Jose T. v. Anitha S.

``` Mat.Appeal No.172/2014 & 309/2015 ``` ``` 2025:KER:30481 ``` **==> picture [58 x 57] intentionally omitted <==** `..` 1 `..` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE SATHISH NINAN ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 9[TH] DAY OF APRIL 2025 / 19TH CHAITHRA, 1947 ``` ``` MAT.APPEAL NO. 172 OF 2014 ``` ``` JUDGMENT DATED 20.11.2013 IN OP NO.764 OF 2008 OF FAMILY COURT, ``` ## **`THIRUVANANTHAPURAM`** ## **`APPELLANT/PETITIONER:`** ``` JOSE T., AGED 40 YEARS, S/O. M.THANKAYYAN, MUDANJARA CHARUVILA PUTHEN VEEDU, NARANI, KUNNATHUKAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. ``` ``` BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH ``` ## **`RESPONDENT/COUNTER PETITIONER:`** ``` ANITHA S., D/O. SATHYANESAN, THUNDUVILA PUTHEN VEEDU, MEKKOLA, DHANUVACHAPURAM NEYYATTINKARA, THIRUVANANTHAPURAM-695 504. ``` ``` BY ADVS. R.V. Sreejith G.MAHESWARY(K/1688/2001) T.RINI(K/1194/2000) HARIGOVIND S.NAIR(K/933/2022) NIDHIN KRISHNA(K/1164/2004) ANAKHA BABU(K/324/2023) ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 02.04.2025 ALONG WITH RPFC.309/2015, THE COURT ON 09.04.2025 DELIVERED THE FOLLOWING: ``` ``` Mat.Appeal No.172/2014 & 309/2015 ``` ``` 2025:KER:30481 ``` **==> picture [58 x 57] intentionally omitted <==** `..` 2 `..` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE SATHISH NINAN`** ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 9[TH] DAY OF APRIL 2025 / 19TH CHAITHRA, 1947 ``` ``` RPFC NO. 309 OF 2015 ``` ``` ORDER DATED 12.05.2015 IN MC NO.138 OF 2013 OF FAMILY COURT, ``` ## **`THIRUVANANTHAPURAM`** ## **`REVISION PETITIONER/PETITIONER:`** ``` ANITHA, AGED 30 YEARS THUMPUVILA PUTHEN VEEDU, MEKKOLLA, DHANUVACHAPURAM P.O. ``` ``` BY ADVS. R.V. Sreejith G.MAHESWARY(K/1688/2001) T.RINI(K/1194/2000) HARIGOVIND S.NAIR(K/933/2022) NIDHIN KRISHNA(K/1164/2004) ANAKHA BABU(K/324/2023) ``` ## **`RESPONDENT/RESPONDENT:`** ``` JOSE, MUDATHARA, CHARUVILA PUTHEN VEEDU, NARANI, KUNNATHUKAL P.O. 695014. ``` ``` BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR HEARING ON 02.04.2025 ALONG WITH Mat.Appeal.172/2014, THE COURT ON 09.04.2025 DELIVERED THE FOLLOWING: ``` **==> picture [58 x 57] intentionally omitted <==** ``` Mat.Appeal No.172/2014 & 309/2015 ``` ``` 2025:KER:30481 ``` `..` 3 `..` ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN, J. Mat. Appeal No. 172 of 2014 is filed by the husband against the judgment of the Family Court, Thiruvananthapuram, dismissing OP No. 764 of 2008 for divorce. 2. RP(FC) No.309 of 2015 is filed by the wife against the impugned order of the Family Court, Thiruvananthapuram, rejecting her claim for enhancement of maintenance in MC No.138 of 2013. 3. Since the issues arose from the very same cause of action and the parties are the same, the cases are heard together and being disposed of by this judgment. For sake of convenience, the parties are referred to as, “husband” and “wife”. 4. The marriage between the parties was solemnized on 18.10.2000. Two children were born in the wedlock. According to the husband, his wife suspected him of having relationships with other women from the early days of their marriage. The husband alleged that the wife never joined him for visiting his relatives or attending marriages. She is a quarrelsome lady and made allegations that he has an illicit relationship with his brother’s wife, which caused much pain and agony to him. The wife is a ``` 2025:KER:30481 ``` **==> picture [58 x 57] intentionally omitted <==** ``` Mat.Appeal No.172/2014 & 309/2015 ``` **==> picture [36 x 9] intentionally omitted <==** postgraduate and the husband is an under graduate. She used to stay away from the matrimonial home and after delivery of the first child, she was brought back with the intervention of close relatives and friends. It is also his allegation that the wife did not attend his mother’s funeral. After the birth of the second child in 2003, she left the matrimonial home and they have been living separately since 10.08.2004. The husband filed a petition for restitution of conjugal rights in 2007, which was later withdrawn since the wife did not show any interest to join him. Hence, the husband sought a divorce. ## 5. The wife, on the other hand, contended that she was treated with cruelty demanding more dowry and also the husband used to mock her, saying that she is not fair. The wife denied the allegations of having accused her husband of having illicit relationships with other women. However, she did not deny the specific allegation that her husband had an illicit relationship with husband’s brother's wife, Latha. The wife contended that after the delivery of the second child, the husband was reluctant to take her back to the matrimonial home. He never took her along with him. After the second delivery, the husband got an ``` 2025:KER:30481 ``` **==> picture [58 x 57] intentionally omitted <==** ``` Mat.Appeal No.172/2014 & 309/2015 ``` **==> picture [36 x 9] intentionally omitted <==** appointment as Police Constable and thereafter, he used to harass her saying that she is not a good match for him. The brother’s wife, Latha, used to interfere with their family matters and make life miserable. The wife expressed her willingness to reside with the husband in his quarters and not in the matrimonial home. 6. The Family Court dismissed the divorce petition filed by the husband finding that the mental cruelty alleged by the husband against the wife was not proved. Challenging this, the husband is in appeal. 7. The wife filed MC No. 138 of 2013 claiming enhanced maintenance to her and to the younger child. She alleged that she is not having any income. The elder son is with the husband and the younger one is with her. She claimed that she is an undergraduate and had taken tuitions on earlier occasions, but stopped after getting married, whereas the husband, a Police Constable, earns a monthly salary of around ₹30,000/-. In an earlier proceeding as MC No.32 of 2007, maintenance was granted @ ₹1,500/- per month to the wife and @ ₹1,000/- per month to the younger son. In the present proceedings, she sought enhanced maintenance @ 5,000/- each to both. **==> picture [58 x 57] intentionally omitted <==** ``` Mat.Appeal No.172/2014 & 309/2015 ``` ``` 2025:KER:30481 ``` `..` 6 `..` 8. The husband contended that the wife abandoned the elder son and the husband; and they have been living separately since 2004. He also contended that the wife is having landed properties with 150 yeilding rubber trees therein and is earning ₹250/- per day. It was further contended that the wife is taking private tuitions for SSLC and plus two students and is earning ₹5,000/per month. The husband sought for a dismissal of the petition, contending that he has to take care of his aged father and the elder son, who is studying in the 8th standard; and his net salary is below ₹15,000/-. The Family Court, though granted enhanced maintenance to the younger child @ ₹5,000/- per month, declined the same to the wife. Challenging this, the wife has come up with RP(FC) No.309 of 2015. 9. We have heard the learned counsel on either side. 10. Firstly, we shall consider the appeal filed by the husband against the dismissal of his prayer for dissolution of the marriage. The marriage between the parties, the birth of two children in their wedlock and the fact that the elder son is with the husband are all admitted. The husband raised an allegation that, even during the initial days of marriage, the wife was ``` 2025:KER:30481 ``` **==> picture [58 x 57] intentionally omitted <==** ``` Mat.Appeal No.172/2014 & 309/2015 ``` **==> picture [36 x 9] intentionally omitted <==** quarrelsome and had a tendency to suspect him of having illicit relationships with other women, which caused him severe mental agony and distress. He also contended that his wife used to mock him for having only a pre-degree qualification at the time of marriage and that she refused to accompany him to functions. The wife, on the other hand, submitted that it was the husband, who treated her with cruelty. She also denied the allegation that she used to suspect him of having relationships with women other than his brother's wife, Latha. No satisfactory evidence has been adduced by the husband to prove the allegation of cruelty meted out by the wife other than his own evidence as PW1. 11. It is an admitted fact that from 2004 onwards, the parties are living separately. Their elder son is with the husband and the younger one is with the wife. During the course of hearing, it was submitted before this Court that the younger son also joined the company of the husband. It is also a fact that though the husband filed a petition for restitution of conjugal rights in 2007, it was withdrawn. The wife has not filed any petition seeking restitution of conjugal rights. This itself reveals that the wife does not wish to join the company of the ``` 2025:KER:30481 ``` **==> picture [58 x 57] intentionally omitted <==** ``` Mat.Appeal No.172/2014 & 309/2015 ``` **==> picture [36 x 9] intentionally omitted <==** husband. For the past more than 20 years, there has been no cohabitation. Thus, it is clear that the matrimonial bond between the parties has come to an end and the husband-wife relationship has ceased to exist. We feel that it is time for them to part ways and move on with their lives. In **Shilpa Sailesh v. Varun Sreenivasan** [2023 SCC OnLine SC 544], it has been held that where there is irretrievable breakdown of marriage, then, dissolution of marriage is the only solution. In a recent decision of the apex court in **Rajib Kumar vs. Sushmita Saha** [2023 LiveLaw (SC) 727], it has been held that keeping the parties together despite irretrievable breakdown of marriage amounts to cruelty on both sides. 12. In the case on hand, the wife has been keeping away from the company of the husband for the past more than 20 years and there is no chance of reunion. The emotional bond had become dry, and the warmth of their matrimonial relationship went increasingly missing and the marriage between the parties was dead. In such circumstances, if a decree of divorce is not granted, the parties would be forced to endure unnecessary suffering, misery and emotional distress. Therefore, while concurring with the Family ``` 2025:KER:30481 ``` **==> picture [58 x 57] intentionally omitted <==** ``` Mat.Appeal No.172/2014 & 309/2015 ``` **==> picture [36 x 9] intentionally omitted <==** Court in its finding on the particular nature of cruelty alleged, we are of the opinion that on the other findings _supra_ , a decree for divorce is liable to be granted. 13. Next is regarding the wife's claim for enhancement of maintenance. The wife alleged that she is unemployed and the amount of ₹1,500/- granted by the Family Court in MC No. 32 of 2007 is not sufficient to meet her expenses. Therefore, she sought enhancement of maintenance to ₹5,000/- per month, claiming that the husband being a government employee was earning around ₹30,000/- per month. However, the husband contended that the wife has income from her properties as well as from taking tuition. He further contended that he had the responsibility of taking care of his aged father and also the elder son, studying in 8th standard. On a perusal of the records, there is lack of evidence regarding the wife’s income. The husband has failed to prove the same. The amount of ₹1,500/- might not be enough to meet the expenses. The fact that the husband is taking care of his children and the aged father, also cannot be ignored. Considering the afore facts and circumstances, we hold that it would be just and reasonable if the monthly maintenance to the wife is enhanced to ₹2,500/- per month ``` Mat.Appeal No.172/2014 & 309/2015 ``` ``` 2025:KER:30481 ``` **==> picture [58 x 57] intentionally omitted <==** **==> picture [42 x 9] intentionally omitted <==** from the date of filing MC No.138 of 2013 till March, 2025, and thereafter @ ₹3,000/- from April, 2025 onwards. Accordingly, the appeal and the revision petition are disposed of, as follows: - a)Mat. Appeal No.172 of 2014 is allowed and the impugned judgment and decree of the Family Court are set aside. The marriage between the parties solemnized on 18.10.2000 will stand dissolved by a decree of divorce. No costs. - b)RP(FC) No.309 of 2015 is partly allowed and the impugned order of the Family Court is modified to the extent of granting to the wife enhancement of maintenance @ ₹2,500/per month from the date of filing MC No.138 of 2013 till 31.03.2025, and thereafter, @ ₹3,000/- from 01.04.2025. ## **Sd/-** ## **SATHISH NINAN JUDGE** ## **Sd/-** ## **SHOBA ANNAMMA EAPEN** ## **JUDGE** bka/-