Mat.Appeal No. 564 of 2023 (and connected cases)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945** **MAT.APPEAL NO. 564 OF 2023** **AGAINST THE JUDGMENT IN OP 130/2021 OF FAMILY COURT, VADAKARA AND ORDER IN RP 1/2022 OF FAMILY COURT, VADAKARA** ## **APPELLANT/RESPONDENT/PETITIONER IN RP:** JAYAPRAKASH K AGED 56 YEARS S/O OF (LATE)KUNHIRAMAN .K.T. RESIDING AT KURIYATHAZHA, PO KEEZHAL, VILLYAPPALLY VILLAGE, VATAKARA, KOZHIKODE., PIN - 673104 BY ADV JAYAPRAKASH K(Party-In-Person) ## **RESPONDENTS/PETITIIONERS/RESPONDENTS IN RP:** 1 SATHEERTH RAM PRAKASH(MINOR) AGED 17 YEARS S/O JAYAPRAKASH, IYYAMKUTTIKUNIYIL HOUSE, P.O. MUTTUNGAL, CHORODE VILLAGE, VATAKARA TALUK, REPRESENTED BY MOTHER DEEPTHIMENA, D/O E.K. GOPALAN MASTER, IYYAMKUTTIKUNIYIL HOUSE, P.O. MUTUNGAL CHORODE VILLAGE VATAKARA TALUK,, PIN - 673106 2 SARAYU RAM PRAKASH(MINOR) AGED 14 YEARS D/O JAYAPRAKASH.K. IYYAMKUTTIKUNNIL HOUSE. MUTTUNGAL P.O. CHORODE VILLAGE, VATAKARA TALUK. REPRESENTED BY MOTHER DEEPTHIMENA. D/O E.K. GOPALAN MASTER. IYYAMKUTTIKUNIYIL HOUSE. P.O. MUTTUNGAL. CHORODE VILLAGE. VATAKARA TALUK., PIN - 673106 BY ADVS. THUSHARA.V K.RAKESH ROSHAN(K/100/2001) THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 04.10.2023, ALONG WITH RPFC.328/2023, MAT APPEAL 640/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 RPFC NO. 328 OF 2023 AGAINST THE JUDGMENT IN MC 135/2020 OF FAMILY COURT, VADAKARA AND ORDER IN RP 1/2022 OF FAMILY COURT, VADAKARA** ## **REVISION PETITIONER/RESPONDENT:** JAYAPRAKASH K AGED 56 YEARS S/O OF (LATE) KUNHIRAMAN .K.T , RESIDING AT KURIYATHAZHA, P O KEEZHAL, VILLYAPPALLY VILLAGE, VATAKARA, KOZHIKODE., PIN - 673104 BY ADV JAYAPRAKASH K(Party-In-Person) ## **RESPONDENTS/PETITIONERS:** 1 SATHEERTH RAM PRAKASH (MINOR) AGED 17 YEARS, S/O JAYAPRAKASH, IYYAMKUTTIKUNIYIL HOUSE, P.O. MUTTUNGAL, CHORODE VILLAGE, VATAKARA TALUK, REPRESENTED BY MOTHER DEEPTHIMENA, D/O E.K GOPALAN MASTER, IYYAMKUTTIKUNIYIL HOUSE, P.0. MUTUNGAL CHORODE VILLAGE VATAKARA TALUK, PIN - 673106 2 SARAYU RAM PRAKASH(MINOR) AGD 14 YEARS. D/O JAYAPRAKASH.K. IYYAMKUTTIKUNIYIL HOUSE, P.O. MUTTUNGAL, CHORODE VILLAGE, VATAKARA TALUK. REPRESENTED BY MOTHER DEEPTHIMENA. D/O E.K. GOPALAN MASTER,IYYAMKUTTIKUNIYIL HOUSE, P.O MUTTUNGAL, CHORODE VILLAGE, VATAKARA TALUK, PIN - 673106 BY ADVS. THUSHARA.V K.RAKESH ROSHAN(K/100/2001) THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 04.10.2023, ALONG WITH Mat.Appeal.564/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** **3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 MAT.APPEAL NO. 640 OF 2022** **AGAINST THE JUDGMENT IN OP 861/2019 OF FAMILY COURT, VADAKARA APPELLANT/RESPONDENT:** DEEPTHIMENA AGED 46 YEARS D/O. LATE . E.K. GOPALAN MASTER, EYYAMKUTTIKUNIYIL, MUTTUNGAL POST, CHORODE VILLAGE, VATAKARA, KOZHIKODE DISTRICT 673 106. BY ADVS. K.RAKESH ROSHAN THUSHARA.V ## **RESPONDENT/PETITIONER:** JAYAPRAKASH K S/O. LATE KUNHIRAMAN K.T., KURIYATHAZHA, KEEZHAL POST, VILLIAPPALLI, VATAKARA, KOZHIKODE 673 104. THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 04.10.2023, ALONG WITH Mat.Appeal.564/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** **4** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 MAT.APPEAL NO. 914 OF 2022** **AGAINST THE JUDGMENT IN OP 128/2021 OF FAMILY COURT, VADAKARA APPELLANT/PETITIONER:** DEEPTHI MENA, AGED 44 YEARS W/O.JAYAPRAKASH, EYYAMKUTTIKUNIYIL HOUSE, P.O.MUTTUNGAL, CHORODE, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 106. BY ADVS. K.RAKESH ROSHAN THUSHARA.V ## **RESPONDENT/RESPONDENT:** JAYAPRAKASH K., AGED 53 YEARS S/O.LATE KUNHIRAMAN, KURIYATHAZHA HOUSE, P.O. KEEZHAL, VATAKARA, KOZHIKODE, PIN-673 104. THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 04.10.2023, ALONG WITH Mat.Appeal.564/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** **5** ## JUDGMENT ## Amit Rawal, J. 1. This order of ours shall dispose of four matters, Mat. Appeal No.914 of 2022 preferred by the wife against the order in O.P No.128 of 2021 whereby the petition for return of the gold ornaments or equivalent value has been dismissed, Mat. Appeal No.640 of 2022 preferred by the wife against the order in O.P No.861 of 2019 whereby the petition for divorce has been allowed, Mat.Appeal No.564 of 2023 preferred by the husband against OP No.130 of 2021 and RP No.1 of 2022 filed by the children at the age of 17 and 14 whereby past maintenance has been ordered and RPFC No.328 of 2023 preferred by the husband against the judgment in MC No.135 of 2020 whereby future maintenance has been ordered. 2. The marriage between Jayaprakash K and Deepthi Mena G. was performed on 12.11.2001 as per the custom prevailing in the Hindu community. After the marriage both the parties resided at the matrimonial home. Out of the wedlock two children were born. Husband claimed that the respondent wife was in the habit of not allowing the children to have his company even during the vacations. At the time marriage, he was working as Co-operative Inspector and after the birth of the second child, respondent wife **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** **6** started working as Higher Secondary School Teacher. From the date of the marriage husband provided all the amenities and comfort needed for day to day life. But on 28.7.2007 respondent wife left the matrimonial home against the wish and without the consent of the husband. Concerted and sincere efforts were made for reproachment but of no avail and after having waited almost more than 12 years instituted a petition for divorce in 2019 on the ground of cruelty and desertion. 3. Respondent, wife contested the petition and denied the allegation of cruelty and desertion and averred that she had left the house with reasonable cause as the conduct of the husband was not proper. He had been not only cruel to her but to children as well. Husband used to handle her salary owing to the fact that he was in possession of the ATM card. He used to doubt the relationship of the wife with her father. Husband had sold 26 sovereigns of the gold ornaments for the purchase of 7 ¾ cents of property near house and received rupees one and half lakhs from her father. The aforementioned property after purchase was assigned in the name of his mother, after she had left the matrimonial house. At the time of the marriage the wife had 87 sovereigns of gold and balance are liable to be returned and also the cost. Whenever the parents or the uncle of the wife used to come and take her, husband used to raise **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** **7** ## objection. 4. The husband filed a rejoinder to the counter and stated that after separation, wife only permitted the husband to see the children only for 10 days. Wife had improved her education after the marriage. Out of nineteen (19) years of married life only for five (5) years respondent resided in the house. On 28.7.2007 he was hospitalized and plastered his right hand and was under rest for 45 days. During all this period respondent and children never visited him. After having waited for almost 14 years, instituted the petition. 5. Respondent wife also instituted an O.P No.128 of 2021 claiming the return of the gold ornaments on the premise that she was a having 87 sovereigns of the gold. A gold chain of 7 sovereigns was given to respondent and a gold ring of ½ sovereign was also given. Children were also having 8 ¼ sovereigns of gold ornaments. Husband misappropriated the gold ornaments of the daughter and therefore claimed the return of 98 ¾ sovereigns of gold ornaments or its equivalent value. Husband contested the aforementioned petition and stated that he purchased 7 ¾ cents of property by availing a bank loan. Wife used to handle the gold ornaments which were entrusted to her sister at the time of her marriage. It was denied that wife was having the possession of 87 **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** **8** sovereigns of gold ornaments. 6. Children at the age of 14 and 17 in 2020 instituted petition for claiming past maintenance and future maintenance. Trial court granted the divorce and dismissed the petition for recovery of the gold ornaments and allowed the past maintenance @ Rs.8000 each from 31.8.2017 to 31.8.2020 and future maintenance @ Rs.10,000/- per month to both the children ie., Rs.20,000 from 28.10.2020, the date of institution of the petition. 7. Both the parties were at variance, the trial court framed the issue and parties brought on record the documents. 8. Learned counsel appearing on behalf of the wife argued that the trial court had abdicated in granting the divorce, mainly on the premise that the parties had been living separately since 28.7.2007 but had failed to notice that the withdrawal of the company of the husband was not with reasonable cause owing to the cruelties and atrocities of the husband. 9. Husband in his testimony candidly admitted that he was not ready to take back the wife with bad comment as she has no flesh or blood which shows the pervert mind and on this account there was withdrawal from his company. Family court erroneously relied upon the reference report of the police and also the statement given by the wife and ordered settlement of matrimonial dispute in **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** **9** mediation. The statement of the witnesses have not been examined which apparently showed the behavior of the husband. The divorce on the ground of desertion cannot be granted at the drop of the hat until and unless it has been candidly proved that the withdrawal from the matrimonial home or company of the husband was without reasonable cause. Husband failed to prove on record such evidence thus, divorce ought not to have been granted. Court below erroneously dismissed the claim with regard to return of the gold ornaments by relying upon inconsistency in the statement of the wife. A mere contradiction in the statements cannot be a ground for rejecting the petition, particularly, when photographs to the said effect were placed on record obtaining of a loan by pledging the gold ornaments would not mean that the sovereigns sought to be recovered were in her possession. Husband emphatically failed to place on record any proof for obtaining of loan viz-a-viz the purchase of the property. Therefore, the presumption of misappropriation of 26 sovereigns of the gold for purchase of the property could have been drawn in her favour. 10. On the other hand, Mr.Jayaprakash submitted that the marriage had broken down as the wife had left the matrimonial home on 28.7.2007. Medical record has already been placed on record regarding the fracture on shoulder. In support of the **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** **10** contention, relied upon the judgment of the Supreme Court in Rakesh Raman v. Smt.Kavita (AIR 2023 SC 2144) to contend that where the marriage has been broken down and the parties have been living separately, no useful purpose would be served in saving the marriage by dismissing the divorce petition. All the love and affection or companionship between the two has been lost. 11. It was contended that the trial court had committed error in granting the past and future maintenance to the adult children as no doubt, at the time when the petition was instituted in October 2020 both the children were minor but the son had acquired the age of 21 years and therefore would not be entitled to maintenance. The children have never contacted from 2019. Children have lost the love and affection for the father. 12. As far as the grant of maintenance to the daughter is concerned, he is willing to pay the maintenance till the date she gets married and urged this Court for setting aside the order viz-aviz granting maintenance to the son and dismiss the appeal preferred by the wife against the decreetal of divorce and as well as appeal preferred against the judgment rejecting her claim with regard to return of sovereigns. 13. We have heard the learned counsel for the parties and appraised the paper book. It is most unfortunate that the marriage **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** ## **11** of 2001 had become unworkable after 2007, despite two children were born out of the wedlock and are now at the infancy stage of pursuing their career in the life. It is a matter of record that the wife after the marriage had improved her education and qualification and obtained the job in 2006 as Higher Secondary School Teacher, a Gazetted post. The parties dragged each other into a litigation by levelling all possible allegations available under the sky. Trial court on the preponderance of the evidence allowed the O.P No.861 of 2019 by relying upon the admission of the wife that she had been living separately from the company of the husband with effect from 28.7.2007. Noticing the fact that divorce petition was filed in 2019, after a gap of almost more than 12 years when there were no chances of reproachment, granted the divorce. Though Hindu Marriage Act does not envisage a ground for grant of divorce on this ground but a petition can always be filed under the Family Court Act for grant of the divorce on various points including the desertion. In the judgment cited supra, noticing that the parties have been living together, Supreme Court observed as under: 18. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** ## **12** separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a ‘marriage’ would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock. 19. Under these circumstances, we uphold the Order of the Trial Court, though for different grounds given by us in our order, and we set aside the Order of the High Court and grant a decree of divorce to the appellant/husband. Their marriage shall stand dissolved. 20. However, considering the fact that the appellant/husband is an employee in Life Insurance Corporation, as we have been informed at the Bar and his present salary is more than Rs.1,00,000/ (One Lakh Rupees) per month, we deem it fit and proper that he gives an amount of Rs.30,00,000/ (Thirty Lakh Rupees) to the respondent/wife as permanent alimony. This amount of Rs.30,00,000/ (Thirty Lakh Rupees) shall be deposited in the name of the respondent, within a period of four weeks from today with the Registry of this Court. The decree of divorce shall be made effective only from the date of such a deposit. On the event of such deposit, the Registry after verifying the credentials of the respondent/wife shall disburse the amount to the ## **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** ## **13** respondent/wife without further reference to this Court. With the aforesaid directions, the appeal stands allowed. 14. The wife has candidly admitted in cross examination regarding separation from 28.7.2007. It may be a good ground for granting divorce on the basis of desertion. Since the parties have been living separately from 2007 and the litigation would reveal that there are no chances of reunion. It would be wholly preposterous for us to form different opinion than the one already arrived at granting the divorce. Even if the husband has not been able to lead a direct and cogent evidence with regard to cruelty but the parties were at the verge of desertion much less mental cruelty. Thus we uphold the findings of the trial court granting the divorce. 15. As far as the claim of wife with regard to return of the sovereigns in O.P No.128 of 2021, there have been a stark contradictions in her statement in the proceedings while filing a counter to the divorce petition as well as the claim in the aforementioned O.P. Her claim in the OP was that husband was misappropriated 98 ¾ of gold sovereigns of gold but entrustment was not been proved to the hilt for the reason that in cross examination to a specific question, she admitted that after the separation on different occasion, the gold ornaments were pledged. In the absence of the details, the court had no other occasion but to **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** ## **14** draw adverse inference for rejecting her entire claim of 98 ¾ gold ornaments, for, there cannot be any probability that the husband had a dominion over the sovereigns, particularly, when the parties had been living separately for almost 14 years. During all these period, no claim was lodged. It was basically a counter blast to the divorce petition instituted in 2019. It has also come on record that during the time of the marriage, the sister of the wife had operated the locker. The cumulative fact of the aforementioned evidence would lead to a irresistible conclusion that wife miserably failed to prove entrustment and the dominion and rightly so, the Trial Court dismissed the case. We do not find any illegality and perversity and uphold the findings rendered in O.P No.128 of 2021. 16. Coming to the other petitions, preferred by the husband against the orders of the court for granting past and future maintenance, the claim for past and future maintenance was instituted in 2020, when the age of the son was 17 years and daughter was 14 years. Son has already attained majority in 2021. Though there is no clarity or rider in the judgment that the maintenance shall continue for infinite period or for a particular time, we deem it appropriate to order that the maintenance towards the son who is pursuing his Engineering College would be up to the date of majority, ie., up to 2021. If at all, there are any arrears **MAT.APPEAL NO. 564 OF 2023 and conctd. Case** **15** Jayaprakash, father is directed to pay the arrears and in case of failure, the affected parties will be at liberty to seek execution of our order. Father during the course of the hearing has submitted that he has no dispute for granting maintenance of Rs.10,000/- to the daughter till she gets married. In this view of the matter we do not intend to differ the findings of the Trial court except with a rider that the maintenance of Rs.10,000/- shall continue till she gets married. Sd/AMIT RAWAL JUDGE sab Sd/C.S. SUDHA JUDGE