Mat.Appeal Nos. 455/09, 158/11 & 623/12 (Simi v. Latheesh)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940** **Mat.Appeal.No. 455 of 2009** **AGAINST THE ORDER IN OP 207/2007 of FAMILY COURT, KOZHIKODE DATED 05-01-2009** ## **APPELLANT/PETITIONER:** **SIMI, D/O RAJAN, AGED 30 YEARS, MEETHALEVALAPPIL HOUSE, SHIJIL NIVAS,, P.O.MADAPPALLY COLLEGE, VADAKARA TALUK.** **BY ADVS. SMT.K.DEEPA (PAYYANUR) SRI.V.R.NASAR** ## **RESPONDENT/RESPONDENT:** **C.P. LATHEESH, S/O SIVADASAN, AGED 34 YEARS CHEENAMPALLI PARAMBIL,SREE SAILAM,, KOYILANDY TALUK, P.O. KOYILANDY.** **BY ADVS. SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL) SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 9.8.2018, ALONG WITH Mat.Appeal.623/2012, Mat.Appeal.158/2011, THE COURT ON 21.11.2018 DELIVERED THE FOLLOWING:** -:2:- Mat.Appeal Nos.455/09,158/11 & 623/12 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 /30TH KARTHIKA, 1940** **Mat.Appeal.No. 623 of 2012** **AGAINST THE JUDGMENT IN OP 779/2011 of FAMILY COURT, THALASSERY DATED 22-08-2012** ## **APPELLANT/RESPONDENT:** **C.P.LATHEESH, AGED 36 YEARS, S/O. SIVADASAN, SREESAILAM, PANTHALAYANI AMSOM KOILANDI DESOM, KOILANDI BAZAR.P.O., KOZHIKODE DIST. REPRESENTED BY POWER OF ATTORNY HOLDER SIVADASAN, S/O. KARUNAKARAN, AGED 57 YEARS, CHEENAMPALLI PARAMBIL HOUSE, SREESAILAM, KOYILANDY, KOZHIKODE DISTRICT.** **BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR RESPONDENT/PETITIONER: SIMI AGED 32 YEARS D/O. LATE RAJAN, MEETHALEVALAPPIL VEEDU, MADAPPALLY AMSOM, OORANLUNKAL DESOM, MADAPPALLY COLLEGE.P.O., VADAKARA KOZHIKODE DIST-673102.** **BY ADVS. SMT.K.DEEPA (PAYYANUR) SRI.V.R.NASAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 9.8.2018, ALONG WITH Mat.Appeal.158/2011, Mat.Appeal.455/2009, THE COURT ON 21/11/2018 DELIVERED THE FOLLOWING:** -:3:- Mat.Appeal Nos.455/09,158/11 & 623/12 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018/30TH KARTHIKA, 1940** **Mat.Appeal.No. 158 of 2011** **AGAINST THE ORDER IN OP 1015/2009 of FAMILY COURT,KOZHIKODE DATED 20-10-2010** ## **APPELLANT/PETITIONER:** **C.P.LATHEESH, AGED 35 YEARS, S/O.SIVADASAN, SREESAILAM, CHEENAMPALLY PARAMBIL,, KOILANDI TALUK, P.O.KOILANDI, KOZHIKODE DISTRICT.** **BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR** ## **RESPONDENT/PETITIONER:** **SIMI, 29 YEARS, D/O RAJAN, SHIJIL NIVAS, MADAPPALLY COLLEGE (P.O.), VADAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS. SMT.K.DEEPA (PAYYANUR) SMT.K.DEEPA (PAYYANUR) SRI.V.R.NASAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 9.8.2018, ALONG WITH Mat.Appeal.623/2012, Mat.Appeal.455/2009, THE COURT ON 21.11.2018 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.455/09,158/11 & 623/12 -:4:- ## **J U D G M E N T** ## _**Shaffique, J.**_ Since the above appeals relate to matrimonial issues that have arisen between the very same parties, all the appeals are heard and decided together. 2. OP No.207/2007 against which MA No.455/2009 has been filed, has been preferred by the petitioner/wife. In the OP, she claimed return of gold ornaments and money. 3. The marriage between the couple was solemnized on 13/11/2000 and a child has been born in the wedlock. According to her, at the time of marriage, she was given 60 sovereigns of gold ornaments. The respondent was employed abroad. Before going abroad after marriage, he demanded `1 lakh from her for arranging plane ticket and for other expenditure. She did not accede to the said demand and therefore, it is alleged that she was tortured physically and he took 30 sovereigns of her gold ornaments and pledged the same. He went abroad on 14/12/2000. She was taken to his workplace in September, 2001. She came back on 4/5/2002. In the 7[th] month of her pregnancy, it was noticed that the child had some deformity. She delivered the Mat.Appeal Nos.455/09,158/11 & 623/12 -:5:- child on 21/7/2002. It had deformity to the brain. Again she went back to the workplace of the respondent on 12/10/2003. She alleges that she was being ill-treated and respondent's parents were insisting that her husband should marry another girl. She was also threatened that she will be killed. Her visa was cancelled and she was sent back. She further alleges that 17½ sovereigns of gold ornaments belonging to her were again taken and pledged. Respondent also demanded another amount of `1 lakh for purchasing some property. Accordingly, she persuaded her parents to pay him `75,000/-. Thereafter, respondent returned to Gulf. Other matrimonial issues have also arisen on account of various factors and ultimately she had to leave the matrimonial home in November, 2006. In the OP, she claimed return of her gold ornaments weighing 47½ sovereigns and `75,000/-. 4. The respondent filed objection denying the allegations. According to the respondent, petitioner did not have 60 sovereigns of gold ornaments. She had only a few ornaments. He also denied having pledged 30 sovereigns of gold ornaments on the first occasion and 17½ sovereigns of gold ornaments on the second occasion. He also denied having received `75,000/-. The Mat.Appeal Nos.455/09,158/11 & 623/12 -:6:- above case was considered along with MC No.99/2007 filed by the petitioner and the minor child for maintenance. Petitioner was examined as PW1 and a witness was examined as PW2. She relied upon Exts.A1 to A30. Respondent was examined as RW1 and he relied upon Ext.B1 to B2(b). 5. Mat.Appeal No.158/11 has been filed by husband challenging the order in OP No.1015/2009 of the Family Court, Kozhikode by which his claim for divorce u/s 13(1)(ia) and (ib) of the Hindu Marriage Act had been dismissed. In the petition, he alleged that he was mentally ill-treated and he was insulted and humiliated in front of his friends. According to him, she also alleged that the child suffered deformities on account of his problem. She stated that she was not interested in the marriage and had avoided him. She left the matrimonial home and she had ended the marital relationship which clearly amounts to desertion. That apart, she had filed false complaint against him and his family members and had expressed her intention that she is not interested to live with him. He further alleged that during 2006, she became pregnant as she led an immoral life and she was leading a wayward life and from 2006, they were living Mat.Appeal Nos.455/09,158/11 & 623/12 -:7:- separately. It is also alleged that respondent had aborted her pregnancy in a hospital at Shornur without his consent or knowledge. 6. Respondent in her objection denied the allegations. In addition to the averments made in OP No. 207/2007, she denied about the alleged cruelty pleaded by the petitioner/husband. She contended that the petitioner has illicit relationship with a girl named Shobhi. When she realised the same, she was sent back to the native place. After returning from abroad, she stayed in the house of petitioner/husband. However he never talked to her thereafter. He only talked to his mother. It is her case that petitioner was avoiding her, but she tolerated his misdeeds taking into consideration her future and that of the child. He however did not show any inclination or affection towards them. She denied the allegation of infidelity and having done an abortion in a hospital at Shornur without his knowledge. In this case, petitioner/husband was examined as PW1 and he placed reliance on Exts.A1 to A9. Respondent was examined as RW1 and she relied upon Exts.B1 to B5. 7. Mat.Appeal No. 623/12 has been filed by the Mat.Appeal Nos.455/09,158/11 & 623/12 -:8:- appellant/husband challenging judgment dated 22/8/2012 in OP No.779/2011. The OP was filed by respondent/wife seeking restitution of conjugal rights. The Family Court after considering the evidence of PW1, RW1 and Exts.A1 to A24, allowed the petition. The factual background in the case is that according to the petitioner, her father is no more and the child is suffering from autism. Respondent has not been providing maintenance to the petitioner or the child for the last more than three years and the child needs the love and affection of the petitioner and the respondent. She wants to lead a good marital life and she is ready to live with the respondent and hence she sought for restitution of conjugal rights. Respondent having denied the allegation raised by her contended that he had given sufficient treatment to the child in various hospitals in India and abroad. The child used to have epilepsy but he alleged that when he was abroad, petitioner/wife did not take care of the child properly. She had also filed CC No.344/2007 against him and his parents. His parents were arrested by the police which had caused great mental strain to him. Therefore, according to him, it is not possible to live with the petitioner. Mat.Appeal Nos.455/09,158/11 & 623/12 -:9:- 8. We heard the learned counsel appearing on either side. Let us first examine whether this is a fit case in which divorce could be granted as the issues raised in Mat.Appeal Nos.158/2011 and 623/2012 are substantially the same. 9. The Family Court having considering the evidence on record observed that the allegation of ill-treatment by the respondent/wife was not proved in the case. On a consideration of the entire pleadings in OP No.1015/2009 and in OP No.779/2011, it is rather clear that allegations and counter allegations have been made by them. In his petition, petitioner having alleged about the cruelty meted out against him and his parents, further alleged that she was living a wayward life and that she got pregnant through some other person and therefore he cannot continue to live with her. He even alleged that she was living with other persons. Apparently these allegations could not be proved by him. The facts involved in the case would further indicate that the respondent/wife had filed criminal complaint against the petitioner and his family members and his parents were arrested by the police. On the other hand, respondent/wife also alleged that the petitioner was having illicit relationship with Mat.Appeal Nos.455/09,158/11 & 623/12 -:10:- a lady by name Shobhi and that he was living with her and they have a child. This allegation is also not proved. Therefore, this is a peculiar case in which either spouses have made allegations and counter allegations which are deep rooted and cannot be washed away. In other words, the marriage had been irretrievably broken. The very fact of a criminal case being filed and the parents of the petitioner/husband being arrested in the said case goes a long way by which the relationship of the parties got irretrievably strained. At one stage, both the parties had on categoric terms indicated that either of them were unable to live together. When such a marriage is in existence, which does not do any good to either of them, we are of the view that this is a fit case in which divorce ought to be granted. As held by the Apex Court in _**Samar Ghosh v. Jaya Ghosh**_ [(2007) 4 SCC 511], this is an instance in which the matrimonial life of the parties cannot be brought together as both of them are in acute mental pain, agony and suffering. In the petition seeking restitution of conjugal rights, respondent/wife had expressed herself to live with the petitioner only on account of the fact that they have a child to be taken care of, who suffers from autism. According to the Mat.Appeal Nos.455/09,158/11 & 623/12 -:11:- petitioner, he was making all arrangements for giving proper treatment to the child as well. That apart, the spouses had been living separately since 2006 and there is no chance for a reunion. The marriage has been irretrievably broken. Though attempts for mediation took place, parties could not arrive at a settlement. Other than the mutual allegations of infidelity on either side, filing of a case u/s 498A of I.P.C. against the parents of the petitioner/husband had further caused cleavage in their marital life. Under such circumstances, there is no reason why the aforesaid marriage should continue. When the pleadings by itself give a vivid picture of the strong dissent in the matrimonial life between the couple, and it reflects that chance of reunion has become virtually impossible, and both suffers from mental agony and anguish, we are of the view that this is a fit case in which divorce has to be granted to the couple. Once we have decided to grant divorce, consequently, the petition for restitution of conjugal rights decreed in OP No.779/2011 has to be set aside. 10. The next issue we are concerned with is about the claim for return of gold ornaments and money. The Family Court rejected the claim on a finding that there is no evidence to prove Mat.Appeal Nos.455/09,158/11 & 623/12 -:12:- that she had 60 sovereigns of gold ornaments and that `75,000/was paid at the time of marriage. In order to prove the claim, petitioner/wife was examined as PW1. She gave evidence in accordance with the claim. PW2 has not stated anything about the aforesaid facts. Ext.A1 series are the photographs which have been produced to prove that she was having sufficient gold ornaments at the time of marriage. But as rightly pointed out by the Court below, it may not be possible to find out the actual weight of the gold ornaments. In the petition, she alleged that he had taken 30 sovereigns immediately after marriage and it was pledged and 17½ sovereigns were taken subsequently. In the objection statement, he had denied those allegations. The only evidence is that of the petitioner and the respondent. There is no supporting evidence to prove that she had 60 sovereigns of gold ornaments and out of which 47½ sovereigns of gold ornaments were appropriated by the respondent. Her contention is that the gold ornaments were taken to pledge the same. But, there is no evidence to prove the said fact. 11. In fact, in the written objection, the respondent had not specifically denied that she had 60 sovereigns of gold Mat.Appeal Nos.455/09,158/11 & 623/12 -:13:- ornaments. His contention was that he had not appropriated any of her property and after the marriage, he had gone abroad and she was taken abroad during September, 2001. Therefore, as far as the contention of the petitioner is concerned, it is rather admitted that she had 60 sovereigns of gold ornaments. Now her contention is that her gold ornaments were appropriated by the respondent and it was pledged. This fact is denied by the respondent. According to him, he does not require her gold ornaments either for going abroad or to purchase any property. He was having sufficient funds with him. When the specific allegation is that the gold ornaments were pledged by the respondent, and the said fact has been denied by the respondent, some material ought to have been produced to prove the said fact. In the absence of any such material, Family Court was justified in rejecting the said claim. Same is the situation as far as allegation of payment of `75,000/- is concerned. Absolutely no material or oral evidence is available to prove the said fact other than the statement of the petitioner which by itself cannot be taken as sufficient proof regarding the said payment. In the said circumstances, we do not find any material whatsoever to Mat.Appeal Nos.455/09,158/11 & 623/12 -:14:- grant a decree in OP No.207/2007. Since no grounds are made out for interference, Mat.Appeal No.455/2009 deserves to be dismissed. Accordingly, these appeals are disposed of as under:- (i) Mat.Appeal No.158/11 is allowed. Judgment in OP No.1015/2009 is set aside. The OP is allowed and the marriage between the petitioner and the respondent shall stand dissolved by a decree of divorce. (ii) Mat.Appeal No.623/2012 is allowed. The judgment in OP No.779/11 is set aside and the OP is dismissed. (iii) Mat.Appeal No.455/2009 is dismissed. ## **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/P.SOMARAJAN** Rp //True copy// **JUDGE** PS to Judge