sovereigns of gold ornaments at the rate of 23,440/per sovereign is modified and reduced to Rs.6,09,440/- being the value of 26 sovereigns at the rate of Rs.23,440/- per sovereign. The respondent/wife is permitted to recover 26 sovereigns of gold ornaments or its equivalent value as specified above. The rates of interest ordered by the Family Court stand confirmed. Sd/- **A.M. SHAFFIQUE JUDGE** Sd/- **MARY JOSEPH JUDGE** NAB/ttb/13.03.